Exhibit 10.2
ANNEX I
AMENDMENT NO. 3 TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT NO. 3 TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"AMENDMENT"), dated as of March 30, 2002, among Xxxxxxx River Laboratories,
Inc., a Delaware corporation (the "BORROWER"), Xxxxxxx River Laboratories
International, Inc. (f/k/a Xxxxxxx River Laboratories Holdings, Inc.), a
Delaware corporation ("HOLDCO"), Credit Suisse First Boston, as lead
arranger, as sole book runner and as syndication agent (in such capacity, the
"SYNDICATION AGENT") for the Lenders (as defined below), and Fleet National
Bank, as administrative agent (the "ADMINISTRATIVE AGENT") for the Lenders.
W I T N E S S E T H:
WHEREAS, the Borrower, certain financial institutions (together with
their respective successors and assigns, the "LENDERS"), the Syndication
Agent and the Administrative Agent are parties to the Amended and Restated
Credit Agreement, dated as of February 2, 2001 (as heretofore modified and
supplemented and in effect from time to time, the "EXISTING CREDIT AGREEMENT"
and as further amended hereby, the "CREDIT AGREEMENT");
WHEREAS, the Borrower desires, among other things, to modify the
financial reporting requirements set forth in Article VII of the Existing
Credit Agreement; and
WHEREAS, the Borrower desires, and the Lenders are willing, on the terms
and subject to the conditions hereinafter set forth, to amend the Existing
Credit Agreement as set forth herein to permit them to do so;
NOW, THEREFORE, the parties hereto hereby agree as follows:
PART I
DEFINITIONS
SUBPART 1.1 CERTAIN DEFINITIONS. Unless otherwise defined herein or the
context otherwise requires, terms used in this Amendment, including its
preamble and recitals, have the following meanings (such meanings to be
equally applicable to the singular and plural forms thereof):
"ADMINISTRATIVE AGENT" is defined in the PREAMBLE.
"AMENDMENT" is defined in the PREAMBLE.
"AMENDMENT EFFECTIVE DATE" is defined in SUBPART 3.1.
"BORROWER" is defined in the PREAMBLE.
"CREDIT AGREEMENT" is defined in the FIRST RECITAL.
"EXISTING CREDIT AGREEMENT" is defined in the FIRST RECITAL.
"HOLDCO" is defined in the PREAMBLE.
"LENDERS" is defined in the FIRST RECITAL.
"SYNDICATIONS AGENT" is defined in the PREAMBLE.
SUBPART 1.2 OTHER DEFINITIONS. Unless otherwise defined herein or the
context otherwise requires, terms used in this Amendment, including its
preamble and recitals, have the meanings set forth in the Existing Credit
Agreement. Each reference to "hereof", "hereunder", "herein" and "hereby" and
each other similar reference and each reference to "this Agreement" and each
other similar reference contained in the Existing Credit Agreement shall from
and after the Amendment Effective Date refer to the Credit Agreement.
PART II
AMENDMENTS TO EXISTING CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Amendment Effective
Date, the Existing Credit Agreement is hereby amended in accordance with this
Part II. Except to the extent amended by this Agreement, the Existing Credit
Agreement is and shall continue to be in full force and effect and is hereby
ratified and confirmed in all respects.
SUBPART 2.1 AMENDMENTS TO ARTICLE I. Article I of the Existing Credit
Agreement is amended as set forth in this Subpart 2.1.
(a) The definition of "EBITDA" contained in Section 1.1 of such Article
is hereby amended to insert the words "Holdco," immediately following the
words "(without duplication) for" and immediately preceding the words "the
Borrower and its Restricted Subsidiaries" in such definition.
(b) The definition of "Interest Expense" contained in Section 1.1 of
such Article is hereby amended to insert the words "Holdco," immediately
following the words "consolidated interest expense of" and immediately
preceding the words "the Borrower and its Restricted Subsidiaries" in such
definition.
SUBPART 2.2 AMENDMENTS TO ARTICLE VII. Clauses (a) and (b) of Section
7.1.1 of the Existing Credit Agreement are hereby amended and restated in
their entirety by substituting the following new clauses (a) and (b)
therefor respectively, which clauses shall read as follows:
"(a) as soon as available and in any event within 60 days after the
end of each of the first three Fiscal Quarters of each Fiscal Year
(or, if the Borrower or Holdco is required to file such information
on a Form 10-Q with the Securities and Exchange Commission, promptly
following such filing), an unaudited consolidated balance sheet as
of the end of such Fiscal Quarter, together with the related
consolidated statements of operations and cash flows for such Fiscal
Quarter and for the period commencing at the end of the previous
Fiscal Year and ending with the end of such Fiscal Quarter, for each
of (i) Holdco and its Subsidiaries (it being understood that
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the foregoing requirement, as it relates to Holdco, may be satisfied
by delivery of Holdco's report to the Securities and Exchange
Commission on Form 10-Q) and (ii) the Borrower and its Subsidiaries
(it being understood that the foregoing requirement, as it relates
to the Borrower and its Subsidiaries may be satisfied by delivery
of Holdco's report to the Securities and Exchange Commission on
Form 10-Q, if such report contains such information), in each case
certified by an Authorized Officer that is the president, chief
executive officer, treasurer, assistant treasurer, controller or
chief financial or accounting officer of the Borrower or Holdco, as
applicable;
(b) as soon as available and in any event within 105 days after the
end of each Fiscal Year (or, if the Borrower or Holdco is required
to file such information on a Form 10-K with the Securities and
Exchange Commission, promptly following such filing), (i) a copy of
the annual audit report for such Fiscal Year for Holdco and its
Subsidiaries, including therein a consolidated balance sheet as of
the end of such Fiscal Year, together with the related consolidated
statements of operations and cash flows for such Fiscal Year (it
being understood that the foregoing requirement may be satisfied by
delivery of Holdco's report to the Securities and Exchange
Commission on Form 10-K, if any) certified (without any Impermissible
Qualification) by PricewaterhouseCoopers or another "Big Five" firm
of independent public accountants, together with a certificate from
such accountants as to whether, in making the examination necessary
for the signing of their report on such annual report by such
accountants, they have become aware of any Default in respect of
any term, covenant, condition or other provision of this Agreement
(including any Default in respect of any of the financial covenants
contained in SECTION 7.2.4) that relates to accounting matters that
has occurred and is continuing or, if in the opinion of such
accounting firm such a Default has occurred and is continuing, a
statement as to the nature thereof and (ii) a copy of the unaudited
or audited (at the Borrower's option) consolidated balance sheet
for the Borrower and its Subsidiaries as of the end of such Fiscal
Year, together with the related unaudited or audited (at the
Borrower's option) consolidated statements of operations and cash
flows for such Fiscal Year (it being understood that the foregoing
requirement may be satisfied by delivery of the Borrower's report
to the Securities and Exchange Commission on Form 10-K, if such
report contains such information), certified by an Authorized
Officer that is the president, chief executive officer of the
Borrower, together with a certificate from such Authorized Officer
as to whether, in making the examination necessary for the
certification of such annual report, such Authorized Officer has
become aware of any Default in respect of any term, covenant,
condition or other provision of this Agreement (including any
Default in respect of any of the financial covenants contained in
SECTION 7.2.4) that relates to accounting matters that has occurred
and is continuing or, if in the opinion of such Authorized Officer
such a Default has occurred and is continuing, a statement as to the
nature thereof;"
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PART III
CONDITIONS TO EFFECTIVENESS
SUBPART 3.1 AMENDMENT EFFECTIVE DATE. This Amendment shall become
effective as of the date (the "AMENDMENT EFFECTIVE DATE") when the Agents
shall have received counterparts of this Amendment, duly executed by the
Borrower, the Syndication Agent and the Administrative Agent on behalf of the
Required Lenders who shall have delivered to the Administrative Agent their
written consent to the amendments, as explicitly set forth herein and subject
to the terms hereof.
PART IV
MISCELLANEOUS
SUBPART 4.1 EXPENSES. The Borrower hereby agrees to pay and reimburse
the Agents for all of their respective reasonable fees and expenses incurred
in connection with the negotiation, preparation, execution and delivery of
this Amendment and related documents, including all reasonable fees and
disbursements of Mayer, Brown, Xxxx & Maw, counsel to the Agents.
SUBPART 4.2 BORROWER REPRESENTATIONS AND WARRANTIES. The delivery of an
executed counterpart hereof by the Borrower shall constitute a representation
and warranty by the Borrower that:
(a) on the Amendment Effective Date, after giving effect to this
Amendment, (i) all representations, warranties and other statements set
forth in Article VI of the Existing Credit Agreement, as then amended by
this Amendment, are true and correct in all material respects as of such
date, except to the extent that such representation, warranty or
statement expressly relates to an earlier date (in which case such
representation, warranty or statement shall have been true and correct in
all material respects on and as of such earlier date) and (ii) no Default
has occurred and is then continuing; and
(b) this Amendment constitutes the legal, valid and binding
obligation of the Borrower enforceable in accordance with its terms
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing.
SUBPART 4.3 LOAN DOCUMENT PURSUANT TO CREDIT AGREEMENT. This Amendment
is a Loan Document executed pursuant to the Credit Agreement and shall
(unless otherwise expressly indicated therein) be construed, administered and
applied in accordance with all of the terms and provisions of the Credit
Agreement, as amended hereby.
SUBPART 4.4 SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon
and inure to the benefit of the parties hereto and their respective
successors and assigns.
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SUBPART 4.5 COUNTERPARTS. This Amendment may be executed by the parties
hereto in several counterparts, each of which when executed and delivered
shall be an original and all of which shall constitute together but one and
the same agreement.
SUBPART 4.6 GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first above written.
BORROWER: XXXXXXX RIVER LABORATORIES, INC.
By:
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Name:
Title:
AGENTS: CREDIT SUISSE FIRST BOSTON, as
Syndication Agent
By:
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Name:
Title:
By:
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Name:
Title:
FLEET NATIONAL BANK, as Administrative
Agent
By:
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Name:
Title:
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