Exhibit 4.5 WAIVER AND FIRST AMENDMENT dated as of February 7, 2000 (this "Waiver and Amendment"), to the Amended and Restated Credit Agreement dated as of November 6, 1998 (the "Credit Agreement"), among SCHEIN PHARMACEUTICAL, INC., a Delaware...
Exhibit 4.5
WAIVER AND FIRST AMENDMENT dated as of February 7, 2000
(this "Waiver and Amendment"), to the Amended and Restated
Credit Agreement dated as of November 6, 1998 (the "Credit
Agreement"), 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.
The Borrower has requested that the Lenders waive compliance with
certain covenants contained in the Credit Agreement, and the Lenders executing
this Waiver and Amendment are willing to waive compliance with such covenants on
the terms and conditions and for the period set forth below. 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. Waiver of Certain Covenants. (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 15, 2000, with the covenants
contained in (i) Section 6.14 of the Credit Agreement, but only so long as the
Leverage Ratio shall not at any time on or after September 26, 1999, have
exceeded 6.00 to 1.00; (ii) Section 6.17 of the Credit Agreement, but only so
long as the Fixed Charge Coverage Ratio shall not at any time on or after
September 26, 1999, have been less than 0.60 to 1.00; and (iii) Section 6.18 of
the Credit Agreement, but only so long as the Interest Expense Coverage Ratio
shall not at any time on or after September 26, 1999, have been less than 2.00
to 1.00. 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 15, 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 and
Amendment (the first to occur of the dates referred to in the preceding clauses
(x), (y) and (z) being called the "Termination Date").
(b) Notwithstanding any other provision of this Waiver and
Amendment, on the Termination Date, the waiver set forth in the preceding
paragraph (a) shall terminate and cease to be of any force or effect, and the
Administrative Agent, the Collateral Agent and the Lenders shall have all rights
under the Loan Documents that would have been available to them had such waiver
never been granted.
SECTION 2. Certain Amendments to Credit Agreement. (a) The
definition of "Applicable Percentage" in Section 1.01 of the Credit Agreement is
hereby amended by deleting clause (b) of the third sentence following the table
therein and inserting in its place the following:
"(b) subject to clause (a) above, Category 6 from and including
February
2
7, 2000, through the Termination Date (as defined in the Waiver and
First Amendment dated as of February 7, 2000, to this Agreement").
(b) The definition of "Net Income" in Section 1.01 of the Credit
Agreement is hereby amended by inserting at the end thereof the following new
sentence:
"For any period including the fiscal quarter ended December 25,
1999, Net Income shall be determined without giving effect to a
non-cash impairment charge for Marsam Pharmaceutical, Inc. in a
pre-tax amount not to exceed $63,000,000 to be recorded by the
Borrower as of December 25, 1999."
(c) The definition of "Net Worth" in Section 1.01 of the Credit
Agreement is hereby amended to read as follows:
"Net Worth" as of any date shall mean Stockholder's Equity as
of such date plus the amount of any charge by the Borrower for
acquired in process research and development expenses of the Company
for the Marsam acquisition to the extent such charge is less than
$35,000,000 plus (a) the lesser of (i) the amount of any non-cash
Steris Charges taken by the Borrower and the Subsidiaries and (ii)
$117,000,000, plus (b) the amount of a non-cash impairment charge
for Marsam Pharmaceutical, Inc. in a pre-tax amount not to exceed
$63,000,000 to be recorded by the Borrower as of December 25, 1999.
SECTION 3. Certain Agreements of the Company. (a) The Borrower
agrees, not later than March 3, 2000, to deliver to the Administrative Agent,
with a copy for each Lender, (i) projected balance sheets, income statements,
statements of cash flows and covenant levels, including projection assumptions,
for each financial quarter from the date hereof to and including the Maturity
Date with respect to the Borrower and its consolidated Subsidiaries, (ii)
information, satisfactory to the Administrative Agent, with respect to the
extraordinary charges to be recorded by the Borrower as of December 25, 1999,
(iii) a balance sheet, income statement and statement of cash flows for the year
ended December 25, 1999 and (iv) an income statement for December, 1999.
(b) Without limiting the obligations of the Borrower under Section 9.05 of
the Credit Agreement, the Borrower agrees from time to time upon demand to pay
the reasonable fees and the out-of-pocket expenses of (i) financial advisors
retained by the Administrative Agent on behalf of the Lenders and (ii) such
additional counsel and other consultants as the Administrative Agent shall deem
it advisable to retain to provide advice to the Administrative Agent and the
Lenders.
(c) The Borrower agrees to pay to the Administrative Agent on the
Effective Date a fee of $100,000 to be distributed by the Administrative Agent
among the Lenders that shall have executed this Waiver and Amendment on or prior
to 12:00 noon, New York City time, on such date ratably in accordance with the
amounts of their outstanding Loans, L/C Exposures and unused Revolving Credit
Commitments.
(d) The Borrower agrees (i) subject to the obtaining of required consents
from landlords, promptly, and not later than March 1, 2000, to execute and
deliver and to cause the Domestic Subsidiaries to execute and deliver such
mortgages with respect to leasehold interests held by the Borrower and the
Domestic Subsidiaries as shall have
3
been requested by the Collateral Agent and (ii) to use its best efforts promptly
to obtain all such landlord consents as shall be required to permit the
execution and delivery of the mortgages referred to in the preceding clause (i).
SECTION 4. Representations and Warranties. The Borrower represents
and warrants to each of the Lenders and the Administrative Agent that:
(i) After giving effect to this Waiver, 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 Waiver, no Event of Default
or Default has occurred and is continuing.
SECTION 5. Conditions to Effectiveness of Waivers and Amendments.
The waivers set forth in Section 1 and the amendments set forth in Section 2
shall become effective as of the date of this Waiver and 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 Waiver and Amendment that, when taken together, bear the
signatures of the Borrower and the Required Lenders;
(b) the Administrative Agent shall have received in
immediately available funds the Waiver Fee referred to in Section 3;
(c) the Administrative Agent shall have received such evidence
as it or its counsel shall have requested as to the corporate power
and authority of the Borrower to enter into and perform its
obligations under this Waiver and Amendment;
(d) the representations and warranties set forth in Section 4
shall be true and correct; and
(e) the Borrower and the Domestic Subsidiaries shall have
executed and delivered all such amendments to the Pledge Agreement
and other instruments and documents as shall have been requested by
the Collateral Agent in order to subject to the Lien of the Pledge
Agreement and to perfect the Lien of the Pledge Agreement in all
equity interests owned by the Borrower and the Domestic Subsidiaries
in persons that are not Subsidiaries.
SECTION 6. Credit Agreement. Except as expressly set forth herein,
this Waiver and 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 Waiver and 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 Waiver and Amendment shall be deemed for all
purposes to be covenants contained in Article VI of the Credit Agreement as
amended hereby, and
4
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.
SECTION 7. Expenses. The Borrower agrees to reimburse the
Administrative Agent for (a) the fees and expenses referred to in Section 3(c)
and (b) its out-of-pocket expenses reasonably incurred in connection with this
Waiver and Amendment, including the reasonable fees, charges and disbursements
of Cravath, Swaine & Xxxxx, counsel for the Administrative Agent.
SECTION 8. Applicable Law. THIS WAIVER SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 9. Counterparts. This Waiver and 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 Waiver and Amendment by
telecopy shall be
5
effective as delivery of a manually executed counterpart of this Waiver and
Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Waiver and
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 X. Xxxx
Title: Vice President & Treasurer
THE CHASE MANHATTAN BANK, individually and as
Administrative Agent, Collateral Agent and Issuing
Bank,
by
-----------------------------------------------
Name:
Title:
THE BANK OF NEW YORK,
by
-----------------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA,
by
-----------------------------------------------
Name:
Title:
5
effective as delivery of a manually executed counterpart of this Waiver and
Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Waiver and
Amendment to be duly executed by their respective authorized officers as of the
day and year first written above.
SCHEIN PHARMACEUTICAL, INC.,
by
-----------------------------------------------
Name:
Title:
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
THE BANK OF NEW YORK,
by
-----------------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA,
by
-----------------------------------------------
Name:
Title:
5
effective as delivery of a manually executed counterpart of this Waiver and
Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Waiver and
Amendment to be duly executed by their respective authorized officers as of the
day and year first written above.
SCHEIN PHARMACEUTICAL, INC.,
by
-----------------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, individually and as
Administrative Agent, Collateral Agent and Issuing
Bank,
by
-----------------------------------------------
Name:
Title:
THE BANK OF NEW YORK,
by /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA,
by
-----------------------------------------------
Name:
Title:
5
effective as delivery of a manually executed counterpart of this Waiver and
Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Waiver and
Amendment to be duly executed by their respective authorized officers as of the
day and year first written above.
SCHEIN PHARMACEUTICAL, INC.,
by
-----------------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, individually and as
Administrative Agent, Collateral Agent and Issuing
Bank,
by
-----------------------------------------------
Name:
Title:
THE BANK OF NEW YORK,
by
-----------------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA,
by /s/ Xxxx Xxxxxxxx
-----------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Managing Director
6
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 /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Account Officer
COMMERCIAL LOAN FUNDING TRUST I,
by XXXXXX COMMERCIAL PAPER, INC.,
not in its individual capacity but
solely as Administrative Agent
by
------------------------------------
Name:
Title:
COMMERZBANK AKTIENGESELLSHAFT, NEW
YORK BRANCH,
by
------------------------------------
Name:
Title:
by
------------------------------------
Name:
Title:
6
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:
COMMERCIAL LOAN FUNDING TRUST I,
by XXXXXX COMMERCIAL PAPER, INC.,
not in its individual capacity but
solely as Administrative Agent
by /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: XXXXXXX X. XXXXXXXXX
Title: AUTHORIZED SIGNATORY
COMMERZBANK AKTIENGESELLSHAFT, NEW
YORK BRANCH,
by
------------------------------------
Name:
Title:
by
------------------------------------
Name:
Title:
6
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:
COMMERCIAL LOAN FUNDING TRUST I,
by XXXXXX COMMERCIAL PAPER, INC.,
not in its individual capacity but
solely as Administrative Agent
by
------------------------------------
Name:
Title:
COMMERZBANK AKTIENGESELLSHAFT, NEW
YORK BRANCH,
by /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Assistant Vice President
by /s/ G. Xxx XxXxxxxxx
------------------------------------
Name: G. Xxx XxXxxxxxx
Title: Senior Vice President
7
COOPERATIEVE CENTRALE RAIFFEIFEN-
BOERENLEENBANK, B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH,
by /s/ Xxxxx X. X'Xxxxxx
------------------------------------
Name: Xxxxx X. X'Xxxxxx
Title: Vice President
by /s/ Xxxxxxx [ILLEGIBLE]
------------------------------------
Name: Xxxxxxx [ILLEGIBLE]
Title: V.P
8
DEUTSCHE BANK, A.G., NEW YORK AND/OR CAYMAN
ISLAND BRANCHES,
by /s/ Xxxx Xxxxxxx
----------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
by /s/ [ILLEGIBLE] Spear
----------------------------------------
Name: [ILLEGIBLE] Spear
Title: Director
DG BANK DEUTSCHE GENOSSENSCHAFTSBANK,
CAYMAN ISLAND BRANCH,
by
----------------------------------------
Name:
Title:
by
----------------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK,
by
----------------------------------------
Name:
Title:
FLEET BANK, N.A. (formerly known as
NatWest Bank, N.A.),
by
----------------------------------------
Name:
Title:
KEYBANK NATIONAL ASSOCIATION,
by
----------------------------------------
Name:
Title:
8
DEUTSCHE BANK, A.G., NEW YORK AND/OR CAYMAN
ISLAND BRANCHES,
by
----------------------------------------
Name:
Title:
by
----------------------------------------
Name:
Title:
DG BANK DEUTSCHE GENOSSENSCHAFTSBANK, AG
CAYMAN ISLAND BRANCH,
by /s/ Xxxxxx Xxxxx
----------------------------------------
Name: XXXXXX XXXXX
Title: Vice President
by
----------------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK,
by
----------------------------------------
Name:
Title:
FLEET BANK, N.A. (formerly known as
NatWest Bank, N.A.),
by
----------------------------------------
Name:
Title:
KEYBANK NATIONAL ASSOCIATION,
by
----------------------------------------
Name:
Title:
8
DEUTSCHE BANK, A.G., NEW YORK AND/OR CAYMAN
ISLAND BRANCHES,
by
----------------------------------------
Name:
Title:
by
----------------------------------------
Name:
Title:
DG BANK DEUTSCHE GENOSSENSCHAFTSBANK, AG
CAYMAN ISLAND BRANCH,
by
----------------------------------------
Name:
Title:
by
----------------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK,
by /s/ Xxxxxx Xxxxxxx
----------------------------------------
Name: XXXXXX XXXXXXX
Title: SVP
FLEET BANK, N.A. (formerly known as
NatWest Bank, N.A.),
by
----------------------------------------
Name:
Title:
KEYBANK NATIONAL ASSOCIATION,
by
----------------------------------------
Name:
Title:
8
DEUTSCHE BANK, A.G., NEW YORK AND/OR CAYMAN
ISLAND BRANCHES,
by
----------------------------------------
Name:
Title:
by
----------------------------------------
Name:
Title:
DG BANK DEUTSCHE GENOSSENSCHAFTSBANK, AG
CAYMAN ISLAND BRANCH,
by
----------------------------------------
Name:
Title:
by
----------------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK,
by
----------------------------------------
Name:
Title:
FLEET BANK, N.A. (formerly known as
NatWest Bank, N.A.),
by /s/ [ILLEGIBLE]
----------------------------------------
Name: [ILLEGIBLE]
Title: VICE PRESIDENT
KEYBANK NATIONAL ASSOCIATION,
by
----------------------------------------
Name:
Title:
9
MELLON BANK, N.A.,
by /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: XXXXXX X. XXXXX
Title: VICE PRESIDENT
PNC BANK, N.A.,
by
----------------------------------
Name:
Title:
SOCIETE GENERALE, NEW YORK BRANCH,
by
----------------------------------
Name:
Title:
SUMMIT BANK,
by
----------------------------------
Name:
Title:
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
by
----------------------------------
Name:
Title:
by
----------------------------------
Name:
Title:
9
MELLON BANK, N.A.,
by
----------------------------------
Name:
Title:
PNC BANK, N.A.,
by /s/ Xxxxxxx Xxxxx
----------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
SOCIETE GENERALE, NEW YORK BRANCH,
by
----------------------------------
Name:
Title:
SUMMIT BANK,
by
----------------------------------
Name:
Title:
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
by
----------------------------------
Name:
Title:
by
----------------------------------
Name:
Title:
9
MELLON BANK, N.A.,
by
----------------------------------
Name:
Title:
PNC BANK, N.A.,
by
----------------------------------
Name:
Title:
SOCIETE GENERALE, NEW YORK BRANCH,
by /s/ Xxxxxxx X. Xxx
----------------------------------
Name: Xxxxxxx X. Xxx
Title: Managing Director
SUMMIT BANK,
by
----------------------------------
Name:
Title:
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
by
----------------------------------
Name:
Title:
by
----------------------------------
Name:
Title:
9
MELLON BANK, N.A.,
by
----------------------------------
Name:
Title:
PNC BANK, N.A.,
by
----------------------------------
Name:
Title:
SOCIETE GENERALE, NEW YORK BRANCH,
by
----------------------------------
Name:
Title:
SUMMIT BANK,
by /s/ Xxxxxxxxxxx X. Klegkowski
----------------------------------
Name: Xxxxxxxxxxx X. Klegkowski
Title: SVP
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
by
----------------------------------
Name:
Title:
by
----------------------------------
Name:
Title:
9
MELLON BANK, N.A.,
by
----------------------------------
Name:
Title:
PNC BANK, N.A.,
by
----------------------------------
Name:
Title:
SOCIETE GENERALE, NEW YORK BRANCH,
by
----------------------------------
Name:
Title:
SUMMIT BANK,
by
----------------------------------
Name:
Title:
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
by /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
by /s/ Xxxxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Associate
00
XXXXXXXXXX XXXX-XXX
XXXXXXXXXXX AG
by
----------------------------------
Name:
Title:
COMMERZBANK AG, NEW YORK
BRANCH
by
----------------------------------
Name:
Title:
BAYERISCHE LANDESBANK
GIROZENTRALE,
by
----------------------------------
Name:
Title:
DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN ISLANDS,
by /s/ Xxxx X. Xxxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: XXXXXXX X. XXXXXXX
Title: Vice President
