AMENDMENT NO. 1 TO THE
$100,000,000 1998 TERM CREDIT AGREEMENT
DATED AS OF DECEMBER 16, 1998
Dated as of December 16, 1998
AMENDMENT NO. 1 TO THE $100,000,000 1998 TERM CREDIT AGREEMENT, dated as of
December 16, 1998, among General Nutrition, Incorporated, a Pennsylvania
corporation and General Nutrition Corporation, a Pennsylvania corporation (the
"Borrowers"), General Nutrition Companies, Inc., a Delaware corporation
("GNCI"), the banks, financial institutions and other institutional lenders
listed as restatement lenders on the signature pages hereof (the "Lenders"),
Banque Nationale de Paris ("BNP"), as administrative agent and as documentation
agent (the "Agent") for the Lenders, PNC Bank, National Association and ABN AMRO
Bank N.V., as syndication agents for the Lenders (the ?Syndication Agents?).
PRELIMINARY STATEMENTS:
(1) The Borrowers, GNCI, the Lenders, the Agent and the Syndication Agents
have entered into a $100,000,000 1998 Term Credit Agreement dated as of August
10, 1998 (the "Credit Agreement"). Capitalized terms not otherwise defined in
this Amendment have the same meanings as specified in the Credit Agreement.
(2) The Borrowers have requested that the Lenders consent to certain
amendments to the Credit Agreement to permit (i) the Supplemental Lenders (as
hereinafter defined) to make Supplemental Advances (as hereinafter defined) on
the terms and conditions set forth below and (ii) an increase in the Commitments
and additional Borrowings under the Facility for the purposes set forth in
Section 2.13 of the Credit Agreement.
(3) The Lenders are, on the terms and conditions stated below, willing to
grant the requests of the Borrowers and the Borrowers and the Lenders have
agreed to amend the Credit Agreement as hereinafter set forth.
SECTION 1. Amendments to Credit Agreement. The Credit Agreement is
effective as of the date hereof and subject to the satisfaction of the
conditions precedent set forth in Section2, hereby amended as follows:
(a) Amendments to Section 1.01. Section 1.01 is amended as follows:
"Commitment" means, with respect to any Lender at any time, the amount set
forth opposite such Lender's name on Schedule I hereto under the caption
"Commitment" and any Supplemental Commitment or, in either case, if any such
Lender has entered into one or more Assignments and Acceptances, the amount set
forth for such Lender in the Register maintained by the Administrative Agent
pursuant to Section 8.07(c) as such Lender's "Commitment" or "Supplemental
Commitment", as such amount may be reduced at or prior to such time pursuant to
Section 2.03.
(ii) the definition of "Facility" is amended in full to read as follows:
"Facility" means, at any time, the aggregate amount of the Lenders'
Commitments and the Supplemental Lenders' Supplemental Commitments at such time.
(iii) the definition of "Lenders" is amended in full to read as follows:
"Lenders" means the Lenders listed on the signature pages hereof and a
Supplemental Lender that has a Supplemental Commitment pursuant to Amendment No.
1 and each Eligible Assignee that shall become a party to the Credit Agreement
pursuant to Section 8.07.
(iv) certain new definitions are added to read as follows:
"Supplemental Advance" has the meaning specified in Section 2.01(a).
"Supplemental Borrowing" means a Borrowing consisting of simultaneous
Supplemental Advances of the same type made by one or more Supplemental Lenders.
"Supplemental Commitment" means, with respect to any Supplemental Lender at
any time, either the amount set forth opposite such Supplemental Lender's name
on Schedule I hereto under the caption "Supplemental Commitment" or the
aggregate amount set forth in the Register by the Agent pursuant to Section
2.01(b) for such Supplemental Lender as its ?Supplemental Commitment? on any
future date on or before January 31, 1999, in any event in an aggregate amount
not to exceed $50,000,000, or, in either case, if such Supplemental Lender has
entered into one or more Assignments and Acceptances, the aggregate amount set
forth for such Supplemental Lender in the Register maintained by the
Administrative Agent pursuant to Section 8.07(e) as such Supplemental Lender's
"Supplemental Commitment", as such amount may be reduced at or prior to such
time pursuant to Section 2.05.
"Supplemental Commitment Date" has the meaning specified in Section
2.01(b)(ii).
"Supplemental Lender" means the Lenders listed on the signature pages
hereof and any other Persons who shall enter into a Supplemental Commitment
pursuant to Section 2.01(b).
"Supplement Date" has the meaning specified in Section 2.01(b)(i).
(b) Section 2.01 is amended to add, after the caption thereof, "(a)" and a
new sentence is added following the second sentence of such Section 2.01 to read
as follows:
In addition to the "Advances" made by the Lenders pursuant to this Section
2.01, each Supplemental Lender severally agrees, on the terms and conditions
hereinafter set forth, to make advances (each, a "Supplemental Advance") to the
Borrowers on any Business Day on or prior to January 31, 1999 in an amount not
to exceed such Supplemental Lender's Supplemental Commitment at such time.
(c) Section 2.01 is further amended by adding a new subsection (b) to read
as follows:
"(b) Supplemental Advances. (i) The Borrowers may at any time prior to
January 31, 1999, by notice to the Administrative Agent, obtain Supplemental
Commitments in an aggregate amount not to exceed $50,000,000 to be effective as
of each such date (each, a "Supplement Date") specified by notice from the
Administrative Agent to the Borrowers; provided, however, that no Default shall
have occurred and be continuing as of the date of either such notice or as of
the Supplemental Date or shall occur as a result thereof.
(ii) The Administrative Agent shall promptly notify such Lenders or other
Persons that could be Eligible Assignees of such request by the Borrowers for
Supplemental Commitments, which notice shall include (x) the proposed amount of
such requested Supplemental Commitments, (y) the proposed Supplement Date and
(z) the date by which Lenders or such other Persons wishing to enter into
Supplemental Commitments must commit thereto (the "Supplement Commitment Date").
Each Lender or other Person so notified that is willing to enter into a
Supplemental Commitment shall give written notice to the Administrative Agent on
or prior to the Supplemental Commitment Date of the amount by which it is
willing to enter into a Supplemental Commitment. If such Lenders or other
Persons notify the Administrative Agent that they are willing to enter into
Supplemental Commitments by an aggregate amount that exceeds the amount
permitted by Section 2.01(b)(i), the requested Supplemental Commitments shall be
allocated among such Lenders and other Persons willing to participate therein in
such amounts as are determined by the Administrative Agent.
(iii) On or before each Supplement Date, each institution that agrees to
enter into a Supplemental Commitment shall commit thereto and shall become a
Lender party to this Agreement as of such Supplement Date or, if already a
Lender, the Term Commitment of such Lender for such Supplement Commitment shall
be so increased by such amount (or by the amount allocated to such Lender
pursuant to the last sentence of Section 2.05(b)(ii)) as of such Supplement
Date; provided, however, that the Administrative Agent shall have received on or
before such Supplement Date the following, each dated such date:
(x) a lender supplement from each Supplemental Lender that is not then an
existing Lender, in form and substance acceptable to the Administrative Agent,
duly executed by each such Supplemental Lender, the Administrative Agent; and
(y) confirmation from each Supplemental Lender that is then an existing
Lender of the increase in the amount of its Supplemental Commitment in a writing
satisfactory to the Borrower and the Administrative Agent.
On each Supplement Date, upon fulfillment of the conditions set forth in
the immediately preceding sentence of this Section 2.01(b)(iii), the
Administrative Agent shall notify the Lenders (including, without limitation,
each Supplemental Lender) and the Borrowers, on or before 1:00 P.M. (New York
City time), by telecopier or telex, of the Supplemental Commitments to be made
effective on such Supplement Date and shall record in the Register the relevant
information with respect to each Supplemental Lender on such date.
(d) Section 2.10(a) is amended by adding, after the second sentence
thereof, a new sentence, to read as follows:
Upon any Supplemental Lender becoming a Lender hereunder as a result of a
Supplemental Commitment pursuant to Section 2.01(b) and upon the Administrative
Agents acceptance of such Lenders supplement referred to in Section 2.01(b)
and recording of the information contained therein in the Register, from and
after the Supplement Date applicable to such Supplemental Commitment, the
Administrative Agent shall make payments hereunder and under the Notes issued in
connection therewith in respect of the interest assumed thereby to the
Supplemental Lender.
(e) Schedule I to the Credit Agreement is supplemented to add the
Supplemental Commitments of the Supplemental Lenders as set forth on Schedule I
to this Amendment.
SECTION 2. Conditions of Effectiveness. This Amendment shall become
effective as of the date hereof when, and only when the Administrative Agent
shall have received:
(a) counterparts of this Amendment executed by the Borrowers, GNCI, the
Agent, the Syndication Agent and the Lenders or, as to any of such Lenders,
advice satisfactory to the Administrative Agent that such Lender has executed
this Amendment, and the consent attached hereto (the "Consent") executed by each
of the Loan Parties other than the Borrowers;
(b) Certified copies of the resolutions of the Board of Directors of
(i) each of the Borrowers approving this Amendment and the matters contemplated
hereby and thereby and (ii) each of the other Loan Parties evidencing approval
of the Consent and the matters contemplated hereby and thereby;
(c) A certificate of the Secretary or an Assistant Secretary of each of the
Borrowers and of each of the other Loan Parties, respectively, certifying the
names and true signatures of the officers, of each of the Borrowers and of each
of the other Loan Parties, respectively, authorized to sign, in the case of each
of the Borrowers, this Amendment, and, in the case of each of the other Loan
Parties, the Consent.
(d) A favorable opinion of counsel to the Borrowers and the Parent
Guarantor, in form and substance satisfactory to the Administrative Agent.
(e) A certificate signed by a duly authorized officer of each of the
Borrowers, stating that:
(i) The representations and warranties contained in Section 3 are correct
on and as of the date of such certificate as though made on and as of such date
other than any such representations or warranties that, by their terms, refer to
a date other than the date of such certificate; and
(ii) No event has occurred and is continuing that constitutes a Default
under the Loan Documents.
SECTION 3. Representations and Warranties of the Borrowers. The Borrowers
represent and warrant as follows:
(a) Each Loan Party is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation.
(b) The execution, delivery and performance by each Loan Party of this
Amendment, the Consent and the Loan Documents, as amended hereby, to which it is
or is to be a party are within such Loan Party's corporate powers, have been
duly authorized by all necessary corporate action and do not (i) contravene such
Loan Party's charter or bylaws, (ii) violate any law (including, without
limitation, the Securities Exchange Act of 1934, as amended, and the Racketeer
Influenced and Corrupt Organizations Chapter of the Organized Crime Control Act
of 1970), rule or regulation (including, without limitation, Regulation X of the
Board of Governors of the Federal Reserve System), or any order, writ, judgment,
injunction, decree, determination or award, (iii) conflict with or result in the
breach of, or constitute a default under, any contract, loan agreement,
indenture, mortgage, deed of trust, lease or other instrument binding on or
affecting such Loan Party, any of its Subsidiaries or any of their properties or
(iv) result in or require the creation or imposition of any Lien upon or with
respect to any of the properties of such Loan Party or any of its Subsidiaries.
(c) No authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or any other third
party is required for the due execution, delivery, recordation, filing or
performance by any Loan Party of this Amendment, the Consent or any of the Loan
Documents, as amended hereby, to which it is or is to be a party. (d) This
Amendment has been duly executed and delivered by each Loan Party party hereto
and the Consent has been duly executed and delivered by each Loan Party party
thereto. This Amendment, the Consent and each of the other Loan Documents, as
amended hereby, to which such Loan Party is a party are legal, valid and binding
obligations of such Loan Party, enforceable against such Loan Party in
accordance with their respective terms.
(e) There is no action, suit, investigation, litigation or proceeding
affecting any Loan Party or any of their Subsidiaries (including, without
limitation, any Environmental Action) pending or threatened before any court,
governmental agency or arbitrator that (i) is reasonably likely to have a
Material Adverse Effect or (ii) purports to affect the legality, validity or
enforceability of this Amendment, the Consent or any of the other Loan
Documents, as amended hereby.
SECTION 4. Reference to and Effect on the Loan Documents. (a) On and after
the effectiveness of this Amendment, each reference in the Credit Agreement to
"this Agreement", "hereunder", "hereof" or words of like import referring to the
Credit Agreement, and each reference in the Notes and each of the other Loan
Documents to "the Credit Agreement", "thereunder", "thereof" or words of like
import referring to the Credit Agreement, shall mean and be a reference to the
Credit Agreement, as amended by this Amendment.
(b) The Credit Agreement, as specifically amended by this Amendment, and
the Notes are and shall continue to be in full force and effect and are hereby
in all respects ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall not,
except as expressly provided herein, operate as a waiver of any right, power or
remedy of any Lender or the Administrative Agent under any of the Loan
Documents, nor constitute a waiver of any provision of any of the Loan
Documents.
SECTION 5. Costs, Expenses. The Borrowers agree to pay on demand all costs
and expenses of the Administrative Agent in connection with the preparation,
execution, delivery and administration, modification and amendment of this
Amendment and the other instruments and documents to be delivered hereunder
(including, without limitation, the reasonable fees and expenses of counsel for
the Administrative Agent) in accordance with the terms of Section 8.04 of the
Credit Agreement.
SECTION 6. Execution in Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute but one and the same agreement. Delivery
of an executed counterpart of a signature page to this Amendment by telecopier
shall be effective as delivery of a manually executed counterpart of this
Amendment.
SECTION 7. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
GENERAL NUTRITION, INCORPORATED,
as Borrower
By
Title:
GENERAL NUTRITION CORPORATION,
as Borrower
By
Title:
GENERAL NUTRITION COMPANIES, INC.
By
Title:
BANQUE
NATIONALE DE PARIS,
as Administrative Agent, Documentation Agent
and Lender
By
Title:
By
Title:
PNC BANK, NATIONAL ASSOCIATION,
as Syndication Agent and Lender
By
Title:
ABN AMRO BANK N.V.,
as Syndication Agent and Lender
By
Title:
By
Title:
KEYBANK NATIONAL ASSOCIATION,
as Lender
By
Title:
PILGRIM PRIME RATE TRUST,
as Lender
By
Title:
CONSENT Dated as of December 16,1998 The undersigned, (a) General Nutrition
Companies, Inc., a Delaware corporation ("GNCI") and General Nutrition,
Incorporated ("GNI"); GNI and GNCI each being a "Guarantor"; collectively being
the "Guarantors") under the Parent Guaranty dated as of August 10, 1998 (the
"Guaranty") and (b) each of the undersigned Persons designated on the signature
pages hereof as a "Subsidiary Guarantor" (each, a "Subsidiary Guarantor") under
the Subsidiary Guaranty dated as of August 10, 1998 (the "Subsidiary Guaranty"),
in each case in favor of the Agent, for its benefit and the benefit of the
Lenders parties to the Credit Agreement referred to in the Amendment to which
this Consent is attached, hereby consent to such Amendment and hereby confirm
and agree that notwithstanding the effectiveness of such Amendment, each of the
Guaranty and the Subsidiary Guaranty shall continue to be in full force and
effect and is hereby ratified and confirmed in all respects, except that, on and
after the effectiveness of such Amendment, each reference in the Guaranty and
the Subsidiary Guaranty to the "Credit Agreement", "thereunder", "thereof" or
words of like import shall mean and be a reference to the Credit Agreement, as
amended by such Amendment and each reference in the Guaranty to the "Guaranty",
"thereunder", "thereof" or words of like import shall mean and be a reference to
the Parent Guaranty, as amended by such Amendment.
GENERAL NUTRITION COMPANIES,
INC.
By Title:
GENERAL NUTRITION, INCORPORATED
By Title:
SUBSIDIARY GUARANTORS
GENERAL NUTRITION
CORPORATION
By
Title:
Address:
GENERAL NUTRITION PRODUCTS,
INC.
By
Title:
Address:
NATURE?S FRESH NORTHWEST, INC.
By
Title:
Address:
GENERAL NUTRITION GOVERNMENT SERVICES, INC.
By
Title:
Address:
GNC (CANADA) HOLDING COMPANY
By
Title:
Address:
GENERAL NUTRITION INVESTMENT
COMPANY
By
Title:
Address:
GENERAL NUTRITION DISTRIBUTION, L.P.,
formerly known as
GENERAL NUTRITION
SERVICES, INC.
By
Title:
Address:
GNC FRANCHISING, INC.
By
Title:
Address:
GNC LIMITED
By
Title:
Address:
GENERAL NUTRITION INTERNATIONAL, INC.
By
Title:
Address:
GENERAL NUTRITION SALES CORPORATION
By
Title:
Address:
GNC (UK) HOLDING COMPANY
By
Title:
Address:
NATURE FOOD CENTRES, INC.
By
Title:
Address:
NFC, INC.
By
Title:
Address:
GNC INTERNATIONAL HOLDINGS, INC.
By
Title:
Address:
Schedule I
Commitments and Applicable Lending Offices
(continued)
Schedule I
Supplemental Commitments and Applicable Lending Offices
------------------------------------------------------------------------------------------------------------------------------------
Name of Supplemental Lender Supplemental Domestic Lending Office and
Commitment Eurodollar Lending Office
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Pilgrim Prime Rate Trust $15,000,000.00 0 Xxxxxxxxxxx Xxxxxx
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxx
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