Exhibit 10.2
ANNEX I
AMENDMENT NO. 1 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO CREDIT AGREEMENT (this "AMENDMENT"), dated as of
April 18, 2001, 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 successor in interest to DLJ Capital Funding, Inc.), 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 successor in interest to Union Bank of California, N.A.), as
administrative agent (the "ADMINISTRATIVE AGENT") for the Lenders.
W I T N E S S E T H:
WHEREAS, the Borrower, Holdco, 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, 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;
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.
"SYNDICATION 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 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 Amendment, the 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 following definitions are added to such Article and inserted in
the appropriate alphabetical order:
"AMENDMENT NO. 1" means Amendment No. 1 to Credit Agreement, dated
as of April 18, 2001, among the Borrower, Holdco and the Agents, which
amendment was consented to by the Lenders constituting the Required
Lenders.
(b) The definition of "Change in Control" is hereby amended and restated
in its entirety as follows:
(i) "CHANGE IN CONTROL" means the failure of Holdco at any time to
own, free and clear of all Liens and encumbrances (other than Liens of
the types permitted to exist under CLAUSES (b), (d) and (g) of SECTION
7.2.3), all right, title and interest in 100% of the Capital Stock of the
Borrower; (ii) any "person" or "group" (as such terms are used in Rule
13d-5 of the Exchange Act, and Sections 13(d) and 14(d) of the Exchange
Act) of persons (other than DLJMBP and its Affiliates or members of
management of the
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Borrower) becomes, directly or indirectly, in a single transaction or in
a related series of transactions by way of merger, consolidation, or
other business combination or otherwise, the "beneficial owner" (as such
term is used in Rule 13d-3 of the Exchange Act) of more than 30% of the
total voting power in the aggregate of all classes of Capital Stock of
Holdco then outstanding entitled to vote generally in elections of
directors of Holdco; or (iii) during any period of 24 consecutive months,
individuals who at the beginning of such period constituted the Board of
Directors of Holdco (together with any new directors whose election to
such Board or whose nomination for election by the stockholders of the
Borrower was approved by DLJMBP and its Affiliates or a vote of a
majority of the directors then still in office who were either directors
at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the Board of Directors of Holdco then in office.
PART III
CONDITIONS TO EFFECTIVENESS
SUBPART 3.1. AMENDMENT EFFECTIVE DATE. This Amendment shall become
effective as of March 15, 2001 (the "AMENDMENT EFFECTIVE DATE") when the Agents
shall have received counterparts of this Amendment, duly executed by the
Borrower, Holdco, 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 Syndication Agent for all its 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 counsel to the Syndication Agent.
SUBPART 4.2. BORROWER REPRESENTATION AND WARRANTY. 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, 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 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 on and as of such earlier date); 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,
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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.
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 X-0 X-0 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:
HOLDCO: XXXXXXX RIVER LABORATORIES
INTERNATIONAL, INC. (f/k/a Xxxxxxx
River Laboratories Holdings, Inc.)
By:
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Name:
Title:
AGENTS: CREDIT SUISSE FIRST BOSTON (as
successor in interest to DLJ Capital
Funding, Inc.), 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:
