Exhibit 4.4(iii)
SECOND AMENDMENT
TO
CREDIT AGREEMENT
This SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment")
is dated as of April 30, 1999 and is by and among GLOBAL HEALTH SUB, INC., as
Borrower, GLOBAL HEALTH SCIENCES, INC., as Parent Guarantor, the LENDERS party
hereto, CITICORP USA, INC., as Administrative Agent, CITIBANK, N.A., as Issuing
Bank, and BANK OF AMERICA NT&SA, as Documentation Agent.
RECITALS
1. The parties hereto have previously entered into that
certain Credit Agreement dated as of April 23, 1998, as amended by that certain
First Amendment to Credit Agreement dated as of December 4, 1998 (as so amended,
the "Credit Agreement").
2. The Borrower has requested that the Lenders agree to
amendments to certain provisions of the Credit Agreement and the Lenders are
willing to agree to such amendments, all on the terms and conditions set forth
herein.
AGREEMENT
I.
DEFINITIONS
1.1. DEFINED TERMS. Capitalized terms used but not otherwise
defined herein shall have the respective meanings assigned to such terms in the
Credit Agreement.
II.
AMENDMENTS
2.2. AMENDMENTS TO CREDIT AGREEMENT. As of the Second
Amendment Effective Date, the Credit Agreement shall be amended as follows:
2.1.1. SECTION 1.1.
(a) Section 1.1 of the Credit Agreement is hereby
amended by adding thereto in appropriate alphabetical order the
following defined term:
"`SECOND AMENDMENT EFFECTIVE DATE' means the date of
the effectiveness of the Second Amendment to Credit Agreement dated as
of April 30, 1999 by and among the Borrower, Parent Guarantor, the
Lenders signatory thereto, the Administrative Agent, the Issuing Bank
and the Documentation Agent."
(b) Clause (g)(ii)(A) of the definition of "Permitted
Acquisition" is hereby amended by inserting the phrase "(as in effect
prior to the Second Amendment Effective Date)" immediately following
the words "Sections 6.12 through 6.15" appearing in such clause.
(c) Clause (g)(ii)(B) of the definition of "Permitted
Acquisition" is hereby amended by inserting the phrase "(as in effect
prior to the Second Amendment Effective Date)" immediately following
the words "compliance with such covenants" appearing in such clause.
2.1.2. SECTION 6.4(B). Section 6.4(b) of the Credit
Agreement is hereby amended and restated in its entirety to read as
follows:
"(b) Permitted Acquisitions after the date of
delivery of the financial statements and Compliance Certificate
required hereunder with respect to the first fiscal quarter of the
Borrower in 2000 if and only if (i) the Borrower is, as of the end of
such fiscal quarter (and each fiscal quarter thereafter) and as of and
after giving effect to the consummation of such Permitted Acquisition,
in compliance with the provisions of Sections 6.11 through and
including 6.15 hereof as in effect prior to the Second Amendment
Effective Date, and (ii) each of the Supply Agreements shall have been
extended until at least December 31, 2003 on substantially the same
terms (and in no event on terms materially less favorable to the Loan
Parties);"
2.1.3. SECTIONS 6.11 THROUGH 6.15. Sections 6.11 through and
including Section 6.15 of the Credit Agreement are hereby amended and restated
in their entirety to read as follows:
"Section 6.11 CAPITAL EXPENDITURES. The Borrower and Holdings
will not make any Capital Expenditures except (a) Permitted
Acquisitions and (b) other Capital Expenditures made by the Borrower or
a Borrower Subsidiary in an amount which, in the aggregate for all such
other Capital Expenditures made by the Borrower and the Borrower
Subsidiaries, does not (i) for the period of four fiscal quarters
ending as of the end of the first fiscal quarter of 1999, exceed
$9,250,000, (ii) for the period of four fiscal quarters ending as of
the end of the second fiscal quarter of 1999, exceed $10,500,000, (iii)
for the period of four fiscal quarters ending as of the end of the
third fiscal quarter of 1999, exceed $10,000,000, (iv) for the period
of four fiscal quarters ending as of the end of the fourth fiscal
quarter of 1999, exceed $10,750,000, or (v) in any period of four
fiscal quarters ending on the last day of any fiscal quarter,
commencing with the fiscal quarter ending March 31, 2000, exceed 3% of
revenues of the Borrower and the Borrower Subsidiaries for such
four-quarter period determined on a consolidated basis in accordance
with GAAP.
Section 6.12 PRO FORMA LEVERAGE RATIO. Each of the Borrower
and Holdings will not permit the Pro Forma Leverage Ratio to exceed, as
of the last day of any fiscal quarter ending during any period set
forth below, the ratio set forth opposite such period:
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PERIOD TOTAL LEVERAGE RATIO
First fiscal quarter 1999 to and including
second fiscal quarter 1999 5.65 to 1.0
Third fiscal quarter 1999 5.0 to 1.0
Fourth fiscal quarter 1999 to and including
third fiscal quarter 2000 4.25 to 1.0
Fourth fiscal quarter 2000 and thereafter 4.0 to 1.0
Section 6.13 CONSOLIDATED EBITDA. The Borrower and Holdings will not
permit Consolidated EBITDA for any period of four fiscal quarters ending as of
the last day of any fiscal quarter ending during any period set forth below to
be less than the amount set forth opposite such period:
MINIMUM CONSOLIDATED EBITDA
PERIOD
First fiscal quarter 1999 $38,500,000
Second fiscal quarter 1999 to and including 40,000,000
third fiscal quarter 1999
Fourth fiscal quarter 1999 to and including 50,000,000
third fiscal quarter 2000
Fourth fiscal quarter 2000 to and including 60,000,000
third fiscal quarter 2001
Fourth fiscal quarter 2001 to and including 70,000,000
third fiscal quarter 2002
Fourth fiscal quarter 2002 and thereafter 80,000,000
Section 6.14 CASH INTEREST COVERAGE RATIO. The Borrower and Holdings
will not permit the Cash Interest Coverage Ratio, determined as of the last day
of any fiscal quarter ending during any period set forth below, to be less than
the ratio set forth opposite such period below:
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PERIOD MINIMUM RATIO
First fiscal quarter 1999 to and including second
fiscal quarter 1999 1.55 to 1.0
Third fiscal quarter 1999 1.65 to 1.0
Fourth fiscal quarter 1999 to and including third 2.00 to 1.0
fiscal quarter 2000
Fourth fiscal quarter 2000 to and including third 2.50 to 1.0
fiscal quarter 2001
Fourth fiscal quarter 2001 and thereafter 2.75 to 1.0
Section 6.15 FIXED CHARGE COVERAGE RATIO. The Borrower and Holdings
will not permit the Fixed Charge Coverage Ratio, determined as of the last day
of any fiscal quarter ending during any period set forth below, to be less than
the ratio set forth opposite such period:
PERIOD MINIMUM RATIO
First fiscal quarter 1999 .95 to 1.0
Second fiscal quarter 1999 .90 to 1.0
Third fiscal quarter 1999 1.05 to 1.0
Fourth fiscal quarter 1999 1.10 to 1.0
First fiscal quarter 2000 to and including third 1.25 to 1.0
fiscal quarter 2000
Fourth fiscal quarter 2000 to and including third 1.35 to 1.0
fiscal quarter 2001
Fourth fiscal quarter 2001 to and including third 1.45 to 1.0
fiscal quarter 2002
Fourth fiscal quarter 2002 and thereafter 1.50 to 1.0"
III.
REPRESENTATIONS AND WARRANTIES
3.1. REPRESENTATIONS AND WARRANTIES. Each of the Borrower and the
Parent Guarantor hereby represents and warrants to the Administrative Agent, the
Lenders and the Issuing Bank as follows:
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3.1.1. Such party is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its
incorporation, with full power and authority to carry on its business
as now conducted and to enter into and perform its obligations under
this Amendment and the Credit Agreement as amended hereby and, except
where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, is
qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required.
3.1.2. Such party has taken all necessary action to
authorize the execution, delivery and performance of this Amendment and
the Credit Agreement as amended hereby.
3.1.3. This Amendment has been duly executed and
delivered by such party and each of this Amendment and the Credit
Agreement as amended hereby constitutes the legal, valid and binding
obligation of such party, enforceable against such party in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and by general principles of equity
(regardless of whether enforcement is sought in a proceeding at law or
in equity).
3.1.4. After giving effect to this Amendment, no
event has occurred and is continuing, or would result from the
execution and delivery of this Amendment that would constitute a
Default.
3.1.5. Each of the representations and warranties
contained in this Amendment and the Credit Agreement as amended hereby
is true, correct and complete as if set forth in full herein and made
on the date this Amendment becomes effective, except to the extent that
any such representation and warranty specifically relates to an earlier
date, in which case it was true, correct and complete as of such
earlier date.
IV.
CONDITIONS TO EFFECTIVENESS
4.1. CONDITIONS TO EFFECTIVENESS. The consents, waivers and
amendments effected by this Amendment shall not become effective until the date
(the "Second Amendment Effective Date") on which the following conditions
precedent are satisfied or waived in writing by the Required Lenders:
4.1.1. EXECUTION OF THIS AGREEMENT. Parent Guarantor,
the Borrower, the Administrative Agent, the Issuing Bank and the
Required Lenders shall have executed and delivered this Amendment to
the Administrative Agent and each other Guarantor shall have executed
and delivered the Consent attached hereto to the Administrative Agent.
4.1.2. REPRESENTATIONS AND WARRANTIES; NO DEFAULT.
All representations and warranties contained in this Amendment and the
Credit Agreement as amended
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hereby shall be true, correct and complete as if made on the date this
Amendment becomes effective, except to the extent that such
representations and warranties specifically relate to an earlier date,
in which case they are true, correct and complete as of such earlier
date and, after giving effect to this Amendment, no event shall have
occurred and be continuing that constitutes a Default.
V.
AMENDMENT FEE
The Borrower shall, on or prior to May 7, 1999, pay to the
Administrative Agent for the account of each Lender executing this Amendment on
or prior to May 6, 1999, a non-refundable amendment fee in the amount of 0.25%
of each such Lender's Revolving Commitment. Failure to pay such fee in full on
or prior to May 7, 1999 shall constitute an Event of Default under the Credit
Agreement.
VI.
MISCELLANEOUS
6.1. NO WAIVER. Except as expressly set forth herein, nothing contained
herein or in any other instrument or document executed in connection herewith,
nor any action taken by the Administrative Agent, the Issuing Bank or any Lender
, or any party hereto or any party consenting hereto in connection with this
Amendment or any other action contemplated hereby or thereby shall in any event
be construed or deemed to constitute a waiver of any past, present or future
Default or Event of Default, or a waiver or an estoppel of any cause of action
the Administrative Agent, the Issuing Bank or any Lender, or any party hereto or
any party consenting hereto may have against any other party for any reason
whatsoever.
6.2. FULL FORCE AND EFFECT. As of the Second Amendment Effective Date,
the Credit Agreement shall be amended to the extent set forth in Section 2
hereof. Except as specifically amended by this Amendment, all of the terms and
provisions of the Credit Agreement or any of the documents referred to therein
or defined in connection therewith shall remain in full force and effect. Such
amendments shall be limited precisely as written and shall not be deemed (a)
except as expressly set forth herein, to be a consent to any modification or
waiver of other terms or conditions of the Credit Agreement or any of the
documents referred to therein or delivered in connection therewith or (b) to
prejudice any right, remedy, power or privilege which any party hereto or any
party consenting hereto now has or may have in the future under or in connection
with the Credit Agreement or any of the documents referred to therein or
delivered in connection therewith. The term "Agreement" as used in the Credit
Agreement, the other Loan Documents and all other related documents shall mean
the Credit Agreement as amended hereby.
6.3. EXPENSES. Without limiting any provision of the Amendment or
Section 9.3 of the Credit Agreement, each of the Borrower and Holdings jointly
and severally agrees to pay promptly all reasonable costs and expenses of the
Administrative Agent and the reasonable costs and expenses of the Administrative
Agent's legal counsel in connection with the
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preparation, negotiation, execution, delivery and administration of this
Amendment and the transactions contemplated hereby.
6.4. GOVERNING LAW. This Amendment shall be governed by and construed
in accordance with the laws of the State of New York, without regard to
conflicts of law principles. The provisions of Sections 9.9(b)-(d) and 9.10 of
the Credit Agreement shall apply hereto.
6.5. SEVERABILITY. The illegality or unenforceability of any provision
of this Amendment, the Credit Agreement (including as amended hereby) or any
other document or any other instrument or agreement required hereunder or
thereunder shall not in any way affect or impair the legality or enforceability
of the remaining provisions of this Amendment, the Credit Agreement (including
as amended hereby) or such other document or any other instrument or agreement
required hereunder or thereunder.
6.6. HEADINGS. Article and Section headings used herein are for
convenience of reference only, are not part of this Amendment and shall not
affect the construction of, or be taken into consideration in interpreting, this
Amendment (or the Credit Agreement as amended hereby).
6.7. COUNTERPARTS. This Amendment may be executed by one or more of the
parties hereto in any number of separate counterparts, each of which, when so
executed shall be deemed an original, and all of said counterparts taken
together shall be deemed to constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to Credit Agreement to be duly executed and delivered by their
respective officers thereunto duly authorized as of the date first above
written.
GLOBAL HEALTH SUB, INC.,
as Borrower
By:
----------------------------------------
Name:
Title:
GLOBAL HEALTH SCIENCES, INC.,
as Parent Guarantor
By:
----------------------------------------
Name:
Title:
CITICORP USA, INC.,
as Administrative Agent
By:
----------------------------------------
Name:
Title:
CITIBANK, N.A.,
as Issuing Bank
By:
----------------------------------------
Name:
Title:
S-1
BANK OF AMERICA NT&SA,
as Documentation Agent
By:
----------------------------------------
Name:
Title:
S-2
CITICORP USA, INC.,
as Lender
By:
----------------------------------------
Name:
Title:
S-3
BANK OF AMERICA NT&SA,
as Lender
By:
----------------------------------------
Name:
Title:
S-4
SANWA BANK CALIFORNIA,
as Lender
By:
----------------------------------------
Name:
Title:
S-5
XXXXX FARGO BANK, N.A.,
as Lender
By:
----------------------------------------
Name:
Title:
X-0
XXXXXXXX XXXX XX,
Xxx Xxxx and Grand Cayman Branches,
as Lender
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
S-7
CONSENT
DATED AS OF APRIL 30, 1999
The undersigned, as Subsidiary Guarantors under the "Guarantee
Agreement" and as Subsidiary Grantors under the "Pledge and Security Agreement"
(as such terms are defined in and under the Credit Agreement referred to in the
foregoing Second Amendment), each hereby consents and agrees to the foregoing
Second Amendment and hereby confirms and agrees that (i) the Guarantee Agreement
and the Pledge and Security Agreement are, and shall continue to be, in full
force and effect and are hereby ratified and confirmed in all respects except
that, upon the effectiveness of, and on and after the date of, said Second
Amendment, each reference in the Guarantee Agreement and the Pledge and Security
Agreement to the "Credit Agreement", "thereunder", "thereof" and words of like
import referring to the Credit Agreement, shall mean and be a reference to the
Credit Agreement as amended by said Second Amendment, and (ii) the Pledge and
Security Agreement and all of the Collateral described therein do, and shall
continue to, secure the payment of all of the Secured Obligations as defined in
the Pledge and Security Agreement.
D&F INDUSTRIES, INC.
RAVEN INDUSTRIES, INC.
DYNAMIC PRODUCTS, INC.
WEST COAST SALES
AMERICAN INGREDIENTS, INC.
By:
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Name:
Title:
