19026855 v6
EXECUTION COPY
AMENDMENT NO. 4 TO CREDIT AGREEMENT
AMENDMENT NO. 5 TO PARENT GUARANTY
AMENDMENT dated as of June 29, 2000 among ALPHARMA U.S.
INC., a Delaware corporation (the "Borrower"), ALPHARMA INC., a
Delaware corporation (the "Parent Guarantor"), the BANKS AND
FINANCIAL INSTITUTIONS (the "Banks") party from time to time to
the Credit Agreement (as defined below), BANK OF AMERICA, N.A.,
as a Bank, UNION BANK OF NORWAY, as agent (the "Agent"), and
SUMMIT BANK, as working capital agent (the "Working Capital
Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, the Banks, the Agent, the Working
Capital Agent, Union Bank of Norway, as arranger, and Den norske
Bank AS, as co-arranger, 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, an Amendment No. 2
dated as of April 19, 2000 and an Amendment No. 3 dated as of May
2, 2000 (as so amended, the "Credit Agreement") pursuant to which
the Banks made available to the Borrower loan facilities in the
aggregate original principal amount of $300,000,000;
WHEREAS, the Parent Guarantor has guaranteed the obligations
of the Borrower under the Credit Agreement pursuant to a 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, an Amendment No. 3 dated as of April 10, 2000
and an Amendment No. 4 dated as of May 2, 2000 (as so amended,
the "Guaranty");
WHEREAS, the Borrower entered into a $225,000,000 line of
credit bridge facility by and among the Borrower, the banks 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, dated as of May 2, 2000, (the
"FUNB Credit Agreement") in connection with the Alpine
Acquisition (as defined in the FUNB Credit Agreement);
WHEREAS, the Borrower issued a $30,000,000 note due on
December 31, 2000 to Roche Vitamins Inc. in connection with the
Alpine Acquisition (the "Roche Note");
WHEREAS, in connection with the Alpine Acquisition, certain
non-U.S. inventory having an aggregate cost of up to $15,000,000
will be acquired by the Borrower from Roche Vitamins Inc., (the
"Future Roche Acquisitions");
WHEREAS, the Borrower and the Banks have agreed to amend the
Credit Agreement and the Guaranty on the terms and conditions set
forth herein in order to increase the amount of the Commitments
(as defined in the Credit Agreement) by an additional aggregate
amount of $100,000,000, and to use such increased Commitments to
make loans the proceeds of which shall be applied in accordance
with the terms of the Credit Agreement, as amended hereby;
NOW, THEREFORE, in consideration of the premises and the
covenants and agreements contained herein, the parties hereto
agree as follows:
1 DEFINITIONS
1.1 Definitions. Capitalized terms used herein and not
otherwise defined herein shall have the respective meanings set
forth in the Credit Agreement.
1.2 Additional Defined Terms. As used in this Amendment, the
following terms shall have the following meanings:
"Additional Consolidation Date" means the first day
immediately following the making of the Additional Term
Loan on which the Interest Period for Term Loans (other
than the Additional Term Loan) expires.
"Additional Revolving Credit Commitment" means, as to
any Bank, the excess of (x) the amount of such Bank's
Revolving Credit Commitment immediately after giving
effect to this Amendment over (y) the amount of such
Bank's Revolving Credit Commitment immediately prior to
giving effect to this Amendment. For purposes hereof,
the Revolving Credit Commitment of Bank of America,
N.A. immediately prior to giving effect to this
Amendment shall be deemed to be zero (0).
"Additional Term Loan Borrowing" means a borrowing by
the Borrower consisting of Additional Term Loans made
on the same day by the Banks ratably according to their
respective Additional Term Loan Commitments.
"Additional Term Loan Commitment Termination Date"
means August 7, 2000.
2 AMENDMENTS TO THE CREDIT AGREEMENT
2.1 The Credit Agreement is hereby amended as follows:
(a) Section 1.1 of the Credit Agreement is amended by adding the
following defined terms in alphabetical order:
"Additional Term Loan" means a Loan made to the
Borrower pursuant to Section 4.2 of Amendment No.
4 to the Credit Agreement.
"Additional Term Loan Borrowing" means a borrowing
by the Borrower consisting of Additional Term
Loans made on the same day by the Banks ratably
according to their respective Additional Term Loan
Commitments.
"Additional Term Loan Commitment" means as to any
Bank, the amount set forth under the heading
"Additional Term Loan Commitment" opposite such
Bank's name on Schedule II.
"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.
"Amendment No. 4 to Credit Agreement" means the
Amendment No. 4 to Credit Agreement and Amendment
No. 5 to Guaranty dated as of June 29, 2000 among
the Borrower, the Parent Guarantor, the Banks,
Bank of America, N.A, the Agent and the Working
Capital Agent.
"Future Roche Acquisitions" means certain non-U.S.
inventory having an aggregate cost of up to
$15,000,000 which is to be acquired by the
Borrower from Roche Vitamins Inc. in connection
with the Alpine Acquisition.
"Roche Note" means the $30,000,000 note due on
December 31, 2000 issued by the Borrower to Roche
Vitamins Inc. in connection with the Alpine
Acquisition.
(b) Section 1.1 of the Credit Agreement is further amended by
amending and restating the definitions of "Banks" and"
Consolidation" to read in their entirety, respectively, as
follows:
"Banks" means the lenders listed on Schedule I
hereto, and such other lenders as may become
parties hereto from time to time pursuant to
Section 12.7.
"Consolidation" means any adjustment of Interest
Periods in respect of Term loans in accordance
with Section 2.4(a) of this Agreement or in
respect of Additional Term Loans in accordance
with Section 4.4 of Amendment No. 4 to the Credit
Agreement.
(c) Section 1.1 of the Credit Agreement is further amended by
amending and restating clause (D) of the definition of "Interest
Period" to read in its entirety as follows:
(D) there shall be outstanding at any one time in
the aggregate no more than (I) two (2) Interest
Periods prior to the Consolidation Date and one
(1) Interest Period thereafter, with respect to
Term Loans, (II) six (6) Interest Periods (no more
than four of which may have a duration of one
month) with respect to Revolving Loans and (III)
ten (10) Interest Periods with respect to
Eurodollar Working Capital Loans.
(d) Each reference in the Credit Agreement and in the Loan
Documents to "Loan" and to "Term Loan" shall include the
Additional Term Loans, except with respect to Sections 2.1, 2.2,
2.3, 2.4, 5.5 and 8.7 of the Credit Agreement.
(e) Each reference in the Credit Agreement to Term Notes shall
include the Additional Term Notes.
(f) Each reference in the Credit Agreement to Revolving Notes
shall include the Revolving Notes issued in respect of the
Additional Revolving Credit Commitment.
(g) Each reference in the Credit Agreement and in the Loan
Documents to "Term Loan Commitment" shall include the Additional
Term Loan Commitment, except with respect to the definition of
"Term Loan Borrowing" and Sections 2.1, 2.2, 2.3, 2.4, 5.5 and
5.9(c) of the Credit Agreement.
(h) Section 2.4(b) of the Credit Agreement is amended and
restated to read in its entirety as set forth on Exhibit A
hereto.
(i) Section 3.1(b) of the Credit Agreement is amended by
inserting in line 2 thereof immediately after the words "a single
Revolving Credit Note" the words "reflecting the Revolving Credit
Commitment of such Bank and a single Revolving Credit Note
reflecting the Additional Revolving Credit Commitment of such
Bank, if any, in each case".
(j) Section 5.1(a) of the Credit Agreement is amended by
amending and restating the first sentence thereof to read in its
entirety as follows:
Subject to the adjustment of any Interest Period
in connection with a Consolidation, the applicable
Interest Period for all Term Loans shall at all
times be six months (provided that the initial
Interest Period for Additional Term Loans (x) may
be shorter than six months and (y) shall end on
the Additional Consolidation Date).
(k) Section 5.5(a) of the Credit Agreement is amended by
inserting immediately at the end of sub-clause (ii) thereof the
following proviso:
"provided, however, that such amount shall not
exceed 0.8125% per annum."; and
(l) Section 5.9(c) is hereby amended by inserting in line 8
thereof after the words "daily unused Term Loan Commitment" the
words ", Additional Term Loan Commitment".
(m) Section 8.7 is hereby amended by adding an additional
sentence as follows:
The Borrower shall use the proceeds of the
Revolving Loans made in respect of the Additional
Revolving Credit Commitment (i) to refinance
Indebtedness of the Borrower under the FUNB Credit
Agreement, (ii) to pay related fees and expenses
in connection with the Alpine Acquisition,
including the Future Roche Acquisitions, (iii) to
repay the Roche Note and (iv) for general
corporate purposes.
(n) Annex A is amended by amending and restating the table set
forth therein to read in its entirety as set forth on Exhibit B
hereto.
(o) Schedule I to the Credit Agreement is amended by inserting
immediately at the end thereof the information set forth on
Exhibit C hereto.
(p) Schedule II to the Credit Agreement is amended by amending
and restating it to read in its entirety as set forth on Exhibit
D hereto.
(q) All references in the Credit Agreement to "this Agreement"
or "hereof" shall in all such cases be deemed to be references to
the Credit Agreement as amended by this Amendment and as the same
may be further amended or modified from time to time.
2.2 Except as expressly amended hereby, the Credit Agreement is
hereby ratified and confirmed.
3 AMENDMENTS TO THE GUARANTY
3.1 The Guaranty is hereby amended as follows:
(a) Section 8(b) of the Guaranty is amended and restated to read
in its entirety as follows:
(b) Total Indebtedness to EBITDA. The ratio of
(i) Total Indebtedness to (ii) EBITDA as at the last
day of any period of four consecutive Fiscal Quarters
of the Parent Guarantor shall be less than (A) 5.50:1,
from the Agreement Date through June 29, 2000 hereto,
(B) 5.25:1 from June 29, 2000 through December 31,
2000, (C) 5.00:1, from January 1, 2001 through December
31, 2001, (D) 4.75:1 from January 1, 2002 through
December 31, 2002, and (E) 4.50:1 thereafter;
(b) Section 8(c) of the Guaranty is amended and restated to read
in its entirety as follows:
(c) Interest Coverage Ratio. The ratio of (i)
EBITDA to (ii) Total Interest Expense for any period of
four consecutive Fiscal Quarters of the Parent
Guarantor shall not be less than (A) 2.25:1, from the
Agreement Date through June 29, 2000, (B) 2.50:1 from
June 29, 2000 through December 31, 2000, (C) 3.00:1,
from January 1, 2001 through December 31, 2001, (D)
3.25:1 from January 1, 2002 through December 31, 2002,
and (E) 3.50:1 thereafter.
(c) Section 15 of the Guaranty is amended by amending the
definition of EBITDA set forth therein to include the following
additional proviso immediately at the end thereof:
"and provided, further that during the
12 month period commencing May 2, 2000, EBITDA
shall be adjusted by an increase of $57,500,000
(being the sum of the pro-forma adjustments set
forth in the pro forma financial statement of the
Parent Guarantor dated April 28, 2000 and
delivered pursuant to Section 5.1(a)(xx) of the
FUNB Credit Agreement) less $57,500,000 multiplied
by a fraction of the numerator of which is the
number of calendar months occurring after May 1,
2000 and the denominator of which is 12."
(d) Schedule 5(k) to the Parent Guaranty is amended by amending
and restating it to read in its entirety as set forth on Exhibit
E hereto.
3.2 Except as expressly amended hereby, the Guaranty is hereby
ratified and confirmed.
4 AMOUNTS AND TERMS OF THE ADDITIONAL TERM LOANS
4.1 The Additional Term Loans.
(a) Commitment to Lend. On the terms and subject to the
conditions contained in this Amendment, each Bank severally
agrees to make an additional Term Loan (an "Additional Term
Loan") to the Borrower on the Additional Term Loan Commitment
Termination Date, each such Loan being part of an Additional Term
Loan Borrowing, in an aggregate amount not to exceed at any time
outstanding the amount set forth opposite such Bank's name on
Schedule II as its "Additional Term Loan Commitment" (as adjusted
from time to time by reason of assignments in accordance with the
provisions of Section 12.7 of the Credit Agreement and as such
amount may be reduced pursuant to Section 4.3 of this Amendment,
such Bank's "Additional Term Loan Commitment"); provided,
however, that following the making of each such proposed
Additional Term Loan, (i) the aggregate principal amount of all
Additional Term Loans outstanding shall not exceed the aggregate
amount of the Additional Term Loan Commitments and (ii) the
aggregate principal amount of all Loans outstanding shall not
exceed the aggregate amount of the Commitments, in each case at
such time.
(b) Evidence of Debt.
(i) Each Bank shall maintain in accordance with its usual
practice an account or accounts and shall receive from the
Borrower (through the Agent) a single additional Term Note (each
an "Additional Term Note") payable to the order of such Bank,
both evidencing the Indebtedness to such Bank resulting from each
Additional Term Loan made by such Bank to the Borrower from time
to time, including the amounts of principal and interest payable
and paid to such Bank from time to time hereunder.
(ii) The Register maintained by the Agent pursuant to Section
12.7(g) of the Credit Agreement shall include an "Additional Term
Loan control account" for each Bank, in which account shall be
recorded (A) the date and amount of each Additional Term Loan
Borrowing hereunder, (B) the amount of each Bank's Additional
Term Loan comprising such Borrowing and the Interest Period
applicable thereto, (C) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to
each Bank with respect to each such Additional Term Loan
hereunder and (D) the amount of any sum received by the Agent
from the Borrower with respect to such Additional Term Loans
hereunder and each Bank's Ratable Portion thereof.
(iii) The entries made in the Register in respect of
Additional Term Loans shall be conclusive and binding for all
purposes, absent manifest error.
4.2 Making the Additional Term Loans.
(a) The Additional Term Loan Borrowing shall be made upon
receipt of a Notice of Borrowing given by the Borrower to the
Agent not later than 11:00 A.M. (New York City time) on the fifth
Business Day prior to the date of the proposed Additional Term
Loan Borrowing.
(b) The Agent shall give to each Bank prompt notice of its
receipt of a Notice of Borrowing in respect of Additional Term
Loans and, upon its determination thereof, notice of the
applicable interest rate under Section 5.3(b) of the Credit
Agreement. Each Bank shall, before 11:00 A.M. (New York City
time) on the date of the proposed Additional Term Loan Borrowing,
make available for the account of its Lending Office to the Agent
at its address referred to in Section 12.2 of the Credit
Agreement, in immediately available funds, such Bank's Ratable
Portion of such proposed Additional Term Loan Borrowing. After
the Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article VI hereof, the Agent
will make such funds available to the Borrower at the Agent's
above-referenced address.
(c) The Additional Term Loan Borrowing pursuant to this Section
4.2 shall be in an aggregate amount of $10,000,000. The maximum
number of Additional Term Loan Borrowings permitted under this
Amendment shall be one (1).
(d) Each Notice of Borrowing pursuant to this Section 4.2 shall
be irrevocable and binding on the Borrower. The Borrower shall
indemnify each Bank against any loss, cost or expense incurred by
such Bank as a result of any failure to fulfill on or before the
date specified in such Notice of Borrowing for such proposed
Borrowing the applicable conditions set forth in Article IV
hereof, including, without limitation, any loss, cost or expense
incurred by reason of the liquidation or reemployment of deposits
or other funds acquired by such Bank to fund any Additional Term
Loan Borrowing when such Additional Term Loan, as a result of
such failure, is not made on such date. A certificate as to such
amounts submitted to the Borrower and the Agent by such Bank
shall be conclusive and binding absent manifest error.
(e) Unless the Agent shall have received notice from a Bank
prior to the date of any proposed Additional Term Loan Borrowing
pursuant to this Section 4.2 that such Bank will not make
available to the Agent such Bank's Ratable Portion of such
Additional Term Loan Borrowing, the Agent may assume that such
Bank has made such Ratable Portion available to the Agent on the
date of such Additional Term Loan Borrowing in accordance with
this Section 4.2 and the Agent may, in reliance upon such
assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Bank shall
not have so made such Ratable Portion available to the Agent and
the Agent has so made available such amount, such Bank and the
Borrower severally agree to repay to the Agent forthwith on
demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to the
Borrower until the date such amount is repaid to the Agent, at
(i) in the case of the Borrower, the interest rate applicable at
the time to the Additional Term Loans comprising the Additional
Term Loan Borrowing and (ii) in the case of such Bank, the
Federal Funds Rate. If such Bank shall repay to the Agent such
corresponding amount, such amount so repaid shall constitute such
Bank's Additional Term Loan as part of such Borrowing for
purposes of this Amendment and the Credit Agreement. If the
Borrower shall repay to the Agent such corresponding amount, such
payment shall not relieve such Bank of any obligation it may have
to the Borrower hereunder.
(f) The failure of any Bank to make the Additional Term Loan to
be made by it as part of any Additional Term Loan Borrowing
pursuant to this Section 4.2 shall not relieve any other Bank of
its obligation, if any, hereunder to make its Additional Term
Loan on the date of such Borrowing, but no Bank shall be
responsible for the failure of any other Bank to make the
Additional Term Loan to be made by such other Bank on the date of
any such Additional Term Loan Borrowing.
4.3 Termination/Reduction of the Additional Term Loan
Commitments.
(a) Optional Reductions. The Borrower shall have the right,
upon at least five Business Day's prior notice (which shall be
irrevocable) to the Agent, to terminate in whole or permanently
reduce ratably in part the unused portions of the respective
Additional Term Loan Commitments of the Banks; provided, however,
that each partial reduction shall be in the aggregate amount of
not less than $5,000,000 or an integral multiple of $5,000,000
(or such lesser amount as may be necessary to reduce to zero the
amount of the Additional Term Loan Commitments) in excess
thereof; provided, further, that no such termination or reduction
of the Additional Term Loan Commitments shall be permitted if,
after giving effect thereto and to any prepayments of the
Additional Term Loans made on the effective date thereof, the
aggregate outstanding principal amount of Additional Term Loans
of all Banks would exceed the aggregate amount of the Additional
Term Loan Commitments. Once canceled pursuant hereto, no such
canceled portion of the Additional Term Loan Commitments may be
reinstated.
(b) Cancellation of Unused Portion. On the Additional Term Loan
Commitment Termination Date, the unused portion of each Bank's
Additional Term Loan Commitment shall be canceled and will no
longer be available for any Additional Term Loan Borrowings
thereafter.
(c) Payment of Cancellation and Commitment Fees. Simultaneously
with any termination, reduction or cancellation of the Additional
Term Loan Commitments pursuant to this Section 4.3, the Borrower
shall pay to the Agent for the account of each relevant Bank the
fee set forth in Section 4.5 of this Amendment, if any, on the
amount of the Additional Term Loan Commitments so terminated,
reduced or canceled and owed to such Bank through the date of
such termination or reduction.
4.4 Consolidation and Repayment of Additional Term Loans.
(a) Additional Consolidation. On the Additional Consolidation
Date, the Interest Period for the Additional Term Loans shall be
adjusted by the Agent so that on and after the Additional
Consolidation Date, there will be no more than one (1) Interest
Period outstanding with respect to the Term Loans and the
Additional Term Loans. The Agent shall give the Banks 10 days'
prior notice of the proposed Additional Consolidation Date (which
shall be no later than six months after the day on which the
Additional Term Loans were made). The Borrower shall indemnify
the Banks in accordance with Section 12.4(c) of the Credit
Agreement for any costs resulting from such Consolidation.
(b) Repayment. The Borrower shall repay the outstanding
principal amount of the Additional Term Loans as provided in
Section 2.4(b) of the Credit Agreement.
4.5 Additional Term Loan Commitment. The Borrower will pay on
the Additional Term Loan Commitment Termination Date to the Agent
for the account of each Bank in arrears a fee accruing from the
date this Amendment becomes effective until the Additional Term
Loan Commitment Termination Date, on such Bank's aggregate daily
unused and uncancelled Additional Term Loan Commitment as in
effect from time to time at the rate of 1/8% per annum.
4.6 Use of Proceeds of Additional Term Loans. The Borrower
shall use the proceeds of the Additional Term Loans (i) to
refinance Indebtedness of the Borrower under the FUNB Credit
Agreement, (ii) to pay related fees and expenses in connection
with the Alpine Acquisition, including the Future Roche
Acquisitions, (iii) to repay the Roche Note and (iv) for general
corporate purposes.
5 REPRESENTATIONS AND WARRANTIES
5.1 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 Credit Agreement,
in the case of the Borrower, or the Guaranty, in the case of the
Parent Guarantor, in each case as amended by this Amendment in
accordance with its terms. It has duly executed and delivered
this Amendment by all necessary action, and this Amendment and
the Credit Agreement, in the case of the Borrower, or the
Guaranty, in the case of the Parent Guarantor, in each case as
amended by this Amendment are its legal, valid and binding
obligations enforceable in accordance with its 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 Credit
Agreement, in the case of the Borrower, or the Guaranty, in the
case of the Parent Guarantor, in each case 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 Credit Agreement, in the case of the Borrower,
or the Guaranty, in the case of the Parent Guarantor, in each
case 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 Credit Agreement, in the case of the Borrower,
or the Guaranty, in the case of the Parent Guarantor, in each
case as amended by this Amendment, (ii) seeking to prevent the
consummation of any of the transactions contemplated by the
Credit Agreement, in the case of the Borrower, or the Guaranty,
in the case of the Parent Guarantor, in each case 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
Credit Agreement, in the case of the Borrower, or the Guaranty,
in the case of the Parent Guarantor, in each case as amended by
this Amendment and (iv) seeking any determination or ruling that
would materially and adversely affect the validity or
enforceability of the Credit Agreement, in the case of the
Borrower, or the Guaranty, in the case of the Parent Guarantor,
in each case as so amended.
(f) Representations; No Defaults. The representations and
warranties contained in Article VII of the Credit Agreement and
Section 5 of the Guaranty (in each case as amended by this
Amendment) are true and correct, and no Default or Event of
Default (after giving effect to the consent and waiver set forth
in this Amendment) has occurred and is continuing.
6 CONDITIONS TO LENDING
6.1 Conditions Precedent to the Making of Additional Term Loans.
The making of Additional Term Loans hereunder is subject to
satisfaction of the conditions precedent that:
(a) the Agent shall have received the following, in form and
substance satisfactory to the Agent, and in sufficient copies for
each Bank:
(i) Certified copies of (A) the resolutions of the Board of
Directors of each of the Borrower and the Parent Guarantor
approving the execution, delivery and performance of this
Amendment, the Additional Term Notes and any new Revolving Notes
issued in connection herewith, and (B) all documents evidencing
any other necessary corporate action and required governmental
and any third party approvals, licenses and consents with respect
to this Amendment.
(ii) A copy of the certificate of incorporation of each of the
Borrower and the Parent Guarantor certified as of a recent date
by the Secretary of State of the Borrower's and Parent
Guarantor's jurisdiction of incorporation, together with
certificates of such official attesting to the good standing of
the Borrower and Parent Guarantor, and a copy of the By-Laws of
each of the Borrower and Parent Guarantor certified by its
Secretary or one of its Assistant Secretaries.
(iii) A certificate of the Secretary or an Assistant
Secretary of each of the Borrower and Parent Guarantor certifying
the names and true signatures of its officers who have been
authorized to execute and deliver this Amendment and each other
document and certificate to be executed or delivered hereunder on
behalf of each such Borrower and Parent Guarantor.
(iv) The Borrower shall have paid to the Agent for distribution
to the Banks, respectively:
(A) an amendment fee equal to 0.125% of each such Bank's
aggregate Commitments (as in effect immediately prior to giving
effect to this Amendment No. 4), if any; and
(B) an additional fee equal to 0.375% of the aggregate of each
such Bank's Additional Term Loan Commitment and Additional
Revolving Credit Commitment, if any.
(v) A favorable opinion of (A) Kirkland & Ellis, special New
York counsel to each of the Borrower and the Parent Guarantor, in
form, scope and substance satisfactory to the Agent, and (B)
Robert Wrobel, Vice President and Chief Legal Officer to each of
the of the Borrower and the Parent Guarantor, in form, scope and
substance satisfactory to the Agent.
(vi) new Revolving Notes, duly executed on behalf of the Borrower
in favor of those Banks making Additional Revolving Credit
Commitments, respectively, reflecting the Additional Revolving
Credit Commitments.
(vii) new Additional Term Notes, duly executed on behalf of
the Borrower in favor of Bank of America, N.A. reflecting the
Additional Term Loan Commitment.
(viii) The following statements shall be true on the date
hereof and on the date of the making of such Additional Term
Loans, before and after giving effect thereto and to the
application of the proceeds therefrom (and the acceptance by the
Borrower of the proceeds of such Additional Term Loans shall
constitute a representation and warranty by the Borrower that on
the date of such Additional Term Loans such statements are true):
(A) The representations and warranties contained in this
Amendment, in Article VII of the Credit Agreement and in Section
5 of the Guaranty (other than those stated to be made as of a
particular date) are true and correct in all material respects on
and as of such date as though made on and as of such date.
(B) No event has occurred and is continuing, or would result
from such Revolving Loans or Additional Term Loans being made on
such date, which constitutes a Default or an Event of Default.
7 MISCELLANEOUS
7.1 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 without giving effect to its conflict of
law rules.
7.2 WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE PARENT
GUARANTOR, THE BANKS, BANK OF AMERICA, N.A., 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.
7.3 Counterparts. This Amendment may be executed in any number
of counterparts, all of which taken together shall constitute one
and the same instrument.
7.4 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.
7.5 Loan Document. The parties hereto acknowledge that this
Amendment shall be a "Loan Document" as such term is defined in
the Credit Agreement and the 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: Albert N. Marchio, III
Title: Vice President, Treasurer
ALPHARMA INC.
By: __________________________
Name: Albert N. Marchio, II
Title: Vice President, Treasurer
UNION BANK OF NORWAY, as Agent
By: ___________________________
Name:
Title:
UNION BANK OF NORWAY
By: ___________________________
Name:
Title:
DEN NORSKE BANK ASA
By :___________________________
Name:
Title:
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:
BANK OF AMERICA, N.A.
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: Albert N. Marchio, II
Title: Vice President, Treasurer
ALPHARMA USPD INC.
By: __________________
Name: Albert N. Marchio, II
Title: Vice President, Treasurer
ALPHARMA INTERNATIONAL HOLDINGS INC.
By: __________________
Name: Albert N. Marchio, II
Title Vice President, Treasurer
ALPHARMA EURO HOLDINGS INC.
By: __________________
Name: Albert N. Marchio, II
Title: Vice President, Treasurer
EXHIBIT A to Amendment
(b) Repayment of Term Loans and Additional Term Loans.
The Borrower shall repay the outstanding principal amount of the
Term Loans and the Additional Term Loans in ten (10) consecutive
semi-annual installments on the dates and in the amounts set
forth in the table below (subject to (x) proportional adjustment
in the event that less than the full amount of the Term Loan
Commitment or Additional Term Loan Commitment is advanced and (y)
adjustment to reflect any prepayments pursuant to Section 5.4 of
this Agreement or ); provided that, in any event, on the Term
Loan Maturity Date, the Borrower shall pay the full principal
amount of all Term Loans and Additional Term Loans then
outstanding (together with all accrued and unpaid interest
thereon):
Date Installment Amount
August 7, 2000 $ 2,500,000
February 7, 2001 $ 8,300,000
August 7, 2001 $ 8,300,000
February 7, 2002 $ 8,300,000
August 7, 2002 $ 8,300,000
February 7, 2003 $ 8,300,000
August 7, 2003 $ 8,300,000
February 7, 2004 $ 8,300,000
August 7, 2004 $ 8,300,000
February 7, 2005 $38,600,000
EXHIBIT B to Amendment
Applicable Margin
Margin Ratio Eurodollar Loans Alternate Base Rate
Working Capital
Loans
less than 2.5 and the .875% -0.75%
Equity Ratio at such
time is at least
0.35:1*
less than 3.25 1.125% -0.5%
3.25 or greater but 1.375% -0.25%
less than 4.0
4.0 or greater but 1.625% 0%
less than 4.75
4.75 or greater but 2.000% .25%
less than 5.25
*This pricing not effective until the Adjustment Date following
April 1, 2001.
EXHIBIT C to Amendment
BANK OF AMERICA, N.A. Lending Office:
Bank of America, N.A.
One Independence Center
101 North Tryon Street
Charlotte, North Carolina 28255-0001
Attn: Veronica L. Robinson
Telephone: 704-387-0214
Telecopier: 704-409-0051
Address for Notice Purposes:
Bank of America, N.A.
Bank of America Corporate Center
100 North Tryon Street, NC1-007-17-11
Charlotte, North Carolina 28255
Attn: William C. Nelson, Managing
Director
Telephone: 704-387-2109
Telecopier: 704-388-6002
Address for Service of Process:
Bank of America, N.A.
Bank of America Corporate Center
100 North Tryon Street, NC1-007-17-11
Charlotte, North Carolina 28255
Attn: William C. Nelson, Managing
Director
Telephone: 704-387-2109
Telecopier: 704-388-6002
EXHIBIT D to Amendment
Schedule II
Commitments
The Banks listed below will participate in the Credit Agreement
in the following manner:
Term Additiona Revolving Sum
Loan l Term Credit
Bank Commitme Loan Commitment
nt Commitmen
t
Union Bank of 31,000,0 __ --- __ 59,000,000 90,000,00
Norway 00 0
Den norske Bank 28,000,0 __ --- __ 57,000,000 85,000,00
ASA 00 0
Summit Bank 18,000,0 __ --- __ 32,000,000 50,000,00
00 0
First Union 8,000,00 __ --- __ 32,000,000 40,000,00
National Bank 0 0
Banque Nationale 7,000,00 __ --- __ 23,000,000 30,000,00
de Paris Oslo 0 0
Branch
Landesbank Kiel 8,000,00 __ --- __ 27,000,000 35,000,00
0 0
Bank of America, 10,000,00 30,000,000 40,000,00
N.A. --- 0 0
Sum 100,000, 10,000,00 260,000,00 [370,000,
000 0 0 000]
Portion of Revolving Credit Commitment
Available as Working Capital Loan Commitment
First Union National Bank, N.A. 15,000,000
Summit Bank 15,000,000
Sum 30,000,000