LETTER WAIVER
Dated as of August 14, 2003
To the banks, financial institutions
and other institutional lenders
(collectively, the "Lenders")
parties to the Credit Agreement
referred to below and to Bank of America,
as administrative agent (the "Administrative Agent") for the Lenders
Ladies and Gentlemen:
We refer to the Credit Agreement dated as of October 5, 2001, as amended by Amendment No. 1 thereto dated as of December 16, 2002 and Amendment No. 2 thereto dated as of April 3, 2003 (such Credit Agreement, as so amended, the "Credit Agreement") among the undersigned and you. Capitalized terms not otherwise defined in this Letter Waiver have the same meanings as specified in the Credit Agreement.
We hereby request that you waive, solely with respect to the French Sale (as defined below), the requirements of Section 5.02(e)(v)(D) of the Credit Agreement. As used in this Letter Waiver, the term "French Sale" means the sale, transfer or other disposition, in one transaction or series of related transactions, by the Company of those assets and properties constituting its generic pharmaceutical business conducted in France (the "Subject Property"). It is understood and agreed that all Net Cash Proceeds received by or on behalf of the Company in respect of the French Sale will be applied by the Company pursuant to Section 2.06(b) of the Credit Agreement within five Business Days of receipt to prepay an aggregate principal amount of the Advances equal to 100% of Net Cash Proceeds so received. In order to effect the French Sale, we also hereby request that you release the Subject Property from any liens and security interests created and evidenced by the Collateral Documents . In connection with this request, we hereby certify that no Default has occurred and that, except with respect to Section 5.02(e)(v)(D) of the Credit Agreement, which is the subject of this Letter Waiver, the sale of the Subject Property is in compliance with the Loan Documents.
We also hereby request that any and all interest rate Hedge Agreements permitted under Article V of the Credit Agreement that are entered into on and after the date hereof by and between any Loan Party and any Hedge Bank constitute "Secured Hedge Agreements" for all purposes of the Credit Agreement and the other Loan Documents.
We hereby agree that, upon the effectiveness of this Letter Waiver, the Swing Line Facility shall be reduced from $50,000,000 to $35,000,000.
This Letter Waiver shall become effective as of the date first above written when, and only when, the Administrative Agent shall have received counterparts of this Letter Waiver executed by us and the Required Lenders and the Swing Line Bank or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Letter Waiver, and the consent attached hereto executed by each Grantor. This Letter Waiver is subject to the provisions of Section 8.01 of the Credit Agreement.
The Credit Agreement, the Notes and each of the other Loan Documents, except to the extent of the waiver specifically provided above, 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. The execution, delivery and effectiveness of this Letter Waiver 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.
If you agree to the terms and provisions of this Letter Waiver, please evidence such agreement by executing and returning (i) one counterpart of this waiver by fax to Cissie Abraham, Shearman & Sterling LLP (telephone 212-848-8598, fax 646-848-8598)no later than noon on August 14, 2003 and (ii) two original counterparts of this waiver to Cissie Abraham, Shearman & Sterling LLP, 599 Lexington Avenue, New York, New York 10022, at your earliest convenience.
This Letter Waiver 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 one and the same agreement. Delivery of an executed counterpart of a signature page to this Letter Waiver by telecopier shall be effective as delivery of a manually executed counterpart of this Letter Waiver.
This Letter Waiver shall be governed by, and construed in accordance with, the laws of the State of New York.
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Very truly yours,
ALPHARMA INC.
By:/s/ Albert N. Marchio, II
Title: Vice President and Treasurer
Agreed as of the date first above written:
BANK OF AMERICA, N.A.,
as Administrative Agent, as Swing Line Bank and as Lender
By:/s/ Joseph L. Corah
Title: Principal
Agreed as of the date first above written:
BANK OF AMERICA, N.A.
By:/s/ Joseph L. Corah
Title: Principal | BNP PARIBAS
By:/s/ Richard Pace
Title: Director
By:/s/ Shayn P. March
Title: Vice President |
BNP PARIBAS, OSLO BRANCH
By:/s/ Jean-Claude Helle
Title: General Manager | CANADIAN IMPERIAL BANK OF COMMERCE
By:/s/ John F. Burke
Title: Authorized Signatory |
CITICORP USA, INC.
By:/s/ Allen Fisher
Title: Vice President | DEN NORSKE BANK ASA
By:/s/ Terje Turnes
Title: General Manager |
FLEET NATIONAL BANK
By:/s/ Virginia C. Stelzenthaler
Title: Managing Director | HSH NORDBANK COPENHAGEN BRANCH
By:/s/ Steffen E. Andersen
Title:
By:/s/ Finn Bergmann
Title: |
IKB CAPITAL CORPORATION
By:/s/ David Snyder
Title: President | NATIONAL CITY
By:/s/ Michael A. Moose
Title: Account Officer |
UNION BANK OF NORWAY
By:/s/ Sven Hove
Title: General Manager | |
AERIES FINANCE-II LTD.
By:/s/ Thomas H.B. Ewald
Title: Authorized Signatory | AIM FLOATING RATE FUND
By:/s/ Thomas H.B. Ewald
Title: Authorized Signatory |
AMARA 2 FINANCE, LTD.
By:/s/ Thomas H.B. Ewald
Title: Authorized Signatory | APEX (Trimaran) CDO I, LTD.
By:/s/ David M. Millison
Title: Managing Director |
AVALON CAPITAL LTD.
By:/s/ Thomas H.B. Ewald
Title: Authorized Signatory | AVALON CAPITAL LTD. 2
By:/s/ Thomas H.B. Ewald
Title: Authorized Signatory |
BLACK DIAMOND CLO 1996-1 LTD.
By:/s/ Alan Corkish
Title: Director | BLACK DIAMOND CLO 2000-1 LTD.
By:/s/ Alan Corkish
Title: Director |
BLACK DIAMOND INTERNATIONAL FUNDING, LTD
By:/s/ Alan Corkish
Title: Director | CHARTER VIEW PORTFOLIO
By:/s/ Thomas H.B. Ewald
Title: Authorized Signatory |
DENALI CAPITAL CLO I, LTD
By:/s/ John P. Thacker
Title: Chief Credit Officer | DENALI CAPITAL CLO II, LTD
By:/s/ John P. Thacker
Title: Chief Credit Officer |
DENALI CAPITAL CLO III, LTD
By:/s/ John P. Thacker
Title: Chief Credit Officer | DIVERSIFIED CREDIT PORTFOLIO LTD.
By:/s/ Thomas H.B. Ewald
Title: Authorized Signatory |
FLAGSHIP CLO 2001-1
By:/s/ Colleen Cunliffe
Title: Director | FLAGSHIP CLO II
By:/s/ Colleen Cunliffe
Title: Director |
INVESCO CBO 2000-1 LTD.
By:/s/ Thomas H.B. Ewald
Title: Authorized Signatory | SAGAMORE CLO LTD.
By:/s/ Thomas H.B. Ewald
Title: Authorized Signatory |
SEQUILS-LIBERTY, LTD.
By:/s/ Thomas H.B. Ewald
Title: Authorized Signatory | TRS I LLC
By:/s/ Alice L. Wagner
Title: Vice President |
VAN KAMPEN CLO I, LIMITED
By:/s/ Christina Jamieson
Title: Vice President | VAN KAMPEN CLO II, LIMITED
By:/s/ Christina Jamieson
Title: Vice President |
VAN KAMPEN SENIOR INCOME TRUST
By:/s/ Christina Jamieson
Title: Vice President | VAN KAMPEN SENIOR LOAN FUND
By:/s/ Christina Jamieson
Title: Vice President |
CONSENT
Dated as of August 14, 2003
Each of the undersigned, as grantors under the Collateral Documents to which each is a party and 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 Letter Waiver and hereby confirms and agrees that (a) notwithstanding the effectiveness of such Letter Waiver, 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 Letter Waiver, 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 modified by such Letter Waiver,and (b) each of the Collateral D ocuments to which such Grantor 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/ Robert F. Wrobel
Title: Secretary
ALPHARMA USPD INC.
By:/s/ Robert F. Wrobel
Title: Secretary
ALPHARMA U.S. INC.
By:/s/ Robert F. Wrobel
Title: Secretary
BARRE PARENT CORPORATION
By:/s/ Robert F. Wrobel
Title: Secretary
G.F. REILLY COMPANY
By:/s/ Robert F. Wrobel
Title: Secretary
PARMED PHARMACEUTICALS, INC.
By:/s/ Robert F. Wrobel
Title: Secretary
ALPHARMA EURO HOLDINGS INC.
By:/s/ Robert F. Wrobel
Title: Secretary
ALPHARMA (BERMUDA) INC.
By:/s/ Robert F. Wrobel
Title: Secretary
ALPHARMA USHP INC.
By:/s/ Robert F. Wrobel
Title: Secretary
ALPHARMA US PHARMACEUTICAL LLC
By:/s/ Robert F. Wrobel
Title: Secretary
ALPHARMA ANIMAL HEALTH COMPANY
By:/s/ Robert F. Wrobel
Title: Secretary
MIKJAN CORPORATION
By:/s/ Robert F. Wrobel
Title: Secretary
ALPHARMA NW INC.
By:/s/ Robert F. Wrobel
Title: Secretary
NMC LABORATORIES, INC.
By:/s/ Robert F. Wrobel
Title: Secretary
US ORAL PHARMACEUTICALS PTY LTD
By:/s/ Robert F. Wrobel
Title: Secretary
FAULDING HOLDINGS INC.
By:/s/ John W. LaRocca
Title: Assistant Secretary
FAULDING PHARMACEUTICALS INC.
By:/s/ John W. LaRocca
Title: Assistant Secretary
POINT HOLDINGS INC.
By:/s/ John W. LaRocca
Title: Assistant Secretary
PUREPAC PHARMACEUTICAL HOLDINGS INC.
By:/s/ Robert F. Wrobel
Title: Secretary
FAULDING LABORATORIES INC.
By:/s/ Robert F. Wrobel
Title: Secretary
PUREPAC PHARMACEUTICAL CO.
By:/s/ Robert F. Wrobel
Title: Secretary
ALPHARMA INVESTMENT INC.
By:/s/ Robert F. Wrobel
Title: Secretary
