UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) January 7, 2000
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Commission File Number 0-21884
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REXALL SUNDOWN, INC.
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(Exact Name of Registrant as Specified in its Charter)
FLORIDA 59-1688986
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(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
6111 Broken Sound Parkway, NW, Boca Raton, Florida 33487
(Address of Principal Executive Offices) (Zip Code)
Registrant's Telephone Number, Including Area Code (561) 241-9400
N/A
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(Former Name or Former Address,
if Changed Since Last Report)
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Item 2. Acquisition of Assets
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On January 7, 2000, Rexall Sundown, Inc. (the "Registrant"), a Florida
corporation, consummated its acquisition (the "Transaction") of MET-Rx
Nutrition, Inc. ("MET-Rx"), a Delaware corporation, in accordance with the
Merger Purchase Agreement dated December 14, 1999 (the "Merger Purchase
Agreement") by and between Rexall, RSM Acquisition Corp., MET-Rx and all of the
stockholders of MET-Rx. The Merger Purchase Agreement is filed as Exhibit 2.1 to
this Current Report on Form 8-K and is expressly incorporated by reference
herein. In connection with the Merger Purchase Agreement, MET-Rx entered
into an Employment Agreement (the "Employment Agreement") with A. Scott
Connelly, MD to serve as Chief Technical Officer of MET-Rx. The Employment
Agreement is filed as Exhibit 10.2 to this Current Report on Form 8-K and is
expressly incorporated by reference herein.
MET-Rx is based in Irvine, California and markets and sells national
branded sports nutrition supplements including MET-Rx(R) powdered protein drink
mixes, MET-Rx Protein Plus(TM), Source One(TM) and MET-Rx Natural Krunch food
bars and other sports nutrition supplements
The aggregate purchase price for the Transaction was $108 million
(including the assumption of indebtedness), subject to certain adjustments. The
amount of consideration was determined through arm's length negotiations between
the parties. The Registrant funded the Transaction, in part, through its line of
credit pursuant to that certain Credit Agreement dated January 7, 2000 (the
"Credit Agreement") by and among Registrant as Borrower, Bank Of America, N.A.,
as Administrative Agent and as Lender and the Lenders Party Thereto From Time To
Time. The Credit Agreement is filed as Exhibit 10.1 to this Current Report on
Form 8-K and is expressly incorporated by reference herein. The Transaction was
accounted for as a purchase.
The press release dated January 7, 2000 announcing the consummation of
the Transaction is filed as Exhibit 99.1 to this Current Report on Form 8-K and
is expressly incorporated by reference herein.
Item 7. Financial Statements, Pro-Forma Financial Information and Exhibits
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(a) Financial Statements of Business Acquired.
It is currently impracticable to provide the financial information
required pursuant to Item 7(a) prior to the due date of this Report.
This Report will be amended within 60 days of the date that this Report
was required to be filed to include such financial information.
(b) Pro Forma Financial Information.
It is currently impracticable to provide the pro forma financial
information required pursuant to Item 7(b) prior to the due date of
this Report. This Report will be amended within 60 days of the date
that this Report was required to be filed to include such pro forma
financial information.
(c) Exhibits
2.1 Merger Purchase Agreement dated December 14, 1999 by
and between Rexall Sundown, Inc., RSM Acquisition
Corp., MET-Rx Nutrition, Inc. and all of the
stockholders of MET-Rx Nutrition, Inc.
10.1 Credit Agreement dated January 7, 2000 by and among
Rexall Sundown, Inc. as Borrower, Bank Of America,
N.A., as Administrative Agent and as Lender and The
Lenders Party Thereto From Time To Time
10.2 Employment Agreement dated January 7, 2000 by and
between MET-Rx Nutrition, Inc. and A. Scott
Connelly, M.D.
99.1 Press Release dated January 10, 2000.
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SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
REXALL SUNDOWN, INC.
Date: January 13, 2000 /s/ Damon DeSantis
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Name: Damon DeSantis
Title: President and Chief Executive Officer
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MERGER PURCHASE AGREEMENT
Agreement entered into as of December 14, 1999, by and among Rexall
Sundown, Inc., a Florida corporation (the "Buyer"), RSM Acquisition Corp., a
Delaware corporation and a wholly-owned Subsidiary of the Buyer (the "Transitory
Subsidiary"), the persons set forth on the Schedule of Sellers attached hereto
(collectively the "Sellers") and MET-Rx Nutrition, Inc., a Delaware corporation
(the "Company"). The Buyer, the Transitory Subsidiary, the Sellers and the
Company are referred to collectively herein as the "Parties".
This Agreement contemplates a transaction in which the Buyer will
acquire all of the outstanding capital stock of the Company for cash through a
reverse subsidiary merger of the Transitory Subsidiary with and into the
Company.
Now, therefore, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties,
and covenants herein contained, the Parties agree as follows.
1. Definitions.
"Adverse Consequences" means all actions, suits, proceedings, hearings,
investigations, charges, complaints, claims, demands, injunctions, judgments,
orders, decrees, rulings, damages, dues, penalties, fines, costs, liabilities,
obligations, taxes, liens, losses, expenses, and fees, including court costs and
reasonable attorney's fees and expenses.
"Affiliate" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act.
"Allocable Portion" means, with respect to the share of any Seller, in
a particular amount that percentage set forth opposite the Seller's name on the
Schedule of the Allocable Portions.
"Business" has the meaning set forth in Section 6(b) below.
"Buyer" has the meaning set forth in the preface above.
"Certificate of Merger" has the meaning set forth in Section 2(d)
below.
"Closing" has the meaning set forth in Section 2(c) below.
"Closing Date" has the meaning set forth in Section 2(c) below.
"COBRA" means the requirements of Part 6 of Subtitle B of Title I of
ERISA and Code Section 4980B.
"Code" means the Internal Revenue Code of 1986, as amended.
"Common Share" means any share of the Common Stock, par value $.01 per
share, of the Company.
"Company" has the meaning set forth in the preface above.
"Confidential Information" has the meaning ascribed to such term in
that certain confidentiality agreement between Buyer and the Company, dated as
of May 25, 1999.
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"Contracts" has the meaning set forth in Section 4(p) below.
"CPSC" has the meaning set forth in Section 4(z) below.
"Disclosure Schedule" has the meaning set forth in Section 4 below.
"Effective Time" has the meaning set forth in Section 2(e) below.
"Employee Benefit Plan" means any (a) nonqualified deferred
compensation or retirement plan or arrangement, (b) qualified defined
contribution retirement plan or arrangement which is an Employee Pension Benefit
Plan, (c) qualified defined benefit retirement plan or arrangement which is an
Employee Pension Benefit Plan, or (d) Employee Welfare Benefit Plan.
"Employee Pension Benefit Plan" has the meaning set forth in ERISA
Section 3(2).
"Employee Welfare Benefit Plan" has the meaning set forth in ERISA
Section 3(1).
"Environmental Requirements" shall mean all federal, state and local
statutes, regulations, ordinances concerning pollution or protection of the
environment, including without limitation all those relating to the generation,
handling, transportation, treatment, storage, disposal or cleanup of hazardous
materials or wastes, as such requirements are enacted and in effect on or prior
to the Closing Date.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"FDA" has the meaning set forth in Section 4(z) below.
"Financial Statement" has the meaning set forth in Section 4(g) below.
"Foundation" has the meaning set forth in Section 8(c)(ii) below.
"Foundation Litigation" has the meaning set forth in Section 8(c)(i)
below.
"FTC" has the meaning set forth in Section 4(z) below.
"GAAP" means United States generally accepted accounting principles as
in effect from time to time.
"Hart-Scott-Rodino Act" means the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended.
"Indebtedness" means interest bearing indebtedness for borrowed money
evidenced by a note, bond, debenture or other debt security.
"Indemnified Party" has the meaning set forth in Section 8(f) below.
"Indemnifying Party" has the meaning set forth in Section 8(f) below.
"Intellectual Property" means patents, invention disclosures,
registered trademarks, trade names, registered copyrights and registered service
marks, and any applications for registration of the foregoing, and any goodwill
associated therewith, domain names and computer software (except for licenses of
commercially available software).
"Knowledge" means, with respect to any statement in this Agreement that
is qualified as to the Knowledge of Sellers, the actual knowledge of the Sellers
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after reasonable investigation with regard to the particular matters set forth
in such statement or the actual knowledge of the employees of the Company
primarily responsible for the particular matters referred to in such statement.
"Material Adverse Effect" means a material adverse effect on the
business, financial condition, operations, assets or results of operations of
the Company and its Subsidiaries taken as a whole.
"Merger" has the meaning set forth in Section 2(a) below.
"Merger Consideration" has the meaning set forth in Section 2(e) below.
"Most Recent Balance Sheet" means the balance sheet contained within
the Most Recent Financial Statements and attached to the Disclosure Schedule.
"Most Recent Financial Statements" has the meaning set forth in Section
4(g) below.
"Most Recent Fiscal Year End" has the meaning set forth in Section 4(g)
below.
"Ordinary Course of Business" means the ordinary course of business
consistent with the Company's past custom and practice.
"Party" has the meaning set forth in the preface above.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization, or a governmental entity (or any department, agency, or political
subdivision thereof).
"Preferred Share" means any share of the Preferred Stock, par value
$.01 per share, of the Company.
"Purchase Price" has the meaning set forth in Section 2(b) below.
"Recovered Monies" has the meaning set forth in Section 8(c)(i) below.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Security Interest" means any mortgage, pledge, lien, encumbrance,
charge, or other security interest, other than (a) mechanic's, materialmen's,
and similar liens, (b) liens for taxes not yet due and payable or for taxes that
the taxpayer is contesting in good faith through appropriate proceedings, and
(c) purchase money liens set forth on the Disclosure Schedule and liens securing
rental payments under the capital lease arrangements set forth on the Disclosure
Schedule.
"Seller" has the meaning set forth in the preface above.
"Share" is used to collectively refer to Common Shares and Preferred
Shares.
"S Tax Claim" has the meaning set forth in Section 8(a) below.
"Subsidiary" means any corporation with respect to which a specified
Person (or a Subsidiary thereof) owns a majority of the common stock or has the
power to vote or direct the voting of sufficient securities to elect a majority
of the directors.
"Surviving Corporation" has the meaning set forth in Section 2(a)
below.
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"Tax" means any federal, state, local, or foreign tax with respect to
the income, business, operations, or properties of the Company and its
Subsidiaries, including any interest, penalty, or addition thereto, whether
disputed or not.
"Tax Return" means any return, declaration, report, claim for refund,
or information return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof.
"Territory" has the meaning set forth in Section 6(b) below.
"Third Party Claim" has the meaning set forth in Section 8(f) below.
"Transitory Subsidiary" has the meaning set forth in the preface above.
"USDA" has the meaning set forth in Section 4(z) below.
2. Basic Transaction.
(a) The Merger. On and subject to the terms and conditions of this
Agreement, the Transitory Subsidiary will merge with and into the Company (the
"Merger") at the Effective Time. The Company shall be the corporation surviving
the Merger (the "Surviving Corporation").
(b) Purchase Price.
(i) In consideration of the Merger, the Buyer agrees to pay
the aggregate Purchase Price in accordance with the provisions of
Section 2(f) below.
(ii) The term "Purchase Price" shall mean $77,500,000.
(c) The Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Kirkland & Ellis at
777 South Figueroa Street, Los Angeles, California 90017, commencing at 9:00
a.m. local time on the second business day following the satisfaction or waiver
of all conditions to the obligations of the Parties to consummate the
transactions contemplated hereby (other than conditions with respect to actions
the respective Parties will take at the Closing itself) or such other date as
the Buyer and the Sellers may mutually determine (the "Closing Date").
(d) Actions at the Closing. At the Closing, (i) the Company will
deliver to the Buyer and the Transitory Subsidiary the various certificates,
instruments, and documents referred to in Section 7(a) below, (ii) the Buyer and
the Transitory Subsidiary will deliver to the Company the various certificates,
instruments, and documents referred to in Section 7(b) below, (iii) the Company
and the Transitory Subsidiary will file with the Secretary of State of the State
of Delaware a Certificate of Merger (the "Certificate of Merger"), and (iv) the
Buyer will cause the Surviving Corporation to deliver the Purchase Price in the
manner provided below in Section 2(f).
(e) Effect of Merger.
(i) General. The Merger shall become effective at the time (the
"Effective Time") the Company and the Transitory Subsidiary file the
Certificate of Merger with the Secretary of State of the State of
Delaware. The Merger shall have the effect set forth in the Delaware
General Corporation Law. The Surviving Corporation may, at any time
after the Effective Time, take any action (including executing and
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delivering any document) in the name and on behalf of either the
Company or the Transitory Subsidiary in order to carry out and effect
the transactions contemplated by this Agreement.
(ii) Certificate of Incorporation. The Certificate of
Incorporation of the Surviving Corporation shall be amended and
restated at and as of the Effective Time to read as did the Certificate
of Incorporation of the Transitory Subsidiary immediately prior to the
Effective Time (except that the name of the Surviving Corporation will
remain unchanged).
(iii) Bylaws. The Bylaws of the Surviving Corporation shall be
amended and restated at and as of the Effective Time to read as did the
Bylaws of the Transitory Subsidiary immediately prior to the Effective
Time (except that the name of the Surviving Corporation will remain
unchanged.)
(iv) Directors and Officers. The directors and officers of the
Company shall be the initial directors and officers of the Surviving
Corporation at and as of the Effective Time (retaining their respective
positions and terms of office). Nothing contained in the preceding
sentence shall prohibit or limit the right of the Buyer to replace any
of such directors and officers upon consummation of the transactions
contemplated hereby.
(v) Conversion of Shares. At and as of the Effective Time, (A)
each Common Share shall be converted into the right to receive an
amount equal to a portion of the Purchase Price set forth on the
Schedule of the Purchase Price Allocation attached hereto, (B) each
Preferred Share designated as "Senior Preferred" shall be converted
into the right to receive an amount equal to a portion of the Purchase
Price set forth on the Schedule of the Purchase Price Allocation
attached hereto, and (C) each Preferred Share designated as "Junior
Preferred" shall be converted into the right to receive an amount equal
to a portion of the Purchase Price set forth on the Schedule of the
Purchase Price Allocation attached hereto (such amounts referred to in
clauses (A), (B) and (C) above are referred to herein as the "Merger
Consideration"). No Share shall be deemed to be outstanding or to have
any rights other than those set forth above in this Section 2(e)(v)
after the Effective Time.
(vi) Conversion of Capital Stock of the Transitory Subsidiary. At
and as of the Effective Time, each share of Common Stock, $.01 par
value per share, of the Transitory Subsidiary shall be converted into
one share of Common Stock, $.01 par value per share, of the Surviving
Corporation.
(f) Procedure for Payment. As of the Effective Time, the Buyer will
make full payment of the Merger Consideration to the holders of all of the
outstanding Shares in accordance with the Schedule of the Purchase Price
Allocation against the surrender of the Shares of such holders.
(g) Closing of Transfer Records. After the close of business on the
Closing Date, transfers of Shares outstanding prior to the Effective Time shall
not be made on the stock transfer books of the Surviving Corporation.
3. Representations and Warranties Concerning the Buyer and the
Transitory Subsidiary. Each of the Buyer and the Transitory Subsidiary
represents and warrants to the Company and the Sellers that the statements
contained in this Section 3 are correct and complete as of the date of this
Agreement.
(a) Organization . Each of the Buyer and the Transitory Subsidiary is a
corporation duly organized, validly existing, and in good standing under the
laws of the jurisdiction of its incorporation.
(b) Authorization of Transaction. Each of the Buyer and the Transitory
Subsidiary has full power and authority (including full corporate power and
authority) to execute and deliver this Agreement and to perform its obligations
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hereunder. This Agreement constitutes the valid and legally binding obligation
of each of the Buyer and the Transitory Subsidiary, enforceable against the
Buyer and the Transitory Subsidiary in accordance with its terms and conditions.
Neither the Buyer nor the Transitory Subsidiary need give any notice to, make
any filing with, or obtain any authorization, consent, or approval of any
government or governmental agency in order to consummate the transactions
contemplated by this Agreement, other than those required under
Hart-Scott-Rodino Act.
(c) Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which either the Buyer or the Transitory
Subsidiary is subject or any provision of their charter or bylaws.
(d) Brokers' Fees. Neither the Buyer nor the Transitory Subsidiary has
any liability or obligation to pay any fees or commissions to any broker,
finder, or agent with respect to the transactions contemplated by this Agreement
for which any of the Company and its Subsidiaries or any Seller could become
liable or obligated.
(e) Financing. At the Closing, the Buyer shall have sufficient cash,
available lines of credit or other sources of immediately available funds to
enable it to pay at the Closing to the holders of all outstanding Shares at the
Closing the Purchase Price and pay any other amounts to be paid by it hereunder.
4. Representations and Warranties Concerning the Company and Its
Subsidiaries. Each of the Sellers, jointly but not severally, represents and
warrants to the Buyer and the Transitory Subsidiary that the statements
contained in this Section 4 are correct and complete as of the date of this
Agreement to his or its Knowledge (except that such statements in Section 4(a),
Section 4(b), and Section 4(d) are not qualified by such Knowledge), except as
set forth in the disclosure schedule attached hereto (the "Disclosure
Schedule").
(a) Organization, Qualification, and Corporate Power. Each of the
Company and its Subsidiaries is a corporation duly organized, validly existing,
and in good standing under the laws of the jurisdiction of its incorporation.
Each of the Company and its Subsidiaries is duly authorized to conduct business
and is in good standing under the laws of each jurisdiction where such
qualification is required, except where the lack of such qualification would not
have a Material Adverse Effect. Each of the Company and its Subsidiaries has
full corporate power and authority to carry on the businesses in which it is
engaged and to own and use the properties owned and used by it.
(b) Capitalization. The entire authorized capital stock of the Company
consists of (i) 20,000,000 Common Shares, of which (A) 10,000,000 shares have
been designated "Series A," of which 900,000 shares are issued and outstanding
as of the date of this Agreement, and (B) 10,000,000 shares have been designated
"Series B," of which 75,000 shares are issued and outstanding as of the date of
this Agreement, and (ii) 100,000 Preferred Shares, of which (A) 50,000 shares
have been designated "Senior Preferred," of which 21,400.9433 shares are issued
and outstanding as of the date of this Agreement, and (B) 50,000 shares have
been designated "Junior Preferred," of which 1,000 shares are issued and
outstanding as of the date of this Agreement. All of the issued and outstanding
Shares have been duly authorized, are validly issued, fully paid, and
nonassessable, are held of record by the respective stockholders as set forth in
Section 4(b) of the Disclosure Schedule, and are free and clear of any and all
Security Interests or other restrictions or limitations whatsoever. None of the
issued and outstanding Shares were issued in violation of (i) any preemptive or
other rights of any person to acquire securities of the Company, or (ii) any
applicable federal or state securities laws, and the rules and regulations
promulgated thereunder. There are no outstanding or authorized options,
warrants, purchase rights, subscription rights, conversion rights, exchange
rights, or other contracts or commitments that could require the Company to
issue, sell, or otherwise cause to become outstanding any of its capital stock.
(c) Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
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(i) violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which any of the Company and its Subsidiaries
is subject, (ii) violate any provision of the charter or bylaws of any of the
Company and its Subsidiaries or (iii) conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create in any party
the right to accelerate, terminate, modify, or cancel, or require any notice
under any agreement, contract, lease, license, instrument, or other arrangement
to which any of the Company and its Subsidiaries is a party or by which it is
bound or to which any of its assets is subject (or result in the imposition of
any Security Interest upon any of its assets), except, in the case of each of
clauses (i) and (iii) above, where the violation, conflict, breach, default,
acceleration, termination, modification, cancellation, failure to give notice,
or Security Interest would not have a Material Adverse Effect or materially
affect the ability of the Parties to consummate the transactions contemplated by
this Agreement. None of the Company and its Subsidiaries needs to give any
notice to, make any filing with, or obtain any authorization, consent, or
approval of any government or governmental agency in order for the Parties to
consummate the transactions contemplated by this Agreement, other than those
required under Hart-Scott-Rodino Act and except where the failure to give
notice, to file, or to obtain any authorization, consent, or approval would not
have a Material Adverse Effect or materially affect the ability of the Parties
to consummate the transactions contemplated by this Agreement.
(d) Brokers' Fees. None of the Company and its Subsidiaries has any
liability or obligation to pay any fees or commissions to any broker, finder, or
agent with respect to the transactions contemplated by this Agreement, other
than such liability or obligation to Lazard Freres & Co. LLC and Donaldson,
Lufkin & Jenrette or their Affiliates.
(e) Title to Tangible Assets. The Company and its Subsidiaries have
good title to, or a valid leasehold interest in, the tangible assets they use
regularly in the conduct of their businesses, free and clear of all Security
Interests.
(f) Subsidiaries. Section 4(f) of the Disclosure Schedule sets forth
for each Subsidiary of the Company (i) its name and jurisdiction of
incorporation, together with each jurisdiction in which it is required to be
qualified to do business, except where the lack of such qualification would not
have a Material Adverse Effect, (ii) the number of shares of authorized capital
stock of each class of its capital stock, (iii) the number of issued and
outstanding shares of each class of its capital stock, the names of the holders
thereof, and the number of shares held by each such holder, and (iv) the number
of shares of its capital stock held in treasury. All of the issued and
outstanding shares of capital stock of each Subsidiary of the Company have been
duly authorized and are validly issued, free of preemptive rights, fully paid,
and nonassessable. One of the Company or its Subsidiaries holds of record and
owns beneficially all of the outstanding shares of each Subsidiary of the
Company, free and clear of any restrictions on transfer (other than restrictions
under the Securities Act and state securities laws), taxes, Security Interests,
options, warrants, purchase rights, contracts, commitments, equities, claims,
and demands. There are no outstanding or authorized options, warrants, purchase
rights, subscription rights, conversion rights, exchange rights, or other
contracts or commitments that could require any Subsidiary to issue, sell, or
otherwise cause to become outstanding any of its capital stock.
(g) Financial Statements. Attached to Section 4(g) of the Disclosure
Schedule are the following financial statements (collectively the "Financial
Statements"): (i) audited consolidated balance sheet and statement of income,
changes in stockholders' equity, and cash flow as of and for the fiscal year
ended December 31, 1998 (the "Most Recent Fiscal Year End") for the Company and
its Subsidiaries; and (ii) unaudited consolidated balance sheet and statement of
income, changes in stockholders' equity, and cash flow (the "Most Recent
Financial Statements") as of and for the ten months ended October 31, 1999 for
the Company and its Subsidiaries. The Financial Statements (including the notes
thereto) have been prepared in accordance with GAAP applied on a consistent
basis throughout the periods covered thereby and present fairly the financial
condition of the Company and its Subsidiaries as of such dates and the results
of operations of the Company and its Subsidiaries for such periods; provided,
however, that the Most Recent Financial Statements lack footnotes and other
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presentation items and are subject to normal year-end adjustments in accordance
with the Ordinary Course of Business consistent with past practice, none of
which will, either individually or in the aggregate, have a Material Adverse
Effect.
(h) Events Subsequent to Most Recent Fiscal Year End. Since the Most
Recent Fiscal Year End, there has not been any Material Adverse Effect, and
neither the Company nor any of its Subsidiaries has since that date:
(i) sold, leased, transferred, or assigned any asset outside of
the Ordinary Course of Business;
(ii) made any expenditure outside the Ordinary Course of
Business;
(iii) made any capital investment in, or any material loan to,
any other Person outside the Ordinary Course of Business;
(iv) amended or authorized the amendment of its charter or
bylaws;
(v) issued, sold, or otherwise disposed of any of its capital
stock, or granted any options, warrants or other rights to purchase or
obtain (including upon conversion, exchange, or exercise) any of its
capital stock;
(vi) declared, set aside, or paid any dividend or made any
distribution with respect to its capital stock (whether in cash or in
kind) or redeemed, purchased, or otherwise acquired any of its capital
stock;
(vii) made any loan or advance to any Person outside the Ordinary
Course of Business;
(viii) entered into any transaction with, any of its directors,
officers, employees or stockholders outside the Ordinary Course of
Business;
(ix) entered into any employment contract or collective
bargaining agreement or modified the terms of any existing such
contract or agreement;
(x) granted any increase in the base compensation of any of its
directors, officers, and employees outside the Ordinary Course of
Business;
(xi) adopted, amended, modified, or terminated any bonus,
profit-sharing, incentive, severance, or other plan, contract, or
commitment for the benefit of any of its directors, officers, and
employees (or taken any such action with respect to any other Employee
Benefit Plan);
(xii) made any other change in employment terms for any of its
directors, officers, and employees outside the Ordinary Course of
Business; or
(xiii) committed to any of the foregoing.
(i) Undisclosed Liabilities. None of the Company and its Subsidiaries
has any liability (whether known or unknown, whether asserted or unasserted,
whether absolute or contingent, whether accrued or unaccrued, whether liquidated
or unliquidated, and whether due or to become due, including any liability for
taxes) of the type which should be reflected in balance sheets prepared in
accordance with GAAP, except for (i) liabilities set forth on the balance sheet
for the Most Recent Fiscal Year End and in any notes thereto and (ii)
liabilities which have arisen after the Most Recent Fiscal Year End in the
Ordinary Course of Business or in connection with the transactions contemplated
hereby.
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(j) Legal Compliance. (i) Each of the Company and its Subsidiaries has
complied in all material respects with all applicable laws (including rules,
regulations, codes, plans, injunctions, judgments, orders, decrees, rulings, and
charges thereunder) of federal, state, local, and foreign governments (and all
agencies thereof), and (ii) no action, suit, proceeding, hearing, investigation,
charge, complaint, claim, demand, or notice has been filed or commenced against
any of them alleging any failure so to comply.
(k) Tax Matters.
(i) Each of the Company and its Subsidiaries has filed all Tax
Returns that it was required to file, and has paid all Taxes shown
thereon as owing.
(ii) There is no material dispute or claim pending or threatened
concerning any Tax liability of any of the Company and its
Subsidiaries.
(iii) Section 4(k) of the Disclosure Schedule lists all income
Tax Returns filed with respect to any of the Company and its
Subsidiaries for taxable periods ended on or after December 31, 1996,
indicates those income Tax Returns that have been audited, and
indicates those income Tax Returns that currently are the subject of
audit. The Company has delivered to the Buyer correct and complete
copies of all federal income Tax Returns, examination reports, and
statements of deficiencies assessed against, or agreed to by any of the
Company and its Subsidiaries since December 31, 1996.
(iv) None of the Company and its Subsidiaries has waived any
statute of limitations in respect of Taxes or agreed to any extension
of time with respect to a Tax assessment or deficiency.
(l) Real Property.
(i) The Company and its Subsidiaries own no real property other
than tenant improvements.
(ii) Section 4(l)(ii) of the Disclosure Schedule lists and
describes briefly all real property leased or subleased to any of the
Company and its Subsidiaries. The Company has delivered to the Buyer
correct and complete copies of the leases and subleases listed in
Section 4(l)(ii) of the Disclosure Schedule. Each lease and sublease
listed in Section 4(l)(ii) of the Disclosure Schedule is legal, valid,
binding, enforceable, and in full force and effect.
(m) Intellectual Property.
(i) Section 4(m)(i) of the Disclosure Schedule identifies each
material foreign and domestic patent or registration which has been
issued to any of the Company and its Subsidiaries with respect to any
of its Intellectual Property, identifies each pending material foreign
and domestic patent application or application for registration which
any of the Company and its Subsidiaries has made with respect to any of
its Intellectual Property, and identifies each material license,
agreement, or other permission which any of the Company and its
Subsidiaries has granted to any third party with respect to any of its
Intellectual Property. To the extent that any item identified in
Section 4(m)(i) of the Disclosure Schedule has been registered with,
filed in or issued by, any governmental authority, such registrations,
filings or issuances were duly made and remain in full force and
effect. Section 4(m)(i) of the Disclosure Schedule also identifies each
material trade name, material unregistered trademark or service mark or
material copyright used by any of the Company and its Subsidiaries in
connection with any of their businesses. The Intellectual Property
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identified on Section 4(m)(i) of the Disclosure Schedule has not been
licensed, sub-licensed or assigned by the Company and its Subsidiaries
to any third party other than the Buyer pursuant to this Agreement. The
Company and its Subsidiaries possess all right, title, and interest in
and to or have the right to use each item of Intellectual Property
identified in Section 4(m)(i) of the Disclosure Schedule and shall as
of the Closing Date possess all right, title and interest in such
Intellectual Property, free and clear of any Security Interest,
license, or other restriction, except where the failure to possess such
right, title and interest as such would not have a Material Adverse
Effect. In addition, there have been no claims received by the Company
and its Subsidiaries asserting the invalidity, misuse or
unenforceability of the Intellectual Property identified on Section
4(m)(i) of the Disclosure Schedule and no grounds for any such claims
exist.
(ii) Section 4(m)(ii) of the Disclosure Schedule identifies each
license, sublicense, agreement, or permission pursuant to which the
Company or any of its Subsidiaries uses the Intellectual Property of
any third party. Each license, sublicense, agreement, or permission
identified in Section 4(m)(ii) of the Disclosure Schedule is legal,
valid, binding, enforceable, and in full force and effect, except where
the illegality, invalidity, nonbinding nature, unenforceability, or
ineffectiveness would not have a Material Adverse Effect.
(iii) Neither the operation of the Company's and each
Subsidiary's business nor the Intellectual Property identified in
Section 4(m)(i) and Section 4(m)(ii) of the Disclosure Schedule and
which is material to the operations of the Company and its Subsidiaries
has interfered with, infringed upon, misappropriated, or violated any
Intellectual Property rights of third parties, and none of the Sellers
or directors or officers of the Company or its Subsidiaries has ever
received any claim, charge or complaint alleging any such interference,
infringements, misappropriation, or violation (including any claim that
any of the Company and its Subsidiaries must license or refrain from
using any Intellectual Property rights of any third party), except for
such infringements, misappropriations, or violations that would not
have a Material Adverse Effect. No third party has interfered with,
infringed upon, misappropriated, or violated any Intellectual Property
rights identified in Section 4(m)(i) and Section 4(m)(ii) of the
Disclosure Schedule, except for such infringements, misappropriations,
or violations that would not have a Material Adverse Effect.
(iv) The Intellectual Property identified in Section 4(m)(i) and
Section 4(m)(ii) of the Disclosure Schedule is sufficient and includes
all the Intellectual Property necessary for the Company and its
Subsidiaries to conduct their businesses as presently being conducted.
(v) There has not been any failure to act by the Company and its
Subsidiaries during the prosecution or registration of, or any
proceeding relating to, any of the Intellectual Property identified in
Section 4(m)(i) or Section 4(m)(ii) of the Disclosure Schedule that
could render invalid or unenforceable, or negate the right to the
issuance of any such Intellectual Property.
(vi) To the extent that any of the Intellectual Property
identified in Section 4(m)(i) or Section 4(m)(ii) of the Disclosure
Schedule constitutes proprietary or confidential information, the
Company and its Subsidiaries have adequately safeguarded such
information from disclosure.
(vii) Under the specific written terms of any Intellectual
Property or agreements with respect to Intellectual Property identified
in Section 4(m)(i) and Section 4(m)(ii) of the Disclosure Schedule, no
consent is necessary to consummate the reverse triangular merger
contemplated by this Agreement or assign such agreements.
(n) Tangible Assets. The buildings, machinery, equipment, and other
tangible assets that the Company and its Subsidiaries own and lease include all
tangible assets necessary for the Company and its Subsidiaries to conduct their
businesses as presently conducted, are suitable for the purposes for which they
are presently used, are free from material defects (patent and latent), have
been maintained in accordance with normal industry practice, are in good
operating condition and repair (subject to normal wear and tear), and are free
and clear of all Security Interests.
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(o) Inventory. The inventory of the Company and its Subsidiaries
consists of raw materials and supplies, manufactured and processed parts, work
in process, and finished goods, all of which is merchantable and fit for the
purpose for which it was procured or manufactured, subject to a reserve for
inventory in accordance with GAAP and the past custom and practice of the
Company and its Subsidiaries, and is free and clear of all Security Interests.
(p) Contracts. Section 4(p) of the Disclosure Schedule lists all
written contracts and other written agreements to which any of the Company and
its Subsidiaries is a party the performance of which involves consideration in
excess of $100,000 in any twelve-month period and are not cancellable by the
Company or any of its Subsidiaries, as the case may be, on less than ninety days
notice without penalty to the Company or its Subsidiaries (the "Contracts"). The
Company has delivered to the Buyer a correct and complete copy of each such
Contract listed in Section 4(p) of the Disclosure Schedule. With respect to each
such Contract: (A) the Contract is legal, valid, binding, enforceable, and in
full force and effect in all material respects; (B) neither the Company nor any
of its Subsidiaries is in material breach or default thereof; (C) no event has
occurred which with notice or lapse of time would constitute a material breach
or default, or permit termination, modification or acceleration, under the
Contract; and (D) no consent is necessary by the terms of the Contract to
consummate the reverse triangular merger contemplated by this Agreement in order
to provide the Buyer with the benefit of such Contract.
(q) Notes and Accounts Receivable. All notes and accounts receivable of
the Company and its Subsidiaries are reflected properly on their books and
records in accordance with GAAP, are valid receivables, are current and
collectible in accordance with their terms, subject to a reserve for bad debts
in accordance with the past custom and practice of the Company and its
Subsidiaries.
(r) Insurance. Section 4(r) of the Disclosure Schedule sets forth the
following information with respect to each insurance policy (including policies
providing property, casualty, liability, and workers' compensation coverage and
bond and surety arrangements) with respect to which any of the Company and its
Subsidiaries is a party, a named insured, or otherwise the beneficiary of
coverage:
(i) the name, address, and telephone number of the agent;
(ii) the name of the insurer, the name of the policyholder, and
the name of each covered insured;
(iii) the policy number and the period of coverage; and
(iv) the scope and amount of coverage.
All such policies are in full force and effect with all premiums due
thereupon paid.
(s) Litigation. Section 4(s) of the Disclosure Schedule sets forth each
instance in which any of the Company and its Subsidiaries (i) is subject to any
outstanding, threatened injunction, judgment, order, decree, ruling, or charge
or (ii) is a party to any pending, threatened action, suit, proceeding, hearing,
or investigation of, in, or before any court or quasi-judicial or administrative
agency of any federal, state, local, or foreign jurisdiction.
(t) Employees. None of the Company and its Subsidiaries is a party to
or bound by any collective bargaining agreement, nor has any of them experienced
any strike or material grievance, material claim of unfair labor practices, or
other collective bargaining dispute within the past three years. There is no
organizational effort presently being made or threatened by or on behalf of any
labor union with respect to employees of any of the Company and its
Subsidiaries.
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(u) Employee Benefits.
(i) Section 4(u) of the Disclosure Schedule lists each Employee
Benefit Plan that any of the Company and its Subsidiaries maintains or
to which any of the Company and its Subsidiaries contributes.
(ii) Each such Employee Benefit Plan (and each related trust,
insurance contract, or fund) complies in form and in operation in all
respects with the applicable requirements of ERISA, the Code, and other
applicable laws, except where the failure to comply would not have a
Material Adverse Effect.
(iii) All contributions (including all employer contributions and
employee salary reduction contributions) which are due have been paid
to each such Employee Benefit Plan which is an Employee Pension Benefit
Plan.
(iv) Each such Employee Benefit Plan which is an Employee Pension
Benefit Plan has received a determination letter from the Internal
Revenue Service to the effect that it meets the requirements of Code
Section 401(a) or will file within the remedial amendment period for
such favorable determination letter.
(v) Each such Employee Benefit Plan which is an Employee Pension
Benefit Plan has no funding deficiencies.
(vi) The Company has delivered to the Buyer correct and complete
copies of the plan documents and summary plan descriptions, the most
recent determination letter received from the Internal Revenue Service,
the most recent Form 5500 Annual Report, and all related trust
agreements, insurance contracts, and other funding agreements which
implement each such Employee Benefit Plan.
(v) Environmental Matters.
(i) The Company and its Subsidiaries are in compliance with
Environmental Requirements, except for such noncompliance as would not
have a Material Adverse Effect.
(ii) The Company and its Subsidiaries have not received any
notice regarding any material violation of Environmental Requirements,
or any material liabilities under Environmental Requirements, the
subject of which would have a Material Adverse Effect.
(iii) This Section 4(v) contains the sole and exclusive
representations and warranties of the Sellers with respect to any
environmental, health, or safety matters, including, without
limitation, any arising under any Environmental Requirements.
(w) Certain Business Relationships With the Company and Its
Subsidiaries. None of the Sellers and their Affiliates has been involved in any
business arrangement or relationship with any of the Company and its
Subsidiaries within the past 12 months, and none of the Sellers and their
Affiliates owns any asset, tangible or intangible, which is used in the business
of any of the Company and its Subsidiaries.
(x) Suppliers and Customers. The Company and its Subsidiaries maintain
good relations with all their material suppliers and material customers as well
as with governments, partners, financing sources, and other parties with whom
the Company and its Subsidiaries have relations, and no such party has canceled,
terminated or made any threat to the Company and its Subsidiaries to cancel or
otherwise terminate its relationship with the Company and its Subsidiaries or to
materially decrease its services or supplies to the Company and its Subsidiaries
or its direct or indirect purchase or usage of the products or services of the
Company and its Subsidiaries.
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(y) Products and Services.
(i) Section 4(y) of the Disclosure Schedule sets forth (A) a list
of all products of the Company and its Subsidiaries which at any time
have been recalled, withdrawn, suspended, or seized by the Company and
its Subsidiaries, whether voluntarily or otherwise, including the date
recalled, withdrawn, suspended, or seized and (B) a brief description
of all completed or pending proceedings seeking the recall, withdrawal,
suspension, or seizure of any product of the Company and its
Subsidiaries.
(ii) There exists no set of facts which would reasonably be
expected to furnish a basis for the recall, withdrawal, suspension, or
seizure of any product registration, product license, repair or
overhaul license, manufacturing license, wholesale dealers license,
export license, or other license, approval, or consent of any
governmental or regulatory authority with respect to the Company and
its Subsidiaries or any of the products of the Company and its
Subsidiaries.
(z) Regulatory Compliance. The Company and its Subsidiaries have
received approval of all registrations, applications, licenses, requests for
exemptions, permits, and other regulatory authorizations necessary for the
conduct of the business of the Company and its Subsidiaries as they are now
conducted with the United States Food and Drug Administration ("FDA"), the
Federal Trade Commission ("FTC"), the Consumer Products Safety Commission
("CPSC"), and the United States Department of Agriculture ("USDA"), as
applicable, except for such registrations, applications, licenses, requests for
exemptions, permits, and other regulatory authorizations of which the failure to
so obtain would not have a Material Adverse Effect. The Company and its
Subsidiaries are in compliance in all respects with all such registrations,
applications, licenses, requests for exemptions, permits, and other regulatory
authorizations, and all applicable FDA, FTC, CPSC, USDA, federal, state and
local rules and regulations, except where the failure to so comply would not
have a Material Adverse Effect.
(aa) Year 2000 Compliance. The Company and its Subsidiaries have
reviewed the areas within their business and operations which could be adversely
affected by, and have developed a program to address on a timely basis, the
"Year 2000 Problem" (that is, the risk that computer applications used by the
Company and its Subsidiaries may be unable to recognize and perform properly
date-sensitive functions involving certain dates prior to and any date on or
after December 31, 1999) and have made related appropriate inquiry of all their
material suppliers and vendors. Based on such review and program, the Company
believes that the "Year 2000 Problem" will not have a Material Adverse Effect.
(bb) Absence of Certain Business Practices. None of the Company, any of
its Subsidiaries, nor any Seller nor any other affiliate or agent of the
Company, nor any other Person acting on behalf of or associated with the
Company, acting alone or together has (i) received, directly or indirectly, any
rebates, payments, commissions, promotional allowances or any other economic
benefits, regardless of their nature or type, from any customer, supplier or
employee or agent of any customer or supplier or (ii) directly or indirectly,
given or agreed to give any money, gift or similar benefit to any customer,
supplier or employee or agent of any customer or supplier, or other Person who
was, is or may be in a position to help or hinder the business of the Company
(or assist the Company in connection with any actual or proposed transaction)
which (A) may subject the Company to any damage or penalty in any civil,
criminal or governmental litigation or proceeding, (B) if not given in the past,
may have had a Material Adverse Effect or (C) if not continued in the future,
would result in a Material Adverse Effect.
5 Pre-Closing Covenants. The Parties agree as follows with respect to
the period between the execution of this Agreement and the Closing.
(a) General. Each of the Parties will use his or its commercially
reasonable efforts to take all action and to do all things necessary, proper, or
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advisable in order to consummate and make effective the transactions
contemplated by this Agreement (including satisfaction, but not waiver, of the
closing conditions set forth in Section 7 below).
(b) Notices and Consents. Each of the Company and its Subsidiaries will
give any notices to third parties, and each of the Company and its Subsidiaries
will use its commercially reasonable efforts to obtain any third party consents,
that the Buyer reasonably may request in connection with the matters referred to
in Section 4(c) and Section 4(p)above. Each of the Parties will give any notices
to, make any filings with, and use its commercially reasonable efforts to obtain
any authorizations, consents, and approvals of governments and governmental
agencies in connection with the matters referred to in Section 3(b) and Section
4(c) above. Without limiting the generality of the foregoing, each of the
Parties will file any Notification and Report Forms and related material that he
or it may be required to file with the Federal Trade Commission and the
Antitrust Division of the United States Department of Justice under the
Hart-Scott-Rodino Act, will use his or its reasonable best efforts to obtain a
waiver from the applicable waiting period, and will make any further filings
pursuant thereto that may be necessary, proper, or advisable in connection
therewith. Buyer and the Company shall share equally the filing fees for any
filings required under the Hart-Scott-Rodino Act.
(c) Operation of BusineSection The Company shall provide daily "flash
reports" in accordance with the Company's current practice and custom to Buyer.
Except as otherwise contemplated herein, the Company and its Subsidiaries shall
conduct their businesses in the Ordinary Course of BusineSection Without
limiting the generality of the foregoing and except as otherwise contemplated in
this section, the Company and its Subsidiaries will not engage in any practice,
take any action, or enter into any transaction of the sort described in Section
4(h) above; provided, however, that the Company and its Subsidiaries may take
the actions necessary to issue Preferred Shares to certain Sellers as
consideration for the payment of certain litigation expenses of the Company by
such Sellers under an agreement with such Sellers as identified on Section 4(b)
of the Disclosure Schedule; provided, further, that the Company and its
Subsidiaries may engage in any such practice, take any action, or enter into any
transactions of the sort described in Section 4(h) with the written consent of
the Buyer (and the Buyer hereby agrees to respond within 5 business days to the
Company and its Subsidiaries' written request to engage in any such practice,
take any action, or enter into any such transaction), which consent may be
withheld in Buyer's sole discretion. In addition, except as otherwise
contemplated in this section, without the prior written consent of Buyer (and
the Buyer hereby agrees to respond within 5 business days to the Company and its
Subsidiaries' written request to engage in any such practice, take any action,
or enter into any such transaction), which consent may be withheld in Buyer's
sole discretion, the Company shall not:
(i) merge into or with or consolidate with, any other
corporation or acquire the business or assets of any Person;
(ii) purchase any securities of any person;
(iii) create, incur, assume, guarantee or otherwise become
liable or obligated with respect to any indebtedness, or make any loan
or advance to, or any investment in, any Person, except in each case in
the Ordinary Course of Business;
(iv) make any change in any existing election, or make any new
election, with respect to any Tax law in any jurisdiction which
election could have an effect on the Tax treatment of the Company or
the Company's business operations;
(v) enter into, amend or terminate any contract or agreement
to which any of the Company or its Subsidiaries is a party the
performance of which involves consideration in excess of $15,000 (or
$50,000 if the Closing has not occurred by January 15) or the duration
of which is greater than one year, except for purchase orders entered
into in the Ordinary Course of Business;
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(vi) settle any material claim or litigation, or file any
material motions, orders, briefs or settlement agreements in any
proceeding before any governmental authority or any arbitrator, other
than in connection with those matters described in sections I, II, III
and IV of Section 4(s) of the Disclosure Schedule (provided, however,
to the extent there is a monetary settlement of any of the matters
described in sections I, II, III and IV of Section 4(s) of the
Disclosure Schedule prior to the Closing, there shall be a reduction in
the Purchase Price by the amount of any such settlement);
(vii) adopt any Employee Benefit Plan, or grant any increase
in the compensation payable or to become payable to directors or
officers (including, without limitation, any such increase pursuant to
any bonus, profit-sharing or other plan or commitment);
(viii) declare, set aside or pay any dividend or other
distribution (whether in cash, stock or other property) with respect to
its capital stock;
(ix) apply any of its assets to the direct or indirect
payment, prepayment, discharge, satisfaction or reduction of any amount
payable, directly or indirectly, to or for the benefit of any Seller or
any other affiliate of the Company (except for salary and benefits as
currently in effect and except in accordance with existing agreements
and arrangements which have been disclosed to the other parties hereto
in writing), other than in connection with sales of the Company's
products to Club MET-Rx;
(x) enter into any transaction or make any commitment which
could result in any of the representations, warranties or covenants of
the Company and/or Sellers set forth herein not being true and correct
in all material respects after the occurrence of such transaction or
event;
(xi) amend it charter or bylaws;
(xii) issue any capital stock or other securities, or grant,
or enter into any agreement to grant, any options, convertible rights,
other rights, warrants, calls or agreements relating to its securities,
other than in connection with the issuances of Preferred Shares to
certain Sellers as consideration for the payment of certain litigation
expenses of the Company by such Sellers under an agreement with such
Sellers as identified on Section 4(b) of the Disclosure Schedule;
(xiii) pay out any amounts to any participants under the
Company's stock appreciation program; or
(xiv) commit to do any of the foregoing.
(d) Full AcceSection The Company and its Subsidiaries will permit
representatives of the Buyer to have full access at all reasonable times, and in
a manner so as not to interfere with the normal business operations of the
Company and its Subsidiaries, to all premises, properties, personnel, books,
records (including tax records), contracts, and documents of or pertaining to
each of the Company and its Subsidiaries. The Buyer will treat and hold as such
any Confidential Information it receives from any of the Sellers, the Company,
and its Subsidiaries in the course of the reviews contemplated by this Section
5(d), will not use any of the Confidential Information except in connection with
the transactions contemplated hereby and, if this Agreement is terminated for
any reason whatsoever, will return to the Company and its Subsidiaries or
destroy all tangible embodiments (and all copies) of the Confidential
Information which are in its possession, all in accordance with the provisions
of that certain confidentiality agreement between Buyer and the Company, dated
as of May 25, 1999.
(e) Notice of Developments.
(i) The Company or Sellers may elect at any time to notify the
Buyer of any development causing a breach of any of the representations
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and warranties in Section 4 above. No disclosure by the Company or
Sellers pursuant to this Section 5(e)(i), however, shall be deemed to
amend or supplement the Disclosure Schedule or to prevent or cure any
misrepresentation or breach of warranty.
(ii) Buyer may elect at any time to notify the Company and the
Sellers of any development causing a breach of any of the
representations and warranties in Section 3 above. No disclosure by the
Buyer pursuant to this Section 5(e)(ii), however, shall be deemed to
amend or supplement Annex I or to prevent or cure any misrepresentation
or breach of warranty.
(f) Exclusivity. None of the Sellers will (and the Sellers will not
cause or permit any of the Company and its Subsidiaries to) solicit, initiate,
or encourage the submission of any proposal or offer from any Person relating to
the acquisition of all or substantially all of the capital stock or assets of
any of the Company and its Subsidiaries (including any acquisition structured as
a merger, consolidation, or share exchange). Each of the Sellers acknowledges
and agrees that the Buyer would be damaged irreparably in the event this Section
5(f) is breached. Accordingly, notwithstanding anything herein to the contrary,
each of the Sellers agrees that the Buyer shall be entitled to an injunction or
injunctions to prevent breaches of and specifically enforce this Section 5(f).
(g) Amendment of Certain Agreements. Each of the Parties hereto
acknowledge and agree that (i) certain letter agreements relating to the
employment of Darrell Askey and Ron Jones shall be amended in connection with
the Closing, pursuant to which each such Person shall be issued a certain number
of Common Shares and be entitled to such Person's portion of the Purchase Price
set forth on the Schedule of the Purchase Price Allocation, (ii) the Company's
stock appreciation program shall be amended and terminated in connection with
the Closing, pursuant to which the Company shall pay, and the Sellers shall
reimburse the Company for, the aggregate amounts (other than applicable payroll
taxes except Medicare taxes) required thereunder to be paid to the participants
in such program as set forth in Section 7(a)(ix) below, (iii) the management
agreement between Mason Sundown, LLC and the Company shall be terminated in
connection with the Closing, (iv) the stock purchase and indemnification
agreement dated as of November 30, 1998, as amended, among Dr. A. Scott
Connelly, Leonard P. Moskovits, Jerrold J. Pellizzon and the Subsidiaries shall
be amended in connection with the Closing to remove the Subsidiaries as parties
thereto and (v) a certain shareholders agreement among the Sellers and the
Company shall be terminated in connection with the Closing.
6 Post-Closing Covenants.
(a) General. In case at any time after the Closing any further action
is necessary to carry out the purposes of this Agreement, each of the Parties
will take such further action (including the execution and delivery of such
further instruments and documents) as any other Party reasonably may request,
all at the sole cost and expense of the requesting Party. The Sellers
acknowledge and agree that from and after the Closing the Buyer will be entitled
to possession of all documents, books, records (including tax records),
agreements, and financial data of any sort relating to the Company and its
Subsidiaries.
(b) Covenant Not to Compete.
(i) Each of Dr. A. Scott Connelly and Leonard P. Moskovits and
each of TSG2 Management, LLC and TSG3 Management, LLC on behalf of
itself and each investment fund of which it (or its Affiliate) serves
as the general partner or managing member (including TSG2 L.P. and TSG3
L.P.) hereby covenants and agrees that such Person, without the prior
written consent of Buyer, shall not for a period of one year (three
years with respect to Dr. A. Scott Connelly) from and after the Closing
Date, directly or indirectly, for itself or for any other person, firm,
corporation, partnership, association, or other entity, employ or
attempt to employ any employee of the Company or Buyer or any of
Buyer's Affiliates until at least six months after the date such
employee was not employed by the Company or the Buyer or any of Buyer's
Affiliates, as the case may be.
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(ii) Each of Dr. A. Scott Connelly, Leonard P. Moskovits and
Jerrold J. Pellizzon hereby covenants and agrees that such Person,
without the prior written consent of the Buyer, shall not for a period
of three years, one year and one year, respectively, from and after the
Closing Date: (A) directly or indirectly acquire or own in any manner
any interest in any person, firm, partnership, corporation,
association, or other entity which engages in any facet of the business
of the Company as of the Closing Date or as planned or budgeted for as
of the Closing Date (the "Business") or which competes in any way with
the business of Buyer or any of its Subsidiaries or Affiliates as of
the Closing Date, anywhere in the United States (the "Territory"), or
(B) be employed by or serve as an employee, agent, officer, director
of, or as a consultant to, any person, firm, partnership, corporation,
association, or other entity which engages in any facet of the Business
or which competes in any way with the business of Buyer or any of its
Subsidiaries or Affiliates as of the Closing Date within the Territory.
The ownership or control of up to one percent of the outstanding voting
securities or securities of any class of a company with a class of
securities registered under the Securities Exchange Act of 1934, as
amended, shall not be deemed a violation of this Section 6(b)(ii).
(iii) Each of TSG2 Management, LLC and TSG3 Management, LLC on
behalf of itself and each investment fund of which it (or its
Affiliate) serves as the general partner or managing member (including
TSG2 L.P. and TSG3 L.P.) hereby covenants and agrees that such Person,
without the prior written consent of the Buyer, shall not for a period
of one year from and after the Closing Date: (A) directly or indirectly
acquire or own in any manner any interest in any entity listed on
Section 6(b) of the Disclosure Schedule, or (B) be employed by or serve
as an employee, agent, officer, director of, or as a consultant to, any
entity listed on Section 6(b) of the Disclosure Schedule. The ownership
or control of up to one percent of the outstanding voting securities or
securities of any class of a company with a class of securities
registered under the Securities Exchange Act of 1934, as amended, shall
not be deemed a violation of this Section 6(b)(iii).
(iv) Nothing in this Section 6(b) shall be construed as
limiting or restricting (A) the ability to sell, in part or in whole,
any portfolio company of any investment fund of which either TSG2
Management, LLC or TSG3 Management, LLC (or another entity having the
same members as TSG2 Management, LLC or TSG3 Management, LLC) serves as
the general partner or managing member to any of the entities listed on
Section 6(b) of the Disclosure Schedule, whether for cash or non-cash
consideration (including, without limitation, equity securities of any
such entity listed on Section 6(b) of the Disclosure Schedule) or (B)
the ability of any member, partner or officer of either TSG2
Management, LLC or TSG3 Management, LLC (or another entity having the
same members as TSG2 Management, LLC or TSG3 Management, LLC) to serve
as a director, officer or consultant to any such entity listed on
Section 6(b) of the Disclosure Schedule in connection with any such
sale to such entity.
(v) Nothing in this Section 6(b) shall be construed as
limiting or restricting the ability of Dr. A. Scott Connelly from
engaging in any public speaking or writing (including speaking or
writing about health and nutrition issues), so long as the same is not
specifically designed to promote competing products or competing
companies, or in medical practice or research.
(c) Employee Bonuses. In connection with the Closing, with respect to
employees of the Company and its Subsidiaries, the Company shall pay at Closing,
and to the extent not paid at Closing, Buyer shall pay, or cause the Company to
pay, such bonuses of such employees which are accrued on the Financial
Statements of the Company and its Subsidiaries in accordance with the terms of
such bonus arrangements in an aggregate amount not to exceed $900,100 pursuant
to the schedule of such bonus arrangements previously delivered to Buyer.
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<PAGE>
7 Conditions to Obligation to Close.
(a) Conditions to Obligation of the Buyer and the Transitory
Subsidiary. The obligation of each of the Buyer and the Transitory Subsidiary to
consummate the transactions to be performed by it in connection with the Closing
is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section
3(a) and Section 4 above shall be true and correct in all material
respects at and as of the Closing Date;
(ii) the Company and the Sellers shall have performed and
complied with all of their covenants hereunder in all material respects
through the Closing;
(iii) there shall not be any injunction, judgment, order,
decree, ruling, or charge in effect preventing consummation of any of
the transactions contemplated by this Agreement;
(iv) the Company and the Sellers shall have delivered to the
Buyer a certificate to the effect that each of the conditions specified
above in Section 7(a)(i)-(iii) is satisfied in all respects;
(v) all applicable waiting periods (and any extensions
thereof) under the Hart-Scott-Rodino Act shall have expired or
otherwise been terminated and the Parties, the Company, and its
Subsidiaries shall have received all other material authorizations,
consents, and approvals of governments and governmental agencies
referred to in Section 3(b) and Section 4(c) above;
(vi) the Buyer shall have received the resignations of (a)
each director of the Company and its Subsidiaries (as a director) and
(b) each officer of the Company and its Subsidiaries (as an officer)
who Buyer requests resign in a writing delivered at least five (5)
business days prior to the Closing, such resignations to be delivered
at and effective only upon the Closing (with the understanding that
such resignations shall not be deemed a breach of any employment
arrangement or fiduciary duty by any party);
(vii) the Buyer shall have received from counsel to the
Company and the Sellers an opinion addressed to the Buyer and dated as
of the Closing Date, in a form to be reasonably agreed to by counsels
for the respective Parties;
(viii) Dr. A. Scott Connelly shall have executed the
employment agreement in form and substance as set forth in Exhibit A
attached hereto, providing for the continued employment of Dr. A. Scott
Connelly with the Buyer and the right of the Buyer to utilize, for
commercial purposes, his image, likeness, persona, and voice;
(ix) simultaneously in connection with the Closing, the
Company shall pay, and the Sellers shall reimburse the Company for, the
aggregate amounts (other than applicable payroll taxes except Medicare
taxes) required under the Company's stock appreciation program to be
paid to the participants in such program upon the consummation of the
transactions contemplated hereby (of which certain amounts shall be
subject to hold-back pursuant to a certain agreement among the Sellers
and such participants relating to the indemnification obligations of
the Sellers pursuant to this Agreement) and such stock appreciation
program shall be terminated without any liability to the Buyer;
(x) there shall not have been any material adverse change in
the business, financial condition, operations, assets or results of
operations of the Company and its Subsidiaries, taken as a whole;
provided, however, a decrease in net sales in an amount up to
$3,000,000 in each of December 1999 and January 2000 compared to the
projected net sales for each such month as previously provided in
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<PAGE>
writing to the Buyer shall not be considered to constitute such a
material adverse change; and
(xi) all actions to be taken by the Company and the Sellers in
connection with consummation of the transactions contemplated hereby
and all certificates, opinions, instruments, and other documents
required to effect the transactions contemplated hereby will be
reasonably satisfactory in form and substance to the Buyer and the
Transitory Subsidiary.
The Buyer and the Transitory Subsidiary may waive any condition specified in
this Section 7(a) if they execute a writing so stating at or prior to the
Closing.
(b) Conditions to Obligation of the Company and the Sellers. The
obligation of each of the Company and the Sellers to consummate the transactions
to be performed by them in connection with the Closing is subject to
satisfaction of the following conditions:
(i) the representations and warranties set forth in Section
3(b) above shall be true and correct in all material respects at and as
of the Closing Date;
(ii) the Buyer and the Transitory Subsidiary shall have
performed and complied with all of its covenants hereunder in all
material respects through the Closing;
(iii) there shall not be any injunction, judgment, order,
decree, ruling, or charge in effect preventing consummation of any of
the transactions contemplated by this Agreement;
(iv) the Buyer and the Transitory Subsidiary shall have
delivered to the Company and the Sellers a certificate to the effect
that each of the conditions specified above in Section 7(b)(i)-(iii) is
satisfied in all respects;
(v) all applicable waiting periods (and any extensions
thereof) under the Hart-Scott- Rodino Act shall have expired or
otherwise been terminated and the Parties, the Company, and its
Subsidiaries shall have received all other material authorizations,
consents, and approvals of governments and governmental agencies
referred to in Section 3(b) and Section 4(c) above;
(vi) the Company and the Sellers shall have received from
counsel to the Buyer and the Transitory Subsidiary an opinion addressed
to the Sellers and dated as of the Closing Date, in a form to be
reasonably agreed to by counsels for the respective Parties;
(vii) concurrently with the Closing, Buyer shall pay the
Indebtedness of the Company (including amounts required to be paid to
the lenders in connection with the prepayment of such Indebtedness);
(viii) Buyer shall have executed the employment agreement in
form and substance as set forth in Exhibit B attached hereto, providing
for the continued employment of Dr. A. Scott Connelly with the Buyer
and the right of the Buyer to utilize, for commercial purposes, his
image, likeness, persona, and voice; and
(ix) all actions to be taken by the Buyer and the Transitory
Subsidiary in connection with consummation of the transactions
contemplated hereby and all certificates, opinions, instruments, and
other documents required to effect the transactions contemplated hereby
will be reasonably satisfactory in form and substance to the Company
and the Sellers.
The Company and the Sellers may waive any condition specified in this Section
7(b) if they execute a writing so stating at or prior to the Closing.
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<PAGE>
8. Remedies for Breaches of this Agreement.
(a) Survival of Representations and Warranties. All of the
representations and warranties contained herein shall survive the Closing
hereunder and continue in full force and effect for a period of one year
thereafter; provided, however, to the extent that a claim arises under the
representations and warranties contained herein that the Company has an
unreserved Tax obligation based on a claim that any Subsidiary's S corporation
election was invalid or had been terminated prior to January 5, 1999 ("S Tax
Claim"), then as to the representation and warranty concerning Taxes as they
relate to such S Tax Claim, the survival period shall be the applicable statute
of limitations for such S Tax Claim.
(b) Indemnification Obligations of All Sellers for Benefit of the
Buyer. In the event the Sellers breach any of their representations, warranties,
and covenants contained herein (other than the representation and warranty
concerning Taxes as they relate to any S Tax Claim) within the applicable
survival period pursuant to Section 8(a) above, provided that the Buyer makes a
written claim for indemnification against the Sellers pursuant to Section 11(g)
below within such survival period, then each of the Sellers shall indemnify the
Buyer from and against his or its Allocable Portion of any Adverse Consequences
the Buyer shall incur through and after the date of the claim for
indemnification caused proximately by such breach.
(c) Indemnification Obligations of Dr. A. Scott Connelly.
(x) For matters disclosed under sections I, II, III and IV of
Section 4(s) of the Disclosure Schedule and any other actions arising
from the same facts and circumstances (including, without limitation,
any claim of the Company or its Subsidiaries against Fireman's Fund or
any other insurer) (the "Foundation Litigation"), provided that the
Buyer makes a written claim for indemnification against Dr. A. Scott
Connelly pursuant to Section 11(g) below, then Dr. A. Scott Connelly
shall indemnify the Buyer from and against any Adverse Consequences the
Buyer shall incur caused by the Foundation Litigation. Notwithstanding
anything in this Agreement to the contrary, Dr. A. Scott Connelly shall
be entitled to control the Foundation Litigation (including the right
to bring or defend any action, prosecute or appeal any action and/or
settle any action) and shall bear all expenses in connection therewith.
The Buyer and the Company and its Subsidiaries shall cooperate with Dr.
A. Scott Connelly in handling such Foundation Litigation. In the event
that the Company or any of its Subsidiaries recovers any amounts in
such Foundation Litigation (including, without limitation, settlement
amounts, judgments for damages, insurance proceeds, reimbursement of
legal fees and costs, etc.) (the "Recovered Monies"), all such amounts
shall be promptly distributed to Dr. A. Scott Connelly and Buyer and
Company and its Subsidiaries shall not be entitled to any portion of
the Recovered Monies. Each of the Parties hereto (including, without
limitation, Buyer and Company and its Subsidiaries) agree that Krane &
Smith, current counsel for the Company and its Subsidiaries on the
Foundation Litigation and counsel for Dr. A. Scott Connelly, may
continue to represent the Company and its Subsidiaries in the
Foundation Litigation and further acknowledge and agree to be bound by
all of the terms of that certain Krane and Smith waiver of conflict
letter dated November 25, 1998. The Buyer agrees to execute a similar
letter at the Closing. The indemnification obligations under this
Section 8(c)(i) shall survive the Closing indefinitely.
(xi) Pursuant to Section 8(c)(i) above, in the event that Dr.
A. Scott Connelly pays or indemnifies the Company for any amount of a
judgment or settlement in any of the Foundation Litigation in favor of
the Met-Rx Foundation (the "Foundation") and the judgment or settlement
requires that the Foundation use all or a portion of the amounts which
Dr. A. Scott Connelly pays to perform (through accredited research
facilities chosen by or reasonably acceptable to the Company) (a)
research on the efficacy of Company's products or (b) other research
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<PAGE>
requested or approved by the Company, the Company shall repay Dr. A.
Scott Connelly (as such money is used by the Foundation for such
research) the amounts spent by the Foundation on such research. By way
of example, if (a) the Company is required to pay $300,000 to the
Foundation, (b) Dr. A. Scott Connelly pays such amount under the
indemnification obligations of Dr. A. Scott Connelly under Section
8(c)(i) above and (c) the Foundation uses $250,000 to pay for research
on Company's products, then Dr. A. Scott Connelly would be entitled to
a repayment from the Company of $250,000 at the time the Foundation
pays for the research.
(xii) In the event there is a breach of the representation and
warranty concerning Taxes as they relate to any S Tax Claim within the
applicable survival period pursuant to Section 8(a) above, provided
that the Buyer makes a written claim for indemnification against Dr. A.
Scott Connelly pursuant to Section 11(g) below within such survival
period, then Dr. A. Scott Connelly shall indemnify the Buyer from and
against any Adverse Consequences the Buyer shall incur through and
after the date of the claim for indemnification caused proximately by
such breach.
(d) Limitations on Indemnification
(xiii) None of the Sellers shall have any obligation to
indemnify the Buyer from and against any Adverse Consequences pursuant
to Section 8(b) above, until the Buyer has incurred Adverse
Consequences by reason of all such breaches in excess of a $1,000,000
aggregate threshold, at which point each of the Sellers will be
obligated to indemnify the Buyer from and against his or its Allocable
Portion of such Adverse Consequences relating back to the first dollar.
(xiv) Dr. A. Scott Connelly shall have no obligation to
indemnify the Buyer from and against any Adverse Consequences pursuant
to Section 8(c)(i) above, until the Buyer has incurred Adverse
Consequences by reason of such Foundation Litigation in excess of a
$250,000 aggregate deductible, at which point Dr. A. Scott Connelly
will be obligated to indemnify the Buyer from and against all such
Adverse Consequences in excess of $250,000.
(xv) To the extent the Buyer may have a claim for
indemnification pursuant to the provisions of Section 8(b) above for
any breach of any representation set forth in Section 4(o) or Section
4(q), the Buyer shall not be entitled to any indemnification under
Section 8(b) above until the Buyer gives credit for the amount of any
excess reserves for inventory and bad debts on the balance sheet as of
December 31, 1999 prepared by the Sellers and reasonably approved by
the Buyer in connection with the Closing (such credit to be given by
reducing dollar for dollar the amount of any Adverse Consequences
resulting from a breach of any representation set forth in Section 4(o)
or Section 4(q) by the aggregate amount of any and all excess reserves
for inventory and bad debts set forth on such balance sheet).
(xvi) The aggregate amount of all the Sellers' liability under
Section 8(b) above and Section 8(c)(iii) above shall not exceed
$5,400,000 and the maximum liability under Section 8(b) above for any
particular Seller shall be such Seller's Allocable Portion of
$5,400,000.
(xvii) Notwithstanding the foregoing provisions of this
Section 8(d), the $1,000,000 threshold and $5,400,000 "cap" limitations
on indemnification obligations set forth in Section 8(d)(i) above and
Section 8(d)(iv) above, respectively, shall not apply to any failure to
comply with the agreements set forth in Section 5(g) above and Section
7(a)(ix) above.
(e) Indemnification Provisions for Benefit of the Sellers. In the event
the Buyer breaches any of its representations, warranties, and covenants
contained herein within the applicable survival period pursuant to Section 8(a)
above, provided that any of the Sellers makes a written claim for
indemnification against the Buyer pursuant to Section 11(g) below within such
survival period, then the Buyer agrees to indemnify each of the Sellers from and
against the entirety of any Adverse Consequences the Seller shall incur through
and after the date of the claim for indemnification caused proximately by the
breach.
(f) Matters Involving Third Parties.
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(i) If any third party shall notify any Party (the
"Indemnified Party") with respect to any matter (a "Third Party Claim")
which may give rise to a claim for indemnification against any other
Party (the "Indemnifying Party") under this Section 8, then the
Indemnified Party shall promptly (and in any event within five business
days after receiving notice of the Third Party Claim) notify each
Indemnifying Party thereof in writing; provided, however, that no delay
on the part of the Indemnified Party in notifying any Indemnifying
Party shall relieve the Indemnifying Party from any obligation
hereunder unless (and then solely to the extent) the Indemnifying Party
thereby is prejudiced.
(ii) Any Indemnifying Party will have the right at any time to
assume and thereafter conduct the defense of the Third Party Claim with
counsel of his or its choice reasonably satisfactory to the Indemnified
Party; provided, however, that the Indemnifying Party will not consent
to the entry of any judgment or enter into any settlement with respect
to the Third Party Claim without the prior written consent of the
Indemnified Party (not to be withheld unreasonably) unless the judgment
or proposed settlement involves only the payment of money damages, does
not impose an injunction or other equitable relief upon the Indemnified
Party, does not impose any restrictions on the operation of the Company
and its Subsidiaries and, together with any other judgment or
settlement the Indemnifying Party has consented to or entered into
pursuant to this Section 8, does not in the aggregate exceed
$5,400,000; provided, further, in the event an Indemnifying Party
assumes the defense of the Third Party Claim as provided above, the
Indemnified Party may (a) retain separate co-counsel at its sole cost
and expense and participate in the defense of the Third Party Claim and
(b) assume complete control and thereafter conduct the defense of the
Third Party Claim once the Indemnifying Party has no further
indemnification obligations hereunder.
(iii) Unless and until an Indemnifying Party assumes the
defense of the Third Party Claim as provided in Section 8(f)(ii) above,
however, the Indemnified Party may defend against the Third Party Claim
in any manner he or it reasonably may deem appropriate.
(iv) Unless and until an Indemnifying Party assumes the
defense of the Third Party Claim as provided in Section 8(f)(ii) above,
in no event will the Indemnified Party consent to the entry of any
judgment or enter into any settlement with respect to the Third Party
Claim without the prior written consent of each of Dr. A. Scott
Connelly, TSG2 L.P. and TSG3 L.P. (not to be withheld unreasonably).
(g) Determination of Adverse Consequences. The Parties shall make
appropriate adjustments for tax benefits and insurance recovery in determining
Adverse Consequences for purposes of this Section 8. All indemnification
payments under this Section 8 shall be deemed adjustments to the Purchase Price.
(h) Exclusive Remedy. The Buyer and the Sellers acknowledge and agree
that after the Closing the foregoing indemnification provisions in this Section
8 shall be the exclusive remedy of the Buyer and the Sellers with respect to the
Company and its Subsidiaries.
9. Tax Matters.
(a) Certain Taxes. All transfer, documentary, sales, use, stamp,
registration and other similar taxes and fees (including any penalties and
interest) incurred in connection with this Agreement shall be paid by Sellers
when due, and Sellers will, at their own expense, file all necessary tax returns
and other documentation with respect to all such transfer, documentary, sales,
use, stamp, registration and other taxes and fees, and, if required by
applicable law, Buyer will, and will cause its affiliates to, join in the
execution of any such tax returns and other documentation.
(b) Myosystems Deduction Deferral. To the extent of the net tax benefit
resulting from any requirement by the California Franchise Tax Board to amortize
22
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over a longer period of years and defer the allowable tax deduction in
connection with a certain buy-out by the Company of a distribution agreement
relating to Myosystems, the Buyer shall pay to Dr. A. Scott Connelly such amount
in each year the Company and its Subsidiaries take such a tax deduction.
Notwithstanding anything herein to the contrary, if as a result of a
determination under the audit of such issue that the Company must defer such
deductions, the Company owes additional Taxes, Dr. A. Scott Connelly shall be
liable for reimbursing such amounts to the Company (offset by any payment owing
to Dr. A. Scott Connelly under this Section 9(b)). Dr. A. Scott Connelly shall
be liable for all costs and expenses in connection with such an audit.
10. Termination.
(a) Termination of Agreement. Certain of the Parties may terminate this
Agreement as provided below:
(v) the Parties may terminate this Agreement by mutual written
consent at any time prior to the Closing;
(vi) the Buyer and the Transitory Subsidiary may terminate
this Agreement by giving written notice to the Company and the Sellers
at any time prior to the Closing (a) (i) in the event any of the
Company or the Sellers have breached any material representation,
warranty, or covenant contained in this Agreement in any material
respect, (ii) the Buyer has become aware of the breach and has notified
the Sellers within 5 days of becoming aware of such breach of Buyers'
intent to terminate the Agreement unless such breach is cured within 30
days of such notice, and (iii) the breach has continued without cure
for such 30-day period, or (b) if the Closing shall not have occurred
on or before January 31, 2000, by reason of the failure of any
condition precedent under Section 7(a) hereof (unless the failure
results primarily from the Buyer or the Transitory Subsidiary breaching
any representation, warranty, or covenant contained in this Agreement);
provided, however, if the Closing shall not have occurred on or before
January 31, 2000 by reason of failure to comply with the requirements
of the Hart-Scott-Rodino Act or due to a "second request" being made by
the Justice Department and the applicable waiting periods thereunder
have not expired (so long as the initial and "second request" filings
required thereunder were filed within 7 days of the date hereof and the
date of the "second request," respectively), the Buyer and the
Transitory may not terminate this Agreement under clause (b) above
until February 28, 2000; and
(vii) the Company and the Sellers may terminate this Agreement
by giving written notice to the Buyer at any time prior to the Closing
(a) (i) in the event any of the Buyer or the Transitory Subsidiary have
breached any material representation, warranty, or covenant contained
in this Agreement in any material respect, (ii) the Company or the
Sellers have become aware of the breach and have notified the Buyer
within 5 days of becoming aware of such breach of the Company and the
Sellers' intent to terminate the Agreement unless such breach is cured
within 30 days of such notice, and (iii) the breach has continued
without cure for such 30-day period, or (b) if the Closing shall not
have occurred on or before January 31, 2000, by reason of the failure
of any condition precedent under Section 7(b) hereof (unless the
failure results primarily from any of the Company or the Sellers
themselves breaching any representation, warranty, or covenant
contained in this Agreement); provided, however, if the Closing shall
not have occurred on or before January 31, 2000 by reason of failure to
comply with the requirements of the Hart-Scott-Rodino Act or due to a
"second request" being made by the Justice Department and the
applicable waiting periods thereunder have not expired (so long as the
initial and "second request" filings required thereunder were filed
within 7 days of the date hereof and the date of the "second request,"
respectively), the Company and the Sellers may not terminate this
Agreement under clause (b) above until February 28, 2000.
(b) Effect of Termination. If any Party terminates this Agreement
pursuant to Section 10(a) above, all rights and obligations of the Parties
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hereunder shall terminate without any liability of any Party to any other Party
(except for any liability of any Party then in breach); provided, however, that
the confidentiality provisions contained in Section 5(d) and the confidentiality
agreement referred to in Section 5(d) above shall survive termination.
11. Miscellaneous.
(a) Press Releases and Public Announcements. No Party shall issue any
press release or make any public announcement relating to the subject matter of
this Agreement prior to the Closing without the prior written approval of the
other Parties hereto; provided, however, that any Party may make any public
disclosure it believes in good faith is required by applicable law or any
listing or trading agreement concerning its publicly-traded securities (in which
case the disclosing Party will use its reasonable best efforts to advise the
other Parties prior to making the disclosure).
(b) No Third-Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their respective
successors and permitted assigns.
(c) Entire Agreement. This Agreement (including the documents referred
to herein) constitutes the entire agreement among the Parties and supersedes any
prior understandings, agreements, or representations by or among the Parties,
written or oral, to the extent they related in any way to the subject matter
hereof.
(d) Succession and Assignment. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective successors
and permitted assigns. No Party may assign either this Agreement or any of his
or its rights, interests, or obligations hereunder without the prior written
approval of the Buyer and the Sellers.
(e) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(f) Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(g) Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
<TABLE>
<CAPTION>
<S> <C> <C>
If to the Company A. Scott Connelly, M.D.
or the Sellers: c/o Krane & Smith
16255 Ventura Boulevard
Encino, California 91436
Attention: Samuel Krane, Esq.
Facsimile: (818) 382-4001
TSG2 L.P.
TSG3 L.P.
c/o The Shansby Group
250 Montgomery Street, Suite 1100
San Francisco, California 94104
Attention: Charles H. Esserman
Facsimile: (415) 421-5120
With respect to any other Seller, to
the address and/or facsimile number
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<PAGE>
set forth beside the name of such
Seller on the Schedule of Sellers.
Copy to: Kirkland & Ellis
777 South Figueroa Street
Los Angeles, California 90017
Attention: Eva H. Davis, Esq.
Facsimile: (213) 680-8500
If to the Buyer: Rexall Sundown, Inc.
6111 Broken Sound Parkway, N.W.
Boca Raton, Florida 33487
Attention: Geary Cotton, Chief Financial Officer
Facsimile: (561) 999-4747
Copy to: Rexall Sundown, Inc.
6111 Broken Sound Parkway, N.W.
Boca Raton, Florida 33487
Attention: Richard Werber, General Counsel
Facsimile: (561) 991-4729
and a copy to: Greenberg Traurig, P.A.
1221 Brickell Avenue
Miami, Florida 33131
Attention: Paul Berkowitz, Esq.
Facsimile: (305) 579-0717
</TABLE>
Any Party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no such notice,
request, demand, claim, or other communication shall be deemed to have been duly
given unless and until it actually is received by the intended recipient. Any
Party may change the address to which notices, requests, demands, claims, and
other communications hereunder are to be delivered by giving the other Parties
notice in the manner herein set forth.
(h) Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of California without giving
effect to any choice or conflict of law provision or rule (whether of the State
of California or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of California.
(i) Amendments and Waivers. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by the
Parties hereto. No waiver by any Party of any default, misrepresentation, or
breach of warranty or covenant hereunder, whether intentional or not, shall be
deemed to extend to any prior or subsequent default, misrepresentation, or
breach of warranty or covenant hereunder or affect in any way any rights arising
by virtue of any prior or subsequent such occurrence.
(j) Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
(k) Expenses. Except as otherwise provided herein, each of the Buyer,
the Transitory Subsidiary, the Company, and the Company's Subsidiaries will bear
its own costs and expenses (including legal fees and expenses) incurred in
connection with this Agreement and the transactions contemplated hereby. The
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Company will also bear all of the Sellers' costs and expenses (including all of
their legal fees and expenses) incurred in connection with this Agreement and
the transactions contemplated hereby (other than any Tax imposed on the Sellers
on any gain resulting from the sale of the Shares hereunder) and there shall be
no reduction in the Purchase Price as a result of such bearing of such costs and
expenses. Notwithstanding anything herein to the contrary, (i) the Company and
its Subsidiaries (and not the Sellers) shall bear any fees payable to Lazard
Freres & Co. LLC and its Affiliates with respect to the transactions
contemplated by this Agreement (pursuant to a certain engagement letter dated as
of July 28, 1999) and there shall be no reduction in the Purchase Price due to
such liability and (ii) TSG2 L.P. and TSG3 L.P. (and not the Company and its
Subsidiaries and the other Sellers) shall bear any fees payable to Donaldson,
Lufkin & Jenrette and its Affiliates with respect to the transactions
contemplated by this Agreement.
(l) Construction. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties and no presumption or burden of proof shall
arise favoring or disfavoring any Party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word "including" shall mean including without limitation.
(m) Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES ITS RIGHTS TO
A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT, THE RELATED AGREEMENTS OR THE SUBJECT MATTER HEREOF OR THEREOF. THE
SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES
THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS
TRANSACTION, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH
OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS Section
11(M)(III) HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE
PROVISIONS SHALL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY
FURTHER REPRESENTS AND WARRANTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH
ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY
TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING,
AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, SUPPLEMENTS OR
MODIFICATIONS TO (OR ASSIGNMENTS OF) THIS AGREEMENT. IN THE EVENT OF LITIGATION,
THIS AGREEMENT MAY BE FILED AS WRITTEN CONSENT TO A TRIAL (WITHOUT JURY) BY THE
COURT.
(n) Indemnification of Directors and Officers; Insurance.
(viii) The Buyer shall cause the Company and its Subsidiaries
to not, amend, repeal or otherwise modify the provisions with respect
to indemnification set forth in the charter and the bylaws of the
Company and its Subsidiaries as in effect on the day prior to the
Closing Date, in any manner that would adversely affect the rights
thereunder of individuals who on or prior to the Closing Date were
directors, officers, employees or agents of the Company and its
Subsidiaries, unless such modification is required by law (and then
only to the minimum extent required by law).
(ix) The Buyer shall, at its own expense, purchase and
maintain in effect not less than five years from the Closing Date,
policies of directors' and officers' liability and fiduciary insurance,
on terms with respect to coverage and amount substantially consistent
with the Company's current directors' and officers' liability and
insurance, pursuant to which the Company's current directors and
officers will be insured with respect to claims arising from the facts
or events occurring on or prior to the Closing Date; provided, however,
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<PAGE>
in no event shall the Buyer be required to pay premiums per annum in an
amount exceeding 120% of the current annual premiums under the
Company's current directors' and officers' liability insurance;
provided, further, in the event such premiums would exceed such 120%
threshold in any effective year of this obligation, Buyer (a) shall
afford the Sellers the opportunity to contribute the balance of the
cost of such insurance exceeding such 120% threshold amount and (b) if
the Sellers decline to make such contribution, shall, at its own
expense, purchase and maintain such policies of directors' and
officers' liability and fiduciary insurance obtainable for such 120%
threshold amount.
(o) Incorporation of Exhibits, Annexes, and Schedules. The Exhibits,
Annexes, and Schedules identified in this Agreement are incorporated herein by
reference and made a part hereof.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date first above written.
REXALL SUNDOWN, INC.
By: /s/ Damon DeSantis
----------------------
Name: Damon DeSantis
Title: President
RSM ACQUISITION CORP.
By: /s/ Damon DeSantis
----------------------
Name: Damon DeSantis
Title: President
TSG2 L.P., by its general partner
TSG2 Management, LLC
By: /s/ Charles H. Esserman
---------------------------
Name: Charles H. Esserman
Title: Managing Member
TSG3 L.P., by its general partner
TSG3 Management, LLC
By: /s/ Charles H. Esserman
---------------------------
Name: Charles H. Esserman
Title: Managing Member
Connelly (1999) Limited Partnership,
by its general partner Connelly
(1999) Company Inc.
By: /s/ Samuel Krane
--------------------
Name: Samuel Krane
Title: Assistant Secretary
27
<PAGE>
A. Scott Connelly, M.D.
/s/ A. Scott Connelly, M.D.
---------------------------
Leonard P. Moskovits
/s/ Leonard P. Moskovits
------------------------
Jerrold J. Pellizzon
/s/ Jerrold J. Pellizzon
------------------------
Darrell Askey
/s/ Darrell Askey
-----------------
Ron Jones
/s/ Ron Jones
-------------
MET-Rx NUTRITION, INC.
By: /s/ A. Scott Connelly, M.D.
-------------------------------
Name: A. Scott Connelly, M.D.
Title: Chief Technical Officer
Only for the purpose of acknowledging
and agreeing to Section 6(b) of this Agreement:
TSG2 Management, LLC
By: /s/ Charles H. Esserman
- ---------------------------
Name: Charles H. Esserman
Title: Managing Member
TSG3 Management, LLC
By: /s/ Charles H. Esserman
- ---------------------------
Name: Charles H. Esserman
Title: Managing Member
28
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of January 7, 2000 (the "Agreement"),
is made by and among REXALL SUNDOWN, INC., a Florida corporation having its
principal place of business in Boca Raton, Florida (the "Borrower"), BANK OF
AMERICA, N.A., a national banking association organized and existing under the
laws of the United States, in its capacity as a Lender ("Bank of America"), and
each other financial institution executing and delivering a signature page
hereto and each other financial institution which may hereafter execute and
deliver an instrument of assignment with respect to this Agreement pursuant to
Section 12.1 (hereinafter such financial institutions may be referred to
individually as a "Lender" or collectively as the "Lenders"), and BANK OF
AMERICA, N.A., a national banking association organized and existing under the
laws of the United States, in its capacity as agent for the Lenders (in such
capacity, and together with any successor agent appointed in accordance with the
terms of Section 11.7, the "Administrative Agent");
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders make available to
the Borrower revolving credit facilities of up to $150,000,000, consisting of
(a) a $25,000,000 364 day revolving credit facility (the "364 Day Facility") and
(b) a $125,000,000 three year revolving credit facility (the "Three Year
Facility"), which shall include a letter of credit facility of up to $5,000,000
for the issuance of standby and commercial letters of credit and a swing line
facility of up to $5,000,000, the proceeds of which revolving credit facilities
are to be used as provided in Section 2.2 hereof; and
WHEREAS, the Lenders are willing to make such revolving credit, letter
of credit and swing line facilities available to the Borrower upon the terms and
conditions set forth herein;
NOW, THEREFORE, the Borrower, the Lenders and the Administrative Agent
hereby agree as follows:
ARTICLE I
Definitions and Terms
1.1. Definitions. For the purposes of this Agreement, in addition to
the definitions set forth above, the following terms shall have the respective
meanings set forth below:
"Acquired Company" means MET-Rx Nutrition, Inc., a Delaware
corporation.
"Acquisition" means the acquisition of (i) a controlling
equity interest in another Person (including the purchase of an option,
warrant or convertible or similar type security to acquire such a
controlling interest at the time it becomes exercisable by the holder
thereof), whether by purchase of such equity interest or upon exercise
of an option or warrant for, or conversion of securities into, such
equity interest, or (ii) assets of another Person which constitute all
or substantially all of the assets of such Person or of a line or lines
of business conducted by such Person.
"Advance" means a borrowing under either of the Revolving
Credit Facilities, consisting of a Base Rate Loan or a Eurodollar Rate
Loan.
"Affiliate" means any Person (i) which directly or indirectly
through one or more intermediaries controls, or is controlled by, or is
1
<PAGE>
under common control with the Borrower; or (ii) which beneficially owns
or holds 5% or more of any class of the outstanding voting stock (or in
the case of a Person which is not a corporation, 5% or more of the
equity interest) of the Borrower; or 5% or more of any class of the
outstanding voting stock (or in the case of a Person which is not a
corporation, 5% or more of the equity interest) of which is
beneficially owned or held by the Borrower. The term "control" means
the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether
through ownership of voting stock, by contract or otherwise.
"Applicable Commitment Fee" means that percent per annum set
forth below, which shall be based upon the Consolidated Leverage Ratio
for the Four-Quarter Period most recently ended as specified below:
<TABLE>
<CAPTION>
Applicable Commitment Fee
-------------------------
Three Year
Tier Consolidated Leverage Ratio 364 Day Facility Facility
---- --------------------------- ---------------- --------
<S> <C> <C> <C> <C>
I Less than or equal to
.75 to 1.00 .175% .225%
II Less than or equal to 1.25 to 1.00 but greater
than .75 to 1.00 .225% .275%
III Less than or equal to 1.75 to 1.00 but greater
than 1.25 to 1.00 .275% .325%
IV Greater than 1.75 to 1.00 .325% .375%
</TABLE>
The Applicable Commitment Fee shall be established at the end of each
fiscal quarter of the Borrower (each, a "Determination Date"). Any
change in the Applicable Commitment Fee following each Determination
Date shall be determined based upon the computations set forth in the
certificate furnished to the Administrative Agent pursuant to Section
8.1(a)(ii) or Section 8.1(b)(ii), subject to review and approval of
such computations by the Administrative Agent and shall be effective
commencing on the fifth Business Day following the date such
certificate is received until the fifth Business Day following the date
on which a new certificate is delivered or is required to be delivered,
whichever shall first occur; provided however, if the Borrower shall
fail to deliver any such certificate within the time period required by
Section 8.1, then the Applicable Commitment Fee shall be Tier IV from
the date such certificate was due until the fifth Business Day
following the date the appropriate certificate is so delivered. From
the Closing Date to the fifth Business Day following the date of
delivery of the certificate required for the fiscal quarter ending May
31, 2000, the Applicable Commitment Fee shall be not less than Tier II.
"Applicable Commitment Percentage" means, for each Lender at
any time, a fraction (i) with respect to the Three Year Facility
(including the Swing Line) and the Letter of Credit Facility, the
numerator of which shall be such Lender's Three Year Commitment and the
denominator of which shall be the Total Three Year Commitment and (ii)
with respect to the 364 Day Facility, the numerator of which shall be
such Lender's 364 Day Commitment and the denominator of which shall be
the Total 364 Day Commitment, which Applicable Commitment Percentage
for each Lender as of the Closing Date is as set forth in Exhibit A;
provided that the Applicable Commitment Percentage of each Lender shall
be increased or decreased to reflect any assignments to or by such
Lender effected in accordance with Section 12.1 or to reflect any
2
<PAGE>
change in the Total 364 Day Commitment and the Total Three Year
Commitment, including such changes in accordance with Sections 2.5 and
2.6.
"Applicable Lending Office" means, for each Lender and for
each Type of Loan, the "Lending Office" of such Lender (or of an
affiliate of such Lender) designated for such Type of Loan on the
signature pages hereof or such other office of such Lender (or an
affiliate of such Lender) as such Lender may from time to time specify
to the Administrative Agent and the Borrower by written notice in
accordance with the terms hereof as the office by which its Loans of
such Type are to be made and maintained.
"Applicable Margin" for Eurodollar Rate Loans means that
percent per annum set forth below, which shall be based upon the
Consolidated Leverage Ratio for the Four-Quarter Period most recently
ended as specified below:
Applicable
Tier Consolidated Leverage Ratio Margin
---- --------------------------- ------
I Less than or equal to
.75 to 1.00 .875%
II Less than or equal to 1.25 to 1.00 but greater
than .75 to 1.00 1.125%
III Less than or equal to 1.75 to 1.00 but greater
than 1.25 to 1.00 1.375%
IV Greater than 1.75 to 1.00 1.625%
The Applicable Margin shall be established at the end of each fiscal
quarter of the Borrower (each, a "Determination Date"). Any change in
the Applicable Margin following each Determination Date shall be
determined based upon the computations set forth in the certificate
furnished to the Administrative Agent pursuant to Section 8.1(a)(ii) or
Section 8.1(b)(ii), subject to review and approval of such computations
by the Administrative Agent, and shall be effective commencing on the
fifth Business Day following the date such certificate is received
until the fifth Business Day following the date on which a new
certificate is delivered or is required to be delivered, whichever
shall first occur; provided however, if the Borrower shall fail to
deliver any such certificate within the time period required by Section
8.1, then the Applicable Margin for Eurodollar Rate Loans shall be Tier
IV from the date such certificate was due until the fifth Business Day
following the date the appropriate certificate is so delivered. From
the Closing Date to the fifth Business Day following the date of
delivery of the certificate required for the fiscal quarter ending May
31, 2000, the Applicable Margin for Eurodollar Rate Loans shall be not
less than Tier II.
"Applications and Agreements for Letters of Credit" means,
collectively, the Applications and Agreements for Letters of Credit, or
similar documentation, executed by the Borrower from time to time and
delivered to the Issuing Bank to support the issuance of Letters of
Credit.
"Assignment and Acceptance" shall mean an Assignment and
Acceptance in the form of Exhibit B (with blanks appropriately filled
in) delivered to the Administrative Agent in connection with an
assignment of a Lender's interest under this Agreement pursuant to
Section 12.1.
3
<PAGE>
"Authorized Representative" means any of the President or any
Vice President, the Controller or the Director of Finance and Treasury
of the Borrower or, with respect to financial matters, the chief
financial officer of the Borrower, or any other Person expressly
designated by the Board of Directors of the Borrower (or the
appropriate committee thereof) as an Authorized Representative of the
Borrower, as set forth from time to time in a certificate in the form
of Exhibit C.
"Bank of America" means Bank of America, N.A.
"BAS" means Banc of America Securities LLC and its successors.
"Base Rate" means, for any day, the rate per annum equal to
the higher of (i) the Federal Funds Rate for such day plus one-half of
one percent (0.5%) and (ii) the Prime Rate for such day. Any change in
the Base Rate due to a change in the Prime Rate or the Federal Funds
Rate shall be effective on the effective date of such change in the
Prime Rate or Federal Funds Rate.
"Base Rate Loan" means a Loan for which the rate of interest
is determined by reference to the Base Rate.
"Base Rate Refunding Loan" means a Base Rate Loan or Swing
Line Loan made under the Three Year Facility either to (i) satisfy
Reimbursement Obligations arising from a drawing under a Letter of
Credit or (ii) pay Bank of America in respect of Swing Line
Outstandings.
"Board" means the Board of Governors of the Federal Reserve
System (or any successor body).
"Borrower's Account" means a demand deposit account number
3890123977 or any successor account with the Administrative Agent,
which may be maintained at one or more offices of the Administrative
Agent or an agent of the Administrative Agent.
"Borrowing Notice" means the notice delivered by an Authorized
Representative in connection with an Advance under either of the
Revolving Credit Facilities or a Swing Line Loan, in the forms of
Exhibits D-1 and D-2, respectively.
"Business Day" means, (i) except as expressly provided in
clause (ii), any day which is not a Saturday, Sunday or a day on which
banks in the States of New York. Florida and North Carolina are
authorized or obligated by law, executive order or governmental decree
to be closed and, (ii) with respect to the selection, funding, interest
rate, payment, and Interest Period of any Eurodollar Rate Loan, any day
which is a Business Day, as described above, and on which the relevant
international financial markets are open for the transaction of
business contemplated by this Agreement in London, England, New York,
New York and Charlotte, North Carolina.
"Capital Leases" means all leases which have been or should be
capitalized in accordance with GAAP as in effect from time to time
including Statement No. 13 of the Financial Accounting Standards Board
and any successor thereof.
"Change of Control" means, at any time:
(i) any "person" or "group" (each as used in Sections
13(d)(3) and 14(d)(2) of the Exchange Act) other than the
DeSantis Group either (A) becomes the "beneficial owner" (as
defined in Rule 13d-3 of the Exchange Act ), directly or
indirectly, of Voting Securities of the Borrower (or
securities convertible into or exchangeable for such Voting
Securities) representing 30% or more of the combined voting
4
<PAGE>
power of all Voting Securities of the Borrower (on a fully
diluted basis) or (B) otherwise has the ability, directly or
indirectly, to elect a majority of the board of directors of
the Borrower;
(ii) during any period of up to 12 consecutive
months, commencing on the Closing Date, individuals who at the
beginning of such 12-month period were directors of the
Borrower shall cease for any reason (other than the death,
disability or retirement of an officer of the Borrower that is
serving as a director at such time so long as another officer
of the Borrower replaces such Person as a director) to
constitute a majority of the board of directors of the
Borrower; or
(iii) any Person or two or more Persons acting in
concert shall have acquired by contract or otherwise, or shall
have entered into a contract or arrangement that, upon
consummation thereof, will result in its or their acquisition
of the power to exercise, directly or indirectly, a
controlling influence on the management or policies of the
Borrower.
"Closing Date" means the date as of which this Agreement is
executed by the Borrower, the Lenders and the Administrative Agent and
on which the conditions set forth in Section 6.1 have been satisfied.
"Code" means the Internal Revenue Code of 1986, as amended,
and any regulations promulgated thereunder.
"Consistent Basis" in reference to the application of GAAP
means the accounting principles observed in the period referred to are
comparable in all material respects to those applied in the preparation
of the audited financial statements of the Borrower referred to as of
the Closing Date in Section 7.6(a).
"Consolidated EBITDA" means, with respect to the Borrower and
its Subsidiaries for any Four-Quarter Period ending on the date of
computation thereof, the sum of, without duplication, (i) Consolidated
Net Income, (ii) Consolidated Interest Expense, (iii) taxes on income,
(iv) amortization, and (v) depreciation, all determined on a
consolidated basis in accordance with GAAP applied on a Consistent
Basis; provided, however, that with respect to an Acquisition that is
accounted for as a "purchase" (including the MET-Rx Nutrition, Inc.
Acquisition), for the four Four-Quarter Periods ending next following
the date of such Acquisition, Consolidated EBITDA shall include the
results of operations of the Person or assets so acquired, which
amounts shall be determined on a historical pro forma basis as if such
Acquisition had been consummated as a "pooling of interests".
"Consolidated Indebtedness" means all Indebtedness of the
Borrower and its Subsidiaries, all determined on a consolidated basis.
"Consolidated Interest Expense" means, with respect to any
period of computation thereof, the gross interest expense of the
Borrower and its Subsidiaries, including without limitation (i) the
current amortized portion of debt discounts to the extent included in
gross interest expense, (ii) the current amortized portion of all fees
(including fees payable in respect of any Rate Hedging Obligation)
payable in connection with the incurrence of Indebtedness to the extent
included in gross interest expense and (iii) the portion of any
payments made in connection with Capital Leases allocable to interest
expense, all determined on a consolidated basis in accordance with GAAP
applied on a Consistent Basis; provided, however, in the case of the
occurrence of an Acquisition, there shall be included in Consolidated
Interest Expense for the first four consecutive fiscal quarters ending
after the date of such Acquisition an amount which shall be determined
by multiplying that portion of the Cost of Acquisition which represents
5
<PAGE>
Indebtedness (net of Indebtedness paid with proceeds of Indebtedness
incurred to fund such Cost of Acquisition), whether incurred, assumed
or acquired, times the interest rate applicable to such Indebtedness
which is in effect on the date of determination and then multiplying
the result by a fraction the numerator of which is 365 minus the actual
number of days that have elapsed from and after the date of such
Acquisition and the denominator of which is 365.
"Consolidated Interest Coverage Ratio" means, as of the date
of computation thereof, the ratio of (i) Consolidated EBITDA for the
Four-Quarter Period ending on (or most recently ended prior to) such
date to (ii) Consolidated Interest Expense for the Four-Quarter Period
ending on (or most recently ended prior to) such date.
"Consolidated Leverage Ratio"? means, as of the date of
computation thereof, the ratio of (i) Consolidated Indebtedness
(determined as at such date) to (ii) Consolidated EBITDA for the
Four-Quarter Period ending on (or most recently ended prior to) such
date.
"Consolidated Net Income" means, for any period of computation
thereof, the gross revenues from operations of the Borrower and its
Subsidiaries (including payments received by the Borrower and its
Subsidiaries of (i) interest income, and (ii) dividends and
distributions made in the ordinary course of their businesses by
Persons in which investment is permitted pursuant to this Agreement and
not related to an extraordinary event), less all operating and
non-operating expenses of the Borrower and its Subsidiaries including
taxes on income, all determined on a consolidated basis in accordance
with GAAP applied on a Consistent Basis; but excluding as income: (i)
net gains on the sale, conversion or other disposition of capital
assets, (ii) net gains on the acquisition, retirement, sale or other
disposition of capital stock and other securities of the Borrower or
its Subsidiaries, (iii) net gains on the collection of proceeds of life
insurance policies, (iv) any write-up of any asset, and (v) any other
net gain or credit of an extraordinary nature as determined in
accordance with GAAP applied on a Consistent Basis.
"Consolidated Total Assets" means, as of any date on which the
amount thereof is to be determined, the net book value of all assets of
the Borrower and its Subsidiaries as determined on a consolidated basis
in accordance with GAAP applied on a Consistent Basis.
"Contingent Obligation" means, as to any Person, any direct or
indirect liability of that Person with respect to any Indebtedness,
lease, dividend, guaranty, letter of credit or other obligation (each a
"primary obligation") of another Person (the "primary obligor"),
whether or not contingent, (a) to purchase, repurchase or otherwise
acquire any such primary obligation or any property constituting direct
or indirect security therefor, or (b) to advance or provide funds (i)
for the payment or discharge of any such primary obligation, or (ii) to
maintain working capital or equity capital of the primary obligor in
respect of any such primary obligation or otherwise to maintain the net
worth or solvency or any balance sheet item, level of income or
financial condition of such primary obligor, or (c) to purchase
property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary
obligor thereof to make payment of such primary obligation, or (d)
otherwise to assure or hold harmless the owner of any such primary
obligation against loss or failure or inability to perform in respect
thereof. The amount of any Contingent Obligation shall be deemed to be
an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Contingent Obligation is made or,
if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof.
"Continue", "Continuation", and "Continued" shall refer to the
continuation pursuant to Section 4.2 hereof of a Eurodollar Rate Loan
of one Type as a Eurodollar Rate Loan of the same Type from one
Interest Period to the next Interest Period.
6
<PAGE>
"Convert", "Conversion", and "Converted" shall refer to a
conversion pursuant to Section 4.2 of one Type of Loan into another
Type of Loan.
"Cost of Acquisition" means, with respect to any Acquisition,
as at the date of entering into any agreement therefor, the sum of the
following (without duplication): (i) the value of the capital stock,
warrants or options to acquire capital stock of Borrower or any
Subsidiary to be transferred in connection therewith, (ii) the amount
of any cash and fair market value of other property (excluding property
described in clause (i) and the unpaid principal amount of any debt
instrument) given as consideration, (iii) the amount (determined by
using the face amount or the amount payable at maturity, whichever is
greater) of any Indebtedness incurred, assumed or acquired by the
Borrower or any Subsidiary in connection with such Acquisition, (iv)
all additional purchase price amounts in the form of earnouts and other
contingent obligations that should be recorded on the financial
statements of the Borrower and its Subsidiaries in accordance with
GAAP, (v) all amounts paid in respect of covenants not to compete,
consulting agreements that should be recorded on financial statements
of the Borrower and its Subsidiaries in accordance with GAAP, and other
affiliated contracts in connection with such Acquisition, (vi) the
aggregate fair market value of all other consideration given by the
Borrower or any Subsidiary in connection with such Acquisition, and
(vii) out of pocket transaction costs for the services and expenses of
attorneys, accountants and other consultants incurred in effecting such
transaction, and other similar transaction costs so incurred. For
purposes of determining the Cost of Acquisition for any transaction,
(A) the capital stock of the Borrower shall be valued (I) in the case
of capital stock that is then designated as a national market system
security by the National Association of Securities Dealers, Inc.
("NASDAQ") or is listed on a national securities exchange, the average
of the last reported bid and ask quotations or the last prices reported
thereon, and (II) with respect to any other shares of capital stock, as
determined by the Board of Directors of the Borrower and, if requested
by the Administrative Agent, determined to be a reasonable valuation by
the independent public accountants referred to in Section 8.1(a), (B)
the capital stock of any Subsidiary shall be valued as determined by
the Board of Directors of such Subsidiary and, if requested by the
Administrative Agent, determined to be a reasonable valuation by the
independent public accountants referred to in Section 8.1(a), and (C)
with respect to any Acquisition accomplished pursuant to the exercise
of options or warrants or the conversion of securities, the Cost of
Acquisition shall include both the cost of acquiring such option,
warrant or convertible security as well as the cost of exercise or
conversion.
"Credit Parties" means, collectively, the Borrower and each
Guarantor.
"Default" means any event or condition which, with the giving
or receipt of notice or lapse of time or both, would constitute an
Event of Default hereunder.
"Default Rate" means (i) with respect to each Eurodollar Rate
Loan, until the end of the Interest Period applicable thereto, a rate
of two percent (2%) above the Eurodollar Rate applicable to such Loan,
and thereafter at a rate of interest per annum which shall be two
percent (2%) above the Base Rate, (ii) with respect to Base Rate Loans,
Swing Line Loans, Reimbursement Obligations, fees, and other amounts
payable in respect of Obligations or (except as otherwise expressly
provided therein) the obligations of any other Credit Party under any
of the other Loan Documents, a rate of interest per annum which shall
be two percent (2%) above the Base Rate and (iii) in any case, the
maximum rate permitted by applicable law, if lower.
"DeSantis Group" means, individually or collectively, Carl
DeSantis, Damon DeSantis, Dean DeSantis, Sylvia DeSantis and CDD
Partners, Ltd., a Texas limited partnership.
"Dollars" and the symbol "$" means dollars constituting legal
tender for the payment of public and private debts in the United States
of America.
7
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"Domestic Subsidiary" means any Subsidiary of the Borrower
organized under the laws of the United States of America, any state or
territory thereof or the District of Columbia.
"Eligible Assignee" means (i) a Lender, (ii) an affiliate of a
Lender, and (iii) any other Person approved by the Administrative Agent
and, unless an Event of Default has occurred and is continuing at the
time any assignment is effected in accordance with Section 12.1, the
Borrower, such approval not to be unreasonably withheld or delayed by
the Borrower and such approval to be deemed given by the Borrower (in
the absence of notice to the contrary, effective upon receipt) within
two Business Days after notice of such proposed assignment has been
provided by the assigning Lender to the Borrower; provided, however,
that neither the Borrower nor an affiliate of the Borrower shall
qualify as an Eligible Assignee, and provided, further, that the
incurrence of any increased costs under Article IV, other than Section
4.6(e), shall be a basis for not approving such Person.
"Eligible Securities" means the following obligations and any
other obligations previously approved in writing by the Administrative
Agent:
(a) Government Securities;
(b) obligations of any corporation organized under the laws of
any state of the United States of America or under the laws of any
other nation, payable in the United States of America, expressed to
mature not later than 92 days following the date of issuance thereof
and rated in an investment grade rating category by S&P and Moody's;
(c) interest bearing demand or time deposits issued by any
Lender or certificates of deposit maturing within one year from the
date of issuance thereof and issued by a bank or trust company
organized under the laws of the United States or of any state thereof
having capital surplus and undivided profits aggregating at least
$400,000,000 and being rated "A" or better by S&P or "A" or better by
Moody's;
(d) Repurchase Agreements;
(e) Municipal Obligations;
(f) Pre-Refunded Municipal Obligations;
(g) shares of mutual funds which invest in obligations
described in paragraphs (a) through (f) above, the shares of which
mutual funds are at all times rated "AAA" by S&P;
(h) tax-exempt or taxable adjustable rate preferred stock
issued by a Person having a rating of its long term unsecured debt of
"A" or better by S&P or "A-2" or better by Moody's; and
(i) asset-backed remarketed certificates of participation
representing a fractional undivided interest in the assets of a trust,
which certificates are rated at least "A-1" by S&P and "P-1" by
Moody's.
"Employee Benefit Plan" means (i) any employee benefit plan,
including any Pension Plan, within the meaning of Section 3(3) of ERISA
which (A) is maintained for employees of the Borrower or any of its
ERISA Affiliates, or any Subsidiary or is assumed by the Borrower or
any of its ERISA Affiliates, or any Subsidiary in connection with any
Acquisition or (B) has at any time been maintained for the employees of
the Borrower, any current or former ERISA Affiliate, or any Subsidiary
and (ii) any plan, arrangement, understanding or scheme maintained by
the Borrower or any Subsidiary that provides retirement, deferred
8
<PAGE>
compensation, employee or retiree medical or life insurance, severance
benefits or any other benefit covering any employee or former employee
and which is administered under any Foreign Benefit Law or regulated by
any Governmental Authority other than the United States of America.
"Environmental Laws" means any federal, state or local
statute, law, ordinance, code, rule, regulation, order, decree, permit
or license regulating, relating to, or imposing liability or standards
of conduct concerning, any environmental matters or conditions,
environmental protection or conservation, including without limitation,
the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended; the Superfund Amendments and Reauthorization
Act of 1986, as amended; the Resource Conservation and Recovery Act, as
amended; the Toxic Substances Control Act, as amended; the Clean Air
Act, as amended; the Clean Water Act, as amended; together with all
regulations promulgated thereunder, and any other "Superfund" or
"Superlien" law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute and all
rules and regulations promulgated thereunder.
"ERISA Affiliate", as applied to the Borrower, means any
Person or trade or business which is a member of a group which is under
common control with the Borrower, who together with the Borrower, is
treated as a single employer within the meaning of Section 414(b) and
(c) of the Code.
"Eurodollar Rate Loan" means a Loan for which the rate of
interest is determined by reference to the Eurodollar Rate.
"Eurodollar Rate" means the interest rate per annum calculated
according to the following formula:
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
Eurodollar = Interbank Offered Rate + Applicable
----------------------
Rate 1- Reserve Requirement Margin
</TABLE>
"Event of Default" means any of the occurrences set forth as
such in Section 10.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the regulations promulgated thereunder.
"Existing Indebtedness" means the indebtedness of the Acquired
Company listed on Schedule 1.1.
"Facility Guaranty" means each Guaranty Agreement between one
or more Guarantors and the Administrative Agent for the benefit of the
Administrative Agent and the Lenders, delivered as of the Closing Date
and otherwise pursuant to Section 8.20, as the same may be amended,
modified or supplemented.
"Facility Termination Date" means such date as all of the
following shall have occurred: (a) the Borrower shall have permanently
terminated both of the Revolving Credit Facilities and the Swing Line
by payment in full of all Revolving Credit Outstandings and Letter of
Credit Outstandings and Swing Line Outstandings, together with all
accrued and unpaid interest thereon, except for the undrawn portion of
Letters of Credit as have been fully cash collateralized in a manner
consistent with the terms of Section 10.1(B), (b) all Swap Agreements
shall have been terminated, expired or cash collateralized, (c) all
Revolving Credit Commitments and Letter of Credit Commitments shall
have terminated or expired and (d) the Borrower shall have fully,
finally and irrevocably paid and satisfied in full all Obligations
9
<PAGE>
(other than Obligations consisting of continuing indemnities and other
contingent Obligations of the Borrower or any Guarantor that may be
owing to the Lenders pursuant to the Loan Documents and expressly
survive termination of this Agreement).
"FASB 133 Adjustments" means entries on or adjustments to any
balance sheet or statement of income in respect of derivatives or
hedging instruments as required or permitted by Statement of Financial
Accounting Standards No. 133.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to
the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such day; provided
that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and
(b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate
charged to the Administrative Agent (in its individual capacity) on
such day on such transactions as determined by the Administrative
Agent.
"Fiscal Year" means the twelve month fiscal period of the
Borrower and its Subsidiaries commencing on September 1 of each
calendar year and ending on August 31 of next succeeding calendar year.
"Foreign Benefit Law" means any applicable statute, law,
ordinance, code, rule, regulation, order or decree of any foreign
nation or any province, state, territory, protectorate or other
political subdivision thereof regulating, relating to, or imposing
liability or standards of conduct concerning, any Employee Benefit
Plan.
"Four-Quarter Period" means a period of four full consecutive
fiscal quarters of the Borrower and its Subsidiaries, taken together as
one accounting period.
"GAAP" or "Generally Accepted Accounting Principles" means
generally accepted accounting principles, being those principles of
accounting set forth in pronouncements of the Financial Accounting
Standards Board, the American Institute of Certified Public
Accountants, or which have other substantial authoritative support and
are applicable in the circumstances as of the date of a report.
"Government Securities" means direct obligations of, or
obligations the timely payment of principal and interest on which are
fully and unconditionally guaranteed by, the United States of America.
"Governmental Authority" shall mean any Federal, state,
municipal, national or other governmental department, commission,
board, bureau, court, agency or instrumentality or political
subdivision thereof or any entity or officer exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to any government or any court, in each case whether
associated with a state of the United States, the United States, or a
foreign entity or government.
"Guarantors" means, at any date, Domestic Subsidiaries, other
than any Receivables Subsidiaries, who are required to be parties to a
Facility Guaranty at such date.
"Hazardous Material" means and includes any pollutant,
contaminant, or hazardous, toxic or dangerous waste, substance or
material (including without limitation petroleum products,
asbestos-containing materials and lead), the generation, handling,
storage, transportation, disposal, treatment, release, discharge or
emission of which is subject to any Environmental Law.
10
<PAGE>
"Historical Financial Statements" means the consolidated
balance sheets and related consolidated statements of income and cash
flows for the Acquired Company and its subsidiaries for the fiscal
years ended December 31, 1997 and 1998, audited by independent public
accountants of recognized standing and prepared in accordance with
GAAP, and the unaudited consolidated balance sheet and related
consolidated statements of income and cash flows for the Acquired
Company and its subsidiaries for the 10-month period ended October 31,
1999, prepared in accordance with GAAP.
"Historical Pro Forma Financial Statements" means the
unaudited historical pro forma balance sheet and a statement of income
and cash flow prepared on a combined basis of the Borrower and its
Subsidiaries (giving pro forma effect to the MET-Rx Nutrition, Inc.
Acquisition for the Fiscal Year ended August 31, 1999.
"Indebtedness" means as to any Person, without duplication,
(a) all Indebtedness for Money Borrowed of such Person, (b) all Rate
Hedging Obligations of such Person, (c) all indebtedness secured by any
Lien on any property or asset owned or held by such Person regardless
or whether the indebtedness secured thereby shall have been assumed by
such Person or is non-recourse to the credit of such Person, and (d)
all Contingent Obligations of such Person.
"Indebtedness for Money Borrowed" means with respect to any
Person, without duplication, all indebtedness in respect of money
borrowed, including without limitation, all obligations under Capital
Leases, the deferred purchase price of any property or services, the
aggregate face amount of all surety bonds, letters of credit, and
bankers' acceptances, and (without duplication) all payment and
reimbursement obligations in respect thereof whether or not matured,
evidenced by a promissory note, bond, debenture or similar written
obligation for the payment of money (including reimbursement agreements
and conditional sales or similar title retention agreements), other
than trade payables and accrued expenses incurred in the ordinary
course of busineSection
"Interbank Offered Rate" means, with respect to any Eurodollar
Rate Loan for the Interest Period applicable thereto, the rate per
annum (rounded upwards, if necessary), to the nearest 1/100 of 1%)
appearing on Telerate Page 3750 (or any successor page) as the London
interbank offered rate for deposits in Dollars at approximately 11:00
A.M. (London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period. If for
any reason such rate is not available, the term "Interbank Offered
Rate" shall mean, with respect to any Eurodollar Rate Loan for the
Interest Period applicable thereto, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters
Screen LIBO Page as the London interbank offered rate for deposits in
Dollars at approximately 11:00 A.M. (London time) two Business Days
prior to the first day of such Interest Period for a term comparable to
such Interest Period, provided, however; if more than one rate is
specified on Reuters Screen LIBO Page, the applicable rate shall be the
arithmetic mean of all such rates (rounded upwards, if necessary, to
the nearest 1/100 of 1%).
"Interest Period" means, for each Eurodollar Rate Loan, a
period commencing on the date such Eurodollar Rate Loan is made or
Converted or Continued and ending, at the Borrower's option, on the
date one, two, three or six months thereafter as notified to the
Administrative Agent by the Authorized Representative in accordance
with the terms hereof; provided that,
(i) if an Interest Period for a Eurodollar Rate Loan
would end on a day which is not a Business Day, such Interest
Period shall be extended to the next Business Day (unless such
extension would cause the applicable Interest Period to end in
the succeeding calendar month, in which case such Interest
Period shall end on the next preceding Business Day); and
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<PAGE>
(ii) any Interest Period which begins on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Business Day of a calendar month.
"Interest Rate Selection Notice" means the written notice
delivered by an Authorized Representative in connection with the
election of a subsequent Interest Period for any Eurodollar Rate Loan
or the Conversion of any Eurodollar Rate Loan into a Base Rate Loan or
the Conversion of any Base Rate Loan into a Eurodollar Rate Loan, in
the form of Exhibit E.
"Issuing Bank" means Bank of America as issuer of Letters of
Credit under Article III.
"LC Account Agreement" means the LC Account Agreement dated as
of the date hereof between the Borrower and the Administrative Agent,
as amended, modified or supplemented from time to time.
"Letter of Credit" means a standby or commercial letter of
credit issued by the Issuing Bank pursuant to Article III hereof for
the account of the Borrower in favor of a Person advancing credit or
securing an obligation on behalf of the Borrower.
"Letter of Credit Commitment" means, with respect to each
Lender, the obligation of such Lender to acquire Participations in
respect of Letters of Credit and Reimbursement Obligations up to an
aggregate amount at any one time outstanding equal to such Lender's
Applicable Commitment Percentage of the Total Letter of Credit
Commitment as the same may be increased or decreased from time to time
pursuant to this Agreement.
"Letter of Credit Facility" means the facility described in
Article III hereof providing for the issuance by the Issuing Bank for
the account of the Borrower of Letters of Credit in an aggregate stated
amount at any time outstanding not exceeding the Total Letter of Credit
Commitment minus outstanding Reimbursement Obligations.
"Letter of Credit Outstandings" means, as of any date of
determination, the aggregate amount available to be drawn under all
Letters of Credit plus Reimbursement Obligations then outstanding.
"Lien" means any interest in property securing any obligation
owed to, or a claim by, a Person other than the owner of the property,
whether such interest is based on the common law, statute or contract,
and including but not limited to the lien or security interest arising
from a mortgage, encumbrance, pledge, security agreement, conditional
sale or trust receipt or a lease, consignment or bailment for security
purposes. For the purposes of this Agreement, the Borrower and any
Subsidiary shall be deemed to be the owner of any property which it has
acquired or holds subject to a conditional sale agreement, financing
lease, or other arrangement pursuant to which title to the property has
been retained by or vested in some other Person for security purposes.
"Loans" means, collectively, the Swing Line Loan and the
Revolving Loans.
"Loan Documents" means this Agreement, the Notes, the Facility
Guaranties, the LC Account Agreement, the Applications and Agreements
for Letter of Credit, and all other instruments and documents
heretofore or hereafter executed or delivered to or in favor of any
Lender (including the Issuing Bank) or the Administrative Agent in
connection with the Loans made and transactions contemplated under this
Agreement, as the same may be amended, supplemented or replaced from
the time to time.
12
<PAGE>
"Material Adverse Effect" means a material adverse effect on
(i) the business, properties, operations, prospects or condition,
financial or otherwise, of Borrower and its Subsidiaries, taken as a
whole, (ii) the ability of any Credit Party to pay or perform its
respective obligations, liabilities and indebtedness under the Loan
Documents as such payment or performance becomes due in accordance with
the terms thereof, (iii) the consummation of the MET-RX Nutrition, Inc.
Acquisition substantially simultaneously with the initial Advance or
(iv) the rights, powers and remedies of the Administrative Agent or any
Lender under any Loan Document or the validity, legality or
enforceability thereof.
"Maximum Available Amount" means (A) with respect to the 364
Day Facility, (i) as of the Closing Date, $19,166,666.67, and (ii) at
any time thereafter, the sum of $19,166,666.67 and the aggregate amount
of each increase in the Maximum Available Amount expressly provided for
in Section 2.5 as effected by assignments by Bank of America of any
portion of its 364 Day Commitment pursuant to an Assignment and
Acceptance in accordance with Section 12.1 at any time during which
Bank of America shall hold 364 Day Notes in a stated amount in excess
of $19,166,666.67 and (B) with respect to the Three Year Facility, (i)
as of the Closing Date, $95,833,333.33, and (ii) at any time
thereafter, the sum of $95,833,333.33 and the aggregate amount of each
increase in the Maximum Available Amount expressly provided for in
Section 2.5 as effected by assignments by Bank of America of any
portion of its Three Year Commitment pursuant to an Assignment and
Acceptance in accordance with Section 12.1 at any time during which
Bank of America shall hold Three Year Notes in a stated amount in
excess of $95,833,333.33; provided, however, that the Maximum Available
Amount with respect to the 364 Day Facility shall at no time exceed the
Total 364 Day Commitment and the Maximum Amount Available with respect
to the Three Year Facility shall at no time exceed the Total Three Year
Commitment.
"MET-Rx Nutrition, Inc. Acquisition" means the acquisition by
the Borrower of all of the capital stock of MET-Rx Nutrition, Inc. in
accordance with the Purchase Agreement.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA to which the Borrower or any ERISA
Affiliate is making, or is accruing an obligation to make,
contributions or has made, or been obligated to make, contributions
within the preceding six (6) Fiscal Years.
"Municipal Obligations" means general obligations issued by,
and supported by the full taxing authority of, any state of the United
States of America or of any municipal corporation or other public body
organized under the laws of any such state which are rated in the
highest investment rating category by both S&P and Moody's.
"Notes" means, collectively, the Three Year Notes, the 364 Day
Notes and the Swing Line Note .
"Obligations" means the obligations, liabilities and
Indebtedness of the Borrower with respect to (i) the principal and
interest on the Loans as evidenced by the Notes, (ii) the Reimbursement
Obligations and otherwise in respect of the Letters of Credit, (iii)
all liabilities of Borrower to any Lender (or any affiliate of any
Lender) which arise under a Swap Agreement, and (iv) the payment and
performance of all other obligations, liabilities and Indebtedness of
the Borrower to the Lenders (including the Issuing Bank), the
Administrative Agent or BAS hereunder, under any one or more of the
other Loan Documents or with respect to the Loans.
"Operating Documents" means with respect to any corporation,
limited liability company, partnership, limited partnership, limited
13
<PAGE>
liability partnership or other legally authorized incorporated or
unincorporated entity, the bylaws, operating agreement, partnership
agreement, limited partnership agreement or other applicable documents
relating to the operation, governance or management of such entity.
"Organizational Action" means with respect to any corporation,
limited liability company, partnership, limited partnership, limited
liability partnership or other legally authorized incorporated or
unincorporated entity, any corporate, organizational or partnership
action (including any required shareholder, member or partner action),
or other similar official action, as applicable, taken by such entity.
"Organizational Documents" means with respect to any
corporation, limited liability company, partnership, limited
partnership, limited liability partnership or other legally authorized
incorporated or unincorporated entity, the articles of incorporation,
certificate of incorporation, articles of organization, certificate of
limited partnership or other applicable organizational or charter
documents relating to the creation of such entity.
"Outstandings" means, collectively, at any date, the Letter of
Credit Outstandings, Swing Line Outstandings and Revolving Credit
Outstandings on such date.
"Participation" means, (i) with respect to any Lender (other
than the Issuing Bank) and a Letter of Credit, the extension of credit
represented by the participation of such Lender hereunder in the
liability of the Issuing Bank in respect of a Letter of Credit issued
by the Issuing Bank in accordance with the terms hereof and (ii) with
respect to any Lender (other than Bank of America) and a Swing Line
Loan, the extension of credit represented by the participation of such
Lender hereunder in the liability of Bank of America in respect of a
Swing Line Loan made by Bank of America in accordance with the terms
hereof.
"PBGC" means the Pension Benefit Guaranty Corporation and any
successor thereto.
"Pension Plan" means any employee pension benefit plan within
the meaning of Section 3(2) of ERISA, other than a Multiemployer Plan,
which is subject to the provisions of Title IV of ERISA or Section 412
of the Code and which (i) is maintained for employees of the Borrower
or any of its ERISA Affiliates or is assumed by the Borrower or any of
its ERISA Affiliates in connection with any Acquisition or (ii) has at
any time been maintained for the employees of the Borrower or any
current or former ERISA Affiliate.
"Permitted Receivables Securitization" means nonrecourse sales
and assignments of accounts receivable of the Borrower and its
Subsidiaries to one or more special purpose entities (which sales and
assignments constitute "true sales" under Statement of Financial
Accounting Standards No. 125), in connection with the issuance of
obligations by such special purpose entities (which may or may not be a
Receivables Subsidiary) secured by such accounts, the proceeds of the
issuance of which obligations shall be made available to the Borrower
at such rates of advance, and the obligations issued by such special
purpose entities shall be in such amount or amounts, bear such rate or
rates of interest, and be subject to such customary terms and
conditions, all as shall be reasonably acceptable to the Administrative
Agent; provided, however, that the maximum principal amount which may
be advanced at any time pursuant to the Permitted Receivables
Securitization shall not exceed $30,000,000.
"Person" means an individual, partnership, corporation,
limited liability company, limited liability partnership, trust,
unincorporated organization, association, joint venture or a government
or agency or political subdivision thereof.
"Pre-Refunded Municipal Obligations" means obligations of any
state of the United States of America or of any municipal corporation
14
<PAGE>
or other public body organized under the laws of any such state which
are rated, based on the escrow, in the highest investment rating
category by both S&P and Moody's and which have been irrevocably called
for redemption and advance refunded through the deposit in escrow of
Government Securities or other debt securities which are (i) not
callable at the option of the issuer thereof prior to maturity, (ii)
irrevocably pledged solely to the payment of all principal and interest
on such obligations as the same becomes due and (iii) in a principal
amount and bear such rate or rates of interest as shall be sufficient
to pay in full all principal of, interest, and premium, if any, on such
obligations as the same becomes due as verified by a nationally
recognized firm of certified public accountants.
"Prime Rate" means the per annum rate of interest established
from time to time by Bank of America as its prime rate, which rate may
not be the lowest rate of interest charged by Bank of America to its
customers.
"Principal Office" means the principal office of Bank of
America, presently located at 101 North Tryon Street, 15th Floor, NC1
001-15-04, Charlotte, North Carolina 28255, Attention: Agency Services,
or such other office and address located within the United States as
the Administrative Agent may from time to time designate.
"Purchase Agreement" means that certain Merger Purchase
Agreement dated as of December 10, 1999 by and among the Borrower, RSM
Acquisition Corp., MET-Rx Nutrition, Inc. and all the Stockholders of
MET-Rx Nutrition, Inc. (including all exhibits and schedules thereto),
providing for the acquisition of the capital stock of MET-Rx Nutrition,
Inc. for a purchase price not in excess of $108,000,000 (consisting of
approximately $77,500,000 for the acquisition of such capital stock and
approximately $30,500,000 for the prepayment of Existing Indebtedness)
in the form previously furnished to the Administrative Agent, with only
such amendments or modifications thereto as shall be consented to in
writing by the Administrative Agent, which consent shall not be
unreasonably withheld.
"Rate Hedging Obligations" means, without duplication, any and
all obligations of the Borrower or any Subsidiary (net of offsetting
assets, if any), whether absolute or contingent and howsoever and
whensoever created, arising, evidenced or acquired (including all
renewals, extensions and modifications thereof and substitutions
therefor), under (i) any and all agreements, devices or arrangements
designed to protect at least one of the parties thereto from the
fluctuations of interest rates, exchange rates or forward rates
applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, Dollar-denominated or
cross-currency interest rate exchange agreements, forward currency
exchange agreements, interest rate cap or collar protection agreements,
forward rate currency or interest rate options, puts, warrants and
those commonly known as interest rate "swap" agreements; (ii) all other
"derivative instruments" as defined in FASB 133 and which are subject
to the reporting requirements of FASB 133; and (iii) any and all
cancellations, buybacks, reversals, terminations or assignments of any
of the foregoing.
"Receivables Subsidiary" means any Subsidiary that is created
solely for the purpose of purchasing accounts receivable of the
Borrower and its Subsidiaries in connection with a Permitted
Receivables Securitization.
"Regulation D" means Regulation D of the Board as the same may
be amended or supplemented from time to time.
"Reimbursement Obligation" shall mean at any time, the
obligation of the Borrower with respect to any Letter of Credit to
reimburse the Issuing Bank and the Lenders to the extent of their
respective Participations (including by the receipt by the Issuing Bank
of proceeds of Loans pursuant to Section 2.1(d)(iii)) for amounts
theretofore paid by the Issuing Bank pursuant to a drawing under such
Letter of Credit.
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<PAGE>
"Repurchase Agreement" means a repurchase agreement entered
into with any financial institution whose debt obligations or
commercial paper are rated "A" by either of S&P or Moody's or "A-1" by
S&P or "P-1" by Moody's.
"Required Lenders" means, as of any date, Lenders on such date
having Credit Exposures (as defined below) aggregating (i) if there
shall be fewer than three (3) Lenders, 100% of the aggregate Credit
Exposures of all Lenders on such date, and (ii) if there shall be three
(3) or more Lenders, more than 50% of the aggregate "Credit Exposures"
of all the Lenders on such date. For purposes of the preceding
sentence, the amount of the "Credit Exposure" of each Lender shall be
equal at all times (a) other than following the occurrence and during
the continuance of an Event of Default, to the sum of its Revolving
Credit Commitment, and (b) following the occurrence and during the
continuance of an Event of Default, to the sum of (i) the aggregate
principal amount of such Lender's Applicable Commitment Percentage of
Revolving Credit Outstandings plus (ii) the amount of such Lender's
Applicable Commitment Percentage of Letter of Credit Outstandings and
Swing Line Outstandings; provided that, for the purpose of this
definition only, (A) if any Lender shall have failed to fund its
Applicable Commitment Percentage of any Advance, then the Revolving
Credit Commitment of such Lender shall be deemed reduced by the amount
it so failed to fund for so long as such failure shall continue and
such Lender's Credit Exposure attributable to such failure shall be
deemed held by any Lender making more than its Applicable Commitment
Percentage of such Advance to the extent it covers such failure, (B) if
any Lender shall have failed to pay to the Issuing Bank upon demand its
Applicable Commitment Percentage of any drawing under any Letter of
Credit resulting in an outstanding Reimbursement Obligation (whether by
funding its Participation therein or otherwise), such Lender's Credit
Exposure attributable to all Letter of Credit Outstandings shall be
deemed to be held by the Issuing Bank until such Lender shall pay such
deficiency amount to the Issuing Bank together with interest thereon as
provided in Section 4.9 and (C) if any Lender shall have failed to pay
to Bank of America on demand its Applicable Commitment Percentage of
any Swing Line Loan (whether by funding its Participation therein or
otherwise), such Lender's Credit Exposure attributable to all Swing
Line Outstandings shall be deemed to be held by Bank of America until
such Lender shall pay such deficiency amount to Bank of America
together with interest thereon as provided in Section 4.9.
"Reserve Requirement" means, at any time, the maximum rate at
which reserves (including, without limitation, any marginal, special,
supplemental, or emergency reserves) are required to be maintained
under regulations issued from time to time by the Board of Governors of
the Federal Reserve System (or any successor) by member banks of the
Federal Reserve System against "Eurocurrency liabilities" (as such term
is used in Regulation D). Without limiting the effect of the foregoing,
the Reserve Requirement shall reflect any other reserves required to be
maintained by such member banks with respect to (i) any category of
liabilities which includes deposits by reference to which the
Eurodollar Rate is to be determined, or (ii) any category of extensions
of credit or other assets which include Eurodollar Rate Loans. The
Eurodollar Rate shall be adjusted automatically on and as of the
effective date of any change in the Reserve Requirement.
"Restricted Payment" means (a) any dividend or other
distribution, direct or indirect, on account of any shares of any class
of stock of Borrower or any Subsidiary Securities of its Subsidiaries
(other than those payable or distributable solely to the Borrower or a
Subsidiary) now or hereafter outstanding, except a dividend payable
solely in shares of a class of stock to the holders of that class; (b)
any redemption, conversion, exchange, retirement or similar payment,
purchase or other acquisition for value, direct or indirect, of any
shares of any class of stock of Borrower or any of its Subsidiaries
(other than those payable or distributable solely to the Borrower or a
Subsidiary) now or hereafter outstanding; (c) any payment made to
retire, or to obtain the surrender of, any outstanding warrants,
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options or other rights to acquire shares of any class of stock of
Borrower or any Subsidiary Securities of its Subsidiaries now or
hereafter outstanding; and (d) any issuance and sale of Subsidiary
Securities of any Subsidiary of the Borrower (or any option, warrant or
right to acquire such stock) other than to the Borrower.
"Revolving Credit Commitment" means, with respect to each
Lender, the obligation of such Lender to make Revolving Loans to the
Borrower up to an aggregate principal amount at any one time
outstanding equal to such Lender's Applicable Commitment Percentage of
the Total Three Year Commitment or the Total 364 Day Commitment, as the
case may be.
"Revolving Credit Facilities" means the facilities described
in Sections 2.1(a) and (b) hereof providing for Loans to the Borrower
by the Lenders in the aggregate principal amount of the Total Revolving
Credit Commitment.
"Revolving Credit Outstandings" means, as of any date of
determination, the aggregate principal amount of all Revolving Loans
then outstanding.
"Revolving Loan" means any borrowing pursuant to an Advance
under either of the Revolving Credit Facilities in accordance with
Section 2.1.
"S&P" means Standard & Poor's Ratings Group, a division of The
McGraw-Hill Companies, Inc.
"Solvent" means, when used with respect to any Person, that at
the time of determination:
(i) the fair value of its assets (both at fair
valuation and at present fair saleable value on an orderly
basis) is in excess of the total amount of its liabilities,
including Contingent Obligations; and
(ii) it is then able and expects to be able to pay
its debts as they mature; and
(iii) it has capital sufficient to carry on its
business as conducted and as proposed to be conducted.
"Stated Three Year Termination Date" means January 6, 2003.
"Subsidiary" means any corporation or other entity in which
more than 50% of its outstanding Voting Securities or more than 50% of
all equity interests is owned directly or indirectly by the Borrower
and/or by one or more of the Borrower's Subsidiaries.
"Swap Agreement" means one or more agreements between the
Borrower and any Lender (or any affiliates of a Lender) with respect to
Indebtedness evidenced by any or all of the Notes, on terms mutually
acceptable to Borrower and such Person and approved by the Required
Lenders, which agreements create Rate Hedging Obligations.
"Swing Line" means the revolving line of credit established by
Bank of America in favor of the Borrower pursuant to Section 2.4.
"Swing Line Loans" means loans made by Bank of America to the
Borrower pursuant to Section 2.4.
"Swing Line Note" means the promissory note of the Borrower
evidencing the Swing Line executed and delivered to Bank of America as
provided in Section 2.3(c) substantially in the form of Exhibit F-3.
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"Swing Line Outstandings" means, as of any date of
determination, the aggregate principal amount of all Swing Line Loans
then outstanding.
"Termination Event" means: (i) a "Reportable Event" described
in Section 4043 of ERISA and the regulations issued thereunder (unless
the notice requirement has been waived by applicable regulation); or
(ii) the withdrawal of the Borrower or any ERISA Affiliate from a
Pension Plan during a plan year in which it was a "substantial
employer" as defined in Section 4001(a)(2) of ERISA or was deemed such
under Section 4062(e) of ERISA; or (iii) the termination of a Pension
Plan, the filing of a notice of intent to terminate a Pension Plan or
the treatment of a Pension Plan amendment as a termination under
Section 4041 of ERISA; or (iv) the institution of proceedings to
terminate a Pension Plan by the PBGC; or (v) any other event or
condition which would constitute grounds under Section 4042(a) of ERISA
for the termination of, or the appointment of a trustee to administer,
any Pension Plan; or (vi) the partial or complete withdrawal of the
Borrower or any ERISA Affiliate from a Multiemployer Plan; or (vii) the
imposition of a Lien pursuant to Section 412 of the Code or Section 302
of ERISA; or (viii) any event or condition which results in the
reorganization or insolvency of a Multiemployer Plan under Section 4241
or Section 4245 of ERISA, respectively; or (ix) any event or condition
which results in the termination of a Multiemployer Plan under Section
4041A of ERISA or the institution by the PBGC of proceedings to
terminate a Multiemployer Plan under Section 4042 of ERISA; or (x) any
event or condition with respect to any Employee Benefit Plan which is
regulated by any Foreign Benefit Law that results in the termination of
such Employee Benefit Plan or the revocation of such Employee Benefit
Plan's authority to operate under the applicable Foreign Benefit Law.
"364 Day Commitment" means, with respect to each Lender, the
obligation of such Lender to make Advances to the Borrower up to an
aggregate principal amount at any one time outstanding equal to such
Lender's Applicable Commitment Percentage of the 364 Day Facility.
"364 Day Facility" means the revolving credit facility
providing for Loans of up to the Total 364 Day Commitment to the
Borrower described in Section 2.1(a).
"364 Day Extension Date" means January 5, 2001 and each date
thereafter, if any, to which the 364 Day Termination Date has been
extended pursuant to Section 2.6, but in no event later than the Three
Year Termination Date.
"364 Day Loan" means a Loan or Advance made to the Borrower
pursuant to the 364 Day Facility.
"364 Day Notes" means, collectively, the promissory notes of
the Borrower evidencing Loans executed and delivered to the Lenders as
provided in Section 2.3(a) hereof substantially in the form attached
hereto as Exhibit F-1, with appropriate insertions as to amounts, dates
and names of Lenders.
"364 Day Outstandings" means the aggregate outstanding
principal amount of all 364 Day Loans.
"364 Day Termination Date" means the earlier of (i) the 364
Day Extension Date or (ii) the date of termination of Lenders'
obligations pursuant to Section 10.1 upon the occurrence of an Event of
Default, or (iii) such date as the Borrower may voluntarily permanently
terminate the 364 Day Facility by payment in full of all 364 Day
Outstandings and interest thereon, or (iv) the occurrence of the Three
Year Termination Date.
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"Three Year Commitment" means, with respect to each Lender,
the obligation of such Lender to make Advances to the Borrower up to an
aggregate principal amount at any one time outstanding equal to such
Lender's Applicable Commitment Percentage of the Total Three Year
Commitment.
"Three Year Facility" means the revolving credit facility
providing for loans of up to the Total Three Year Commitment to the
Borrower described in Section 2.1(b).
"Three Year Loan" means a Loan or Advance made to the Borrower
pursuant to the Three Year Facility.
"Three Year Notes" means, collectively, the promissory notes
of the Borrower evidencing Three Year Loans executed and delivered to
the Lenders as provided in Section 2.3(b) hereof substantially in the
form attached hereto as Exhibit F-2, with appropriate insertions as to
amounts, dates and names of Lenders.
"Three Year Outstandings" means the sum of (i) all outstanding
Three Year Loans, (ii) Letter of Credit Outstandings, and (iii) Swing
Line Outstandings, all as at the date of determination.
"Three Year Termination Date" means (i) the Stated Three Year
Termination Date or (ii) such earlier date of termination of Lenders'
obligations pursuant to Section 10.1 upon the occurrence of an Event of
Default or (iii) such date as the Borrower may voluntarily permanently
terminate the Three Year Facility (including the Swing Line Facility)
by payment in full of all outstanding Three Year Loans (including the
discharge of all Obligations to the Lenders and Bank of America with
respect to Letters of Credit, Participations and Swing Line Loans.
"Total Letter of Credit Commitment" means an amount not to
exceed $5,000,000.
"Total Revolving Credit Commitment" means the sum of Total 364
Day Commitment and the Total Three Year Commitment.
"Total 364 Day Commitment" means, on any date, a principal
amount equal to the Maximum Available Amount for the 364 Day Facility
on such date; provided, however, that the Total 364 Day Commitment
shall not exceed $25,000,000 and shall be reduced from time to time in
accordance with Section 2.1(f).
"Total Three Year Commitment" means, on any date, a principal
amount equal to the Maximum Available Amount for the Three Year
Facility on such date; provided, however, that the Total Three Year
Commitment shall not exceed $125,000,000, and shall be reduced from
time to time in accordance with Section 2.1(f).
"Transaction Documents" means collectively, the Purchase
Agreement and all other documents and instruments delivered in
connection therewith and with the consummation of the MET-Rx Nutrition,
Inc. Acquisition.
"Type" shall mean any type of Loan (i.e., a Base Rate Loan or
a Eurodollar Rate Loan).
"Voting Securities" means shares of capital stock issued by a
corporation, or equivalent interests in any other Person, the holders
of which are ordinarily, in the absence of contingencies, entitled to
vote for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been
suspended by the happening of such a contingency.
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"Year 2000 Compliant" means all computer applications
(including those affected by information received from its suppliers
and vendors) that are material to the Borrower's or any of its
Subsidiaries' business and operations are able to perform properly
date-sensitive functions involving all dates on and after January 1,
2000.
1.2. Rules of Interpretation.
(a) All accounting terms not specifically defined herein shall
have the meanings assigned to such terms and shall be interpreted in
accordance with GAAP applied on a Consistent Basis.
(b) Each term defined in Articles 1, 8 or 9 of the Florida
Uniform Commercial Code shall have the meaning given therein unless
otherwise defined herein, except to the extent that the Uniform
Commercial Code of another jurisdiction is controlling, in which case
such terms shall have the meaning given in the Uniform Commercial Code
of the applicable jurisdiction.
(c) The headings, subheadings and table of contents used
herein or in any other Loan Document are solely for convenience of
reference and shall not constitute a part of any such document or
affect the meaning, construction or effect of any provision thereof.
(d) Except as otherwise expressly provided, references in any
Loan Document to articles, sections, paragraphs, clauses, annexes,
appendices, exhibits and schedules are references to articles,
sections, paragraphs, clauses, annexes, appendices, exhibits and
schedules in or to such Loan Document.
(e) All definitions set forth herein or in any other Loan
Document shall apply to the singular as well as the plural form of such
defined term, and all references to the masculine gender shall include
reference to the feminine or neuter gender, and vice versa, as the
context may require.
(f) When used herein or in any other Loan Document, words such
as "hereunder", "hereto", "hereof" and "herein" and other words of like
import shall, unless the context clearly indicates to the contrary,
refer to the whole of the applicable document and not to any particular
article, section, subsection, paragraph or clause thereof.
(g) References to "including" means including without limiting
the generality of any description preceding such term, and for purposes
hereof the rule of ejusdem generis shall not be applicable to limit a
general statement, followed by or referable to an enumeration of
specific matters, to matters similar to those specifically mentioned.
(h) Except as otherwise expressly provided, all dates and
times of day specified herein shall refer to such dates and times at
Charlotte, North Carolina.
(i) Whenever interest rates or fees are established in whole
or in part by reference to a numerical percentage expressed as "___%",
such arithmetic expression shall be interpreted in accordance with the
convention that 1% = 100 basis points.
(j) Each of the parties to the Loan Documents and their
counsel have reviewed and revised, or requested (or had the opportunity
to request) revisions to, the Loan Documents, and any rule of
construction that ambiguities are to be resolved against the drafting
party shall be inapplicable in the construing and interpretation of the
Loan Documents and all exhibits, schedules and appendices thereto.
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(k) Any reference to an officer of the Borrower or any other
Person by reference to the title of such officer shall be deemed to
refer to each other officer of such Person, however titled, exercising
the same or substantially similar functions.
(l) All references to any agreement or document as amended,
modified or supplemented, or words of similar effect, shall mean such
document or agreement, as the case may be, as amended, modified or
supplemented from time to time only as and to the extent permitted
therein and in the Loan Documents.
1.3. Accounting Principles. If any change after the Closing Date in
GAAP as in effect on the Closing Date shall result in a change in any
calculation required to determine compliance with any provision contained in
this Agreement, the Borrower and the Lenders shall negotiate in good faith to
amend such provision in a manner to reflect such change such that the
determination of compliance with such provision shall yield the same substantive
result as would have obtained prior to such change in GAAP. Until such an
amendment is entered into, covenants shall be calculated in accordance with GAAP
as in effect immediately preceding such change.
ARTICLE II
The Credit Facilities
2.1. Revolving Loans.
(a) 364 Day Facility. Subject to the terms and conditions of
this Agreement, each Lender severally agrees to make Advances to the
Borrower, from time to time from the Closing Date until the 364 Day
Termination Date on a pro rata basis as to the total borrowing
requested by the Borrower under the 364 Day Facility on any day
determined by its Applicable Commitment Percentage with respect to the
364 Day Facility up to but not exceeding the 364 Day Commitment of such
Lender, provided, however, that the Lenders will not be required and
shall have no obligation to make any Advance (i) so long as a Default
or an Event of Default has occurred and is continuing or (ii) if the
Administrative Agent, in accordance with the terms of this Agreement,
has accelerated the maturity of the Notes as a result of an Event of
Default; provided further, however, that immediately after giving
effect to each Advance, the 364 Day Outstandings shall not exceed the
Total 364 Day Commitment. Within such limits, the Borrower may borrow,
repay and reborrow hereunder, on a Business Day from the Closing Date
until, but (as to borrowings and reborrowings) not including, the 364
Day Termination Date; provided, however, that (x) no Eurodollar Loan
shall be made which has an Interest Period that extends beyond the 364
Day Termination Date and (y) each Eurodollar Loan may, subject to the
provisions of Section 4.2, be repaid only on the last day of the
Interest Period with respect thereto unless such payment is accompanied
by the additional payment, if any, required by Section 5.5. The
Borrower agrees that if at any time the 364 Day Outstandings shall
exceed the Total 364 Day Commitment, the Borrower shall immediately
reduce the outstanding principal amount of the 364 Day Loans such that,
as a result of such reduction, the 364 Day Outstandings shall not
exceed the Total 364 Day Commitment.
(b) Three Year Facility. Subject to the terms and conditions
of this Agreement, each Lender severally agrees to make Advances to the
Borrower under the Three Year Facility from time to time from the
Closing Date until the Three Year Termination Date on a pro rata basis
as to the total borrowing requested by the Borrower on any day
determined by such Lender's Applicable Commitment Percentage with
respect to the Three Year Facility up to but not exceeding the Three
Year Commitment of such Lender, provided, however, that the Lenders
will not be required and shall have no obligation to make any such
Advance (i) so long as a Default or an Event of Default has occurred
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and is continuing or (ii) if the Administrative Agent has accelerated
the maturity of any of the Notes as a result of an Event of Default;
provided further, however, that immediately after giving effect to each
such Advance, the amount of Three Year Outstandings plus Letter of
Credit Outstandings plus Swing Line Outstandings shall not exceed the
Total Three Year Commitment. Within such limits and subject to the
other terms and conditions of this Agreement, the Borrower may borrow,
repay and reborrow under the Three Year Facility on a Business Day from
the Closing Date until, but (as to borrowings and reborrowings) not
including, the Three Year Termination Date; provided, however, that (x)
no Eurodollar Loan shall be made which has an Interest Period that
extends beyond the Three Year Termination Date and (y) each Eurodollar
Loan may, subject to the provisions of Section 4.2, be repaid only on
the last day of the Interest Period with respect thereto unless such
payment is accompanied by the additional payment, if any, required by
Section 5.5. The Borrower agrees that if at any time the Three Year
Outstandings shall exceed the Total Three Year Commitment, the Borrower
shall immediately reduce the outstanding principal amount of the Three
Year Loans such that, as a result of such reduction, the Three Year
Outstandings shall not exceed the Total Three Year Commitment.
(c) Amounts. (i) Except as otherwise permitted by the Lender
from time to time, the amount of 364 Day Outstandings shall not exceed
at any time the 364 Day Commitment, and in the event there shall be
outstanding any such excess, the Borrower shall immediately make such
payments and prepayments as shall be necessary to comply with the
restriction. Each Advance under the 364 Day Facility shall be in an
amount of at least $2,500,000, and, if greater than $2,500,000, an
integral multiple of $500,000, or an amount equal to the then entire
remaining amount available under the 364 Day Facility.
(ii) Except as otherwise permitted by the Lenders from time to
time, the amount of Three Year Outstandings plus Letter of Credit
Outstandings plus Swing Line Outstandings shall not exceed at any time
the Total Three Year Commitment, and, in the event there shall be
outstanding any such excess, the Borrower shall immediately make such
payments and prepayments as shall be necessary to comply with this
restriction. At no time shall the outstanding principal amount of Swing
Line Loans exceed $5,000,000. Each Advance under the Three Year
Facility, other than Base Rate Refunding Loans, shall be in an amount
of at least $2,500,000, and, if greater than $2,500,000, an integral
multiple of $500,000, or an amount equal to the then entire remaining
amount available under the Three Year Facility.
(d) Advances. (i) An Authorized Representative shall give the
Administrative Agent (1) at least three (3) Business Days' irrevocable
telephonic notice of each Eurodollar Rate Loan (whether representing an
additional borrowing or the Continuation of a borrowing hereunder or
the Conversion of a borrowing hereunder from a Base Rate Loan to a
Eurodollar Rate Loan) prior to 11:30 A.M. and (2) irrevocable
telephonic notice of each Base Rate Loan (other than Base Rate
Refunding Loans to the extent the same are effected without notice
pursuant to Section 2.1(d)(iii) and whether representing an additional
borrowing hereunder or the Conversion of borrowing hereunder from
Eurodollar Rate Loans to Base Rate Loans) prior to 11:30 A.M. on the
day of such proposed Revolving Loan. Each such notice shall be
effective upon receipt by the Administrative Agent, shall specify the
amount of the borrowing, the Revolving Credit Facility under which it
is requested, the Type of Revolving Loan (Base Rate or Eurodollar
Rate), the date of borrowing and, if a Eurodollar Rate Loan, the
Interest Period to be used in the computation of interest. The
Authorized Representative shall provide the Administrative Agent
written confirmation of each such telephonic notice in the form of a
Borrowing Notice in the form of Exhibit D-1 or Interest Rate Selection
Notice (as applicable) with appropriate insertions but failure to
provide such confirmation shall not affect the validity of such
telephonic notice. Notice of receipt of such Borrowing Notice or
Interest Rate Selection Notice, as the case may be, together with the
amount of each Lender's portion of an Advance requested thereunder,
shall be provided by the Administrative Agent to each Lender by
telefacsimile transmission with reasonable promptness, but (provided
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the Administrative Agent shall have received such notice by 11:30 A.M.)
not later than 1:00 P.M. on the same day as the Administrative Agent's
receipt of such notice.
(ii) Not later than 2:00 P.M. on the date specified for each
borrowing under this Section 2.1, each Lender shall, pursuant to the
terms and subject to the conditions of this Agreement, make the amount
of the Advance or Advances to be made by it on such day available by
wire transfer to the Administrative Agent in the amount of its pro rata
share, determined according to such Lender's Applicable Commitment
Percentage of the Revolving Loan or Revolving Loans to be made on such
day. Such wire transfer shall be directed to the Administrative Agent
at the Principal Office and shall be in the form of Dollars
constituting immediately available funds. The amount so received by the
Administrative Agent shall, subject to the terms and conditions of this
Agreement, be made available to the Borrower by delivery of the
proceeds thereof to the Borrower's Account or otherwise as shall be
directed in the applicable Borrowing Notice by the Authorized
Representative and reasonably acceptable to the Administrative Agent.
(iii) Notwithstanding the foregoing, if a drawing is made
under any Letter of Credit, such drawing is honored by the Issuing
Bank, and the Borrower shall not immediately fully reimburse the
Issuing Bank in respect of such drawing from other funds available to
the Borrower, (A) provided that the conditions to making a Revolving
Loan as herein provided shall then be satisfied, the Reimbursement
Obligation arising from such drawing shall be paid to the Issuing Bank
by the Administrative Agent without the requirement of notice to or
from the Borrower from immediately available funds which shall be
advanced as a Base Rate Refunding Loan to the Administrative Agent at
its Principal Office by each Lender under the Three Year Facility in an
amount equal to such Lender's Applicable Commitment Percentage of such
Reimbursement Obligation, and (B) if the conditions to making a
Revolving Loan as herein provided shall not then be satisfied, each of
the Lenders shall fund by payment to the Administrative Agent (for the
benefit of the Issuing Bank) at its Principal Office in immediately
available funds the purchase from the Issuing Bank of their respective
Participations in the related Reimbursement Obligation based on their
respective Applicable Commitment Percentages of the Total Letter of
Credit Commitment. If a drawing is presented under any Letter of Credit
in accordance with the terms thereof and the Borrower shall not
immediately reimburse the Issuing Bank in respect thereof, then notice
of such drawing or payment shall be provided promptly by the Issuing
Bank to the Administrative Agent and the Administrative Agent shall
provide notice to each Lender by telephone or telefacsimile
transmission. If notice to the Lenders of a drawing under any Letter of
Credit is given by the Administrative Agent at or before 12:00 noon on
any Business Day, each Lender shall either make a Base Rate Refunding
Loan or fund the purchase of its Participation as specified above in
the amount of such Lender's Applicable Commitment Percentage of such
drawing or payment and shall pay such amount to the Administrative
Agent for the account of the Issuing Bank at the Principal Office in
Dollars and in immediately available funds before 2:30 P.M. on the same
Business Day. If such notice to the Lenders is given by the
Administrative Agent after 12:00 noon on any Business Day, each Lender
shall either make such Base Rate Refunding Loan or fund such purchase
before 12:00 noon on the next following Business Day.
(e) Repayment of Revolving Loans. The principal amount of each
364 Day Loan and each Three Year Loan shall be due and payable to the
Administrative Agent for the benefit of each Lender in full on the 364
Day Termination Date, in the case of 364 Day Loans, and on the Three
Year Termination Date, in the case of Three Year Loans, or earlier as
specifically provided herein. The principal amount of any Revolving
Loan may be prepaid in whole or in part on any Business Day, upon (A)
at least three (3) Business Days' irrevocable telephonic notice in the
case of each Revolving Loan that is a Eurodollar Rate Loan from an
Authorized Representative (effective upon receipt) to the
Administrative Agent prior to 11:30 A.M. and (B) irrevocable telephonic
notice in the case of each Revolving Loan that is a Base Rate Loan from
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an Authorized Representative (effective upon receipt) to the
Administrative Agent prior to 10:30 A.M. on the day of such proposed
repayment. The Authorized Representative shall provide the
Administrative Agent written confirmation of each such telephonic
notice but failure to provide such confirmation shall not effect the
validity of such telephonic notice. All prepayments of 364 Day Loans
made by the Borrower shall be in the amount of $2,500,000 or such
greater amount which is an integral multiple of $500,000, or the amount
equal to all 364 Day Outstandings, or such other amount as necessary to
comply with Section 2.1(c). All prepayments of Three Year Loans made by
the Borrower shall be in the amount of $2,500,000 or such greater
amount which is an integral multiple of $500,000, or the amount equal
to all Three Year Outstandings, or such other amount as necessary to
comply with Section 2.1(c). All prepayments of Revolving Loans shall be
applied first to the payment of Three Year Outstandings and second to
the payment of 364 Day Outstandings.
(f) Reductions. The Borrower shall, by notice from an
Authorized Representative, have the right from time to time but not
more frequently than once each calendar month, upon not less than three
(3) Business Days' written notice to the Administrative Agent,
effective upon receipt, to reduce either the Total 364 Day Commitment
or the Total Three Year Commitment, or both; provided, however, that
any prepayments of Revolving Loans as a result of such reductions shall
be used first to reduce the Three Year Facility and second to reduce
the 364 Day Facility. The Administrative Agent shall give each Lender,
within one (1) Business Day of receipt of such notice, telefacsimile
notice, or telephonic notice (confirmed in writing), of such reduction.
Each such reduction shall be in the aggregate amount of $1,000,000 or
such greater amount which is in an integral multiple of $1,000,000, or
the remaining Total 364 Day Commitment or Total Three Year Commitment,
as the case may be, and shall permanently reduce the Total 364 Day
Commitment or Total Three Year Commitment, as the case may be. Each
reduction of the Total 364 Day Commitment shall be accompanied by
payment of the 364 Day Loans to the extent that the principal amount of
364 Day Loans exceeds the Total 364 Day Commitment after giving effect
to such reduction, together with accrued and unpaid interest on the
amount prepaid. Each reduction of the Total Three Year Commitment shall
be accompanied by payment of Three Year Loans to the extent the Three
Year Outstandings plus Letter of Credit Outstandings plus Swing Line
Outstandings exceeds the Total Three Year Commitment after giving
effect to such reduction, together with accrued and unpaid interest on
the amounts prepaid.
2.2. Use of Proceeds. The proceeds of the Loans made pursuant to the
Revolving Credit Facility hereunder shall be used by the Borrower (i) to pay the
approximately $108,000,000 purchase price for MET-Rx Nutrition, Inc. Acquisition
(consisting of approximately $77,500,000 for the acquisition of the capital
stock of the Acquired Company and approximately $30,500,000 for the prepayment
of Existing Indebtedness) pursuant to the Transaction Documents, (ii) to pay
fees and expenses incurred by the Borrower in connection with the MET-Rx
Nutrition, Inc. Acquisition and (iii) for general working capital needs and
other corporate purposes, including the making of Acquisitions and Capital
Expenditures permitted hereunder.
2.3. Notes.
(a) 364 Day Notes. 364 Day Loans made by each Lender shall be
evidenced by the 364 Day Note payable to the order of such Lender in
the respective amount of its Applicable Commitment Percentage of the
Total 364 Day Commitment, which 364 Day Note shall be dated the Closing
Date or a later date pursuant to an Assignment and Acceptance and shall
be duly completed, executed and delivered by the Borrower.
(b) Three Year Notes. Three Year Loans made by each Lender
shall be evidenced by the Three Year Note payable to the order of such
Lender in the respective amount of its Applicable Commitment Percentage
of the Total Three Year Commitment, which Three Year Note shall be
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dated the Closing Date or a later date pursuant to an Assignment and
Acceptance and shall be duly completed, executed and delivered by the
Borrower.
(c) Swing Line Note. The Swing Line Outstandings shall be
evidenced by a separate Swing Line Note payable to the order of the
Bank of America in the amount of the Swing Line, which Note shall be
dated the Closing Date and shall be duly completed, executed and
delivered by the Borrower.
2.4. Swing Line.
(a) Notwithstanding any other provision of this Agreement to
the contrary, in order to administer the Three Year Facility in an
efficient manner and to minimize the transfer of funds between the
Administrative Agent and the Lenders, Bank of America shall make
available Swing Line Loans to the Borrower prior to the Three Year
Termination Date. Bank of America shall not be obligated to make any
Swing Line Loan pursuant hereto (i) if to the actual knowledge of Bank
of America the Borrower is not in compliance with all the conditions to
the making of Revolving Loans set forth in this Agreement, (ii) if
after giving effect to such Swing Line Loan, the Swing Line
Outstandings exceed $5,000,000, or (iii) if after giving effect to such
Swing Line Loan, the sum of the Swing Line Outstandings, Three Year
Outstandings and Letter of Credit Outstandings exceeds the Total Three
Year Commitment. The Company may, subject to the conditions set forth
in the preceding sentence, borrow, repay and reborrow under this
Section 2.4. Unless notified to the contrary by Bank of America,
borrowings under the Swing Line shall be made in the minimum amount of
$100,000 or, if greater, in amounts which are integral multiples of
$100,000, or in the amount necessary to effect a Base Rate Refunding
Loan, upon written request by telefacsimile transmission, effective
upon receipt, by an Authorized Representative of the Borrower made to
Bank of America not later than 12:30 P.M. on the Business Day of the
requested borrowing. Each such Borrowing Notice shall specify the
amount of the borrowing and the date of borrowing, and shall be in the
form of Exhibit D-2, with appropriate insertions. Unless notified to
the contrary by Bank of America, each repayment of a Swing Line Loan
shall be in an amount which is an integral multiple of $100,000 or the
aggregate amount of all Swing Line Outstandings.
(b) The interest payable on Swing Line Loans is solely for the
account of Bank of America. Swing Line Loans shall bear interest solely
at the Base Rate. Swing Line Loans shall accrue interest (including
interest at the Default Rate on certain conditions), and all accrued
and unpaid interest on Swing Line Loans shall be payable, on the dates
and in the manner provided in Sections 4.3 with respect to interest on
Base Rate Loans.
(c) Upon the making of a Swing Line Loan, each Lender shall be
deemed to have purchased from Bank of America a Participation therein
in an amount equal to that Lender's Applicable Commitment Percentage of
such Swing Line Loan. Upon demand made by Bank of America, each Lender
shall, according to its Applicable Commitment Percentage of such Swing
Line Loan, promptly provide to Bank of America its purchase price
therefor in an amount equal to its Participation therein. Any Advance
made by a Lender pursuant to demand of Bank of America of the purchase
price of its Participation shall when made be deemed to be (i) provided
that the conditions to making Revolving Loans shall be satisfied, a
Base Rate Refunding Loan under Section 2.1(b), and (ii) in all other
cases, the funding by each Lender of the purchase price of its
Participation in such Swing Line Loan. The obligation of each Lender to
so provide its purchase price to Bank of America shall be absolute and
unconditional and shall not be affected by the occurrence of an Event
of Default or any other occurrence or event.
The Borrower, at its option and subject to the terms hereof,
may request an Advance pursuant to Section 2.1(b) in an amount
sufficient to repay Swing Line Outstandings on any date and the
Administrative Agent shall provide from the proceeds of such Advance to
Bank of America the amount necessary to repay such Swing Line
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Outstandings (which Bank of America shall then apply to such repayment)
and credit any balance of the Advance in immediately available funds in
the manner directed by the Borrower pursuant to Section 2.1(d)(ii). The
proceeds of such Advances shall be paid to Bank of America for
application to the Swing Line Outstandings and the Lenders shall then
be deemed to have made Loans in the amount of such Advances. The Swing
Line shall continue in effect until the Three Year Termination Date, at
which time all Swing Line Outstandings and accrued interest thereon
shall be due and payable in full.
2.5. Facility Increase. The Borrower has requested that BAS use its
best efforts to arrange for additional commitments in order to increase the
Maximum Available Amount with respect to the Revolving Credit Facilities from
$115,000,000 to $150,000,000 and in order to facilitate such increase Bank of
America and the Borrower have established the Total Revolving Credit Commitment
at $150,000,000 (consisting of a Maximum Available Amount with respect to the
364 Day Facility of $25,000,000 and with respect to the Three Year Facility of
$125,000,000). In the event that there shall be additional Persons which shall
elect to become Lenders hereunder, Bank of America and the Borrower agree as
follows:
(a) The first $75,000,000 of additional commitments shall be
applied to reduce the Revolving Credit Commitment of Bank of America on
a pro rata basis between its 364 Day Commitment and its Three Year
Commitment;
(b) the next $35,000,000 of additional commitments shall be
used to increase the Maximum Available Amount to $150,000,000
(consisting of a Maximum Available Amount with respect to the 364 Day
Facility of $25,000,000 and a Maximum Available Amount with respect to
the Three Year Facility of $125,000,000);
(c) any additional commitments originated by BAS in excess of
$110,000,000 may be used to further reduce the Revolving Credit
Commitment of Bank of America.
The addition of Lenders shall be accomplished by assignments
made by Bank of America pursuant to Section 12.1 hereof.
2.6. 364 Day Facility Extension.
(a) With the consent of the Lenders (the "Consenting Lenders")
having sixty-six and two-thirds percent (66-2/3%) or more of the
aggregate Credit Exposures of all Lenders (any Lender not so consenting
being referred to as a "Non-Consenting Lender"), at each 364 Day
Extension Date the Borrower can elect to extend the 364 Day Termination
Date for an additional period of 364 days commencing on such 364 Day
Extension Date; provided, however, that in no event shall the 364 Day
Termination Date be extended beyond the Three Year Termination Date.
(b) The Borrower shall notify the Lenders of its request for
such an extension by delivering to the Administrative Agent notice of
such request signed by an Authorized Representative not more than
seventy-five (75) days nor less than forty-five (45) days prior to the
applicable 364 Day Extension Date. Notice of receipt of such request
shall be provided by the Administrative Agent to the Lenders. The
Administrative Agent shall notify the Borrower in writing not later
than thirty (30) days nor more than forty-five (45) days prior to the
applicable 364 Day Extension Date of the decision of the Lenders.
Failure by any Lender to respond to a request for an extension shall
constitute a refusal of such Lender to give its consent to such
extension. Failure by the Administrative Agent to give such notice to
the Borrower as a result of not receiving the consent of Lenders having
sixty-six and two-thirds percent (66-2/3%) or more of the aggregate
Credit Exposures of all Lenders to such extension shall constitute
refusal by the Lenders to extend the 364 Day Termination Date.
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(c) If less than all of the Lenders consent to any such
request which has been approved pursuant to subsection (a) of this
Section 2.6, the Borrower shall arrange not less than fifteen (15) days
prior to the 364 Day Termination Date (the "Replacement Lender Date")
for one or more Consenting Lenders, or for one or more other banks or
financial institutions complying with the requirements set forth in
Section 12.1 and constituting an Eligible Assignee (any of the
foregoing referred to as an "Assuming Lender"), as of the 364 Day
Extension Date to effect an assignment of all of the 364 Day Commitment
of one or more Non-Consenting Lenders for a purchase price equal to the
aggregate principal balance of 364 Day Loans then owing to the
Non-Consenting Lender, plus accrued interest and fees owing to the
Non-Consenting Lender, as well as any amounts payable under Section
5.5. The Borrower shall deliver written notice to the Administrative
Agent and each Consenting Lender of such arrangement with any Assuming
Lender not less than fifteen (15) days prior to the 364 Day Termination
Date.
(d) On each 364 Day Extension Date, each Assuming Lender shall
become a Lender for all purposes under this Agreement and the other
Loan Documents without any further acknowledgment by or the consent of
the other Lenders; provided, however, that the Administrative Agent
shall have received not less than ten (10) days prior to such 364 Day
Extension Date an Assignment and Acceptance, effective as of such 364
Day Extension Date, from each Assuming Lender duly executed by such
Assuming Lender and the applicable Non-Consenting Lender with respect
to the 364 Day Facility. The Total 364 Day Commitment on the 364 Day
Extension Date shall be equal to the sum, without duplication, of the
364 Day Commitments of each Assuming Lender and each Consenting Lender.
(e) If on any 364 Day Extension Date the Borrower has not so
elected to extend the 364 Day Termination Date then in effect, or if
Consenting Lenders with sufficient Credit Exposures have not consented
to such extension, or if the Borrower shall not have satisfied
requirements of clause (c) of this Section 2.6 with respect to
Non-Consenting Lenders, then as of such 364 Day Termination Date, (i)
the Total 364 Day Commitment shall be reduced to zero, and (ii) all 364
Day Outstandings shall be due and payable in full.
ARTICLE III
Letters of Credit
3.1. Letters of Credit. The Issuing Bank agrees, subject to the terms
and conditions of this Agreement, upon request of the Borrower to issue from
time to time for the account of the Borrower Letters of Credit upon delivery to
the Issuing Bank of an Application and Agreement for Letter of Credit relating
thereto in form and content acceptable to the Issuing Bank; provided, that (i)
the Issuing Bank shall not be obligated to issue (or renew) any Letter of Credit
if it has been notified by the Administrative Agent or has actual knowledge that
a Default or Event of Default has occurred and is continuing, (ii) the Letter of
Credit Outstandings shall not exceed the Total Letter of Credit Commitment and
(iii) no Letter of Credit shall be issued (or renewed) if, after giving effect
thereto, Letter of Credit Outstandings plus Three Year Outstandings plus Swing
Line Outstandings shall exceed the Total Three Year Commitment. No Letter of
Credit shall have an expiry date (including all rights of the Borrower or any
beneficiary named in such Letter of Credit to require renewal) or payment date
occurring later than the earlier to occur of one year after the date of its
issuance or the seventh Business Day prior to the Stated Three Year Termination
Date.
3.2. Reimbursement and Participations.
(a) The Borrower hereby unconditionally agrees to pay to the
Issuing Bank immediately on demand at the Principal Office all amounts
required to pay all drafts drawn or purporting to be drawn under the
Letters of Credit and all reasonable expenses incurred by the Issuing
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Bank in connection with the Letters of Credit, and in any event and
without demand to place in possession of the Issuing Bank (which shall
include Advances under the Three Year Facility if permitted by Section
2.1 and Swing Line Loans if permitted by Section 2.4) sufficient funds
to pay all debts and liabilities arising under any Letter of Credit.
The Issuing Bank agrees to give the Borrower prompt notice of any
request for a draw under a Letter of Credit. The Issuing Bank may
charge any account the Borrower may have with it for any and all
amounts the Issuing Bank pays under a Letter of Credit, plus charges
and reasonable expenses as from time to time agreed to by the Issuing
Bank and the Borrower; provided that to the extent permitted by Section
2.1(d)(iii) and Section 2.4, amounts shall be paid pursuant to Advances
under the Three Year Facility or, if the Borrower shall elect, by Swing
Line Loans. The Borrower agrees to pay the Issuing Bank interest on any
Reimbursement Obligations not paid when due hereunder at the Default
Rate.
(b) In accordance with the provisions of Section 2.1(d), the
Issuing Bank shall notify the Administrative Agent of any drawing under
any Letter of Credit promptly following the receipt by the Issuing Bank
of such drawing.
(c) Each Lender (other than the Issuing Bank) shall
automatically acquire on the date of issuance thereof, a Participation
in the liability of the Issuing Bank in respect of each Letter of
Credit in an amount equal to such Lender's Applicable Commitment
Percentage of such liability, and to the extent that the Borrower is
obligated to pay the Issuing Bank under Section 3.2(a), each Lender
(other than the Issuing Bank) thereby shall absolutely, unconditionally
and irrevocably assume, and shall be unconditionally obligated to pay
to the Issuing Bank, its Applicable Commitment Percentage of the
liability of the Issuing Bank under such Letter of Credit in the manner
and with the effect provided in Section 2.1(d)(iii).
(d) Simultaneously with the making of each payment by a Lender
to the Issuing Bank pursuant to Section 2.1(d)(iii)(B), such Lender
shall, automatically and without any further action on the part of the
Issuing Bank or such Lender, acquire a Participation in an amount equal
to such payment (excluding the portion thereof constituting interest
accrued prior to the date the Lender made its payment) in the related
Reimbursement Obligation of the Borrower. Each Lender's obligation to
make payment to the Administrative Agent for the account of the Issuing
Bank pursuant to Section 2.1(d)(iii) and Section 3.2(c), and the right
of the Issuing Bank to receive the same, shall be absolute and
unconditional, shall not be affected by any circumstance whatsoever and
shall be made without any offset, abatement, withholding or reduction
whatsoever. In the event the Lenders have purchased Participations in
any Reimbursement Obligation as set forth above, then at any time
payment (in fully collected, immediately available funds) of such
Reimbursement Obligation, in whole or in part, is received by the
Issuing Bank from the Borrower, the Issuing Bank shall promptly pay to
each Lender an amount equal to its Applicable Commitment Percentage of
such payment from the Borrower.
(e) Promptly following the end of each calendar quarter, the
Issuing Bank shall deliver to the Administrative Agent a notice
describing the aggregate undrawn amount of all Letters of Credit at the
end of such quarter. Upon the request of any Lender from time to time,
the Issuing Bank shall deliver to the Administrative Agent, and the
Administrative Agent shall deliver to such Lender, any other
information reasonably requested by such Lender with respect to each
Letter of Credit outstanding.
(f) The issuance by the Issuing Bank of each Letter of Credit
shall, in addition to the conditions precedent set forth in Article VI,
be subject to the conditions that such Letter of Credit be in such form
and contain such terms as shall be reasonably satisfactory to the
Issuing Bank consistent with the then current practices and procedures
of the Issuing Bank with respect to similar letters of credit, and the
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Borrower shall have executed and delivered such other instruments and
agreements relating to such Letters of Credit as the Issuing Bank shall
have reasonably requested consistent with such practices and procedures
and shall not be in conflict with any of the express terms herein
contained. All Letters of Credit shall be issued pursuant to and
subject to the Uniform Customs and Practice for Documentary Credits,
1993 revision, International Chamber of Commerce Publication No. 500
or, if the Issuing Bank shall elect by express reference in an affected
Letter of Credit, the International Chamber of Commerce International
Standby Practices commonly referred to as "ISP98", or any subsequent
amendment or revision of either thereof.
(g) The Borrower agrees that the Issuing Bank may, in its sole
discretion, accept or pay, as complying with the terms of any Letter of
Credit, any drafts or other documents otherwise in order which may be
signed or issued by an administrator, executor, trustee in bankruptcy,
debtor in possession, assignee for the benefit of creditors,
liquidator, receiver, attorney in fact or other legal representative of
a party who is authorized under such Letter of Credit to draw or issue
any drafts or other documents.
(h) Without limiting the generality of the provisions of
Section 12.9, the Borrower hereby agrees to indemnify and hold harmless
the Issuing Bank, each other Lender and the Administrative Agent from
and against any and all claims and damages, losses, liabilities,
reasonable costs and expenses which the Issuing Bank, such other Lender
or the Administrative Agent may incur (or which may be claimed against
the Issuing Bank, such other Lender or the Administrative Agent) by any
Person by reason of or in connection with the issuance or transfer of
or payment or failure to pay under any Letter of Credit; provided that
the Borrower shall not be required to indemnify the Issuing Bank, any
other Lender or the Administrative Agent for any claims, damages,
losses, liabilities, costs or expenses to the extent, but only to the
extent, (i) caused by the willful misconduct or gross negligence of the
party to be indemnified or (ii) caused by the failure of the Issuing
Bank to pay under any Letter of Credit after the presentation to it of
a request for payment strictly complying with the terms and conditions
of such Letter of Credit, unless such payment is prohibited by any law,
regulation, court order or decree. The indemnification and hold
harmless provisions of this Section 3.2(h) shall survive repayment of
the Obligations, occurrence of the Facility Termination Date and
expiration or termination of this Agreement.
(i) Without limiting Borrower's rights as set forth in Section
3.2(h), the obligation of the Borrower to immediately reimburse the
Issuing Bank for drawings made under Letters of Credit and the Issuing
Bank's right to receive such payment shall be absolute, unconditional
and irrevocable, and such obligations of the Borrower shall be
performed strictly in accordance with the terms of this Agreement and
such Letters of Credit and the related Application and Agreement for
any Letter of Credit, under all circumstances whatsoever, including the
following circumstances:
(i) any lack of validity or enforceability of the
Letter of Credit, the obligation supported by the Letter of
Credit or any other agreement or instrument relating thereto
(collectively, the "Related LC Documents");
(ii) any amendment or waiver of or any consent to or
departure from all or any of the Related LC Documents;
(iii) the existence of any claim, setoff, defense
(other than the defense of payment in accordance with the
terms of this Agreement) or other rights which the Borrower
may have at any time against any beneficiary or any transferee
of a Letter of Credit (or any persons or entities for whom any
such beneficiary or any such transferee may be acting), the
Administrative Agent, the Lenders or any other Person, whether
in connection with the Loan Documents, the Related LC
Documents or any unrelated transaction;
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(iv) any breach of contract or other dispute between
the Borrower and any beneficiary or any transferee of a Letter
of Credit (or any persons or entities for whom such
beneficiary or any such transferee may be acting), the
Administrative Agent, the Lenders or any other Person;
(v) any draft, statement or any other document
presented under the Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect
whatsoever;
(vi) any delay, extension of time, renewal,
compromise or other indulgence or modification granted or
agreed to by the Administrative Agent, with or without notice
to or approval by the Borrower in respect of any of Borrower's
Obligations under this Agreement; or
(vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing.
ARTICLE IV
Eurodollar Funding, Fees, and Payment Conventions
4.1. Interest Rate Options. Eurodollar Rate Loans and Base Rate Loans
may be outstanding at the same time and, so long as no Default or Event of
Default shall have occurred and be continuing, the Borrower shall have the
option to elect the Type of Loan and the duration of the initial and any
subsequent Interest Periods and to Convert Revolving Loans in accordance with
Sections 2.1(d)(i) and 4.2, as applicable; provided, however, (a) there shall
not be outstanding at any one time Eurodollar Rate Loans having more than six
(6) different Interest Periods, (b) each Eurodollar Rate Loan (including each
Conversion into and each Continuation as a Eurodollar Rate Loan) shall be in an
amount of $2,500,000 or, if greater than $2,500,000, an integral multiple of
$500,000, and (c) no Eurodollar Rate Loan shall have an Interest Period that
extends beyond the 364 Day Termination Date in the case of a 364 Day Loan or the
Stated Three Year Termination Date in the case of a Three Year Loan. If the
Administrative Agent does not receive a Borrowing Notice or an Interest Rate
Selection Notice giving notice of election of the duration of an Interest Period
or of Conversion of any Loan to or Continuation of a Loan as a Eurodollar Rate
Loan by the time prescribed by Sections 2.1(d)(i) and 4.2, as applicable, the
Borrower shall be deemed to have elected to obtain or Convert such Loan to (or
Continue such Loan as) a Base Rate Loan until the Borrower notifies the
Administrative Agent in accordance with Section 4.2. The Borrower shall not be
entitled to elect to Continue any Loan as or Convert any Loan into a Eurodollar
Rate Loan if a Default or Event of Default shall have occurred and be
continuing.
4.2. Conversions and Elections of Subsequent Interest Periods. Subject
to the limitations set forth in the definition of "Interest Period" and in
Section 4.1 and Article V, the Borrower may:
(a) upon delivery of telephonic notice to the Administrative
Agent (which shall be irrevocable) on or before 10:30 A.M. on any
Business Day, Convert any Eurodollar Rate Loan to a Base Rate Loan on
the last day of the Interest Period for such Eurodollar Rate Loan; and
(b) provided that no Default or Event of Default shall have
occurred and be continuing, upon delivery of telephonic notice to the
Administrative Agent (which shall be irrevocable) on or before 10:30
A.M. three (3) Business Days' prior to the date of such Conversion or
Continuation:
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(i) elect a subsequent Interest Period for any
Eurodollar Rate Loan to begin on the last day of the then
current Interest Period for such Eurodollar Rate Loan; or
(ii) Convert any Base Rate Loan to a Eurodollar Rate
Loan on any Business Day.
Each such notice shall be effective upon receipt by the
Administrative Agent, shall specify the amount of the Eurodollar Rate
Loan affected, the Revolving Credit Facility under which such Revolving
Loans is or is to be outstanding and, if a Continuation as or
Conversion into a Eurodollar Rate Loan, the Interest Period to be used
in the computation of interest. The Authorized Representative shall
provide the Administrative Agent written confirmation of each such
telephonic notice in the form of a Borrowing Notice or Interest Rate
Selection Notice (as applicable) with appropriate insertions but
failure to provide such confirmation shall not affect the validity of
such telephonic notice. Notice of receipt of such Borrowing Notice or
Interest Rate Selection Notice, as the case may be, shall be provided
by the Administrative Agent to each Lender by telefacsimile
transmission with reasonable promptness, but (provided the
Administrative Agent shall have received such notice by 10:30 A.M.) not
later than 3:00 P.M. on the same day as the Administrative Agent's
receipt of such notice. All such Continuations or Conversions of Loans
shall be effected pro rata based on the Applicable Commitment
Percentages of the Lenders for the Revolving Credit Facility under
which such Loans are outstanding.
4.3. Payment of Interest. The Borrower shall pay interest on the
outstanding and unpaid principal amount of each Revolving Loan, commencing on
the first date of such Revolving Loan until such Revolving Loan shall be repaid,
at the applicable Base Rate or Eurodollar Rate as designated by the Borrower in
the related Borrowing Notice or Interest Rate Selection Notice or as otherwise
provided hereunder. Interest on each Revolving Loan shall be paid on the earlier
of (a) in the case of any Base Rate Loan, quarterly in arrears of the last
Business Day of each March, June, September and December, commencing on March
31, 2000, until the 364 Day Termination Date or the Three Year Termination Date,
as applicable, at which date the entire principal amount of and all accrued
interest on the 364 Day Loans or Three Year Loans, as applicable, shall be paid
in full, (b) in the case of any Eurodollar Rate Loan, on last day of the
applicable Interest Period for such Eurodollar Rate Loan and if such Interest
Period extends for more than three (3) months, at intervals of three (3) months
after the first day of such Interest Period, and (c) upon payment in full of the
related Revolving Loan; provided, however, that if any Event of Default shall
occur and be continuing, all amounts outstanding hereunder shall bear interest
thereafter until paid in full at the Default Rate.
4.4. Prepayments of Eurodollar Rate Loans. Whenever any payment of
principal shall be made in respect of any Loan hereunder, whether at maturity,
on acceleration, by optional or mandatory prepayment or as otherwise required or
permitted hereunder, with the effect that any Eurodollar Rate Loan shall be
prepaid in whole or in part prior to the last day of the Interest Period
applicable to such Eurodollar Rate Loan, such payment of principal shall be
accompanied by the additional payment, if any, required by Section 5.5.
4.5. Manner of Payment.
(a) Each payment of principal (including any prepayment) and
payment of interest and fees, and any other amount required to be paid
by or on behalf of the Borrower to the Lenders, the Issuing Bank, the
Administrative Agent, or Bank of America with respect to any Loan,
Letter of Credit, Reimbursement Obligation, or Swing Line Loan, shall
be made to the Administrative Agent at the Principal Office in Dollars
in immediately available funds without condition or deduction or for
any setoff, recoupment, deduction or counterclaim on or before 12:30
P.M. on the date such payment is due. Upon the request of the Borrower,
the Administrative Agent may, but shall not be obligated to, debit the
amount of such payment from any one or more ordinary deposit accounts
of the Borrower with the Administrative Agent.
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(b) Any payment made by or on behalf of the Borrower that is
not made both in Dollars in immediately available funds and prior to
12:30 P.M. on the date such payment is to be made shall constitute a
non-conforming payment. Any such non-conforming payment shall not be
deemed to be received until the later of (i) the time such funds become
available funds and (ii) the next Business Day. Any non-conforming
payment may constitute or become a Default or Event of Default as
otherwise provided herein. Interest shall continue to accrue at the
Default Rate on any principal or fees as to which no payment or a
non-conforming payment is made from the date such amount was due and
payable until the later of (i) the date such funds become available
funds or (ii) the next Business Day.
(c) In the event that any payment hereunder or under any of
the Notes becomes due and payable on a day other than a Business Day,
then such due date shall be extended to the next succeeding Business
Day unless provided otherwise under the definition of "Interest
Period"; provided, however, that interest shall continue to accrue
during the period of any such extension; and provided further, however,
that in no event shall any such due date be extended beyond the Three
Year Termination Date.
4.6. Fees.
(a) Commitment Fee. For the period beginning on the Closing
Date and ending on the Three Year Termination Date, the Borrower agrees
to pay to the Administrative Agent, for the pro rata benefit of the
Lenders based on their relevant Applicable Commitment Percentages,
commitment fees with respect to the 364 Day Facility and with respect
to the Three Year Facility equal to the relevant Applicable Commitment
Fee multiplied by (i) with respect to the 364 Day Facility, the average
daily amount by which the Total 364 Day Commitment exceeds the 364 Day
Outstandings and (ii) with respect to the Three Year Facility, the
average daily amount by which the Total Three Year Commitment exceeds
the sum of (A) Three Year Outstandings without giving effect to Swing
Line Outstandings plus (B) Letter of Credit Outstandings. Such fees
shall be due in arrears on the last Business Day of each March, June,
September and December, commencing March 31, 2000 to and on the 364 Day
Termination Date and on the Three Year Termination Date, as applicable.
Notwithstanding the foregoing, so long as any Lender fails to make
available any portion of its Revolving Credit Commitment when
requested, such Lender shall not be entitled to receive payment of its
pro rata share of such fee until such Lender shall make available such
portion.
(b) Letter of Credit Facility Fees. The Borrower shall pay to
the Administrative Agent, for the pro rata benefit of the Lenders based
on their Applicable Commitment Percentages for the Three Year Facility,
a fee on the aggregate amount available to be drawn on each outstanding
Letter of Credit at a rate equal to the Applicable Margin for
Eurodollar Rate Loans. Such fees shall be due with respect to each
Letter of Credit quarterly in arrears on the last day of each March,
June, September and December, the first such payment to be made on the
first such date occurring after the date of issuance of a Letter of
Credit.
(c) Letter of Credit Fronting and Administrative Fees. From
and after the date on which there is more than one Lender, the Borrower
shall pay to the Issuing Bank a fronting fee of one-eighth of one
percent per annum (.125%) on the aggregate amount available to be drawn
on each outstanding Letter of Credit, such fee to be payable quarterly
in arrears with respect to each Letter of Credit on the dates
established in Section 4.6(b) for the payment of Letter of Credit
facility fees with respect to such Letter of Credit. The Borrower shall
also pay to the Issuing Bank such administrative fee and other fees, if
any, in connection with the Letters of Credit in such amounts and at
such times as the Issuing Bank and the Borrower shall agree from time
to time.
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(d) Administrative Agent Fees. The Borrower agrees to pay to
the Administrative Agent, for the Administrative Agent's individual
account, an annual Administrative Agent's fee, such fee to be payable
in such amounts and at such dates as from time to time agreed to by the
Borrower and Administrative Agent in writing.
(e) Syndication Costs and Fees. The Borrower agrees to pay to
the Administrative Agent, for the benefit of the Lenders, any breakage
costs, charges or fees incurred with respect to Eurodollar Rate Loans
made by the Lenders during the 180-day period following the Closing
Date in connection with the syndication of the Revolving Credit
Facilities by BAS after the Closing Date as contemplated in Section
2.5. The Borrower acknowledges and agrees that during such period the
incurrence of such costs will not be a basis for withholding consent as
to a proposed lender as an Eligible Assignee.
4.7. Pro Rata Payments. Except as otherwise specified herein, (a) each
payment on account of the principal of and interest on Loans, the fees described
in Section 4.6(a) and (b), and Swing Line Loans and Reimbursement Obligations as
to which the Lenders have funded their respective Participations which remain
outstanding, shall be made to the Administrative Agent for the account of the
Lenders pro rata based on their relevant Applicable Commitment Percentages, and
(b) the Administrative Agent will promptly distribute to the Lenders in
immediately available funds payments received in fully collected, immediately
available funds from the Borrower.
4.8. Computation of Rates and Fees. Except as may be otherwise
expressly provided, all interest rates (including the Base Rate, each Eurodollar
Rate, and the Default Rate) and fees shall be computed on the basis of a year of
360 days and calculated for actual days elapsed.
4.9. Deficiency Advances; Failure to Purchase Participations. No Lender
shall be responsible for any default of any other Lender in respect to such
other Lender's obligation to make any Loan or Advance hereunder or to fund its
purchase of any Participation hereunder nor shall the 364 Day Commitment or
Three Year Commitment or Letter of Credit Commitment of any Lender hereunder be
increased as a result of such default of any other Lender. Without limiting the
generality of the foregoing or the provisions of Section 4.10, in the event any
Lender shall fail to advance funds to the Borrower as herein provided, the
Administrative Agent may in its discretion, but shall not be obligated to,
advance under the applicable Note in its favor as a Lender all or any portion of
such amount or amounts (each, a "deficiency advance") and shall thereafter be
entitled to payments of principal of and interest on such deficiency advance in
the same manner and at the same interest rate or rates to which such other
Lender would have been entitled had it made such Advance under its Note;
provided that, (i) such defaulting Lender shall not be entitled to receive
payments of principal, interest or fees with respect to such deficiency advance
until such deficiency advance (together with interest thereon as provided in
clause (ii)) shall be paid by such Lender and (ii) upon payment to the
Administrative Agent from such other Lender of the entire outstanding amount of
each such deficiency advance, together with accrued and unpaid interest thereon,
from the most recent date or dates interest was paid to the Administrative Agent
by the Borrower on each Loan comprising the deficiency advance at the Federal
Funds Rate, then such payment shall be credited against the applicable Note of
the Administrative Agent in full payment of such deficiency advance and the
Borrower shall be deemed to have borrowed the amount of such deficiency advance
from such other Lender as of the most recent date or dates, as the case may be,
upon which any payments of interest were made by the Borrower thereon. In the
event any Lender shall fail to fund its purchase of a Participation after notice
from the Issuing Bank or Bank of America as the Swing Line lender, as
applicable, such Lender shall pay to the Issuing Bank or Bank of America as the
Swing Line lender, as applicable, such amount on demand, together with interest
on the amount so due from the date of such notice at the Federal Funds Rate on
the date such purchase price is received by the Issuing Bank or Bank of America
as the Swing Line lender, as applicable.
4.10. Intraday Funding. Without limiting the provisions of Section 4.9,
unless the Borrower or any Lender has notified the Administrative Agent not
later than 12:00 Noon of the Business Day before the date any payment (including
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in the case of Lenders any Advance) to be made by it is due, that it does not
intend to remit such payment, the Administrative Agent may, in its discretion,
assume that the Borrower or each Lender, as the case may be, has timely remitted
such payment in the manner required hereunder and may, in its discretion and in
reliance thereon, make available such payment (or portion thereof) to the Person
entitled thereto as otherwise provided herein. If such payment was not in fact
remitted to the Administrative Agent in the manner required hereunder, then:
(i) if the Borrower failed to make such payment, each Lender
shall forthwith on demand repay to the Administrative Agent the amount
of such assumed payment made available to such Lender, together with
interest thereon in respect of each day from and including the date
such amount was made available by the Administrative Agent to such
Lender to the date such amount is repaid to the Administrative Agent at
the Federal Funds Rate; and
(ii) if any Lender failed to make such payment, the
Administrative Agent shall be entitled to recover such corresponding
amount forthwith upon the Administrative Agent's demand therefor, the
Administrative Agent promptly shall notify the Borrower, and the
Borrower shall promptly pay such corresponding amount to the
Administrative Agent in immediately available funds upon receipt of
such demand. The Administrative Agent also shall be entitled to recover
interest on such corresponding amount in respect of each day from the
date such corresponding amount was made available by the Administrative
Agent to the Borrower to the date such corresponding amount is
recovered by the Administrative Agent, (A) from such Lender at a rate
per annum equal to the daily Federal Funds Rate or (B) from the
Borrower, at a rate per annum equal to the interest rate applicable to
the Loan which includes such corresponding amount. Until the
Administrative Agent shall recover such corresponding amount together
with interest thereon, such corresponding amount shall constitute a
deficiency advance within the meaning of Section 4.9. Nothing herein
shall be deemed to relieve any Lender from its obligation to fulfill
its commitments hereunder or to prejudice any rights which the
Administrative Agent or the Borrower may have against any Lender as a
result of any default by such Lender hereunder.
ARTICLE V
Change in Circumstances
5.1. Increased Cost and Reduced Return.
(a) If, after the date hereof, the adoption of any applicable
law, rule, or regulation, or any change in any applicable law, rule, or
regulation, or any change in the interpretation or administration
thereof by any governmental authority, central bank, or comparable
agency charged with the interpretation or administration thereof, or
compliance by any Lender (or its Applicable Lending Office) with any
request or directive (whether or not having the force of law) of any
such governmental authority, central bank, or comparable agency:
(i) shall subject such Lender (or its Applicable
Lending Office) to any tax, duty, or other charge with respect
to any Eurodollar Rate Loans, its Note, or its obligation to
make Eurodollar Rate Loans, or change the basis of taxation of
any amounts payable to such Lender (or its Applicable Lending
Office) under this Agreement or its Note in respect of any
Eurodollar Rate Loans (other than taxes imposed on the overall
net income of such Lender by the jurisdiction in which such
Lender has its principal office or such Applicable Lending
Office);
(ii) shall impose, modify, or deem applicable any
reserve, special deposit, assessment, or similar requirement
(other than the Reserve Requirement utilized in the
determination of the Eurodollar Rate) relating to any
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extensions of credit or other assets of, or any deposits with
or other liabilities or commitments of, such Lender (or its
Applicable Lending Office), including the Revolving Credit
Commitment of such Lender hereunder; or
(iii) shall impose on such Lender (or its Applicable
Lending Office) or on the London interbank market any other
condition affecting this Agreement or its Note or any of such
extensions of credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such
Lender (or its Applicable Lending Office) of making, Converting into,
Continuing, or maintaining any Loans or to reduce any sum received or
receivable by such Lender (or its Applicable Lending Office) under this
Agreement or its Note with respect to any Eurodollar Rate Loans, then
the Borrower shall pay to such Lender on demand such amount or amounts
as will compensate such Lender for such increased cost or reduction. If
any Lender requests compensation by the Borrower under this Section
5.1(a), the Borrower may, by notice to such Lender (with a copy to the
Administrative Agent), suspend the obligation of such Lender to make or
Continue Loans of the Type with respect to which such compensation is
requested, or to Convert Loans of any other Type into Loans of such
Type, until the event or condition giving rise to such request ceases
to be in effect (in which case the provisions of Section 5.4 shall be
applicable); provided that such suspension shall not affect the right
of such Lender to receive the compensation so requested.
(b) If, after the date hereof, any Lender shall have
determined that the adoption of any applicable law, rule, or regulation
regarding capital adequacy or any change therein or in the
interpretation or administration thereof by any governmental authority,
central bank, or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital
adequacy (whether or not having the force of law) of any such
governmental authority, central bank, or comparable agency, has or
would have the effect of reducing the rate of return on the capital of
such Lender or any corporation controlling such Lender as a consequence
of such Lender's obligations hereunder to a level below that which such
Lender or such corporation could have achieved but for such adoption,
change, request, or directive (taking into consideration its policies
with respect to capital adequacy), then from time to time upon demand
the Borrower shall pay to such Lender such additional amount or amounts
as will compensate such Lender for such reduction.
(c) Each Lender shall promptly notify the Borrower and the
Administrative Agent of any event of which it has knowledge, occurring
after the date hereof, which will entitle such Lender to compensation
pursuant to this Section 5.1 and will designate a different Applicable
Lending Office if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the judgment of such
Lender, be otherwise disadvantageous to it. Any Lender claiming
compensation under this Section 5.1 shall furnish to the Borrower and
the Administrative Agent a statement setting forth the additional
amount or amounts to be paid to it hereunder which shall be conclusive
in the absence of manifest error and the basis therefore. In
determining such amount, such Lender may use any reasonable averaging
and attribution methods.
5.2. Limitation on Types of Loans. If on or prior to the first day of
any Interest Period for any Eurodollar Rate Loan:
(a) the Administrative Agent determines (which determination
shall be conclusive) that by reason of circumstances affecting the
relevant market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for such Interest Period; or
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(b) the Required Lenders determine (which determination shall
be conclusive) and notify the Administrative Agent that the Eurodollar
Rate will not adequately and fairly reflect the cost to the Lenders of
funding Eurodollar Rate Loans for such Interest Period;
then the Administrative Agent shall give the Borrower prompt notice thereof
specifying the relevant Type of Loans and the relevant amounts or periods, and
so long as such condition remains in effect, the Lenders shall be under no
obligation to make additional Loans of such Type, Continue Loans of such Type,
or to Convert Loans of any other Type into Loans of such Type and the Borrower
shall, on the last day(s) of the then current Interest Period(s) for the
outstanding Loans of the affected Type, either prepay such Loans or Convert such
Loans into another Type of Loan in accordance with the terms of this Agreement.
5.3. Illegality. Notwithstanding any other provision of this Agreement,
in the event that it becomes unlawful for any Lender or its Applicable Lending
Office to make, maintain, or fund Eurodollar Rate Loans hereunder, then such
Lender shall promptly notify the Borrower thereof and such Lender's obligation
to make or Continue Eurodollar Rate Loans and to Convert other Types of Loans
into Eurodollar Rate Loans shall be suspended until such time as such Lender may
again make, maintain, and fund Eurodollar Rate Loans (in which case the
provisions of Section 5.4 shall be applicable).
5.4. Treatment of Affected Loans. If the obligation of any Lender to
make a Eurodollar Rate Loan or to Continue, or to Convert Loans of any other
Type into, Loans of a particular Type shall be suspended pursuant to Section 5.1
or 5.3 hereof (Loans of such Type being herein called "Affected Loans" and such
Type being herein called the "Affected Type"), such Lender's Affected Loans
shall be automatically Converted into Base Rate Loans on the last day(s) of the
then current Interest Period(s) for Affected Loans (or, in the case of a
Conversion required by Section 5.3 hereof, on such earlier date as such Lender
may specify to the Borrower with a copy to the Administrative Agent) and, unless
and until such Lender gives notice as provided below that the circumstances
specified in Section 5.1 or 5.3 hereof that gave rise to such Conversion no
longer exist:
(a) to the extent that such Lender's Affected Loans have been
so Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's Affected Loans shall be applied
instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by
such Lender as Loans of the Affected Type shall be made or Continued
instead as Base Rate Loans, and all Loans of such Lender that would
otherwise be Converted into Loans of the Affected Type shall be
Converted instead into (or shall remain as) Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Administrative
Agent) that the circumstances specified in Section 5.1 or 5.3 hereof that gave
rise to the Conversion of such Lender's Affected Loans pursuant to this Section
5.4 no longer exist (which such Lender agrees to do promptly upon such
circumstances ceasing to exist) at a time when Loans of the Affected Type made
by other Lenders are outstanding, such Lender's Base Rate Loans shall be
automatically Converted, on the first day(s) of the next succeeding Interest
Period(s) for such outstanding Loans of the Affected Type, to the extent
necessary so that, after giving effect thereto, all Loans held by the Lenders
holding Loans of the Affected Type and by such Lender are held pro rata (as to
principal amounts, Types, and Interest Periods) in accordance with their
respective Revolving Credit Commitments.
5.5. Compensation. Upon the request of any Lender, the Borrower shall
pay to such Lender such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost, or
expense (including loss of anticipated profits) incurred by it as a result of:
(a) any payment, prepayment, or Conversion of a Eurodollar
Rate Loan for any reason (including, without limitation, the
acceleration of the Loans pursuant to Section 10.1) on a date other
than the last day of the Interest Period for such Loan; or
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(b) any failure by the Borrower for any reason (including,
without limitation, the failure of any condition precedent specified in
Article VI to be satisfied) to borrow, Convert, Continue, or prepay a
Eurodollar Rate Loan on the date for such borrowing, Conversion,
Continuation, or prepayment specified in the relevant notice of
borrowing, prepayment, Continuation, or Conversion under this
Agreement.
5.6. Taxes.
(a) Any and all payments by the Borrower to or for the account
of any Lender or the Administrative Agent hereunder or under any other
Loan Document shall be made free and clear of and without deduction for
any and all present or future taxes, duties, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Lender and the Administrative
Agent, taxes imposed on its income, and franchise taxes imposed on it,
by the jurisdiction under the laws of which such Lender (or its
Applicable Lending Office) or the Administrative Agent (as the case may
be) is organized or any political subdivision thereof (all such
non-excluded taxes, duties, levies, imposts, deductions, charges,
withholdings, and liabilities being hereinafter referred to as
"Taxes"). If the Borrower shall be required by law to deduct any Taxes
from or in respect of any sum payable under this Agreement or any other
Loan Document to any Lender or the Administrative Agent, (i) the sum
payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums
payable under this Section 5.6) such Lender or the Administrative Agent
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions,
(iii) the Borrower shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable
law, and (iv) the Borrower shall furnish to the Administrative Agent,
at its address referred to in Section 12.2, the original or a certified
copy of a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any and all
present or future stamp or documentary taxes and any other excise or
property taxes or charges or similar levies which arise from any
payment made under this Agreement or any other Loan Document or from
the execution or delivery of, or otherwise with respect to, this
Agreement or any other Loan Document (hereinafter referred to as "Other
Taxes").
(c) The Borrower agrees to indemnify each Lender and the
Administrative Agent for the full amount of Taxes and Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed or
asserted by any jurisdiction on amounts payable under this Section 5.6)
paid by such Lender or the Administrative Agent (as the case may be)
and any liability (including penalties, interest, and expenses) arising
therefrom or with respect thereto.
(d) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and
delivery of this Agreement in the case of each Lender listed on the
signature pages hereof and on or prior to the date on which it becomes
a Lender in the case of each other Lender, and from time to time
thereafter if requested in writing by the Borrower or the
Administrative Agent (but only so long as such Lender remains lawfully
able to do so), shall provide the Borrower and the Administrative Agent
with (i) Internal Revenue Service Form 1001 or 4224, as appropriate, or
any successor form prescribed by the Internal Revenue Service,
certifying that such Lender is entitled to benefits under an income tax
treaty to which the United States is a party which reduces the rate of
withholding tax on payments of interest or certifying that the income
receivable pursuant to this Agreement is effectively connected with the
conduct of a trade or business in the United States, (ii) Internal
Revenue Service Form W-8 (including Form W-8BEN or W-8EC1) or W-9, as
appropriate, or any successor form prescribed by the Internal Revenue
Service, and (iii) any other form or certificate required by any taxing
authority (including any certificate required by Sections 871(h) and
881(c) of the Internal Revenue Code), certifying that such Lender is
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entitled to an exemption from or a reduced rate of tax on payments
pursuant to this Agreement or any of the other Loan Documents.
(e) For any period with respect to which a Lender has failed
to provide the Borrower and the Administrative Agent with the
appropriate form pursuant to Section 5.6(d) (unless such failure is due
to a change in treaty, law, or regulation occurring subsequent to the
date on which a form originally was required to be provided), such
Lender shall not be entitled to indemnification under Section 5.6(a) or
5.6(b) with respect to Taxes imposed by the United States; provided,
however, that should a Lender, which is otherwise exempt from or
subject to a reduced rate of withholding tax, become subject to Taxes
because of its failure to deliver a form required hereunder, the
Borrower shall take such steps as such Lender shall reasonably request
to assist such Lender to recover such Taxes.
(f) If the Borrower is required to pay additional amounts to
or for the account of any Lender pursuant to this Section 5.6, then
such Lender will agree to use reasonable efforts to change the
jurisdiction of its Applicable Lending Office so as to eliminate or
reduce any such additional payment which may thereafter accrue if such
change, in the judgment of such Lender, is not otherwise
disadvantageous to such Lender.
(g) Within thirty (30) days after the date of any payment of
Taxes, the Borrower shall furnish to the Administrative Agent the
original or a certified copy of a receipt evidencing such payment.
(h) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the
Borrower contained in this Section 5.6 shall survive the termination of
the Revolving Credit Commitments and the payment in full of the Notes
and the Facility Termination Date.
ARTICLE VI
Conditions to Making Loans and Issuing Letters of Credit
6.1. Conditions of Initial Advance. The obligation of the Lenders to
make the initial Advance under the Revolving Credit Facilities, and of the
Issuing Bank to issue any Letter of Credit, and of Bank of America to make any
Swing Line Loan, is subject to the conditions precedent that:
(a) the Administrative Agent shall have received on the
Closing Date, in form and substance satisfactory to the Administrative
Agent and Lenders, the following:
(i) executed originals of each of this Agreement, the
Notes, the initial Facility Guaranties of all Domestic
Subsidiaries, other than any Receivables Subsidiaries,
existing on the Closing Date including the Acquired Company
and its subsidiaries, the LC Account Agreement, the other Loan
Documents, together with all schedules and exhibits thereto;
(ii) the favorable written opinion or opinions with
respect to the Loan Documents and the transactions
contemplated thereby of special counsel to the Credit Parties
dated the Closing Date, addressed to the Administrative Agent
and the Lenders and satisfactory to Smith Helms Mulliss &
Moore, L.L.P., special counsel to the Administrative Agent,
substantially in the form of Exhibit G;
(iii) resolutions of the boards of directors or other
appropriate governing body (or of the appropriate committee
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thereof) of each Credit Party certified by its secretary or
assistant secretary as of the Closing Date, approving and
adopting the Loan Documents to be executed by such Person, and
authorizing the execution and delivery thereof;
(iv) specimen signatures of officers or other
appropriate representatives executing the Loan Documents on
behalf of each of the Credit Parties, certified by the
secretary or assistant secretary of such Credit Party;
(v) the Organizational Documents of each of the
Credit Parties certified as of a recent date by the Secretary
of State of its state of organization;
(vi) Operating Documents of each of the Credit
Parties certified as of the Closing Date as true and correct
by its secretary or assistant secretary;
(vii) certificates issued as of a recent date by the
Secretaries of State of the respective jurisdictions of
formation of each of the Credit Parties as to the due
existence and good standing of such Person;
(viii) appropriate certificates of qualification to
do business, good standing and, where appropriate, authority
to conduct business under assumed name, issued in respect of
each of the Credit Parties as of a recent date by the
Secretary of State or comparable official of each jurisdiction
in which the failure to be qualified to do business or
authorized so to conduct business could have a Material
Adverse Effect;
(ix) notice of appointment of the initial Authorized
Representative(s);
(x) certificate of an Authorized Representative dated
the Closing Date demonstrating compliance with the financial
covenants contained in Sections 9.1(a) and (b) as of the end
of the fiscal quarter most recently ended prior to the Closing
Date and based on the Historical Pro Forma Financial
Statements, substantially in the form of Exhibit H;
(xi) the Historical Financial Statements and
Historical Pro Forma Financial Statements and all other
financial statements and projections referred to in Section
7.6(a);
(xii) the executed Purchase Agreement, certified by
the secretary or assistant secretary of the Borrower and
evidence of the consummation of the MET-Rx Nutrition, Inc.
Acquisition in compliance with applicable law and regulatory
approvals (including Hart-Scott Rodino clearance, if
required);
(xiii) the corporate capital and ownership structure
(including articles of incorporation and bylaws), shareholder
agreements and management of the Borrower and its Subsidiaries
(after giving effect to the MET-Rx Nutrition, Inc.
Acquisition) shall be satisfactory to the Administrative
Agent;
(xiv) evidence of all insurance required by the Loan
Documents;
(xv) evidence of the payment in full of the Existing
Debt;
(xvi) an initial Borrowing Notice, if any, and, if
elected by the Borrower, Interest Rate Selection Notice;
(xvii) evidence that all fees payable by the Borrower
on the Closing Date to the Administrative Agent, BAS and the
Lenders have been paid in full;
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(xviii) evidence that the certificate of merger has
been filed with the Secretary of State of Delaware as to the
merger of RSM Acquisition Corp. with and into MET-Rx
Nutrition, Inc.; and
(xix) such other documents, instruments, certificates
and opinions as the Administrative Agent or any Lender may
reasonably request on or prior to the Closing Date in
connection with the consummation of the transactions
contemplated hereby; and
(b) In the good faith judgment of the Administrative Agent and
the Lenders:
(i) there shall not have occurred or become known to
the Administrative Agent or the Lenders any event, condition,
situation or status since the date of the information
contained in the financial and business projections, budgets,
pro forma data and forecasts concerning the Borrower and its
Subsidiaries or the Acquired Company and its Subsidiaries
delivered to the Administrative Agent prior to the Closing
Date that has had or could reasonably be expected to result in
a Material Adverse Effect;
(ii) no litigation, action, suit, investigation or
other arbitral, administrative or judicial proceeding shall be
pending or threatened which could reasonably be likely to
result in a Material Adverse Effect; and
(iii) the Credit Parties and the Acquired Company, as
applicable, shall have received all approvals, consents and
waivers, and shall have made or given all necessary filings
and notices as shall be required to consummate the
transactions contemplated hereby and by the Transaction
Documents without the occurrence of any default under,
conflict with or violation of (A) any applicable law, rule,
regulation, order or decree of any Governmental Authority or
arbitral authority or (B) any agreement, document or
instrument to which any of the Credit Parties is a party or by
which any of them or their properties is bound.
6.2. Conditions of Revolving Loans and Letter of Credit. The
obligations of the Lenders to make any Revolving Loans, and the Issuing Bank to
issue (or renew) Letters of Credit and Bank of America to make Swing Line Loans,
hereunder on or subsequent to the Closing Date are subject to the satisfaction
of the following conditions:
(a) the Administrative Agent or, in the case of Swing Line
Loans, Bank of America shall have received a Borrowing Notice if
required by Article II;
(b) the representations and warranties of the Credit Parties
set forth in Article VII and in each of the other Loan Documents shall
be true and correct in all material respects on and as of the date of
such Advance, Swing Line Loan or Letter of Credit issuance or renewal,
with the same effect as though such representations and warranties had
been made on and as of such date, except to the extent that such
representations and warranties expressly relate to an earlier date and
except that the financial statements referred to in Section 7.6(a)
shall be deemed (solely for the purpose of the representation and
warranty contained in such Section 7.6(a) but not for the purpose of
any cross reference to such Section 7.6(a) or to the financial
statements described therein contained in any other provision of
Section 7.6 or elsewhere in Article VII) to be those financial
statements most recently delivered to the Administrative Agent and the
Lenders pursuant to Section 8.1 from the date financial statements are
delivered to the Administrative Agent and the Lenders in accordance
with such Section;
(c) in the case of the issuance of a Letter of Credit, the
Borrower shall have executed and delivered to the Issuing Bank an
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Application and Agreement for Letter of Credit in form and content
acceptable to the Issuing Bank together with such other instruments and
documents as it shall request;
(d) at the time of (and after giving effect to) each Advance,
Swing Line Loan or the issuance of a Letter of Credit, no Default or
Event of Default specified in Article X shall have occurred and be
continuing; and
(e) immediately after giving effect to:
(i) a 364 Day Loan, the aggregate principal balance
of all outstanding 364 Day Loans for each Lender shall not
exceed such Lender's 364 Day Commitment;
(ii) a 364 Day Loan, the 364 Day Outstandings shall
not exceed the Total 364 Day Commitment;
(iii) a Three Year Loan, the aggregate principal
balance of all outstanding Three Year Loans for each Lender
shall not exceed such Lender's Three Year Commitment;
(iv) a Letter of Credit or renewal thereof, the
aggregate principal balance of all outstanding Participations
in Letters of Credit and Reimbursement Obligations (or in the
case of the Issuing Bank, its remaining interest after
deduction of all Participations in Letters of Credit and
Reimbursement Obligations of other Lenders) for each Lender
and in the aggregate shall not exceed, respectively, (X) such
Lender's Letter of Credit Commitment or (Y) the Total Letter
of Credit Commitment;
(v) a Swing Line Loan, the Swing Line Outstandings
shall not exceed $5,000,000; and
(vi) a Three Year Loan, Swing Line Loan or a Letter
of Credit or renewal thereof, the sum of Letter of Credit
Outstandings plus Three Year Outstandings plus Swing Line
Outstandings shall not exceed the Total Three Year Commitment.
ARTICLE VII
Representations and Warranties
The Borrower represents and warrants with respect to itself and to its
Subsidiaries and giving effect to the MET-Rx Nutrition, Inc. Acquisition (which
representations and warranties shall survive the delivery of the documents
mentioned herein and the making of Loans), that:
7.1. Organization and Authority.
(a) The Borrower and each Subsidiary is a corporation duly
organized and validly existing under the laws of the jurisdiction of
its formation;
(b) The Borrower and each Subsidiary (x) has the requisite
power and authority to own its properties and assets and to carry on
its business as now being conducted and as contemplated in the Loan
Documents, and (y) is qualified to do business in every jurisdiction in
which failure so to qualify would have a Material Adverse Effect;
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(c) The Borrower has the power and authority to execute,
deliver and perform this Agreement and the Notes, and to borrow
hereunder, and to execute, deliver and perform each of the other Loan
Documents to which it is a party;
(d) Each Credit Party (other than the Borrower) has the power
and authority to execute, deliver and perform the Facility Guaranty and
each of the other Loan Documents to which it is a party;
(e) Each Credit Party has the power and authority to execute,
deliver and perform the Transaction Documents to which it is a party
and when executed and delivered, the Purchase Agreement will be the
legal, valid and binding obligation of each Credit Party; and
(f) When executed and delivered, each of the Loan Documents to
which any Credit Party is a party will be the legal, valid and binding
obligation or agreement, as the case may be, of such Credit Party,
enforceable against such Credit Party in accordance with its terms,
subject to the effect of any applicable bankruptcy, moratorium,
insolvency, reorganization or other similar law affecting the
enforceability of creditors' rights generally and to the effect of
general principles of equity (whether considered in a proceeding at law
or in equity).
7.2. Loan Documents and Transaction Documents. The execution, delivery
and performance by each Credit Party of each of the Loan Documents and
Transaction Documents to which it is a party:
(a) have been duly authorized by all requisite Organizational
Action of such Credit Party required for the lawful execution, delivery
and performance thereof;
(b) do not violate any provisions of (i) any applicable law,
rule or regulation, (ii) any judgment, writ, order, determination,
decree or arbitral award of any Governmental Authority or arbitral
authority binding on such Credit Party or its properties, or (iii) the
Organizational Documents or Operating Documents of such Credit Party;
(c) does not and will not be in conflict with, result in a
breach of or constitute an event of default, or an event which, with
notice or lapse of time or both, would constitute an event of default,
under any contract, indenture, agreement or other instrument or
document to which such Credit Party is a party, or by which the
properties or assets of such Credit Party are bound; and
(d) does not and will not result in the creation or imposition
of any Lien upon any of the properties or assets of such Credit Party.
7.3. Solvency. Each Credit Party is Solvent after giving effect to the
MET-Rx Nutrition, Inc. Acquisition and the other transactions contemplated by
the Loan Documents.
7.4. Subsidiaries and Stockholders. The Borrower has no Subsidiaries
other than those Persons listed as Subsidiaries in Schedule 7.4 and additional
Subsidiaries created or acquired after the Closing Date in compliance with
Section 8.20; Schedule 7.4 states as of the date hereof the organizational form
of each entity, the authorized and issued capitalization of each Subsidiary
listed thereon, the number of shares or other equity interests of each class of
capital stock or interest issued and outstanding of each such Subsidiary and the
number and/or percentage of outstanding shares or other equity interest
(including options, warrants and other rights to acquire any interest) of each
such class of capital stock or other equity interest owned by Borrower or by any
such Subsidiary; the outstanding shares or other equity interests of each such
Subsidiary have been duly authorized and validly issued and are fully paid and
non-assessable; and Borrower and each such Subsidiary owns beneficially and of
record all the shares and other interests it is listed as owning in Schedule
7.4, free and clear of any Lien.
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7.5. Ownership Interests. Borrower owns no interest in any Person other
than the Persons listed in Schedule 7.4, equity investments in Persons not
constituting Subsidiaries permitted under Section 9.6 and additional
Subsidiaries created or acquired after the Closing Date in compliance with
Section 8.20.
7.6. Financial Condition.
(a) The Borrower has heretofore furnished to each Lender (i)
the Historical Financial Statements, (ii) an audited consolidated
balance sheet of the Borrower and its Subsidiaries as at August 31,
1997, 1998 and 1999 and the notes thereto and the related consolidated
statements of income, stockholders' equity and cash flows for the
Fiscal Years then ended as examined and certified by
PriceWaterhouseCoopers LLP, (iii) unaudited consolidated interim
financial statements of the Borrower and its Subsidiaries consisting of
a consolidated balance sheet and related consolidated statements of
income, stockholders' equity and cash flows, in each case without
notes, for and as of the end of the three-month period ending November
30, 1999, and (iv) the Historical Pro Forma Financial Statements.
Except as set forth therein, such financial statements (including the
notes thereto) present fairly the financial condition of the Acquired
Company and its subsidiaries and the Borrower and its Subsidiaries as
of the end of the fiscal periods covered thereby and results of their
operations and the changes in its stockholders' equity for the periods
then ended, all in conformity with GAAP applied on a Consistent Basis,
subject however, in the case of unaudited interim statements to year
end audit adjustments;
(b) since the later of (i) the date of the audited financial
statements delivered pursuant to Section 7.6(a) hereof or (ii) the date
of the audited financial statements most recently delivered pursuant to
Section 8.1(a) hereof, there has been no material adverse change in the
condition, financial or otherwise, of the Borrower or any of its
Subsidiaries or the Acquired Company and its subsidiaries or in the
businesses, properties, performance, prospects or operations of the
Borrower or its Subsidiaries and of the Acquired Company or its
subsidiaries, nor have such businesses or properties been materially
adversely affected as a result of any fire, explosion, earthquake,
accident, strike, lockout, combination of workers, flood, embargo or
act of God; and
(c) except as set forth in the financial statements referred
to in Section 7.6(a) or in Schedule 7.6 or permitted by Section 9.4,
neither the Borrower nor any Subsidiary nor the Acquired Company nor
any of its subsidiaries has incurred, other than in the ordinary course
of business, any material Indebtedness, Contingent Obligation or other
commitment or liability which remains outstanding or unsatisfied.
7.7. Title to Properties. The Borrower and each of its Subsidiaries has
good title to all its real and personal properties, subject to no transfer
restrictions or Liens of any kind, except for the transfer restrictions and
Liens described in Schedule 7.7 and Liens permitted by Section 9.3.
7.8. Taxes. Except as set forth in Schedule 7.8, the Borrower and each
of its Subsidiaries has filed or caused to be filed all federal, state and local
tax returns which are required to be filed by it and, except for taxes and
assessments being contested in good faith by appropriate proceedings diligently
conducted and against which reserves reflected in the financial statements
described in Section 7.6(a) or Sections 8.1(a) or (b) and satisfactory to the
Borrower's independent certified public accountants have been established, have
paid or caused to be paid all taxes as shown on said returns or on any
assessment received by it, to the extent that such taxes have become due.
7.9. Other Agreements. Neither the Borrower nor any Subsidiary is
(a) a party to or subject to any judgment, order, decree,
agreement, lease or instrument, or subject to other restrictions, which
individually or in the aggregate could reasonably be expected to have a
Material Adverse Effect; or
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(b) in default in the performance, observance or fulfillment
of any of the obligations, covenants or conditions contained in any
agreement or instrument to which such Credit Party is a party, which
default has, or if not remedied within any applicable grace period
could reasonably be likely to have, a Material Adverse Effect.
7.10. Litigation. Except as set forth in Schedule 7.10, there is no
action, suit, investigation or proceeding at law or in equity or by or before
any governmental instrumentality or agency or arbitral body pending, or, to the
knowledge of the Borrower, threatened by or against the Borrower or any
Subsidiary or affecting the Borrower or any Subsidiary or any properties or
rights of the Borrower or any Subsidiary, which could reasonably be likely to
have a Material Adverse Effect.
7.11. Margin Stock. The proceeds of the borrowings made hereunder will
be used by the Borrower only for the purposes expressly authorized herein. None
of such proceeds will be used, directly or indirectly, for the purpose of
purchasing or carrying any margin stock or for the purpose of reducing or
retiring any Indebtedness which was originally incurred to purchase or carry
margin stock or for any other purpose which might constitute any of the Loans
under this Agreement a "purpose credit" within the meaning of said Regulation U
or Regulation X (12 C.F.R. Part 221) of the Board. Neither the Borrower nor any
agent acting in its behalf has taken or will take any action which might cause
this Agreement or any of the documents or instruments delivered pursuant hereto
to violate any regulation of the Board or to violate the Securities Exchange Act
of 1934, as amended, or the Securities Act of 1933, as amended, or any state
securities laws, in each case as in effect on the date hereof.
7.12. Investment Company. No Credit Party is an "investment company,"
or an "affiliated person" of, or "promoter" or "principal underwriter" for, an
"investment company", as such terms are defined in the Investment Company Act of
1940, as amended (15 U.S.C. Section 80a-1, et seq.). The application of the
proceeds of the Loans and repayment thereof by the Borrower and the performance
by the Borrower and the other Credit Parties of the transactions contemplated by
the Loan Documents will not violate any provision of said Act, or any rule,
regulation or order issued by the Securities and Exchange Commission thereunder,
in each case as in effect on the date hereof.
7.13. Patents, Etc. Except for where the failure to own or to have the
use thereof would not have a Material Adverse Effect, the Borrower and each
other Credit Party owns or has the right to use, under valid license agreements
or otherwise, all material patents, licenses, franchises, trademarks, trademark
rights, trade names, trade name rights, trade secrets and copyrights necessary
to or used in the conduct of its businesses as now conducted and as contemplated
by the Loan Documents, without known conflict with any patent, license,
franchise, trademark, trade secret, trade name, copyright, other proprietary
right of any other Person.
7.14. No Untrue Statement. Neither (a) this Agreement nor any other
Loan Document or certificate or document executed and delivered by or on behalf
of the Borrower or any other Credit Party in accordance with or pursuant to any
Loan Document nor (b) any statement, representation, or warranty provided to the
Administrative Agent in connection with the negotiation or preparation of the
Loan Documents contains any misrepresentation or untrue statement of material
fact or omits to state a material fact necessary, in light of the circumstance
under which it was made, in order to make any such warranty, representation or
statement contained therein not misleading.
7.15. No Consents, Etc. Neither the respective businesses or properties
of the Credit Parties or any Subsidiary, nor any relationship among the Credit
Parties or any Subsidiary and any other Person, nor any circumstance in
connection with the execution, delivery and performance of the Loan Documents
and the transactions contemplated thereby, is such as to require a consent,
approval or authorization of, or filing, registration or qualification with, any
Governmental Authority or any other Person on the part of any Credit Party as a
condition to the execution, delivery and performance of, or consummation of the
transactions contemplated by the Loan Documents, which, if not obtained or
effected, would be reasonably likely to have a Material Adverse Effect, or if
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so, such consent, approval, authorization, filing, registration or qualification
has been duly obtained or effected, as the case may be.
7.16. Employee Benefit Plans.
(a) The Borrower and each ERISA Affiliate is in compliance
with all applicable provisions of ERISA and the regulations and
published interpretations thereunder and in compliance with all Foreign
Benefit Laws with respect to all Employee Benefit Plans except for any
required amendments for which the remedial amendment period as defined
in Section 401(b) of the Code has not yet expired. Each Employee
Benefit Plan that is intended to be qualified under Section 401(a) of
the Code has been determined or the Borrower or its Subsidiaries is in
the process of obtaining a determination by the Internal Revenue
Service to be so qualified, each trust related to such plan has been
determined to be exempt under Section 501(a) of the Code, and each
Employee Benefit Plan subject to any Foreign Benefit Law has received
the required approvals by any Governmental Authority regulating such
Employee Benefit Plan. No material liability has been incurred by the
Borrower or any ERISA Affiliate which remains unsatisfied for any taxes
or penalties with respect to any Employee Benefit Plan or any
Multiemployer Plan;
(b) Neither the Borrower nor any ERISA Affiliate has (i)
engaged in a nonexempt prohibited transaction described in Section 4975
of the Code or Section 406 of ERISA affecting any of the Employee
Benefit Plans or the trusts created thereunder which could subject any
such Employee Benefit Plan or trust to a material tax or penalty on
prohibited transactions imposed under Internal Revenue Code Section
4975 or ERISA, (ii) incurred any accumulated funding deficiency with
respect to any Employee Benefit Plan, whether or not waived, or any
other liability to the PBGC which remains outstanding other than the
payment of premiums and there are no premium payments which are due and
unpaid, (iii) failed to make a required contribution or payment to a
Multiemployer Plan, (iv) failed to make a required installment or other
required payment under Section 412 of the Code, Section 302 of ERISA or
the terms of such Employee Benefit Plan, or (v) failed to make a
required contribution or payment, or otherwise failed to operate in
compliance with any Foreign Benefit Law regulating any Employee Benefit
Plan;
(c) No Termination Event has occurred or is reasonably
expected to occur with respect to any Pension Plan or Multiemployer
Plan, and neither the Borrower nor any ERISA Affiliate has incurred any
unpaid withdrawal liability with respect to any Multiemployer Plan;
(d) The present value of all vested accrued benefits under
each Employee Benefit Plan which is subject to Title IV of ERISA, or
the funding of which is regulated by any Foreign Benefit Law did not,
as of the most recent valuation date for each such plan, exceed the
then current value of the assets of such Employee Benefit Plan
allocable to such benefits;
(e) To the best of the Borrower's knowledge, each Employee
Benefit Plan which is subject to Title IV of ERISA or the funding of
which is regulated by any Foreign Benefit Law, maintained by the
Borrower or any ERISA Affiliate, has been administered in accordance
with its terms in all material respects and is in compliance in all
material respects with all applicable requirements of ERISA, applicable
Foreign Benefit Law and other applicable laws, regulations and rules;
(f) The consummation of the Loans and the issuance of the
Letters of Credit provided for herein will not involve any prohibited
transaction under ERISA which is not subject to a statutory or
administrative exemption; and
(g) No material proceeding, claim, lawsuit and/or
investigation exists or, to the best knowledge of the Borrower after
due inquiry, is threatened concerning or involving any Employee Benefit
Plan;
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7.17. No Default. As of the date hereof, there does not exist any
Default or Event of Default hereunder.
7.18. Environmental Laws. Except as listed on Schedule 7.18, the
Borrower and each Subsidiary is in compliance with all applicable Environmental
Laws and has been issued and currently maintains all required federal, state and
local permits, licenses, certificates and approvals. Except as listed on
Schedule 7.18, neither the Borrower nor any Subsidiary has been notified of any
pending or threatened action, suit, proceeding or investigation, and neither the
Borrower nor any Subsidiary is aware of any facts, which (a) calls into
question, or could reasonably be expected to call into question, compliance by
the Borrower or any Subsidiary with any Environmental Laws, (b) seeks, or could
reasonably be expected to form the basis of a meritorious proceeding, to
suspend, revoke or terminate any license, permit or approval necessary for the
operation of the Borrower's or any Subsidiary's business or facilities or for
the generation, handling, storage, treatment or disposal of any Hazardous
Materials, or (c) seeks to cause, or could reasonably be expected to form the
basis of a meritorious proceeding to cause, any property of the Borrower or any
Subsidiary to be subject to any restrictions on ownership, use, occupancy or
transferability under any Environmental Law, except where such facts and related
circumstances could not reasonably be expected to result in a Material Adverse
Effect.
7.19. Employment Matters.
(a) None of the employees of the Borrower or any Subsidiary is
subject to any collective bargaining agreement and there are no
strikes, work stoppages, election or decertification petitions or
proceedings, unfair labor charges, equal opportunity proceedings, or
other material labor/employee related controversies or proceedings
pending or, to the best knowledge of the Borrower, threatened against
the Borrower or any Subsidiary or between the Borrower or any
Subsidiary and any of its employees, other than employee grievances
arising in the ordinary course of business which could not reasonably
be expected, individually or in the aggregate, to have a Material
Adverse Effect; and
(b) Except to the extent a failure to maintain compliance
would not have a Material Adverse Effect, the Borrower and each
Subsidiary is in compliance in all respects with all applicable laws,
rules and regulations pertaining to labor or employment matters,
including without limitation those pertaining to wages, hours,
occupational safety and taxation and there is neither pending or
threatened any litigation, administrative proceeding nor, to the
knowledge of the Borrower, any investigation, in respect of such
matters which, if decided adversely, could reasonably be likely,
individually or in the aggregate, to have a Material Adverse Effect.
7.20. RICO. Neither the Borrower nor any Subsidiary is engaged in or
has engaged in any course of conduct that could subject any of their respective
properties to any Lien, seizure or other forfeiture under any criminal law,
racketeer influenced and corrupt organizations law, civil or criminal, or other
similar laws.
7.21. Year 2000 Compliance. The Borrower and its Subsidiaries are Year
2000 Compliant.
ARTICLE VIII
Affirmative Covenants
Until the Facility Termination Date, unless the Required Lenders shall
otherwise consent in writing, the Borrower will, and where applicable will cause
each Subsidiary to:
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8.1. Financial Reports, Etc. (a) As soon as practical and in any event
within 90 days after the end of each Fiscal Year of the Borrower, deliver or
cause to be delivered to the Administrative Agent and each Lender (i) a
consolidated balance sheet of the Borrower and its Subsidiaries as at the end of
such Fiscal Year, and the notes thereto, and the related consolidated statements
of income, stockholders' equity and cash flows, and the respective notes
thereto, for such Fiscal Year, setting comparative financial statements for the
preceding Fiscal Year, all prepared in accordance with GAAP applied on a
Consistent Basis and containing, with respect to the consolidated financial
statements, opinions of PriceWaterhouseCoopers LLP, or other such independent
certified public accountants selected by the Borrower and approved by the
Administrative Agent (which approval shall not be unreasonably withheld), which
are unqualified as to the scope of the audit performed and as to the "going
concern" status of the Borrower and without any exception not acceptable to the
Lenders, and (ii) a certificate of an Authorized Representative demonstrating
compliance with Sections 9.1(a) and (b), which certificate shall be in the form
of Exhibit H;
(b) as soon as practical and in any event within 45 days after the end
of each fiscal quarter (except the last fiscal quarter of the Fiscal Year),
deliver to the Administrative Agent and each Lender (i) a consolidated balance
sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter,
and the related consolidated statements of income, stockholders' equity and cash
flows for such fiscal quarter and for the period from the beginning of the then
current Fiscal Year through the end of such reporting period, and accompanied by
a certificate of an Authorized Representative to the effect that such financial
statements present fairly the financial position of the Borrower and its
Subsidiaries as of the end of such fiscal period and the results of their
operations and the changes in their financial position for such fiscal period,
in conformity with the standards set forth in Section 7.6(a) with respect to
interim financial statements, and (ii) a certificate of an Authorized
Representative containing computations for such quarter comparable to that
required pursuant to Section 8.1(a)(ii);
(c) together with each delivery of the financial statements required by
Section 8.1(a)(i), deliver to the Administrative Agent and each Lender a letter
from the Borrower's accountants specified in Section 8.1(a)(i) stating that in
performing the audit necessary to render an opinion on the financial statements
delivered under Section 8.1(a)(i), they obtained no knowledge of any Default or
Event of Default by the Borrower in the fulfillment of the terms and provisions
of this Agreement insofar as they relate to financial matters (which at the date
of such statement remains uncured); or if the accountants have obtained
knowledge of such Default or Event of Default, a statement specifying the nature
and period of existence thereof;
(d) promptly upon their becoming available to the Borrower, the
Borrower shall deliver to the Administrative Agent and each Lender a copy of (i)
all regular or special reports or effective registration statements which
Borrower or any Subsidiary shall file with the Securities and Exchange
Commission (or any successor thereto) or any securities exchange other than
registration statements on Form S-8, (ii) any proxy statement distributed by the
Borrower or any Subsidiary to its shareholders, bondholders or the financial
community in general, and (iii) any management letter or other report submitted
to the Borrower or any Subsidiary by independent accountants in connection with
any annual, interim or other audit of the Borrower or any Subsidiary; and
(e) not later than the thirty (30) days following the beginning of each
Fiscal Year, deliver to the Administrative Agent and each Lender a capital and
operating expense budget and consolidated financial projections for the Borrower
and its Subsidiaries for such Fiscal Year, prepared in accordance with GAAP
applied on a Consistent Basis;
(f) promptly, from time to time, deliver or cause to be delivered to
the Administrative Agent and each Lender such other information regarding
Borrower's and any Subsidiary's operations, business affairs and financial
condition as the Administrative Agent or such Lender may reasonably request;
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The Administrative Agent and the Lenders are hereby authorized to
deliver a copy of any such financial or other information delivered hereunder to
the Lenders (or any affiliate of any Lender) or to the Administrative Agent, to
any Governmental Authority having jurisdiction over the Administrative Agent or
any of the Lenders pursuant to any written request therefor or in the ordinary
course of examination of loan files, or to any other Person who shall acquire or
consider the assignment of, or acquisition of any participation interest in, any
Obligation permitted by this Agreement.
8.2. Maintain Properties. Maintain all properties necessary to its
operations in good working order and condition, make all needed repairs,
replacements and renewals to such properties, and maintain free from Liens all
trademarks, trade names, patents, copyrights, trade secrets, know-how, and other
intellectual property and proprietary information (or adequate licenses
thereto), in each case as are reasonably necessary to conduct its business as
currently conducted or as contemplated hereby, all in accordance with customary
and prudent business practices except where the failure to do so would not be
reasonably expected to have a Material Adverse Effect.
8.3. Existence, Qualification, Etc. Except as otherwise expressly
permitted under Section 9.8, do or cause to be done all things necessary to
preserve and keep in full force and effect its existence and all material rights
and franchises, and maintain its license or qualification to do business as a
foreign corporation and good standing in each jurisdiction in which its
ownership or lease of property or the nature of its business makes such license
or qualification necessary except where the failure to so qualify would not have
a Material Adverse Effect.
8.4. Regulations and Taxes. Comply in all material respects with or
contest in good faith all statutes and governmental regulations and pay all
taxes, assessments, governmental charges, claims for labor, supplies, rent and
any other obligation which, if unpaid, would become a Lien against any of its
properties except liabilities being contested in good faith by appropriate
proceedings diligently conducted and against which adequate reserves have been
established unless and until any Lien resulting therefrom attaches to any of its
property and becomes subject to execution against such property.
8.5. Insurance. (a) Keep all of its insurable properties adequately
insured at all times with responsible insurance carriers against loss or damage
by fire and other hazards to the extent and in the manner as are customarily
insured against by similar businesses owning such properties similarly situated,
(b) maintain general public liability insurance at all times with responsible
insurance carriers against liability on account of damage to persons and
property and (c) maintain insurance under all applicable workers' compensation
laws (or in the alternative, maintain required reserves if self-insured for
workers' compensation purposes) and against loss by reason by business
interruption such policies of insurance to have such limits, deductibles,
exclusions, co-insurance and other provisions providing no less coverages than
that specified in Schedule 8.5, such insurance policies to be in form reasonably
satisfactory to the Administrative Agent. Each of the policies of insurance
described in this Section 8.5 shall provide that the insurer shall give the
Administrative Agent not less than thirty (30) days' prior written notice before
any such policy shall be terminated, lapse or be altered in any manner.
8.6. True Books. Keep true books of record and account in which full,
true and correct entries will be made of all of its dealings and transactions,
and set up on its books such reserves as may be required by GAAP with respect to
doubtful accounts and all taxes, assessments, charges, levies and claims and
with respect to its business in general, and include such reserves in interim as
well as year-end financial statements.
8.7. Year 2000 Compliance. The Borrower will promptly notify the
Administrative Agent and the Lenders in the event the Borrower discovers or
determines that any computer application (including those affected by
information received from its suppliers and vendors) that is material to its or
any of its Subsidiaries' business and operations is not Year 2000 Compliant,
except to the extent that such failure could not reasonably be expected to have
a Material Adverse Effect.
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8.8. Right of Inspection. Permit any Person designated by any Lender or
the Administrative Agent to visit and inspect any of the properties, corporate
books and financial reports of the Borrower or any Subsidiary and to discuss its
affairs, finances and accounts with its principal officers and independent
certified public accountants, all at reasonable times, at reasonable intervals
and with reasonable prior notice.
8.9. Observe all Laws. Conform to and duly observe all laws, rules and
regulations and all other valid requirements of any Governmental Authority with
respect to the conduct of its business if the failure to observe such laws,
rules, regulations and other requirements could reasonably be expected to have a
Material Adverse Effect.
8.10. Governmental Licenses. Obtain and maintain all licenses, permits,
certifications and approvals of all applicable Governmental Authorities as are
required for the conduct of its business as currently conducted and as
contemplated by the Loan Documents if the failure to obtain and maintain such
licenses, permits, certifications and approvals could reasonably be expected to
have a Material Adverse Effect.
8.11. Covenants Extending to Other Persons. Cause each of its
Subsidiaries to do with respect to itself, its business and its assets, each of
the things required of the Borrower in Sections 8.2 through 8.11, and 8.20
inclusive.
8.12. Officer's Knowledge of Default. Upon any officer of the Borrower
obtaining knowledge of any Default or Event of Default hereunder or under any
other obligation of the Borrower or any Subsidiary or other Credit Party to any
Lender, or any event, development or occurrence which could reasonably be
expected to have a Material Adverse Effect, cause such officer or an Authorized
Representative to promptly notify the Administrative Agent of the nature
thereof, the period of existence thereof, and what action the Borrower or such
Subsidiary or other Credit Party proposes to take with respect thereto.
8.13. Suits or Other Proceedings. Upon any officer of the Borrower
obtaining knowledge of any litigation or other proceedings being instituted
against the Borrower or any Subsidiary or other Credit Party, or any attachment,
levy, execution or other process being instituted against any assets of the
Borrower or any Subsidiary or other Credit Party, making a claim or claims in an
aggregate amount greater than $5,000,000 not otherwise covered by insurance,
deliver to the Administrative Agent within seven (7) Business Days written
notice thereof stating the nature and status of such litigation, dispute,
proceeding, levy, execution or other proceSection
8.14. Notice of Environmental Complaint or Condition. Promptly provide
to the Administrative Agent true, accurate and complete copies of any and all
notices, complaints, orders, directives, claims or citations received by the
Borrower or any Subsidiary relating to any (a) violation or alleged violation by
the Borrower or any Subsidiary of any applicable Environmental Law; (b) release
or threatened release by the Borrower or any Subsidiary, or by any Person
handling, transporting or disposing of any Hazardous Material on behalf of the
Borrower or any Subsidiary, or at any facility or property owned or leased or
operated by the Borrower or any Subsidiary, of any Hazardous Material, except
where occurring legally pursuant to a permit or license; or (c) liability or
alleged liability of the Borrower or any Subsidiary for the costs of cleaning
up, removing, remediating or responding to a release of Hazardous Materials.
8.15. Environmental Compliance. If the Borrower or any Subsidiary shall
receive any letter, notice, complaint, order, directive, claim or citation
alleging that the Borrower or any Subsidiary has violated any Environmental Law,
has released any Hazardous Material, or is liable for the costs of cleaning up,
removing, remediating or responding to a release of Hazardous Materials, the
Borrower and any Subsidiary shall, within the time period permitted and to the
extent required by the applicable Environmental Law or the Governmental
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Authority responsible for enforcing such Environmental Law, remove or remedy, or
cause the applicable Subsidiary to remove or remedy, such violation or release
or satisfy such liability.
8.16. Indemnification. Without limiting the generality of Section 12.9,
the Borrower hereby agrees to indemnify and hold the Administrative Agent and
the Lenders and any affiliate of any Lender party to a Swap Agreement, and their
respective officers, directors, employees and agents, harmless from and against
any and all claims, losses, penalties, liabilities, damages and expenses
(including assessment and cleanup costs and reasonable attorneys', consultants'
or other expert fees, expenses and disbursements) arising directly or indirectly
from, out of or by reason of (a) the violation of any Environmental Law by the
Borrower or any Subsidiary or with respect to any property owned, operated or
leased by the Borrower or any Subsidiary or (b) the handling, storage,
transportation, treatment, emission, release, discharge or disposal of any
Hazardous Materials by or on behalf of the Borrower or any Subsidiary, or on or
with respect to property owned or leased or operated by the Borrower or any
Subsidiary. The provisions of this Section 8.16 shall survive repayment of the
Obligations and the Facility Termination Date and expiration or termination of
this Agreement.
8.17. Further Assurances. At the Borrower's cost and expense, upon
request of the Administrative Agent, duly execute and deliver or cause to be
duly executed and delivered, to the Administrative Agent such further
instruments, documents, certificates, financing and continuation statements, and
do and cause to be done such further acts that may be reasonably necessary or
advisable in the reasonable opinion of the Administrative Agent to carry out
more effectively the provisions and purposes of this Agreement and the other
Loan Documents.
8.18. Employee Benefit Plans.
(a) With reasonable promptness, and in any event within thirty
(30) days thereof, give notice to the Administrative Agent of (a) the
establishment of any new Pension Plan (which notice shall include a copy
of such plan), (b) the commencement of contributions to any Employee
Benefit Plan to which the Borrower or any of its ERISA Affiliates was
not previously contributing, (c) any material increase in the benefits
of any existing Employee Benefit Plan, (d) each funding waiver request
filed with respect to any Pension Plan and all communications received
or sent by the Borrower or any ERISA Affiliate with respect to such
request and (e) the failure of the Borrower or any ERISA Affiliate to
make a required installment or payment under Section 302 of ERISA or
Section 412 of the Code (in the case of Employee Benefit Plans regulated
by the Code or ERISA) or under any Foreign Benefit Law (in the case of
Employee Benefit Plans regulated by any Foreign Benefit Law) by the due
date;
(b) Promptly and in any event within fifteen (15) days of
becoming aware of the occurrence or forthcoming occurrence of any (a)
Termination Event or (b) nonexempt "prohibited transaction," as such
term is defined in Section 406 of ERISA or Section 4975 of the Code, in
connection with any Employee Benefit Plan or any trust created
thereunder, deliver to the Administrative Agent a notice specifying the
nature thereof, what action the Borrower or any ERISA Affiliate has
taken, is taking or proposes to take with respect thereto and, when
known, any action taken or threatened by the Internal Revenue Service,
the Department of Labor or the PBGC with respect thereto; and
(c) With reasonable promptness but in any event within fifteen
(15) days for purposes of clauses (a), (b) and (c), deliver to the
Administrative Agent copies of (a) any unfavorable determination letter
from the Internal Revenue Service regarding the qualification of an
Employee Benefit Plan under Section 401(a) of the Code, (b) all notices
received by the Borrower or any ERISA Affiliate of the PBGC's or any
Governmental Authority's intent to terminate any Pension Plan or to have
a trustee appointed to administer any Pension Plan, (c) each Schedule B
(Actuarial Information) to the annual report (Form 5500 Series) filed by
the Borrower or any ERISA Affiliate with the Internal Revenue Service
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with respect to each Employee Benefit Plan and (d) all notices received
by the Borrower or any ERISA Affiliate from a Multiemployer Plan sponsor
concerning the imposition or amount of withdrawal liability pursuant to
Section 4202 of ERISA. The Borrower will notify the Administrative Agent
in writing within five (5) Business Days of the Borrower or any ERISA
Affiliate obtaining knowledge or reason to know that the Borrower or any
ERISA Affiliate has filed or intends to file a notice of intent to
terminate any Pension Plan under a distress termination within the
meaning of Section 4041(c) of ERISA.
8.19. Continued Operations. Continue at all times to conduct its
business and engage principally in the same line or lines of business
substantially as heretofore conducted.
8.20. New Subsidiaries. Within thirty (30) days of the acquisition or
creation of any Domestic Subsidiary, other than a Receivables Subsidiary, cause
to be delivered to the Administrative Agent each of the following:
(a) a Facility Guaranty executed by such Domestic Subsidiary
substantially in the form of Exhibit I;
(b) an opinion of counsel to such Domestic Subsidiary dated as
of the date of delivery of the Facility Guaranty described in this
Section 8.20 and addressed to the Administrative Agent and the Lenders,
in form and substance reasonably acceptable to the Administrative Agent
(which opinion may include assumptions and qualifications of similar
effect to those contained in the opinions of counsel delivered pursuant
to Section 6.1(a)), to the effect that:
(i) such Domestic Subsidiary is duly organized,
validly existing and in good standing in the jurisdiction of
its formation, has the requisite power and authority to own
its properties and conduct its business as then owned and then
conducted and proposed to be conducted and to execute, deliver
and perform the Facility Guaranty described in this Section
8.20, and is duly qualified to transact business and is in
good standing as a foreign corporation or partnership in each
other jurisdiction in which the character of the properties
owned or leased, or the business carried on by it, requires
such qualification and the failure to be so qualified would
reasonably be likely to result in a Material Adverse Effect;
(ii) the execution, delivery and performance of the
Facility Guaranty described in this Section 8.20 have been
duly authorized by all requisite corporate or partnership
action (including any required shareholder or partner
approval), such agreement has been duly executed and delivered
and constitutes the valid and binding agreement of such
Domestic Subsidiary, enforceable against such Subsidiary in
accordance with its terms, subject to the effect of any
applicable bankruptcy, moratorium, insolvency, reorganization
or other similar law affecting the enforceability of
creditors' rights generally and to the effect of general
principles of equity (whether considered in a proceeding at
law or in equity); and
(c) current copies of the Organizational Documents and
Operating Documents of such Domestic Subsidiary, minutes of duly called
and conducted meetings (or duly effected consent actions) of the Board
of Directors, partners, or appropriate committees thereof (and, if
required by such Organizational Documents, Operating Documents or
applicable law, of the shareholders, members or partners) of such
Domestic Subsidiary authorizing the actions and the execution and
delivery of documents described in this Section 8.20.
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ARTICLE IX
Negative Covenants
Until the Facility Termination Date, unless the Required Lenders shall
otherwise consent in writing, the Borrower will not, nor will it permit any
Subsidiary to:
9.1. Financial Covenants
(a) Consolidated Leverage Ratio. Permit the Consolidated
Leverage at any time to be greater than 2.00 to 1.00.
(b) Consolidated Interest Coverage Ratio. Permit the
Consolidated Interest Coverage Ratio as of the end of any Four-Quarter
Period to be less than 4.00 to 1.00.
9.2. Acquisitions. Enter into any agreement, contract, binding
commitment or other arrangement providing for any Acquisition, or take any
action to solicit the tender of securities or proxies in respect thereof in
order to effect any Acquisition, unless (i) the Person to be (or whose assets
are to be) acquired does not oppose such Acquisition and the line or lines of
business of the Person to be acquired are substantially the same as one or more
line or lines of business conducted by the Borrower and its Subsidiaries, (ii)
no Default or Event of Default shall have occurred and be continuing either
immediately prior to or immediately after giving effect to such Acquisition and,
if the Cost of Acquisition is in excess of $25,000,000, the Borrower shall have
furnished to the Administrative Agent (A) pro forma historical financial
statements as of the end of the most recently completed Fiscal Year of the
Borrower and most recent interim fiscal quarter, if applicable giving effect to
such Acquisition and (B) a certificate in the form of Exhibit H prepared on a
historical pro forma basis as of the most recent date for which financial
statements have been furnished pursuant to Section 7.6(a) or Section 8.1(a) or
(b) giving effect to such Acquisition, which certificate shall demonstrate that
no Default or Event of Default would exist immediately after giving effect
thereto, (iii) the Person acquired shall be a wholly-owned Domestic Subsidiary,
or be merged into the Borrower or a wholly-owned Domestic Subsidiary,
immediately upon consummation of the Acquisition (or if assets are being
acquired, the acquiror shall be the Borrower or a wholly-owned Domestic
Subsidiary), and (iv) if the Cost of Acquisition shall exceed $75,000,000, the
Required Lenders shall consent to such Acquisition in their discretion.
9.3. Liens. Incur, create or permit to exist any Lien, charge or other
encumbrance of any nature whatsoever with respect to any property or assets now
owned or hereafter acquired by the Borrower or any Subsidiary, other than
(a) Liens existing as of the date hereof as set forth in
Schedule 7.7;
(b) Liens imposed by law for taxes, assessments or charges of
any Governmental Authority for claims not yet due or which are being
contested in good faith by appropriate proceedings diligently conducted
and with respect to which adequate reserves or other appropriate
provisions are being maintained in accordance with GAAP and which Liens
are not yet subject to execution against the property to which such
Lien attaches;
(c) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law or
created in the ordinary course of business and in existence less than
90 days from the date of creation thereof for amounts not yet due or
which are being contested in good faith by appropriate proceedings
diligently conducted and with respect to which adequate reserves or
other appropriate provisions are being maintained in accordance with
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GAAP and which Liens are not yet subject to execution against the
property to which such Lien attaches;
(d) Liens incurred or deposits made in the ordinary course of
business (including, without limitation, surety bonds and appeal bonds)
in connection with workers' compensation, unemployment insurance and
other types of social security benefits or to secure the performance of
tenders, bids, leases, contracts (other than for the repayment of
Indebtedness), statutory obligations and other similar obligations or
arising as a result of progress payments under government contracts;
(e) easements (including reciprocal easement agreements and
utility agreements), rights-of-way, covenants, consents, reservations,
encroachments, variations and zoning and other restrictions, charges or
encumbrances (whether or not recorded), which do not interfere
materially with the ordinary conduct of the business of the Borrower or
any Subsidiary and which do not materially detract from the value of
the property to which they attach or materially impair the use thereof
to the Borrower or any Subsidiary;
(f) purchase money Liens to secure Indebtedness permitted
under Section 9.4(d) and incurred to purchase fixed assets, provided
such Indebtedness represents not less than 75% of the purchase price of
such assets as of the date of purchase thereof and no property other
than the assets so purchased secures such Indebtedness;
(g) Liens arising in connection with Capital Leases permitted
under Section 9.4(e); provided that no such Lien shall extend to any
Collateral or to any other property other than the assets subject to
such Capital Leases; and
(h) Liens in connection with a Permitted Receivables
Securitization.
9.4. IndebtedneSection Incur, create, assume or permit to exist any
Indebtedness, howsoever evidenced, except:
(a) Indebtedness existing as of the Closing Date as set forth
in Schedule 7.6; provided, except as provided in clause (h) of this
Section 9.4, none of the instruments and agreements evidencing or
governing such Indebtedness shall be amended, modified or supplemented
after the Closing Date to change any terms of subordination, repayment
or rights of enforcement, conversion, put, exchange or other rights
from such terms and rights as in effect on the Closing Date;
(b) Indebtedness owing to the Administrative Agent or any
Lender in connection with this Agreement, any Note or other Loan
Document;
(c) the endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business;
(d) purchase money Indebtedness described in Section 9.3(f)
not to exceed an aggregate outstanding principal amount at any time of
$10,000,000;
(e) Indebtedness arising under Capital Leases not to exceed an
aggregate outstanding amount at any time of $10,000,000;
(f) unsecured intercompany Indebtedness for loans and advances
made by the Borrower or any Guarantor to the Borrower or any Guarantor;
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(g) additional unsecured Indebtedness for Money Borrowed not
otherwise covered by clauses (a) through (f) above, provided that the
aggregate outstanding principal amount of all such other Indebtedness
permitted under this clause (g) shall in no event exceed $50,000,000 at
any time;
(h) Indebtedness extending the maturity of, or renewing,
refunding or refinancing, in whole or in part, Indebtedness incurred
under clause (a) of this Section 9.4, provided that the terms of any
such extension, renewal, refunding or refinancing Indebtedness (and of
any agreement or instrument entered into in connection therewith) are
no less favorable to the Administrative Agent and the Lenders than the
terms of the Indebtedness as in effect prior to such action, and
provided further that (1) the aggregate principal amount of or interest
rate or rates and fees payable on such extended, renewed, refunded or
refinanced Indebtedness shall not be increased by such action, (2) the
group of direct or contingent obligors on such Indebtedness shall not
be expanded as a result of any such action, and (3) immediately before
and immediately after giving effect to any such extension, renewal,
refunding or refinancing, no Default or Event of Default shall have
occurred and be continuing;
(i) Rate Hedging Obligations to the extent permitted under
Section 9.16; and
(j) Intercompany Indebtedness permitted under Section 9.6(g).
9.5 Transfer of Assets. Sell, lease, transfer or otherwise dispose of
any assets of Borrower or any Subsidiary other than (a) dispositions of
inventory in the ordinary course of business, (b) dispositions of property that
is substantially worn, damaged, obsolete or, in the judgment of the Borrower, no
longer best used or useful in its business or that of any Subsidiary, (c)
transfers of assets necessary to give effect to merger or consolidation
transactions permitted by Section 9.7, (d) the disposition of Eligible
Securities in the ordinary course of management of the investment portfolio of
the Borrower and its Subsidiaries, (e) sales of assets during the term of this
Agreement not exceeding 20% of Consolidated Total Assets as determined at the
time of any such sale, and (f) sales of accounts receivable in connection with
any Permitted Receivables Securitization.
9.6. Investments. Purchase, own, invest in or otherwise acquire,
directly or indirectly, any stock or other securities, or make or permit to
exist any interest whatsoever in any other Person or permit to exist any loans
or advances to any Person, except that Borrower may maintain investments or
invest in:
(a) securities of any Person acquired in an Acquisition
permitted hereunder;
(b) Eligible Securities;
(c) loans and investments existing as of the date hereof and
as set forth in Schedule 7.4;
(d) accounts receivable arising and trade credit granted in
the ordinary course of business and any securities received in
satisfaction or partial satisfaction thereof in connection with
accounts of financially troubled Persons to the extent reasonably
necessary in order to prevent or limit loss;
(e) investments in Subsidiaries which are Guarantors;
(f) loans between the Borrower and the Guarantors described in
Section 9.4(f);
(g) loans and advances to Subsidiaries who are not Guarantors
provided the aggregate outstanding principal amount of such loans and
advances shall not at any time exceed $15,000,000, not including such
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existing loans and advances as shown on Schedule 7.4 hereto; and
(h) other loans, advances and investments in an aggregate
principal amount at any time outstanding not to exceed $5,000,000.
9.7. Merger or Consolidation. (a) Consolidate with or merge into any
other Person, or (b) permit any other Person to merge into it, or (c) sell,
transfer or lease or otherwise dispose of all or a substantial part of its
assets (other than sales permitted under Section 9.5(a), (b) and (d)); provided,
however, (i) any Subsidiary of the Borrower may merge or transfer all or
substantially all of its assets into or consolidate with the Borrower or any
wholly-owned Domestic Subsidiary of the Borrower, and (ii) any other Person may
merge into or consolidate with the Borrower or any wholly-owned Domestic
Subsidiary and any Subsidiary may merge into or consolidate with any other
Person in order to consummate an Acquisition permitted by Section 9.2, provided
further, that any resulting or surviving entity shall execute and deliver such
agreements and other documents, including a Facility Guaranty, and take such
other action as the Administrative Agent may require to evidence or confirm its
express assumption of the obligations and liabilities of its predecessor
entities under the Loan Documents.
9.8. Restricted Payments. Make any Restricted Payment or apply or set
apart any of their assets therefor or agree to do any of the foregoing;
provided, however, the Borrower may, if immediately prior to and immediately
after giving effect to any of the following payments no Default or Event of
Default shall exist or occur and be continuing, make purchases in arms length
transactions of its common stock, provided the payments made in connection with
such purchases do not exceed the sum of (a) $75,000,000 and (b) 25% of its
Consolidated Net Income for each Fiscal Year ending after the Closing Date (on a
cumulative basis), in the aggregate during the term of this Agreement; provided,
further, however, that at no time shall the aggregate book value of all treasury
stock of the Borrower exceed 20% of Consolidated Total Assets.
9.9. Transactions with Affiliates. Other than transactions permitted
under Sections 9.6 and 9.7, enter into any transaction after the Closing Date,
including, without limitation, the purchase, sale, lease or exchange of
property, real or personal, or the rendering of any service, with any Affiliate
of the Borrower, except (a) that such Persons may render services to the
Borrower or its Subsidiaries for compensation at the same rates generally paid
by Persons engaged in the same or similar businesses for the same or similar
services, (b) that the Borrower or any Subsidiary may render services to such
Persons for compensation at the same rates generally charged by the Borrower or
such Subsidiary and (c) in either case in the ordinary course of business and
pursuant to the reasonable requirements of the Borrower's (or any Subsidiary's)
business consistent with past practice of the Borrower and its Subsidiaries and
upon fair and reasonable terms no less favorable to the Borrower (or any
Subsidiary) than would be obtained in a comparable arm's-length transaction with
a Person not an Affiliate.
9.10. Compliance with ERISA, the Code and Foreign Benefit Laws. With
respect to any Pension Plan, Employee Benefit Plan or Multiemployer Plan:
(a) permit the occurrence of any Termination Event which would
result in a liability on the part of the Borrower or any ERISA
Affiliate to the PBGC or to any Governmental Authority; or
(b) permit the present value of all benefit liabilities under
all Pension Plans to exceed the current value of the assets of such
Pension Plans allocable to such benefit liabilities; or
(c) permit any accumulated funding deficiency (as defined in
Section 302 of ERISA and Section 412 of the Code) with respect to any
Pension Plan, whether or not waived; or
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(d) fail to make any contribution or payment to any
Multiemployer Plan which the Borrower or any ERISA Affiliate may be
required to make under any agreement relating to such Multiemployer
Plan, or any law pertaining thereto; or
(e) engage, or permit any Borrower or any ERISA Affiliate to
engage, in any prohibited transaction under Section 406 of ERISA or
Sections 4975 of the Code for which a civil penalty pursuant to Section
502(I) of ERISA or a tax pursuant to Section 4975 of the Code may be
imposed; or
(f) permit the establishment of any Employee Benefit Plan
providing post-retirement welfare benefits or establish or amend any
Employee Benefit Plan which establishment or amendment could result in
liability to the Borrower or any ERISA Affiliate or increase the
obligation of the Borrower or any ERISA Affiliate to a Multiemployer
Plan; or
(g) fail, or permit the Borrower or any ERISA Affiliate to
fail, to establish, maintain and operate each Employee Benefit Plan in
compliance in all material respects with the provisions of ERISA, the
Code, all applicable Foreign Benefit Laws and all other applicable laws
and the regulations and interpretations thereof.
9.11. Fiscal Year. Change its Fiscal Year.
9.12. Dissolution, Etc. Wind up, liquidate or dissolve (voluntarily or
involuntarily) or commence or suffer any proceedings seeking any such winding
up, liquidation or dissolution, except in connection with a merger or
consolidation permitted pursuant to Section 9.7.
9.13. Limitations on Sales and Leasebacks. Enter into any arrangement
or arrangements with any Person providing for the leasing by the Borrower or any
Subsidiary of real or personal property, whether now owned or hereafter acquired
in a single transaction or series of related transactions, which has been or is
to be sold or transferred by the Borrower or any Subsidiary to such Person or to
any other Person to whom funds have been or are to be advanced by such Person on
the security of such property or rental obligations of the Borrower or any
Subsidiary; provided, however, so long as no Default or Event of Default has
occurred and is continuing or would exist as a result of such a transaction, the
Borrower and its Subsidiaries shall be permitted to enter into sale and
leaseback transactions so long as (i) the aggregate net cash proceeds received
for all such sales or dispositions does not exceed $25,000,000 during the term
of this Agreement and (ii) the purchase price for each such sale and leaseback
is no less than the fair market value of the applicable asset at the time of
sale.
9.14. Change in Control. Cause, suffer or permit to exist or occur any
Change of Control.
9.15. Negative Pledge Clauses. Enter into or cause, suffer or permit to
exist any agreement with any Person other than the Administrative Agent and the
Lenders pursuant to this Agreement or any other Loan Documents which prohibits
or limits the ability of any of the Borrower or any Subsidiary to create, incur,
assume or suffer to exist any Lien upon any of its property, assets or revenues,
whether now owned or hereafter acquired, provided that the Borrower and any
Subsidiary may enter into such an agreement in connection with, and that applies
only to, property acquired with the proceeds of purchase money Indebtedness
permitted hereunder and a Receivables Subsidiary may enter into such an
agreement.
9.16. Rate Hedging Obligations. Incur any Rate Hedging Obligations or
enter into any agreements, arrangements, devices or instruments relating to Rate
Hedging Obligations, except (i) pursuant to Swap Agreements in an aggregate
notional amount not to exceed at any time 50% of the Total Revolving Credit
Commitment, and (ii) Rate Hedging Obligations incurred to limit risks of
currency or interest rate fluctuations to which the Borrower and its
Subsidiaries are otherwise subject by virtue of the operation of their
respective businesses, and not for speculative purposes.
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ARTICLE X
Events of Default and Acceleration
10.1. Events of Default. If any one or more of the following events
(herein called "Events of Default") shall occur for any reason whatsoever (and
whether such occurrence shall be voluntary or involuntary or come about or be
effected by operation of law or pursuant to or in compliance with any judgment,
decree or order of any court or any order, rule or regulation of any
Governmental Authority), that is to say:
(a) if default shall be made in the due and punctual payment
of the principal of any Loan, Reimbursement Obligation or other
Obligation, when and as the same shall be due and payable whether
pursuant to any provision of Article II or Article III or Article IV,
at maturity, by acceleration or otherwise; or
(b) if default shall be made in the due and punctual payment
of any amount of interest on any Loan, Reimbursement Obligation or
other Obligation or of any fees or other amounts payable to any of the
Lenders or the Administrative Agent within three (3) days of the date
on which the same shall be due and payable; or
(c) if default shall be made in the performance or observance
of any covenant set forth in Section 8.8, 8.12, 8.13, 8.20 or Article
IX;
(d) if a default shall be made in the performance or
observance of, or shall occur under, any covenant, agreement or
provision contained in this Agreement or the Notes (other than as
described in clauses (a), (b) or (c) above) and such default shall
continue for thirty (30) or more days after the earlier of receipt of
notice of such default by the Authorized Representative from the
Administrative Agent or an officer of the Borrower becomes aware of
such default, or if a default shall be made in the performance or
observance of, or shall occur under, any covenant, agreement or
provision contained in any of the other Loan Documents (beyond any
applicable grace period, if any, contained therein) or in any
instrument or document evidencing or creating any obligation, guaranty,
or Lien in favor of the Administrative Agent or any of the Lenders or
delivered to the Administrative Agent or any of the Lenders in
connection with or pursuant to this Agreement or any of the
Obligations, or if any Loan Document ceases to be in full force and
effect (other than as expressly provided for hereunder or thereunder or
with the express written consent of the Administrative Agent), or if
without the written consent of the Lenders, this Agreement or any other
Loan Document or Transaction Document shall be disaffirmed or shall
terminate, be terminable or be terminated or become void or
unenforceable for any reason whatsoever (other than as expressly
provided for hereunder or thereunder or with the express written
consent of the Administrative Agent); or
(e) if there shall occur (i) a default, which is not waived,
in the payment of any principal, interest, premium or other amount with
respect to any Indebtedness (other than the Loans and other
Obligations) of the Borrower or any Subsidiary in an amount not less
than $5,000,000 in the aggregate outstanding, or (ii) a default, which
is not waived, in the performance, observance or fulfillment of any
term or covenant contained in any agreement or instrument under or
pursuant to which any such Indebtedness may have been issued, created,
assumed, guaranteed or secured by the Borrower or any Subsidiary, or
(iii) any other event of default as specified in any agreement or
instrument under or pursuant to which any such Indebtedness may have
been issued, created, assumed, guaranteed or secured by the Borrower or
any Subsidiary, and such default or event of default shall continue for
more than the period of grace, if any, therein specified, or such
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default or event of default shall permit the holder of any such
Indebtedness (or any agent or trustee acting on behalf of one or more
holders) to accelerate the maturity thereof; or
(f) if any representation, warranty or other statement of fact
contained in any Loan Document or in any writing, certificate, report
or statement at any time furnished to the Administrative Agent or any
Lender by or on behalf of the Borrower or any other Credit Party
pursuant to or in connection with any Loan Document, or otherwise,
shall be false or misleading in any material respect when given; or
(g) if the Borrower or any Subsidiary or other Credit Party
shall be unable to pay its debts generally as they become due; file a
petition to take advantage of any insolvency statute; make an
assignment for the benefit of its creditors; commence a proceeding for
the appointment of a receiver, trustee, liquidator or conservator of
itself or of the whole or any substantial part of its property; file a
petition or answer seeking liquidation, reorganization or arrangement
or similar relief under the federal bankruptcy laws or any other
applicable law or statute; or
(h) if a court of competent jurisdiction shall enter an order,
judgment or decree appointing a custodian, receiver, trustee,
liquidator or conservator of the Borrower or any Subsidiary or other
Credit Party or of the whole or any substantial part of its properties
and such order, judgment or decree continues unstayed and in effect for
a period of sixty (60) days, or approve a petition filed against the
Borrower or any Subsidiary seeking liquidation, reorganization or
arrangement or similar relief under the federal bankruptcy laws or any
other applicable law or statute of the United States of America or any
state, which petition is not dismissed within sixty (60) days; or if,
under the provisions of any other law for the relief or aid of debtors,
a court of competent jurisdiction shall assume custody or control of
the Borrower or any Subsidiary or other Credit Party or of the whole or
any substantial part of its properties, which control is not
relinquished within sixty (60) days; or if there is commenced against
the Borrower or any Subsidiary or other Credit Party any proceeding or
petition seeking reorganization, arrangement or similar relief under
the federal bankruptcy laws or any other applicable law or statute of
the United States of America or any state which proceeding or petition
remains undismissed for a period of sixty (60) days; or if the Borrower
or any Subsidiary or other Credit Party takes any action to indicate
its consent to or approval of any such proceeding or petition; or
(i) if (i) one or more judgments or orders where the amount
not covered by insurance (or the amount as to which the insurer denies
liability) is in excess of $500,000 is rendered against the Borrower or
any Subsidiary, or (ii) there is any attachment, injunction or
execution against any of the Borrower's or Subsidiaries' properties for
any amount in excess of $500,000 in the aggregate; and such judgment,
attachment, injunction or execution remains unpaid, unstayed,
undischarged, unbonded or undismissed for a period of thirty (30) days;
or
(j) if the Borrower or any Subsidiary shall, other than in the
ordinary course of business (as determined by past practices), suspend
all or any part of its operations material to the conduct of the
business of the Borrower or such Subsidiary for a period of more than
60 days; or
(k) if the Borrower or any Subsidiary shall breach any of the
material terms or conditions of any agreement under which any Rate
Hedging Obligation permitted hereby is created and such breach shall
continue beyond any grace period, if any, relating thereto pursuant to
the terms of such agreement, or if the Borrower or any Subsidiary shall
disaffirm or seek to disaffirm any such agreement or any of its
obligations thereunder; or
(l) if there shall occur and not be waived an Event of Default
as defined in any of the other Loan Documents;
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then, and in any such event and at any time thereafter, if such Event of Default
or any other Event of Default shall have not been waived or cured,
(A) either or both of the following actions may be
taken: (i) the Administrative Agent may, and at the direction
of the Required Lenders shall, declare any obligation of the
Lenders and the Issuing Bank to make further Revolving Loans
and Swing Line Loans or to issue additional Letters of Credit
terminated, whereupon the obligation of each Lender to make
further Revolving Loans, of Bank of America to make further
Swing Line Loans, and of the Issuing Bank to issue additional
Letters of Credit, hereunder shall terminate immediately, and
(ii) the Administrative Agent shall at the direction of the
Required Lenders, at their option, declare by notice to the
Borrower any or all of the Obligations to be immediately due
and payable, and the same, including all interest accrued
thereon and all other obligations of the Borrower to the
Administrative Agent and the Lenders, shall forthwith become
immediately due and payable without presentment, demand,
protest, notice or other formality of any kind, all of which
are hereby expressly waived, anything contained herein or in
any instrument evidencing the Obligations to the contrary
notwithstanding; provided, however, that notwithstanding the
above, if there shall occur an Event of Default under clause
(g) or (h) above that is continuing, then the obligation of
the Lenders to make Revolving Loans, of Bank of America to
make Swing Line Loans, and of the Issuing Bank to issue
Letters of Credit hereunder shall automatically terminate and
any and all of the Obligations shall be immediately due and
payable without the necessity of any action by the
Administrative Agent or the Required Lenders or notice to the
Administrative Agent or the Lenders;
(B) The Borrower shall, upon demand of the
Administrative Agent or the Required Lenders, deposit cash
with the Administrative Agent in an amount equal to the amount
of any Letter of Credit Outstandings, as collateral security
for the repayment of any future drawings or payments under
such Letters of Credit, and such amounts shall be held by the
Administrative Agent pursuant to the terms of the LC Account
Agreement; and
(C) the Administrative Agent and each of the Lenders
shall have all of the rights and remedies available under the
Loan Documents or under any applicable law.
10.2. Administrative Agent to Act. In case any one or more Events of
Default shall occur and not have been waived or cured, subject to the provisions
of Article XI, the Administrative Agent may, and at the direction of the
Required Lenders shall, proceed to protect and enforce their rights and remedies
contained herein or in any other Loan Document, or as may be otherwise available
at law or in equity.
10.3. Cumulative Rights No right or remedy herein conferred upon the
Lenders or the Administrative Agent is intended to be exclusive of any other
rights or remedies contained herein or in any other Loan Document, and every
such right or remedy shall be cumulative and shall be in addition to every other
such right or remedy contained herein and therein or now or hereafter existing
at law or in equity or by statute, or otherwise.
10.4. No Waiver. No course of dealing between the Borrower and any
Lender or the Administrative Agent or any failure or delay on the part of any
Lender or the Administrative Agent in exercising any rights or remedies under
any Loan Document or otherwise available to it shall operate as a waiver of any
rights or remedies and no single or partial exercise of any rights or remedies
shall operate as a waiver or preclude the exercise of any other rights or
remedies hereunder or of the same right or remedy on a future occasion.
10.5. Allocation of Proceeds. If an Event of Default has occurred and
not been waived or cured, and the maturity of the Notes has been accelerated
pursuant to Article X hereof, all payments received by the Administrative Agent
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hereunder, in respect of any principal of or interest on the Obligations or any
other amounts payable by the Borrower hereunder, shall be applied by the
Administrative Agent in the following order:
(a) amounts due to the Lenders and the Issuing Bank pursuant
to Sections 4.6(a), 4.6(b), 4.6(c), and 12.5;
(b) amounts due to the Administrative Agent pursuant to
Section 4.6(d);
(c) payments of interest on Loans, Swing Line Loans and
Reimbursement Obligations, to be applied for the ratable benefit of the
Lenders (with amounts payable in respect of Swing Line Outstandings
being included in such calculation and paid to Bank of America);
(d) payments of principal of Loans, Swing Line Loans and
Reimbursement Obligations, to be applied for the ratable benefit of the
Lenders (with amounts payable in respect of Swing Line Outstandings
being included in such calculation and paid to Bank of America);
(e) payments of cash amounts to the Administrative Agent in
respect of outstanding Letters of Credit pursuant to Section 10.1(B);
(f) amounts due to the Issuing Bank, the Administrative Agent
and the Lenders pursuant to Sections 3.2(h), 8.16 and 12.9;
(g) payments of all other amounts due under any of the Loan
Documents, if any, to be applied for the ratable benefit of the
Lenders;
(h) amounts due to any of the Lenders or their affiliates in
respect of Obligations consisting of liabilities under any Swap
Agreement with any of the Lenders or their affiliates on a pro rata
basis according to the amounts owed; and
(i) any surplus remaining after application as provided for
herein, to the Borrower or otherwise as may be required by applicable
law.
ARTICLE XI
The Administrative Agent
11.1. Appointment, Powers, and Immunities. Each Lender hereby
irrevocably appoints and authorizes the Administrative Agent to act as its agent
under this Agreement and the other Loan Documents with such powers and
discretion as are specifically delegated to the Administrative Agent by the
terms of this Agreement and the other Loan Documents, together with such other
powers as are reasonably incidental thereto. The Administrative Agent (which
term as used in this sentence and in Section 11.5 and the first sentence of
Section 11.6 hereof shall include its affiliates and its own and its affiliates'
officers, directors, employees, and agents):
(a) shall not have any duties or responsibilities except those
expressly set forth in this Agreement and shall not be a trustee or
fiduciary for any Lender;
(b) shall not be responsible to the Lenders for any recital,
statement, representation, or warranty (whether written or oral) made
in or in connection with any Loan Document or any certificate or other
document referred to or provided for in, or received by any of them
under, any Loan Document, or for the value, validity, effectiveness,
genuineness, enforceability, or sufficiency of any Loan Document, or
any other document referred to or provided for therein or for any
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failure by any Credit Party or any other Person to perform any of its
obligations thereunder;
(c) shall not be responsible for or have any duty to
ascertain, inquire into, or verify the performance or observance of any
covenants or agreements by any Credit Party or the satisfaction of any
condition or to inspect the property (including the books and records)
of any Credit Party or any of its Subsidiaries or affiliates;
(d) shall not be required to initiate or conduct any
litigation or collection proceedings under any Loan Document; and
(e) shall not be responsible for any action taken or omitted
to be taken by it under or in connection with any Loan Document, except
for its own gross negligence or willful misconduct.
The Administrative Agent may employ agents and attorneys-in-fact and shall not
be responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care.
11.2. Reliance by Administrative Agent. The Administrative Agent shall
be entitled to rely upon any certification, notice, instrument, writing, or
other communication (including, without limitation, any thereof by telephone or
telefacsimile) believed by it to be genuine and correct and to have been signed,
sent or made by or on behalf of the proper Person or Persons, and upon advice
and statements of legal counsel (including counsel for any Credit Party),
independent accountants, and other experts selected by the Administrative Agent.
The Administrative Agent may deem and treat the payee of any Note as the holder
thereof for all purposes hereof unless and until the Administrative Agent
receives and accepts an Assignment and Acceptance executed in accordance with
Section 12.1 hereof. As to any matters not expressly provided for by this
Agreement, the Administrative Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Required Lenders, and such instructions shall be
binding on all of the Lenders; provided, however, that the Administrative Agent
shall not be required to take any action that exposes the Administrative Agent
to personal liability or that is contrary to any Loan Document or applicable law
or unless it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking any such action.
11.3. Defaults. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of a Default or Event of Default unless
the Administrative Agent has received written notice from a Lender or the
Borrower specifying such Default or Event of Default and stating that such
notice is a "Notice of Default". In the event that the Administrative Agent
receives such a notice of the occurrence of a Default or Event of Default, the
Administrative Agent shall give prompt notice thereof to the Lenders. The
Administrative Agent shall (subject to Section 11.2 hereof) take such action
with respect to such Default or Event of Default as shall reasonably be directed
by the Required Lenders, provided that, unless and until the Administrative
Agent shall have received such directions, the Administrative Agent may (but
shall not be obligated to) take such action, or refrain from taking such action,
with respect to such Default or Event of Default as it shall deem advisable in
the best interest of the Lenders.
11.4. Rights as Lender. With respect to its Revolving Credit Commitment
and the Loans made by it and Letters of Credit issued by it, Bank of America
(and any successor acting as Administrative Agent) in its capacity as a Lender
hereunder shall have the same rights and powers hereunder as any other Lender
and may exercise the same as though it were not acting as the Administrative
Agent, and the term "Lender" or "Lenders" shall, unless the context otherwise
indicates, include the Administrative Agent in its individual capacity. Bank of
America (and any successor acting as Administrative Agent) and its affiliates
may (without having to account therefor to any Lender) accept deposits from,
lend money to, make investments in, provide services to, and generally engage in
any kind of lending, trust, or other business with any Credit Party or any of
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its Subsidiaries or affiliates as if it were not acting as Administrative Agent,
and Bank of America (and any successor acting as Administrative Agent) and its
affiliates may accept fees and other consideration from any Credit Party or any
of its Subsidiaries or affiliates for services in connection with this Agreement
or otherwise without having to account for the same to the Lenders.
11.5. Indemnification. The Lenders agree to indemnify the
Administrative Agent (to the extent not reimbursed under Section 12.9 hereof,
but without limiting the obligations of the Borrower under such Section) ratably
in accordance with their respective Revolving Credit Commitments, for any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses (including attorneys' fees), or disbursements of any kind
and nature whatsoever that may be imposed on, incurred by or asserted against
the Administrative Agent (including by any Lender) in any way relating to or
arising out of any Loan Document or the transactions contemplated thereby or any
action taken or omitted by the Administrative Agent under any Loan Document;
provided that no Lender shall be liable for any of the foregoing to the extent
they arise from the gross negligence or willful misconduct of the Person to be
indemnified. Without limitation of the foregoing, each Lender agrees to
reimburse the Administrative Agent promptly upon demand for its ratable share of
any costs or expenses payable by the Borrower under Section 12.5, to the extent
that the Administrative Agent is not promptly reimbursed for such costs and
expenses by the Borrower. The agreements contained in this Section 11.5 shall
survive payment in full of the Loans and all other amounts payable under this
Agreement.
11.6. Non-Reliance on Administrative Agent and Other Lenders. Each
Lender agrees that it has, independently and without reliance on the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of the
Credit Parties and their Subsidiaries and decision to enter into this Agreement
and that it will, independently and without reliance upon the Administrative
Agent or any other Lender, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own analysis and
decisions in taking or not taking action under the Loan Documents. Except for
notices, reports, and other documents and information expressly required to be
furnished to the Lenders by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the affairs, financial
condition, or business of any Credit Party or any of its Subsidiaries or
affiliates that may come into the possession of the Administrative Agent or any
of its affiliates.
11.7. Resignation of Administrative Agent. The Administrative Agent may
resign at any time by giving notice thereof to the Lenders and the Borrower.
Upon any such resignation, the Required Lenders and, so long as no Default or
Event of Default exists hereunder, with the approval of the Borrower, which
approval shall not be unreasonably withheld, shall have the right to appoint a
successor Administrative Agent. If no successor Administrative Agent shall have
been so appointed by the Required Lenders and shall have accepted such
appointment within thirty (30) days after the retiring Administrative Agent's
giving of notice of resignation, then the retiring Administrative Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent which shall be a
commercial bank organized under the laws of the United States of America having
combined capital and surplus of at least $500,000,000. Upon the acceptance of
any appointment as Administrative Agent hereunder by a successor, such successor
shall thereupon succeed to and become vested with all the rights, powers,
discretion, privileges, and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Article XI shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Administrative Agent.
11.8. Sole Lender. Notwithstanding anything to the contrary contained
herein, until there shall be two or more Lenders, all references to the
Administrative Agent herein and in the other Loan Documents shall be deemed to
refer to Bank of America as Lender.
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ARTICLE XII
Miscellaneous
12.1. Assignments and Participations. (a) Each Lender may assign to one or more
Eligible Assignees all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Loans, its
Notes, and its Revolving Credit Commitment); provided, however, that
(i) each such assignment shall be to an Eligible
Assignee;
(ii) except in the case of an assignment to another
Lender or an assignment of all of a Lender's rights and
obligations under this Agreement and except for the
assignments by Bank of America in connection with the initial
syndication of the Revolving Credit Facilities, any such
partial assignment shall be in an amount at least equal to
$5,000,000 or an integral multiple of $1,000,000 in excess
thereof;
(iii) each such assignment by a Lender shall be of a
constant, and not varying, percentage of all of its rights and
obligations under this Agreement and its Notes (except as a
result of the operation of Section 2.6 whereby a Lender may
assign its 364 Day Commitment but not its Three Year
Commitment) (except that any assignment by Bank of America
shall not include its rights, benefits or duties as the
Issuing Bank or as the provider of Swing Line Loans); and
(iv) the parties to such assignment shall execute and
deliver to the Administrative Agent for its acceptance an
Assignment and Acceptance in the form of Exhibit B hereto,
together with any Notes subject to such assignment and a
processing fee of $3,500.
Upon execution, delivery, and acceptance of such Assignment and
Acceptance, the assignee thereunder shall be a party hereto and, to the
extent of such assignment, have the obligations, rights, and benefits
of a Lender hereunder and the assigning Lender shall, to the extent of
such assignment, relinquish its rights and be released from its
obligations under this Agreement. Upon the consummation of any
assignment pursuant to this Section, the assignor, the Administrative
Agent and the Borrower shall make appropriate arrangements so that, if
required, new Notes are issued to the assignor and the assignee. If the
assignee is not incorporated under the laws of the United States of
America or a state thereof, it shall deliver to the Borrower and the
Administrative Agent certification as to exemption from deduction or
withholding of Taxes in accordance with Section 5.6.
(b) The Administrative Agent shall maintain at its address
referred to in Section 12.2 a copy of each Assignment and Acceptance
delivered to and accepted by it and a register for the recordation of
the names and addresses of the Lenders and the Revolving Credit
Commitment of, and principal amount of the Revolving Loans owing to,
each Lender from time to time (the "Register"). The entries in the
Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrower, the Administrative Agent and the
Lenders may treat each Person whose name is recorded in the Register as
a Lender hereunder for all purposes of this Agreement. The Register
shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(c) Upon its receipt of an Assignment and Acceptance executed
by the parties thereto, together with any Note subject to such
assignment and payment of the processing fee, the Administrative Agent
shall, if such Assignment and Acceptance has been completed and is in
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substantially the form of Exhibit B hereto, (i) accept such Assignment
and Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the parties thereto.
(d) Each Lender may sell participations to one or more Persons
in all or a portion of its rights, obligations or rights and
obligations under this Agreement (including all or a portion of its
Revolving Credit Commitment or its Loans); provided, however, that (i)
such Lender's obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) the participant
shall be entitled to the benefit of the yield protection provisions
contained in Article V and the right of set-off contained in Section
12.3, and (iv) the Borrower shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and
obligations under this Agreement, and such Lender shall retain the sole
right to enforce the obligations of the Borrower relating to its Loans
and its Notes and to approve any amendment, modification, or waiver of
any provision of this Agreement (other than amendments, modifications,
or waivers decreasing the amount of principal of or the rate at which
interest is payable on such Loans or Notes, extending any scheduled
principal payment date or date fixed for the payment of interest on
such Loans or Notes, or extending its Revolving Credit Commitment).
(e) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time assign and pledge all or any
portion of its Loans and its Note to any Federal Reserve Bank as
collateral security pursuant to Regulation A and any Operating Circular
issued by such Federal Reserve Bank. No such assignment shall release
the assigning Lender from its obligations hereunder.
(f) Any Lender may furnish any information concerning the
Borrower or any of its Subsidiaries in the possession of such Lender
from time to time to assignees and participants (including prospective
assignees and participants).
(g) Whenever in this Agreement any of the parties hereto is
referred to, such reference shall be deemed to include the successors
and permitted assigns of such party and all covenants, provisions and
agreements by or on behalf of the Borrower which are contained in the
Loan Documents shall inure to the benefit of the successors and
permitted assigns of the Administrative Agent, the Lenders, or any of
them. The Borrower may not assign or otherwise transfer to any other
Person any right, power, benefit, or privilege (or any interest
therein) conferred hereunder or under any of the other Loan Documents,
or delegate (by assumption or otherwise) to any other Person any duty,
obligation, or liability arising hereunder or under any of the other
Loan Documents, and any such purported assignment, delegation or other
transfer shall be void.
12.2. Notices. Any notice shall be conclusively deemed to have been
received by any party hereto and be effective (i) on the day on which delivered
(including hand delivery by commercial courier service) to such party (against
receipt therefor), (ii) on the date of transmission to such party, in the case
of notice by telefacsimile (where the proper transmission of such notice is
either acknowledged by the recipient or electronically confirmed by the
transmitting device), or (iii) on the fifth Business Day after the day on which
mailed to such party, if sent prepaid by certified or registered mail, return
receipt requested, in each case delivered, transmitted or mailed, as the case
may be, to the address or telefacsimile number, as appropriate, set forth below
or such other address or number as such party shall specify by notice hereunder:
(a) if to the Borrower:
Rexall Sundown, Inc.
6111 Broken Sound Parkway, N.W.
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Boca Raton, Florida 33487
Attn: Vice President and Chief Financial Officer
Telephone: (561) 999-1500
Telefacsimile: (561) 999-4175
with a copy to:
Rexall Sundown, Inc.
6111 Broken Sound Parkway, N.W.
Boca Raton, Florida 33487
Attn: Vice President and General Counsel
Telephone: (561) 999-1008
Telefacsimile: (561) 999-4729
(b) if to the Administrative Agent:
Bank of America, N.A.
101 North Tryon Street, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services
Telephone: (704) 386-2881
Telefacsimile: (704) 386-9923
with a copy to:
Bank of America, N.A.
FL7-950-14-02
100 Southeast 2nd Street, 14th Floor
Miami, Florida 33131
Attention: Richard M. Starke
Telephone: (305) 533-2418
Telefacsimile: (305) 533-2437
(c) if to the Lenders:
At the addresses set forth on the signature pages
hereof and on the signature page of each Assignment
and Acceptance;
(d) if to any other Credit Party, at the address set
forth on the signature page of the Facility Guaranty
executed by such Credit Party, as the case may be.
12.3. Right of Set-off; Adjustments. (a) Upon the occurrence and during
the continuance of any Event of Default, each Lender (and each of its
affiliates) is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender (or any of its affiliates)
to or for the credit or the account of the Borrower against any and all of the
obligations of the Borrower now or hereafter existing under this Agreement and
the Note held by such Lender, irrespective of whether such Lender shall have
made any demand under this Agreement or such Note and although such obligations
may be unmatured. Each Lender agrees promptly to notify the Borrower after any
such set-off and application made by such Lender; provided, however, that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender under this Section 12.3 are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) that such Lender may have.
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(b) If any Lender (a "benefited Lender") shall at any time receive any
payment of all or part of the Loans owing to it, or interest thereon, or receive
any collateral in respect thereof (whether voluntarily or involuntarily, by
set-off, or otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such other
Lender's Loans owing to it, or interest thereon, such benefited Lender shall
purchase for cash from the other Lenders a participating interest in such
portion of each such other Lender's Loans owing to it, or shall provide such
other Lenders with the benefits of any such collateral, or the proceeds thereof,
as shall be necessary to cause such benefited Lender to share the excess payment
or benefits of such collateral or proceeds ratably with each of the Lenders;
provided, however, that if all or any portion of such excess payment or benefits
is thereafter recovered from such benefited Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest. The Borrower agrees that any Lender so
purchasing a participation from a Lender pursuant to this Section 12.3 may, to
the fullest extent permitted by law, exercise all of its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Person were the direct creditor of the Borrower in the amount of such
participation.
12.4. Survival. All covenants, agreements, representations and
warranties made herein shall survive the making by the Lenders of the Loans and
the issuance of the Letters of Credit and the execution and delivery to the
Lenders of this Agreement and the Notes and shall continue in full force and
effect so long as any of Obligations remain outstanding or any Lender has any
Revolving Credit Commitment hereunder or the Borrower has continuing obligations
hereunder unless otherwise provided herein.
12.5. Expenses. The Borrower agrees to pay on demand all reasonable
costs and expenses of the Administrative Agent in connection with the
syndication, preparation, execution, delivery, administration, modification, and
amendment of this Agreement, the other Loan Documents, and the other documents
to be delivered hereunder, including, without limitation, the reasonable fees
and expenses of counsel for the Administrative Agent with respect thereto and
with respect to advising the Administrative Agent as to its rights and
responsibilities under the Loan Documents. The Borrower further agrees to pay on
demand all costs and expenses of the Administrative Agent and the Lenders, if
any (including, without limitation, reasonable attorneys' fees and expenses), in
connection with the enforcement (whether through negotiations, legal
proceedings, or otherwise) of the Loan Documents and the other documents to be
delivered hereunder.
12.6. Amendments and Waivers. Any provision of this Agreement or any
other Loan Document may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed by the Borrower or other applicable Credit
Party party to such Loan Document and either the Required Lenders or (as to Loan
Documents other than the Credit Agreement) the Administrative Agent on behalf of
the Required Lenders (and, if Article XI or the rights or duties of the
Administrative Agent are affected thereby, by the Administrative Agent);
provided that no such amendment or waiver shall, unless signed by all the
Lenders, (i) increase the Revolving Credit Commitments of the Lenders or the
Total Revolving Credit Commitment except as provided in Section 2.5, (ii) reduce
the principal of or rate of interest on any Revolving Loan or any fees or other
amounts payable hereunder, (iii) postpone any date fixed for the payment of any
scheduled installment of principal of or interest on any Loan or any fees or
other amounts payable hereunder or for termination of any Revolving Credit
Commitment except as provided in Section 2.6, or (iv) change the percentage of
the Revolving Credit Commitment or of the unpaid principal amount of the Notes,
or the number of Lenders, which shall be required for the Lenders or any of them
to take any action under this Section 12.6 or any other provision of this
Agreement or (v) release any Guarantor except as expressly contemplated in the
Loan Documents; and provided, further, that no such amendment or waiver that
affects the rights, privileges or obligations of Bank of America as provider of
Swing Line Loans, shall be effective unless signed in writing by Bank of America
or that affects the rights, privileges or obligations of the Issuing Bank as
issuer of Letters of Credit, shall be effective unless signed in writing by the
Issuing Bank.
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No notice to or demand on the Borrower in any case shall entitle the
Borrower to any other or further notice or demand in similar or other
circumstances, except as otherwise expressly provided herein. No delay or
omission on any Lender's or the Administrative Agent's part in exercising any
right, remedy or option shall operate as a waiver of such or any other right,
remedy or option or of any Default or Event of Default.
12.7. Counterparts; Facsimile Signatures. This Agreement may be
executed in any number of counterparts, each of which when so executed and
delivered shall be deemed an original, and it shall not be necessary in making
proof of this Agreement to produce or account for more than one such
fully-executed counterpart. Signatures on communications and other documents may
be transmitted by facsimile only with the consent of the Administrative Agent in
its sole and absolute discretion in each instance. The effectiveness of any such
signatures accepted by the Administrative Agent shall, subject to applicable
law, have the same force and effect as manual signatures and shall be binding on
all parties. The Administrative Agent may also require that any such signature
be confirmed by a manually-signed hardcopy thereof. Each party hereto hereby
adopts as an original executed signature page each signature page hereafter
furnished by such party to the Administrative Agent (or an agent of the
Administrative Agent) bearing (with the consent of the Administrative Agent) a
facsimile signature by or on behalf of such party. Nothing contained in this
Section shall limit the provisions of Section 11.2.
12.8. Termination. The termination of this Agreement shall not affect
any rights of the Borrower, the Lenders or the Administrative Agent or any
obligation of the Borrower, the Lenders or the Administrative Agent, arising
prior to the effective date of such termination, and the provisions hereof shall
continue to be fully operative until all transactions entered into or rights
created or obligations incurred prior to such termination have been fully
disposed of, concluded or liquidated and the Obligations arising prior to or
after such termination have been irrevocably paid in full. The rights granted to
the Administrative Agent for the benefit of the Lenders under the Loan Documents
shall continue in full force and effect, notwithstanding the termination of this
Agreement, until all of the Obligations have been paid in full after the
termination hereof (other than Obligations in the nature of continuing
indemnities or expense reimbursement obligations not yet due and payable, which
shall continue) or the Borrower has furnished the Lenders and the Administrative
Agent with an indemnification satisfactory to the Administrative Agent and each
Lender with respect thereto. Notwithstanding the foregoing, if after receipt of
any payment of all or any part of the Obligations, any Lender is for any reason
compelled to surrender such payment to any Person because such payment is
determined to be void or voidable as a preference, impermissible setoff, a
diversion of trust funds or for any other reason, this Agreement shall continue
in full force and the Borrower shall be liable to, and shall indemnify and hold
the Administrative Agent or such Lender harmless for, the amount of such payment
surrendered until the Administrative Agent or such Lender shall have been
finally and irrevocably paid in full. The provisions of the foregoing sentence
shall be and remain effective notwithstanding any contrary action which may have
been taken by the Administrative Agent or the Lenders in reliance upon such
payment, and any such contrary action so taken shall be without prejudice to the
Administrative Agent or the Lenders' rights under this Agreement and shall be
deemed to have been conditioned upon such payment having become final and
irrevocable.
12.9. Indemnification; Limitation of Liability. (a) The Borrower agrees
to indemnify and hold harmless the Administrative Agent and each Lender and each
of their affiliates and their respective officers, directors, employees, agents,
and advisors (each, an "Indemnified Party") from and against any and all claims,
damages, losses, liabilities, costs, and expenses (including, without
limitation, reasonable attorneys' fees) that may be incurred by or asserted or
awarded against any Indemnified Party, in each case arising out of or in
connection with or by reason of (including, without limitation, in connection
with any investigation relating to litigation, litigation, or proceeding or
preparation of defense in connection therewith) the Loan Documents, any of the
transactions contemplated herein or the actual or proposed use of the proceeds
of the Loans, except to the extent such claim, damage, loss, liability, cost, or
expense is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross negligence or
willful misconduct. In the case of an investigation, litigation or other
proceeding to which the indemnity in this Section 12.9 applies, such indemnity
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shall be effective whether or not such investigation, litigation or proceeding
is brought by the Borrower, its directors, shareholders or creditors or an
Indemnified Party or any other Person or any Indemnified Party is otherwise a
party thereto and whether or not the transactions contemplated hereby are
consummated. The Borrower agrees that no Indemnified Party shall have any
liability (whether direct or indirect, in contract or tort or otherwise) to it,
any of its Subsidiaries, any Guarantor, or any security holders or creditors
thereof arising out of, related to or in connection with the transactions
contemplated herein, except to the extent that such liability is found in a
final non-appealable judgment by a court of competent jurisdiction to have
directly resulted from such Indemnified Party's gross negligence or willful
misconduct. The Borrower agrees not to assert any claim against the
Administrative Agent, any Lender, any of their affiliates, or any of their
respective directors, officers, employees, attorneys, agents, and advisers, on
any theory of liability, for special, indirect, consequential, or punitive
damages arising out of or otherwise relating to the Loan Documents, any of the
transactions contemplated herein or the actual or proposed use of the proceeds
of the Loans.
(b) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 12.9 shall survive the payment in full of the Loans and all other
amounts payable under this Agreement.
12.10. Severability. If any provision of this Agreement or the other
Loan Documents shall be determined to be illegal or invalid as to one or more of
the parties hereto, then such provision shall remain in effect with respect to
all parties, if any, as to whom such provision is neither illegal nor invalid,
and in any event all other provisions hereof shall remain effective and binding
on the parties hereto.
12.11. Entire Agreement. This Agreement, together with the other Loan
Documents, constitutes the entire agreement among the parties with respect to
the subject matter hereof and supersedes all previous proposals, negotiations,
representations, commitments and other communications between or among the
parties, both oral and written, with respect thereto (except that those
provisions (if any) which by the express terms of the commitment letter dated as
of December 10, 1999, executed by Bank of America and BAS and accepted by the
Borrower, survive the closing of the Revolving Credit Facilities and Letter of
Credit Facility, shall survive and continue in effect).
12.12. Agreement Controls. In the event that any term of any of the
Loan Documents other than this Agreement conflicts with any express term of this
Agreement, the terms and provisions of this Agreement shall control to the
extent of such conflict.
12.13. Usury Savings Clause. Notwithstanding any other provision
herein, the aggregate interest rate charged under any of the Notes, including
all charges or fees in connection therewith deemed in the nature of interest
under applicable law shall not exceed the Highest Lawful Rate (as such term is
defined below). If the rate of interest (determined without regard to the
preceding sentence) under this Agreement at any time exceeds the Highest Lawful
Rate (as defined below), the outstanding amount of the Loans made hereunder
shall bear interest at the Highest Lawful Rate until the total amount of
interest due hereunder equals the amount of interest which would have been due
hereunder if the stated rates of interest set forth in this Agreement had at all
times been in effect. In addition, if when the Loans made hereunder are repaid
in full the total interest due hereunder (taking into account the increase
provided for above) is less than the total amount of interest which would have
been due hereunder if the stated rates of interest set forth in this Agreement
had at all times been in effect, then to the extent permitted by law, the
Borrower shall pay to the Administrative Agent an amount equal to the difference
between the amount of interest paid and the amount of interest which would have
been paid if the Highest Lawful Rate had at all times been in effect.
Notwithstanding the foregoing, it is the intention of the Lenders and the
Borrower to conform strictly to any applicable usury laws. Accordingly, if any
Lender contracts for, charges, or receives any consideration which constitutes
interest in excess of the Highest Lawful Rate, then any such excess shall be
cancelled automatically and, if previously paid, shall at such Lender's option
be applied to the outstanding amount of the Loans made hereunder or be refunded
to the Borrower. As used in this paragraph, the term "Highest Lawful Rate" means
the maximum lawful interest rate, if any, that at any time or from time to time
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may be contracted for, charged, or received under the laws applicable to such
Lender which are presently in effect or, to the extent allowed by law, under
such applicable laws which may hereafter be in effect and which allow a higher
maximum nonusurious interest rate than applicable laws now allow.
12.14. Payments. All principal, interest, and other amounts to be paid
by the Borrower under this Agreement and the other Loan Documents shall be paid
to the Administrative Agent at the Principal Office in Dollars and in
immediately available funds, without setoff, recoupment, deduction or
counterclaim. Subject to the definition of "Interest Period" herein, whenever
any payment under this Agreement or any other Loan Document shall be stated to
be due on a day that is not a Business Day, such payment may be made on the next
succeeding Business Day, and such extension of time in such case shall be
included in the computation of interest and fees, as applicable, and as the case
may be.
12.15. Confidentiality. The Administrative Agent and each Lender (each,
a "Lending Party") agrees to keep confidential any information furnished or made
available to it by the Borrower pursuant to this Agreement; provided that
nothing herein shall prevent any Lending Party from disclosing such information
(a) to any other Lending Party or any affiliate of any Lending Party, or any
officer, director, employee, agent, or advisor of any Lending Party or affiliate
of any Lending Party, (b) to any other Person if reasonably incidental to the
administration of the Revolving Credit Facilities provided herein, (c) as
required by any law, rule, or regulation, (d) upon the order of any court or
administrative agency, (e) upon the request or demand of any regulatory agency
or authority, (f) that is or becomes available to the public or that is or
becomes available to any Lending Party other than as a result of a disclosure by
any Lending Party prohibited by this Agreement or through disclosure by any
other Person whom the Administrative Agent or such Lender has reason to believe
disclosed such information in violation or contrary to the confidentiality
requirements or policies of the Borrower or a Subsidiary, (g) in connection with
any litigation to which such Lending Party or any of its affiliates may be a
party, (h) to the extent necessary in connection with the exercise of any remedy
under this Agreement or any other Loan Document, and (i) subject to provisions
substantially similar to those contained in this Section 12.15, to any actual or
proposed participant or assignee.
12.16. Governing Law; Waiver of Jury Trial.
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
FLORIDA APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN
SUCH STATE.
(b) THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN MAY BE
INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN THE COUNTY OF PALM
BEACH, STATE OF FLORIDA, UNITED STATES OF AMERICA AND, BY THE EXECUTION
AND DELIVERY OF THIS AGREEMENT, THE BORROWER EXPRESSLY WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE IN,
OR TO THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY BY, ANY
SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING, AND THE BORROWER
HEREBY IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(c) THE BORROWER AGREES THAT SERVICE OF PROCESS MAY BE MADE BY
PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER LEGAL
PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED OR
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CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS OF THE BORROWER
PROVIDED IN SECTION 12.2, OR BY ANY OTHER METHOD OF SERVICE PROVIDED
FOR UNDER THE APPLICABLE LAWS IN EFFECT IN THE STATE OF FLORIDA.
(d) NOTHING CONTAINED IN SUBSECTIONS (b) OR (c) HEREOF SHALL
PRECLUDE THE ADMINISTRATIVE AGENT OR ANY LENDER FROM BRINGING ANY SUIT,
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT IN
THE COURTS OF ANY JURISDICTION WHERE THE BORROWER OR ANY OF THE
BORROWER'S PROPERTY OR ASSETS MAY BE FOUND OR LOCATED. TO THE EXTENT
PERMITTED BY THE APPLICABLE LAWS OF ANY SUCH JURISDICTION, THE BORROWER
HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT AND
EXPRESSLY WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING,
OBJECTION TO THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY BY
ANY SUCH OTHER COURT OR COURTS WHICH NOW OR HEREAFTER MAY BE AVAILABLE
UNDER APPLICABLE LAW.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO ANY LOAN DOCUMENT OR ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN
THE FUTURE BE DELIVERED IN CONNECTION THEREWITH, THE BORROWER, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY AGREE, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, THAT ANY SUCH ACTION, SUIT OR PROCEEDING
SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY AND HEREBY
IRREVOCABLY WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
SUCH PERSON MAY HAVE TO TRIAL BY JURY IN ANY SUCH ACTION, SUIT OR
PROCEEDING.
(f) THE BORROWER HEREBY EXPRESSLY WAIVES ANY OBJECTION IT MAY
HAVE THAT ANY COURT TO WHOSE JURISDICTION IT HAS SUBMITTED PURSUANT TO
THE TERMS HEREOF IS AN INCONVENIENT FORUM.
[Signatures on following pages]
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be made, executed and delivered by their duly authorized officers as of the day
and year first above written.
REXALL SUNDOWN, INC.
WITNESS:
/s/ Rebecca Chaffin By: /s/ Richard P. Goudis
----------------------- ------------------------------
Name: Richard P. Goudis
/s/ R. Malloy McKeithen Title: Vice President of Finance
-----------------------
BANK OF AMERICA, N.A.,
as Administrative Agent for the Lenders
By: /s/ Richard M. Starke
-------------------------
Name: Richard M. Starke
Title: Managing Director
BANK OF AMERICA, N.A.
By: /s/ Richard M. Starke
-------------------------
Name: Richard M. Starke
Title: Managing Director
Lending Office for Base Rate Loans:
Bank of America, N.A.
101 North Tryon Street, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services
Telephone: (704) 386-2881
Telefacsimile:(704) 386-9923
Wire Transfer Instructions:
Bank of America, N.A.
ABA# 053000196
Account No.: 3890123977
Reference: Rexall Sundown, Inc.
Attention: Agency Services
Lending Office for Eurodollar Rate Loans:
Bank of America, N.A.
101 North Tryon Street, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services
Telephone: (704) 386-2881
Telefacsimile: (704) 386-9923
Wire Transfer Instructions:
Bank of America, N.A.
ABA# 053000196
Account No.: 3890123977
Reference: Rexall Sundown, Inc.
Attention: Agency Services
71
EMPLOYMENT AGREEMENT
--------------------
THIS EMPLOYMENT AGREEMENT is entered into as of January 7, 2000 by and
between MET-RX NUTRITION, INC., a Delaware corporation (the "Company"), and A.
SCOTT CONNELLY, M.D. (the "Employee").
R E C I T A L S
The Company desires to employ the Employee, and the Employee desires to
be employed by the Company, in accordance with the provisions contained in this
Employment Agreement (the "Agreement").
NOW, THEREFORE, in consideration of the premises and the respective
covenants and agreements of each of the Company and the Employee contained in
this Agreement, each of the Company and the Employee agrees as follows:
I. EMPLOYMENT
1.1 Employment. The Company employs the Employee and the Employee
accepts such employment. Subject to the direction of the Board of Directors of
the Company, the Employee shall serve as the Chief Technical Officer of the
Company. The Employee shall have such responsibilities, perform such duties and
exercise such power and authority as are inherent in, or incident to, the office
of the Chief Technical Officer of the Company, which are coordinating and
planning research for the Company's products and acting as a spokesperson for
the Company's products in accordance with the Company's public relations plans.
It is understood that the Employee shall have no management or administrative
duties, except with respect to employment decisions relating to the Company's
research and development and clinical sciences department in accordance with the
Company's budget, and the Employee shall have reasonable flexibility with
respect to the method, hours, location and any travel in connection with the
performance of his duties hereunder. The Employee shall devote his full business
time and attention and his best efforts to the performance of his duties as an
employee of the Company.
1.2 Permitted Business Activities. Without limiting the generality of
the provisions of Section 6.1 hereof, during the term of this Agreement, the
Employee will not engage in any other business activities for any direct or
indirect remuneration without the prior written consent of the Company;
provided, however, that subject to the prior written consent of the Company, the
Employee may act as a director of any profit or nonprofit corporation if such
activity is not inconsistent with the business of the Company; provided,
further, that Employee may engage in passive personal investment activities not
inconsistent with the provisions of Section 6.1 hereof; provided, further, that
Employee may devote a minimal amount of time to (i) the operation of the Club
MET-Rx (which includes a Cafe MET-Rx on its premises located at 140b East 17th
Street, Costa Mesa, CA, provided, however, that if the club located at such
premises is destroyed or condemned or the Employee is required to relocate the
club because of the termination of the applicable lease, then one replacement
club in Orange County, California that is substantially similar in size and
appearance may be operated by the Employee in lieu of the current club), and
(ii) the manufacture of the portable blender or mixer bearing the Cafe MET-Rx
trademark, provided that the sale of such blenders shall be made through the
Company as the exclusive distributor therefor.
1.3 Termination of Old Agreement. The Executive Employment Agreement
effective January 1, 1999 by and between the Employee, the Company, MET-Rx
Substrate Technology, Inc. and MET-Rx, USA, Inc. shall terminate on the date
hereof be of no further force and effect, except with respect to the provision
of Section 5 thereof which shall continue in full force and effect
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II. TERM
2.1 Term. Subject to the provisions of Article V hereof, the term of
this Agreement shall be for a period of five (5) years commencing on January 7,
2000 and terminating on January 6, 2005 (the "Term"). Notwithstanding anything
hereinto the contrary, the Employee shall have the right to terminate the
Agreement on not less than sixty (60) days prior written notice to the Company
effective on or after January 7, 2003.
III. COMPENSATION
3.1 Salary. In payment for the obligations to be performed by the
Employee during the Term, the Company shall pay to the Employee (subject to any
applicable payroll and/or taxes required to be withheld) annual compensation
("Annual Compensation") equal to (i) a salary of Two Hundred Fifty Thousand
Dollars ($250,000.00) in cash for the year commencing January 7, 2000; (ii) a
salary of Five Hundred Thousand Dollars ($500,000.00) in cash per year for each
of the years commencing January 7, 2001 and January 7, 2002; and (iii) a salary
of Six Hundred Fifty Thousand Dollars ($650,000.00) in cash for each of the
years commencing January 7, 2003 and January 7, 2004.
3.2 Payment of Salary. Payments of salary shall be made to the Employee
in installments from time to time on the same dates that payments of salary are
generally made to all employees of the Company.
3.3 Incentive Compensation. The Company shall pay the Employee an
incentive compensation bonus in an amount up to thirty-seven and one-half
percent (37-1/2%) of the Employee's Annual Compensation for each of the
Company's fiscal years during the Term hereof based upon such criteria as are
mutually determined by the Company and the Employee; provided, however, the
incentive compensation bonus for the first two fiscal years hereunder shall be
in an amount up to seventy-five percent (75%) of the Employee's Annual
Compensation up to a maximum of Three Hundred Seventy-Five Thousand Dollars
($375,000.00) in the aggregate.
3.4 Stock Options. Concurrently hereunder, the Company is issuing the
Employee stock options pursuant to the 1993 Stock Incentive Plan of Rexall
Sundown, Inc., a Florida corporation ("Rexall"). If such options are cancelled
because Rexall's shareholders do not approve the amendment to such Plan at
Rexall's February 2000 annual shareholder meeting or at another shareholder
meeting on or before June 30, 2000, the Employee's Annual Compensation shall
increase by One Hundred Fifty Thousand Dollars ($150,000.00) per year.
IV. CERTAIN FRINGE BENEFITS
4.1 Generally. The Employee shall be entitled to reimbursement for
reasonable business expenses incurred in connection with his employment
including customer entertainment. The Company will also provide the Employee
with a credit card for business travel and entertainment and all of Employee's
air travel as an employee of the Company or its affiliates will be first
claSection The Employee shall further be entitled to receive such benefits and
to participate in such benefit plans as are generally provided from time to time
by the Company to its senior executives; provided, however, that nothing
contained in this Section 4.1 shall be construed to obligate the Company to
provide any specific benefits to its senior executives or employees generally.
Notwithstanding the foregoing, the Employee shall be entitled to the following
benefits:
(a) the Company shall maintain, for the Employee's benefit, a
membership in the Pacific Club and shall pay the monthly dues and assessments
thereon and all reasonable business expenses of the Employee's business meals
and entertainment at such club. At the conclusion of the Employee's employment
with the Company, at the Employee's option, the Company shall transfer the
membership in the Pacific Club to the Employee at the Company's original cost;
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(b) the Company shall reimburse the Employee for a full
executive physical examination on an annual basis through the University of
California at Irvine or another provider of the Employee's choice at a cost not
to exceed $3,000 per year;
(c) the Company shall reimburse the Employee for costs of
estate, tax, and financial planning to an amount not exceeding $3,000 per year;
and
(d) during the Term hereof, the Company will provide the
Employee with the Company's products, which shall also include all products
produced by any subsidiary of the Company, for his personal use at no charge and
after the termination of this Agreement for any reason, the Employee shall be
entitled to purchase the Company's products, which shall also include all
products produced by any subsidiary of the Company, for his personal use at a
cost equal to 63% of the standard list price of such products.
4.2 Vacations. The Employee shall be entitled to four (4) weeks
vacation time on an annual basis.
4.3 No Relocation Required. The Employee shall not be required to
relocate outside Orange County, California in the performance of his duties
without his prior written consent, which consent may be withheld in the
Employee's sole discretion. In addition, during the three (3) year period
commencing on the date hereof, the Company will not close the Company's research
and development and clinical sciences department or relocate it outside Orange
County, California without the Employee's prior written consent, which may be
withheld in the Employee's sole discretion.
4.4 Term Life Insurance Policy. The Employee will be reimbursed for the
premiums paid by the Employee in order to obtain a term life insurance policy
with up to a $5,000,000 benefit; provided, however, that the Company shall not
be required to pay aggregate premiums for any year in excess of $10,000. The
Company acknowledges that if the Company is no longer required to reimburse the
Employee for such premiums, the Employee shall be entitled, at his option and at
his sole expense, to continue to maintain such term life insurance policy,
subject to the provisions thereof.
V. TERMINATION OF EMPLOYMENT
5.1 Certain Definitions. The following terms shall have the following
respective meanings when utilized in this Agreement:
(a) "Acquisition of Control" shall mean:
(i) any person (including a Group), without the
approval of a majority of the Incumbent Directors, becoming the Beneficial Owner
of, or acquiring the power to direct the exercise of voting power with respect
to, directly or indirectly, securities which represent thirty percent (30%) or
more of the combined voting power of Rexall's outstanding securities thereafter,
whether or not some portion of such securities was owned by such person (or by
any member of such Group) prior thereto; provided, however, that this provision
shall not apply to acquisitions by a director, executive officer or their
affiliates if such person had such status on January 7, 2000; or
(ii) the Incumbent Directors cease at any time to
constitute a majority of the Board of Directors, whether of (A) Rexall or (B)
after any cash tender offer or exchange offer, merger, consolidation or other
business combination, recapitalization of Rexall, sale, liquidation or
dissolution (or adoption of a plan for liquidation or dissolution), or any
combination of any or all of the foregoing transactions, including but not
limited to a series of such transactions, any successor to Rexall; provided,
however, an Acquisition of Control shall not be deemed to have occurred with
respect to the Employee if the action of the Employee was voluntary and would
3
<PAGE>
have been sufficient, without the action of others, to constitute an Acquisition
of Control.
(b) "Beneficial Owner" shall have the meaning provided in
Section 607.0901(1)(e) of the Florida Statutes.
(c) "Cause" shall mean any action by the Employee or any
inaction by the Employee which constitutes:
(i) fraud, embezzlement, misappropriation, dishonesty
or breach of trust;
(ii) a felony of moral turpitude;
(iii) material breach or violation of any or all of
the covenants, agreements and obligations of the Employee set forth in this
Agreement, other than as the result of the Employee's death or Disability;
(iv) a willful or knowing failure or refusal by the
Employee to perform any or all of his material duties and responsibilities as an
officer of the Company, other than as the result of the Employee's death or
Disability; or
(v) gross negligence by the Employee in the
performance of any or all of his material duties and responsibilities as an
officer of the Company, other than as the result of the Employee's death or
Disability;
;provided, however, that if the basis for any
termination of the Employee's employment by the Company as set forth in the
Termination Notice delivered by the Company to the Employee is any or all of the
definitions of Cause set forth in Section 5.1(c)(iii), Section 5.1(c)(iv) or
Section 5.1(c)(v) of this Agreement, then, in such event, the Employee shall
have thirty (30) days from and after the date of his receipt of such Termination
Notice to cure the action or inaction specified therein to the reasonable
satisfaction of the Company and if the Employee is in good faith actively
attempting to cure such action or inaction, such thirty (30) day period shall be
extended for an additional maximum thirty (30) day period.
(d) "Disability" shall mean any mental or physical illness,
condition, disability or incapacity which prevents the Employee from reasonably
discharging his duties and responsibilities as an officer of the Company. If any
disagreement or dispute shall arise between the Company and the Employee as to
whether the Employee suffers from any Disability, then, in any such event, the
Employee shall submit to the physical or mental examination of a physician
licensed under the laws of the State of California, who shall be mutually
selected by the Company and the Employee, and such physician shall make the
determination of whether the Employee suffers from any Disability. In the
absence of fraud or bad faith, the determination of such physician shall be
final and binding upon each of the Company and the Employee. The entire cost of
any such examination, which shall take place in Los Angeles or Orange County,
California shall be borne solely by the Company.
(e) "Group" shall mean any combination of persons knowingly
participating in a joint activity or interdependent consciously parallel action
toward a common goal, whether or not pursuant to an express contract; provided,
however, that actions taken by a director of the Company acting as such shall
not alone constitute membership in a Group.
(f) "Incumbent Director" shall mean any director of Rexall
serving at January 7, 2000 or one elected thereafter if nominated or approved by
at least two-thirds of the then Incumbent Directors.
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(g) "Protracted Disability" shall mean any Disability which
prevents the Employee from reasonably discharging his duties and
responsibilities as an officer of the Company for a period of six (6)
consecutive months.
(h) "Termination Date" shall mean a specific date not less
than ten (10) nor more than thirty (30) days from and after the date of any
Termination Notice upon which the Employee's employment by the Company shall be
terminated in accordance with the provisions of this Agreement.
(i) "Termination Notice" shall mean a written notice which (i)
sets forth the specific provision of this Agreement relied upon to terminate the
Employee's employment by the Company, (ii) sets forth in reasonable detail the
facts and circumstances claimed to provide the basis for the termination of the
Employee's employment by the Company pursuant to the specific provision of this
Agreement relied upon therein and (iii) sets forth a Termination Date.
5.2 Termination of Employment.
(a) Notwithstanding the provisions of Article II hereof, this
Agreement (i) shall be automatically terminated upon the death of the Employee
pursuant to the provisions of Section 5.3 hereof, (ii) may be terminated at any
time by the Company pursuant to the provisions of Section 5.4 or 5.5 hereof and
(iii) may be terminated by the Employee pursuant to the provisions of Section
5.6 hereof.
(b) If either the Company or the Employee shall desire to
terminate the Employee's employment by the Company pursuant to any of the
provisions of Sections 5.4, 5.5 or 5.6 hereof, then the party causing any such
termination shall give to the other party a Termination Notice.
(c) If this Agreement shall be terminated pursuant to any of
the provisions of this Article V, the Company shall be discharged from all of
its obligations to the Employee hereunder upon its payment to the Employee of
the required amount set forth in the section of this Article V pursuant to which
such termination shall occur.
5.3 Death of Employee. If at any time during the Term the Employee
shall die, then the employment of the Employee by the Company shall
automatically terminate on the date of the Employee's death. In such event, not
more than thirty (30) days from and after the date of the Employee's death, the
Company shall pay to the Employee's estate or heirs, as the case may be, an
amount in cash equal to the Employee's Annual Compensation (subject to any
applicable payroll and/or other taxes required by law to be withheld) determined
as of the date of the Employee's death.
5.4 Disability of Employee.
(a) If at any time during the Term the Employee shall suffer
any Disability, then the Company shall be obligated to continue to pay in the
ordinary and normal course of its business to the Employee or his legal
representatives, as the case may be, the Employee's Annual Compensation (subject
to any applicable payroll and/or other taxes required by law to be withheld)
from the date that the Employee shall first suffer any such Disability to the
date that the Employee's employment by the Company shall be terminated pursuant
to any of the provisions of this Agreement.
(b) If the Employee shall suffer any Protracted Disability
during the Term, then the Company may terminate this Agreement. In such event,
in addition to any other benefits which may have been provided by the Company to
the Employee or his legal representatives, as the case may be, pursuant to the
provisions of Section 5.4(a) hereof, not later than thirty (30) days after the
Termination Date specified in the Termination Notice, the Company shall pay to
the Employee or his legal representatives, as the case may be, an amount in cash
equal to the Employee's Annual Compensation (subject to any applicable payroll
and/or other taxes required by law to be withheld) determined as of the
Termination Date. Subsequent to such Termination Date, the Employee or his legal
representatives, as the case may be, shall also be entitled to receive any
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benefits which may be payable under any disability insurance policy or
disability plan provided by the Company.
5.5 Termination of Employment by Company.
(a) The Company may terminate this Agreement at any time with
Cause. In such event, the Company shall be obligated to continue to pay in the
ordinary and normal course of its business to the Employee his Annual
Compensation (subject to any applicable payroll and/or other taxes required by
law to be withheld) until the Termination Date.
(b) The Company may terminate this Agreement at any time
without Cause. If the Company shall terminate the employment of the Employee by
the Company without Cause, and not pursuant to any other provision of this
Agreement, the Company shall continue to pay to the Employee the Employee's
Annual Compensation (subject to any applicable payroll and/or other taxes
required by law to be withheld) for a period of three (3) years from the date of
termination if such termination takes place prior to January 7, 2002 and if such
termination takes place on or after January 7, 2002, the Company shall continue
to pay the Employee the Employee's Annual Compensation (subject to any
applicable payroll and/or other taxes required by law to be withheld) for the
balance of the Term hereof; provided, however, in no event shall such payments
be made for less than eighteen (18) months as long as the non-competition
provisions of Section 6.1 hereof remain in full force and effect.
5.6 Change in Control. Notwithstanding any other provisions of Sections
5.1 through 5.5 hereof, if (i) there is an Acquisition of Control and, (ii) at
any time within three (3) months prior to such Acquisition of Control or at any
time within one (1) year thereafter, either (A) the Employee for any reason
terminates his employment with the Company, or (B) the Employee's employment is
terminated without Cause, then the Employee shall have the option, but not the
obligation, of being paid in cash an amount equal to one (1) times his Annual
Compensation for the then current fiscal year of the Company (amounts due under
this Section 5.6 are referred to as the "Payment"). If the Employee opts to
receive the Payment under this Section 5.6, whether his employment is terminated
by the Company or by himself, the provisions of Section 6.1(b) hereof shall be
of no further force or effect. Subject to the provisions of Section 5.8 hereof,
the Payment shall be made not later than three (3) months after the Employee
gives notice to the Company in the form of a Termination Notice of his election
under this Section 5.6.
5.7 Sale of the Company. Notwithstanding anything to the contrary
herein, (i) if there is a sale of all or substantially all of the outstanding
stock of the Company to a third party not affiliated with the Company or a sale
of all or substantially all of the assets of the Company to a third party not
affiliated with the Company and (ii) at any time within three (3) months prior
to such sale or at any time within one (1) year thereafter, either (A) the
Employee for any reason terminates his employment with the Company, or (B) the
Employee's employment is terminated without Cause, then the Employee shall have
the option, but not the obligation, of being paid in cash an amount equal to his
Annual Compensation for the period of the applicable non-competition term
pursuant to Section 6.1(b) hereof. Subject to the provisions of Section 5.8
hereof, the Payment shall be made not later than three (3) months after the
Employee gives notice to the Company in the form of a Termination Notice of his
election under this Section 5.7.
5.8 Payments. Notwithstanding anything in the foregoing to the
contrary, if any of the payments provided for in this Agreement, together with
any other payments which the Employee has the right to receive from the Company,
would constitute a "parachute payment" (as defined in Section 280G(b)(2) of the
Internal Revenue Code), the payments pursuant to this Agreement shall be reduced
to the largest amount as will result in no portion of such payments being
subject to the excise tax imposed in Section 4999 of the Internal Revenue Code;
provided, however, that the Employee shall have the absolute discretion to
direct the Company to pay any amount which shall be payable to him pursuant to
Section 5.6 hereof in such equal annual installments as the Employee may direct,
with the first such installment payable when such amount would otherwise have
been payable; and further provided that the Employee shall have the absolute
discretion to allocate any reductions required by this Section 5.8 from amounts
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due him under Section 5.6 hereof. The Company shall be obligated to comply with
any directions given to it by the Employee pursuant to the preceding sentence.
If any senior executive with Rexall enters into a provision more favorable than
that contained in this Section 5.8 with respect to the potential tax
consequences of a "parachute payment," then, at the Employee's election, this
Section 5.8 shall be amended to provide for the terms and conditions of such
provision.
VI. CERTAIN RESTRICTIONS ON THE EMPLOYEE; ASSIGNMENT OF RIGHTS
6.1 Certain Restrictions. The Employee covenants and agrees with the
Company as follows:
(a) He shall not at any time, directly and indirectly, for
himself or any other person, firm, corporation, partnership, association or
other entity which competes in any manner with the Company or any of its
subsidiaries or affiliates in the United States of America or its territories or
possessions (collectively, the "Territory"), attempt to employ, employ or enter
into any contractual arrangement for employment with, any employee or former
employee of the Company or any of its subsidiaries or affiliates, unless such
former employee shall not have been employed by the Company or any of its
subsidiaries or affiliates for a period of at least one (1) year.
(b) He shall not, during the term of this Agreement, and for a
period the longer of (i) three (3) years from the date hereof, or (ii) eighteen
(18) months from and after the date of termination of this Agreement, directly
or indirectly, (A) acquire or own in any manner any interest in, or loan any
amount to, any person, firm, partnership, corporation, association or other
entity which competes in any manner with the Company or any of its subsidiaries
or affiliates in the Territory, (B) be employed by or serve as an employee,
agent, officer, director of, or as a consultant to, any person, firm,
partnership, corporation, association or other entity, other than the Company
and its subsidiaries and affiliates, which competes in any manner with any of
the Company or its subsidiaries or affiliates in the Territory, or (C) compete
in any manner with the Company or its subsidiaries or affiliates in the
Territory. The foregoing provisions of this Section 6.1(b) shall not prevent the
Employee from acquiring or owning not more than five percent (5%) of the equity
securities of any entity whose securities are listed for trading on a national
securities exchange or are regularly traded in the over-the-counter securities
market.
(c) He shall not at any time disclose, directly or indirectly,
to any person, firm, corporation, partnership, association or other entity, any
confidential information relating to the Company or any of its subsidiaries or
affiliates, including, without limitation, any information concerning the
financial condition, assets, personnel, procedures, techniques, products,
customers, sources of leads and methods of obtaining new business or the methods
generally of doing and operating the respective businesses of the Company and
its subsidiaries and affiliates, trade secrets, product ideas, processes,
techniques, formulas, know-how, marketing plans and strategies, except to the
extent that such information is (i) at the time of the disclosure, use or
dealing is generally available to the public by publication or otherwise through
no breach of any obligation herein occasioned by any act or omission on the part
of the Employee; (ii) the Employee can show was in his possession prior to
disclosure by him and was not acquired directly or indirectly from the Company;
(iii) now or in the future is independently made available to the recipient by
or through a third party as a matter of right and without restrictions; or (iv)
a matter of public knowledge or is required to be disclosed by law or judicial
or administrative proceSection
(d) He shall return all Company documents to the Company upon
the termination of his employment by the Company.
6.2 Injunction. It is recognized and acknowledged by each of the
Company and the Employee that a breach or violation by the Employee of any or
all of his covenants and agreements contained in Section 6.1 hereof will cause
irreparable harm and damage to the Company and its subsidiaries and affiliates
in a monetary amount which would be virtually impossible to ascertain. As a
result, the Employee recognizes and acknowledges that the Company and its
subsidiaries and affiliates shall be entitled to a temporary restraining order
and/or injunction from any court of competent jurisdiction enjoining and
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restraining any breach or violation by the Employee and/or his affiliates,
employees, associates, partners or agents, either directly or indirectly, of any
or all of the Employee's covenants and agreements contained in Section 6.1
hereof. Such right to a temporary restraining order and/or injunction shall be
cumulative and in addition to whatever other rights or remedies the Company and
its subsidiaries and affiliates may possess hereunder, at law or in equity.
Nothing contained in this Agreement shall be construed to prevent the Company
and its subsidiaries and affiliates from seeking and recovering from the
Employee damages suffered by any or all of them as a result of any breach or
violation by the Employee and/or his affiliates, employees, associates, partners
or agents of any or all of the Employee's covenants and agreements contained in
this Agreement.
6.3 Reduction in Scope. In the event that any of the covenants and
agreements of the Employee contained in Section 6.1 hereof shall be held invalid
or unenforceable by a court of competent jurisdiction because of its duration or
geographic area, then, in any such event, such covenant or agreement shall be
reduced by such court in duration or geographical area or both to such extent as
to make it valid and enforceable in the jurisdiction where such court is
located, and in all other respects it shall remain in full force and effect.
6.4 Assignment of Rights. The Employee will promptly and fully disclose
all Company Property (as hereinafter defined) to the Company. The Employee
hereby assigns and agrees to assign to the Company his full right, title, and
interest to all Company Property. The Employee agrees to execute any and all
applications for domestic and foreign patents copyrights, or other proprietary
rights and do such other acts (including, among others, the execution and
delivery of instruments of further assurance or confirmation) requested by the
Company to assign the Company Property to the Company and to permit the Company
to enforce any patents, copyrights, or other proprietary rights in the Company
Property. The Employee will not charge the Company for his time spent in
complying with these obligations. All copyrightable works that the Employee
creates that are Company Property shall be considered "works made for hire." Any
assignments of Company Property required pursuant to this Section 6.4 shall be
the sole expense of the Company; provided, however, that the Company will
reimburse the Employee for any reasonable out-of-pocket expenses incurred by the
Employee that would have been incurred by the Company (but for the failure of
the Employee to make an earlier assignment to the Company) to develop such
Company Property and/or to obtain any patents or other governmental
registrations. If the Employee is required by the Company to perform any
substantial services under this Section 6.4 following the termination of his
employment, then to the extent that the number of days that the Employee is
required to perform such services is greater than 30 days, then the Employee
shall be entitled to reasonable compensation for the services provided on any
days other than such 30 days. For the purposes of this Agreement, "Company
Property" means developments, methods of doing business, compositions, works,
concepts, and ideas (whether or not patentable or copyrightable or constituting
trade secrets) conceived, made, created, developed, or reduced to writing or
practice by the Employee (whether alone or with other, and whether or not during
normal business hours or on or off the Company's premises) during the Employee's
employment by the Company that relate to either the services provided by,
business of, or any prospective activity of, the Company known to the Employee
as a result of his employment.
VII. INDEMNIFICATION
7.1 Indemnification. The Company shall, to the maximum extent permitted
by law, indemnify and hold the Employee harmless from and against any expenses,
including, reasonable attorney's fees, judgments, fines, settlements and other
amount actually and reasonably incurred in connection with any proceeding
arising out of, or related to, the Employee's employment with, or services for,
the Company after the date hereof. The Company shall advance to the Employee any
expenses, including attorneys' fee and costs of settlement, incurred in
defending any such proceeding to the maximum extent permitted by law.
Notwithstanding any provision in this Agreement to the contrary, the provisions
of this Section 7.1 shall survive any termination of this Agreement. In
addition, the parties hereto agree that Krane & Smith may continue to represent
both the Employee in his dealings with the Company and the Company involving
third parties (including existing matters and new matters) as the Board of
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Directors of the Company may determine, notwithstanding any actual or potential
conflicts of interest by and between the Company and the Employee. In connection
therewith, the Company and its shareholders shall execute and deliver a conflict
of interest letter in the form of Exhibit A attached hereto.
VIII. MISCELLANEOUS
8.1 Prevailing Party. If any litigation shall arise between the Company
and the Employee based, in whole or in part, upon this Agreement or any or all
of the provisions contained herein, the prevailing party in any such litigation
shall be entitled to recover from the non-prevailing party, and shall be awarded
by a court of competent jurisdiction, any and all reasonable fees and
disbursements of trial and appellate counsel paid, incurred or suffered by such
prevailing party as the result of, arising from, or in connection with, any such
litigation.
8.2 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, without application of any
conflicts of laws principles. All disputes, suits, civil actions or other
proceedings arising out of, in connection with or with respect to this
Agreement, the subject matter hereof, the performance or non-performance of (i)
any obligation under the Employment Agreement (ii) any of the transactions
contemplated hereby, (iii) Employee's employment by the Company, or (iv) the
guaranty described in Section 8.10 hereof (a "Suit") shall be resolved in the
California Superior Court for Orange County California in an action conducted in
accordance with the provisions of the Alternative Dispute Resolution Method set
forth on Exhibit "A" hereto. Notwithstanding anything to the contrary in this
Agreement, this provision shall survive any termination of this Agreement. Each
of the parties hereto and Rexall hereby irrevocably submits to the jurisdiction
and venue of such court for the purposes of any Suit. Each of the parties hereto
and Rexall hereby waive and agree not to assert by way of motion, as a defense
or otherwise in any such Suit, any claim that it is not subject to the
jurisdiction of the above court, that such Suit is brought in an inconvenient
forum, or that the venue of such Suit is improper. In any such litigation, the
parties hereto and Rexall each consent to service of process by any means
authorized by California or Federal law or as otherwise agreed in writing
between the parties.
8.3 Entire Agreement. This Agreement constitutes the entire agreement
between the Company and the Employee with respect to the subject matter hereof
and supersedes all prior negotiations, agreements, understandings and
arrangements, both oral and written, between the Company and the Employee with
respect to such subject matter. This Agreement may not be modified in any way,
except by a written instrument executed by each of the Company and the Employee.
8.4 Notices. Any and all notices required or permitted to be given
under this Agreement shall be in writing and shall be deemed to have been duly
given when delivered by hand, sent by a recognized overnight carrier such as
Federal Express or when deposited in the United States mail, by registered or
certified mail, return receipt requested, postage prepaid, as follows:
If to the Company: Met-Rx Nutrition, Inc.
6111 Broken Sound Parkway, N.W.
Boca Raton, FL 33487
Attn: Richard Werber,
Vice President and General Counsel
Telecopy: 561-999-4729
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If to the Employee: 17861 Von Karmen Avenue
Irvine, California 92614
with a copy to: Krane & Smith
16255 Ventura Boulevard
Encino, CA 91436
Attn: Samuel Krane, Esq.
Telecopy: 818-382-4001
or to such other address as either party may from time to time give written
notice of to the other.
8.5 Benefits; Binding Effect. This Agreement shall be for the benefit
of, and shall be binding upon, each of the Company and the Employee and their
respective heirs, personal representatives, legal representatives, successors
and assigns.
8.6 Severability. The invalidity of any one or more of the words,
phrases, sentences, clauses or sections contained in this Agreement shall not
affect the enforceability of the remaining portions of this Agreement or any
part hereof, all of which are inserted conditionally on their being valid in
law. Except as is otherwise provided in Section 6.3 hereof, if any one or more
of the words, phrases, sentences, clauses or sections contained in this
Agreement shall be declared invalid by a court of competent jurisdiction, then,
in any such event, this Agreement shall be construed as if such invalid word or
words, phrase or phrases, sentence or sentences, clause or clauses, or section
or sections had not been inserted.
8.7 Waivers. The waiver by either party of a breach or violation of any
term or provision of this Agreement by the other party shall not operate nor be
construed as a waiver of any subsequent breach or violation of any provision of
this Agreement nor of any other right or remedy.
8.8 Section Headings. The section headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of any or all of the provisions of this Agreement.
8.9 Counterparts. This Agreement may be executed in any number of
counterparts and by the separate parties hereto in separate counterparts, each
of which shall be deemed to constitute an original and all of which shall be
deemed to be the one and the same instrument.
8.10 Guaranty Rexall will guaranty the obligations of the Company
herewith pursuant to the terms of the Guaranty attached hereto as Exhibit B.
IN WITNESS WHEREOF, each of the parties has executed and delivered this
Agreement as of the date first above written.
MET-RX NUTRITION, INC.
By: /s/ Richard P. Goudis
-------------------------
Name: Richard P. Goudis
Title: V.P. Finance
REXALL SUNDOWN, INC., as to Sections 8.2 and 8.10
hereof only
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By: /s/ Damon DeSantis
----------------------
Name: Damon DeSantis,
Title: President and CEO
/s/ A. Scott Connelly, M.D
--------------------------
A. SCOTT CONNELLY, M.D.
11
AT THE COMPANY AT THE FINANCIAL RELATIONS BOARD:
- -------------- ---------------------------------
Investors: General Information:
Donna Conners Karen Griffiths
Press: Analyst Information:
Carol Walters Vanessa Schwartz
(561)241-9400 (212)661-8030
FOR IMMEDIATE RELEASE
REXALL SUNDOWN COMPLETES PURCHASE OF MET-Rx NUTRITION, INC.
Boca Raton, FL - January 10, 2000 - Rexall Sundown, Inc. (Nasdaq: RXSD) today
announced that it has completed its previously announced $108 million
acquisition of MET-Rx Nutrition, Inc., a leader in the sports nutrition and bar
categories.
The transaction is expected to be slightly accretive to Rexall Sundown's
earnings in the current fiscal year ending August 31, 2000 and was financed by a
revolving line of credit. Based in Irvine, California, MET-Rx is recognized for
its leading, national branded sports nutrition supplements including MET-Rx(R)
powdered protein drink mixes, MET-Rx Protein Plus(TM), Source One(TM) and MET-Rx
Natural Krunch food bars and other sports nutrition supplements.
Damon DeSantis, Rexall Sundown's President and Chief Executive Officer
commented, "We are pleased to finalize this acquisition which is consistent with
our goal to further strengthen Rexall Sundown's leadership position in the
nutrition industry through diversification in product categories, delivery forms
and distribution channels. Specifically, this strategy includes entry into the
fast-growing functional foods and bar segments, as well as the sports nutrition
sector of the busineSection MET-Rx is one of the most widely respected companies
in these arenas and we are proud to have its management and employee team become
an integral part of the Rexall Sundown corporate family."
Dr. A. Scott Connelly, Chairman and Chief Technical officer of MET-Rx added,
"The partnership forged by this merger creates a strong, strategic alliance that
offers great opportunity to leverage our resources and accelerate distribution
and expansion in all channels of trade." The principal shareholders of MET-Rx
were Dr. Connelly and affiliates of the Shansby Group, a San Francisco-based
private equity partnership.
Rexall Sundown, Inc. (Nasdaq: RXSD) develops, manufactures, markets and sells
vitamins, herbals, nutritional supplements and other consumer health products.
Visit the Company's website at www.rexallsundown.com.
This Press Release may contain "forward-looking statements" as such term is
defined in the Private Securities Litigation Reform Act of 1995 or by the
Securities and Exchange Commission in its rules, regulations and releases, which
represents the Company's interpretation or beliefs. These forward-looking
statements, by their nature, involve substantial risks and uncertainties,
certain of which may be beyond the Company's control and actual results may
differ materially depending on a variety of important factors including
uncertainties related to acquisitions, government regulation, managing and
maintaining growth, the effect of adverse publicity, litigation, reliance on
independent distributors of Rexall Showcase International, competition and other
factors described in the Company's filings with the Securities and Exchange
Commission.
