19017903 v8
AMENDMENT NO. 2 TO THE 1999 CREDIT AGREEMENT
AMENDMENT NO. 3 TO PARENT GUARANTY
AND CONSENT
AMENDMENT dated as of April 19, 2000 among ALPHARMA U.S.
INC., a Delaware corporation (the "Borrower"), ALPHARMA INC., a
Delaware corporation (the "Parent Guarantor"), the BANKS AND
FINANCIAL INSTITUTIONS (the "Banks") party from time to time to
the Credit Agreement (as defined below), UNION BANK OF NORWAY, as
agent (the "Agent"), and SUMMIT BANK, as working capital agent
(the "Working Capital Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, the banks, the Agent, the Working
Capital Agent, Union Bank of Norway, as arranger, and Den norske
Bank AS, as co-arranger, are parties to that certain Credit
Agreement dated as of January 20, 1999, as amended by an
Amendment No. 1 dated as of April 16, 1999 (the "Credit
Agreement") pursuant to which the Banks made available to the
Borrower loan facilities in the aggregate original principal
amount of $300,000,000;
WHEREAS, the Parent Guarantor has guaranteed the obligations
of the Borrower under the Credit Agreement pursuant to a Guaranty
dated as of January 20, 1999, as amended by an Amendment No. 1
dated as of April 16, 1999 and an Amendment No. 2 dated as of
September 9, 1999 (as so amended and as the same may hereafter be
further amended, the "Guaranty");
WHEREAS, Alpharma Inc. proposes to restructure
substantially all of its European businesses by: (i) causing
Dumex-Alpharma to convert from an "A/S" to an "ApS"; (ii)
transferring ownership (directly or indirectly) of substantially
all of its European and Asian subsidiaries to Dumex-Alpharma;
(iii) transferring the ownership of Dumex-Alpharma into a Bermuda
partnership, Alpharma Bermuda GP, which is wholly owned by two
Delaware corporations, Alpharma Bermuda Inc. and Alpharma Euro
Holdings Inc.; (iv) causing the transfer of the stock of Alpharma
Bermuda Inc. and Alpharma Euro Holdings Inc. to Alpharma
International Holdings Inc. (formerly known as Alpharma U.K.
Holding Inc.), a wholly-owned subsidiary of Alpharma Inc.
("Alpharma International"); and (v) causing substantially all
European intercompany debt currently held by Alpharma Inc. or one
of its U.S. subsidiaries to be transferred to Alpharma Bermuda GP
or one of its direct or indirect wholly-owned Subsidiaries
(collectively, the "Restructuring");
WHEREAS, the Borrower and the Banks have agreed to amend the
Credit Agreement and the Guaranty on the terms and conditions set
forth herein in order to reflect the Restructuring of Alpharma
Inc.'s European subsidiaries;
WHEREAS, as part of the Restructuring, the Banks and the
Agent have also agreed to terminate (i) the Assignment of
Intercompany Notes and Agreement dated as of January 20, 1999
made by the Parent Guarantor, the Borrower and Alpharma
International in favor of the Agent and (ii) certain Pledge
Agreements relating to the shares of Alpharma AS, A.L.-Pharma AS
and Alpharma Holdings Limited;
NOW, THEREFORE, in consideration of the premises and the
covenants and agreements contained herein, the parties hereto
agree as follows (with capitalized terms used herein and not
otherwise defined having the respective meanings ascribed thereto
in the Credit Agreement):
1
AMENDMENTS TO THE CREDIT AGREEMENT
1.1 The Credit Agreement is hereby amended as follows:
(a) Section 1.1 of the Credit Agreement is amended by:
(i) amending and restating the following defined terms
to read in their entirety as follows:
"Assignment of Intercompany Note" means each
assignment of intercompany note made by the
Parent Guarantor or any Subsidiary of the
Parent Guarantor in favor of the Agent,
substantially in the form of Exhibit H hereto
(as the same may be amended or modified from
time to time).
"Pledge Subsidiary" means each Subsidiary
whose shares (or a portion thereof) have been
pledged to the Agent as security for the
obligations of a Loan Party.
"Scandinavian Principal Companies" means
Alpharma AS and Dumex-Alpharma ApS.
(b) Section 9.3 of the Credit Agreement is amended by (i)
replacing the period (".") at the end of sub-clause (c) thereof
with "; or" and (ii) inserting immediately after sub-clause (c)
thereof the following as new sub-clause (d):
(d) the transfer or disposition
(including licensing) of intangible assets by
any (directly or indirectly) wholly-owned Non-
U.S. Subsidiary of the Parent Guarantor to
the Parent Guarantor or any other (directly
or indirectly) wholly-owned Non-U.S.
Subsidiary of the Parent Guarantor (as the
case may be).
(c) Section 7.12 of the Credit Agreement is amended by restating
the except clause at the beginning of the first sentence thereof
to read as follows: "Except as described in the most recent Form
10-K or Report on Form 10-Q delivered to the Banks under Section
8.9 hereof,".
(d) Section 8.11 of the Credit Agreement is amended by (i)
inserting the parenthetical "(including the Bermuda Partnership,
as defined in the Parent Guaranty)" immediately following the
first occurrence of the term "Non-U.S. Affiliate" therein and
(ii) inserting the parenthetical "(and relating to the shares of
such Person)" immediately after the first occurrence of the word
"Person" therein.
(e) Section 9.4 of the Credit Agreement is amended by inserting
the following proviso at the end thereof: "; provided, however,
that this section shall not prohibit transactions between the
Parent Guarantor and any of its direct or indirect wholly-owned
Non-U.S. Subsidiaries or between any such wholly-owned Non-U.S.
Subsidiaries."
(f) all references in the Credit Agreement to "this Agreement"
or "hereof" shall in all such cases be deemed to be references to
the Credit Agreement as amended by this Amendment and as the same
may be further amended or modified from time to time.
1.2 Except as expressly amended hereby, the Credit Agreement is
hereby ratified and confirmed.
2 AMENDMENTS TO THE GUARANTY
2.1 The Guaranty is hereby amended as follows:
(a) Section 5(o) of the Guaranty is amended by restating the
except clause at the beginning of the first sentence thereof to
read as follows: "Except as described in the most recent Form 10-
K or Report on Form 10-Q delivered to the Banks under Section
6(h),".
(b) Section 6(i) of the Guaranty is amended and restated to read
in its entirety as follows:
(i) Additional Credit Support
Documents. The Parent Guarantor shall
deliver, or shall cause to be delivered,
within five (5) Business Days of delivery to
the Agent of a certificate pursuant to
Section 6(g)(v) hereof in respect of each
Principal Subsidiary disclosed on the
schedule attached to such certificate (a) a
Subsidiary Guaranty duly executed by each
such Principal Subsidiary or (b) if any such
Principal Subsidiary is a Non-U.S.
Subsidiary, either (i) a Pledge Agreement
duly executed by the Shareholders of such Non-
U.S. Subsidiary or (ii) if such Principal
Subsidiary is a Subsidiary of a Non-U.S.
Subsidiary (including the Bermuda
Partnership) of the Parent Guarantor, a
Pledge Agreement duly executed by the
Shareholders of the Person (and relating to
the shares of such Person) that (x) directly
or indirectly owns all of the stock of such
Principal Subsidiary and (y) is not a
Subsidiary of a Non-U.S. Subsidiary of the
Parent Guarantor; provided, that this Section
6(i) shall not apply to any Principal
Subsidiary as to which there already is at
such time a valid and binding Subsidiary
Guaranty or Pledge Agreement (as the case may
be).
(c) Section 7(a) of the Guaranty is amended by inserting the
following immediately at the end thereof as new sub-clause (x):
"(x) Liens securing Permitted Intercompany Indebtedness."
(d) Section 7(b) of the Guaranty is amended by inserting the
following immediately at the end thereof before the period (".")
as a new proviso:
"provided, further, that this Section shall
not prohibit the merger or consolidation of
any wholly-owned Non-U.S. Subsidiary of the
Parent Guarantor with or into any other
wholly-owned Non-U.S. Subsidiary of the
Parent Guarantor."
(e) Section 7(c) of the Guaranty is amended by inserting
immediately after sub-clause (ii) thereof the following as new
sub-clause (iii):
; or (iii) the transfer or disposition
(including licensing) of intangible assets by
any (directly or indirectly) wholly-owned Non-
U.S. Subsidiary of the Parent Guarantor to
the Parent Guarantor or any other (directly
or indirectly) wholly-owned Non-U.S.
Subsidiary of the Parent Guarantor (as the
case may be).
(f) Section 7(d) of the Guaranty is amended by inserting the
following proviso at the end thereof: "; provided, however, that
this section shall not prohibit transactions between the Parent
Guarantor and any of its direct or indirect wholly-owned Non-U.S.
Subsidiaries or between any such wholly-owned Non-U.S.
Subsidiaries."
(g) Section 7(f) of the Guaranty is amended by inserting
immediately after subsection (H) thereof the following as new
subsection (I):
(I) Indebtedness incurred by the Parent
Guarantor or any of its Subsidiaries under a
promissory note delivered in favor of Xxxxxxx-
XxXxxxx as partial payment of the purchase
price for the acquisition of the medicated
feed additive business of Xxxxxxx-XxXxxxx, up
to a maximum principal amount of $30,000,000.
(h) Section 15 of the Guaranty is amended as follows:
(i) by amending and restating the defined term "Permitted
Intercompany Indebtedness" to read in its entirety as follows:
"Permitted Intercompany Indebtedness" means
Indebtedness incurred by the Parent
Guarantor, any Subsidiary Guarantor, Pledge
Subsidiary or any (directly or indirectly)
wholly-owned Non-U.S. Subsidiary of the
Parent Guarantor and owing to the Parent
Guarantor, any Subsidiary Guarantor, Pledge
Subsidiary or any (directly or indirectly)
wholly-owned Non-U.S. Subsidiary of the
Parent Guarantor (as the case may be).
(ii) by inserting the following new defined term in correct
alphabetical order:
"Bermuda Partnership" means Alpharma Bermuda
G.P., a general partnership formed under the
laws of Bermuda.
(i) Schedule 5(k) to the Guaranty is amended and restated to
read as Schedule A to this Amendment.
(j) all references in the Guaranty to "this Guaranty" or
"hereof" shall in all such cases be deemed to be references to
the Guaranty as amended by this Amendment and as the same may be
further amended or modified from time to time.
2.2 Except as expressly amended hereby, the Guaranty is hereby
ratified and confirmed.
3 CONSENT AND WAIVER
3.1 Subject to satisfaction of the following conditions, the
Banks hereby consent for purposes of Sections 7.12, 7.18, 7.19,
8.11, 9.2, 9.3 and 9.4 of the Credit Agreement and Sections 5(k),
5(o), 6(d), 7(b), 7(c), 7(d) and 7(f)(i)(D) of the Guaranty to
the Restructuring of the European subsidiaries and waive any
breach of any such Section of the Credit Agreement or the
Guaranty that results from actions taken in connection with the
Restructuring (such consent and waiver to have effect from and as
of December 1, 1999):
(a) both immediately before and after the consummation of the
Restructuring, the representations and warranties contained in
Article 5 of this Amendment shall be and remain true and correct;
(b) the Agent shall have received a duly executed pledge
agreement made by Alpharma Inc. in respect of 65% of the shares
of Alpharma International, together with blank undated stock
powers, in form and substance satisfactory to the Agent;
(c) the Agent shall have received a duly executed subsidiary
guarantee made by Alpharma Euro Holdings Inc. in respect of the
obligations of the Borrower under the Loan Documents, in form and
substance satisfactory to the Agent;
(d) the Agent shall have received a favorable opinion of (i)
Xxxxxxxx & Xxxxx, special New York counsel to the Loan Parties,
and (ii) Xxxxxx Xxxxxx, Vice President and Chief Legal Officer to
the Loan Parties, in each case in form scope and substance
satisfactory to the Agent.
4 RELEASE
4.1 The Banks hereby terminate the following documents and
release all security interests or other rights in any assets
transferred or assigned to the Banks (or the Agent for the
benefit of the Banks) under such documents:
(a) the Assignment of Intercompany Notes and Agreement dated as
of January 20, 1999 made by the Parent Guarantor, the Borrower
and Alpharma International in favor of the Agent;
(b) the Shares Pledge dated January 20, 1999 between Alpharma
International and the Agent in respect of the share of Alpharma
Holdings Limited;
(c) the Pledge of Shares dated January 20, 1999 between the
Parent Guarantor and the Agent in respect of the shares of
Alpharma AS;
(d) the Deed of Pledge made by the Parent Guarantor in favor of
the Agent in respect of the shares of A.L.-Pharma A/S.
4.2 The Banks and the Agent agree to execute such document as
are reasonably requested by the Parent Guarantor to evidence the
above termination and releases.
5 REPRESENTATIONS AND WARRANTIES
5.1 Each of the Borrower and the Guarantor represents and
warrants as follows:
(a) Due Authorization. It has the power, and has taken all
necessary action to authorize it, to execute and deliver this
Amendment and to perform this Amendment and the Credit Agreement,
in the case of the Borrower, or the Guaranty in the case of the
Guarantor, in each case as amended by this Amendment in
accordance with its terms. It has duly executed and delivered
this Amendment by all necessary action, and this Amendment and
the Credit Agreement, in the case of the Borrower, or the
Guaranty, in the case of the Guarantor, in each case as amended
by this Amendment are its legal, valid and binding obligations
enforceable in accordance with its terms under all Applicable
Law, subject, as to enforcement of remedies, to any applicable
bankruptcy, insolvency or other laws affecting the enforcement of
creditors' rights generally.
(b) Compliance with Law, etc. Its execution and delivery of this
Amendment and the performance of this Amendment and the Credit
Agreement, in the case of the Borrower, or the Guaranty, in the
case of the Guarantor, in each case as amended by this Amendment
in accordance with their respective terms do not and will not (i)
violate any provision of any applicable laws, orders, rules or
regulations presently in effect or (ii) conflict with, result in
a breach of or constitute a default under its organizational
documents or any indenture, agreement or instrument to which it
is a party or by which it or its properties may be bound.
(c) Governmental Regulation. It is not required to obtain any
governmental authorization, consents, orders or approvals in
connection with the execution and delivery of this Amendment or
the performance of the transactions contemplated by each of this
Amendment and the Credit Agreement, in the case of the Borrower,
or the Guaranty, in the case of the Guarantor, in each case as
amended by this Amendment.
(d) Consents. All consents and approvals necessary for the
making and performance of this Amendment and the transactions
contemplated hereby have been obtained and the same are in full
force and effect.
(e) Validity. There are no proceedings or investigations
pending or, to the best of its knowledge, threatened against it
before any court, regulatory body, administrative agency or other
tribunal or governmental instrumentality (i) asserting the
invalidity of the Credit Agreement, in the case of the Borrower,
or the Guaranty, in the case of the Guarantor, in each case as
amended by this Amendment, (ii) seeking to prevent the
consummation of any of the transactions contemplated by the
Credit Agreement, in the case of the Borrower, or the Guaranty,
in the case of the Guarantor, in each case as amended by this
Amendment, (iii) seeking any determination or ruling that, in its
reasonable judgment, would materially and adversely affect its
performance of its obligations under this Amendment and the
Credit Agreement, in the case of the Borrower, or the Guaranty,
in the case of the Guarantor, in each case as amended by this
Amendment and (iv) seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of
the Credit Agreement, in the case of the Borrower, or the
Guaranty, in the case of the Guarantor, in each case as so
amended.
(f) Representations; No Defaults. The representations and
warranties contained in Article VII of the Credit Agreement and
Section 5 of the Guaranty (in each case as amended by this
Amendment) are true and correct, and no Default or Event of
Default (after giving effect to the consent and waiver set forth
in this Amendment) has occurred and is continuing.
6 MISCELLANEOUS
6.1 Governing Law. This Amendment and the rights and
obligations of the parties hereunder shall be governed by, and
construed in accordance with, the laws of the State of New York,
United States of America without giving effect to its conflict of
law rules.
6.2 WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE PARENT
GUARANTOR, THE BANKS, THE AGENT AND THE WORKING CAPITAL AGENT
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
6.3 Counterparts. This Amendment may be executed in any number
of counterparts, all of which taken together shall constitute one
and the same instrument.
6.4 Severability. Any provision of this Amendment that is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating or affecting the validity
or enforceability of such provision in any other jurisdiction.
6.5 Loan Document. The parties hereto acknowledge that this
Amendment shall be a "Loan Document" as such term is defined in
the Credit Agreement and the Parent Guaranty.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their duly authorized officers all as
of the date and year first above written.
ALPHARMA U.S. INC.
By: __________________________
Name:
Title:
ALPHARMA INC.
By: __________________________
Name:
Title:
UNION BANK OF NORWAY, as Agent
By: ___________________________
Name:
Title:
UNION BANK OF NORWAY
By: ___________________________
Name:
Title:
DEN NORSKE BANK ASA
By :___________________________
Name:
Title:
FIRST UNION NATIONAL BANK
By___________________________
Name:
Title:
SUMMIT BANK, as Working Capital Agent
By: __________________________
Name:
Title:
SUMMIT BANK
By___________________________
Name:
Title:
BANQUE NATIONALE DE PARIS OSLO BRANCH
By___________________________
Name:
Title:
LANDESBANK SCHLESWIG-HOLSTEIN GIROZENTRALE
COPENHAGEN BRANCH
By___________________________
Name:
Title:
ACKNOWLEDGMENT AND CONSENT
OF
LOAN PARTIES
Each of the undersigned acknowledges the foregoing Amendment and
agrees that its obligations under each Loan Document to which it
is a party is and shall remain unimpaired and in full force and
effect.
ALPHARMA INC.
By: __________________
Name:
Title:
ALPHARMA USPD INC.
By: __________________
Name:
Title:
ALPHARMA INTERNATIONAL HOLDINGS INC.
(formerly known as Alpharma U.K. Holding Inc.)
By: __________________
Name:
Title:
