AMENDMENT NO. 5 TO THE CREDIT AGREEMENT
CONFORMED COPY
AMENDMENT NO. 5 TO THE
Dated as of August 3, 2004
AMENDMENT NO. 5 TO THE CREDIT AGREEMENT among ALPHARMA INC., a Delaware corporation ("Holdings"), the banks, financial institutions and other lenders party hereto, and BANK OF AMERICA, as administrative agent and collateral agent (the "Administrative Agent"), as parties to the Credit Agreement referred to below.
PRELIMINARY STATEMENTS:
- Alpharma Operating Corporation, a Delaware corporation (the "Company"), Alpharma USPD Inc., a Maryland corporation (together with the Company and the Subsidiary Borrowers party thereto, the "Borrowers"), Holdings, the Lender Parties and the Administrative Agent have entered into a Credit Agreement dated as of October 5, 2001, as amended by Amendment No. 1 dated as of December 16, 2002, Amendment No. 2 dated as of April 3, 2003, Amendment No. 3 dated as of December 18, 2003 and Amendment No. 4 dated as of April 19, 2004 (as further amended, supplemented or otherwise modified from time to time, the "Credit Agreement"). Capitalized terms not otherwise defined in this Amendment have the same meanings as specified in the Credit Agreement.
- Holdings and the Required Lenders have agreed to amend the Credit Agreement as hereinafter set forth.
- Amendments to Credit Agreement
- The definition of "Consolidated EBITDA" in Article I is amended by inserting after clause "(o)" therein the following new clause to read as follows:
- The table in Section 5.04(a) is amended in full to read as follows:
- The table in Section 5.04(d) is amended in full to read as follows:
- Additional Agreement
- Fees
- Conditions of Effectiveness
- Counterparts of the Consent appended hereto (the "Consent"), executed by each of the Loan Parties (other than Holdings);
- Certified copies of (A) the resolutions of the Board of Directors of (1) Holdings approving this Amendment and the matters contemplated hereby and (2) each other Loan Party evidencing approval of the Consent and (B) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and all other matters contemplated hereby;
- A certificate signed by a duly authorized officer of Holdings stating that: (A) the representations and warranties contained in Section 5 hereof and in the Loan Documents are true and correct on and as of the date of such certificate as though made on and as of such date other than any such representations or warranties that, by their terms, refer to a date other than the date of such certificate, and (B) no event has occurred and is continuing that constitutes a Default.
- Representations and Warranties of Holdings
- Each Loan Party is duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation.
- The execution, delivery and performance by each Loan Party of this Amendment and the Consent, as applicable, to which it is a party, are within such Person's corporate or other powers, have been duly authorized by all necessary corporate or other action and do not (i) contravene such Person's Constitutive Documents, (ii) violate any Requirement of Law, (iii) conflict with or result in the breach of, or constitute a default under, any contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting any Loan Party, any of its Subsidiaries or any of their properties or (iv) except for the Liens created under the Collateral Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries.
- No Governmental Authorization, and no other authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or any other third party is required for the due execution, delivery or performance by any Loan Party of this Amendment or the Consent.
- This Amendment and the Consent have been duly executed and delivered by each Loan Party which is a party thereto. This Amendment and the Consent are legal, valid and binding obligations of each Loan Party which is a party thereto, enforceable against each such Loan Party in accordance with their respective terms.
- There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or, to the knowledge any Loan Party, threatened before any Governmental Authority or arbitrator that purports to affect the legality, validity or enforceability of this Amendment or the Consent, or the consummation of any of the transactions contemplated hereby.
- The execution, delivery and performance of this Amendment and the Consent do not adversely affect the Liens created under any of the Collateral Documents.
- Reference to and Effect on the Loan Documents
- The Credit Agreement, the Notes and each of the other Loan Documents, as specifically amended by this Amendment, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. Without limiting the generality of the foregoing, the Collateral Documents and all of the Collateral described therein do and shall continue to secure the payment of all Obligations of the Loan Parties under the Loan Documents, in each case as amended by this Amendment.
- The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents.
- Costs, Expenses
- Execution in Counterparts
- Governing Law
. The Credit Agreement is, effective as of the date hereof and subject to the satisfaction of the conditions precedent set forth in Section 4, hereby amended as follows:
"plus (p) all cash restructuring charges up to a maximum aggregate amount of $30,000,000 incurred from July 1, 2004 through December 31, 2004 in connection with initiatives designed primarily to reduce selling, general and administrative expenses in worldwide operations".
Measurement Period |
Ratio |
December 31, 2001 to September 30, 2002 |
5.25:1.0 |
Measurement Period |
Ratio |
December 31, 2001 to September 30, 2002 |
2.50:1.0 |
. The undersigned Lenders hereby acknowledge that the Company redeemed $24,455,000 of the October Convertible Notes on June 11, 2004 using, in part, proceeds of Revolving Credit Borrowings, and by this reference do hereby confirm that such redemption is approved in all respects.
. On the date hereof, Holdings shall pay to the Administrative Agent, for the benefit of each Lender that executes this Amendment by no later than 1:00 PM (New York time) on Tuesday, August 3, 2004, an upfront fee equal to 0.10% of the aggregate Commitments of each such Lender under the Credit Agreement as of the date hereof.
. This Amendment shall become effective as of the date first above written (or, in the case of Section 2, as of June 11, 2004) when, and only when, the Administrative Agent shall have received counterparts of this Amendment executed by Holdings and the Required Lenders or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment; and Sections 1 and 2 of this Amendment shall become effective as of the date hereof (or, in the case of Section 2, as of June 11, 2004) when and only when the Administrative Agent shall have received (a) the fees specified in Section 3 hereof and the payment of all accrued fees and expenses of the Administrative Agent (including the reasonable accrued fees and expenses of counsel to the Administrative Agent invoiced on or prior to the date hereof) and (b) all of the following documents, each such document dated the date of receipt thereof by the Administrative Agent (unless otherwise specified), in form and substance satisfactory to the Administrative Agent:
. Holdings hereby represents and warrants as follows:
. (a) On and after the effectiveness of this Amendment, each reference in the Credit Agreement to "this Agreement", "hereunder", "hereof" or words of like import referring to the Credit Agreement, and each reference in the Notes and each of the other Loan Documents to "the Credit Agreement", "thereunder", "thereof" or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement, as amended by this Amendment.
. The Borrower agrees to pay on demand all costs and expenses of the Administrative Agent in connection with the preparation, execution, delivery and administration, modification and amendment of this Amendment and the other instruments and documents to be delivered hereunder (including, without limitation, the reasonable fees and expenses of counsel for the Administrative Agent) in accordance with the terms of Section 8.04 of the Credit Agreement.
. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment by telecopier shall be effective as delivery of a manually executed counterpart of this Amendment.
. This Amendment shall be governed by, and construed in accordance with, the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written.
By: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President, Finance & Chief Financial Officer
BANK OF AMERICA, N.A.,
as Administrative Agent
By: Xxxxx Xxxxxx
Title: Principal
BANK OF AMERICA, N.A.,
as Collateral Agent and Lender
By: Xxxxxx X. Xxxxx
Title: Principal
Agreed as of the date first above written:
AIM FLOATING RATE FUND |
APEX (TRIMARAN) CDO I, LTD. |
ARCHIMEDES FUNDING III, LTD. |
ARCHIMEDES FUNDING IV (Cayman), LTD. |
ATHENA CDO, LIMITED |
AVALON CAPITAL LTD. |
AVALON CAPITAL LTD. 2 |
BANK OF MONTREAL |
BEAR XXXXXXX INVESTMENT PRODUCTS INC. |
BLACK DIAMOND CLO 1998-1 LTD. |
BLACK DIAMOND CLO 2000-1 LTD. |
BNP PARIBAS OSLO BRANCH |
BRYN MAWR CLO, LTD. |
CALLIDUS DEBT PARTNERS CLO FUND II, LTD. |
CANADIAN IMPERIAL BANK OF COMMERCE |
CAPTIVA III FINANCE LTD. |
XXXXXXX XX PARTNERS II LTD |
XXXXXXX XX PARTNERS III LTD |
XXXXXXX XX PARTNERS IV LTD |
XXXXXXX XX PARTNERS, LP |
CARLYLE LOAN OPPORTUNITY FUND |
CENTURION CDO II, LTD. |
CENTURION CDO VI, LTD. |
CENTURION CDO VII, LTD. |
CHAMPLAIN CLO LTD. |
CHARTER VIEW PORTFOLIO |
CITICORP USA, INC. |
CITIGROUP INVESTMENTS CORPORATE LOAN FUND INC. TRAVELERS ASSET MANAGEMENT INTERNATIONAL COMPANY LLC |
CLYDESDALE CLO 2001-1, LTD. |
CLYDESDALE CLO 2003, LTD. |
COLUMBUS LOAN FUNDING, LTD. TRAVELERS ASSET MANAGEMENT INTERNATIONAL COMPANY LLC |
DELANO COMPANY |
DNB NOR BANK ASA (formerly known as Den Norske Bank ASA) |
DENALI CAPITAL CLO I LTD. |
DENALI CAPITAL CLO II LTD. |
DENALI CAPITAL CLO III LTD. |
DIVERSIFIED CREDIT PORTFOLIO LTD |
EMERALD ORCHARD LIMITED |
ENDURANCE CLO I, LTD. |
FIDELITY ADVISOR SERIES II: FIDELITY ADVISOR FLOATING RATE HIGH INCOME FUND |
FLAGSHIP CLO 2001-1 |
FLAGSHIP CLO II |
FOREST CREEK CLO, LTD |
GALAXY CLO 1999-1 LTD |
HIGHLAND LOAN FUNDING V, LTD. |
HSH NORDBANK AG |
INDOSUEZ CAPITAL FUNDING IIA, LIMITED |
ING-ORYX CLO, LTD. |
INVESCO CBO 2000-1 LTD. |
JUPITER LOAN FUNDING LLC |
KATONAH I, LTD. |
KATONAH II, LTD. |
KATONAH III, LTD. |
KATONAH IV, LTD. |
KZH CYPRESSTREE-1 LLC |
KZH SOLEIL LLC |
KZH SOLEIL-2 LLC |
KZH STERLING LLC |
LOAN FUNDING IV, LLC |
LOAN FUNDING VII, LLC |
LONG GROVE CLO, LIMITED |
ML CLO XII PILGRIM AMERICA (CAYMAN) LTD. |
MOUNTAIN CAPITAL CLO I LTD. |
MOUNTAIN CAPITAL CLO II LTD. |
MUIRFIELD TRADING LLC |
NATIONAL CITY BANK |
XXXXXX CLO, LTD. |
NOMURA BOND & LOAN FUND |
ORIX FUNDING LLC |
PAMCO CAYMAN, LTD |
PILGRIM CLO 1999-1 LTD |
PROTECTIVE LIFE INSURANCE COMPANY |
ROSEMONT CLO, LTD |
ROYALTON COMPANY |
SAGAMORE CLO LTD. |
SARATOGA CLO I, LIMITED |
SAWGRASS TRADING LLC |
SEABOARD CLO 2000 LTD |
SEQUILS-CENTURION V. LTD. |
SEQUILS CUMBERLAND I, LTD. |
SEQUILS ING-I (HBDGM), LTD. |
SEQUILS LIBERTY, LTD |
SMOKY RIVER CDO, L.P. |
SPIRIT IV LOAN TRUST 2003-B |
THE SUMITOMO TRUST & BANKING CO., LTD., NEW YORK BRANCH |
SUNAMERICA LIFE INSURANCE COMPANY |
THE TRAVELERS INSURANCE COMPANY |
TRS 1 LLC |
WINGED FOOT FUNDING TRUST |
CONSENT
Dated as of August 3, 2004
Each of the undersigned, as Guarantors under, as applicable, the (i) Parent Guaranty dated as of October 5, 2001, (ii) Subsidiary Guaranty dated as of October 5, 2001 or (iii) Subsidiary Guaranty dated as of December 26, 2001, in each case in favor of the Secured Parties referred to therein (collectively, the "Guaranty"), hereby consents to the foregoing Amendment and hereby confirms and agrees that (a) notwithstanding the effectiveness of such Amendment, the Guaranty is, and shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects, except that, on and after the effectiveness of such Amendment, each reference in the Guaranty to the "Credit Agreement", "thereunder", "thereof" or words of like import shall mean and be a reference to the Credit Agreement, as amended by such Amendment, and (b) each of the Collateral Documents to which such Guarantor is a party and all of the Collateral described therein do, and shall continue to, secure the payment of all of the Secured Obligations (in each case, as defined therein).
ALPHARMA OPERATING CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
Title: Secretary
ALPHARMA USPD INC.
By: /s/ Xxxxxx X. Xxxxxx
Title: Secretary
ALPHARMA U.S. INC.
By: /s/ Xxxxxx X. Xxxxxx
Title: Secretary
BARRE PARENT CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
Title: Secretary
X.X. XXXXXX COMPANY
By: /s/ Xxxxxx X. Xxxxxx
Title: Secretary
PARMED PHARMACEUTICALS, INC.
By: /s/ Xxxxxx X. Xxxxxx
Title: Secretary
ALPHARMA EURO HOLDINGS INC.
By: /s/ Xxxxxx X. Xxxxxx
Title: Secretary
ALPHARMA (BERMUDA) INC.
By: /s/ Xxxxxx X. Xxxxxx
Title: Secretary
ALPHARMA USHP INC.
By: /s/ Xxxxxx X. Xxxxxx
Title: Secretary
ALPHARMA US PHARMACEUTICAL LLC
By: /s/ Xxxxxx X. Xxxxxx
Title: Secretary
ALPHARMA ANIMAL HEALTH COMPANY
By: /s/ Xxxxxx X. Xxxxxx
Title: Secretary
MIKJAN CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
Title: Secretary
ALPHARMA NW INC.
By: /s/ Xxxxxx X. Xxxxxx
Title: Secretary
NMC LABORATORIES, INC.
By: /s/ Xxxxxx X. Xxxxxx
Title: Secretary
US ORAL PHARMACEUTICALS PTY LTD
By: /s/ Xxxxxx X. Xxxxxx
Title: Secretary
ALPHARMA HOLDINGS INC.
By: /s/ Xxxxxx X. Xxxxxx
Title: Secretary
ALPHARMA PHARMACEUTICALS INC.
By: /s/ Xxxxxx X. Xxxxxx
Title: Secretary
POINT HOLDINGS INC.
By: /s/ Xxxx X. XxXxxxx
Title: Secretary
PUREPAC PHARMACEUTICAL HOLDINGS INC.
By: /s/ Xxxxxx X. Xxxxxx
Title: Secretary
ALPHARMA BRANDED PRODUCTS
DIVISION INC.
By: /s/ Xxxxxx X. Xxxxxx
Title: Secretary
PUREPAC PHARMACEUTICAL CO.
By: /s/ Xxxx X. XxXxxxx
Title: Secretary
ALPHARMA INVESTMENT INC.
By: /s/ Xxxxxx X. Xxxxxx
Title: Secretary