EXHIBIT 99.1
EXECUTION VERSION
FIRST AMENDMENT dated as of March 22, 2006 (this
"Amendment") to the CREDIT AGREEMENT dated as of April 23,
2002 (as amended, supplemented or otherwise modified from time
to time, the "Credit Agreement"), among KING PHARMACEUTICALS,
INC. (the "Borrower"), the LENDERS party thereto, CREDIT
SUISSE FIRST BOSTON, CAYMAN ISLANDS BRANCH, as Administrative
Agent, Collateral Agent and Swingline Lender, the ISSUING
BANKS party thereto, Bank of America, N.A., X.X. Xxxxxx
Securities Inc. and UBS Warburg, as Co-Syndication Agents and
Wachovia Bank National Association, as Documentation Agent.
WHEREAS the Borrower has requested that the Credit Agreement be amended
in the manner set forth herein.
WHEREAS the Required Lenders and the Administrative Agent are willing
to amend the Credit Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the above premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Capitalized terms used but not defined herein
shall have the meanings assigned to such terms in the Credit Agreement (as
amended hereby).
SECTION 2. Amendment to the Credit Agreement. Effective as of the First
Amendment Effective Date (as defined below), the Credit Agreement is amended as
follows:
(a) Section 1.01 of the Credit Agreement is amended to add the
definition of the following terms in appropriate alphabetical order:
"'Convertible Notes' means up to $460,000,000 in aggregate principal
amount of senior convertible notes of the Borrower due 2026 and issued on or
about March 28, 2006."
"'Outstanding Debentures' means up to $345,000,000 in aggregate
principal amount of the Borrower's 23/4% Convertible Debentures due November 15,
2021.".
(b) Section 6.04 of the Credit Agreement is amended to strike the word
"and" at the end of clause (k), replace the period at the end of clause (l) with
the text "; and" and insert the following text at the end of such Section:
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"(m) guarantees by the Subsidiaries of the Convertible Notes.".
(c) Section 6.14 of the Credit Agreement is amended to read in its
entirety as follows:
"SECTION 6.14. Prepayments, Redemptions and Repurchases of Debt. Make
or commit to make any payment (including by way of payment, prepayment,
redemption, purchase or defeasance), whether in cash, property, securities or a
combination thereof, other than scheduled (or with respect to senior
indebtedness held by a person that is not an Affiliate of the obligor,
mandatory) payments of principal and interest as and when due (to the extent not
prohibited by applicable subordination provisions), in respect of any
Indebtedness for borrowed money (other than Indebtedness under the Loan
Documents and intercompany Indebtedness) of the Borrower or any Subsidiary,
except for (a) payments, whether in cash, property or securities, or a
combination thereof, of up to $100,000,000 in aggregate principal amount of
Indebtedness of the Borrower or any Subsidiary (excluding payments on the
Convertible Notes), (b) payments made on the Outstanding Debentures, including
for repurchases thereof, (c) payments made in cash on the Convertible Notes upon
any conversion thereof that do not exceed the aggregate principal amount of the
Convertible Notes so converted, (d) payments made in common stock of the
Borrower on the Convertible Notes upon the conversion thereof, (e) any payment
in connection with the replacement of Indebtedness of the Borrower or any
Subsidiary with Indebtedness of the same borrower or issuer having a maturity no
earlier and an amount no greater than the replaced Indebtedness and benefiting
from no Guarantee or collateral beyond that supporting the replaced Indebtedness
and (f) any payment on Indebtedness of the Borrower or any Subsidiary that is
made at a time when no Revolving Loan is outstanding."
SECTION 3. Representations and Warranties. The Borrower hereby
represents and warrants to the Lenders and the Administrative Agent that as of
the date hereof and after giving effect hereto:
(a) this Amendment has been duly authorized, executed and delivered by
it, and each of this Amendment and the Credit Agreement (as amended hereby)
constitutes its legal, valid and binding obligation, enforceable against it in
accordance with its terms.
(b) no Default or Event of Default has occurred and is continuing.
(c) the representations and warranties of the Borrower contained in the
Loan Documents (as amended hereby) are true and correct as of the date hereof
(except with respect to representations and warranties expressly made only as of
an earlier date, which representations were true and correct as of such earlier
date).
(d) the execution, delivery and performance by the Borrower of this
Amendment (i) have been duly authorized by all requisite corporate and, if
required, stockholder action and (ii) will not (A) violate (I) any provision of
law, statute, rule or regulation, or of the certificate or articles of
incorporation or other constitutive
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documents or by-laws of the Borrower or any of the Subsidiaries, (II) any order
of any Governmental Authority or (III) any provision of any indenture, agreement
or other instrument to which the Borrower or any of the Subsidiaries is a party
or by which any of them or any of their property is or may be bound, (ii) be in
conflict with, result in a breach of or constitute (alone or with notice or
lapse of time or both) a default under, or give rise to any right to accelerate
or to require the prepayment, repurchase or redemption of any obligation under
any such indenture, agreement or other instrument or (iii) result in the
creation or imposition of any Lien upon or with respect to any property or
assets now owned or hereafter acquired by the Borrower or any of the
Subsidiaries.
SECTION 4. Effectiveness. This Amendment shall become effective as of
the first date (the "First Amendment Effective Date") on which:
(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 Borrower shall have issued a press release announcing the
initiation of the offering of the Convertible Notes;
provided that if the closing of the offering of Convertible Notes does not occur
on or before the fifth business day after the issuance of the press release
referred to in clause (c) above, then this Amendment shall be of no further
force or effect (it being understood that any repurchases made by the Borrower
of the Outstanding Debentures during the period beginning on the issuance of
such press release and ending on the fifth business day thereafter will continue
to be entitled to the benefits of this Amendment).
SECTION 5. Effect of Amendment. 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 or the
Administrative Agent under the Credit Agreement or any other Loan Document, and
shall not alter, modify, amend or in any way affect any of the terms,
conditions, obligations, covenants or agreements contained in the Credit
Agreement or any other Loan Document, all of which are ratified and affirmed in
all respects and shall continue in full force and effect. Nothing herein shall
be deemed to entitle the Borrower to a consent to, or a waiver, amendment,
modification or other change of, any of the terms, conditions, obligations,
covenants or agreements contained in the Credit Agreement or any other Loan
Document in similar or different circumstances. This Amendment shall apply and
be effective only with respect to the provisions of the Credit Agreement
specifically referred to herein. This Amendment shall constitute a Loan
Document. After the First Amendment Effective Date, any reference to the Credit
Agreement shall mean the Credit Agreement as modified hereby.
SECTION 6. Expenses. The Borrower agrees to reimburse the
Administrative Agent for its reasonable out-of-pocket expenses in connection
with this Amendment, including the reasonable fees, charges and disbursements of
counsel.
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SECTION 7. Governing Law; Counterparts. (a) This Amendment and the
rights and obligations of the parties hereto shall be governed by, and construed
and interpreted in accordance with, the laws of the State of New York.
(b) This Amendment may be executed by one or more of the parties to
this Amendment on any number of separate counterparts, and all of such
counterparts taken together shall be deemed to constitute one and the same
instrument. This Amendment may be delivered by facsimile or other electronic
transmission of the relevant executed signature pages hereof.
SECTION 8. Headings. The headings of this Amendment are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be duly executed by their authorized officers as of the date first above
written.
KING PHMACEUTICALS, INC.,
By: /s/ Xxxxxx Xxxxxxxxxxxx
------------------------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
Title: CFO
CREDIT SUISSE, Cayman Islands Branch, (f/k/a
Credit Suisse First Boston, Cayman Islands Branch),
as Administrative Agent and a Lender,
By: /s/ Xxxxxxx Xx
------------------------------------------------
Name: Xxxxxxx Xx
Title: Director
By: /s/ Xxxxx Xxxxxxxx
------------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Associate
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Signature page to
the First Amendment to the
King Pharmaceuticals, Inc. Credit Agreement
To approve the First Amendment:
Name of Lender,
Bank of America, N.A.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
For any Lender requiring a second signature line:
By:_________________________________________
Name:
Title:
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Signature page to
the First Amendment to the
King Pharmaceuticals, Inc. Credit Agreement
To approve the First Amendment:
Name of Lender,
The Bank of New York
By: /s/ Xxxxxxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Vice President
For any Lender requiring a second signature line:
By:_________________________________________
Name:
Title:
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Signature page to
the First Amendment to the
King Pharmaceuticals, Inc. Credit Agreement
To approve the First Amendment:
Name of Lender,
BNP PARIBAS
By: /s/ XX xx Xxxxxxxx
-------------------------------
Name: XX xx Xxxxxxxx
Title: Managing Director
For any Lender requiring a second signature line:
By: /s/ Xxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxx
Title: Director
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Signature page to
the First Amendment to the
King Pharmaceuticals, Inc. Credit Agreement
To approve the First Amendment:
Name of Lender,
JPMorgan Chase Bank, N.A.
By: /s/ Xxxxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Vice President
For any Lender requiring a second signature line:
By:_________________________________________
Name:
Title:
10
Signature page to
the First Amendment to the
King Pharmaceuticals, Inc. Credit Agreement
To approve the First Amendment:
Name of Lender,
UBS AG, Stamford Branch
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Associate Director
Banking Products Services US
For any Lender requiring a second signature line:
By: /s/ Xxxxxxxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Associate Director
Banking Products Services US
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Signature page to
the First Amendment to the
King Pharmaceuticals, Inc. Credit Agreement
To approve the First Amendment:
Name of Lender,
Wachovia Bank, N.A.
By: /s/ Xxxxx Xxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Director
For any Lender requiring a second signature line:
By:_________________________________________
Name:
Title:
