Exhibit 4.7
ASSUMPTION AGREEMENT
ASSUMPTION AGREEMENT, dated as of June 30, 1997 (this "AGREEMENT"),
between LEINER HEALTH PRODUCTS GROUP INC., a Delaware corporation ("LHPG"),
and LEINER HEALTH PRODUCTS INC., a Delaware corporation ("LEINER"), in favor
of THE BANK OF NOVA SCOTIA ("SCOTIABANK"), as agent for the U.S. Lenders
under the U.S. Facility (in such capacity, the "U.S. AGENT"), and Scotiabank,
currently acting through its executive offices in Toronto, Ontario, as agent
for the Canadian Lenders under the Canadian Facility (in such capacity, the
"CANADIAN AGENT" and, together with the U.S. Agent, collectively, the
"AGENTS"). Undefined capitalized terms in this Agreement are defined in the
Credit Agreement referred to below.
W I T N E S S E T H:
WHEREAS, in connection with the Recapitalization and financing
thereof, LHPG and the Agents are parties to the Credit Agreement, dated as of
June 30, 1997 (as amended, supplemented, waived or otherwise modified from
time to time, the "CREDIT AGREEMENT"), among LHPG, Vita Health Company (1985)
Ltd., the U.S. Lenders, the Canadian Lenders, the U.S. Agent, the Canadian
Agent, Merrill Lynch Capital Corporation, as Documentation Agent and Salomon
Brothers Holding Company Inc, as Syndication Agent, providing, inter alia,
for Borrowings of Term Loans in a maximum aggregate principal amount not to
exceed $45,000,000 (in the case of Term B Loans) and $40,000,000 (in the case
of Term C Loans) and U.S. Revolving Loans and Canadian Revolving Loans in a
maximum aggregate principal amount not to exceed $125,000,000; and
WHEREAS, in connection with the Recapitalization, LHPG wishes to
assign, transfer and convey to Leiner, and Leiner wishes to assume, all of
LHPG's rights and obligations in respect of the Credit Agreement and the
other Loan Documents in consideration of, among other things, (I) the making
available to Leiner of the U.S. Facility under the Credit Agreement and the
Commitments of the U.S. Lenders to make Credit Extension thereunder, (II) the
indirect contribution to Leiner by LHPG of funds to repay substantially all
of Leiner's existing Indebtedness, and (III) the delivery by the Parent of
the Parent Guaranty.
NOW, THEREFORE, the parties hereto hereby agree as follows:
I.
ASSIGNMENT, ASSUMPTION AND RELEASE.
1. ASSIGNMENT OF RIGHTS AND OBLIGATIONS. Effective immediately
following the making of the initial Credit Extensions under the Credit
Agreement on the date hereof, LHPG hereby irrevocably assigns, transfers and
conveys to Leiner all of LHPG's rights, obligations, covenants, agreements,
duties and liabilities under or with respect to the Credit Agreement and each
other Loan Document and any and all certificates and other documents executed
by LHPG in connection therewith.
2. ASSUMPTION OF AGREEMENTS AND OBLIGATIONS. Effective immediately
following the making of the initial Credit Extensions under the Credit
Agreement on the date hereof, Leiner hereby expressly assumes, confirms and
agrees to perform and observe all of the Indebtedness, obligations,
covenants, agreements, terms, conditions, duties and liabilities of LHPG
under and with respect to the Credit Agreement and each other Loan Document
and any and all certificates and other documents executed by LHPG in
connection therewith as fully as if Leiner were originally the obligor in
respect thereof and the signatory thereto.
3. ASSUMPTION OF REPRESENTATIONS AND WARRANTIES. Effective
immediately following the making of the initial Credit Extensions under the
Credit Agreement on the date hereof, Leiner hereby expressly accepts and
assumes all liabilities of LHPG related to any representation or warranty
made by, and all rights and powers of LHPG under or in connection with, this
Agreement, the Credit Agreement and each other Loan Document.
4. RELEASE OF OBLIGATIONS. Effective as of 12:01 A.M. (New York City
time) on the day immediately following the date of the making of the initial
Credit Extensions under the Credit Agreement, (a) the Agents, acting on
behalf of the U.S. Lenders and the Canadian Lenders, respectively, hereby
release and forever discharge LHPG from any and all obligations LHPG may have
arising out of or resulting from
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the Credit Agreement and each other Loan Document and (b) Leiner hereby
releases and forever discharges LHPG from any and all obligations LHPG may
have arising out of or resulting from the Credit Agreement and each other
Loan Document. At all times after the effectiveness of the assumption
contemplated hereunder, with respect to all Credit Extensions made to or for
the account of LHPG prior to the effectiveness of such assumption, Leiner
shall be and have the obligations of, and LHPG shall no longer be or have the
obligations of, the "U.S. Borrower" within the meaning of and for all
purposes of the Credit Agreement.
5. CONFIRMATION OF STATUS AS "U.S. BORROWER". Leiner confirms and
acknowledges that it is the "U.S. Borrower" referred to in the Credit
Agreement, each other Loan Document and each other document and agreement
entered into in connection therewith that was executed and delivered by LHPG,
and hereby agrees to perform and observe all the covenants, agreements,
terms, conditions, obligations, appointments, duties and liabilities of LHPG
under the Credit Agreement, each other Loan Document and each other document
and agreement entered into in connection therewith that was executed and
delivered by LHPG, as if it had been the "U.S. Borrower" thereunder from the
original execution and delivery thereof.
6. RIGHTS REMAIN UNIMPAIRED. Leiner confirms and agrees that the
rights of the Agents, the Lenders and the Issuers under the Credit Agreement
and each other Loan Document shall be unimpaired and remain in full force and
effect and are hereby ratified and confirmed in all respects.
7. AMENDMENT TO THE CREDIT AGREEMENT. The Credit Agreement is hereby
deemed to be amended to the extent, but only to the extent, necessary to
effect the assignment, assumption and release provided for hereby.
II.
GENERAL.
1. NO OTHER AMENDMENTS; CONFIRMATION. Except as expressly amended,
modified and supplemented hereby, the provisions of the Credit Agreement and
the other Loan Documents are and shall remain in full force and effect.
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2. AFFIRMATION OF LOAN DOCUMENTS. Each of the parties hereby
consents to the execution and delivery of this Agreement and confirms,
reaffirms and restates its obligations under each of the Loan Documents to
which it is a party pursuant to the terms thereof.
3. GOVERNING LAW; COUNTERPARTS. (a) THIS AGREEMENT SHALL BE DEEMED A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW
YORK (INCLUDING FOR SUCH PURPOSES SECTIONS 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK) WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICTS OF LAWS THEREOF.
(b) This Agreement may be executed by one or more of the parties to
this Agreement on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
4. INTEGRATION. This Agreement and the other Loan Documents
represent the entire agreement of the parties hereto with respect to the
subject matter hereof and there are no promises or representations by the
parties hereto relative to the subject matter hereof not reflected or
referred to herein or therein.
5. SECTION HEADINGS. The section headings used in this Agreement are
for convenience of reference only and are not to affect the construction
hereof or be taken into consideration in the interpretation hereof.
6. SUBMISSION TO JURISDICTION; WAIVERS. Each of the parties hereto
hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents 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;
(b) 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
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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;
(c) 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 party
at its address referred to in the other Loan Documents to which it is a
party or at such other address of which the other parties shall have been
notified pursuant thereto;
(d) 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; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to
in this subsection any punitive damages.
7. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of LHPG and Leiner and their respective successors and
assigns, and the Agents, the U.S. Lenders and the Canadian Lenders and their
respective successors, endorsees, transferees and assigns.
8. WAIVER OF JURY TRIAL. THE PARTIES HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN. EACH PARTY ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED
FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION
IS A MATERIAL INDUCEMENT FOR EACH PARTY ENTERING INTO THIS AGREEMENT.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
LEINER HEALTH PRODUCTS GROUP INC.
By: /s/ William B. Towne
------------------------------------
Name: William B. Towne
Title: Executive Vice President-
Finance
LEINER HEALTH PRODUCTS INC.
By: /s/ William B. Towne
------------------------------------
Name: William B. Towne
Title: Executive Vice President-
Finance
Accepted and Acknowledged
as of the day and year
first above written.
THE BANK OF NOVA SCOTIA,
as U.S. Agent
By: /s/ Terry K. Fryett
-----------------------
Name: Terry K. Fryett
Title:
THE BANK OF NOVA SCOTIA,
as Canadian Agent
By: /s/ Terry K. Fryett
-----------------------
Name: Terry K. Fryett
Title:
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