EX-10 4 nbtk-101.txt EXHIBIT 10.1 Exhibit 10.1 EXECUTION COPY -------------- =============================================================================== THIRD AMENDED AND RESTATED CREDIT AND GUARANTEE AGREEMENT Dated as of April 27, 2001 among NBTY, INC., a Borrower, HOLLAND & BARRETT HOLDINGS LIMITED, as Foreign Subsidiary Borrower, The Several Lenders from Time to Time Parties Hereto, and THE CHASE MANHATTAN BANK, as Administrative Agent _______________________________________ JPMORGAN, a division of Chase Securities Inc., as Bookrunner and Lead Arranger =============================================================================== JPMorgan [LOGO] Table of Contents Page ---- SECTION 1. DEFINITIONS 1 1.1. Defined Terms 1 1.2. Other Definitional Provisions 22 SECTION 2. AMOUNT AND TERMS OF COMMITMENTS 22 2.1. Revolving Credit Commitments 22 2.2. Procedure for Revolving Credit Borrowing 23 2.3. Repayment of Revolving Credit Loans; Evidence of Debt 23 2.4. Termination or Reduction of Revolving Credit Commitments 24 2.5. Swing Line Commitment 25 2.6. Term Loan Commitments 26 2.7. Procedure for Term Loan Borrowing 26 2.8. Repayment of Term Loans; Evidence of Debt 27 2.9. Termination or Reduction of Term Loan Commitments 29 2.10. New Revolving Credit Commitments 29 2.11. Procedure for New Revolving Credit Borrowing 30 2.12. Repayment of New Revolving Credit Loans; Evidence of Debt 30 2.13. Termination or Reduction of New Revolving Credit Commitments 32 SECTION 3. AMOUNT AND TERMS OF POUNDS STERLING COMMITMENT 32 3.1. Pounds Sterling Commitments 32 3.2. Making the Pounds Sterling Loans 33 3.3. Repayment of Pounds Sterling Loans; Evidence of Debt 34 SECTION 4. LETTERS OF CREDIT 34 4.1. Letters of Credit 34 4.2. Procedure for Issuance of Letters of Credit 35 4.3. Participating Interests 36 4.4. Payments 36 4.5. Further Assurances 37 4.6. Obligations Absolute 37 4.7. Letter of Credit Application 37 4.8. Purpose of Letters of Credit 38 SECTION 5. GENERAL PROVISIONS 38 5.1. Interest Rates and Payment Dates 38 5.2. Conversion and Continuation Options 38 5.3. Minimum Amounts of Tranches 39 i Page ---- 5.4. Optional and Mandatory Prepayments 39 5.5. Commitment Fees; Other Fees 41 5.6. Computation of Interest and Fees 43 5.7. Inability to Determine Interest Rate 43 5.8. Pro Rata Treatment and Payments 44 5.9. Illegality 46 5.10. Requirements of Law 47 5.11. Indemnity 48 5.12. Taxes 48 5.13. Use of Proceeds 50 5.14. Change in Lending Office; Replacement of Lender 51 SECTION 6. REPRESENTATIONS AND WARRANTIES 51 6.1. Financial Condition 51 6.2. No Change 52 6.3. Corporate Existence; Compliance with Law 52 6.4. Corporate Power; Authorization; Enforceable Obligations 52 6.5. No Legal Bar 53 6.6. No Material Litigation 53 6.7. No Default 53 6.8. Ownership of Property; Liens 53 6.9. Intellectual Property 54 6.10. No Burdensome Restrictions 54 6.11. Taxes 54 6.12. Federal Regulations 54 6.13. ERISA 55 6.14. Investment Company Act; Other Regulations 55 6.15. Subsidiaries 55 6.16. Environmental Matters 55 6.17. Solvency 56 6.18. Security Documents 56 6.19. Accuracy of Information 57 SECTION 7. CONDITIONS PRECEDENT 57 7.1. Conditions to Closing Date 57 7.2. Conditions to Each Extension of Credit 60 7.3. Conditions to Initial Extension of Credit to the Foreign Subsidiary Borrower 60 7.4. Conditions to Each Extension of Credit under the New Revolving Credit Commitments 61 SECTION 8. AFFIRMATIVE COVENANTS 62 8.1. Financial Statements 62 ii Page ---- 8.2. Certificates; Other Information 63 8.3. Payment of Obligations 64 8.4. Maintenance of Existence 64 8.5. Maintenance of Property; Insurance 64 8.6. Inspection of Property; Books and Records; Discussions 64 8.7. Notices 65 8.8. Environmental Laws 65 8.9. Additional Subsidiaries 66 SECTION 9. NEGATIVE COVENANTS 67 9.1. Financial Condition Covenants 67 9.2. Limitation on Indebtedness 68 9.3. Limitation on Liens 69 9.4. Limitation on Guarantee Obligations 70 9.5. Limitation on Fundamental Changes 70 9.6. Limitation on Sale of Assets 71 9.7. Limitation on Dividends and Other Restricted Payments 71 9.8. Limitation on Capital Expenditures 71 9.9. Limitation on Investments, Loans and Advances 71 9.10. Limitation on Optional Payments and Modifications of Debt Instruments 72 9.11. Limitation on Transactions with Affiliates 72 9.12. Limitation on Sales and Leasebacks 73 9.13. Limitation on Changes in Fiscal Year 73 9.14. Limitation on Negative Pledge Clauses 73 9.15. Limitation on Lines of Business 73 SECTION 10. GUARANTEE 73 10.1. Guarantee 73 10.2. No Subrogation 74 10.3. Amendments, etc. with respect to the Foreign Subsidiary Obligations; Waiver of Rights 74 10.4. Guarantee Absolute, Irrevocable and Unconditional 75 10.5. Reinstatement 76 10.6. Payments 76 SECTION 11. EVENTS OF DEFAULT 76 SECTION 12. THE ADMINISTRATIVE AGENT AND THE ARRANGER 80 12.1. Appointment 80 12.2. Delegation of Duties 80 12.3. Exculpatory Provisions 80 12.4. Reliance by Administrative Agent 81 iii Page ---- 12.5. Notice of Default 81 12.6. Non-Reliance on Administrative Agent and Other Lenders 81 12.7. Indemnification 82 12.8. Administrative Agent in Its Individual Capacity 82 12.9. Successor Administrative Agent 83 12.10. Issuing Lender and Collateral Agent 83 SECTION 13. MISCELLANEOUS 83 13.1. Amendments and Waivers 83 13.2. Notices 84 13.3. No Waiver; Cumulative Remedies 85 13.4. Survival of Representations and Warranties 85 13.5. Payment of Expenses and Taxes 85 13.6. Successors and Assigns; Participation and Assignments 86 13.7. Adjustments; Set-off 89 13.8. Counterparts 89 13.9. Severability 90 13.10. Integration 90 13.11. GOVERNING LAW 90 13.12. Submission to Jurisdiction; Waivers 90 13.13. Acknowledgements 91 13.14. WAIVERS OF JURY TRIAL 91 13.15. Power of Attorney 91 13.16. Judgment 92 13.17. Confidentiality 92 iv SCHEDULES: ---------- I. Commitments; Addresses II. Domestic Subsidiaries; Foreign Subsidiaries 6.1 Contingent Liabilities 6.6 Litigation 6.8 Real Property Owned and Leased 9.2 Existing Indebtedness 9.3 Existing Liens 9.4 Existing Guarantee Obligations EXHIBITS: --------- A-1 Form of Revolving Credit Note A-2 Form of Swing Line Note A-3 Form of Term Note A-4 Form of New Revolving Credit Note B Guarantee and Collateral Agreement C Form of Swing Line Loan Participation Certificate E Form of Assignment and Acceptance F-1 Form of Opinion of Michael C. Duban F-2 Form of Opinion of counsel to the Foreign Subsidiary Borrower G Form of Closing Certificate H Form of Tax Certificate I Form of Acknowledgment and Consent v THIRD AMENDED AND RESTATED CREDIT AND GUARANTEE AGREEMENT, dated as of April 27, 2001, among NBTY, INC., a Delaware corporation (the "Company"), HOLLAND & BARRETT HOLDINGS LIMITED (the "Foreign Subsidiary Borrower" and together with the Company, the "Borrowers"), the several banks and other financial institutions from time to time parties hereto (the "Lenders") and THE CHASE MANHATTAN BANK, a New York banking corporation, as administrative agent for the Lenders hereunder (in such capacity, the "Administrative Agent"). W I T N E S S E T H : - - - - - - - - - - - WHEREAS, the Borrowers, certain lenders and the Administrative Agent are parties to that certain Second Amended and Restated Credit and Guarantee Agreement, dated as of July 17, 2000 (the "Existing Credit Agreement"); and WHEREAS, the Company intends to acquire from Whole Foods Market, Inc. and from its wholly-owned subsidiary, Whole Foods Market Group, Inc., all of the membership interests in WFM NatureSmart, LLC, BioSmart Direct Sales, LLC and Physiologics, LLC (collectively, "NatureSmart") and substantially all of the assets of Global Health Sciences, Inc., Global Health Sub, Inc., Raven Industries, Inc. (dba Omni-Pak Industries) and D&F Industries, Inc. (collectively, "Global Health"); and WHEREAS, the Borrowers have requested the Lenders to amend and restate the Existing Credit Agreement to provide, among other things, for the financing of the Global Health Acquisition (as defined below) and the NatureSmart Acquisition (as defined below), and to continue to provide financing for the working capital and general corporate purposes of the Company and its Subsidiaries; and WHEREAS, the Lenders are willing to enter into this Agreement to amend and restate the Existing Credit Agreement but only on the terms and conditions hereof, including the condition precedent that this Agreement be executed and delivered by each Lender hereunder; NOW, THEREFORE, in consideration of the premises and the mutual covenants herein set forth, the parties hereto agree to amend and restate the Existing Credit Agreement in its entirety to read as follows: SECTION 1. DEFINITIONS 1.1 Defined Terms. As used in this Agreement, the following terms shall have the following meanings: "ABR Loans": Loans, the rate of interest applicable to which is based upon the Alternate Base Rate. "Acquisition": any transaction or series of related transactions by which the Company or any of its Subsidiaries (a) acquires any going business or all or substantially all of the assets of any Person, whether through purchase of assets, merger or otherwise or (b) directly or indirectly acquires (in one transaction or in a series of related transactions) at least (i) a majority (in number of votes) of the Capital Stock having ordinary voting power for the election of directors (or other managers) of any Person or (ii) a majority of the ownership interests in any Person. "Affiliate": of any Person, (a) any other Person (other than a wholly owned Subsidiary of such Person) which, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person or (b) any other Person who is a director or officer of (i) such Person, (ii) any Subsidiary of such Person or (iii) any Person described in clause (a) above. For purposes of this definition, a Person shall be deemed to be "controlled by" such other Person if such other Person possesses, directly or indirectly, power either to (A) vote 10% or more of the securities having ordinary voting power for the election of directors of such first Person or (B) direct or cause the direction of the management and policies of such first Person whether by contract or otherwise. "Aggregate Available New Revolving Credit Commitments": as at any date of determination with respect to all New Revolving Credit Lenders, an amount in U.S. Dollars equal to the Available New Revolving Credit Commitments of all New Revolving Credit Lenders on such date. "Aggregate Available Revolving Credit Commitments": as at any date of determination with respect to all Lenders, an amount in U.S. Dollars equal to the Available Revolving Credit Commitments of all Lenders on such date. "Aggregate Available Term Loan Commitments": as at any date of determination with respect to all Lenders, an amount in U.S. Dollars equal to the Available Term Loan Commitments of all Lenders on such date. "Aggregate Existing New Revolving Credit Commitments": the aggregate amount of the Existing New Revolving Credit Commitments of all New Revolving Credit Lenders. "Aggregate New Revolving Credit Commitments": the aggregate amount of the New Revolving Credit Commitments of all New Revolving Credit Lenders. "Aggregate New Revolving Credit Commitment Increases": the aggregate amount of the New Revolving Credit Commitment Increases of all New Revolving Credit Lenders. "Aggregate New Revolving Credit Outstanding": as at any date of determination with respect to any New Revolving Credit Lender, the aggregate unpaid principal amount of such New Revolving Credit Lender's New Revolving Credit Loans on such date. "Aggregate Pounds Sterling Outstanding": as at any date of determination with respect to any Lender, an amount in Pounds Sterling equal to the aggregate unpaid principal amount of such Lender's Pounds Sterling Loans. 2 "Aggregate Revolving Credit Commitments": the aggregate amount of the Revolving Credit Commitments of all the Lenders. "Aggregate Revolving Credit Outstanding": as at any date of determination with respect to any Lender, the sum of (a) the aggregate unpaid principal amount of such Lender's Revolving Credit Loans on such date and (b) such Lender's Revolving Credit Commitment Percentage of the aggregate Letter of Credit Obligations and Swing Line Loans on such date and (c) the U.S. Dollar Equivalent of the Aggregate Pounds Sterling Outstanding of such Lender. "Aggregate Term Loan Commitments": the aggregate amount of the Term Loan Commitments of all the Lenders. "Agreement": this Third Amended and Restated Credit and Guarantee Agreement, as the same may be amended, supplemented or otherwise modified from time to time. "Agreement Currency": as defined in subsection 13.16(b). "Alternate Base Rate": for any day, a rate of interest per annum equal to the higher of (i) the Prime Rate for such day and (ii) the sum of Federal Funds Effective Rate for such day plus 1/2% per annum. For purposes hereof: "Prime Rate" means a rate per annum equal to the prime rate of interest announced by Chase from time to time, changing when and as said prime rate changes; and "Federal Funds Effective Rate" shall mean, for any day, the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for the day of such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by it. Any change in the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective as of the opening of business on the effective day of such change in the Prime Rate or the Federal Funds Effective Rate, respectively. "Amendment Fee": as defined in subsection 5.5(c). "Annualized": with respect to the determination of any financial results for any period, the applicable financial result for the four fiscal quarters ended on such date. "Applicable Margin": for each Type of Loan and for purposes of Section 5.5, the rate per annum set forth under the relevant column heading below based on the ratio of Consolidated Indebtedness of the Company and its Subsidiaries to Consolidated EBITDA of the Company and its Subsidiaries, as most recently determined in accordance with subsection 8.1(a) or (b), for any quarterly period: 3
Applicable Margin Relevant Ratio of For Eurodollar Applicable Margin Applicable Consolidated Indebtedness Loans and Pounds for Alternate Margin for to Consolidated EBITDA Sterling Loans Base Rate Loans Commitment Fee ------------------------- ----------------- ----------------- -------------- Greater than or equal to 2.50% 1.50% 0.50% 2.50x ("Level I") Less than 2.50x but greater 2.25% 1.25% 0.375% than or equal to 2.00x ("Level II") Less than 2.00x but greater 2.00% 1.00% 0.375% than or equal to 1.50x ("Level III") Less than 1.50x but greater 1.50% 0.50% 0.25% than or equal to 1.00x ("Level IV") Less than 1.00x ("Level V") 1.00% -0- 0.25%
Up to and including March 31, 2002, notwithstanding the relevant ratio of Consolidated Indebtedness to Consolidated EDITDA, the applicable pricing shall not be lower than the pricing set forth in Level II, but may be as set forth in Level I. If and in the event the financial statements required to be delivered pursuant to subsection 8.1(a) or 8.1(b), as applicable, and the related compliance certificate required to be delivered pursuant to subsection 8.2(b), are delivered on or prior to the date when due (or, in the case of the fourth quarterly period of each fiscal year of the Company, if financial statements which satisfy the requirements of, and are delivered within the time period specified in, subsection 8.1(b) and a related compliance certificate which satisfies the requirements of, and is delivered within the time period specified in, subsection 8.2(b), with respect to any such quarterly period are so delivered within such time periods), then the Applicable Margin during the period from the date that is five Business Days after the date upon which such financial statements were due to be delivered shall be the Applicable Margin as set forth in the relevant column heading above; provided, however, that in the event that the financial statements delivered pursuant to subsection 8.1(a) or 8.1(b), as applicable, and the related compliance certificate required to be delivered pursuant to subsection 8.2(b), are not delivered when due, then: (a) if such financial statements and certificate are delivered after the date such financial statements and certificate were required to be delivered (without giving effect to any applicable cure period) and the Applicable Margin increases from that previously in effect as a result of the delivery of such financial statements, then the Applicable Margin during the period from the date upon which such financial statements were required to be 4 delivered (without giving effect to any applicable cure period) until the date upon which they actually are delivered shall, except as otherwise provided in clause (c) below, be the Applicable Margin as so increased; (b) if such financial statements and certificate are delivered after the date such financial statements and certificate were required to be delivered and the Applicable Margin decreases from that previously in effect as a result of the delivery of such financial statements, then such decrease in the Applicable Margin shall not become applicable until the date upon which such financial statements and certificate actually are delivered; and (c) if such financial statements and certificate are not delivered prior to the expiration of the applicable cure period, then, effective upon such expiration, for the period from the date upon which such financial statements and certificate were required to be delivered (after the expiration of the applicable cure period) until two Business Days following the date upon which they actually are delivered, the Applicable Margin in respect of Revolving Credit Loans, New Revolving Credit Loans and Term Loans shall be 3.00%, in the case of Eurodollar Loans, and 2.00%, in the case of Alternate Base Rate Loans, and 1/2%, in the case of subsection 5.5 (it being understood that the foregoing shall not limit the rights of the Administrative Agent and the Lenders set forth in Section 11). "Asset Sale": any sale, sale-leaseback, or other disposition by the Company or any Subsidiary of any of its property or assets, including the stock of any Subsidiary, other than any sale, sale- leaseback or other disposition permitted under subsections 9.6(a) through (d) or subsection 9.12. "Assignee": as defined in subsection 13.6(c). "Available New Revolving Credit Commitment": as at any date of determination with respect to any New Revolving Credit Lender, an amount in U.S. Dollars equal to the excess, if any, of (a) the amount of such New Revolving Credit Lender's New Revolving Credit Commitment in effect on such date over (b) the Aggregate New Revolving Credit Outstanding of such New Revolving Credit Lender on such date. "Available Revolving Credit Commitment": as at any date of determination with respect to any Lender, an amount in U.S. Dollars equal to the excess, if any, of (a) the amount of such Lender's Revolving Credit Commitment in effect on such date over (b) the Aggregate Revolving Credit Outstanding of such Lender on such date. "Available Term Loan Commitment": as at any date of determination with respect to any Lender, an amount in U.S. Dollars equal to the excess, if any, of (a) the amount of such Lender's Term Loan Commitment in effect on such date over (b) the aggregate principal amount of Term Loans theretofore made hereunder by such Lender. "Benefitted Lender": as defined in subsection 13.7. 5 "Board": the Board of Governors of the Federal Reserve System (or any successor thereto). "Borrowers": as defined in the preamble hereto. "Borrowing Date": any Business Day specified in a notice pursuant to subsection 2.2, 2.5(a), 2.7, 2.11, 3.2 or 4.2 as a date on which a Borrower requests the Lenders to make Loans hereunder or issue a Letter of Credit. "Business Day": (a) for all purposes other than as covered by clause (b) below, a day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close and (b) with respect to all notices and determinations in connection with, and payments of principal and interest on, Eurodollar Loans and Loans in Pounds Sterling, any day which is a Business Day described in clause (a) and which is also a London Banking Day. "Capital Expenditures": direct or indirect (by way of the acquisition of securities of a Person or the expenditure of cash or the incurrence of Indebtedness) expenditures (other than expenditures in connection with Acquisitions permitted hereunder) in respect of the purchase or other acquisition of fixed or capital assets. "Capital Stock": any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants or options to purchase any of the foregoing. "Cash Equivalents": (a) securities with maturities of one year or less from the date of acquisition issued or fully guaranteed or insured by the United States Government or any agency thereof, (b) certificates of deposit and eurodollar time deposits with maturities of one year or less from the date of acquisition and overnight bank deposits of any Lender or of any commercial bank having capital and surplus in excess of $500,000,000, (c) repurchase obligations of any Lender or of any commercial bank satisfying the requirements of clause (b) of this definition, having a term of not more than 30 days with respect to securities issued or fully guaranteed or insured by the United States Government, (d) commercial paper of a domestic issuer rated at least A-2 by Standard and Poor's Ratings Group ("S&P") or P-2 by Moody's, (e) securities with maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) are rated at least A by S&P or A by Moody's (or the equivalent rating by either such rating agency for such type of securities), (f) securities with maturities of one year or less from the date of acquisition backed by standby letters of credit issued by any commercial bank satisfying the requirements of clause (b) of this definition or (g) shares of money market mutual or similar funds which invest exclusively in assets satisfying the requirements of clauses (a) through (f) of this definition. 6 "Chase": The Chase Manhattan Bank. "Class": the classification of loans as New Revolving Credit Loans, Revolving Credit Loans, Term Loans, Swing Line Loans or Pounds Sterling Loans, each of which categories shall be deemed to be a "Class" of Loans. "Closing Date": the date on which all of the conditions precedent set forth in subsection 7.1 shall have been met or waived. "Code": the Internal Revenue Code of 1986, as amended from time to time. "Commercial Letters of Credit": as defined in subsection 4.1(ii). "Commitments": the collective reference to the New Revolving Credit Commitments, Revolving Credit Commitments, the Term Loan Commitments, the Swing Line Commitment and the Pounds Sterling Commitments. "Commonly Controlled Entity": an entity, whether or not incorporated, which is under common control with the Company within the meaning of Section 4001 of ERISA or is part of a group which includes the Company and which is treated as a single employer under Section 414 of the Code. "Consolidated Debt Service": for any period, the sum of (a) the Annualized Consolidated Interest Expense of the Company for such period, plus (b) the principal amounts of all long-term indebtedness payable by the Company and its Subsidiaries during the next succeeding twelve-month period determined in accordance with GAAP, excluding, however, from such indebtedness the Revolving Credit Loans, the Swing Line Loans and the Pounds Sterling Loans during the final twelve months of the Revolving Credit Commitment Period. "Consolidated EBITDA": for any period, the sum of (i) Annualized Consolidated Net Income for such period, (ii) Annualized Consolidated Interest Expense for such period and (iii) the Annualized amount of taxes, depreciation and amortization deducted from earnings in determining such Consolidated Net Income. "Consolidated Fixed Charge Coverage Ratio": for any period, the ratio of (i) the result of (A) the Consolidated EBITDA of the Company and its Subsidiaries minus (B) their Annualized Capital Expenditures to (ii) the Consolidated Debt Service of the Company and its Subsidiaries, in the case of clauses (i) and (ii), for such period; provided that, to the extent included in determining such Annualized Capital Expenditures, Capital Expenditures made by the Foreign Subsidiary Borrower during the fiscal year ended September 30, 1998 relating to point of sale equipment, not exceeding, in the aggregate, $10,000,000, shall be excluded from such Annualized Capitalized Expenditures. "Consolidated Indebtedness": at a particular date, all Indebtedness of the Company and its Subsidiaries, determined on a consolidated basis. 7 "Consolidated Interest Expense": for any fiscal period, the amount which would, in conformity with GAAP, be set forth opposite the caption "interest expense" (or any like caption) on a consolidated income statement of the Company and its Subsidiaries for such period. "Consolidated Net Income": for any fiscal period, the consolidated net income (or deficit) of the Company and its Subsidiaries for such period (taken as a cumulative whole), determined on a consolidated basis in accordance with GAAP; provided, that any non-cash extraordinary gains and losses shall be excluded in determining Consolidated Net Income. "Consolidated Net Worth": at a particular date, all amounts which would, in conformity with GAAP, be included on a consolidated balance sheet of the Company and its Subsidiaries under "stockholders' equity" (or any like caption) as of such date. "Continuing Directors": the directors of the Company on the Existing Closing Date and each other director, if such other director's nomination for election to the Board of Directors of the Company is recommended by a majority of the then Continuing Directors. "Contractual Obligation": as to any Person, any provision of any security issued by such Person or of any agreement, instrument or undertaking to which such Person is a party or by which it or any of its property is bound. "Default": any of the events specified in Section 11, whether or not any requirement for the giving of notice, the lapse of time, or both, or any other condition, has been satisfied. "Dollars", "U.S. Dollars" and "$": dollars in lawful currency of the United States of America. "Domestic Subsidiary": any Subsidiary other than a Foreign Subsidiary. "Drawdown Fee": as defined in subsection 5.5(c). "English Security Documents": the collective reference to (i) a Debenture by the Company in favor of the Administrative Agent for the benefit of the Lenders of 65% of the Capital Stock of Holland & Barrett and 65% of the Capital Stock of Vitamin World Limited in form and substance reasonably satisfactory to the Administrative Agent and (ii) agreements in form and substance satisfactory to the Administrative Agent providing for a lien on the material assets of the Foreign Subsidiary Borrower securing its Obligations. "Environmental Complaint": any complaint, order, citation, notice or other written communication from any Person with respect to the existence or alleged existence of a violation of any Environmental Laws or legal liability resulting from air emissions, water discharges, noise emissions, Hazardous Material or any other environmental, health or safety matter. 8 "Environmental Laws": any and all applicable Federal, foreign, state, local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, and requirements of any Governmental Authority and any and all common law requirements, rules and bases of liability regulating, relating to or imposing liability or standards of conduct concerning pollution or protection of the environment or the Release or threatened Release of Hazardous Materials, as now or hereafter in effect. "ERISA": the Employee Retirement Income Security Act of 1974, as amended from time to time. "Eurocurrency Liabilities": at any time, all reserve requirements in effect at such time (including, without limitation, basic, supplemental, marginal and emergency reserves under any regulations of the Board or other Governmental Authority having jurisdiction with respect thereto) dealing with reserve requirements prescribed for eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in Regulation D of the Board) maintained by a member bank of the Federal Reserve System. "Eurocurrency Rate": with respect to any Pounds Sterling Loan for the relevant Interest Period, the rate determined by the Administrative Agent to be the rate at which Chase offers to place deposits in Pounds Sterling with first-class banks in the London interbank market at approximately 11 A.M. (London time) two Business Days prior to the first day of such Interest Period, in the approximate amount of Chase's relevant Pounds Sterling Loan and having a maturity approximately equal to such Interest Period. The Eurocurrency Rate shall be rounded to the next higher multiple of 1/16 of 1% if the rate is not such a multiple. "Eurodollar Base Rate": with respect to a Eurodollar Loan for the relevant Interest Period, the applicable London interbank offered rate for deposits in U.S. Dollars appearing on Telerate Page 3750 as of 11:00 A.M. (London time) two Business Days prior to the first day of such Interest Period, and having a maturity approximately equal to such Interest Period. If no London interbank offered rate of such maturity then appears on Telerate Page 3750, then the Eurodollar Base Rate shall be equal to the London interbank offered rate for deposits in U.S. Dollars maturing immediately before or immediately after such maturity, whichever is higher, as determined by the Administrative Agent from Telerate Page 3750. If Telerate Page 3750 is not available, the applicable Eurodollar Base Rate for the relevant Interest Period shall be the rate determined by the Administrative Agent to be the rate at which Chase offers to place deposits in U.S. Dollars with first-class banks in the London interbank market at approximately 11:00 A.M. (London time) two Business Days prior to the first day of such Interest Period, in the approximate amount of Chase's relevant portion of the Eurodollar Loan and having a maturity approximately equal to such Interest Period. "Eurodollar Loans": Revolving Credit Loans and Term Loans the rate of interest applicable to which is based upon the Eurodollar Rate. "Eurodollar Rate": with respect to a Eurodollar Loan for the relevant Interest Period, the quotient of (a) the Eurodollar Base Rate applicable to such Interest Period, 9 divided by (b) one minus the Eurocurrency Liabilities (expressed as a decimal) applicable to such Interest Period. The Eurodollar Rate shall be rounded to the next higher multiple of 1/16 of 1% if the rate is not such a multiple. "Event of Default": any of the events specified in Section 11, provided that any requirement for the giving of notice, the lapse of time, or both, or any other condition, has been satisfied. "Exchange Act": the Securities Exchange Act of 1934, as amended. "Existing Closing Date": July 17, 2000. "Existing New Revolving Credit Commitment": as to any New Revolving Credit Lender at any time, its obligation to make New Revolving Credit Loans to the Company in an aggregate amount not to exceed at any time outstanding the U.S. Dollar amount set forth opposite such New Revolving Credit Lender's name in Schedule I under the heading "Existing New Revolving Credit Commitments", as such amount may be changed from time to time pursuant to subsection 2.13 and the other applicable provisions hereof. "Existing New Revolving Credit Commitment Percentage": as to any New Revolving Credit Lender at any time, the percentage which such New Revolving Credit Lender's Existing New Revolving Credit Commitment then constitutes of the Aggregate Existing New Revolving Credit Commitments. "Extension of Credit": as to any Lender, the making of a Loan by such Lender and, with respect to any Lender, the issuance of any Letter of Credit. "Financing Lease": (a) any lease of property, real or personal, the obligations under which are capitalized on a consolidated balance sheet of the Company and its Subsidiaries and (b) any other such lease to the extent that the then present value of the minimum rental commitment thereunder should, in accordance with GAAP, be capitalized on a balance sheet of the lessee. "Foreign Subsidiary": as to any Person, any Subsidiary of such Person which is organized under the laws of any jurisdiction outside of the country of the jurisdiction of organization of such Person. "Foreign Subsidiary Borrower": as defined in the preamble hereto. "GAAP": generally accepted accounting principles in the United States of America in effect from time to time. "Gel Cap Facility": the soft gelatin capsule manufacturing facility located at Cartwright Loop Industrial Park, Church Street, Bayport, New York. "Global Health": as defined in the recitals hereto. 10 "Global Health Acquisition": the acquisition by the Company of substantially all of the assets of Global Health pursuant to an asset purchase agreement entered into among the Company and Global Health. "Governmental Authority": any nation or government, any state, province or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government. "Guarantee and Collateral Agreement": the Amended and Restated Guarantee and Collateral Agreement, attached hereto as Exhibit B, executed and delivered by the Company and each of its Domestic Subsidiaries, as the same may be amended, supplemented or otherwise modified. "Guarantee Obligation": as to any Person, any obligation of such Person guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or other obligations (the "primary obligations") of any other Person (the "primary obligor") in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent (a) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (b) to advance or supply funds (i) for the purchase or payment of any such primary obligation or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (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 to make payment of such primary obligation or (d) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided, however, that the term Guarantee Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guarantee Obligation shall be deemed to be an amount equal to the value as of any date of determination of the stated or determinable amount of the primary obligation in respect of which such Guarantee Obligation is made (unless such Guarantee Obligation shall be expressly limited to a lesser amount, in which case such lesser amount shall apply) or, if not stated or determinable, the value as of any date of determination of the maximum reasonably anticipated liability in respect thereof as determined by such Person in good faith. "Hazardous Materials": any solid wastes, toxic or hazardous substances, materials or wastes, defined, listed, classified or regulated as such in or under any Environmental Laws, including, without limitation, asbestos, petroleum or petroleum products (including gasoline, crude oil or any fraction thereof), polychlorinated biphenyls, and urea-formaldehyde insulation, and any other substance the presence of which may give rise to liability under any Environmental Law. "Hedge Agreement": any interest rate protection agreement, interest rate swap or other interest rate hedge arrangement, or currency swap or other currency hedge arrangement (other than any interest rate cap or other similar agreement or arrangement pursuant to which the Company has no credit exposure), to or under which the Company or any of its Subsidiaries is a party or a beneficiary. 11 "Hedge Agreement Obligations": all obligations of the Company under any one or more Hedge Agreements to make payments to the counterparties thereunder upon the occurrence of a termination event or similar event thereunder. "Holland & Barrett": Holland & Barrett Holdings Limited. "Indebtedness": of a Person, at a particular date, the sum (without duplication) at such date of (a) indebtedness for borrowed money or for the deferred purchase price of property or services in respect of which such Person is liable as obligor (other than current trade liabilities incurred in the ordinary course of business and payable in accordance with customary practices), (b) indebtedness secured by any Lien on any property or asset owned or held by such Person regardless of whether the indebtedness secured thereby shall have been assumed by or is a primary liability of such Person, (c) obligations of such Person under Financing Leases, (d) the face amount of all letters of credit issued for the account of or upon the application of such Person and, without duplication, the unreimbursed amount of all drafts drawn thereunder and (e) obligations (in the nature of principal or interest) of such Person in respect of acceptances or similar obligations issued or created for the account of such Person. "Insolvency": with respect to any Multiemployer Plan, the condition that such Plan is insolvent within the meaning of Section 4245 of ERISA. "Insolvent": pertaining to a condition of Insolvency. "Interest Payment Date": (a) as to any ABR Loan, the last day of each March, June, September and December to occur while such Loan is outstanding, (b) as to any Eurodollar Loan or Pounds Sterling Loan having an Interest Period of three months or less, the last day of such Interest Period and (c) as to any Eurodollar Loan or Pounds Sterling Loan having an Interest Period longer than three months, (i) each day which is three months after the first day of such Interest Period and (ii) the last day of such Interest Period. "Interest Period": with respect to any Eurodollar Loan or Pounds Sterling Loan: (a) initially, the period commencing on the borrowing or conversion date, as the case may be, with respect to such Eurodollar Loan or Pounds Sterling Loan and ending one, two, three or six months thereafter, as selected by the relevant Borrower in its notice of borrowing or notice of conversion, as the case may be, given with respect thereto; and (b) thereafter, each period commencing on the last day of the next preceding Interest Period applicable to such Eurodollar Loan or Pounds Sterling Loan and ending one, two, three or six months thereafter, as selected by the relevant Borrower by irrevocable notice to the Administrative Agent not less than three Business Days prior to the last day of the then current Interest Period with respect thereto; 12 provided that, all of the foregoing provisions relating to Interest Periods are subject to the following: (i) if any Interest Period pertaining to a Eurodollar Loan or Pounds Sterling Loan would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless the result of such extension would be to carry such Interest Period into another calendar month in which event such Interest Period shall end on the immediately preceding Business Day; (ii) any Interest Period applicable to a Eurodollar Loan or Pounds Sterling Loan that would otherwise extend beyond the date final payment is due on such Loan shall end on such date of final payment; and (iii) any Interest Period pertaining to a Eurodollar Loan or Pounds Sterling Loan that 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. "Issuing Lender": Chase or any of its Affiliates, in its capacity as issuer of the Letters of Credit and any other Lender which the Company, the Administrative Agent and the Majority Lenders shall have approved, in its capacity as issuer of the Letters of Credit. "Judgment Currency": as defined in subsection 13.16(b). "Lenders": as defined in the preamble hereto. "Letter of Credit Applications": (a) in the case of Standby Letters of Credit, a letter of credit application for a Standby Letter of Credit on the standard form of the applicable Issuing Lender for standby letters of credit, and (b) in the case of Commercial Letters of Credit, a letter of credit application for a Commercial Letter of Credit on the standard form of the applicable Issuing Lender for commercial letters of credit. "Letter of Credit Obligations": at any particular time, all liabilities of the Company with respect to Letters of Credit, whether or not any such liability is contingent, including (without duplication) the sum of (a) the aggregate undrawn face amount of all Letters of Credit then outstanding plus (b) the aggregate amount of all unpaid Reimbursement Obligations. "Letters of Credit": as defined in subsection 4.1(ii). "Lien": any mortgage, pledge, hypothecation, assignment, deposit arrangement (other than a bank or similar deposit account), encumbrance, lien (statutory or other), or preference, priority or other security agreement or similar preferential arrangement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement, any Financing Lease having substantially the same economic 13 effect as any of the foregoing, and the filing of any financing statement under the Uniform Commercial Code or comparable law of any jurisdiction in respect of any of the foregoing). "Loan Documents": the collective reference to this Agreement, any Notes, the Security Documents and any documents or instruments evidencing or governing the Security Documents. "Loan Parties": the collective reference to the Company, the Foreign Subsidiary Borrower and each guarantor or grantor party to any Security Document. "Loans": the collective reference to the New Revolving Credit Loans, Revolving Credit Loans, the Term Loans, the Swing Line Loans and the Pounds Sterling Loans. "London Banking Day": any day on which banks in London are open for general banking business, including dealings in foreign currency and exchange. "Majority Lenders": at any time, Lenders, the Total Loan Percentages of which aggregate more than 50%. "Material Adverse Effect": a material adverse effect on (a) the business, operations, property or condition (financial or otherwise) of the Company and its Subsidiaries taken as a whole or (b) the validity or enforceability of this Agreement or any of the other Loan Documents or the rights or remedies of the Administrative Agent or the Lenders hereunder or thereunder. "Material Environmental Amount": $500,000. "Material Foreign Subsidiary": any Foreign Subsidiary accounting for 5% or more of the assets or revenues (computed for the most recent fiscal year) of the Company and its consolidated Subsidiaries, taken as a whole. "Moody's": Moody's Investors Service, Inc. or any successor thereto. "Multiemployer Plan": a Plan which is a multiemployer plan as defined in Section 4001(a)(3) of ERISA. "NatureSmart": as defined in the recitals hereto. "NatureSmart Acquisition": the acquisition by the Company of all of the membership interests in NatureSmart pursuant to a certain purchase agreement to be entered into among the Company and Whole Foods Market, Inc. "Net Cash Proceeds": (a) in connection with any Asset Sale or any Recovery Event, the proceeds thereof in the form of cash and Cash Equivalents (including any such proceeds received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise, but only as and when received) of such Asset Sale or Recovery Event, net of attorneys' fees, 14 accountants' fees, investment banking fees, amounts required to be applied to the repayment of Indebtedness secured by a Lien expressly permitted hereunder on any asset that is the subject of such Asset Sale or Recovery Event (other than any Lien pursuant to a Security Document) and other customary fees and expenses actually incurred in connection therewith and net of taxes paid or reasonably estimated to be payable as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements) and (b) in connection with any issuance or sale of Capital Stock or any incurrence of Indebtedness, the cash proceeds received from such issuance or incurrence, net of attorneys' fees, investment banking fees, accountants' fees, underwriting discounts and commissions and other customary fees and expenses actually incurred in connection therewith. "New Loan Party": each Subsidiary of the Company that becomes a Loan Party as of the Closing Date. "New Revolving Credit Commitment": as to any New Revolving Credit Lender at any time, its obligation to make New Revolving Credit Loans to the Company in an aggregate amount not to exceed at any time outstanding the sum of the U.S. Dollar amounts set forth opposite such New Revolving Credit Lender's name in Schedule I under the headings "Existing New Revolving Credit Commitments" and "New Revolving Credit Commitment Increases", as such amount may be changed from time to time pursuant to subsection 2.13 and the other applicable provisions hereof. "New Revolving Credit Commitment Increase": as to any New Revolving Credit Lender at any time, its obligation to make New Revolving Credit Loans to the Company in an aggregate amount not to exceed at any time outstanding the U.S. Dollar amount set forth opposite such New Revolving Credit Lender's name in Schedule I under the heading "New Revolving Credit Commitment Increases", as such amount may be changed from time to time pursuant to subsection 2.13 and the other applicable provisions hereof. "New Revolving Credit Commitment Increase Percentage": as to any New Revolving Credit Lender at any time, the percentage which such New Revolving Credit Lender's New Revolving Credit Commitment Increase then constitutes of the Aggregate New Revolving Credit Commitment Increases. "New Revolving Credit Commitment Percentage": as to any New Revolving Credit Lender at any time, the percentage which such New Revolving Credit Lender's New Revolving Credit Commitment then constitutes of the Aggregate New Revolving Credit Commitments (or, after the New Revolving Credit Conversion Date, or if the New Revolving Credit Commitments have terminated, the percentage which (a) the Aggregate New Revolving Credit Outstanding of such New Revolving Credit Lender at such time then constitutes of (b) the Aggregate New Revolving Credit Outstanding of all New Revolving Credit Lenders at such time). "New Revolving Credit Commitment Period": the period from and including the Closing Date to but not including the New Revolving Credit Conversion Date, or such 15 earlier date on which the New Revolving Credit Commitments shall terminate as provided herein. "New Revolving Credit Conversion Date": August 31, 2001. "New Revolving Credit Lender": any Lender with a New Revolving Credit Commitment hereunder or any New Revolving Credit Loans outstanding; collectively, the "New Revolving Credit Lenders". "New Revolving Credit Loan": as defined in subsection 2.10. "New Revolving Credit Note": as defined in subsection 2.12(f). "Non-Excluded Taxes": as defined in subsection 5.12(a). "Notes": the collective reference to the New Revolving Credit Notes, the Revolving Credit Notes, the Term Notes, the Swing Line Notes and any note delivered pursuant to subsection 7.3(e). "Nutrition Warehouse": Nutrition Warehouse, Inc. "Nutrition Warehouse Acquisition": the acquisition by the Company of Nutrition Warehouse and its Affiliates pursuant to a certain stock purchase agreement to be entered into among Jeffrey Schneider, Franca Schneider, Glenn Schneider, Darren Schneider, Nutrition Warehouse Acquisition Corp. and the Company. "Nutrition Warehouse Purchase Amount": the total amount expended for the Nutrition Warehouse Acquisition to finance the cash portion of the purchase price and the refinancing of the Indebtedness of Nutrition Warehouse, its Affiliates and its Subsidiaries. "Obligations": collectively, the unpaid principal of and interest on the Loans, the Reimbursement Obligations and all other obligations and liabilities of the Company and the Foreign Subsidiary Borrower to the Administrative Agent, the Issuing Lender and the Lenders under or in connection with this Agreement, the other Loan Documents and any Hedge Agreement with any Lender (including in each case, without limitation, interest accruing at the then applicable rate provided in this Agreement or any other applicable Loan Document or Hedge Agreement after the maturity of the Loans and interest accruing at the then applicable rate provided in this Agreement or any other applicable Loan Document or Hedge Agreement after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement, the Notes, the Letters of Credit, the Letter of Credit Applications, the other Loan Documents or any Hedge Agreement with a Lender or any other document made, delivered or given in connection therewith, in each case whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, 16 expenses or otherwise (including, without limitation, all fees and disbursements of counsel to the Administrative Agents or to the Lenders). "Participants": as defined in subsection 13.6(b). "Participating Interest": with respect to any Letter of Credit (a) in the case of the Issuing Lender, its interest in such Letter of Credit and any Letter of Credit Application relating thereto after giving effect to the granting of any participating interests therein pursuant hereto and (b) in the case of each Participating Lender, its undivided participating interest in such Letter of Credit and any Letter of Credit Application relating thereto. "Participating Lender": any Lender (other than the Issuing Lender) with respect to its Participating Interest in a Letter of Credit. "PBGC": the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA or any successor thereto. "Person": an individual, partnership, corporation, business trust, joint stock company, limited liability company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature. "Plan": at a particular time, any employee benefit plan which is covered by ERISA and in respect of which the Company or a Commonly Controlled Entity is (or, if such plan were terminated at such time, would under Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA. "Pledged Stock": as defined in the Guarantee and Collateral Agreement or any other Security Document. "Pounds Sterling": pounds sterling in lawful currency of the United Kingdom. "Pounds Sterling Commitment": any Lender's obligation to make Pounds Sterling Loans pursuant to subsection 3.1. "Pounds Sterling Loans": as defined in subsection 3.1. "Property": each parcel of real property owned or operated by the Company and its Subsidiaries. "Recovery Event": any settlement of or payment in respect of any property or casualty insurance claim or any condemnation proceeding relating to any asset of the Company or any of its Subsidiaries. "Register": as defined in subsection 13.6(d). "Reimbursement Obligation": the obligation of the Company to reimburse the Issuing Lender in accordance with the terms of this Agreement and the related Letter of 17 Credit Application for any payment made by the Issuing Lender under any Letter of Credit. "Reinvestment Deferred Amount": with respect to any Reinvestment Event, the aggregate Net Cash Proceeds received by the Company or any of its Subsidiaries in connection therewith that are not applied to prepay the Term Loans and, after the New Revolving Credit Conversion Date, the New Revolving Credit Loans, pursuant to subsection 5.4(e) as a result of the delivery of a Reinvestment Notice. "Reinvestment Event": any Asset Sale or Recovery Event in respect of which the Company has delivered a Reinvestment Notice. "Reinvestment Notice": a written notice executed by a Responsible Officer of the Company stating that no Event of Default has occurred and is continuing and that the Company (directly or indirectly through a Subsidiary) intends and expects to use all or a specified portion of the Net Cash Proceeds of an Asset Sale or Recovery Event to acquire assets useful in its business. "Reinvestment Prepayment Amount": with respect to any Reinvestment Event, the Reinvestment Deferred Amount relating thereto less any amount expended prior to the relevant Reinvestment Prepayment Date to acquire assets useful in the Company's business. "Reinvestment Prepayment Date": with respect to any Reinvestment Event, the earlier of (a) the date occurring six months after such Reinvestment Event and (b) the date on which the Company shall have determined not to, or shall have otherwise ceased to, acquire assets useful in the Company's business with all or any portion of the relevant Reinvestment Deferred Amount. "Release": any spilling, leaking, pumping, pouring, emitting, emptying, discharging, escaping, leaking, dumping, disposing, spreading, depositing or dispersing of any Hazardous Materials in, unto or onto the environment. "Reorganization": with respect to any Multiemployer Plan, the condition that such plan is in reorganization within the meaning of Section 4241 of ERISA. "Reportable Event": any of the events set forth in Section 4043(c) of ERISA, other than those events as to which the thirty day notice period is waived under any of subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg. [SECTION] 4043 or any successor regulation thereto. "Requirement of Law": as to (a) any Person, the certificate of incorporation and by-laws or the partnership or limited partnership agreement or other organizational or governing documents of such Person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject, and (b) any property, any law, treaty, rule, regulation, 18 requirement, judgment, decree or determination of any Governmental Authority applicable to or binding upon such property or to which such property is subject, including, without limitation, any Environmental Laws. "Responsible Officer": with respect to any Loan Party, the chief executive officer, the president, the chief financial officer, any vice president, the treasurer or the assistant treasurer of such Loan Party. "Restricted Payments": as defined in subsection 9.7. "Revolving Credit Commitment": as to any Lender at any time, its obligation to make Revolving Credit Loans and/or Pounds Sterling Loans to, and/or participate in Letters of Credit issued for the account of or Swing Line Loans to, the Company in an aggregate amount not to exceed at any time outstanding the U.S. Dollar amount set forth opposite such Lender's name in Schedule I under the heading "Revolving Credit Commitment", as such amount may be changed from time to time pursuant to subsection 2.4 and the other applicable provisions hereof. "Revolving Credit Commitment Percentage": as to any Lender at any time, the percentage which such Lender's Revolving Credit Commitment then constitutes of the Aggregate Revolving Credit Commitments (or, if the Revolving Credit Commitments have terminated or expired, the percentage which (a) the Aggregate Revolving Credit Outstanding of such Lender at such time then constitutes of (b) the Aggregate Revolving Credit Outstanding of all Lenders at such time). "Revolving Credit Commitment Period": the period from and including the Closing Date to but not including the Revolving Credit Termination Date, or such earlier date on which the Revolving Credit Commitments shall terminate as provided herein. "Revolving Credit Loan": as defined in subsection 2.1. "Revolving Credit Note": as defined in subsection 2.3(e). "Revolving Credit Termination Date": September 30, 2003. "SDV Vitamins": SDV Vitamins, a mail order division of Rexall Sundown, Inc. "SDV Vitamins Acquisition": the acquisition by the Company of substantially all of the assets of SDV Vitamins pursuant to an asset purchase agreement entered into by the Company and Rexall Sundown, Inc. "Securities Act": the Securities Act of 1933, as amended. "Security Documents": the collective reference to the Guarantee and Collateral Agreement and the English Security Documents and each other pledge agreement, security document or similar agreement that may be delivered to the Administrative Agent as collateral security for any or all of the Obligations, in each case as amended, supplemented or otherwise modified from time to time. 19 "Single Employer Plan": any Plan which is covered by Title IV of ERISA, but which is not a Multiemployer Plan. "Solvent": with respect to any Person on a particular date, the condition that on such date, (a) the fair value of the property of such Person is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and mature, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person's ability to pay as such debts and liabilities mature, and (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person's property would constitute an unreasonably small amount of capital. "Standby Letters of Credit": as defined in subsection 4.1(i). "Subordinated Debt": $150,000,000 in aggregate principal amount of 8.625% Senior Subordinated Notes of the Company due 2007. "Subsidiary": as to any Person, a corporation, partnership or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly, through one or more intermediaries, or both, by such Person (exclusive of any Affiliate in which such Person has a minority ownership interest). Unless otherwise qualified, all references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries of the Company. "Swing Line Commitment": the Swing Line Lender's obligation to make Swing Line Loans pursuant to subsection 2.5. "Swing Line Lender": Chase, in its capacity as lender of the Swing Line Loans. "Swing Line Loan Participation Certificate": a certificate in substantially the form of Exhibit C, as the same may be amended, supplemented or otherwise modified from time to time. "Swing Line Loans": as defined in subsection 2.5(a). "Swing Line Note": as defined in subsection 2.3(e). "Term Loan": as defined in subsection 2.6. "Term Loan Commitment": as to any Lender at any time, its obligation to make Term Loans to the Company during the Term Loan Commitment Period in an aggregate amount not to exceed at any time outstanding the U.S. Dollar amount set forth opposite 20 such Lender's name in Schedule I to the Existing Credit Agreement under the heading "Term Loan Commitment", as such amount may be changed from time to time pursuant to subsection 2.9 and the other applicable provisions hereof. "Term Loan Commitment Percentage": as to any Lender at any time, the percentage which such Lender's Term Loan Commitment then constitutes of the Aggregate Term Loan Commitments (or, if the Term Loan Commitments have terminated or expired, the percentage which such Lender's aggregate principal amount of Term Loans outstanding then constitutes of the aggregate principal amount of Term Loans outstanding for all Lenders). "Term Loan Commitment Period": the period from and including April 16, 1999 to but not including the Term Loan Termination Date, or such earlier date on which the Term Loan Commitments shall terminate as provided herein. "Term Loan Termination Date": April 16, 2000. "Term Note": as defined in subsection 2.8(f). "Total Loan Percentage": as to any Lender at any time, the percentage which (i) the sum of (x) such Lender's Revolving Credit Commitment (or, if the Revolving Credit Commitments have terminated or expired, the Aggregate Revolving Credit Outstanding of such Lender) plus (y) the sum of such Lender's Available Term Loan Commitment and the aggregate principal amount of Term Loans outstanding for such Lender plus (z) such Lender's New Revolving Credit Commitment (or, after the New Revolving Credit Conversion Date, or if the New Revolving Credit Commitments have terminated, the Aggregate New Revolving Credit Outstanding of such Lender) then constitutes of (ii) the sum of (x) the Aggregate Revolving Credit Commitments (or, if the Revolving Credit Commitments have terminated or expired, the Aggregate Revolving Credit Outstanding of all Lenders) plus (y) the sum of the Aggregate Available Term Loan Commitments and the aggregate principal amount of Term Loans outstanding for all Lenders plus (z) the Aggregate New Revolving Credit Commitments (or, after the New Revolving Credit Conversion Date, or if the New Revolving Credit Commitments have terminated, the Aggregate New Revolving Credit Outstanding of all Lenders). "Tranche": the collective reference to Eurodollar Loans or Pounds Sterling Loans the then current Interest Periods with respect to all of which begin on the same date and end on the same later date (whether or not such Loans shall originally have been made on the same day). "Transferee": as defined in subsection 13.6(f). "Type": as to any Loan, its nature as an ABR Loan, a Eurodollar Loan or a Pounds Sterling Loan. "UK GAAP": generally accepted accounting principles in the United Kingdom in effect from time to time. 21 "UP-Front Fee": as defined in subsection 5.5(c). "U.S. Dollar Equivalent": with respect to an amount denominated in any currency other than U.S. Dollars, the equivalent in U.S. Dollars of such amount, calculated on the basis of the arithmetical mean of the buy and sell spot rates of exchange of the Administrative Agent for such currency in the London market at 11:00 a.m. London time, two Business Days prior to the date on which such amount is to be determined. 1.2. Other Definitional Provisions. (a) Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in the Notes, the other Loan Documents or any certificate or other document made or delivered pursuant hereto. (b) As used herein and in the Notes and any other Loan Document, and any certificate or other document made or delivered pursuant hereto or thereto, accounting terms relating to the Company and its Subsidiaries not defined in subsection 1.1 and accounting terms partly defined in subsection 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP provided that, if the Company notifies the Administrative Agent that the Company requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Company that the Majority Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith. (c) The words "hereof", "herein" and "hereunder" and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, subsection, Schedule and Exhibit references are to this Agreement unless otherwise specified. (d) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms. SECTION 2. AMOUNT AND TERMS OF COMMITMENTS 2.1. Revolving Credit Commitments. (a) Subject to the terms and conditions hereof, each Lender severally agrees to make revolving credit loans (each, a "Revolving Credit Loan") in U.S. Dollars to the Company from time to time during the Revolving Credit Commitment Period so long as after giving effect thereto (i) the Available Revolving Credit Commitment of each Lender is greater than or equal to zero and (ii) the Aggregate Revolving Credit Outstanding of all Lenders does not exceed the Aggregate Revolving Credit Commitments. During the Revolving Credit Commitment Period the Company may use the Revolving Credit Commitments by borrowing, prepaying the Revolving Credit Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. 22 (b) The Revolving Credit Loans may from time to time be (i) Eurodollar Loans, (ii) ABR Loans or (iii) a combination thereof, as determined by the Company and notified to the Administrative Agent in accordance with subsections 2.2 and 5.2, provided that no Revolving Credit Loan shall be made as a Eurodollar Loan after the day that is one month prior to the Revolving Credit Termination Date. 2.2. Procedure for Revolving Credit Borrowing. The Company may borrow under the Revolving Credit Commitments during the Revolving Credit Commitment Period on any Business Day, provided that the Company shall give the Administrative Agent irrevocable notice (which notice must be received by the Administrative Agent prior to 11:00 A.M. (New York time) at least (a) three Business Days prior to the requested Borrowing Date, if all or any part of the requested Revolving Credit Loans are to be initially Eurodollar Loans, or (b) one Business Day prior to the requested Borrowing Date, otherwise), specifying in each case (i) the amount to be borrowed, (ii) the requested Borrowing Date, (iii) whether the borrowing is to be of Eurodollar Loans, ABR Loans or a combination thereof and (iv) if the borrowing is to be entirely or partly of Eurodollar Loans, the amount of such Type of Loan and the length of the initial Interest Periods therefor. Each borrowing under the Revolving Credit Commitments shall be in an amount equal to (A) in the case of ABR Loans, $1,000,000 or a whole multiple of $1,000,000 in excess thereof (or, if the then Aggregate Available Revolving Credit Commitments are less than $1,000,000, such lesser amount) and (B) in the case of Eurodollar Loans, $5,000,000 or a whole multiple of $5,000,000 in excess thereof. Upon receipt of any such notice from the Company, the Administrative Agent shall promptly notify each Lender thereof not later than 9:00 A.M., New York City time, on the requested Borrowing Date. Not later than 12:00 Noon, New York City time, on each requested Borrowing Date each Lender shall make an amount equal to its Revolving Credit Commitment Percentage of the principal amount of the Revolving Credit Loans requested to be made on such Borrowing Date available to the Administrative Agent at its office specified in subsection 13.2 in U.S. Dollars and in immediately available funds. The Administrative Agent shall on such date credit the account of the Company on the books of such office with the aggregate of the amounts made available to the Administrative Agent by the Lenders and in like funds as received by the Administrative Agent. 2.3. Repayment of Revolving Credit Loans; Evidence of Debt. (a) The Company hereby unconditionally promises to pay to the Administrative Agent for the account of each Lender the then unpaid principal amount of each Revolving Credit Loan of such Lender (whether made before or after the termination or expiration of the Revolving Credit Commitments) on the Revolving Credit Termination Date and on such other dates and in such other amounts as may be required from time to time pursuant to this Agreement. The Company hereby further agrees to pay interest on the unpaid principal amount of the Revolving Credit Loans from time to time outstanding until payment thereof in full at the rates per annum, and on the dates, set forth in subsection 5.1. (b) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing indebtedness of the Company to such Lender resulting from each Revolving Credit Loan of such Lender from time to time, including the amounts of principal and interest payable thereon and paid to such Lender from time to time under this Agreement. 23 (c) The Administrative Agent shall maintain the Register pursuant to subsection 13.6(d), and a subaccount therein for each Lender, in which shall be recorded (i) the amount of each Revolving Credit Loan made hereunder, the Type thereof and each Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Company to each Lender hereunder in respect of the Revolving Credit Loans and (iii) both the amount of any sum received by the Administrative Agent hereunder from the Company in respect of the Revolving Credit Loans and each Lender's share thereof. (d) The entries made in the Register and the accounts of each Lender maintained pursuant to subsection 2.3(b) shall, to the extent permitted by applicable law, be prima facie evidence of the existence and amounts of the obligations of the Company therein recorded; provided, however, that the failure of any Lender or the Administrative Agent to maintain the Register or any such account, or any error therein, shall not in any manner affect the obligation of the Company to repay (with applicable interest) the Revolving Credit Loans made to the Company by such Lender in accordance with the terms of this Agreement. (e) The Company agrees that it will, upon the request of any Lender, execute and deliver to each Lender (i) a promissory note of the Company evidencing the Revolving Credit Loans of such Lender, substantially in the form of Exhibit A-1 with appropriate insertions as to date and principal amount (each, a "Revolving Credit Note") and/or (ii) a promissory note of the Company evidencing the Swing Line Loans of such Lender, substantially in the form of Exhibit A-2 with appropriate insertions as to date and principal amount (each, a "Swing Line Note"); provided, that any Revolving Credit Note or Swing Line Note previously delivered to such Lender (or predecessor thereof) has been returned to the Company and marked canceled. 2.4. Termination or Reduction of Revolving Credit Commitments. The Company shall have the right, upon not less than five Business Days' notice to the Administrative Agent (which shall promptly notify each Lender thereof), to terminate the Revolving Credit Commitments or, from time to time, to reduce the amount of the Revolving Credit Commitments; provided that no such termination or reduction shall be permitted if, after giving effect thereto and to any prepayments of the Revolving Credit Loans made on the effective date thereof, the Available Revolving Credit Commitment of any Lender would not be greater than or equal to zero. Any such reduction shall be in an amount equal to $1,000,000 or a whole multiple of $1,000,000 in excess thereof and shall reduce permanently the Revolving Credit Commitments then in effect. 2.5. Swing Line Commitment. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (individually, a "Swing Line Loan"; collectively, the "Swing Line Loans") to the Company from time to time during the Revolving Credit Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $5,000,000; provided that the Swing Line Lender shall not make any Swing Line Loan if, after giving effect thereto, the sum of the Swing Line Loans, the Revolving Credit Loans, the Pounds Sterling Loans and the Letter of Credit Obligations (in each case after giving effect to the Loans requested to be made and the Letters of Credit requested to be issued on such date) exceed the Revolving Credit Commitments. During the Revolving Credit Commitment Period, the Company may use the Swing Line Commitment by borrowing, prepaying the Swing Line Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. All 24 Swing Line Loans shall be made as ABR Loans and shall not be entitled to be converted into Eurodollar Loans. The Company shall give the Swing Line Lender irrevocable notice (which notice must be received by the Swing Line Lender prior to 12:00 Noon, New York City time) on the requested Borrowing Date specifying the amount of the requested Swing Line Loan which shall be in a minimum amount of $100,000 or a whole multiple of $100,000 in excess thereof. The proceeds of the Swing Line Loan will be made available by the Swing Line Lender to the Company at the office of the Swing Line Lender by 3:00 p.m. on the Borrowing Date by crediting the account of the Company at such office with such proceeds. The Company may at any time and from time to time prepay the Swing Line Loans, in whole or in part, without premium or penalty, by notifying the Swing Line Lender prior to 12:00 Noon on any Business Day of the date and amount of prepayment. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein. Partial prepayments shall be in an aggregate principal amount of $100,000 or a whole multiple of $100,000 in excess thereof. (b) The Swing Line Lender, at any time in its sole and absolute discretion, may, on behalf of the Company (which hereby irrevocably directs the Swing Line Lender to act on its behalf) request each Lender, including the Swing Line Lender, to make a Revolving Credit Loan which is an ABR Loan in an amount equal to such Lender's Revolving Credit Commitment Percentage of the amount of the Swing Line Loans outstanding on the date such notice is given (the "Refunded Swing Line Loans"). Unless any of the events described in paragraph (h) of Section 11 shall have occurred with respect to the Company (in which event the procedures of paragraph (d) of this subsection 2.5 shall apply) each Lender shall make the proceeds of its Revolving Credit Loan available to the Administrative Agent for the account of the Swing Line Lender at the office of the Administrative Agent specified in subsection 13.2 prior to 12:00 Noon (New York City time) in funds immediately available on the Business Day next succeeding the date such notice is given. The proceeds of such Revolving Credit Loans shall be immediately applied to repay the Refunded Swing Line Loans. Effective on the day such Revolving Credit Loans are made, the portion of the Swing Line Loans so paid shall no longer be outstanding as Swing Line Loans, shall no longer be due under any Swing Line Note and shall be due under the respective Revolving Credit Loans made by the Lenders in accordance with their respective Revolving Credit Commitment Percentages. (c) Notwithstanding anything herein to the contrary, the Swing Line Lender shall not be obligated to make any Swing Line Loans if the conditions set forth in subsection 7.2 have not been satisfied. (d) If prior to the making of a Revolving Credit Loan pursuant to paragraph (b) of this subsection 2.5 one of the events described in paragraph (h) of Section 11 shall have occurred and be continuing with respect to the Company, each Lender will, on the date such Revolving Credit Loan was to have been made pursuant to the notice in subsection 2.5, purchase an undivided participating interest in the Refunded Swing Line Loans in an amount equal to (i) its Revolving Credit Commitment Percentage times (ii) the Refunded Swing Line Loans. Each Lender will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participation, and upon receipt thereof the Swing Line Lender will deliver to such Lender a Swing Line Loan Participation Certificate dated the date of receipt of such funds and in such amount. 25 (e) Whenever, at any time after any Lender has purchased a participating interest in a Swing Line Loan, the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will distribute to such Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender's participating interest was outstanding and funded); provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it. (f) Each Lender's obligation to make the Loans referred to in subsection 2.5(b) and to purchase participating interests pursuant to subsection 2.5(d) shall be absolute, irrevocable and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or the Company may have against the Swing Line Lender, the Company or any other Person for any reason whatsoever, (ii) the occurrence or continuance of a Default or an Event of Default; (iii) any adverse change in the condition (financial or otherwise) of the Company or any other Loan Party; (iv) any breach of this Agreement or any other Loan Document by the Company or any of its Subsidiaries or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. 2.6. Term Loan Commitments. On and as of the date hereof, each Lender has made term loans to the Company (each, a "Term Loan") from time to time during the Term Loan Commitment Period in an aggregate principal amount set forth opposite such Lender's name on Schedule I under the heading "Term Loans". The Term Loans may from time to time be (a) Eurodollar Loans, (b) ABR Loans or (c) a combination thereof, as determined by the Company and notified to the Administrative Agent in accordance with subsections 2.9 and 5.2. 2.7. Procedure for Term Loan Borrowing. The Company may borrow under the Term Loan Commitments during the Term Loan Commitment Period on any Business Day, provided that the Company shall give the Administrative Agent irrevocable notice (which notice must be received by the Administrative Agent prior to 11:00 A.M. (New York City time) at least (a) three Business Days prior to the requested Borrowing Date, if all or any part of the requested Term Loans are to be initially Eurodollar Loans or (b) one Business Day prior to the requested Borrowing Date, otherwise), specifying in each case (i) the amount to be borrowed, (ii) the requested Borrowing Date, (iii) whether the borrowing is to be of Eurodollar Loans, ABR Loans or a combination thereof and (iv) if the borrowing is to be entirely or partly of Eurodollar Loans, the amount of such Type of Loan and the length of the initial Interest Periods therefor. Each borrowing under the Term Loan Commitments shall be in an amount equal to (A) in the case of ABR Loans, $1,000,000 or a whole multiple of $1,000,000 in excess thereof (or, if the then Aggregate Available Term Loan Commitments are less than $1,000,000, such lesser amount) and (B) in the case of Eurodollar Loans, $5,000,000 or a whole multiple of $5,000,000 in excess thereof. Upon receipt of any such notice from the Company, the Administrative Agent shall promptly notify each Lender thereof not later than 9:00 A.M., New York City time, on the requested Borrowing Date. Not later than 12:00 Noon, New York City time, on each requested Borrowing Date, each Lender shall make an amount equal to its Term Loan Commitment Percentage of the principal amount of the Term Loans requested to be made on such Borrowing Date available to the Administrative Agent at its office specified in subsection 13.2 in U.S. 26 Dollars and in immediately available funds. The Administrative Agent shall on such date credit the account of the Company on the books of such office with the aggregate of the amounts made available to the Administrative Agent by the Lenders and in like funds as received by the Administrative Agent. 2.8. Repayment of Term Loans; Evidence of Debt. (a) The aggregate Term Loans of all the Lenders outstanding on the Term Loan Termination Date shall be payable in 20 equal consecutive quarterly installments on the dates set forth below in a principal amount equal to the percentage set forth opposite such date multiplied by the aggregate amount of the Term Loans outstanding on the Term Loan Termination Date (or, if less, the aggregate amount of the Term Loans then outstanding):
Dates Percentage ----- ---------- June 30, 2000 5.0% September 30, 2000 5.0% December 31, 2000 5.0% March 31, 2001 5.0% June 30, 2001 5.0% September 30, 2001 5.0% December 31, 2001 5.0% March 31, 2002 5.0% June 30, 2002 5.0% September 30, 2002 5.0% December 31, 2002 5.0% March 31, 2003 5.0% June 30, 2003 5.0% September 30, 2003 5.0% December 31, 2003 5.0% March 31, 2004 5.0% June 30, 2004 5.0% September 30, 2004 5.0% December 31, 2004 5.0% March 31, 2005 5.0%
(b) The Company hereby unconditionally promises to pay to the Administrative Agent for the account of each Lender the amounts specified in subsection 2.8(a) (or if less, the aggregate amount of the Term Loans then outstanding) on the dates specified in subsection 2.8(a) and on such other dates and in such other amounts as may be required from time to time pursuant to this Agreement. The Company hereby further agrees to pay interest on the unpaid principal amount of the Term Loans from time to time outstanding until payment thereof in full at the rates per annum, and on the dates, set forth in subsection 5.1. (c) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing indebtedness of the Company to such Lender resulting from each Term 27 Loan of such Lender from time to time, including the amounts of principal and interest payable thereon and paid to such Lender from time to time under this Agreement. (d) The Administrative Agent shall maintain the Register pursuant to subsection 13.6(d), and a subaccount therein for each Lender, in which shall be recorded (i) the amount of each Term Loan made hereunder, the Type thereof and each Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Company to each Lender hereunder in respect of the Term Loans and (iii) both the amount of any sum received by the Administrative Agent hereunder from the Company in respect of the Term Loans and each Lender's share thereof. (e) The entries made in the Register and the accounts of each Lender maintained pursuant to subsection 2.8(c) shall, to the extent permitted by applicable law, be prima facie evidence of the existence and amounts of the obligations of the Company therein recorded; provided, however, that the failure of any Lender or the Administrative Agent to maintain the Register or any such account, or any error therein, shall not in any manner affect the obligation of the Company to repay (with applicable interest) the Term Loans made to the Company by such Lender in accordance with the terms of this Agreement. (f) The Company agrees that it will, upon the request of any Lender, execute and deliver to each Lender a promissory note of the Company evidencing the Term Loans of such Lender, substantially in the form of Exhibit A-3 with appropriate insertions as to date and principal amount (each, a "Term Note"); provided, that any Term Note previously delivered to such Lender (or any predecessor thereof) has been returned to the Company and marked cancelled. 2.9. Termination or Reduction of Term Loan Commitments. The Company shall have the right, upon not less than five Business Days' notice to the Administrative Agent (which shall promptly notify each Lender thereof), to terminate the Term Loan Commitments or, from time to time, to reduce the amount of the Term Loan Commitments. Any such reduction shall be in an amount equal to $1,000,000 or a whole multiple of $1,000,000 in excess thereof and shall reduce permanently the Term Loan Commitments then in effect. 2.10. New Revolving Credit Commitments. (a) Subject to the terms and conditions hereof, each New Revolving Credit Lender severally agrees to make revolving credit loans (each, a "New Revolving Credit Loan") in U.S. Dollars to the Company from time to time during the New Revolving Credit Commitment Period so long as after giving effect thereto (i) the Available New Revolving Credit Commitment of each New Revolving Credit Lender is greater than or equal to zero and (ii) the Aggregate New Revolving Credit Outstanding of all New Revolving Credit Lenders does not exceed the Aggregate New Revolving Credit Commitments. During the New Revolving Credit Commitment Period, the Company may use the New Revolving Credit Commitments by borrowing, prepaying the New Revolving Credit Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. (b) During the New Revolving Credit Commitment Period, the Company shall fully borrow under the Existing New Revolving Credit Commitments prior to making any 28 borrowing under the New Revolving Credit Commitment Increases. On the New Revolving Credit Conversion Date, any Interest Period then applicable to the New Revolving Credit Loans then outstanding shall be terminated and such New Revolving Credit Loans shall be continued with new Interest Periods commencing on such date so that all New Revolving Credit Lenders will be ratable as to each Interest Period based upon their pro rata share of New Revolving Credit Loans then outstanding on such date. Such continuation shall be subject to the provisions of subsection 5.11. (c) The New Revolving Credit Loans may from time to time be (i) Eurodollar Loans, (ii) ABR Loans or (iii) a combination thereof, as determined by the Company and notified to the Administrative Agent in accordance with subsections 2.11 and 5.2. 2.11. Procedure for New Revolving Credit Borrowing. The Company may borrow under the New Revolving Credit Commitments during the New Revolving Credit Commitment Period on any Business Day, provided that the Company shall give the Administrative Agent irrevocable notice (which notice must be received by the Administrative Agent prior to 11:00 A.M. (New York time) at least (a) three Business Days prior to the requested Borrowing Date, if all or any part of the requested New Revolving Credit Loans are to be initially Eurodollar Loans, or (b) one Business Day prior to the requested Borrowing Date, otherwise), specifying in each case (i) the amount to be borrowed, (ii) the requested Borrowing Date, (iii) whether the borrowing is to be of Eurodollar Loans, ABR Loans or a combination thereof and (iv) if the borrowing is to be entirely or partly of Eurodollar Loans, the amount of such Type of Loan and the length of the initial Interest Periods therefor. Each borrowing under the New Revolving Credit Commitments shall be in an amount equal to (A) in the case of ABR Loans, $1,000,000 or a whole multiple of $1,000,000 in excess thereof (or, if the then Aggregate Available New Revolving Credit Commitments are less than $1,000,000, such lesser amount) and (B) in the case of Eurodollar Loans, $5,000,000 or a whole multiple of $5,000,000 in excess thereof. Upon receipt of any such notice from the Company, the Administrative Agent shall promptly notify each New Revolving Credit Lender thereof not later than 9:00 A.M., New York City time, on the requested Borrowing Date. Not later than 12:00 Noon, New York City time, on each requested Borrowing Date each New Revolving Credit Lender shall make an amount equal to its Existing New Revolving Credit Commitment Percentage and/or its New Revolving Credit Commitment Increase Percentage, as the case may be, of the principal amount of the relevant New Revolving Credit Loans requested to be made on such Borrowing Date available to the Administrative Agent at its office specified in subsection 13.2 in U.S. Dollars and in immediately available funds. The Administrative Agent shall on such date credit the account of the Company on the books of such office with the aggregate of the amounts made available to the Administrative Agent by the New Revolving Credit Lenders and in like funds as received by the Administrative Agent. 2.12. Repayment of New Revolving Credit Loans; Evidence of Debt. (a) The aggregate New Revolving Credit Loans of all the New Revolving Credit Lenders outstanding on the New Revolving Credit Conversion Date shall be payable in 16 consecutive quarterly installments on the dates set forth below in a principal amount equal to the percentage set forth opposite such date multiplied by the aggregate amount of the New Revolving Credit Loans outstanding on the New Revolving Credit Conversion Date (or, if less, 29 in a principal amount equal to the aggregate amount of the New Revolving Credit Loans then outstanding):
Dates Percentage ----- ---------- September 30, 2001 6.25% December 31, 2001 6.25% March 31, 2002 6.25% June 30, 2002 6.25% September 30, 2002 6.25% December 31, 2002 6.25% March 31, 2003 6.25% June 30, 2003 6.25% September 30, 2003 6.25% December 31, 2003 6.25% March 31, 2004 6.25% June 30, 2004 6.25% September 30, 2004 6.25% December 31, 2004 6.25% March 31, 2005 6.25% June 30, 2005 6.25%
(b) The Company hereby unconditionally promises to pay to the Administrative Agent for the account of each New Revolving Credit Lender the amounts specified in subsection 2.12(a) (or if less, the aggregate amount of the New Revolving Credit Loans then outstanding) on the dates specified in subsection 2.12(a) and on such other dates and in such other amounts as may be required from time to time pursuant to this Agreement. The Company hereby further agrees to pay interest on the unpaid principal amount of the New Revolving Credit Loans from time to time outstanding until payment thereof in full at the rates per annum, and on the dates, set forth in subsection 5.1. (c) Each New Revolving Credit Lender shall maintain in accordance with its usual practice an account or accounts evidencing indebtedness of the Company to such New Revolving Credit Lender resulting from each New Revolving Credit Loan of such New Revolving Credit Lender from time to time, including the amounts of principal and interest payable thereon and paid to such New Revolving Credit Lender from time to time under this Agreement. (d) The Administrative Agent shall maintain the Register pursuant to subsection 13.6(d), and a subaccount therein for each New Revolving Credit Lender, in which shall be recorded (i) the amount of each New Revolving Credit Loan made hereunder, the Type thereof, whether such New Revolving Credit Loan is made under the Existing New Revolving Credit Commitments or under the New Revolving Credit Commitment Increases, and each Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Company to each New Revolving Credit Lender hereunder in respect of the New Revolving Credit Loans and (iii) both the amount of any sum received by the 30 Administrative Agent hereunder from the Company in respect of the New Revolving Credit Loans and each New Revolving Credit Lender's share thereof. (e) The entries made in the Register and the accounts of each New Revolving Credit Lender maintained pursuant to subsection 2.12(c) shall, to the extent permitted by applicable law, be prima facie evidence of the existence and amounts of the obligations of the Company therein recorded; provided, however, that the failure of any New Revolving Credit Lender or the Administrative Agent to maintain the Register or any such account, or any error therein, shall not in any manner affect the obligation of the Company to repay (with applicable interest) the New Revolving Credit Loans made to the Company by such New Revolving Credit Lender in accordance with the terms of this Agreement. (f) The Company agrees that it will execute and deliver (i) to each New Revolving Credit Lender that has a New Revolving Credit Commitment Increase and (ii) to each remaining New Revolving Credit Lender that so requests a promissory note of the Company evidencing the New Revolving Credit Loans of such New Revolving Credit Lender, substantially in the form of Exhibit A-4 with appropriate insertions as to date and principal amount (each, a "New Revolving Credit Note"); provided, that the delivery of such New Revolving Credit Notes shall not be a condition precedent to the Closing Date. 2.13. Termination or Reduction of New Revolving Credit Commitments. The Company shall have the right, upon not less than five Business Days' notice to the Administrative Agent (which shall promptly notify each New Revolving Credit Lender thereof), to terminate the New Revolving Credit Commitments or, from time to time, to reduce the amount of the New Revolving Credit Commitments; provided that no such termination or reduction shall be permitted if, after giving effect thereto and to any prepayments of the New Revolving Credit Loans made on the effective date thereof, the Available New Revolving Credit Commitment of any New Revolving Credit Lender would not be greater than or equal to zero. Any such reduction shall be in an amount equal to $1,000,000 or a whole multiple of $1,000,000 in excess thereof and shall reduce permanently the New Revolving Credit Commitments then in effect. No such reduction shall be made in the Existing Revolving Credit Commitments while any New Revolving Credit Commitment Increases are in effect. SECTION 3. AMOUNT AND TERMS OF POUNDS STERLING COMMITMENT 3.1. Pounds Sterling Commitments. Subject to the terms and conditions hereof, each Lender severally agrees to make revolving credit loans (each, a "Pounds Sterling Loan") in Pounds Sterling to the Company or the Foreign Subsidiary Borrower from time to time during the Revolving Credit Commitment Period so long as after giving effect thereto (a) the Available Revolving Credit Commitment of each Lender is greater than or equal to zero, (b) the Aggregate Revolving Credit Outstanding of all Lenders does not exceed the Aggregate Revolving Credit Commitments and (c) the aggregate principal amount of all Pounds Sterling Loans shall not exceed Pound Sterling equivalent of $10,000,000. During the Revolving Credit Commitment Period, the Company or the Foreign Subsidiary Borrower may use the Revolving Credit Commitments by borrowing, repaying the Pounds Sterling Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. For the purpose of determining the Aggregate Revolving Credit Outstanding on the date of a requested Pounds 31 Sterling Loan, the U.S. Dollar Equivalent of the Pounds Sterling Loan then being requested shall be aggregated with the U.S. Dollar Equivalents of all Pounds Sterling Loans then outstanding (the U.S. Dollar Equivalent of each such outstanding Pounds Sterling Loan to be calculated as of the date of the most recent continuation of such Pounds Sterling Loan pursuant to subsection 3.2(d) or, if not previously continued, the date of the initial Pounds Sterling Loan). 3.2. Making the Pounds Sterling Loans. (a) Each Pounds Sterling Loan shall be made on notice, given by the Company to the Administrative Agent not later than 11:00 A.M. (London time) on the third Business Day prior to the date of the proposed Pounds Sterling Loan. Each such notice shall specify therein (i) the name of the Borrower, (ii) the date of such proposed Pounds Sterling Loan, (iii) the aggregate amount of such proposed Pounds Sterling Loan and (iv) the initial Interest Period for such Pounds Sterling Loan. (b) The Administrative Agent shall give to each Lender prompt notice of the Administrative Agent's receipt of the notice referred to in subsection 3.2(a) not later than 9:00 A.M., New York City time, on the requested Borrowing Date. Each Lender shall, before 11:00 A.M. (London time) on the date of the proposed Pounds Sterling Loan, make available to the account of the Administrative Agent's office located at Trinity Tower, 9 Thomas Moore Street, London, England E1 9YT, in immediately available funds, such Lender's Revolving Credit Commitment Percentage of such proposed Pounds Sterling Loan in Pounds Sterling. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Section 7, the Administrative Agent will make such funds available to the applicable Borrower at the Administrative Agent's aforesaid addresses. (c) Each Pounds Sterling Loan shall be in an amount in Pounds Sterling of which the U.S. Dollar Equivalent is equal to at least $1,000,000 (or, if the then Aggregate Available Revolving Credit Commitments are less than $1,000,000, such lesser amount). (d) At least three Business Days' prior to the end of each Interest Period, the Company shall give the Administrative Agent notice (a "Notice of Continuation"), not later than 11:00 A.M. (New York time) specifying the duration of the next succeeding Interest Period. The Administrative Agent shall promptly notify each Lender of its receipt of a Notice of Continuation and the contents thereof. If, within the time period required under the terms of this subsection 3.2(d), the Administrative Agent does not receive a Notice of Continuation from the Company, then, upon the expiration of the Interest Period therefor, the applicable Interest Period in respect of such Pounds Sterling Loans shall be automatically deemed to be a period of one month commencing on the last day of the immediately preceding Interest Period and ending one month thereafter. Notwithstanding the first sentence of this subsection 3.2(d), no Pounds Sterling Loans shall be continued in accordance with a Notice of Continuation given if, on the date of the Notice of Continuation, the Borrowers are not in compliance with subsection 3.1, unless, one or more of the Borrowers shall repay the Pounds Sterling Loans, together with all accrued interest on the amount prepaid, such that the Borrowers are in compliance with subsection 3.1. Notwithstanding the foregoing, upon the expiration of any Interest Period with respect to any Pounds Sterling Loan at any time at which a Default or Event of Default shall have occurred and be continuing, the applicable Interest Period in respect of such Pounds Sterling Loans shall be automatically deemed to be a period of one month commencing on the 32 last day of the immediately preceding Interest Period and ending one month thereafter. Each Notice of Continuation shall be irrevocable. 3.3. Repayment of Pounds Sterling Loans; Evidence of Debt. (a) The Company and the Foreign Subsidiary Borrower hereby jointly and severally unconditionally promise to pay to the Administrative Agent for the account of each Lender the then unpaid principal amount of each Pounds Sterling Loan of such Lender to the Company or the Foreign Subsidiary Borrower on the Revolving Credit Termination Date and on such other date(s) and in such other amounts as may be required from time to time pursuant to this Agreement. Each of the Company and the Foreign Subsidiary Borrower hereby further agrees to pay interest on the unpaid principal amount of the Pounds Sterling Loans advanced to it and from time to time outstanding until payment thereof in full at the rates per annum, and on the dates, set forth in subsection 5.1. (b) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing indebtedness of the Company and the Foreign Subsidiary Borrower to such Lender resulting from each Pounds Sterling Loan of such Lender from time to time, including the amounts of principal and interest payable thereon and paid to such Lender from time to time under this Agreement. (c) The Administrative Agent shall maintain the Register pursuant to subsection 13.6(d), and a subaccount therein for each Lender, in which shall be recorded (i) the amount of each Pounds Sterling Loan made hereunder, (ii) the amount of any principal or interest due and payable or to become due and payable from the Company and the Foreign Subsidiary Borrower to each Lender hereunder in respect of the Pounds Sterling Loans and (iii) both the amount of any sum received by the Administrative Agent hereunder from the Company and the Foreign Subsidiary Borrower in respect of the Pounds Sterling Loans and each Lender's share thereof. (d) The entries made in the Register and the accounts of each Lender maintained pursuant to subsection 3.3(b) shall, to the extent permitted by applicable law, be prima facie evidence of the existence and amounts of the obligations of the Company and the Foreign Subsidiary Borrower therein recorded; provided, however, that the failure of any Lender or the Administrative Agent to maintain the Register or any such account, or any error therein, shall not in any manner affect the obligation of the Company or the Foreign Subsidiary Borrower to repay (with applicable interest) the Pounds Sterling Loans made to the Company or the Foreign Subsidiary Borrower by such Lender in accordance with the terms of this Agreement. SECTION 4. LETTERS OF CREDIT 4.1. Letters of Credit. Subject to the terms and conditions of this Agreement, the Issuing Lender agrees, on behalf of the Lenders, and in reliance on the agreement of the Lenders set forth in subsection 4.3, to continue outstanding or to issue for the account of the Company letters of credit in an aggregate face amount, together with any unpaid Reimbursement Obligations, not to exceed $5,000,000 at any time outstanding, as follows: (i) standby letters of credit (collectively, the "Standby Letters of Credit") in a form reasonably satisfactory to the Issuing Lender and in favor of such beneficiaries as 33 the Company shall specify from time to time (which shall be reasonably satisfactory to the Issuing Lender); and (ii) commercial letters of credit in the form of the Issuing Lender's standard commercial letters of credit ("Commercial Letters of Credit") in favor of sellers of goods or services to the Company or its Subsidiaries (the Standby Letters of Credit and Commercial Letters of Credit being referred to collectively as the "Letters of Credit"); provided that on the date of the issuance of any Letter of Credit, and after giving effect to such issuance, the Aggregate Revolving Credit Outstanding of all Lenders does not exceed the Aggregate Revolving Credit Commitments at such time. Each Standby Letter of Credit shall (i) have an expiry date no later than one year from the date of issuance thereof or, if earlier, five Business Days prior to the Revolving Credit Termination Date, (ii) be denominated in U.S. Dollars and (iii) be in a minimum face amount of $100,000. Each Commercial Letter of Credit shall (i) provide for the payment of sight drafts when presented for honor thereunder, or of time drafts, in each case in accordance with the terms thereof and when accompanied by the documents described or when such documents are presented, as the case may be, (ii) be denominated in U.S. Dollars and (iii) have an expiry date no later than six months from the date of issuance thereof or, if earlier, five Business Days prior to the Revolving Credit Termination Date. Upon the issuance of any Letter of Credit, the Administrative Agent shall promptly notify each Lender thereof. 4.2. Procedure for Issuance of Letters of Credit. The Company may from time to time request, upon at least three Business Days' notice, the Issuing Lender to issue a Letter of Credit by delivering to the Issuing Lender at its address specified in subsection 13.2 a Letter of Credit Application, completed to the satisfaction of such Issuing Lender, together with such other certificates, documents and other papers and information as such Issuing Lender may reasonably request. Upon receipt of any Letter of Credit Application, the Issuing Lender will process such Letter of Credit Application, and the other certificates, documents and other papers delivered in connection therewith, in accordance with its customary procedures and shall promptly issue such Letter of Credit (but in no event earlier than three Business Days after receipt by the Issuing Lender of the Letter of Credit Application relating thereto) by issuing the original of such Letter of Credit to the beneficiary thereof and by furnishing a copy thereof to the Company. Prior to the issuance of any Letter of Credit, the Issuing Lender will confirm with the Administrative Agent that the issuance of such Letter of Credit is permitted pursuant to Section 4 and subsection 7.2. Additionally, the Issuing Lender and the Company shall inform the Administrative Agent of any modifications made to outstanding Letters of Credit, of any payments made with respect to such Letters of Credit, and of any other information regarding such Letters of Credit as may be reasonably requested by the Administrative Agent, in each case pursuant to procedures established by the Administrative Agent. 4.3. Participating Interests. Effective as of the date hereof (in the case of outstanding Letters of Credit on such date) or the date of the issuance of each Letter of Credit (in the case of a Letter of Credit issued after the date hereof, the Issuing Lender agrees to allot, and does allot, to each other Lender, and each such Lender severally and irrevocably agrees to take and does take, a Participating Interest in such Letter of Credit and the related Letter of Credit Application in a percentage equal to such Lender's Revolving Credit Commitment Percentage. 34 On the date that any Participating Lender becomes a party to this Agreement in accordance with subsection 13.6, Participating Interests in any outstanding Letter of Credit held by the Lender from which such Participating Lender acquired its interest hereunder shall be proportionately reallotted between such Participating Lender and such transferor Lender. Each Participating Lender hereby agrees that its obligation to participate in each Letter of Credit issued in accordance with the terms hereof and to pay or to reimburse the Issuing Lender in respect of such Letter of Credit for its participating share of the drafts drawn thereunder shall be irrevocable and unconditional; provided that no Participating Lender shall be liable for the payment of any amount under subsection 4.4(b) resulting solely from the Issuing Lender's gross negligence or willful misconduct. 4.4. Payments. (a) The Company agrees (i) to reimburse the Administrative Agent for the account of the Issuing Lender, forthwith upon its demand and otherwise in accordance with the terms of the Letter of Credit Application, if any, relating thereto, for any payment made by the Issuing Lender under any Letter of Credit and (ii) to pay to the Administrative Agent for the account of such Issuing Lender, interest on any unreimbursed portion of any such payment from the date of such payment until reimbursement in full thereof at a fluctuating rate per annum equal to the rate then borne by Revolving Credit Loans that are ABR Loans pursuant to subsection 5.1(b) plus 2%. (b) In the event that the Issuing Lender makes a payment under any Letter of Credit and is not reimbursed in full therefor, forthwith upon demand of the Issuing Lender, and otherwise in accordance with the terms hereof or of the Letter of Credit Application, if any, relating to such Letter of Credit, the Issuing Lender will promptly through the Administrative Agent notify each Participating Lender that acquired its Participating Interest in such Letter of Credit from the Issuing Lender or pursuant to an assignment as provided in subsection 13.6(c). No later than the close of business on the date such notice is given, each such Participating Lender will transfer to the Administrative Agent, for the account of the Issuing Lender, in immediately available funds, an amount equal to such Participating Lender's pro rata share of the unreimbursed portion of such payment. (c) Whenever, at any time, after the Issuing Lender has made payment under a Letter of Credit and has received from any Participating Lender such Participating Lender's pro rata share of the unreimbursed portion of such payment, the Issuing Lender receives any reimbursement on account of such unreimbursed portion or any payment of interest on account thereof, the Issuing Lender will distribute to the Administrative Agent, for the account of such Participating Lender, its pro rata share thereof; provided, however, that in the event that the receipt by the Issuing Lender of such reimbursement or such payment of interest (as the case may be) is required to be returned, such Participating Lender will promptly return to the Administrative Agent, for the account of the Issuing Lender, any portion thereof previously distributed by the Issuing Lender to it. 4.5. Further Assurances. The Company hereby agrees, from time to time, to do and perform any and all acts and to execute any and all further instruments reasonably requested by the Issuing Lender more fully to effect the purposes of this Agreement and the issuance of the Letters of Credit issued hereunder. 35 4.6. Obligations Absolute. The payment obligations of the Company and each Participating Lender under subsection 4.4 shall be unconditional and irrevocable and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including, without limitation, the following circumstances: (a) the existence of any claim, set-off, defense or other right which the Company may have at any time against any beneficiary, or any transferee, of any Letter of Credit (or any Persons for whom any such beneficiary or any such transferee may be acting), the Issuing Lender or any Participating Lender, or any other Person, whether in connection with this Agreement, the transactions contemplated herein, or any unrelated transaction; (b) any statement or any other document presented under any Letter of Credit opened for its account proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; (c) payment by the Issuing Lender under any Letter of Credit against presentation of a draft or certificate which does not comply with the terms of such Letter of Credit, except payment resulting solely from the gross negligence or willful misconduct of the Issuing Lender; or (d) any other circumstances or happening whatsoever, whether or not similar to any of the foregoing, except circumstances or happenings resulting from the gross negligence or willful misconduct of the Issuing Lender. 4.7. Letter of Credit Application. To the extent not inconsistent with the terms of this Agreement (in which case the provisions of this Agreement shall prevail), provisions of any Letter of Credit Application related to any Letter of Credit are supplemental to, and not in derogation of, any rights and remedies of the Issuing Lender and the Participating Lenders under this Section 4 and applicable law. The Company acknowledges and agrees that all rights of the Issuing Lender under any Letter of Credit Application shall inure to the benefit of each Participating Lender to the extent of its Revolving Credit Commitment Percentage as fully as if such Participating Lender was a party to such Letter of Credit Application. 4.8. Purpose of Letters of Credit. Each Standby Letter of Credit shall be used by the Company solely (a) to provide credit support for borrowings by the Company or its Subsidiaries, or (b) for other working capital purposes of the Company and Subsidiaries in the ordinary course of business. Each Commercial Letter of Credit will be used by the Company and Subsidiaries solely to provide the primary means of payment in connection with the purchase of goods or services by the Company and its Subsidiaries in the ordinary course of business. SECTION 5. GENERAL PROVISIONS 5.1. Interest Rates and Payment Dates. (a) Each Eurodollar Loan shall bear interest for each day during each Interest Period with respect thereto at a rate per annum equal to the Eurodollar Rate determined for such Interest Period plus the Applicable Margin. 36 (b) Each ABR Loan shall bear interest for each day on which it is outstanding at a rate per annum equal to the Alternate Base Rate for such day plus the Applicable Margin. (c) Each Pounds Sterling Loan shall bear interest for each day during each Interest Period with respect thereto at a rate per annum equal to the Eurocurrency Rate determined for such Interest Period plus the Applicable Margin. (d) If all or a portion of (i) the principal amount of any Loan, (ii) any interest payable thereon or (iii) any fee or other amount payable hereunder shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), such amount shall bear interest for each day after the due date until such amount is paid in full at a rate per annum equal to (x) in the case of principal, the rate that would otherwise be applicable thereto pursuant to the foregoing provisions of this subsection plus 2% or (y) in the case of any such overdue interest, fee or other amount, the rate described in paragraph (b) of this subsection plus 2%. If any Event of Default other than as described in the preceding sentence shall occur and be continuing, and the Majority Lenders shall give notice to the Company that this sentence shall apply, then, until such Event of Default shall be cured or waived or such notice shall be withdrawn, the outstanding principal amount of all Loans shall bear interest at 2% above the rate that would otherwise be applicable thereto pursuant to the foregoing provisions of this subsection (other than the first sentence of this paragraph (d)). (e) Interest shall be payable in arrears on each Interest Payment Date, provided that interest accruing pursuant to paragraph (d) of this subsection shall be payable from time to time on demand. 5.2. Conversion and Continuation Options. (a) The Company may elect from time to time to convert outstanding Eurodollar Loans (in whole or in part) to ABR Loans by giving the Administrative Agent at least two Business Days' prior irrevocable notice of such election, provided that any such conversion of Eurodollar Loans may only be made on the last day of an Interest Period with respect thereto. The Company may elect from time to time to convert outstanding ABR Loans (in whole or in part) to Eurodollar Loans by giving the Administrative Agent at least three Business Days' prior irrevocable notice of such election. Any such notice of conversion to Eurodollar Loans shall specify the length of the initial Interest Period or Interest Periods therefor. Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof. All or any part of outstanding Eurodollar Loans and ABR Loans may be converted as provided herein, provided that (i) no ABR Loan may be converted into a Eurodollar Loan when any Default or Event of Default has occurred and is continuing and the Administrative Agent or Lenders holding the majority of the outstanding principal amount of Loans of such Class have determined that such conversion is not appropriate, (ii) any such conversion may only be made if, after giving effect thereto, subsection 5.3 shall not have been violated, and (iii) no ABR Loan may be converted into a Eurodollar Loan after the date that is one month prior to the Revolving Credit Termination Date or, as the case may be, the date on which the Term Loans and New Revolving Credit Loans mature. (b) Any Eurodollar Loans may be continued as such upon the expiration of the then current Interest Period with respect thereto by the Company giving notice to the Administrative Agent of the length of the next Interest Period to be applicable to such Loans 37 determined in accordance with the applicable provisions of the term "Interest Period" set forth in subsection 1.1, provided that no Eurodollar Loan may be continued as such (i) when any Default or Event of Default has occurred and is continuing and the Administrative Agent or Lenders holding the majority of the outstanding principal amount of Loans of such Class have determined that such continuation is not appropriate, (ii) if, after giving effect thereto, subsection 5.3 would be contravened or (iii) after the date that is one month prior to the Revolving Credit Termination Date or, as the case may be, the date on which the Term Loans and New Revolving Credit Loans mature, and provided, further, that if the Company shall fail to give such notice or if such continuation is not permitted pursuant to the preceding proviso such Eurodollar Loans shall be automatically converted to ABR Loans on the last day of such then expiring Interest Period. Upon receipt of any notice pursuant to this subsection 5.2(b), the Administrative Agent shall promptly notify each Lender thereof. (c) Any Pounds Sterling Loans may be continued as set forth in subsection 3.2(d). 5.3. Minimum Amounts of Tranches. All borrowings, conversions and continuations of Loans hereunder and all selections of Interest Periods hereunder shall be in such amounts and be made pursuant to such elections so that, after giving effect thereto, (i) the aggregate principal amount of the Eurodollar Loans comprising each Tranche shall be equal to $5,000,000 or a whole multiple of $5,000,000 in excess thereof, (ii) the aggregate principal amount of the Pounds Sterling Loans comprising each Tranche shall be in an amount of which the U.S. Dollar Equivalent is at least $1,000,000 and (iii) there shall not be more than (ten) 10 Tranches at any one time outstanding. 5.4. Optional and Mandatory Prepayments. (a) The Company may at any time and from time to time prepay New Revolving Credit Loans, Revolving Credit Loans or Term Loans, in whole or in part, upon at least three Business Days' irrevocable notice to the Administrative Agent (in the case of Eurodollar Loans) and at least one Business Day's irrevocable notice to the Administrative Agent (in the case of ABR Loans), specifying the date and amount of prepayment and whether the prepayment is (i) of New Revolving Credit Loans, Revolving Credit Loans or Term Loans and (ii) of Eurodollar Loans, ABR Loans or a combination thereof, and, in each case if a combination thereof, the amount allocable to each. Upon the receipt of any such notice the Administrative Agent shall promptly notify each Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein. Partial prepayments of the Loans shall be in an aggregate principal amount of $1,000,000 or a whole multiple of $1,000,000 in excess thereof. (b) The Company or the Foreign Subsidiary Borrower, as the case may be, may at any time and from time to time prepay, without premium or penalty, the Pounds Sterling Loans, in whole or in part, upon at least three Business Days' irrevocable notice to the Administrative Agent specifying the date and amount of prepayment. Upon the receipt of any such notice, the Administrative Agent shall promptly notify each Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein. Partial prepayments of Pounds Sterling Loans shall be in an aggregate principal amount of which the U.S. Dollar Equivalent is at least $1,000,000. 38 (c) If, at any time during the Revolving Credit Commitment Period, for any reason the Aggregate Revolving Credit Outstanding of all Lenders exceeds the Aggregate Revolving Credit Commitments then in effect, or the Aggregate Revolving Credit Outstanding of any Lender exceeds the Revolving Credit Commitment of such Lender then in effect, (i) the Company shall, without notice or demand, immediately prepay the Revolving Credit Loans and/or (ii) the Company or the Foreign Subsidiary Borrower shall, without notice or demand, immediately prepay the Pounds Sterling Loans, in an aggregate principal amount at least sufficient to eliminate any such excess. Notwithstanding the foregoing, mandatory prepayments of Revolving Credit Loans or Pounds Sterling Loans that would otherwise be required pursuant to this subsection 5.4(c) solely as a result of currency fluctuations from time to time shall only be required to be made pursuant to this subsection 5.4 on the last Business Day of each month on the basis of the U.S. Dollar Equivalent in effect on such Business Day. (d) If any Capital Stock or Indebtedness shall be issued or incurred by the Company or any of its Subsidiaries (excluding any Indebtedness incurred in accordance with subsection 9.2 as such subsection is in effect on the date of this Agreement), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence ratably toward the prepayment of the Term Loans and, after the New Revolving Credit Conversion Date, to the prepayment of the New Revolving Credit Loans. This subsection 5.4(d) shall not affect any rights and remedies that the Administrative Agent or the Lenders may otherwise have under Section 11. (e) If on any date the Company or any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date, as set forth in subsection 5.8(a)(i), ratably toward the prepayment of the Term Loans and, after the New Revolving Credit Conversion Date, to the prepayment of the New Revolving Credit Loans; provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $1,000,000 in any fiscal year of the Company and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied, as set forth in subsection 5.8(a)(i), ratably toward the prepayment of the Term Loans and, after the New Revolving Credit Conversion Date, to the prepayment of the New Revolving Credit Loans. (f) Amounts prepaid on account of Term Loans pursuant to subsections 5.4(a), 5.4(d) or 5.4(e) may not be reborrowed. Amounts prepaid on account of New Revolving Credit Loans pursuant to subsection 5.4(a) may be reborrowed during the New Revolving Credit Commitment Period. After the New Revolving Credit Conversion Date, amounts prepaid on account of New Revolving Credit Loans pursuant to subsections 5.4(a), 5.4(d) or 5.4(e) may not be reborrowed. (g) Each prepayment of Loans pursuant to this subsection 5.4 shall be accompanied by accrued and unpaid interest on the amount prepaid to the date of prepayment and any amounts payable under subsection 5.11 in connection with such prepayment. 39 (h) The Revolving Credit Loans shall be prepaid and the Letters of Credit shall be cash collateralized or replaced to the extent such extensions of credit exceed the amount of the Revolving Credit Commitments. 5.5. Commitment Fees; Other Fees. (a) The Company agrees to pay to the Administrative Agent (i) for the account of each Lender (other than any Lender which has defaulted in its obligation to fund a Loan under this Agreement), a commitment fee for the period from and including the Closing Date to but excluding the Revolving Credit Termination Date (or such earlier date on which the Revolving Credit Commitments shall terminate as provided herein) computed at the rate per annum set forth in the definition of "Applicable Margin" on the average daily Available Revolving Credit Commitment of such Lender during the period for which payment is made, payable quarterly in arrears on the last day of each March, June, September and December and on the Revolving Credit Termination Date or such earlier date on which the Revolving Credit Commitments shall terminate as provided herein, commencing on the first such date to occur after the date hereof; (ii) for the account of each Lender (other than any Lender which has defaulted in its obligation to fund a Loan under this Agreement), a commitment fee for the period from and including the Closing Date to but excluding the Term Loan Termination Date (or such earlier date on which the Term Loan Commitments shall terminate as provided herein) computed at the rate per annum set forth in the definition of "Applicable Margin" on the average daily Available Term Loan Commitment of such Lender during the period for which payment is made, payable quarterly in arrears on the last day of each March, June, September and December and on the Term Loan Termination Date or such earlier date on which the Term Loan Commitments shall terminate as provided herein, commencing on the first such date to occur after the date hereof. For purposes of the commitment fee calculations only, Swing Line Loans shall be deemed to be not outstanding; and (iii) for the account of each New Revolving Credit Lender (other than any New Revolving Credit Lender which has defaulted in its obligation to fund a New Revolving Credit Loan under this Agreement), a commitment fee for the period from and including the Closing Date to but excluding the New Revolving Credit Conversion Date (or such earlier date on which the New Revolving Credit Commitments shall terminate as provided herein) computed at the rate per annum set forth in the definition of "Applicable Margin" on the average daily Available New Revolving Credit Commitment of such New Revolving Credit Lender during the period for which payment is made, payable quarterly in arrears on the last day of each March, June, September and December and on the New Revolving Credit Conversion Date or such earlier date on which the New Revolving Credit Commitments shall terminate as provided herein, commencing on the first such date to occur after the date hereof. (b) The Company shall pay (without duplication of any other fee payable under this subsection 5.5) to the Administrative Agent all fees separately agreed to by the Company and the Administrative Agent. (c) The Company shall pay to the Administrative Agent (i) on the Closing Date (A) for the account of the Lenders, an amendment fee (the "Amendment Fee") in an amount equal to 0.10% of the sum of each Lender's Term Loans, Revolving Credit Commitments and Existing New Revolving Credit Commitments and (B) for the account of the New Revolving Credit Lenders, an up-front fee (the "Up-Front Fee") in an amount equal to 0.25% of each New Revolving Credit Lender's New Revolving Credit Commitment Increase, and (ii) on the date of 40 each borrowing made under the New Revolving Credit Commitment Increase, for the account of the New Revolving Credit Lenders, a drawdown fee (the "Drawdown Fee") in an amount equal to 0.25% of each incremental borrowing made under the New Revolving Credit Commitment Increase. (d) In lieu of any letter of credit commissions and fees provided for in any Letter of Credit Application relating to a Standby Letter of Credit (other than any standard issuance, amendment and negotiation fees), the Company will pay the Administrative Agent, (i) for the account of the Issuing Lender, a non-refundable fronting fee equal to ? of 1% per annum and (ii) for the account of the Issuing Lender (with respect to its Participating Interest) and the Participating Lenders, a non-refundable Standby Letter of Credit fee equal to the Applicable Margin in respect of Eurodollar Loans, in each case on the amount available to be drawn under such Standby Letter of Credit. Such fees shall be payable quarterly in arrears on the last Business Day of each calendar quarter, and shall be calculated on the average daily amount available to be drawn under the Standby Letters of Credit. (e) In lieu of any letter of credit commissions and fees provided for in any Letter of Credit Application relating to a Commercial Letter of Credit (other than any standard issuance, amendment and negotiation fees), the Company will pay the Administrative Agent, (i) for the account of the Issuing Lender, a non-refundable fronting fee equal to 1/16 of 1% of the amount of such Commercial Letter of Credit, (ii) for the account of the Issuing Lender (with respect to its Participating Interest) and the Participating Lenders, a non-refundable Commercial Letter of Credit fee equal to 1/4 of 1% of the amount of such Letter of Credit. Such fees shall be payable to the Administrative Agent on the date of issuance and shall be distributed by the Administrative Agent to the Issuing Lender or the Participating Lenders, as applicable, promptly thereafter and (iii) for the account of the Administrative Agent, the normal and customary Letter of Credit application and processing fees. (f) The Company agrees to pay the Issuing Lender for its own account the customary administration, amendment, transfer and negotiation fees charged by the Issuing Lender in connection with its issuance and administration of Letters of Credit. 5.6. Computation of Interest and Fees. (a) Interest and fees shall be calculated on the basis of a 360-day year for the actual days elapsed; provided that interest calculated at Alternate Base Rate (based on the Prime Rate included therein) shall be calculated on the basis of a 365- (or 366-, as the case may be) day year for the actual days elapsed. The Administrative Agent shall as soon as practicable notify the Company and the relevant Lenders of each determination of a Eurodollar Rate or a Eurocurrency Rate. Any change in the interest rate on a Loan resulting from a change in the Alternate Base Rate shall become effective as of the opening of business on the day on which such change becomes effective. The Administrative Agent shall as soon as practicable notify the Company and the relevant Lenders of the effective date and the amount of each such change in the Alternate Base Rate. (b) Each determination of an interest rate by the Administrative Agent pursuant to any provision of this Agreement shall be conclusive and binding on the Borrowers and the Lenders in the absence of manifest error. The Administrative Agent shall, at the request of a 41 Borrower, deliver to such Borrower a statement showing in reasonable detail the calculations used by the Administrative Agent in determining any interest rate pursuant to subsection 5.1(a). 5.7. Inability to Determine Interest Rate. If prior to the first day of any Interest Period: (a) the Administrative Agent shall have determined (which determination shall be conclusive and binding upon the Borrowers) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate or the Eurocurrency Rate, as the case may be, for such Interest Period, or (b) the Administrative Agent has received notice from the Majority Lenders that the Eurodollar Rate or Eurocurrency Rate, as the case may be, determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Eurodollar Loans or Pounds Sterling Loans, as the case may be, during such Interest Period, the Administrative Agent shall give telecopy or telephonic notice thereof to the Company and the Lenders as soon as practicable thereafter. If such notice is given (i) any Eurodollar Loans or Pounds Sterling Loans, as the case may be, requested to be made on the first day of such Interest Period shall be made as ABR Loans in U.S. Dollars, (ii) any Revolving Credit Loans, New Revolving Credit Loans or Term Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Loans shall be converted to or continued as ABR Loans, (iii) any outstanding Eurodollar Loans shall be converted on the last day of such Interest Period to ABR Loans and (iv) any Pounds Sterling Loans to which such Interest Period relates shall be repaid on the last day of such Interest Period. Until such notice has been withdrawn by the Administrative Agent, no further Eurodollar Loans or Pounds Sterling Loans shall be made or continued as such, nor shall the Company have the right to convert ABR Loans to Eurodollar Loans. 5.8. Pro Rata Treatment and Payments. (a) (i) Each borrowing of Revolving Credit Loans or Term Loans, as the case may be, by the Company from the Lenders hereunder shall be made pro rata according to the Revolving Credit Commitment Percentages or the Term Loan Commitment Percentages, as the case may be, of the Lenders in effect on the date of such borrowing. Subject to subsection 2.10(b), each borrowing of New Revolving Credit Loans by the Company from the New Revolving Credit Lenders made (A) under the Existing New Revolving Credit Commitments shall be made pro rata according to the Existing New Revolving Credit Commitment Percentages of the New Revolving Credit Lenders in effect on the date of such borrowing and (B) under the New Revolving Credit Commitment Increases shall be made pro rata according to the New Revolving Credit Commitment Increase Percentages of the New Revolving Credit Lenders in effect on the date of such borrowing. Each payment by the Company on account of any commitment fee or letter of credit fee hereunder shall be allocated by the Administrative Agent among the Lenders in accordance with the respective amounts which such Lenders are entitled to receive pursuant to subsection 5.5. Subject to subsection 2.13, any reduction of the Existing New Revolving Credit Commitments, New Revolving Credit Commitment Increases, Revolving Credit Commitments or the Term Loan Commitments, as the case may be, of the Lenders shall be allocated by the Administrative Agent among the Lenders 42 pro rata according to the Existing New Revolving Credit Commitment Percentages, New Revolving Credit Commitment Increase Percentages, Revolving Credit Commitment Percentages or the Term Loan Commitment Percentages, as the case may be, of such Lenders. Each payment by the Company on account of principal of or interest in respect of Revolving Credit Loans, Term Loans or, after the New Revolving Credit Conversion Date, New Revolving Credit Loans shall be allocated by the Administrative Agent pro rata according to the respective amounts thereof then due and owing to each Lender. During the New Revolving Credit Commitment Period, each payment by the Company on account of principal of or interest in respect of New Revolving Credit Loans made under the Existing New Revolving Credit Commitments or under the New Revolving Credit Commitment Increases shall be allocated by the Administrative Agent to the New Revolving Credit Lenders under the Existing New Revolving Credit Commitments or the New Revolving Credit Commitment Increases, as the case may be, pro rata according to the respective amounts of such principal or interest then due and owing such New Revolving Credit Lenders; provided that during the New Revolving Credit Commitment Period, no payment of principal shall be made on the New Revolving Credit Loans made under the Existing New Revolving Credit Commitments at any time when any New Revolving Credit Loans made under the New Revolving Credit Commitment Increases are outstanding. Prepayments of Term Loans or New Revolving Credit Loans pursuant to subsections 5.4(a), 5.4(d) and 5.4(e) shall be applied (x) pro rata according to the respective principal amounts thereof then due and owing to each Lender and (y) to the respective installments of principal thereof in inverse order of maturity. All payments (including prepayments) to be made by the Company in respect of New Revolving Credit Loans, Revolving Credit Loans or Term Loans hereunder, whether on account of principal, interest, fees or otherwise, shall be made without set-off or counterclaim and shall be made prior to 12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders entitled thereto, at the Administrative Agent's office specified in subsection 13.2, in U.S. Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to the Lenders entitled to receive the same promptly upon receipt in like funds as received. (ii) Each borrowing of Pounds Sterling Loans by the Company or the Foreign Subsidiary Borrower shall be made pro rata according to the Revolving Credit Commitment Percentages of the Lenders. Each payment (including each prepayment) by the Company or the Foreign Subsidiary Borrower on account of principal of and interest on Pounds Sterling Loans shall be allocated by the Administrative Agent pro rata according to the respective amounts of the Pounds Sterling Loans then due and owing by the Company or the Foreign Subsidiary Borrower to each Lender. All payments (including prepayments) to be made by the Company or the Foreign Subsidiary Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without set-off or counterclaim and shall be made at or before 11:00 A.M. London Time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Administrative Agent's office located at Trinity Tower, 9 Thomas Moore Street, London, England E1 9YT, in Pounds Sterling and in immediately available funds. The Administrative Agent shall distribute such payments to the Lenders entitled to receive the same promptly upon receipt in like funds as received. 43 (iii) If any payment hereunder (other than payments on the Eurodollar Loans and the Pounds Sterling Loans) becomes due and payable on a day other than a Business Day, the maturity of such payment shall be extended to the next succeeding Business Day, and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension. If any payment on a Eurodollar Loan or a Pounds Sterling Loan becomes due and payable on a day other than a Business Day, the maturity of such payment shall be extended to the next succeeding Business Day (and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension) unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. (b) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing Date that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the applicable Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate per annum equal to (i) the daily average Federal Funds Effective Rate (in the case of a borrowing of Revolving Credit Loans, New Revolving Credit Loans or Term Loans) and (ii) the Administrative Agent's reasonable estimate of its average daily cost of funds (in the case of a borrowing of Pounds Sterling Loans), in each case for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this subsection shall be conclusive in the absence of manifest error. If such Lender's share of such borrowing is not made available to the Administrative Agent by such Lender within three Business Days of such Borrowing Date, the applicable Borrower shall repay such Lender's share of such borrowing (together with interest thereon from the date such amount was made available to such Borrower (i) at the rate per annum applicable to ABR Loans hereunder (in the case of amounts made available in U.S. Dollars) and (ii) the Administrative Agent's reasonable estimate of its average daily cost of funds plus the Applicable Margin applicable to Pounds Sterling Loans (in the case of a borrowing of Pounds Sterling Loans)) to the Administrative Agent not later than three Business Days after receipt of written notice from the Administrative Agent specifying such Lender's share of such borrowing that was not made available to such Administrative Agent, and the Borrower shall have the right to pursue any remedies against such Lender for its failure to make its portion of such borrowing available. (c) Unless the Administrative Agent shall have been notified in writing by any Borrower prior to a date on which a payment is due from such Borrower hereunder that such Borrower will not make such payment available to the Administrative Agent, the Administrative Agent may assume that such Borrower is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the applicable Lenders a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the due date therefor, each applicable Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate per 44 annum equal to (i) the daily average Federal Funds Effective Rate (in the case of a borrowing of Revolving Credit Loans, New Revolving Credit Loans or Term Loans) and (ii) the Administrative Agent's reasonable estimate of its average daily cost of funds (in the case of a borrowing of Pounds Sterling Loans), in each case for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this subsection shall be conclusive in the absence of manifest error. 5.9. Illegality. Notwithstanding any other provision herein, if the adoption of or any change in any Requirement of Law or in the interpretation or application thereof shall make it unlawful for any Lender to make or maintain Eurodollar Loans or Pounds Sterling Loans as contemplated by this Agreement, (a) the commitment of such Lender hereunder to make Eurodollar Loans or Pounds Sterling Loans, continue Eurodollar Loans or Pounds Sterling Loans as such and convert ABR Loans to Eurodollar Loans shall forthwith be cancelled until such time as it shall no longer be unlawful for such Lender to make or maintain the affected Loans, (b) such Lender's Loans then outstanding as Eurodollar Loans, if any, shall be converted automatically to ABR Loans on the respective last days of the then current Interest Periods with respect to such Eurodollar Loans or within such earlier period as may be required by law and (c) such Lender's Pounds Sterling Loans shall be prepaid on the last day of the then current Interest Period with respect thereto or within such earlier period or may be required by law. If any such conversion of a Eurodollar Loan or repayment of a Pounds Sterling Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, the Company shall pay to such Lender such amounts, if any, as may be required pursuant to subsection 5.11. 5.10. Requirements of Law. (a) In the event that the adoption of or any change in any Requirement of Law (or in the interpretation or application thereof) or compliance by any Lender with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority: (i) does or shall subject any Lender to any tax of any kind whatsoever with respect to this Agreement, any Note, any Loans made by it or any Letter of Credit, or change the basis of taxation of payments to such Lender of principal, fees, interest or any other amount payable hereunder (except for changes in the rate of tax on the overall net income of such Lender); (ii) does or shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, or deposits or other liabilities in or for the account of, advances or loans by, or other credit extended by, or any other acquisition of funds by, any office of such Lender which are not otherwise included in the determination of the Eurodollar Rate or Eurocurrency Rate; or (iii) does or shall impose on such Lender any other condition; and the result of any of the foregoing is to increase the cost to such Lender, by any amount which such Lender deems to be material, of making, renewing, maintaining or participating in advances or extensions of credit or to reduce any amount receivable hereunder, in each case in respect of its Loans or Letters of Credit which it issues or in which it holds Participating Interests, then, in 45 any such case, the applicable Borrower shall promptly pay such Lender, upon receipt of its demand setting forth in reasonable detail, any additional amounts necessary to compensate such Lender for such additional cost or reduced amount receivable, together with interest on each such amount from the date two Business Days after the date demanded until payment in full thereof at the ABR. A certificate as to any additional amounts payable pursuant to the foregoing sentence submitted by such Lender, through the Administrative Agent, to the applicable Borrower shall be conclusive in the absence of manifest error. This covenant shall survive the termination of this Agreement and payment of all amounts outstanding hereunder for a period of one year. (b) In the event that any Lender shall have determined that the adoption of any law, rule, regulation or guideline regarding capital adequacy (or any change therein or in the interpretation or application thereof) or compliance by any Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having the force of law) from any central bank or Governmental Authority, including, without limitation, the issuance of any final rule, regulation or guideline, does or shall have the effect of reducing the rate of return on such Lender's or such corporation's capital as a consequence of its obligations hereunder to a level below that which such Lender or such corporation could have achieved but for such adoption, change or compliance (taking into consideration such Lender's or such corporation's policies with respect to capital adequacy) by an amount deemed by such Lender to be material, then from time to time, after submission by such Lender to the Company (with a copy to the Administrative Agent) of a written request therefor, the Company shall promptly pay to such Lender such additional amount or amounts as will compensate such Lender or such corporation for such reduction. A certificate as to any additional amounts payable pursuant to this subsection 5.10(b), submitted by a Lender to the Company, shall be conclusive in the absence of manifest error. The provisions of this subsection 5.10(b) shall survive the termination of this Agreement and the payment of all amounts outstanding hereunder. (c) Any request by any Lender for compensation under this subsection 5.10 shall be accompanied by a certificate of a duly authorized officer of such Lender setting for such information and calculations supporting such request as such Lender shall customarily provide in similar situations. 5.11. Indemnity. Each Borrower agrees to indemnify each Lender and to hold each Lender harmless from any loss or expense which such Lender may sustain or incur as a consequence of (a) default by such Borrower in payment when due of the principal amount of or interest on any Loans of such Lender, (b) default by such Borrower in making a borrowing, continuation or conversion after such Borrower has given a notice of borrowing, a notice of continuation or a notice of conversion in accordance with this Agreement, (c) default by such Borrower in making any prepayment after such Borrower has given a notice in accordance with this Agreement or (d) the making of a prepayment, continuation or conversion of a Eurodollar Loan or Pounds Sterling Loan on a day which is not the last day of an Interest Period with respect thereto, including, without limitation, in each case, any such loss or expense arising from the reemployment of funds obtained by it to maintain its Eurodollar Loans or Pounds Sterling Loans hereunder or from fees payable to terminate the deposits from which such funds were obtained, but excluding, in each case, lost profit. A certificate as to any amounts payable pursuant to this subsection 5.11, submitted by a Lender to the Company, shall be conclusive in 46 the absence of manifest error. This covenant shall survive termination of this Agreement and payment of all amounts outstanding hereunder. 5.12. Taxes. (a) All payments made by any Borrower under this Agreement shall be made free and clear of, and without reduction or withholding for or on account of, any present or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority excluding, in the case of the Administrative Agent and each Lender, income or franchise taxes imposed on the Administrative Agent or such Lender by the jurisdiction under the laws of which the Administrative Agent or such Lender is organized or any political subdivision or taxing authority thereof or therein or by any jurisdiction in which such Lender's lending office is located or any political subdivision or taxing authority thereof or therein or as a result of a connection between such Lender and any jurisdiction other than a connection resulting solely from entering into this Agreement (all such non-excluded taxes, levies, imposts, deductions, charges or withholdings being hereinafter called "Non-Excluded Taxes"). Subject to the provisions of subsection 5.12(c), if any Non-Excluded Taxes are required to be withheld from any amounts payable by such Borrower to the Administrative Agent or any Lender hereunder or under the Notes, the amounts so payable to the Administrative Agent or such Lender shall be increased to the extent necessary to yield to the Administrative Agent or such Lender (after payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement and the Notes. Whenever any Non-Excluded Taxes are paid by any Borrower with respect to payments made in connection with this Agreement, as promptly as possible thereafter, such Borrower shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an original official receipt received by such Borrower showing payment thereof. Subject to the provisions of subsection 5.12(c), if any Borrower fails to pay any Non- Excluded Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence, such Borrower shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest or penalties that may become payable by the Administrative Agent or any Lenders as a result of any such failure. (b) Each Lender that is not incorporated or organized under the laws of the United States of America or a state thereof agrees that, prior to the first date any payment is due to be made to it hereunder or under any Note, it will deliver to the Company and the Administrative Agent (A) if such Lender is a "bank" within the meaning of Section 881(c)(3)(A) of the Code, (i) two valid, duly completed copies of United States Internal Revenue Service Form 1001 or 4224 or successor applicable form, as the case may be, certifying in each case that such Lender is entitled to receive payments by the Borrower under this Agreement and the Notes payable to it, without deduction or withholding of any United States federal income taxes, and (ii) a valid, duly completed Internal Revenue Service Form W-8 or W-9 or successor applicable form, as the case may be, to establish an exemption from United States backup withholding tax or (B) if such Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue Service Form 1001 or 4224 or successor applicable form, (i) a certificate substantially in the form of Exhibit H (a "Tax Status Certificate") and (ii) two completed and signed copies of Internal Revenue Service Form W-8 or successor applicable 47 form, to establish in each case that such Lender is entitled to receive payments by the Borrowers under this Agreement and the other Loan Documents without deduction or withholding of any United States federal income taxes. Each Lender which delivers to the Company and the Administrative Agent a Form 1001 or 4224 and Form W-8 or W-9, or successor applicable forms, pursuant to the next preceding sentence further undertakes to deliver to the Company and the Administrative Agent two further copies of the said Form 1001 or 4224 and Form W-8 or W-9, or successor applicable forms, or other manner or certification, as the case may be, on or before the date that any such form expires or becomes obsolete or otherwise is required to be resubmitted as a condition to obtaining an exemption from withholding tax, or after the occurrence of any event requiring a change in the most recent form previously delivered by it to the Company, and such extensions or renewals thereof as may reasonably be requested by the Company, certifying in the case of a Form 1001 or 4224 or successor applicable form that such Lender is entitled to receive payments by the Company under this Agreement without deduction or withholding of any United States federal income taxes, unless any change in treaty, law or regulation or official interpretation thereof has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Lender from duly completing and delivering any such letter or form with respect to it and such Lender advises the Company that it is not capable of receiving payments without any deduction or withholding of United States federal income tax, and in the case of a Form W-8 or W-9 or successor applicable form, establishing an exemption from United States backup withholding tax. (c) The Company shall not be required to pay any additional amounts to the Administrative Agent or any Lender (or Transferee except to the extent such Transferee's transferor was entitled, at the time of transfer, to receive additional amounts from the Company) in respect of United States withholding tax pursuant to subsection 5.12(a) if the obligation to pay such additional amounts would not have arisen but for a failure by the Administrative Agent or such Lender (or Transferee) to comply, if applicable, with the requirements of subsection 5.12(b) (or in the case of a Transferee, the requirements of subsection 13.6(h)). (d) Each Lender that is not incorporated or organized under the laws of the jurisdiction under which the Foreign Subsidiary Borrower is incorporated or organized shall, upon request by the Foreign Subsidiary Borrower, within a reasonable period of time after such request, deliver to the Foreign Subsidiary Borrower or the applicable governmental or taxing authority, as the case may be, any form or certificate required in order that any payment by the Foreign Subsidiary Borrower under this Agreement to such Lender may be made free and clear of, and without deduction or withholding for or on account of any Non-Excluded Taxes (or to allow any such deduction or withholding to be at a reduced rate) imposed on such payment under the laws of the jurisdiction under which the Foreign Subsidiary Borrower is incorporated or organized, provided that such Lender is legally entitled to complete, execute and deliver such form or certificate and such completion, execution or submission would not materially prejudice the legal position of such Lender. (e) Except as otherwise provided in subsection 5.14(a), each Lender agrees to use reasonable efforts (including reasonable efforts to change its lending office) to avoid or to minimize any amounts which might otherwise be payable pursuant to this subsection 5.12; 48 provided, however, that such efforts shall not impose on such Lender any additional costs or legal or regulatory burdens deemed by such Lender in its sole judgment to be material. (f) The agreements in subsection 5.12(a) shall survive the termination of this Agreement and the payment of the Notes and all other amounts payable hereunder until the expiration of the applicable statute of limitations for such taxes. 5.13. Use of Proceeds. The proceeds of the Revolving Credit Loans and the Pounds Sterling Loans shall be used for the general working capital and general corporate purposes of the Company and its Subsidiaries. If, and so long as, the New Revolving Credit Loans are fully drawn, a portion of the proceeds of the Revolving Credit Loans not in excess of $14,000,000 may be used to finance the Global Health Acquisition and the NatureSmart Acquisition, provided that the New Revolving Credit Loans have been fully utilized. The proceeds of the New Revolving Credit Loans after the Closing Date shall be used to finance Acquisitions, including the Global Health Acquisition and the NatureSmart Acquisition, permitted under this Agreement. The Letters of Credit shall be used for the purposes specified in subsection 4.8. 5.14. Change in Lending Office; Replacement of Lender. (a) Each Lender agrees that if it makes any demand for payment under subsection 5.10 or 5.12(a), or if any adoption or change of the type described in subsection 5.9 shall occur with respect to it, it will use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions and so long as such efforts would not be disadvantageous to it, as determined in its sole discretion) to designate a different lending office if the making of such a designation would reduce or obviate the need for any Borrower to make payments under subsection 5.10 or 5.12(a), or would eliminate or reduce the effect of any adoption or change described in subsection 5.9. (b) If any Lender requests any payment under subsection 5.10 or 5.12(a), the Borrower shall have the right to replace such Lender with one or more replacement lenders, each of which shall be reasonably acceptable to the Administrative Agent; provided that (i) the Borrower shall repay (or the replacement lender shall purchase) all Loans and other amounts owing hereunder to such replaced Lender prior to the date of replacement, (ii) until such time as such replacement shall be consummated, the Borrower shall pay additional amounts (if any) required pursuant to subsection 5.10 or 5.12 for the period prior to replacement and (iii) any such replacement shall not be deemed to be a waiver of any rights which the Borrower, the Administrative Agent or any other Lender shall have against the replaced Lender. SECTION 6. REPRESENTATIONS AND WARRANTIES To induce the Lenders to enter into this Agreement and to make the Loans, and to induce the Issuing Lender to issue Letters of Credit, each Borrower hereby represents and warrants to the Administrative Agent and to each Lender that: 6.1. Financial Condition. (a) The consolidated balance sheet of the Company and its consolidated Subsidiaries as at September 30, 2000 and the related consolidated statements of income and of cash flows for the fiscal year ended on such date, reported on by PricewaterhouseCoopers LLP, copies of which have heretofore been furnished to each Lender, 49 are complete and correct in all material respects and present fairly the consolidated financial condition of the Company and its consolidated Subsidiaries as at such date, and the consolidated results of their operations and their consolidated cash flows for the fiscal year then ended. The unaudited consolidated balance sheet of the Company and its consolidated Subsidiaries as at December 31, 2000 and the related unaudited consolidated statements of income and of cash flows for the three-month period ended on such date, certified by the chief financial officer of the Company, copies of which have heretofore been furnished to each Lender, are complete and correct in all material respects and present fairly the consolidated financial condition of the Company and its consolidated Subsidiaries as at such date, and the consolidated results of their operations and their consolidated cash flows for the respective three-month period then ended (subject to normal year-end audit adjustments). All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as approved by such accountants or chief financial officer, as the case may be, and as disclosed therein). Except as set forth on Schedule 6.1, neither the Company nor any of its consolidated Subsidiaries had, at the date of the most recent balance sheet referred to above, any material Guarantee Obligation, contingent liability or liability for taxes, or any long-term lease or unusual forward or long-term commitment, including, without limitation, any interest rate or foreign currency swap or exchange transaction, which is not reflected in the foregoing statements or in the notes thereto. During the period from September 30, 2000 to and including the date hereof there has been no sale, transfer or other disposition by the Company or any of its consolidated Subsidiaries of any material part of its business or property and no purchase or other acquisition of any business or property (including any capital stock of any other Person) material in relation to the consolidated financial condition of the Company and its consolidated Subsidiaries at September 30, 2000, other than the sale of inventory in the ordinary course of business and as otherwise permitted hereunder. (b) The financial projections of the Company and its Subsidiaries described in subsection 7.1(k), copies of which have been furnished to each Lender, have been prepared in good faith based upon reasonable assumptions. 6.2. No Change. Since September 30, 2000 there has been no development or event which has had or could reasonably be expected to have a Material Adverse Effect. 6.3. Corporate Existence; Compliance with Law. Each Loan Party and its Subsidiaries (a) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (b) has the power and authority, and the legal right, to own and operate its property, to lease the property it operates as lessee and to conduct the business in which it is currently engaged, (c) is duly qualified as a foreign entity and in good standing under the laws of each jurisdiction where its ownership, lease or operation of property or the conduct of its business requires such qualification except to the extent that the failure to be so qualified in any such jurisdiction could not, in the aggregate, reasonably be expected to have a Material Adverse Effect, and (d) is in compliance with all Requirements of Law except to the extent that the failure to comply therewith could not, in the aggregate, reasonably be expected to have a Material Adverse Effect. 6.4. Corporate Power; Authorization; Enforceable Obligations. Each Loan Party has the power and authority, and the legal right, to make, deliver and perform the Loan 50 Documents to which it is a party and to borrow and obtain other extensions of credit hereunder and has taken all necessary action to authorize the borrowings and other extensions of credit hereunder on the terms and conditions of this Agreement and any Notes and to authorize the execution, delivery and performance of the Loan Documents to which it is a party. No consent or authorization of, filing with, notice to or other act by or in respect of, any Governmental Authority or any other Person is required in connection with the borrowings or other extensions of credit hereunder or with the execution, delivery, performance, validity or enforceability of the Loan Documents. This Agreement has been, and each other Loan Document to which it is a party will be, duly executed and delivered on behalf of each Loan Party that is a party hereto or thereto. This Agreement constitutes, and each other Loan Document to which it is a party when executed and delivered will constitute, a legal, valid and binding obligation of each Loan Party that is a party hereto or thereto enforceable against such Loan Party in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing. 6.5. No Legal Bar. The execution, delivery and performance of the Loan Documents, the borrowings and other extensions of credit hereunder and the use of the proceeds thereof will not violate any Requirement of Law or Contractual Obligation of any Loan Party or of any of its Subsidiaries and will not result in, or require, the creation or imposition of any Lien on any of its or their respective properties or revenues pursuant to any such Requirement of Law or Contractual Obligation. 6.6. No Material Litigation. Except as set forth on Schedule 6.6, no litigation, investigation or proceeding of or before any arbitrator or Governmental Authority is pending or, to the knowledge of the Loan Parties, threatened by or against any Loan Party or any of its Subsidiaries or against any of its or their respective properties or revenues (a) with respect to any of the Loan Documents or any of the transactions contemplated hereby or thereby, or (b) which could reasonably be expected to have a Material Adverse Effect. 6.7. No Default. No Loan Party or any of its Subsidiaries is in default under or with respect to any of its Contractual Obligations in any respect which could reasonably be expected to have a Material Adverse Effect. No Default or Event of Default has occurred and is continuing. 6.8. Ownership of Property; Liens. Each of the Loan Parties and its Subsidiaries has good record and marketable title in fee simple to, or a valid leasehold interest in, all its real property, and good title to, or a valid leasehold interest in, all its other property, except to the extent that the failure to have such title would not have a Material Adverse Effect, and none of such property is subject to any Lien except as permitted by subsection 9.3. With respect to real property or interests in real property, as of the Closing Date, the Company has (i) fee title to all of the real property listed on Schedule 6.8 under the heading "Fee Properties" (each, a "Fee Property"), and (ii) good and valid title to the leasehold estates in all of the real property leased by it and listed on Schedule 6.8 under the heading "Leased Properties" (each, a "Leased Property"), in each case free and clear of all mortgages, liens, security interests, easements, covenants, rights-of-way and other similar restrictions of any nature whatsoever, except (A) 51 Liens permitted pursuant to subsection 9.3, (B) as to Leased Property, the terms and provisions of the respective lease therefor and any matters affecting the fee title and any estate superior to the leasehold estate related thereto, and (C) title defects, or leases or subleases granted to others, which are not material to the Fee Properties or the Leased Properties, as the case may be, taken as a whole. The Fee Properties and the Leased Properties constitute, as of the Closing Date, all of the real property owned in fee or leased by the Company. 6.9. Intellectual Property. Each Loan Party, and each of its Subsidiaries, owns, or is licensed to use or otherwise has the right to use, all trademarks, tradenames, copyrights, patents, trade secrets and other proprietary information that it uses in the conduct of its business as currently conducted except for those the failure to own or license which could not reasonably be expected to have a Material Adverse Effect (the "Intellectual Property"). To the knowledge of each Loan Party, no claim has been asserted and is pending by any Person challenging or questioning the use of any such Intellectual Property or the validity or enforceability of any such Intellectual Property, nor does any Loan Party know of any valid basis for any such claim. The use of such Intellectual Property by each Loan Party and its Subsidiaries does not infringe on the rights of any Person, except for such claims and infringements that, in the aggregate, could not reasonably be expected to have a Material Adverse Effect. 6.10. No Burdensome Restrictions. No Contractual Obligation of any Loan Party or any of its Subsidiaries could reasonably be expected to have a Material Adverse Effect. 6.11. Taxes. Each Loan Party, and each of its Subsidiaries, has filed or caused to be filed all material tax returns which, to the knowledge of the Loan Parties, are required to be filed and has paid all taxes shown to be due and payable on said returns or on any assessments made against it or any of its property and all other taxes, fees or other charges imposed on it or any of its property by any Governmental Authority (other than any the amount or validity of which are currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on the books of such Loan Party or its Subsidiaries, as the case may be); and no tax Lien has been filed, and, to the knowledge of the Loan Parties, no claim is being asserted, with respect to any such tax, fee or other charge. 6.12. Federal Regulations. No part of the proceeds of any Loans, and no Letter of Credit, will be used for "purchasing" or "carrying" any "margin stock" within the respective meanings of each of the quoted terms under Regulation U of the Board as now and from time to time hereafter in effect. If requested by any Lender or the Administrative Agent, the Borrower will furnish to the Administrative Agent and each Lender a statement to the foregoing effect in conformity with the requirements of FR Form G-3 or FR Form U-1 referred to in said Regulation U, as the case may be. 6.13. ERISA. Neither a Reportable Event nor an "accumulated funding deficiency" (within the meaning of Section 412 of the Code or Section 302 of ERISA) has occurred during the five-year period prior to the date on which this representation is made or deemed made with respect to any Plan. No termination of a Single Employer Plan has occurred, and no Lien in favor of the PBGC or a Plan has arisen, during such five-year period. The present value of all accrued benefits under each Single Employer Plan (based on those assumptions used to fund such Plan) did not, as of the last annual valuation date prior to the date on which this 52 representation is made or deemed made, exceed the value of the assets of such Plan allocable to such accrued benefits by an amount which has resulted or could result in any material liability to any Loan Party or Commonly Controlled Entity. No Loan Party or any Commonly Controlled Entity has had a complete or partial withdrawal from any Multiemployer Plan which has resulted or which could result in any material liability of any Loan Party or Commonly Controlled Entity, and no Loan Party or any Commonly Controlled Entity would become subject to any material liability under ERISA if the Borrower or any such Commonly Controlled Entity were to withdraw completely from all Multiemployer Plans as of the valuation date most closely preceding the date on which this representation is made or deemed made. No such Multiemployer Plan is in Reorganization or Insolvent. The Company has adopted FASB 106. 6.14. Investment Company Act; Other Regulations. The Company is not an "investment company", or a company "controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended. The Company is not subject to regulation under any Federal or State statute or regulation (other than Regulation X of the Board) which limits its ability to incur Indebtedness. 6.15. Subsidiaries. Schedule II sets forth all Subsidiaries of the Company as of the Closing Date. 6.16. Environmental Matters. Except to the extent that all of the following, taken together, could not reasonably be expected to result in a Material Adverse Effect or to result in the payment of Material Environmental Amount: (a) The facilities and properties owned, leased or operated by each Loan Party or any of its Subsidiaries (the "Properties") do not contain, and have not previously contained, any Materials of Environmental Concern in amounts or concentrations which (i) constitute or constituted a violation of, or (ii) could reasonably be expected to give rise to liability under, any Environmental Law. (b) The Properties and all operations at the Properties are in compliance, and have in the last five years been in compliance, in all material respects with all applicable Environmental Laws, and there is no contamination at, under or about the Properties or violation of any Environmental Law with respect to the Properties or the business operated by any Loan Party or any of its Subsidiaries (the "Business") which could materially interfere with the continued operation of the Properties or materially impair the fair saleable value thereof. (c) Neither any Loan Party nor any of its Subsidiaries has received any notice of violation, alleged violation, non-compliance, liability or potential liability regarding environmental matters or compliance with Environmental Laws with regard to any of the Properties or the Business, nor does any Loan Party have knowledge or reason to believe that any such notice will be received or is being threatened. (d) Materials of Environmental Concern have not been transported or disposed of from the Properties in violation of, or in a manner or to a location which could reasonably be expected to give rise to liability under, any Environmental Law, nor have any 53 Materials of Environmental Concern been generated, treated, stored or disposed of at, on or under any of the Properties or elsewhere in violation of, or in a manner that could reasonably be expected to give rise to liability under, any applicable Environmental Law. (e) No judicial proceeding or governmental or administrative action is pending or, to the knowledge of the Loan Parties, threatened, under any Environmental Law to which any Loan Party or any Subsidiary thereof is or will be named as a party with respect to the Properties or the Business, nor are there any consent decrees or other decrees, consent orders, administrative orders or other orders, or other administrative or judicial requirements outstanding under any Environmental Law with respect to the Properties or the Business. (f) There has been no release or threat of release of Materials of Environmental Concern at or from the Properties, or arising from or related to the operations of any Loan Party or any Subsidiary thereof in connection with the Properties or otherwise in connection with the Business, in violation of or in amounts or in a manner that could reasonably give rise to liability under Environmental Laws. 6.17. Solvency. Each Loan Party is, and after giving effect to the consummation of any Acquisition and to the incurrence of all Indebtedness and obligations being incurred in connection herewith and therewith will be and will continue to be, Solvent. 6.18. Security Documents. (a) The Guarantee and Collateral Agreement is effective to create in favor of the Administrative Agent, for the benefit of the Lenders, a legal, valid and enforceable security interest in the Collateral described, and as defined, therein and proceeds thereof, and, after taking the actions described in Schedule 3 thereto, the Guarantee and Collateral Agreement shall at all times constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in such Collateral located in the State of New York and the proceeds thereof, as security for the Secured Obligations (as defined in the Guarantee and Collateral Agreement), in each case prior and superior in right to any other Person, other than with respect to Liens expressly permitted by subsection 9.3. (b) The English Security Documents are or will be effective to create in favor of the Administrative Agent, for the benefit of the Lenders, a legal, valid and enforceable security interest in the Collateral described, and as defined, therein and proceeds thereof, and, after taking the actions described therein, the English Security Documents shall at all times constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in such Collateral and the proceeds thereof, as security for the Secured Obligations (as defined in the English Security Documents), in each case prior and superior in right to any other Person, other than with respect to Liens expressly permitted by subsection 9.3. 6.19. Accuracy of Information. No statement or information contained in this Agreement, any other Loan Document or any other document, certificate or statement furnished in writing to the Administrative Agent or the Lenders or any of them, by or on behalf of any Loan Party for use in connection with the transactions contemplated by this Agreement or the other Loan Documents, taken as a whole together with all other information provided in this Agreement, the other Loan Documents or any other such document, certificate or statement, 54 contained as of the date such statement, information, document or certificate was so furnished any untrue statement of any fact material to the interests of the Administrative Agent or any Lender, or omitted to state a fact necessary in order to make the statements contained herein or therein not misleading in any respect material to the interests of the Administrative Agent or any Lender. There is no fact known to any Loan Party that could reasonably be expected to have a Material Adverse Effect that has not been expressly disclosed herein, in the other Loan Documents or in such other documents, certificates and statements furnished to the Administrative Agent and the Lenders for use in connection with the transactions contemplated hereby and by the other Loan Documents. SECTION 7. CONDITIONS PRECEDENT 7.1. Conditions to Closing Date. The Closing Date shall occur on the date of satisfaction of the following conditions precedent: (a) Loan Documents. The Administrative Agent shall have received (i) this Agreement, executed and delivered by a duly authorized officer of the Borrowers, with a counterpart for each Lender, and (ii) the Acknowledgment and Consent to the Guarantee and Collateral Agreement, substantially in the form of Exhibit I hereto, executed and delivered by a duly authorized officer of the parties thereto, with a counterpart or a conformed copy for each Lender. (b) Closing Certificate. The Administrative Agent shall have received, with a copy for each Lender, a certificate of the Company and the other domestic Loan Parties, dated the Closing Date, substantially in the form of Exhibit G with appropriate insertions and attachments, satisfactory in form and substance to the Administrative Agent, executed by the President or any Vice President and the Secretary or any Assistant Secretary of the Company and the domestic Loan Parties. (c) Corporate Proceedings of the Company. The Administrative Agent shall have received, with a counterpart for each Lender, a copy of the resolutions, in form and substance satisfactory to the Administrative Agent, of the Board of Directors of the Company authorizing (i) the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, (ii) the borrowings contemplated hereunder and (iii) the granting by it of the Liens created pursuant to the Security Documents to which the Company is a party, certified by the Secretary or an Assistant Secretary of the Company as of the Closing Date, which certificate shall be in form and substance satisfactory to the Administrative Agent and shall state that the resolutions thereby certified have not been amended, modified, revoked or rescinded. (d) Company Incumbency Certificate. The Administrative Agent shall have received, with a counterpart for each Lender, a certificate of the Company, dated the Closing Date, as to the incumbency and signature of the officers of the Company executing any Loan Document satisfactory in form and substance to the Administrative Agent, executed by the President or any Vice President and the Secretary or any Assistant Secretary of the Company. 55 (e) Corporate Proceedings of Subsidiaries. The Administrative Agent shall have received, with a counterpart for each Lender, a copy of the resolutions, in form and substance satisfactory to the Administrative Agent, of the Board of Directors of each Subsidiary of the Company which is a party to a Loan Document authorizing (i) the execution, delivery and performance of the Loan Documents to which it is a party and (ii) the granting by it of the Liens created pursuant to the Security Documents to which it is a party, certified by the Secretary or an Assistant Secretary of each such Subsidiary as of the Closing Date, which certificate shall be in form and substance satisfactory to the Administrative Agent and shall state that the resolutions thereby certified have not been amended, modified, revoked or rescinded. (f) Subsidiary Incumbency Certificates. The Administrative Agent shall have received, with a counterpart for each Lender, a certificate of each Domestic Subsidiary of the Borrower which is a party to a Loan Document, dated the Closing Date, as to the incumbency and signature of the officers of such Subsidiaries executing any Loan Document, satisfactory in form and substance to the Administrative Agent, executed by the President or any Vice President and the Secretary or any Assistant Secretary of each such Subsidiary. (g) Corporate Documents. The Administrative Agent shall have received, with a counterpart for each Lender, true and complete copies of the certificate of incorporation and by-laws of each Loan Party, certified as of the Closing Date as complete and correct copies thereof by the Secretary or an Assistant Secretary of such Loan Party. (h) Fees. The Administrative Agent and the Lenders shall have received all invoiced fees and expenses required to be paid on the Closing Date including, but not limited to, the Amendment Fee and the Up-Front Fee. (i) Legal Opinions. The Administrative Agent shall have received, with a counterpart for each Lender, the following executed legal opinions: (i) the executed legal opinion of Michael C. Duban, counsel to the Company and the other Loan Parties, substantially in the form of Exhibit F-1; and (ii) the executed legal opinion of counsel to the Foreign Subsidiary Borrower, substantially in the form of Exhibit F-2; each such legal opinion to cover such other matters incident to the transactions contemplated by this Agreement and the other Loan Documents as the Administrative Agent may reasonably require. (j) Financial Statements. The Administrative Agent shall have received, with a copy for each Lender, audited consolidated financial statements of the Company and its 56 consolidated Subsidiaries for the two most recent fiscal years ended prior to the Closing Date and unaudited consolidated financial statements of the Company and its consolidated Subsidiaries, reasonably satisfactory to the Lenders and certified by the chief financial officer of the Company, for the three months ended December 31, 2000, all such financial statements, including the related schedules and notes thereto, having been prepared in accordance with GAAP applied consistently throughout the periods involved (except as approved by such accountants or chief financial officer, as the case may be, and as disclosed therein). (k) Projections. The Administrative Agent shall have received, with a copy for each Lender, financial projections of the Company and its Subsidiaries for the period from the Closing Date through September 30, 2002. (l) Pledged Stock; Stock Powers. The Administrative Agent shall have received the certificates representing the shares of each New Loan Party pledged pursuant to the Guarantee and Collateral Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof. (m) Actions to Perfect Liens. The Administrative Agent shall have received evidence in form and substance satisfactory to it that all filings, recordings, registrations and other actions, including, without limitation, the filing of duly executed financing statements on form UCC-1, necessary or, in the opinion of the Administrative Agent, desirable to perfect the Liens created by the Security Documents shall have been completed. (n) Lien Searches. The Administrative Agent shall have received the results of a recent search by a Person satisfactory to the Administrative Agent, of the Uniform Commercial Code, judgment and tax lien filings which may have been filed with respect to personal property of each New Loan Party in each of the jurisdictions and offices where assets of such New Loan Party are located or recorded, and such search shall reveal no material liens on any of the assets of such New Loan Party except for liens permitted by the Loan Documents. (o) Consents, Licenses and Approvals. (i) All governmental and material third party approvals (including material landlords' and other consents) necessary or advisable in connection with the execution, delivery and performance of the Loan Documents and the continuing operation of the business of the Company and its Subsidiaries shall have been obtained and be in full force and effect, and (ii) all applicable waiting periods shall have expired without any action being taken or threatened by any competent Governmental Authority which would restrain, prevent or otherwise impose adverse conditions on the Company, any of its Subsidiaries. (p) Designated Senior Indebtedness. (i) The Indebtedness under this Agreement shall be designated by the Company as "Designated Senior Indebtedness" pursuant to, and as defined under, the Indenture, dated as of September 23, 1997, among the Company, as issuer, and IBJ Whitehall Bank & Trust Company (formerly IBJ Schroder Bank & Trust Company), as trustee, relating to the Company's 8 5/8% Senior Subordinated Notes due 2007, and (ii) the Administrative Agent shall have received a 57 reaffirmation of the Company satisfactory to the Administrative Agent reaffirming such designation by the Company. 7.2. Conditions to Each Extension of Credit. The agreement of each Lender to make any Extension of Credit requested to be made by it on any date (including, without limitation, the Closing Date), is subject to the satisfaction of the following conditions precedent as of the date such Extension of Credit is requested to be made: (a) Representations and Warranties. Each of the representations and warranties made by each of the Loan Parties in or pursuant to the Loan Documents shall be true and correct in all material respects on and as of such date as if made on and as of such date. (b) No Default. No Default or Event of Default shall have occurred and be continuing on such date or after giving effect to the Extension of Credit requested to be made on such date. Each Extension of Credit made to a Borrower hereunder shall constitute a representation and warranty by such Borrower as of the date of such Extension of Credit that the conditions contained in this subsection 7.2 have been satisfied. 7.3. Conditions to Initial Extension of Credit to the Foreign Subsidiary Borrower. The agreement of each Lender to make its initial Extension of Credit requested to be made by it to the Foreign Subsidiary Borrower, in addition to the satisfaction with the conditions in subsections 7.1 and 7.2, is subject to the satisfaction of the following conditions precedent as of the date such initial Extension of Credit is requested to be made: (a) English Security Documents. The Administrative Agent shall have received each English Security Document referred to in clause (ii) of the definition thereof, executed and delivered by a duly authorized officer of the Loan Party party thereto, with a counterpart or a conformed copy for each Lender. (b) Corporate Proceedings of the Foreign Subsidiary Borrower. The Administrative Agent shall have received, with a counterpart for each Lender, a copy of the resolutions, in form and substance satisfactory to the Administrative Agent, of the Board of Directors of the Foreign Subsidiary Borrower authorizing (i) the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, (ii) the borrowings contemplated hereunder and (iii) the granting by it of the Liens created pursuant to the Security Documents to which the Foreign Subsidiary Borrower is a party, certified by the Secretary or an Assistant Secretary (or like official) of the Foreign Subsidiary Borrower as of such initial date, which certificate shall be in form and substance satisfactory to the Administrative Agent and shall state that the resolutions thereby certified have not been amended, modified, revoked or rescinded. (c) Legal Opinions. The Administrative Agent shall have received, with a counterpart for each Lender, the executed legal opinion of a special English counsel to the Company and the other Loan Parties, satisfactory to the Administrative Agent, covering customary matters as the Administrative Agent may reasonably require. 58 (d) Actions to Perfect Liens. The Administrative Agent shall have received evidence in form and substance satisfactory to it that all filings, recordings, registrations and other actions necessary or, in the opinion of the Administrative Agent, desirable to perfect the Liens created by the English Security Documents shall have been completed. (e) Holland & Barrett Notes. The Administrative Agent shall have received, for the account of each Lender that shall so request, a promissory note of the Foreign Subsidiary Borrower reasonably satisfactory to the Administrative Agent and substantially similar to the form of Revolving Credit Note in Exhibit A-1 with appropriate changes, executed by a duly authorized officer of the Foreign Subsidiary Borrower. 7.4. Conditions to Each Extension of Credit under the New Revolving Credit Commitments. The agreement of each New Revolving Credit Lender to make any Extension of Credit under its New Revolving Credit Commitment on or after the Closing Date requested to be made by it, in addition to the satisfaction with the conditions in subsections 7.1 and 7.2, is subject to the satisfaction of the following conditions precedent as of the date such Extension of Credit is requested to be made (a "Drawdown Date"): (a) Lien Searches. The Administrative Agent shall have received the results of a recent search by a Person satisfactory to the Administrative Agent, of the Uniform Commercial Code, judgment and tax lien filings which may have been filed with respect to personal property of each entity to be acquired by the Company in whole or in part with the proceeds of such Extension of Credit, including, to the extent relevant, Global Health and NatureSmart, in each of the jurisdictions and offices where assets of each such entity are located or recorded, and such search shall reveal no material liens on any of the assets of each such entity except for liens permitted by the Loan Documents or liens to be discharged on or prior to such Drawdown Date pursuant to documentation satisfactory to the Administrative Agent. (b) Consents, Licenses and Approvals. (i) All governmental and material third party approvals (including material landlords' and other consents) necessary or advisable in connection with any Acquisition to be financed in whole or in part with the proceeds of such Extension of Credit, including, to the extent relevant, the Global Health Acquisition and the NatureSmart Acquisition, shall have been obtained and be in full force and effect, and (ii) all applicable waiting periods shall have expired without any action being taken or threatened by any competent Governmental Authority which would restrain, prevent or otherwise impose adverse conditions on any such Acquisition. (c) Purchase Agreements. The Administrative Agent shall have received copies of the executed purchase agreement entered into by the Company in connection with any Acquisition being financed in whole or in part with the proceeds of such Extension of Credit and such agreement shall be reasonably satisfactory to the Administrative Agent. (d) Purchase Price. The aggregate amount of cash consideration paid or to be paid for (i) the Global Health Acquisition shall not exceed $60,000,000 and (ii) the NatureSmart Acquisition shall not exceed $45,000,000. Notwithstanding the foregoing, 59 the sum of the aggregate amount of cash consideration paid or to be paid for both the Global Health Acquisition and the NatureSmart Acquisition shall not exceed $90,000,000. (e) Fees. The Administrative Agent shall have received from the Company any applicable Drawdown Fee. SECTION 8. AFFIRMATIVE COVENANTS The Company hereby agrees that, so long as the Commitments (or any of them) remain in effect, any Loan or Reimbursement Obligation remains outstanding and unpaid or any other amount is owing to any Lender or the Administrative Agent hereunder or under any other Loan Document, the Company shall and shall cause each of its Subsidiaries to: 8.1. Financial Statements. Furnish to each Lender: (a) as soon as available, but in any event within 90 days after the end of each fiscal year of the Company, copies of the consolidated and consolidating balance sheets of the Company and its consolidated Subsidiaries as at the end of such year and the related consolidated and consolidating statements of income and retained earnings and of cash flows for such year, setting forth in each case in comparative form the figures as of the end of and for the previous year, reported on without a "going concern" or like qualification or exception, or qualification arising out of the scope of the audit, by PricewaterhouseCoopers LLP or other independent certified public accountants of nationally recognized standing; and (b) as soon as available, but in any event not later than 45 days after the end of each of the first three quarterly periods of each fiscal year of the Company, the unaudited consolidated and consolidating balance sheets of the Company and its consolidated Subsidiaries as at the end of such quarter and the related unaudited consolidated and consolidating statements of income and retained earnings and of cash flows of the Company and its consolidated Subsidiaries for such quarter and the portion of the fiscal year through the end of such quarter, setting forth in each case in comparative form the figures as of the end of and for the corresponding period in the previous year, certified by a Responsible Officer of the Company as being fairly stated in all material respects (subject to normal year-end audit adjustments); all such financial statements shall be complete and correct in all material respects and shall be prepared in reasonable detail and in accordance with GAAP applied consistently throughout the periods reflected therein and with prior periods (except as approved by such accountants or officer, as the case may be, and disclosed therein and except that interim statements may exclude detailed footnote disclosure in accordance with standard practice). 8.2. Certificates; Other Information. Furnish to each Lender: (a) concurrently with the delivery of the financial statements referred to in subsection 8.1(a), a certificate of the independent certified public accountants reporting 60 on such financial statements stating that in making the examination necessary therefor no knowledge was obtained of any Default or Event of Default, except as specified in such certificate; (b) concurrently with the delivery of the financial statements referred to in subsections 8.1(a) and 8.1(b), a certificate of a Responsible Officer of the Company stating that, to the best of such officer's knowledge, each Loan Party during such period has observed or performed all of its covenants and other agreements, and satisfied every condition, contained in this Agreement and the other Loan Documents to be observed, performed or satisfied by it, and that such officer has obtained no knowledge of any Default or Event of Default except as specified in such certificate; and in the case of financial statements referred to in subsections 8.1(a) and 8.1(b), including calculations and information demonstrating in reasonable detail compliance with the requirements of subsection 9.1 and determining the Applicable Margins; (c) not later than 90 days following the end of each fiscal year of the Company, a copy of the projections by the Company of the operating budget of the Company and its Subsidiaries for the succeeding fiscal year, such projections to be accompanied by a certificate of a Responsible Officer of the Company to the effect that such projections have been prepared on the basis of sound financial planning practice and that such officer has no reason to believe they are incorrect or misleading in any material respect; (d) within five Business Days after the same are filed, copies of all financial statements and reports which the Company may make to, or file with, the Securities and Exchange Commission or any successor or analogous Governmental Authority; (e) concurrently with the delivery of the financial statements referred to in subsections 8.1(a) and 8.1(b), to the extent not included in the financial statements and reports referred to in subsection 8.2(d), a management narrative report explaining all significant variances from forecasts, projections and previous results and all significant current developments in staffing, marketing, sales and operations; and (f) promptly, such additional financial and other information as any Lender may from time to time reasonably request. 8.3. Payment of Obligations. Pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all its obligations of whatever nature (including taxes), except where the amount or validity thereof is currently being contested in good faith by appropriate proceedings and reserves in conformity with GAAP with respect thereto have been provided on the books of the Company or its Subsidiaries, as the case may be. 8.4. Maintenance of Existence. Preserve, renew and keep in full force and effect its corporate existence and take all reasonable action to maintain all rights, privileges and franchises necessary or desirable in the normal conduct of its business except as otherwise permitted pursuant to subsection 9.5; and comply with all Contractual Obligations and 61 Requirements of Law except to the extent that failure to comply therewith could not, in the aggregate, be reasonably expected to have a Material Adverse Effect. 8.5. Maintenance of Property; Insurance. Keep all property useful and necessary in its business in good working order and condition; maintain with financially sound and reputable insurance companies insurance on all its property in at least such amounts and against at least such risks (but including in any event public liability, product liability and business interruption) as are usually insured against in the same general area by companies engaged in the same or a similar business; and furnish to each Lender, upon written request, full information as to the insurance carried. 8.6. Inspection of Property; Books and Records; Discussions. Keep proper books of records and account in which full, true and correct entries in conformity with GAAP and all Requirements of Law shall be made of all dealings and transactions in relation to its business and activities; and, upon prior written notice, permit representatives of any Lender to visit and inspect any of its properties and examine and make abstracts from any of its books and records at any reasonable time and as often as may reasonably be desired and to discuss the business, operations, properties and financial and other condition of the Company and its Subsidiaries with officers and employees of the Company and its Subsidiaries and, in the presence of an officer of the Company, with its independent certified public accountants. 8.7. Notices. Promptly give notice to the Administrative Agent (who shall promptly notify each Lender) of: (a) the occurrence of any Default or Event of Default; (b) any (i) default or event of default under any Contractual Obligation of the Company or any of its Subsidiaries or (ii) litigation, investigation or proceeding which may exist at any time between the Company or any of its Subsidiaries and any Governmental Authority, which in either case, if not cured or if adversely determined, as the case may be, could reasonably be expected to have a Material Adverse Effect; (c) any litigation or proceeding (including without limitation any notice of violation, alleged violation, liability or potential liability under any Environmental Law) affecting the Company or any of its Subsidiaries in which the amount involved is $500,000 or more and not covered by insurance or in which injunctive or similar relief is sought; (d) the following events, as soon as possible and in any event within 30 days after any Loan Party knows or has reason to know thereof: (i) the occurrence or expected occurrence of any Reportable Event with respect to any Plan, a failure to make any required contribution to a Plan, the creation of any Lien in favor of the PBGC or a Plan or any withdrawal from, or the termination, Reorganization or Insolvency of, any Multiemployer Plan or (ii) the institution of proceedings or the taking of any other action by the PBGC or the Company or any of its Subsidiaries or any Commonly Controlled Entity or any Multiemployer Plan with respect to the withdrawal from, or the terminating, Reorganization or Insolvency of, any Plan; and 62 (e) any development or event which has had or could reasonably be expected to have a Material Adverse Effect. Each notice pursuant to this subsection shall be accompanied by a statement of a Responsible Officer of the Company setting forth details of the occurrence referred to therein and stating what action the Company proposes to take with respect thereto. 8.8. Environmental Laws. (a) Comply with, and ensure compliance by all tenants and subtenants, if any, with, all applicable Environmental Laws and obtain and comply in all respects with and maintain, and ensure that all tenants and subtenants obtain and comply in all respects with and maintain, any and all licenses, approvals, notifications, registrations or permits required by applicable Environmental Laws, except to the extent that any failures could not, in the aggregate, reasonably be expected to have a Material Adverse Effect or to result in the payment of a Material Environmental Amount. (b) Conduct and complete all investigations, studies, sampling and testing, and all remedial, removal and other actions required under Environmental Laws and promptly comply in all material respects with all lawful orders and directives of all Governmental Authorities regarding Environmental Laws except to the extent that the same are being contested in good faith by appropriate proceedings and the pendency of such proceedings could not be reasonably expected to have a Material Adverse Effect. 8.9. Additional Subsidiaries. (a) With respect to any Domestic Subsidiary created or acquired after the Closing Date by the Company (including NatureSmart and any entity formed to acquire any assets in the NatureSmart Acquisition or the Global Health Acquisition), promptly cause such Subsidiary to become a party to the Guarantee and Collateral Agreement, deliver to the Administrative Agent the certificates representing the Capital Stock of such Subsidiary, together with undated stock powers, executed in blank, securing the Obligations as described in the Guarantee and Collateral Agreement and covering the types of assets covered by the Guarantee and Collateral Agreement, take all required actions to perfect the security interests created by the Guarantee and Collateral Agreement in the assets of such Subsidiary and if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described in the preceding clauses (i) through (iii) which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. (b) With respect to each direct Material Foreign Subsidiary of the Company or any Domestic Subsidiary acquired or formed after the Closing Date, promptly after the acquisition or formation thereof, execute and deliver and cause each such Foreign Subsidiary to execute and deliver to the Administrative Agent, in form and substance reasonably satisfactory to the Administrative Agent, such documents and instruments (including, without limitation, pledge agreements) and take such action (including, without limitation, the delivery of stock certificates and instruments) as the Administrative Agent may reasonably request in order to grant to the Administrative Agent, for the ratable benefit of the Lenders, as collateral security for the Obligations, a first priority perfected security interest in 65% of the voting Capital Stock and 100% of the non-voting Capital Stock of, or equivalent ownership interests in, such Foreign Subsidiary, along with any warrants, options, or other rights to acquire the same, in all cases to 63 the extent legally permissible and practicable and deliver to the Administrative Agent such legal opinions as it shall reasonably request with respect thereto. (c) If requested by the Administrative Agent, grant in favor of the Administrative Agent, for the benefit of the Lenders, Liens on any other assets other than real property hereafter acquired by the Company or any Domestic Subsidiary and on previously encumbered assets which become unencumbered, to the extent such Liens are then permissible under applicable law and pursuant to any agreements to which the Company or its Subsidiaries are a party, pursuant to documentation in form and substance satisfactory to the Administrative Agent. (d) In connection with any Acquisition, to the extent not otherwise provided for in this subsection 8.9, take all action necessary to assure that security interests and Liens for the benefit of the Lenders are granted and perfected in all material assets acquired in such Acquisition (including assets of Subsidiaries acquired in such Acquisition). SECTION 9. NEGATIVE COVENANTS The Company hereby agrees that, so long as the Commitments (or any of them) remain in effect, any Loan or Reimbursement Obligation remains outstanding and unpaid or any other amount is owing to any Lender or the Administrative Agent hereunder or under any other Loan Document, the Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly: 9.1. Financial Condition Covenants. (a) Permit at the end of each fiscal quarter of the Company a Consolidated Fixed Charge Coverage Ratio of less than the ratio set forth below opposite the period in which such date occurs:
Period Ratio ------ ----- Closing Date - Thereafter 1.00
(b) Maintenance of Consolidated Indebtedness to Consolidated EBITDA Ratio. Permit the ratio of (i) Consolidated Indebtedness on any date during any test period set forth below to (ii) Consolidated EBITDA for the four fiscal quarters most recently ended prior to such date, to be greater than the amount set forth opposite such test period below:
Test Period Ratio ----------- ----- Closing Date - September 29, 2002 2.75 September 30, 2002 - Thereafter 2.50
(c) Consolidated Net Worth. Permit Consolidated Net Worth on any date during any test period set forth below to be less than the amount set forth opposite such test period below: 64
Test Period Amount ----------- ------ Closing Date through September 29, 2001 $250,000,000 September 30, 2001 through September 29, 2002 $280,000,000 September 30, 2002 through September 29, 2003 $320,000,000 September 30, 2003 through September 29, 2004 $365,000,000 September 30, 2004 and Thereafter $410,000,000
9.2. Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except: (a) Indebtedness of the Borrowers under this Agreement; (b) existing Indebtedness of the Company listed on Schedule 9.2; (c) Indebtedness of the Company to any Subsidiary of the Company and of any Domestic Subsidiary to the Company or to any other Subsidiary of the Company; (d) Indebtedness under sale and leaseback transactions permitted by subsection 9.12; (e) Indebtedness of the Company under Hedge Agreements entered into solely to hedge interest rate exposure and not for speculative purposes; (f) Indebtedness of the Company or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including obligations under Financing Leases and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that (A) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and (B) the aggregate principal amount of Indebtedness permitted by this paragraph (f), and the aggregate amount of sale-leaseback transactions permitted under subsection 9.12 theretofore consummated, shall not exceed $10,000,000 at any time outstanding; (g) Indebtedness of any Person that becomes a Subsidiary after the date hereof; provided that (A) such Indebtedness exists at the time such Person becomes a 65 Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary and (B) the aggregate principal amount of Indebtedness permitted by this paragraph (g) shall not exceed $1,000,000 at any time outstanding; (h) Indebtedness of any Foreign Subsidiaries, in addition to Indebtedness permitted by paragraph (i), in an aggregate amount not in excess of $1,000,000 at any time outstanding; and (i) Indebtedness of any Foreign Subsidiary to any other Foreign Subsidiary. 9.3. Limitation on Liens. Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, except for: (a) Liens for taxes not yet due or which are being contested in good faith by appropriate proceedings, provided that adequate reserves with respect thereto are maintained on the books of such Person in conformity with GAAP (or, in the case of Foreign Subsidiaries, generally accepted accounting principles in effect from time to time in their respective jurisdictions of incorporation); (b) carriers', warehousemen's, mechanics', materialmen's, repairmen's or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 60 days or which are being contested in good faith by appropriate proceedings; (c) pledges or deposits in connection with workers' compensation, unemployment insurance and other social security legislation; (d) deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business; (e) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business which, in the aggregate, are not substantial in amount and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of such Person; (f) Existing Liens listed on Schedule 9.3; (g) Liens securing Indebtedness of the Borrower permitted by subsection 9.2(f) incurred to finance the acquisition of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise), provided that (i) such Liens shall be created substantially simultaneously with the acquisition of such fixed or capital assets, (ii) such Liens do not at any time encumber any property other than the property financed by such Indebtedness, (iii) the amount of Indebtedness secured thereby is not increased and (iv) the principal amount of Indebtedness secured by any such Lien shall at no time exceed the original purchase price of such property at the time it was acquired; 66 (h) Liens on current assets of any Foreign Subsidiary securing Indebtedness of such Foreign Subsidiary permitted under subsection 9.2(h); (i) Liens (not otherwise permitted hereunder) which secure obligations in aggregate amount at any time outstanding not exceeding (as to the Company and all Subsidiaries), and on property with an aggregate value not exceeding, $1,000,000; and (j) Liens created pursuant to the Security Documents. 9.4. Limitation on Guarantee Obligations. Create, incur, assume or suffer to exist any Guarantee Obligation except: (a) Guarantee Obligations in existence on the date hereof and listed on Schedule 9.4; (b) Guarantee Obligations incurred after the date hereof in an aggregate amount not to exceed $1,000,000 at any one time outstanding; (c) guarantees made in the ordinary course of its business by the Company of obligations (other than Indebtedness) of any of its Domestic Subsidiaries, which obligations are otherwise permitted under this Agreement; (d) the guarantee by the Company under this Agreement and guarantee by the Domestic Subsidiaries under the Guarantee and Collateral Agreement; (e) guarantees of any Foreign Subsidiary of the obligations of any other Foreign Subsidiary; and (f) guarantees by the Company of obligations of Foreign Subsidiaries in an aggregate amount not in excess of $1,000,000 at any one time outstanding. 9.5. Limitation on Fundamental Changes. Enter into any merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer or otherwise dispose of, all or substantially all of its property, business or assets, or make any material change in its present method of conducting business, except: (a) any Subsidiary of the Company may be merged or consolidated with or into the Company (provided that the Company shall be the continuing or surviving corporation) or with or into any one or more wholly owned Subsidiaries of the Company (provided that if a Domestic Subsidiary is a party to such transaction, such Domestic Subsidiary shall be the continuing or surviving corporation); and (b) any wholly owned Subsidiary may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Company or any other wholly owned Domestic Subsidiary of the Company. 67 9.6. Limitation on Sale of Assets. Convey, sell, lease, assign, transfer or otherwise dispose of any of its property, business or assets (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or, in the case of any Subsidiary, issue or sell any shares of such Subsidiary's Capital Stock to any Person other than the Company or any wholly owned Domestic Subsidiary, except: (a) the sale or other disposition of obsolete or worn out property in the ordinary course of business; (b) the sale of inventory in the ordinary course of business; (c) as permitted by subsection 9.5(b); and (d) the sale or other disposition of any other property at fair market value for consideration not in excess of $1,000,000 in the aggregate in any fiscal year. 9.7. Limitation on Dividends and Other Restricted Payments. Declare or pay any dividend (other than dividends payable solely in common stock of the Company) on, or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any shares of any class of Capital Stock of the Company or any Subsidiary or any warrants or options to purchase any such Capital Stock, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Company or any Subsidiary thereof (such declarations, payments, setting apart, purchases, redemptions, defeasances, retirements, acquisitions and distributions being herein called "Restricted Payments") except (a) as permitted by subsections 9.5 and 9.9 and (b) any Subsidiary may pay dividends to the Company or any other Subsidiary. 9.8. Limitation on Capital Expenditures. Make any Capital Expenditure except for Capital Expenditures by the Company and its Subsidiaries in the ordinary course of business not exceeding, in the aggregate during any fiscal year of the Company the amount set forth opposite such fiscal year below:
Fiscal Year Amount ----------- ------ 2001 $42,500,000 2002 and each year thereafter $40,000,000
9.9. Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in, any Person, except: (a) extensions of trade credit in the ordinary course of business; (b) investments in Cash Equivalents; 68 (c) loans and advances to employees of the Company or its Subsidiaries for travel, entertainment and relocation expenses in the ordinary course of business in an aggregate amount for the Company and its Subsidiaries not to exceed $100,000 at any one time outstanding; (d) investments by the Company or its Subsidiaries in any wholly-owned Subsidiary of the Company which has complied with the conditions set forth in subsection 8.9(a) or any wholly-owned Foreign Subsidiary which has complied with the conditions set forth in subsection 8.9(b); provided that the aggregate amount of all such advances, loans, investments, transfers or guarantees outstanding at any time made to or on behalf of the Foreign Subsidiaries shall not exceed $10,000,000; (e) the Nutrition Warehouse Acquisition, the SDV Vitamins Acquisition, the Global Health Acquisition, the NatureSmart Acquisition and other Acquisitions; provided, (i) such Acquisitions permitted pursuant to this paragraph (e) shall be non-hostile acquisitions and (ii) the aggregate amount of investments (whether cash, securities or other consideration) permitted each fiscal year pursuant to this paragraph (e), except in the case of the Nutrition Warehouse Acquisition, the SDV Vitamins Acquisition, the Global Health Acquisition and the NatureSmart Acquisition, shall not exceed, in the aggregate in any fiscal year, the sum of $10,000,000; and (f) additional investments not to exceed $1,000,000 in the aggregate while this Agreement is outstanding. 9.10. Limitation on Optional Payments and Modifications of Debt Instruments. (a) Make any optional payment or prepayment on or redemption or purchase of any Indebtedness (other than the Loans), (b) amend, modify or change, or consent or agree to any amendment, modification or change to, any of the terms of any Indebtedness (excluding the Loans) (other than any such amendment, modification or change which would extend the maturity or reduce the amount of any payment of principal thereof or which would reduce the rate or extend the date for payment of interest thereon), or (c) amend, modify or change the subordination provisions of any Subordinated Debt. 9.11. Limitation on Transactions with Affiliates. Enter into any transaction, including, without limitation, any purchase, sale, lease or exchange of property or the rendering of any service, with any Affiliate unless such transaction is (a) otherwise permitted under this Agreement and (b) upon fair and reasonable terms no less favorable to the Company or such Subsidiary, as the case may be, than it would obtain in a comparable arm's length transaction with a Person which is not an Affiliate. 9.12. Limitation on Sales and Leasebacks. Enter into any arrangement with any Person providing for the leasing by the Company or any Subsidiary of real or personal property which has been or is to be sold or transferred by the Company or such 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 Company or such Subsidiary; provided, that such sale leaseback transactions in an amount of, together with the aggregate principal amount of Indebtedness permitted under subsection 9.2(f) then outstanding, up to $10,000,000 in the 69 aggregate while this Agreement is in effect may be consummated by the Company, provided that the Company will not mortgage any existing Real Property (including the Gel-Cap Facility). 9.13. Limitation on Changes in Fiscal Year. Permit the fiscal year of the Company to end on a day other than September 30. 9.14. Limitation on Negative Pledge Clauses. Enter into with any Person any agreement, other than (a) this Agreement, (b) the Subordinated Debt and (c) any industrial revenue bonds, purchase money mortgages or Financing Leases permitted by this Agreement (in which cases, any prohibition or limitation shall only be effective against the assets financed thereby), which prohibits or limits the ability of the Company or any of its Subsidiaries to create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired. 9.15. Limitation on Lines of Business. Enter into any business, either directly or through any Subsidiary, except for the vitamins and healthfood businesses. SECTION 10. GUARANTEE 10.1 Guarantee. (a) The Company hereby absolutely, unconditionally and irrevocably guarantees to the Administrative Agent, for the ratable benefit of the Lenders and their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Foreign Subsidiary Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations owed by it (the "Foreign Subsidiary Obligations"). (b) The Company further agrees to pay any and all expenses (including, without limitation, all reasonable fees and disbursements of counsel), which may be paid or incurred by the Administrative Agent or any Lender in enforcing, or obtaining advice of counsel in respect of, any rights with respect to, or collecting, any or all of the Foreign Subsidiary Obligations and/or enforcing any rights with respect to, or collecting against, the Company under this Section 10. This Section 10 shall remain in full force and effect until (subject to reinstatement as provided in subsection 10.5) the Foreign Subsidiary Obligations are paid in full and the Commitments are terminated, notwithstanding that from time to time prior thereto the Foreign Subsidiary Borrower may be free from any Foreign Subsidiary Obligations. (c) No payment or payments made by any Borrower or any other Person or received or collected by the Administrative Agent or any Lender from any Borrower or any other Person by virtue of any action or proceeding or any set-off or appropriation or application, at any time or from time to time, in reduction of or in payment of the Foreign Subsidiary Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Company hereunder which shall, notwithstanding any such payment or payments, remain liable hereunder for the Foreign Subsidiary Obligations until (subject to reinstatement as provided in subsection 10.5) the Foreign Subsidiary Obligations are paid in full and the Commitments are terminated. (d) The Company agrees that whenever, at any time, or from time to time, it shall make any payment to the Administrative Agent or any Lender on account of its liability 70 hereunder, it will notify the Administrative Agent and such Lender in writing that such payment is made under this Section 10 for such purpose. 10.2. No Subrogation. Notwithstanding any payment or payments made by the Company hereunder, or any set-off or application of funds of the Company by the Administrative Agent or any Lender, the Company shall not be entitled to be subrogated to any of the rights of the Administrative Agent or any Lender against the Foreign Subsidiary Borrower or against any collateral security or guarantee or right of offset held by the Administrative Agent or any Lender for the payment of the Foreign Subsidiary Obligations, nor shall the Company seek or be entitled to seek any contribution or reimbursement from the Foreign Subsidiary Borrower in respect of payments made by the Company hereunder, until all amounts owing to the Administrative Agent and the Lenders by the Foreign Subsidiary Borrower on account of the Foreign Subsidiary Obligations are paid in full and the Commitments are terminated. If any amount shall be paid to the Company on account of such subrogation rights at any time when all of the Foreign Subsidiary Obligations shall not have been paid in full, such amount shall be held by the Company in trust for the Administrative Agent and the Lenders, segregated from other funds of the Company, and shall, forthwith upon receipt by the Company, be turned over to the Administrative Agent in the exact form received by the Company (duly indorsed by the Company to the Administrative Agent, if required), to be applied against the Foreign Subsidiary Obligations, whether matured or unmatured, in such order as the Administrative Agent may determine. The provisions of this paragraph shall be effective notwithstanding the termination of this Agreement and the payment in full of the Foreign Subsidiary Obligations and the termination of the Commitments. 10.3. Amendments, etc. with respect to the Foreign Subsidiary Obligations; Waiver of Rights. The Company shall remain obligated hereunder notwithstanding that, without any reservation of rights against the Company, and without notice to or further assent by the Company, any demand for payment of any of the Foreign Subsidiary Obligations made by the Administrative Agent or any Lender may be rescinded by the Administrative Agent or such Lender, and any of the Foreign Subsidiary Obligations continued, and such Obligations, or the liability of any other party upon or for any part thereof, or any collateral security or guarantee therefor or right of offset with respect thereto, may, from time to time, in whole or in part, be renewed, extended, amended, modified, accelerated, compromised, waived, surrendered or released by the Administrative Agent or any Lender, and any Loan Documents and any other documents executed and delivered in connection therewith may be amended, modified, supplemented or terminated, in whole or in part, in accordance with the provisions thereof as the Administrative Agent (or the requisite Lenders, as the case may be) may deem advisable from time to time, and any collateral security, guarantee or right of offset at any time held by the Administrative Agent or any Lender for the payment of the Foreign Subsidiary Obligations may be sold, exchanged, waived, surrendered or released. None of the Administrative Agent or any Lender shall have any obligation to protect, secure, perfect or insure any Lien at any time held by it as security for the Foreign Subsidiary Obligations or for this Agreement or any property subject thereto. When making any demand hereunder against the Company, the Administrative Agent or any Lender may, but shall be under no obligation to, make a similar demand on the Foreign 71 Subsidiary Borrower or any other guarantor, and any failure by the Administrative Agent or any Lender to make any such demand or to collect any payments from the Foreign Subsidiary Borrower or any such other guarantor or any release of the Foreign Subsidiary Borrower or such other guarantor shall not relieve the Company of its obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of law, of the Administrative Agent or any Lender against the Company. For the purposes hereof "demand" shall include the commencement and continuance of any legal proceedings. 10.4. Guarantee Absolute, Irrevocable and Unconditional. The Company waives any and all notice of the creation, renewal, extension or accrual of any of the Foreign Subsidiary Obligations and notice of or proof of reliance by the Administrative Agent or any Lender upon this Agreement or acceptance of this Agreement; the Foreign Subsidiary Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Agreement; and all dealings between the Foreign Subsidiary Borrower and the Company, on the one hand, and the Administrative Agent and the Lenders, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Agreement. The Company waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Foreign Subsidiary Borrower and the Company with respect to the Foreign Subsidiary Obligations. This Section 10 shall be construed as a continuing, absolute, irrevocable and unconditional guarantee of payment without regard to (a) the validity, regularity or enforceability of this Agreement, any other Loan Document, any of the Foreign Subsidiary Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Administrative Agent or any Lender, (b) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Company or any other Loan Party against the Administrative Agent or any Lender, or (c) any other circumstance whatsoever (with or without notice to or knowledge of the Foreign Subsidiary Borrower or the Company) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Foreign Subsidiary Borrower for the Foreign Subsidiary Obligations, or of the Company under this Section 10, in bankruptcy or in any other instance. When pursuing its rights and remedies hereunder against the Company, the Administrative Agent and any Lender may, but shall be under no obligation to, pursue such rights and remedies as it may have against the Foreign Subsidiary Borrower or any other Person or against any collateral security or guarantee for the Foreign Subsidiary Obligations or any right of offset with respect thereto, and any failure by the Administrative Agent or any Lender to pursue such other rights or remedies or to collect any payments from the Foreign Subsidiary Borrower or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Foreign Subsidiary Borrower or any such other Person or of any such collateral security, guarantee or right of offset, shall not relieve the Company of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Administrative Agent or any Lender against the Company. This Section 10 shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Company and its successors and assigns, and shall inure to the benefit of the Administrative Agent and the Lenders, and their respective successors, indorsees, transferees and assigns, until (subject to reinstatement as provided in subsection 10.5) all the Foreign Subsidiary Obligations and the obligations of the Company under this Agreement shall have been satisfied by payment in full and the 72 Commitments shall be terminated, notwithstanding that from time to time during the term of this Agreement the Foreign Subsidiary Borrower may be free from any Foreign Subsidiary Obligations. 10.5. Reinstatement. This Section 10 shall continue to be effective, or be reinstated, as the case may be, if at any time payment, or any part thereof, of any of the Foreign Subsidiary Obligations is rescinded or must otherwise be restored or returned by the Administrative Agent or any Lender upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of any Borrower or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, any Borrower or any substantial part of its property, or otherwise, all as though such payments had not been made. 10.6. Payments. The Company hereby agrees that all payments required to be made by it hereunder will be made to the Administrative Agent without set-off or counterclaim in accordance with the terms of the Foreign Subsidiary Obligations, including, without limitation, in the currency in which payment is due. SECTION 11. EVENTS OF DEFAULT Upon the occurrence of any of the following events: (a) Any Borrower shall fail to pay (i) any principal of any Loans or any Reimbursement Obligations when due (whether at the stated maturity, by acceleration or otherwise) in accordance with the terms thereof or hereof or (ii) any interest on any Loans, or any fee or other amount payable hereunder, within five days after any such interest, fee or other amount becomes due in accordance with the terms hereof; or (b) Any representation or warranty made or deemed made by the Company or any other Loan Party herein or in any other Loan Document or which is contained in any certificate, document or financial or other statement furnished at any time under or in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any material respect on or as of the date made or deemed made or furnished; or (c) The Company or any other Loan Party shall default in the observance or performance of any negative covenant contained in Section 9 or in any Security Document to which it is a party; or (d) The Company or any other Loan Party shall default in the observance or performance of any other agreement contained in this Agreement or any other Loan Document other than as provided in (a) through (c) above, and such default shall continue unremedied for a period of 30 days; or (e) Any Loan Document shall cease, for any reason, to be in full force and effect, or the Company or any other Loan Party shall so assert; or any security interest created by any of the Security Documents shall cease to be enforceable and of the same effect and priority purported to be created thereby; or 73 (f) The subordination provisions contained in any instrument pursuant to which the Subordinated Debt was created or in any instrument evidencing such Subordinated Debt shall cease, for any reason, to be in full force and effect or enforceable in accordance with their terms; or (g) The Company or any of its Subsidiaries shall (i) default in any payment of principal of or interest on any Indebtedness (other than Indebtedness under this Agreement), in the payment of any Guarantee Obligation or in the payment of any Hedge Agreement Obligation, where, in any case or in the aggregate, the principal amount thereof then outstanding exceeds $1,000,000, beyond the period of grace (not to exceed 30 days), if any, provided in the instrument or agreement under which such Indebtedness, Guarantee Obligation or Hedge Agreement Obligation was created; or (ii) default in the observance or performance of any other agreement or condition relating to any such Indebtedness, Guarantee Obligation or Hedge Agreement Obligation or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness or Hedge Agreement Obligation or, beneficiary or beneficiaries of such Guarantee Obligation (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity or such Guarantee Obligation to become payable; or (h) (i) The Company, any Domestic Subsidiary or any Material Foreign Subsidiary shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its assets, or the Company, any Domestic Subsidiary or any Material Foreign Subsidiary shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against the Company, any Domestic Subsidiary or any Material Foreign Subsidiary any case, proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of 60 days; or (iii) there shall be commenced against the Company, any Domestic Subsidiary or any Material Foreign Subsidiary any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of an order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or (iv) the Company, any Domestic Subsidiary or any Material Foreign Subsidiary shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) the Company, any Domestic Subsidiary or any Material Foreign Subsidiary shall generally 74 not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; or (i) (i) Any Person shall engage in any "prohibited transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302 of ERISA), whether or not waived, shall exist with respect to any Single Employer Plan, (iii) a Reportable Event shall occur with respect to, or proceedings shall commence to have a trustee appointed (or a trustee shall be appointed) to administer, or to terminate, any Single Employer Plan, which Reportable Event or commencement of proceedings or appointment of a trustee is, in the reasonable opinion of the Majority Lenders, likely to result in the termination of such Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the Company or any Commonly Controlled Entity shall, or in the reasonable opinion of the Majority Lenders is likely to, incur any liability in connection with a withdrawal from, or the Insolvency or Reorganization of, a Multiemployer Plan or (vi) any other event or condition shall occur or exist, with respect to a Plan; and in each case in clauses (i) through (vi) above, such event or condition, together with all other such events or conditions, if any, could subject the Company or any of its Subsidiaries to any tax, penalty or other liabilities in the aggregate material in relation to the business, operations, property or financial or other condition of the Company and its Subsidiaries taken as a whole; or (j) One or more judgments or decrees shall be entered against the Company or any of its Subsidiaries involving in the aggregate a liability (not paid or fully covered by insurance) of $1,000,000 or more and all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within 30 days from the entry thereof; or (k) (i) Any Person or "group" (within the meaning of Section 13(d) or 15(d) of the Exchange Act), other than any Person or group owning 20% or more of the Capital Stock of the Company on the date hereof (A) shall have acquired, combined with previous holdings, beneficial ownership of 25% or more of any outstanding class of capital stock of the Company having ordinary voting power in the election of directors or (B) shall obtain the power (whether or not exercised) to elect a majority of the Company's directors or (ii) the Board of Directors of the Company shall not consist of a majority of Continuing Directors; then, and in any such event, (A) if such event is an Event of Default specified in clause (i) or (ii) of paragraph (h) above with respect to the Company or if such event is an Event of Default specified in clause (g) above resulting from the acceleration of the Subordinated Debt automatically the Commitments shall immediately terminate and the Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement (including, without limitation, all Reimbursement Obligations, regardless of whether or not such Reimbursement Obligations are then due and payable) shall immediately become due and payable, and (B) if such event is any other Event of Default, any of the following actions may be taken: (i) with the consent of the Majority Lenders, the Administrative Agent may, or upon the request of the Majority Lenders, the Administrative Agent shall, by notice to the Company declare the 75 Commitments to be terminated forthwith, whereupon the Commitments shall immediately terminate; (ii) with the consent of the Majority Lenders, the Administrative Agent may, or upon the direction of the Majority Lenders, the Administrative Agent shall, by notice of default to the Company, declare the Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement (including all amounts payable in respect of Letters of Credit whether or not the beneficiaries thereof shall have presented the drafts and other documents required thereunder) and the Notes to be due and payable forthwith, whereupon the same shall immediately become due and payable and (iii) the Administrative Agent may, and upon the direction of the Majority Lenders shall, exercise any and all remedies and other rights provided pursuant to this Agreement and/or the other Loan Documents. With respect to all Letters of Credit with respect to which presentment for honor shall not have occurred at the time of an acceleration pursuant to the preceding paragraph, the Company shall at such time deposit in a cash collateral account opened by the Administrative Agent an amount equal to the aggregate then undrawn and unexpired amount of such Letters of Credit. The Company hereby grants to the Administrative Agent, for the benefit of the Issuing Lender and the Participating Lenders, a security interest in such cash collateral to secure all obligations of the Company under this Agreement and the other Loan Documents. Amounts held in such cash collateral account shall be applied by the Administrative Agent to the payment of drafts drawn under such Letters of Credit, and the unused portion thereof after all such Letters of Credit shall have expired or been fully drawn upon, if any, shall be applied to repay other obligations of the Company hereunder and under the Notes. After all such Letters of Credit shall have expired or been fully drawn upon, all Reimbursement Obligations shall have been satisfied and all other obligations of the Company hereunder and under the Notes shall have been paid in full, the balance, if any, in such cash collateral account shall be returned to the Company. The Company shall execute and deliver to the Administrative Agent, for the account of the Issuing Lender and the Participating Lenders, such further documents and instruments as the Administrative Agent may request to evidence the creation and perfection of the within security interest in such cash collateral account. Except as expressly provided above in this Section, presentment, demand, protest and all other notices of any kind are hereby expressly waived. SECTION 12. THE ADMINISTRATIVE AGENT AND THE ARRANGER 12.1. Appointment. Each Lender hereby irrevocably designates and appoints Chase as the Administrative Agent of such Lender under this Agreement and the other Loan Documents, and each Lender irrevocably authorizes the Administrative Agent, in such capacity, to take such action on its behalf under the provisions of this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are expressly 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. Notwithstanding any provision to the contrary elsewhere in this Agreement, the Administrative Agent shall not have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Administrative Agent. 76 12.2. Delegation of Duties. The Administrative Agent may execute any of its duties under this Agreement and the other Loan Documents by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Administrative Agent shall not be responsible for the negligence or misconduct of any agents or attorneys in-fact selected by it with reasonable care. 12.3. Exculpatory Provisions. Neither the Administrative Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates shall be (i) liable for any action lawfully taken or omitted to be taken by it or such Person under or in connection with this Agreement or any other Loan Document (except for its or such Person's own gross negligence or willful misconduct) or (ii) responsible in any manner to any of the Lenders for any recitals, statements, representations or warranties made by any Borrower or any officer thereof contained in this Agreement or any other Loan Document or in any certificate, report, statement or other document referred to or provided for in, or received by the Administrative Agent under or in connection with, this Agreement or any other Loan Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document or for any failure of any Borrower to perform its obligations hereunder or thereunder. The Administrative Agent shall not be under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of any Borrower. 12.4. Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any Note, writing, resolution, notice, consent, certificate, affidavit, letter, telecopy, telex or teletype message, statement, order or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including, without limitation, counsel to the Company), independent accountants and other experts selected by the Administrative Agent. The Administrative Agent may deem and treat the payee of any Note as the owner thereof for all purposes unless a written notice of assignment, negotiation or transfer thereof shall have been filed with the Administrative Agent. The Administrative Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Loan Document unless it shall first receive such advice or concurrence of the Majority Lenders (or, to the extent provided in subsection 13.1, all of the Lenders) as it deems appropriate or 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 or continuing to take any such action. The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement and the other Loan Documents in accordance with a request of the Majority Lenders (or, to the extent provided in subsection 13.1, all of the Lenders), and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders and all future holders of the Loans. 12.5. Notice of Default. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default hereunder unless the Administrative Agent has received notice from a Lender or any of the Borrowers referring to this Agreement, describing 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, the Administrative 77 Agent shall give notice thereof to the Lenders. The Administrative Agent shall take such action with respect to such Default or Event of Default as shall be reasonably directed by the Majority 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 interests of the Lenders. 12.6. Non-Reliance on Administrative Agent and Other Lenders. Each Lender expressly acknowledges that none of the Administrative Agent or any of its respective officers, directors, employees, agents, attorneys-in-fact or Affiliates has made any representations or warranties to it and that no act by the Administrative Agent hereafter taken, including any review of the affairs of the Borrowers, shall be deemed to constitute any representation or warranty by the Administrative Agent to any Lender. Each Lender represents to the Administrative Agent that it has, independently and without reliance upon the Administrative Agent or any other Lender, and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, operations, property, financial and other condition and creditworthiness of the Borrowers and made its own decision to make its Loans hereunder and enter into this Agreement. Each Lender also represents that it will, independently and without reliance upon the Administrative Agent, the Arranger or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the Borrowers. Except for notices, reports and other documents 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 business, operations, property, condition (financial or otherwise), prospects or creditworthiness of the Borrowers which may come into the possession of the Administrative Agent or any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates. 12.7. Indemnification. The Lenders agree to indemnify the Administrative Agent in its capacity as such (to the extent not reimbursed by the Borrowers and without limiting the obligation of the Borrowers to do so), ratably according to their respective Total Loan Percentages in effect on the date on which indemnification is sought (or, if indemnification is sought after the date upon which the Commitments shall have terminated and the Loans shall have been paid in full, ratably in accordance with their Total Loan Percentages immediately prior to such date), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever which may at any time (including, without limitation, at any time following the payment of the Loans) be imposed on, incurred by or asserted against the Administrative Agent in any way relating to or arising out of the Commitments, this Agreement, any of the other Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by the Administrative Agent under or in connection with any of the foregoing; provided that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, 78 costs, expenses or disbursements resulting solely from the Administrative Agent's gross negligence or willful misconduct. The agreements in this subsection shall survive the payment of the Loans and all other amounts payable hereunder. 12.8. Administrative Agent in Its Individual Capacity. The entity which is the Administrative Agent and its Affiliates may make loans to, accept deposits from and generally engage in any kind of business with the Borrowers as though the entity which is the Administrative Agent were not the Administrative Agent hereunder and under the other Loan Documents. With respect to the Loans made by it, the entity which is the Administrative Agent shall have the same rights and powers under this Agreement and the other Loan Documents as any Lender and may exercise the same as though it were not the Administrative Agent, and the terms "Lender" and "Lenders" shall include the entity which is the Administrative Agent in its individual capacity. 12.9. Successor Administrative Agent. The Administrative Agent may resign as Administrative Agent upon 10 days' notice to the Lenders. If the Administrative Agent shall resign as Administrative Agent under this Agreement and the other Loan Documents, then the Majority Lenders shall appoint from among the Lenders a successor agent for the Lenders, which successor agent shall be approved by the Company, such approval not to be unreasonably withheld, whereupon such successor agent shall succeed to the rights, powers and duties of the Administrative Agent, and the term "Administrative Agent" shall mean such successor agent effective upon such appointment and approval, and the former Administrative Agent's rights, powers and duties as Administrative Agent shall be terminated, without any other or further act or deed on the part of such former Administrative Agent or any of the parties to this Agreement or any holders of the Loans. After any retiring Administrative Agent's resignation as Administrative Agent, the provisions of this Section 12 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement and the other Loan Documents. 12.10. Issuing Lender and Collateral Agent. Each Lender hereby acknowledges that the provisions of this Section 12 shall apply to the Issuing Lender, in its capacity as issuer of any Letter of Credit, and the Collateral Agent, in its capacity under the other Loan Documents, in the same manner as such provisions are expressly stated to apply to the Administrative Agent. SECTION 13. MISCELLANEOUS 13.1. Amendments and Waivers. (a) Neither this Agreement or any other Loan Document, nor any terms hereof or thereof, may be amended, supplemented, waived or modified except in accordance with the provisions of this subsection 13.1. The Majority Lenders may, or, with the written consent of the Majority Lenders, the Administrative Agent may, from time to time, (i) enter into with the applicable Loan Parties written amendments, supplements or modifications hereto and to the other Loan Documents for the purpose of adding any provisions to this Agreement or the other Loan Documents or changing in any manner the rights or obligations of the Lenders or of the Borrowers hereunder or thereunder or (ii) waive at the Company's request, on such terms and conditions as the Majority Lenders or the Administrative Agent, as the case may be, may specify in such instrument, any of the requirements of this Agreement or the other Loan Documents or any Default or Event of Default and its 79 consequences; provided, however, that no such waiver and no such amendment, supplement or modification shall: (A) reduce the amount or extend the scheduled date of maturity of any Loan, or reduce the stated rate of any interest or fee payable hereunder or extend the scheduled date of any payment thereof or increase the amount or extend the expiration date of any Lender's Commitments, in each case without the consent of each Lender affected thereby; (B) amend, supplement, modify or waive any provision of this subsection 13.1 or reduce the percentages specified in the definition of "Majority Lenders" or consent to the assignment or transfer by any Loan Party of any of its rights and obligations under this Agreement and the other Loan Documents, in each case without the consent of all the Lenders; (C) amend, supplement, modify or waive any provision of Section 12 or any other provision of this Agreement governing the rights or obligations of the Administrative Agent without the consent of the then Administrative Agent; (D) extend the expiring date on any Letter of Credit beyond the Revolving Credit Termination Date without the consent of each Lender; (E) release the guarantee contained in Section 10 or, except as permitted under subsection 9.6, the Guarantee and Collateral Agreement or all or a substantial portion of the Collateral under, and as defined in, the Security Documents or any Guarantor under, and as defined in, the Guarantee and Collateral Agreement, without the consent of each Lender; or (F) increase the Aggregate Revolving Credit Commitments, the Aggregate Term Loan Commitments or the Aggregate New Revolving Credit Commitments, in each case without the consent of all the Lenders. Any waiver and any amendment, supplement or modification pursuant to this subsection 13.1 shall apply to each of the Lenders and shall be binding upon the Borrowers, the applicable other Loan Parties, the Lenders, the Administrative Agent and all future holders of the Loans and the Reimbursement Obligations. In the case of any waiver, the Borrowers, the Lenders and the Administrative Agent shall be restored to their former positions and rights hereunder and under the other Loan Documents, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon. 13.2. Notices. All notices, requests and demands to or upon the respective parties hereto to be effective shall be in writing (including by facsimile transmission) and, unless otherwise expressly provided herein, shall be deemed to have been duly given or made (a) in the case of delivery by hand, when delivered, (b) in the case of delivery by mail, three days after being deposited in the mails, postage prepaid, or (c) in the case of delivery by facsimile transmission, when sent and receipt has been confirmed, addressed as follows in the case of the 80 Borrowers, the Issuing Lender and the Administrative Agent, and as set forth in Schedule I in the case of the other parties hereto, or to such other address as may be hereafter notified by the respective parties hereto: The Borrowers: c/o NBTY, Inc. 90 Orville Drive Bohemia, New York 11716-2510 Attention: Harvey Kamil Fax: (631) 567-7148 The Administrative Agent, the Issuing Lender or Swing Line Lender: The Chase Manhattan Bank Loan & Agency Services Group One Chase Manhattan Plaza, 8th Floor New York, New York 10081 Attention: Jesus Sang Fax: (212) 552-5650 With a copy to: The Chase Manhattan Bank 395 North Service Road, Suite 302 Melville, New York 11747 Attention: Barbara Bertschi Fax: (631) 755-5184 provided that any notice, request or demand to or upon the Administrative Agent, the Issuing Lender or the Lenders pursuant to subsection 2.2, 2.4, 2.5, 2.7, 2.9, 2.10, 2.13, 3.2, 4.2 or 5.2 shall not be effective until received. 13.3. No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of the Administrative Agent or any Lender, any right, remedy, power or privilege hereunder or under the other Loan Documents shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law. 13.4. Survival of Representations and Warranties. All representations and warranties made hereunder, in the other Loan Documents and in any document, certificate or statement delivered pursuant hereto or in connection herewith shall survive the execution and delivery of this Agreement and the making of the Loans hereunder until all obligations hereunder and under the other Loan Documents have been paid in full and the Commitments hereunder have been terminated. 13.5. Payment of Expenses and Taxes. The Borrower agrees (a) to pay or reimburse the Administrative Agent for all its reasonable out-of-pocket costs and expenses 81 incurred in connection with the development, preparation, syndication and execution of, and any amendment, supplement or modification to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the transactions contemplated hereby and thereby, including, without limitation, the reasonable fees and disbursements of counsel to the Administrative Agent, (b) to pay or reimburse each Lender and the Administrative Agent for all its costs and expenses incurred during the continuance of any Default or Event of Default in connection with the enforcement or preservation of any rights under this Agreement, the other Loan Documents and any such other documents, including, without limitation, the fees and disbursements of counsel to each Lender and of counsel to the Administrative Agent, (c) to pay, indemnify, and hold harmless each Lender and the Administrative Agent from, any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other taxes, if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Agreement, the other Loan Documents and any such other documents, and (d) to pay, indemnify, and hold harmless each Lender and the Administrative Agent from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to the execution, delivery, enforcement, performance and administration of this Agreement, the other Loan Documents and related documents or the use of the proceeds of the Loans, including, without limitation, any of the foregoing relating to the violation of, noncompliance with or liability under, any Environmental Law applicable to the operations of the Company, any of its Subsidiaries or any of the Properties (all the foregoing in this clause (d), collectively, the "indemnified liabilities"), provided, that the Company shall have no obligation hereunder to the Administrative Agent or any Lender with respect to indemnified liabilities solely arising from the gross negligence or willful misconduct of the Administrative Agent or any such Lender. The agreements in this subsection shall survive the termination of this Agreement and the repayment of the Loans and all other amounts payable hereunder. 13.6. Successors and Assigns; Participation and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Borrowers, the Lenders, the Administrative Agent and their respective successors and assigns, except that the Borrowers may not assign or transfer any of their rights or obligations under this Agreement without the prior written consent of each Lender. (b) Any Lender may, in the ordinary course of its commercial banking or lending business and in accordance with applicable law, at any time sell to one or more banks or other entities ("Participants") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such 82 Lender's rights and obligations under this Agreement and the other Loan Documents. No Participant shall have any right to vote on, consent to or approve any matter relating to this Agreement or any other Loan Document except for those specified in clauses (A), (B), (D) or (E) of the proviso to the second sentence of subsection 13.1. Each Borrower agrees that if amounts outstanding under this Agreement are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in subsection 13.7(a) as fully as if it were a Lender hereunder. Each Borrower also agrees that each Participant shall be entitled to the benefits of subsections 5.9, 5.10, 5.11 and 5.12 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it were a Lender; provided that, in the case of subsection 5.12, such Participant shall have complied with the requirements of said subsection and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such subsection than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. (c) Any Lender may, in the ordinary course of its commercial banking or lending business and in accordance with applicable law, at any time and from time to time assign to any Lender or any affiliate thereof or to an additional bank or financial institution (an "Assignee"), in the case of any assignment relating to Loans to such an additional bank or financial institution with the consent of the Company and the Administrative Agent (which consents in each case shall not be unreasonably withheld), all or any part of its rights and obligations under this Agreement and the other Loan Documents pursuant to an Assignment and Acceptance, substantially in the form of Exhibit E, executed by such Assignee, such assigning Lender (and, to the extent required, by the Company and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that, in the case of any partial assignment of its rights and obligations, the Assignee's Revolving Credit Commitment Percentage shall equal its Term Loan Percentage after giving effect to such assignment, and provided, further, in the case of any such assignment to an additional bank or financial institution, the sum of the aggregate principal amount of the Loans and the Letter of Credit Obligations and the aggregate amount of the Available Revolving Credit Commitment, Available Term Loan Commitment and Available New Revolving Credit Commitment being assigned and, if such assignment is of less than all of the rights and obligations of the assigning Lender, the sum of the aggregate principal amount of the Loans and the Letter of Credit Obligations and the aggregate amount of the Available Revolving Credit Commitment, Available Term Loan Commitment and Available New Revolving Credit Commitment remaining with the assigning Lender, are each not less than $5,000,000. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with Commitments as set forth therein, and (y) the assigning Lender thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this 83 Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this subsection and subsection 13.6(e), the consent of the Company shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Company, for any assignment which occurs at any time when any of the events described in clause (h) of Section 11 shall have occurred and be continuing. (d) The Administrative Agent shall, on behalf of the Company, maintain at the address of the Administrative Agent referred to in subsection 13.2 a copy of each Assignment and Acceptance delivered to it and a register (the "Register") for the recordation of the names and addresses of the Lenders and the Commitments of, and principal amounts of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of a Loan or other obligation hereunder or under any Note as the owner thereof for all purposes of this Agreement and the other Loan Documents, notwithstanding any notice to the contrary. Any assignment of any Loan or other obligation hereunder or under any Note shall be effective only upon appropriate entries with respect thereto being made in the Register. The Register shall be available for inspection by the Company or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of any assignment relating to Revolving Credit Loans, New Revolving Credit Loans and Term Loans to an Assignee that is not then a Lender or an affiliate thereof, by the Company and the Administrative Agent, to the extent required by subsection 13.6(c)) together with payment to the Administrative Agent by the assigning Lender or Assignee of a registration and processing fee of $3,500 (except that no such registration and processing fee shall be payable in the case of an Assignee which is already a Lender or is an Affiliate of a Lender), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Lenders and the Company. (f) The Company authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee, subject to the provisions of subsection 13.17, any and all financial information in such Lender's possession concerning the Company and its Affiliates which has been delivered to such Lender by or on behalf of the Company pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Company in connection with such Lender's credit evaluation of the Company and its Affiliates prior to becoming a party to this Agreement. (g) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this subsection concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. 84 (h) If, pursuant to this subsection 13.6, any interest in this Agreement or any Note or Letter of Credit is transferred to any Transferee which is not incorporated or organized under the laws of the United States of America or a state thereof, the assigning Lender shall cause such Transferee, concurrently with the effectiveness of such transfer, (i) to represent to the assigning Lender (for the benefit of the assigning Lender, the Administrative Agent and the Borrowers) that under applicable law and treaties no Non-Excluded Taxes will be required to be withheld by the Administrative Agent, any Borrower or the assigning Lender with respect to any payments to be made to such Transferee in respect of the Loans or Participating Interests, (ii) to furnish to the assigning Lender, the Administrative Agent and the Company, such forms and certificates required to be furnished pursuant to subsection 5.12(b) and (iii) to agree (for the benefit of the assigning Lender, the Administrative Agent and the Borrowers) to be bound by the provisions of subsections 5.12(b) and (c). 13.7. Adjustments; Set-off. (a) If any Lender (a "Benefitted Lender") shall at any time receive any payment of all or part of its Loans owing to it by any Borrower, or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in clause (h) of Section 11 or otherwise, except for payments pursuant to the operation of subsections 5.14(b) or 13.6), 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 by such Borrower, or interest thereon, such Benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of each such other Lender's Loan owing to it by such Borrower, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefitted 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 Benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. (b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to the Company, any such notice being expressly waived by the Company to the extent permitted by applicable law, upon any amount becoming due and payable by the Company hereunder (whether at the stated maturity, by acceleration or otherwise) to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of the Company. Each Lender agrees promptly to notify the Company and the Administrative Agent after any such set-off and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such set-off and application. 13.8. Counterparts. This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts (including by facsimile transmission), and all of said counterparts taken together shall be deemed to constitute one and the same instrument. A set of the copies of this Agreement signed by all the parties shall be delivered to the Company and the Administrative Agent. 85 13.9. Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. 13.10. Integration. This Agreement and the other Loan Documents represent the entire agreement of the Borrowers, the Administrative Agent and the Lenders with respect to the subject matter hereof and thereof, and there are no promises, undertakings, representations or warranties by the Borrowers, the Administrative Agent or any Lender relative to the subject matter hereof or thereof not expressly set forth or referred to herein or in the other Loan Documents. 13.11. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. 13.12. Submission to Jurisdiction; Waivers. (a) Each Borrower hereby irrevocably and unconditionally: (i) submits for itself and its property in any legal action or proceeding relating to this Agreement or any other Loan Document to which it is a party, or for recognition and enforcement of any judgment in respect thereof, to the non-exclusive general jurisdiction of the courts of the State of New York, the courts of the United States of America for the Southern District of New York, and appellate courts from any thereof; (ii) consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same; (iii) agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to such Borrower at its address set forth in subsection 13.2 or at such other address of which the Administrative Agent shall have been notified pursuant thereto; and (iv) agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right to sue in any other jurisdiction. (b) The Foreign Subsidiary Borrower hereby irrevocably appoints the Company as its agent for service of process in any proceeding referred to in subsection 13.12(a) and agrees that service of process in any such proceeding may be made by mailing or delivering a copy thereof to it care of Company at its address for notice set forth in subsection 13.2. 86 13.13. Acknowledgements. Each Borrower hereby acknowledges that: (a) it has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Loan Documents; (b) none of the Administrative Agent or any Lender has any fiduciary relationship with or duty to such Borrower arising out of or in connection with this Agreement or any of the other Loan Documents, and the relationship between the Administrative Agents and the Lenders, on the one hand, and the Borrowers, on the other hand, in connection herewith or therewith is solely that of debtor and creditor; and (c) no joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby among the Lenders or among the Borrowers and the Lenders. 13.14. WAIVERS OF JURY TRIAL. EACH OF THE BORROWERS, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN. 13.15. Power of Attorney. The Foreign Subsidiary Borrower hereby grants to Company an irrevocable power of attorney to act as its attorney- in-fact with regard to matters relating to this Agreement and each other Loan Document, including, without limitation, execution and delivery of any amendments, supplements, waivers or other modifications hereto or thereto, receipt of any notices hereunder or thereunder and receipt of service of process in connection herewith or therewith. The Foreign Subsidiary Borrower hereby explicitly acknowledges that the each of the Administrative Agent and each Lender has executed and delivered this Agreement and each other Loan Document to which it is a party, and has performed its obligations under this Agreement and each other Loan Document to which it is a party, in reliance upon the irrevocable grant of such power of attorney pursuant to this subsection. The power of attorney granted by the Foreign Subsidiary Borrower hereunder is coupled with an interest. 13.16. Judgment. (a) If for the purpose of obtaining judgment in any court it is necessary to convert a sum due hereunder in one currency into another currency, the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase the first currency with such other currency in the city in which it normally conducts its foreign exchange operation for the first currency on the Business Day preceding the day on which final judgment is given. (b) The obligation of each Borrower in respect of any sum due from it to any Lender hereunder shall, notwithstanding any judgment in a currency (the "Judgment Currency") other than that in which such sum is denominated in accordance with the applicable provisions of this Agreement (the "Agreement Currency"), be discharged only to the extent that on the Business Day following receipt by such Lender of any sum adjudged to be so due in the 87 Judgment Currency such Lender may in accordance with normal banking procedures purchase the Agreement Currency with the Judgment Currency; if the amount of Agreement Currency so purchased is less than the sum originally due to such Lender in the Agreement Currency, such Borrower agrees notwithstanding any such judgment to indemnify such Lender against such loss, and if the amount of the Agreement Currency so purchased exceeds the sum originally due to any Lender, such Lender agrees to remit to such Borrower such excess. The obligation of each Borrower under this subsection 13.16 shall survive the termination of this Agreement and repayment of the Loans and all other amounts payable hereunder. A certificate as to any amounts payable pursuant to this subsection 13.16, submitted by a Lender to a Borrower, shall be conclusive in the absence of manifest error. 13.17. Confidentiality. Each Lender agrees to take normal and reasonable precautions to maintain the confidentiality of information designated in writing as confidential and provided to it by the Company or any Subsidiary in connection with this Agreement; provided, however, that any Lender may disclose such information (a) at the request of any regulatory authority having supervisory jurisdiction over it or in connection with an examination of such Lender by any such authority, (b) pursuant to subpoena or other court process, (c) when required to do so in accordance with the provisions of any applicable law, (d) at the direction of any other Governmental Authority, (e) to such Lender's Affiliates, independent auditors and other professional advisors, (f) which has become generally available to the public, other than as a result of a disclosure by such Lender or agent of such Lender or a disclosure known to such Lender or agent of such Lender to have been made by any person or entity to which such Lender or agent has delivered such confidential information, (g) which becomes available to such Lender from a source other than the Company or any Subsidiary (provided that such source is not known to such Lender to be bound by a duty of confidentiality to the Company or any Subsidiary) or (h) to any Transferee or potential Transferee; provided that such Transferee agrees in writing to comply with the provisions of this subsection 13.17. 88 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written. NBTY, INC. By: /s/ Harvey Kamil -------------------------------- Harvey Kamil Executive Vice President HOLLAND & BARRETT HOLDINGS LIMITED By: /s/ Harvey Kamil -------------------------------- Harvey Kamil Executive Vice President THE CHASE MANHATTAN BANK, as Administrative Agent and as a Lender, and as Swing Line Lender, and as Issuing Lender By: /s/ Barbara G. Bertschi -------------------------------- Barbara G. Bertschi Vice President THE DIME SAVINGS BANK OF NEW YORK, FSB By: /s/ Brian Stone -------------------------------- Brian Stone Senior Vice President THE BANK OF NOVA SCOTIA By: /s/ Philip N. Adsetts -------------------------------- Philip N. Adsetts Director EUROPEAN AMERICAN BANK By: /s/ Stephen Kelly -------------------------------- Stephen Kelly Vice President THE BANK OF NEW YORK By: /s/ Gerard Waters -------------------------------- Gerard Waters Vice President FLEET NATIONAL BANK By: /s/ Alice Adelberg -------------------------------- Alice Adelberg Vice President MELLON BANK, N.A. By: /s/ Peter A Dorbas -------------------------------- Peter A. Dorbas Senior Vice President HSBC BANK USA By: /s/ Gary Sarro -------------------------------- Gary Sarro Vice President ISRAEL DISCOUNT BANK By: /s/ Alan Lefkowitz -------------------------------- Alan Lefkowitz First Vice President By: /s/ Gary Harkins -------------------------------- Gary Harkins Vice President