Exhibit 4.4(iv)
LIMITED WAIVER
AND
THIRD AMENDMENT
TO
CREDIT AGREEMENT
This LIMITED WAIVER AND THIRD AMENDMENT TO CREDIT AGREEMENT (this
"Amendment") is dated as of October 29, 1999 and is by and among GLOBAL HEALTH
SUB, INC., as Borrower, GLOBAL HEALTH SCIENCES, INC., as Parent Guarantor, the
LENDERS party hereto, CITICORP USA, INC., as Administrative Agent, CITIBANK,
N.A., as Issuing Bank, and BANK OF AMERICA, N.A. (formerly known as Bank of
America NT&SA), as Documentation Agent.
RECITALS
1. The parties hereto have previously entered into that certain Credit
Agreement dated as of April 23, 1998, as amended by that certain First Amendment
to Credit Agreement dated as of December 4, 1998 (the "First Amendment") and
that certain Second Amendment to Credit Agreement dated as of April 30, 1999
(the "Second Amendment") (as so amended, the "Credit Agreement").
2. The Borrower has requested that the Lenders waive (i) for the period
from and including June 30, 1999 to but not including October 29, 1999 (the
"Waiver Period"), any Event of Default arising under Section 6.11, 6.12, 6.13,
6.14 or 6.15 of the Credit Agreement that would otherwise exist due to the
Borrower's failure to comply with the provisions of such Sections, and (ii)
certain other defaults as more fully set forth in Article II hereof, and the
Lenders are willing to grant such waivers, all on the terms and conditions set
forth herein.
3. The Borrower has also requested that the Lenders agree to amendments
to certain provisions of the Credit Agreement and the Lenders are willing to
agree to such amendments, all on the terms and conditions set forth herein.
AGREEMENT
I.
DEFINITIONS
1.1. DEFINED TERMS. Capitalized terms used but not otherwise defined
herein shall have the respective meanings assigned to such terms in the Credit
Agreement.
II.
LIMITED WAIVER AND CONSENTS
2.1. LIMITED WAIVER. Effective upon the Third Amendment Effective Date
(as defined below), the Required Lenders hereby waive (i) for the duration of
the Waiver Period (and only for such Waiver Period), any Event of Default or
Specified Event of Default arising under Section 6.11, 6.12, 6.13, 6.14 or 6.15
for the period ending June 30, 1999, and (ii) any Event of Default arising from
the Borrower's failure to comply with the provisions of the Loan Documents with
respect to the formation of Herbalogix, Inc. and (iii) any prepayment of the
loans or reduction of the Revolving Commitments required by Section 2.7(b) in
connection with the sale of Herbalogix, Inc. (it being expressly understood and
agreed that any prepayment, if any, at anytime required by Section 2.7(d) of the
Credit Agreement with the proceeds of, or otherwise in connection with, such
sale is not waived); PROVIDED, HOWEVER, that, notwithstanding such waivers,
default interest, as provided pursuant to Section 2.11(c) of the Credit
Agreement, shall be due and payable for the period from and including July 1,
1999 to but not including the Third Amendment Effective Date.
III.
AMENDMENTS
3.1. AMENDMENTS TO CREDIT AGREEMENT. As of the Third Amendment
Effective Date, the Credit Agreement shall be amended as follows:
3.1.1. SECTION 1.1.
(a) Section 1.1 of the Credit Agreement is hereby amended by
adding thereto in appropriate alphabetical order the following defined
terms:
"AMERICAN INGREDIENTS JOINT VENTURE" means a joint
venture between the Borrower or any of its Subsidiaries and
▇▇▇▇▇▇ ▇▇▇▇▇, Inc. or any of its Affiliates.
"AMERICAN INGREDIENTS LLC" means American Ingredients
LLC, a California limited liability company.
"AMERICAN INGREDIENTS OPERATING AGREEMENT" means the
Operating Agreement of American Ingredients LLC as the same
may be amended, supplemented or otherwise modified from time
to time.
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"THIRD AMENDMENT EFFECTIVE DATE" means the date of
the effectiveness of the Limited Waiver and Third Amendment to
Credit Agreement dated as of October 29, 1999 by and among the
Borrower, Parent Guarantor, the Lenders signatory thereto, the
Administrative Agent, the Issuing Bank and the Documentation
Agent."
(b) Section 1.1 of the Credit Agreement is hereby further
amended by amending and restating the following defined term in its
entirety:
"MATURITY DATE" means January 31, 2001."
(c) The definition of "Net Cash Proceeds" set forth in Section
1.1 of the Credit Agreement is hereby amended by inserting immediately
following the words "in accordance with Section 6.7" appearing in the
fourth and fifth lines of such definition, the following:
"and except for capital contributions in respect of any EBITDA
Shortfall Amount (as defined in Section 6.13)"
(d) Section 1.1 of the Credit Agreement is hereby further
amended by amending and restating the following defined term in its
entirety:
"Applicable ABR Margin" and "Applicable Eurodollar
Margin" mean, for any day with respect to any ABR Loan or any
Eurodollar Loan, respectively, the applicable rate per annum
set forth below under the caption "ABR Spread" or "Eurodollar
Spread," respectively, based upon the Total Leverage Ratio as
of the most recent determination date:
============================================== =========================== ===========================
TOTAL LEVERAGE RATIO: ABR SPREAD (P.A.) EURODOLLAR SPREAD (P.A.)
============================================== =========================== ===========================
LEVEL I 2.00% 3.25%
Greater than 5.00 to 1.00
---------------------------------------------- --------------------------- ---------------------------
LEVEL II
Greater than 4.50 to 1.00 but less than or 1.50% 2.75%
equal to
5.00 to 1.00
---------------------------------------------- --------------------------- ---------------------------
LEVEL III
Greater than 3.50 to 1.00 but less than or 1.25% 2.50%
equal to
4.50 to 1.00
---------------------------------------------- --------------------------- ---------------------------
LEVEL IV
Greater than 2.50 to 1.00 but less than or 1.00% 2.25%
equal to
3.50 to 1.00
---------------------------------------------- --------------------------- ---------------------------
LEVEL V
Less than or equal to 0.75% 2.00%
2.50 to 1.00
============================================== =========================== ===========================
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For purposes of the foregoing, (a) the Total Leverage Ratio shall be
determined as of the last day of each fiscal quarter in the Borrower's
fiscal year based upon its consolidated financial statements delivered
pursuant to Section 5.1(a) or 5.1(b) (and the Compliance Certificate
delivered in connection therewith) and (b) each change in the
Applicable ABR Margin or Applicable Eurodollar Margin resulting from a
change in the Total Leverage Ratio shall be effective during the period
commencing on and including the third Business Day after the date of
delivery to the Administrative Agent of such consolidated financial
statements indicating such change and ending on the date immediately
preceding the effective date of the next such change, provided that the
Total Leverage Ratio shall be deemed to be in Level I (i) at any time
that an Event of Default has occurred and is continuing or (ii) if the
Borrower fails to deliver the consolidated financial statements and the
Compliance Certificate required to be delivered by it pursuant to
Section 5.1(a) or 5.1(b), during the period from the expiration of the
time for delivery thereof until such consolidated financial statements
and Compliance Certificate are delivered and, provided further that the
levels set forth in this definition shall not constitute a waiver of
any Default under any other provision of the Credit Agreement or any
other Loan Document (including, without limitation, Section 6.12). Any
provision hereof to the contrary notwithstanding, the Applicable ABR
Margin shall be increased at each level set forth above by (i) 200
basis points on October 1, 2000, and (ii) by an additional 100 basis
points on the first day of each calendar month thereafter."
3.1.2. SECTION 2.6. Section 2.6(h) of the Credit Agreement is
amended and restated in its entirety to read as follows:
"(h) Any provision hereof to the contrary
notwithstanding, from and after the Third Amendment Effective
Date, (i) no Borrowing may be made, converted to or continued
as a Eurodollar Borrowing and (ii) unless repaid, each
Eurodollar Borrowing shall be converted to an ABR Borrowing at
the end of the Interest Period applicable thereto."
3.1.3. SECTION 2.7. Section 2.7 of the Credit Agreement is
hereby amended by adding thereto new Section 2.7(i) to read as follows:
"(i) The Revolving Commitments shall be permanently
and automatically reduced by $34,000,000 on the Third
Amendment Effective Date."
3.1.4. SECTION 2.10. Section 2.10 of the Credit Agreement is
hereby amended by adding thereto a new clause (e) to read as follows:
(e) On September 30, 2000, the Borrower shall pay to
the Administrative Agent, in immediately available funds for
the account of each Lender, a deferred restructuring fee, in
consideration of the waivers and amendments granted pursuant
to the Third Amendment dated as of October 29, 1999, equal to
1.0 percent of (i) such Lender's Revolving Commitment in
effect
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on such date or, (ii) if the Revolving Commitments have been
terminated, the aggregate principal amount of the Loans owing to such
Lender on such date PLUS such Lender's LC Exposure at such time.
3.1.5. ARTICLE V. Article V of the Credit Agreement is hereby amended
by adding thereto a new Section 5.17 to read as follows:
"Section 5.17 AMERICAN INGREDIENTS LLC. In the event the
Borrower or any of its Subsidiaries shall enter into the American
Ingredients Joint Venture, the Borrower shall (i) cause the terms of
the American Ingredients Operating Agreement to be satisfactory to the
Administrative Agent and the Required Lenders and (ii) cause American
Ingredients LLC promptly to distribute all available cash in accordance
with the provisions of the American Ingredients Operating Agreement and
to limit amounts maintained as reserves to the minimum amount
determined to be reasonable by the managing board or similar body of
the American Ingredients Joint Venture. The Borrower shall at all times
maintain membership interests in American Ingredients LLC sufficient to
maintain at least a 50% ownership percentage of American Ingredients
LLC."
3.1.6. SECTION 6.4. Section 6.4(b) of the Credit Agreement is amended
and restated in its entirety to read as follows: "(b) prior to the Third
Amendment Effective Date, Permitted Acquisitions;".
3.1.7. SECTIONS 6.11 THROUGH 6.15. Sections 6.11 through and including
Section 6.15 of the Credit Agreement are hereby amended and restated in their
entirety to read as follows:
"Section 6.11 CAPITAL EXPENDITURES. The Borrower and Holdings
will not make any Capital Expenditures except (a) Permitted
Acquisitions and (b) other Capital Expenditures made by the Borrower or
a Borrower Subsidiary in an amount which, in the aggregate for all such
other Capital Expenditures made by the Borrower and the Borrower
Subsidiaries, does not (i) for the period of four fiscal quarters
ending as of the end of the third fiscal quarter of 1999, exceed
$13,500,000, (ii) for the period of four fiscal quarters ending as of
the end of the fourth fiscal quarter of 1999, exceed $16,000,000, (iii)
for the period of four fiscal quarters ending as of the end of the
first fiscal quarter of 2000, exceed $11,000,000, or (iv) in any period
of four fiscal quarters ending on the last day of any fiscal quarter,
commencing with the fiscal quarter ending March 30, 2000, exceed
$7,000,000.
Section 6.12 PRO FORMA LEVERAGE RATIO. Each of the Borrower
and Holdings will not permit the Pro Forma Leverage Ratio to exceed, as
of the last day of any fiscal quarter ending during any period set
forth below, the ratio set forth opposite such period:
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PERIOD TOTAL LEVERAGE RATIO
Third fiscal quarter 1999 5.50 to 1.0
Fourth fiscal quarter 1999 5.30 to 1.0
First fiscal quarter 2000 5.00 to 1.0
Second fiscal quarter 2000 4.70 to 1.0
Third fiscal quarter 2000 4.40 to 1.0
Fourth fiscal quarter 2000 4.30 to 1.0
Section 6.13 CONSOLIDATED EBITDA. The Borrower and Holdings
will not permit Consolidated EBITDA for any period of four fiscal
quarters ending as of the last day of any fiscal quarter ending during
any period set forth below to be less than the amount set forth
opposite such period:
MINIMUM CONSOLIDATED
PERIOD EBITDA
Third fiscal quarter 1999 42,000,000
Fourth fiscal quarter 1999 45,000,000
First fiscal quarter 2000 48,000,000
Second fiscal quarter 2000 51,000,000
Third fiscal quarter 2000 51,000,000
Fourth fiscal quarter 2000 53,000,000
PROVIDED, HOWEVER, that in the event the amount set forth above for any
period exceeds the actual amount of Consolidated EBITDA for such period
(the amount of any such excess being referred to herein as the "EBITDA
SHORTFALL AMOUNT"), the Borrower will be in compliance with this
Section 6.13 if within five (5) Business Days after determination by
the Borrower of such EBITDA Shortfall Amount (and in any event not
later than the date on which financial statements with respect to such
period are required to be delivered pursuant to Section 5.1(a) or (b),
as applicable), the Borrower provides evidence satisfactory to the
Administrative Agent and the Required Lenders that the Borrower has
received a cash capital contribution in respect of the Borrower's
common stock in an amount at least equal to such EBITDA Shortfall
Amount, whereupon, for the purposes hereof, the amount of any such
capital contribution shall be included in the calculation of
Consolidated EBITDA for the applicable period.
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Section 6.14 CASH INTEREST COVERAGE RATIO. The Borrower and
Holdings will not permit the Cash Interest Coverage Ratio, determined
as of the last day of any fiscal quarter ending during any period set
forth below, to be less than the ratio set forth opposite such period
below:
PERIOD MINIMUM RATIO
Third fiscal quarter 1999 1.50 to 1.0
Fourth fiscal quarter 1999 1.60 to 1.0
First fiscal quarter 2000 to and including third 1.70 to 1.0
fiscal quarter 2000
Fourth fiscal quarter 2000 1.80 to 1.0
Section 6.15 FIXED CHARGE COVERAGE RATIO. The Borrower and
Holdings will not permit the Fixed Charge Coverage Ratio, determined as
of the last day of any fiscal quarter ending during any period set
forth below, to be less than the ratio set forth opposite such period:
PERIOD MINIMUM RATIO
Third fiscal quarter 1999 .90 to 1.0
Fourth fiscal quarter 1999 .90 to 1.0
First fiscal quarter 2000 .90 to 1.0
Second fiscal quarter 2000 1.0 to 1.0
Third fiscal quarter 2000 1.10 to 1.0
Fourth fiscal quarter 2000 1.10 to 1.0"
3.1.8. ARTICLE VI. Article VI is further amended by adding thereto a
new Section 6.17 to read as follows:
"Section 6.17 AMERICAN INGREDIENTS LLC. In the event the
Borrower or any of its Subsidiaries shall enter into the American
Ingredients Joint Venture, each of the Borrower and Holdings will not,
and will not permit any Subsidiary or American Ingredients LLC to,
amend, modify or waive any of its rights, in each case in any way that
could be adverse to Holdings, the Borrower, their respective
Subsidiaries, or the Administrative Agent, the Issuing Bank or any
Lender, under the American Ingredients Operating Agreement, except
changes in such agreement that do not relate to or affect any of the
Transactions and are implemented after 30 days prior written notice to
the Administrative Agent and the Lenders, unless within such 30-day
period the Borrower is advised by
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Required Lenders that, in the opinion of Required Lenders, such change
would be adverse to the interests of the Lenders."
IV.
REPRESENTATIONS AND WARRANTIES
4.1. REPRESENTATIONS AND WARRANTIES. Each of the Borrower and the
Parent Guarantor hereby represents and warrants to the Administrative Agent, the
Lenders and the Issuing Bank as follows:
4.1.1. Such party is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation,
with full power and authority to carry on its business as now conducted
and to enter into and perform its obligations under this Amendment (and
the Credit Agreement as modified hereby) and, except where the failure
to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do
business in, and is in good standing in, every jurisdiction where such
qualification is required.
4.1.2. Such party has taken all necessary action to authorize
the execution, delivery and performance of this Amendment (and the
Credit Agreement as modified hereby).
4.1.3. This Amendment has been duly executed and delivered by
such party and each of this Amendment and the Credit Agreement as
modified hereby constitutes the legal, valid and binding obligation of
such party, enforceable against such party in accordance with its
terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and by general principles of equity
(regardless of whether enforcement is sought in a proceeding at law or
in equity).
4.1.4. The execution, delivery and performance by each member
of the Holdings Group of this Amendment (or the consent hereto, as
applicable) (a) do not require any consent or approval of, registration
or filing with, or any other action by, any Governmental Authority, (b)
will not violate any applicable law or regulation or the charter,
by-laws or other organizational documents of any member of the Holdings
Group or any order of any Governmental Authority, (c) will not violate
or result in a default under any indenture, agreement or other
instrument binding upon any member of the Holdings Group or its assets,
or give rise to a right thereunder to require any payment to be made by
any member of the Holdings Group, and (d) will not result in the
creation or imposition of any Lien on any asset of any member of the
Holdings Group, except Liens created under the Loan Documents.
4.1.5. After giving effect to this Amendment, no event has
occurred and is continuing, or would result from the execution and
delivery of this Amendment that would constitute a Default.
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4.1.6 All of the capital stock of Herbalogix, Inc. has been
sold to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in compliance with all applicable provisions of
the Credit Agreement and the Senior Note Indenture and the Borrower has
received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in respect thereof cash reimbursement in
an amount at least equal to the aggregate amount invested by Holdings,
the Borrower and the Borrower Subsidiaries in Herbalogix, Inc.
4.1.7. Each of the representations and warranties contained in
this Amendment and the Credit Agreement as modified hereby is true,
correct and complete as if set forth in full herein and made on the
date this Amendment becomes effective, except to the extent that any
such representation and warranty specifically relates to an earlier
date, in which case it was true, correct and complete as of such
earlier date.
V.
CONDITIONS TO EFFECTIVENESS
The waivers, consents and amendments effected hereby shall not become
effective until the date (the "Third Amendment Effective Date") on which the
following conditions precedent are satisfied or waived in writing by the
Required Lenders:
5.1.1. EXECUTION. (i) Parent Guarantor, the Borrower, the
Administrative Agent, the Issuing Bank and the Required Lenders shall
have executed and delivered this Amendment to the Administrative Agent,
and (ii) each other Guarantor shall have executed and delivered the
Consent attached hereto to the Administrative Agent.
5.1.2. HERBALOGIX, INC. The Borrower shall have certified to
the Administrative Agent that Holdings is in compliance with the
provisions of, and no Default (as defined in the Senior Note Indenture)
exists under, the Senior Note Indenture (including, without limitation,
Section 4.18 thereof) with respect to the formation, existence and sale
of Herbalogix, Inc.
5.1.3. CERTAIN FINANCIAL STATEMENTS. The Administrative Agent
and the lenders shall have received, at least one Business Day prior to
the Third Amendment Effective Date, the financial statements and
reports required by Section 5.1(b) of the Credit Agreement (and the
Compliance Certificate relating thereto) for the period ended September
30, 1999 demonstrating compliance for such period (and the period of
four fiscal quarter ended as of such date, as applicable) with Sections
6.11, 6.12, 6.13, 6.14 and 6.15 after giving effect to the amendments
to such Sections set forth herein.
5.1.4. PAYMENT OF DEFAULT INTEREST, FEES AND EXPENSES. The
Borrower shall have paid in full all default interest as set forth in
Section 2.1 hereof and all fees and expenses for which it has been
billed of (i) Crossroads, LLC, (ii) the Administrative Agent and each
Lender, (iii) counsel to the Administrative Agent (including the
allocated costs of internal counsel), and (iv) counsel to each Lender
(including the allocated costs of internal counsel).
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5.1.5. AMENDMENT FEE. The Borrower shall have paid to the
Administrative Agent for the account of each Lender executing this
Amendment on or prior to October 29, 1999, a non-refundable amendment
fee in the amount of 0.125% of each such Lender's Revolving Commitment
as in effect immediately after giving effect to the reduction in the
Revolving Commitments pursuant to Section 2.7(i) of the Credit
Agreement (as amended hereby).
VI.
MISCELLANEOUS
6.1. NO WAIVER. Except as expressly set forth herein, nothing contained
herein or in any other instrument or document executed in connection herewith,
nor any action taken by the Administrative Agent, the Issuing Bank or any
Lender, or any party hereto or any party consenting hereto in connection with
this Amendment or any other action contemplated hereby or thereby shall in any
event be construed or deemed to constitute a waiver of any past, present or
future Default or Event of Default, or a waiver or an estoppel of any cause of
action the Administrative Agent, the Issuing Bank or any Lender, or any party
hereto or any party consenting hereto may have against any other party for any
reason whatsoever.
6.2. FULL FORCE AND EFFECT. Except as specifically modified by this
Amendment, all of the terms and provisions of the Credit Agreement, each other
Loan Document and each of the documents referred to therein or delivered in
connection therewith shall remain in full force and effect. The waivers set
forth herein shall be limited precisely as written and shall not be deemed (a)
except as expressly set forth herein, to be a consent to any modification or
waiver of other terms or conditions of the Credit Agreement, any other Loan
Document or any of the documents referred to therein or delivered in connection
therewith or (b) to prejudice any right, remedy, power or privilege which any
party hereto or any party consenting hereto now has or may have in the future
under or in connection with the Credit Agreement, any other Loan Document or any
of the documents referred to therein or delivered in connection therewith. The
term "Agreement" as used in the Credit Agreement, the other Loan Documents and
all other related documents shall mean the Credit Agreement as modified hereby.
Without limiting the generality of the foregoing, the Security Documents and all
of the Collateral described therein do and shall, to the extent set forth
therein, continue to secure the payment of all obligations and liabilities of
the Borrower under the Credit Agreement and/or any of the other Loan Documents,
in each case as amended hereby.
6.3 GENERAL RELEASE OF CLAIMS.
(a) The Borrower represents and agrees that it has diligently and
thoroughly investigated the existence of any Claim (as defined below), and to
its knowledge and belief, no Claim exists and no facts exist that could give
rise to or support a Claim.
(b) As additional consideration for entering into this Amendment and as
consideration for the waivers and amendments set forth herein, Holdings, the
Borrower and each Guarantor and each of their respective agents, employees,
directors, officers, attorneys, affiliates, subsidiaries, successors and assigns
(individually a "Releasing Party," and collectively the "Releasing Parties")
hereby releases and forever discharges each of the Administrative Agent, the
Documentation Agent, the Arranger, the Issuing Bank and each Lender and all of
their respective agents, direct and indirect shareholders, employees, directors,
officers, attorneys, branches, affiliates, subsidiaries, successors and assigns
(individually, a "Released Party," and collectively, the
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"Released Parties") of and from all damage, loss, claims, demands, liabilities,
obligations (except for any such obligations hereafter arising pursuant to the
terms of the Loan Documents, as amended to date), actions and causes of action
whatsoever (collectively "Claims") that the Releasing Parties or any of them
may, as of the date hereof, have or claim to have against each or any of the
Released Parties, in each case whether presently known or unknown or with
respect to which the facts are known (or should have been known) that could give
rise to or support a Claim and of every nature and extent whatsoever on account
of or in any way relating to, arising out of or based upon any Loan Document or
this Amendment (including the foregoing Section 6.3(a)) or the negotiation or
documentation hereof or the amendments under the Loan Documents effected by this
Amendment or the transactions contemplated by the Loan Documents or hereby, or
any action or omission in connection with any of the foregoing, including,
without limitation, all such loss or damage of any kind heretofore sustained, or
that may arise as a consequence of the dealings between the parties up to the
date hereof in connection with or in any way related to any Loan Document or
this Amendment. Each Releasing Party further covenants and agrees that it has
not assigned heretofore, and will not hereafter ▇▇▇ any Released Party upon, any
Claim released or purported to be released under this Section, and the Borrower
will indemnify and hold harmless said Released Parties against any loss or
liability on account of any actions brought by any Releasing Party or its
assigns or prosecuted on behalf of any Releasing Party and relating to any Claim
released or purported to be released under this Section. It is further
understood and agreed that any and all rights under the provisions of Section
1542 of the California Civil Code are expressly waived by each of the Releasing
Parties. Section 1542 provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR."
6.4. EXPENSES. Without limiting any provision of the Amendment or
Section 9.3 of the Credit Agreement, each of the Borrower and Holdings jointly
and severally agrees to pay promptly all reasonable costs and expenses of the
Administrative Agent and the reasonable costs and expenses of the Administrative
Agent's legal counsel and each Lender's legal counsel in connection with the
preparation, negotiation, execution, delivery and administration of this
Amendment and the transactions contemplated hereby.
6.5. GOVERNING LAW. This Amendment shall be governed by and construed
in accordance with the laws of the State of New York, without regard to
conflicts of law principles. The provisions of Sections 9.9(b)-(d) and 9.10 of
the Credit Agreement shall apply hereto.
6.6. SEVERABILITY. The illegality or unenforceability of any provision
of this Amendment, the Credit Agreement (as modified hereby) or any other
document or any other
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instrument or agreement required hereunder or thereunder shall not in any way
affect or impair the legality or enforceability of the remaining provisions of
this Amendment, the Credit Agreement (as modified hereby) or such other document
or any other instrument or agreement required hereunder or thereunder.
6.7. HEADINGS. Article and Section headings used herein are for
convenience of reference only, are not part of this Amendment and shall not
affect the construction of, or be taken into consideration in interpreting, this
Amendment (or the Credit Agreement as modified hereby).
6.8. COUNTERPARTS. This Amendment may be executed by one or more of the
parties hereto in any number of separate counterparts, each of which, when so
executed shall be deemed an original, and all of said counterparts taken
together shall be deemed to constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
GLOBAL HEALTH SUB, INC.,
as Borrower
By:
----------------------------------------
Name:
Title:
GLOBAL HEALTH SCIENCES, INC.,
as Parent Guarantor
By:
----------------------------------------
Name:
Title:
CITICORP USA, INC.,
as Administrative Agent
By:
----------------------------------------
Name:
Title:
CITIBANK, N.A.,
as Issuing Bank
By:
----------------------------------------
Name:
Title:
S-1
BANK OF AMERICA, N.A,
as Documentation Agent
By:
----------------------------------------
Name:
Title:
S-2
CITICORP USA, INC.,
as Lender
By:
----------------------------------------
Name:
Title:
S-3
BANK OF AMERICA, N.A.,
as Lender
By:
----------------------------------------
Name:
Title:
S-4
SANWA BANK CALIFORNIA,
as Lender
By:
----------------------------------------
Name:
Title:
S-5
▇▇▇▇▇ FARGO BANK, N.A.,
as Lender
By:
----------------------------------------
Name:
Title:
▇-▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇,
▇▇▇ ▇▇▇▇ and Grand Cayman Branches,
as Lender
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
S-7
CONSENT
DATED AS OF OCTOBER 29, 1999
The undersigned, as Subsidiary Guarantors under the "Guarantee
Agreement" and as Subsidiary Grantors under the "Pledge and Security Agreement"
(as such terms are defined in and under the Credit Agreement referred to in the
foregoing Limited Waiver and Third Amendment to Credit Agreement (the
"Amendment")), each hereby consents and agrees to the foregoing Amendment and
hereby confirms and agrees that (i) the Guarantee Agreement and the Pledge and
Security Agreement are, and shall continue to be, in full force and effect and
are hereby ratified and confirmed in all respects except that, upon the
effectiveness of, and on and after the date of, said Amendment, each reference
in the Guarantee Agreement and the Pledge and Security Agreement to the "Credit
Agreement", "thereunder", "thereof" and words of like import referring to the
Credit Agreement, shall mean and be a reference to the Credit Agreement as
modified by said Amendment, and (ii) the Pledge and Security Agreement and all
of the Collateral described therein do, and shall continue to, secure the
payment of all of the Secured Obligations as defined in the Pledge and Security
Agreement.
D&F INDUSTRIES, INC.
RAVEN INDUSTRIES, INC.
DYNAMIC PRODUCTS, INC.
WEST COAST SALES
AMERICAN INGREDIENTS, INC.
By:
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Name:
Title:
S-1