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EXHIBIT 4.2
AMENDMENT NO. 1 TO CREDIT AGREEMENT
This Amendment No. 1 (this "Amendment") is entered into as of
December 23, 1997 by and among Omnicare, Inc., a Delaware corporation (the
"Borrower"), the undersigned lenders (collectively, the "Lenders") and The First
National Bank of Chicago, as one of the Lenders and in its capacity as
contractual representative (the "Agent") on behalf of itself and the other
Lenders.
W I T N E S S E T H:
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WHEREAS, the Borrower, the Lenders and the Agent have entered
into that certain Credit Agreement dated as of October 22, 1996 (as the same may
be amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement");
WHEREAS, the Borrower has notified the Lenders and the Agent
that the Borrower is in violation of Section 6.20 of the Credit Agreement with
respect to the Borrower's maintenance of Guaranties from the Initial Guarantors
and Supplemental Guarantors as of the date hereof (the "Applicable Default");
WHEREAS, the Borrower has requested the Required Lenders to
waive the Applicable Default and has requested the Required Lenders to amend the
Credit Agreement in certain other respects; and
WHEREAS, the Required Lenders and the Agent are willing to
waive the Applicable Default and to amend the Credit Agreement on the terms and
conditions herein set forth, it being expressly understood that this Amendment
shall in no event constitute a waiver by the Lenders or the Agent of any other
breach of the Credit Agreement or any of the Lender's or Agent's rights or
remedies with respect thereto;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. DEFINED TERMS. Capitalized terms used herein and not
otherwise defined herein shall have the meanings attributed to such terms in the
Credit Agreement.
2. AMENDMENT TO CREDIT AGREEMENT. Section 6.20 of the Credit
Agreement is hereby amended and restated in its entirety to read as follows:
6.20. SUPPLEMENTAL GUARANTORS. The Borrower will at all times
maintain Guaranties from the Initial Guarantors and Supplemental
Guarantors such that as of the end of each fiscal quarter (a) the
aggregate assets of the Borrower and the Guarantors are not less than
90% of the consolidated assets of the Borrower and its Subsidiaries and
(b) the aggregate gross revenues of the Borrower and the Guarantors
(calculated as of the last day
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of the Borrower's and the Guarantors' most recently ended fiscal
quarter for the four consecutive fiscal quarters ending with such
fiscal quarter) do not constitute less than 90% of the aggregate gross
revenues of the Borrower and its Subsidiaries (calculated as of the
last day of the Borrower's and its Subsidiaries' most recently ended
fiscal quarter for the four consecutive fiscal quarters ending with
such fiscal quarter); provided, that in the event that any Subsidiary
of the Borrower (other than a Guarantor) at any time has assets,
determined in accordance with GAAP, with a book value equal to or
greater than an amount equal to two and one half percent (2 1/2%) of
the consolidated assets of the Borrower and its Subsidiaries determined
as of the last day of the immediately preceding fiscal quarter, such
Subsidiary shall promptly execute and deliver a Guaranty as a
Supplemental Guarantor pursuant to this SECTION 6.20. In maintaining
such Guaranties, the guaranties executed by any Supplemental Guarantors
shall be executed and delivered to the Agent for the benefit of each of
the Lenders and shall be substantially identical to the guaranties
previously executed by each of the Initial Guarantors, together with
such supporting documentation, including corporate resolutions and
opinions of counsel with respect to such additional guaranty, as may be
reasonably required by the Agent and the Required Lenders.
3. WAIVER.
3.1. Upon the effectiveness of this Amendment in accordance
with the provisions of SECTION 4 below, the Agent and the Required Lenders
hereby waive the Applicable Default, and the Lenders' and the Agent's rights and
remedies arising therefrom.
4. CONDITIONS OF EFFECTIVENESS OF THIS AMENDMENT. This
Amendment shall become effective and be deemed effective as of the date hereof
(the "EFFECTIVE DATE"), if, and only if the Agent shall have received each of
the following:
(a) duly executed originals of this Amendment from the
Borrower and the Required Lenders;
(b) a reaffirmation from each of the Initial Guarantors and
Supplemental Guarantors in the form attached hereto as EXHIBIT A; and
(c) such other documents, instruments and agreements as the
Agent may reasonably request.
5. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT.
5.1 Upon the effectiveness of this Amendment pursuant to
SECTION 4 hereof, on and after the Effective Date, each reference in the Credit
Agreement to "this Agreement," "hereunder," "hereof," "herein" or words of like
import and each reference to the Credit Agreement in each Loan Document shall
mean and be a reference to the Credit Agreement as amended hereby.
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5.2 Except as specifically amended above, all of the terms,
conditions and covenants of the Credit Agreement and the other Loan Documents
shall remain in full force and effect, and are hereby ratified and confirmed.
5.3 The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
(a) any right, power or remedy of any Lender or the Agent under the Credit
Agreement or any of the Loan Documents, or (b) any Default or Unmatured Default
under the Credit Agreement.
6. CHOICE OF LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF
ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
7. COUNTERPARTS. This Amendment may be executed in any number
of counterparts, each of which when so executed shall be deemed an original and
all of which taken together shall constitute one and the same agreement.
8. HEADINGS. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the Borrower, the Agent and the Lenders
have executed this Amendment as of the date first above written.
OMNICARE, INC.
By: ______________________________
Name: Xxxxx X. Xxxxxxx, Xx.
Title: Chief Financial Officer
Commitment:
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$50,000,000 THE FIRST NATIONAL BANK OF
CHICAGO, as a Lender and as Agent
By: ______________________________
Name:
Title:
$40,000,000 BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH, as a Lender
By: ______________________________
Name:
Title:
$40,000,000 COMERICA BANK
as a Lender
By:_______________________________
Name:
Title:
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$40,000,000 KEYBANK NATIONAL ASSOCIATION
as a Lender
By:_______________________________
Name:
Title:
$40,000,000 PNC BANK OHIO
as a Lender
By:_______________________________
Name:
Title:
$20,000,000 THE BANK OF NEW YORK
as a Lender
By:_______________________________
Name:
Title:
$20,000,000 BANQUE NATIONALE DE PARIS
as a Lender
By:_______________________________
Name:
Title:
$20,000,000 CIBC, INC.
as a Lender
By:_______________________________
Name:
Title:
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$20,000,000 FIFTH THIRD BANK
as a Lender
By:_______________________________
Name:
Title:
$20,000,000 THE FUJI BANK, LIMITED
as a Lender
By:_______________________________
Name:
Title:
$20,000,000 SAKURA BANK, LIMITED
as a Lender
By:______________________________
Name:
Title:
$20,000,000 THE SANWA BANK, LIMITED,
CHICAGO BRANCH, as a Lender
By:_____________________________
Name:
Title:
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$20,000,000 STAR BANK
as a Lender
By:_______________________________
Name:
Title:
$10,000,000 THE DAI-ICHI KANGYO BANK, LTD.,
CHICAGO BRANCH, as a Lender
By:_______________________________
Name:
Title:
$10,000,000 LONG TERM CREDIT BANK OF
JAPAN, LTD., as a Lender
By:_______________________________
Name:
Title:
$10,000,000 BANCA CRT S.P.A.
as a Lender
By:_______________________________
Name:
Title:
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EXHIBIT A
TO
AMENDMENT NO. 1
TO
CREDIT AGREEMENT
Reaffirmation
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Attached
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REAFFIRMATION
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The undersigned hereby acknowledges receipt of a copy of
Amendment No. 1 to the Credit Agreement, dated as of October 22, 1996 by and
among Omnicare, Inc., a Delaware corporation (the "Borrower"), the undersigned
lenders (collectively, the "Lenders") and The First National Bank of Chicago, as
one of the Lenders and in its capacity as contractual representative (the
"Agent") on behalf of itself and the other Lenders (as the same may be amended,
restated, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT") which Amendment No. 1 is dated as of December __, 1997 (the
"AMENDMENT"). Capitalized terms used in this Reaffirmation and not defined
herein shall have the meanings given to them in the Credit Agreement. Without in
any way establishing a course of dealing by the Agent or any Lender, the
undersigned reaffirms the terms and conditions of the Guaranty executed by it
and acknowledges and agrees that such agreement and each and every other Loan
Document executed by the undersigned in connection with the Credit Agreement
remain in full force and effect and are hereby ratified, reaffirmed and
confirmed. All references to the Credit Agreement contained in the
above-referenced documents shall be a reference to the Credit Agreement as so
amended by the Amendment and as the same may from time to time hereafter be
amended, modified or restated.
[INSERT INITIAL GUARANTORS and
SUPPLEMENTAL GUARANTORS]
By:___________________________
Name:
Title:
