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FORM OF
CONSENT, AMENDMENT NO. 3 TO CREDIT AGREEMENT AND AMENDMENT NO. 4
TO PARENT GUARANTY
This Consent and Amendment Agreement (the "Agreement") is
made as of this 2nd day of May 2000 by and among Union Bank of
Norway, as Agent (the "Agent"), Union Bank of Norway, First Union
National Bank, Den norske Bank ASA, Banque Nationale de Paris
Oslo Branch, Landesbank Schleswig-Holstein Girozentrale
Copenhagen Branch, and Summit Bank, as Banks (collectively the
"UBN Banks"), Summit Bank, as Working Capital Agent and
Documentation Agent (together, the "Working Capital Agent"),
Alpharma U.S. Inc. ("Borrower") and Alpharma Inc. ("Parent
Guarantor").
W I T NE S S E TH:
WHEREAS, the Borrower, the UBN Banks, the Agent and the
Working Capital Agent are parties to that certain Credit
Agreement dated as of January 20, 1999, as amended by an
Amendment No. 1 dated as of April 16, 1999 and an Amendment No. 2
dated as of April 19, 2000 (the "UBN Credit Agreement") pursuant
to which the UBN Banks made available to the Borrower loan
facilities in the aggregate original principal amount of
$300,000,000;
WHEREAS, the Parent Guarantor has executed and delivered a
Parent Guaranty dated as of January 20, 1999, as amended by an
Amendment No. 1 dated as of April 16, 1999, an Amendment No.2
dated as of September 9, 1999 and an Amendment No. 3 dated as of
April 19, 2000 (the "Parent Guaranty"), pursuant to which it
guaranteed the obligations of the Borrower under the UBN Credit
Agreement and the other Loan Documents;
WHEREAS, the Borrower, the Parent Guarantor, the UBN Banks,
the Agent and the Working Capital Agent have agreed to amend the
UBN Credit Agreement on the terms and conditions set forth herein
in order to allow the Borrower (i) to enter into that certain
Credit Agreement dated as of May 2, 2000 among the Borrower, the
Guarantors party thereto, First Union National Bank, as
Administrative Agent, Summit Bank, as Syndication Agent,
Den norske Bank ASA, as Documentation Agent, Union Bank of Norway
and First Union Securities, Inc., as Co-Arrangers, and the Banks
party thereto (the "FUNB Banks") (such Credit Agreement referred
to herein as the "FUNB Credit Agreement") and (ii) to grant to
and cause certain of its domestic Subsidiaries to pledge all of
their assets as security to the Collateral Agent (as defined in
the FUNB Credit Agreement) for the benefit of the FUNB Banks and
the UBN Banks; and
WHEREAS, the Borrower, the Parent Guarantor and the Banks
have agreed to amend the Parent Guaranty on the terms and
conditions set forth herein in order to modify the priority of
payment of Net Cash Proceeds from asset sales and certain other
changes.
NOW THEREFORE, in consideration of the premises and the
covenants and agreements contained herein, the parties hereto
agree as follows (unless the context clearly provides otherwise,
capitalized terms used herein and not otherwise defined herein
shall have the respective meanings ascribed thereto in the UBN
Credit Agreement):
1. AMENDMENTS TO THE UBN CREDIT AGREEMENT
1.1 Section 1.1 of the Credit Agreement is hereby amended by
amending and restating the defined term "Credit Support Document"
to read in its entirety as follows:
"Credit Support Document" means the
Parent Guaranty, the Subsidiary Guaranties,
the Pledge Agreements, the Assignment of
Intercompany Note, the Acquisition Related
Guaranties, the Collateral Agency and Sharing
Agreement, the Shared Security Documents (as
defined in the Collateral Agency and Sharing
Agreement) and any other document that
provides for the guarantee of the obligations
of the Loan Parties under the Loan Documents
or that creates, or purports to create, a
Lien in favor of, or for the benefit of, the
Agent, the Banks or the Collateral Agent.
1.2 Section 1.1 of the Credit Agreement is hereby further
amended by inserting the following new defined terms in correct
alphabetical order:
"Alpine Acquisition" means the
acquisition by the Parent Guarantor and
Alpharma (Luxembourg) Sarl of certain of the
assets of the medicated feed additive
business of Hoffman-LaRoche.
"Collateral Agency and Sharing
Agreement" means the Collateral Agency and
Sharing Agreement dated as of May 2, 2000
among the Borrower, the Parent Guarantor, the
Subsidiary Guarantors (as defined in the FUNB
Credit Agreement), the banks party to the
FUNB Credit Agreement, the Administrative
Agent (as defined in the FUNB Credit
Agreement), the Banks, the Agent and the
Collateral Agent (as the same may be amended
or modified from time to time).
"Collateral Agent" means First Union
National Bank, in its capacity as Collateral
Agent under the Collateral Agency and Sharing
Agreement, or any successor in such capacity.
"FUNB Credit Agreement" means that
certain Credit Agreement dated as of May 2,
2000 among the Borrower, the Guarantors party
thereto, First Union National Bank, as
administrative agent, Summit Bank, as
syndication agent, Den norske Bank ASA, as
documentation agent, and Union Bank of Norway
and First Union Securities, Inc., as co-
arrangers (as the same may be amended or
modified from time to time).
1.3 Section 8.7 is hereby amended and restated in its entirety
as follows:
8.7 Application of Proceeds. The
Borrower shall use the proceeds of the loans
(i) to refinance Indebtedness existing at the
date hereof of the Borrower under the Summit
Bank Facility, the Prior UBN Facility and the
Vancomycin Facility Agreement, (ii) general
corporate purposes, and (iii) to pay a
portion of the purchase price and related
fees and expenses in connection with the
Alpine Acquisition (as defined in the FUNB
Credit Agreement (as hereinafter defined).
1.4 The following new Article XIII entitled "Security" is hereby
inserted immediately following Article XII:
13.1 Granting of Security.
In the event that (a) a Security
Event (as defined under the FUNB Credit
Agreement) shall occur and (b) any Loans
or any other amounts shall remain unpaid
or any Bank shall have any Commitment
hereunder, the liens and security
interests granted to the Collateral
Agent in accordance with Article III of
the FUNB Credit Agreement shall also
secure the Loans and the other
liabilities of the Loan Parties under
the Loan Documents so that the liens and
the security interests so granted shall
at all times secure all obligations
under the Loan Documents and under the
FUNB Credit Agreement (and related loan
documents) equally and ratably. Article
III of the FUNB Credit Agreement
together with the defined terms used in
such Article III are collectively
referred to herein as the "Security
Grant"). The Security Grant is
incorporated herein by reference,
mutatis mutandis, as if set forth at
length herein for the benefit of the
Banks.
2. AMENDMENTS TO THE PARENT GUARANTY:
2.1 Section 7(a) of the Parent Guaranty is hereby amended by
inserting the following immediately at the end thereof as new sub-
clause (xi):
(xi) Liens granted and/or created
pursuant to the Collateral Documents (as
such term is defined in the FUNB Credit
Agreement).
2.2 Section 7(c) of the Parent Guaranty is hereby amended to add
a new sentence at the end of such Section 7(c) as follows:
Notwithstanding anything to the
contrary contained in this Section 7(c),
or any other provision hereof, any Net
Cash Proceeds of any disposition of
assets covered by this Section 7(c)
shall first be applied towards
prepayment of any loans and interest
accrued thereon then outstanding under
the FUNB Credit Agreement, and then
shall be applied in the manner set forth
in Section 7(c) of the Parent Guaranty.
2.3 Section 7(f) of the Parent Guaranty is hereby amended by
inserting immediately after subsection (I) thereof the following
as new subsection (J):
(J) Indebtedness incurred under
the FUNB Credit Agreement, up to a
maximum principal amount of
$225,000,000.
3. CONSENT
3.1 Each of the UBN Banks hereby consents to and authorizes the
Agent to enter into and execute on behalf of each of the UBN
Banks that certain Collateral Agency and Sharing Agreement in
substantially the form of Exhibit A, attached hereto and made a
party hereof, with such changes as the Agent, in its reasonable
discretion, deems necessary to effectuate the purpose of such
agreement and each of the UBN Banks agrees to be bound by such
Collateral Agency and Sharing Agreement.
3.2 The Borrower hereby agrees with the Banks, the Agent and the
Working Capital Agent that if at any time there is an increase in
the interest rate applicable to the loans made under the FUNB
Credit Agreement, then the interest rate applicable to the Loans
made under the UBN Credit Agreement shall also increase by an
equal amount, such increase to take effect concurrently with any
such increase under the FUNB Credit Agreement and without the
requirement of any further action on the part of the Borrower,
the Banks, the Agent or the Working Capital Agent (including,
without limitation, the giving of any notice); provided, however,
that promptly upon any such increase taking effect (and in any
event no later than 10 days thereafter), the Borrower agrees to
execute and deliver such agreements, instruments and other
documents as the Agent may reasonably request in order to
document such increased interest rate.
4. REPRESENTATIONS AND WARRANTIES
4.1 Each of the Borrower and the Parent Guarantor represents and
warrants as follows:
(a) Due Authorization. It has the power, and has taken all
necessary action to authorize it, to execute and deliver this
Amendment and to perform this Amendment and the UBN Credit
Agreement or the Parent Guaranty, as the case may be, as amended
by this Amendment in accordance with their respective terms. It
has duly executed and delivered this Amendment by all necessary
action, and this Amendment and the UBN Credit Agreement or the
Parent Guaranty, as the case may be, as amended by this Amendment
are its legal, valid and binding obligations enforceable in
accordance with their respective terms under all Applicable Law,
subject, as to enforcement of remedies, to any applicable
bankruptcy, insolvency or other laws affecting the enforcement of
creditors' rights generally.
(b) Compliance with Law, etc. Its execution and delivery of this
Amendment and the performance of this Amendment and the UBN
Credit Agreement or the Parent Guaranty, as the case may be, as
amended by this Amendment in accordance with their respective
terms do not and will not (i) violate any provision of any
applicable laws, orders, rules or regulations presently in effect
or (ii) conflict with, result in a breach of or constitute a
default under its organizational documents or any indenture,
agreement or instrument to which it is a party or by which it or
its properties may be bound.
(c) Governmental Regulation. It is not required to obtain any
governmental authorization, consents, orders or approvals in
connection with the execution and delivery of this Amendment or
the performance of the transactions contemplated by each of this
Amendment and the UBN Credit Agreement or the Parent Guaranty, as
the case may be, as amended by this Amendment.
(d) Consents. All consents and approvals necessary for the
making and performance of this Amendment and the transactions
contemplated hereby have been obtained and the same are in full
force and effect.
(e) Validity. There are no proceedings or investigations
pending or, to the best of its knowledge, threatened against it
before any court, regulatory body, administrative agency or other
tribunal or governmental instrumentality (i) asserting the
invalidity of the UBN Credit Agreement or the Parent Guaranty, as
the case may be, as amended by this Amendment, (ii) seeking to
prevent the consummation of any of the transactions contemplated
by the UBN Credit Agreement or the Parent Guaranty, as the case
may be, as amended by this Amendment, (iii) seeking any
determination or ruling that, in its reasonable judgment, would
materially and adversely affect its performance of its
obligations under this Amendment and the UBN Credit Agreement or
the Parent Guaranty, as the case may be, as amended by this
Amendment and (iv) seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of
the UBN Credit Agreement or the Parent Guaranty, as the case may
be, as so amended.
(f) Representations; No Defaults. The representations and
warranties contained in Article VII of the UBN Credit Agreement
and in Section 5 of the Parent Guaranty are true and correct, and
no Default or Event of Default has occurred and is continuing.
5. MISCELLANEOUS
5.1 Governing Law. This Amendment and the rights and
obligations of the parties hereunder shall be governed by, and
construed in accordance with, the laws of the State of New York,
United States of America.
5.2 WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE PARENT
GUARANTOR, THE BANKS, THE AGENT AND THE WORKING CAPITAL AGENT
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
5.3 Counterparts, Telecopied Signatures. This Amendment may be
executed in any number of counterparts, all of which taken
together shall constitute one and the same instrument. Each of
the parties hereto acknowledges and agrees that telecopy
transmission to the Agent of signature pages hereof purporting to
be signed on behalf of such party shall constitute effective and
binding execution and delivery hereof by such party.
5.4 Severability. Any provision of this Amendment that is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating or affecting the validity
or enforceability of such provision in any other jurisdiction.
5.5 Loan Document. The parties hereto acknowledge that this
Amendment and the Collateral Documents (as such term is defined
in the FUNB Credit Agreement) shall each be a "Loan Document" as
such term is defined in the UBN Credit Agreement and the Parent
Guaranty.
[Signature Page 1 of 2 to Consent, Amendment No. 3 to Credit
Agreement
and Amendment No. 4 to Parent Guaranty]
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their duly authorized officers all as
of the date and year first above written.
ALPHARMA U.S. INC.
By: __________________________
Name:
Title:
ALPHARMA INC.
By: __________________________
Name:
Title:
UNION BANK OF NORWAY, as Agent
By: ___________________________
Name:
Title:
UNION BANK OF NORWAY
By: ___________________________
Name:
Title:
DEN NORSKE BANK ASA
By :___________________________
Name:
Title:
[Signature Page 2 of 2 to Consent, Amendment No. 3 to Credit
Agreement
and Amendment No. 4 to Parent Guaranty]
FIRST UNION NATIONAL BANK
By___________________________
Name:
Title:
SUMMIT BANK, as Working Capital
Agent
By: __________________________
Name:
Title:
SUMMIT BANK
By___________________________
Name:
Title:
BANQUE NATIONALE DE PARIS OSLO
BRANCH
By___________________________
Name:
Title:
LANDESBANK SCHLESWIG-HOLSTEIN
GIROZENTRALE
COPENHAGEN BRANCH
By___________________________
Name:
Title:
ACKNOWLEDGMENT AND CONSENT OF LOAN PARTIES
Each of the undersigned acknowledges the foregoing Amendment and
agrees that its obligations under each Loan Document to which it
is a party is and shall remain unimpaired and in full force and
effect.
ALPHARMA INC.
By: __________________________
Name:
Title:
ALPHARMA USPD INC.
By: __________________________
Name:
Title:
ALPHARMA INTERNATIONAL HOLDINGS INC.
(formerly known as Alpharma U.K. Holding Inc.)
By: __________________________
Name:
Title: