THIRD AMENDMENT
THIRD AMENDMENT, dated as of May 1, 1998 (this "Third Amendment") to
the Credit and Guarantee Agreement, dated as of September 23, 1997 (as amended
pursuant to the First Amendment and Waiver thereto dated as of December 12, 1998
and the Second Amendment thereto dated as of April 20, 1998, and as may be
further amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among NBTY, Inc., a Delaware corporation (the "Company"),
Holland & Xxxxxxx Holdings Limited (the "Foreign Subsidiary Borrower") and
together with the Company, the "Borrowers"), the several banks and other
financial institutions from time to time parties thereto (the "Lenders") and The
Chase Manhattan Bank, a New York banking corporation, as administrative agent
for the Lenders thereunder (the "Administrative Agent').
W I T N E S S E T H:
WHEREAS, the Borrowers, the Lenders and the Administrative Agent are
parties to the Credit Agreement; and
WHEREAS, the Borrowers have requested that certain provisions of the
Credit Agreement be amended in the manner provided for in this Third Amendment
and the Lenders are willing to agree to such amendments upon the terms and
subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, and for other good and valuable consideration, the sufficiency
of which is hereby acknowledged, the Borrowers, the Lenders and the
Administrative Agent hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in
the Credit Agreement shall have such meanings when used herein.
2. Amendments to Credit Agreement. (a) The second paragraph of the
introductory statement to the Credit Agreement is hereby amended by deleting the
reference to "$50,000,000" and replacing it with "60,000,000".
(b) Schedule I to the Credit Agreement is hereby amended by deleting it
in its entirety and replacing it with Schedule I, attached hereto as Annex A.
(c) Subsection 9.8 of the Credit Agreement is hereby amended by
deleting it in its entirety and replacing it with the following:
"9.8 Limitation on Capital Expenditures. Make any Capital Expenditure
except for Capital Expenditures by the Company and its Subsidiaries in
the ordinary course of business not exceeding, in the aggregate (i)
during the 1998
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fiscal year of the Company (a) $50,000,000 and (b) $10,000,000 relating
to point of sale equipment to be used by the Foreign Subsidiary Borrower
and (ii) during each fiscal year of the Company thereafter $40,000,000."
3. Payment of Fees. The Borrowers agree to pay to each Lender a fee in
an amount equal to .15% of the amount by which such Lender's Commitment is
increased by this Third Amendment.
4. Representation and Warranties. To induce the Administrative Agent and
the Lenders parties hereto to enter into this Third Amendment, each Borrower
hereby represents and warrants to the Administrative Agent and the Lenders as of
the Third Amendment Effective Date (as defined below) and after giving effect
thereto that (a) the representations and warranties made by such Borrower in the
Credit Agreement are true and correct in all material respects on and as of the
date hereof (except to the extent that such representations and warranties are
expressly stated to relate to an earlier date, in which case such
representations and warranties shall have been true and correct in all material
respects on and as of such earlier date), provided that references in such
representations and warranties to the Credit Agreement shall be deemed to be
references to (i) the Credit Agreement, as amended hereby and (ii) this Third
Amendment and (b) no Default or Event of Default has occurred and is continuing.
5. Continuing Effect of Credit Agreement. This Third Amendment shall not
constitute a waiver, amendment or modification of any other provision of the
Credit Agreement not expressly referred to herein and shall not be construed as
a waiver or consent to any further or future action on the part of the Borrowers
that would require a waiver or consent of the Lenders or the Administrative
Agent. Except as expressly amended hereby, the provisions of the Credit
Agreement are and shall remain in full force and effect.
6. Counterparts. This Third Amendment may be executed by one or more of
the parties hereto on any number of separate counterparts and all such
counterparts shall be deemed to be one and the same instrument. Each party
hereto confirms that any facsimile copy of such party's executed counterpart of
this Third Amendment (or its signature page thereof) shall be deemed to be an
executed original thereof.
7. Payment of Expenses. The Borrowers agree to pay or reimburse the
Administrative Agent for all of its out-of-pocket costs and reasonable expenses
incurred in connection with this Third Amendment, any other documents prepared
in connection herewith and the transactions contemplated hereby, including,
without limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent.
8. Effective Date. This Third Amendment shall become effective as of the
date hereof upon (i) its execution by the Borrowers, each Guarantor (as defined
in the Guarantee and Collateral Agreement) and the Majority Lenders, (ii)
receipt by the Administrative Agent of a certificate of a Responsible Officer of
the Company certifying as to the matters set forth in Sections 4(a) and (b)
above in form and substance reasonably satisfactory to the Administrative Agent,
and (iii) receipt by the Administrative Agent of
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resolutions, in form and substance satisfactory to the Administrative Agent, of
the Board of Directors of each of the Borrowers authorizing this Third Amendment
(the date upon which this Third Amendment shall become effective, the "Third
Amendment Effective Date").
9. Affirmation of Guarantees. Each Guarantor (as defined in the
Guarantee and Collateral Agreement) hereby consents to the execution and
delivery of this Third Amendment and reaffirms its obligations under the
Guarantee and Collateral Agreement executed by such Guarantor.
10. GOVERNING LAW. THIS THIRD AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment
to be duly executed and delivered by their proper and duly authorized officers
as of the day and year first above written.
NBTY, INC.
By: /s/ Xxxxxx Xxxxx
--------------------------------
Title: Xxxxxx Xxxxx
Executive Vice President
HOLLAND & XXXXXXX HOLDINGS LIMITED
By: /s/ Xxxxxx Xxxxx
--------------------------------
Title: Xxxxxx Xxxxx
Executive Vice President
THE CHASE MANHATTAN BANK, as
Administrative Agent and as a
Lender, and as Swing Line Lender
and as Issuing Lender
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Title: Xxxxxxx X. Xxxxxxxx
Vice President
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Burn
--------------------------------
Title: Xxxxxx X. Burn
Vice President
THE BANK OF NOVA SCOTIA
By: /s/ J. Xxxx Xxxxxxx
--------------------------------
Title: J. Xxxx Xxxxxxx
Authorized Signatory
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EUROPEAN AMERICAN BANK
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Title: Assistant Vice President
IBJ XXXXXXXX BANK & TRUST COMPANY
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Title: Managing Director
Consented to and agreed:
NATURE'S BOUNTY INC.,
NATURE'S BOUNTY, INC.,
VITAMIN WORLD, INC.,
PURITAN'S PRIDE, INC.,
ARCO PHARMACEUTICALS, INC.
NATURAL WEALTH NUTRITION CORPORATION,
FOUNTAIN PUBLISHING, INC.,
OMNI VITAMIN AND NUTRITION CORP.,
UNITED VITAMIN MANUFACTURING CORP.,
THE XXXXXX CORPORATION,
GOOD 'N NATURAL MANUFACTURING CORP.,
BEAUTIFUL VISIONS, NEW YORK CORP.,
PRIME NATURAL HEALTH LABORATORIES, INC.,
AMERICAN HEALTH, INC.,
NATURE'S BOUNTY MANUFACTURING CORP.,
NABARCO ADVERTISING ASSOCIATES, INC.,
HERBAL HARVEST, INC.,
NUTRITION HEADQUARTERS (DE), INC.
By:
-----------------------------------
Title:
Annex A
to Third Amendment
SCHEDULE I
COMMITMENTS; ADDRESSES
Revolving Credit
Lender Commitment
The Chase Manhattan Bank
000 Xxxxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx $15,600,000
KeyBank National Association
0000 Xxxxx Xxxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxx $12,000,000
Bank of Nova Scotia
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxx Xxxx $10,800,000
European American Bank
000 Xxxxxxxx Xxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxx Xxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx $10,800,000
I.B.J. Xxxxxxxx Bank & Trust Company
0 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxx Xxxxxxxxx $10,800,000
TOTAL $60,000,000
