CONFORMED COPY
FIRST AMENDMENT AND CONSENT dated as of March 15, 2000
(this "Amendment"), to the Waiver and First Amendment dated as
of February 7, 2000 (the "Waiver") of the Amended and Restated
Credit Agreement (the "Credit Agreement") dated as of November
6, 1998, as amended by the Waiver, among SCHEIN
PHARMACEUTICAL, INC., a Delaware corporation (the "Borrower"),
the lenders party hereto (the "Lenders") and THE CHASE
MANHATTAN BANK, a New York banking corporation, as
administrative agent for the Lenders (in such capacity, the
"Administrative Agent"), as issuing bank and as collateral
agent.
A. Pursuant to the Credit Agreement, the Lenders and the Issuing
Bank have extended credit to the Borrower, and have agreed to extend credit to
the Borrower, in each case pursuant to the terms and subject to the conditions
set forth therein.
B. The Borrower has requested that the Waiver be amended as set
forth herein.
C. The Borrower has also informed the Administrative Agent that it
intends to sell all of its 135,000 shares of capital stock of Bone Care
International (the "Bone Care Sale"). The Borrower has requested that the
Lenders consent to such sale and to the retention and reinvestment of any
proceeds from such sale in the Borrower's business.
D. The Required Lenders are willing to amend the Waiver and grant
the requested consent pursuant to the terms and subject to the conditions set
forth herein.
E. Capitalized terms used and not otherwise defined herein shall
have the meanings assigned to them in the Credit Agreement.
In consideration of the premises and the agreements, provisions and
covenants herein contained, the parties hereto hereby agree, on the terms and
subject to the conditions set forth herein, as follows:
SECTION 1. Amendment to the Waiver.
(a) Section 1 of the Waiver is hereby amended and restated in its
entirety as follows:
(a) Subject to Section 5 below, the undersigned Lenders hereby
waive compliance, at all times on or after September 26, 1999, and
on or prior to March 24, 2000, with the covenants contained in (i)
Section 6.14 of the Credit Agreement; (ii) Section 6.17 of the
Credit Agreement; and (iii) Section 6.18 of the Credit Agreement.
The waivers provided for in the preceding sentence will terminate on
the earlier of (x) 5:00 p.m., New York City time, on March 24, 2000,
(y) any date on which an Event of Default shall occur under the
Credit Agreement (giving effect to the waiver provided for in this
Section) and (z) any date on which the Borrower shall fail to
perform any of its undertakings under this Waiver
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and Amendment (the first to occur of the dates referred to in the
preceding clauses (x), (y) and (z) being called the "Termination
Date").
SECTION 2. Consent. The Lenders hereby consent to the Bone Care
Sale and to the retention and reinvestment of all proceeds therefrom in the
business of the Borrower.
SECTION 3. Representations and Warranties. The Borrower represents
and warrants to each of the Lenders and the Administrative Agent that:
(i) After giving effect to this Amendment, the representations and
warranties set forth in Article III of the Credit Agreement are true and
correct in all material respects with the same effect as if made on and as
of the date hereof.
(ii) After giving effect to this Amendment, no Event of Default or
Default has occurred and is continuing.
SECTION 4. Conditions to Effectiveness of Amendments. The amendment
set forth in Section 1 shall become effective as of the date of this Amendment,
but only upon the satisfaction on or prior to the date hereof of the following
conditions precedent (the date on which the last of such conditions is satisfied
being called the "Effective Date"):
(a) the Administrative Agent shall have received counterparts of
this Amendment that, when taken together, bear the signatures of the
Borrower and the Required Lenders; and
(b) the representations and warranties set forth in Section 3 shall
be true and correct.
SECTION 5. Credit Agreement. Except as expressly set forth herein,
this Amendment shall not by implication or otherwise limit, impair, constitute a
waiver of, or otherwise affect the rights and remedies of the Lenders and the
Administrative Agent under the Credit Agreement, or alter, modify, amend or in
any way affect any of the terms, conditions, obligations, covenants or
agreements contained in the Credit Agreement, all of which are ratified and
affirmed in all respects and shall continue in full force and effect. This
Amendment shall apply and be effective only with respect to the provisions of
the Credit Agreement specifically referred to herein. The agreements set forth
in this Amendment shall be deemed for all purposes to be covenants contained in
Article VI of the Credit Agreement as amended hereby, and the failure of the
Borrower to perform any of such agreements in accordance with the terms thereof
shall constitute an Event of Default under the Credit Agreement as so amended.
This Amendment shall constitute a "Loan Document" for all purposes of the Credit
Agreement and the other Loan Documents.
SECTION 6. Expenses. The Borrower agrees to reimburse the
Administrative Agent for its out-of-pocket expenses reasonably incurred in
connection with this Amendment, including, without limitation, the reasonable
fees, charges and disbursements of Cravath, Swaine & Xxxxx, counsel for the
Administrative Agent.
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SECTION 7. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 8. Counterparts. This Amendment may be executed in two or
more counterparts, each of which shall constitute an original but all of which
when taken together shall constitute but one contract. Delivery of an executed
counterpart of a signature page of this Amendment by facsimile shall be
effective as delivery of a manually executed counterpart of this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective authorized officers as of the day and year
first written above.
SCHEIN PHARMACEUTICAL, INC.,
by /s/ Xxxxx X. Xxxx
-----------------------------------------
Name: Xxxxx. A. Meer
Title: Vice President & Treasurer
THE CHASE MANHATTAN BANK, individually
and as Administrative Agent, Collateral Agent and
Issuing Bank,
by /s/ Xxxx Xxx Xxx
-----------------------------------------
Name: Xxxx Xxx Xxx
Title: Vice President
AG CAPITAL FUNDING PARTNERS, L.P.,
by /s/ Xxxx Xxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Director
BEAR, XXXXXXX & CO. INC.,
by /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Managing Director
COMMERCIAL LOAN FUNDING TRUST I,
by: XXXXXX COMMERCIAL PAPER,
INC., not in its individual capacity but
solely as Administrative Agent
by /s/ Xxxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
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COOPERATIEVE CENTRALE RAIFFEIFEN-
BOERENLEENBANK, B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH,
by /s/ Xxxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
by /s/ Xxxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President
DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK, CAYMAN
ISLAND BRANCH,
by /s/ Xxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
by /s/ Xxx X. Xxxxxx
-----------------------------------------
Name: Xxx X. Xxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK,
by /s/ Xxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Senior Vice President
FLEET BANK, N.A. (formerly known as NatWest
Bank, N.A.),
by /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
MELLON BANK, N.A.,
by /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
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SOCIETE GENERALE, NEW YORK BRANCH,
by /s/ Xxxxxxx X. Xxx
-----------------------------------------
Name: Xxxxxxx X. Xxx
Title: Managing Director
THE BANK OF NOVA SCOTIA,
by /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY,
by
_________________________________________
Name:
Title:
BAYERISCHE HYPOTHEKEN-UND
WECHSEL-BANK AKTIENGESSELLSCHAFT,
NEW YORK BRANCH,
by
_________________________________________
Name:
Title:
by
_________________________________________
Name:
Title:
COMERICA BANK,
by
_________________________________________
Name:
Title:
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DEUTSCHE BANK, A.G. NEW YORK AND/OR
CAYMAN ISLAND BRANCHES,
by
_________________________________________
Name:
Title:
by
_________________________________________
Name:
Title:
KEYBANK NATIONAL ASSOCIATION,
by
_________________________________________
Name:
Title:
PNC BANK, N.A.,
by
_________________________________________
Name:
Title:
SUMMIT BANK,
by
_________________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA,
by /s/ Xxxxx X. Xxxxx
----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
