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EXHIBIT 4.6
CONSENT AND FIRST AMENDMENT AGREEMENT
This CONSENT AND FIRST AMENDMENT AGREEMENT ("Agreement") is made and
entered into as of June 30, 2000 by and between WEIDER NUTRITION GROUP, INC., a
Utah corporation ("Borrower"); and WYNNCHURCH CAPITAL PARTNERS, L.P., a Delaware
limited partnership, and WYNNCHURCH CAPITAL PARTNERS CANADA, L.P., an Alberta
limited partnership (collectively, "Lenders").
R E C I T A L S
A. Pursuant to that certain Senior Subordinated Loan Agreement dated as
of June 30, 2000 (the "Loan Agreement") between Borrower and Lenders, Lenders
purchased promissory notes of Borrower having an aggregate principal amount of
$10,000,000 (the "Notes").
B. Borrower and Lenders have agreed to amend the Loan Agreement, on the
terms and subject to the conditions set forth herein.
A G R E E M E N T S
NOW, THEREFORE, in consideration of the agreements set forth herein,
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
1. Incorporation of Recitals. The foregoing recitals are incorporated
herein by reference and made a part of this Agreement.
2. Definitions. All capitalized terms used herein without definition
shall have the meanings given to them in the Loan Agreement.
3. Amendment of the Loan Agreement. Subject to Borrower's performance
of its obligations to Lenders hereunder on the date hereof, the parties hereto
agree to amend the terms of the Loan Agreement as follows:
(a) Section 1.1 of the Loan Agreement shall be amended by deleting
the definition of the term "Fixed Coverage Ratio" set forth therein and
replacing the definition with the following language:
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"Fixed Charge Coverage Ratio shall mean, as determined as of any
date for any period ending on such date, the ratio of (a) EBITDA for
such period to (b) the sum of the following, in each case of the
Borrower Consolidated Entity as determined in accordance with GAAP for
such period, (i) cash income tax expense, (ii) cash Interest Expense,
(iii) Capital Expenditures of the Borrower Consolidated Entity (except
for such Capital Expenditures financed with the proceeds of
Indebtedness other than the Senior Indebtedness), and (iv) regularly
scheduled principal payments on the Senior Indebtedness and other
Indebtedness."
(b) Section 6.13(a) of the Loan Agreement is hereby deleted in its
entirety and the following language is hereby substituted therefor:
"(a) Fixed Charge Coverage Ratio. Borrower shall not permit the
Fixed Change Coverage Ratio, as determined as of each date set
forth below, for the twelve month period ending on such date,
to be less than the ratio set forth below opposite such date:
Date Minimum Ratio
---- -------------
August 31, 2000 1.00 to 1.00
November 30, 2000 .80 to 1.00
February 28, 2001 .80 to 1.00
May 31, 2001 1.00 to 1.00
August 31, 2001 .95 to 1.00
November 30, 2001 .95 to 1.00
February 28, 2002 .95 to 1.00
May 31, 2002 .95 to 1.00
August 31, 2002 .95 to 1.00
November 30, 2002 .90 to 1.00
February 28, 2003 .90 to 1.00
May 31, 2003 .90 to 1.00
August 31, 2003 .90 to 1.00
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November 30, 2003 .95 to 1.00
and the last day of
each fiscal quarter
of Borrower ending
thereafter"
4. Representations and Warranties of Borrower. As a further inducement
for Lenders to consent to the transactions contemplated by this Agreement,
Borrower hereby represents and warrants to Lenders that:
(a) Borrower has the requisite corporate power and authority to
execute, deliver and carry out this Agreement and the transactions
contemplated hereby.
(b) The execution and delivery of this Agreement and the
consummation by Borrower of the transactions contemplated hereby have
been duly authorized by all necessary corporate action and other
consents, approvals and the like required on the part of Borrower.
(c) Neither the execution and delivery by Borrower of this
Agreement nor the consummation of the transactions contemplated hereby,
nor compliance by Borrower with the terms, conditions and provisions
hereof, shall (i) conflict with or result in a breach of the terms,
conditions or provisions of, (ii) constitute a default under, (iii)
result in the creation of any lien, security interest, charge or
encumbrance upon its capital stock or assets pursuant to, (iv) give any
third party the right to accelerate any obligation under, (v) result in
a violation of or (vi) require any authorization, consent, approval,
exemption or other action by or notice to any court or administrative
or governmental body pursuant to the Articles of Incorporation or
by-laws of Borrower or any law, statute, rule or regulation to which
Borrower is subject, or any agreement, instrument, order, judgment or
decree to which Borrower is subject.
(d) This Agreement has been duly and validly executed and delivered
by Borrower and constitutes legal, valid and binding obligations, and
all such obligations of Borrower are enforceable in accordance with
their respective terms, except as enforceability may be limited by
bankruptcy, insolvency or other similar laws of general application
affecting the enforcement of creditors' rights or by general principles
of equity limiting the availability of equitable remedies.
(e) No event has occurred and is continuing and no condition exists
which would constitute an Event of Default or a Potential Event of
Default.
(f) Borrower is not aware of any breach of the representations and
warranties made in the Senior Amendment.
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(g) All representations and warranties of Borrower in the Loan
Agreement remain true and correct in all material respects as of the
date hereof, except (i) to the extent such representations and
warranties specifically relate to an earlier date, (ii) to the extent
such representations and warranties are specifically amended by this
Agreement or (iii) to extent disclosed on Schedule 1 attached hereto
and incorporated herein by reference.
5. Miscellaneous.
(a) Further Assurances. Borrower shall, from time to time at the
request of Lenders, do all further acts and things as may in the
opinion of Lenders be necessary or advisable to effectuate the
transaction and other matters contemplated hereby, including, without
limitation, the modification of or amendment to any other agreements,
certificates or instruments to which Borrower is a party.
(b) Notices. All notices and other communications given to or made
upon any party hereto in connection with this Agreement shall be in
accordance with Section 8.5 of the Loan Agreement.
(c) Costs and Expenses. Borrower agrees to pay all costs and
expenses, including, without limitation, attorney's fees and expenses,
expended or incurred by Lenders in connection with (i) the preparation
and structuring of this Agreement, (ii) the enforcement of this
Agreement and (iii) any actions for declaratory relief in any way
related to this Agreement or the agreements, certificates and
instruments described herein or contemplated hereby, or the protection
or preservation of any rights of Lenders hereunder.
(d) No Waiver. The execution and delivery of this Amendment shall
not, except as expressly provided herein, operate as a waiver of, limit
in any way any right, power or remedy under, or act as a consent to any
departure from any provision of the Loan Agreement or any Senior
Subordinated Loan Document. This consent shall not operate as a waiver
of any Event of Default occurring prior to or, except as expressly
provided herein, on or after the date hereof.
(e) Governing Law. This Amendment shall in all respects be governed
by the laws and judicial decisions of the State of Illinois.
(f) Entire Agreement. This Agreement and the instruments to be
delivered by the parties pursuant to the provisions hereof constitute
the entire agreement between the parties hereto with respect to the
subject matter hereof. Any amendments or alternative
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or supplementary provisions to this Agreement must be made in writing
and duly executed by an authorized representative of each of the
parties hereto.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by any party hereto on separate counterparts, each of
which, when so executed and delivered, shall be an original, but all
such counterparts shall together constitute one and the same
instrument.
(h) Captions. Section captions used in this Agreement are for
convenience only, and shall not affect the construction of this
Agreement.
(i) Enforceability. Should any one or more of the provisions of
this Amendment be determined to be illegal or unenforceable as to one
or more of the parties hereto, all other provisions nevertheless shall
remain effective and binding on the parties hereto.
(j) No Further Amendments. Except as specifically amended hereby,
the terms and provisions of the Loan Agreement shall remain in full
force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the day and year
first above written.
WEIDER NUTRITION GROUP, INC.
By: _________________________________________________
Name: _______________________________________________
Title: ______________________________________________
WYNNCHURCH CAPITAL PARTNERS, L.P.
By: Wynnchurch Partners, L.P., its general partner
By: Wynnchurch Management, Inc., its general
partner
By: _______________________________________
John Tomes, Vice President
WYNNCHURCH CAPITAL PARTNERS CANADA, L.P.
By: Wynnchurch Partners Canada, L.P., its general
partner
By: Wynnchurch GP Canada, Inc., its general
partner
By: _______________________________________
John Tomes, Vice President
