Amendment No. 5 to Credit Agreement among Alpharma Inc., Lenders, and Bank of America (August 3, 2004)

Summary

This amendment updates the existing Credit Agreement between Alpharma Inc. (Holdings), its subsidiaries, various lenders, and Bank of America as the administrative agent. The changes include adjustments to financial definitions and ratios, approval of a specific debt redemption, and the payment of fees to participating lenders. The amendment becomes effective once certain conditions are met, such as execution by required parties and payment of fees. It confirms that all parties have the necessary authority and that the amendment is legally binding.

EX-10.4 5 amendment5.htm AMENDMENT NO. 5 TO THE CREDIT AGREEMENT Form

CONFORMED COPY

 

AMENDMENT NO. 5 TO THE

CREDIT AGREEMENT

Dated as of August 3, 2004

AMENDMENT NO. 5 TO THE CREDIT AGREEMENT among ALPHARMA INC., a Delaware corporation ("Holdings"), the banks, financial institutions and other lenders party hereto, and BANK OF AMERICA, as administrative agent and collateral agent (the "Administrative Agent"), as parties to the Credit Agreement referred to below.

PRELIMINARY STATEMENTS:

    1. Alpharma Operating Corporation, a Delaware corporation (the "Company"), Alpharma USPD Inc., a Maryland corporation (together with the Company and the Subsidiary Borrowers party thereto, the "Borrowers"), Holdings, the Lender Parties and the Administrative Agent have entered into a Credit Agreement dated as of October 5, 2001, as amended by Amendment No. 1 dated as of December 16, 2002, Amendment No. 2 dated as of April 3, 2003, Amendment No. 3 dated as of December 18, 2003 and Amendment No. 4 dated as of April 19, 2004 (as further amended, supplemented or otherwise modified from time to time, the "Credit Agreement"). Capitalized terms not otherwise defined in this Amendment have the same meanings as specified in the Credit Agreement.
    2. Holdings and the Required Lenders have agreed to amend the Credit Agreement as hereinafter set forth.
      1. Amendments to Credit Agreement
      2. . The Credit Agreement is, effective as of the date hereof and subject to the satisfaction of the conditions precedent set forth in Section 4, hereby amended as follows:

        1. The definition of "Consolidated EBITDA" in Article I is amended by inserting after clause "(o)" therein the following new clause to read as follows:
        2. "plus (p) all cash restructuring charges up to a maximum aggregate amount of $30,000,000 incurred from July 1, 2004 through December 31, 2004 in connection with initiatives designed primarily to reduce selling, general and administrative expenses in worldwide operations".

        3. The table in Section 5.04(a) is amended in full to read as follows:
        4. Measurement Period

          Ratio

          December 31, 2001 to September 30, 2002
          December 31, 2002 to September 30, 2003
          December 31, 2003 to June 30, 2004
          September 30, 2004 to December 31, 2004
          March 31, 2005
          June 30, 2005 and thereafter

          5.25:1.0
          4.50:1.0
          4.00:1.0
          4.25:1.0
          4.00:1.0
          3.50:1.0

           

        5. The table in Section 5.04(d) is amended in full to read as follows:

        Measurement Period

        Ratio

        December 31, 2001 to September 30, 2002
        December 31, 2002 to September 30, 2003
        December 31, 2003 to June 30, 2004
        September 30, 2004 to December 31, 2004
        March 31, 2005
        June 30, 2005 and thereafter

        2.50:1.0
        3.00:1.0
        3.50:1
        3.00:1
        3.25:1.0
        3.50:1.0

      3. Additional Agreement
      4. . The undersigned Lenders hereby acknowledge that the Company redeemed $24,455,000 of the October Convertible Notes on June 11, 2004 using, in part, proceeds of Revolving Credit Borrowings, and by this reference do hereby confirm that such redemption is approved in all respects.

      5. Fees
      6. . On the date hereof, Holdings shall pay to the Administrative Agent, for the benefit of each Lender that executes this Amendment by no later than 1:00 PM (New York time) on Tuesday, August 3, 2004, an upfront fee equal to 0.10% of the aggregate Commitments of each such Lender under the Credit Agreement as of the date hereof.

      7. Conditions of Effectiveness
      8. . This Amendment shall become effective as of the date first above written (or, in the case of Section 2, as of June 11, 2004) when, and only when, the Administrative Agent shall have received counterparts of this Amendment executed by Holdings and the Required Lenders or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment; and Sections 1 and 2 of this Amendment shall become effective as of the date hereof (or, in the case of Section 2, as of June 11, 2004) when and only when the Administrative Agent shall have received (a) the fees specified in Section 3 hereof and the payment of all accrued fees and expenses of the Administrative Agent (including the reasonable accrued fees and expenses of counsel to the Administrative Agent invoiced on or prior to the date hereof) and (b) all of the following documents, each such document dated the date of receipt thereof by the Administrative Agent (unless otherwise specified), in form and substa nce satisfactory to the Administrative Agent:

          1. Counterparts of the Consent appended hereto (the "Consent"), executed by each of the Loan Parties (other than Holdings);
          2. Certified copies of (A) the resolutions of the Board of Directors of (1) Holdings approving this Amendment and the matters contemplated hereby and (2) each other Loan Party evidencing approval of the Consent and (B) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and all other matters contemplated hereby;
          3. A certificate signed by a duly authorized officer of Holdings stating that: (A) the representations and warranties contained in Section 5 hereof and in the Loan Documents are true and correct on and as of the date of such certificate as though made on and as of such date other than any such representations or warranties that, by their terms, refer to a date other than the date of such certificate, and (B) no event has occurred and is continuing that constitutes a Default.
      9. Representations and Warranties of Holdings
      10. . Holdings hereby represents and warrants as follows:

          1. Each Loan Party is duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation.
          2. The execution, delivery and performance by each Loan Party of this Amendment and the Consent, as applicable, to which it is a party, are within such Person's corporate or other powers, have been duly authorized by all necessary corporate or other action and do not (i) contravene such Person's Constitutive Documents, (ii) violate any Requirement of Law, (iii) conflict with or result in the breach of, or constitute a default under, any contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting any Loan Party, any of its Subsidiaries or any of their properties or (iv) except for the Liens created under the Collateral Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries.
          3. No Governmental Authorization, and no other authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or any other third party is required for the due execution, delivery or performance by any Loan Party of this Amendment or the Consent.
          4. This Amendment and the Consent have been duly executed and delivered by each Loan Party which is a party thereto. This Amendment and the Consent are legal, valid and binding obligations of each Loan Party which is a party thereto, enforceable against each such Loan Party in accordance with their respective terms.
          5. There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or, to the knowledge any Loan Party, threatened before any Governmental Authority or arbitrator that purports to affect the legality, validity or enforceability of this Amendment or the Consent, or the consummation of any of the transactions contemplated hereby.
          6. The execution, delivery and performance of this Amendment and the Consent do not adversely affect the Liens created under any of the Collateral Documents.
      11. Reference to and Effect on the Loan Documents
      12. . (a) On and after the effectiveness of this Amendment, each reference in the Credit Agreement to "this Agreement", "hereunder", "hereof" or words of like import referring to the Credit Agreement, and each reference in the Notes and each of the other Loan Documents to "the Credit Agreement", "thereunder", "thereof" or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement, as amended by this Amendment.

            1. The Credit Agreement, the Notes and each of the other Loan Documents, as specifically amended by this Amendment, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. Without limiting the generality of the foregoing, the Collateral Documents and all of the Collateral described therein do and shall continue to secure the payment of all Obligations of the Loan Parties under the Loan Documents, in each case as amended by this Amendment.
            2. The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents.
      13. Costs, Expenses
      14. . The Borrower agrees to pay on demand all costs and expenses of the Administrative Agent in connection with the preparation, execution, delivery and administration, modification and amendment of this Amendment and the other instruments and documents to be delivered hereunder (including, without limitation, the reasonable fees and expenses of counsel for the Administrative Agent) in accordance with the terms of Section 8.04 of the Credit Agreement.

      15. Execution in Counterparts
      16. . This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment by telecopier shall be effective as delivery of a manually executed counterpart of this Amendment.

      17. Governing Law

. This Amendment shall be governed by, and construed in accordance with, the laws of the State of New York.

[remainder of this page intentionally left blank]

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written.

 

ALPHARMA INC.

By: Matthew T. Farrell
Title: Executive Vice President, Finance & Chief Financial Officer

 

BANK OF AMERICA, N.A.,
as Administrative Agent
By: Aamir Saleem
Title: Principal

 

BANK OF AMERICA, N.A.,
as Collateral Agent and Lender
By: Joseph L. Corah
Title: Principal

Agreed as of the date first above written:

AIM FLOATING RATE FUND
By:/s/ __________________
Title:

APEX (TRIMARAN) CDO I, LTD.
By: /s/ David M. Millison
Title: Managing Director

ARCHIMEDES FUNDING III, LTD.
By:/s/ Michael D. Hatley
Title: Managing Director

ARCHIMEDES FUNDING IV (Cayman), LTD.
By:/s/ Michael D. Hatley
Title: Managing Director

ATHENA CDO, LIMITED
By: /s/ Mohan V. Phansalkar
Title: Managing Director

AVALON CAPITAL LTD.
By:/s/ Thomas H.B. Ewald
Title: Authorized Signatory

AVALON CAPITAL LTD. 2
By:/s/ Thomas H.B. Ewald
Title: Authorized Signatory

BANK OF MONTREAL
By: /s/ Greg Walker
Title:

BEAR STEARNS INVESTMENT PRODUCTS INC.
By: /s/ Keith C.Barnish
Title: Vice President

BLACK DIAMOND CLO 1998-1 LTD.
By:/s/ Alan Corkish
Title: Director

BLACK DIAMOND CLO 2000-1 LTD.
By:/s/ Alan Corkish
Title: Director

BNP PARIBAS OSLO BRANCH
By: /s/_Paul Fancois Gauvin
Title: Managing Director

BRYN MAWR CLO, LTD.
By:/s/ Dale Burrow
Title: Senior Vice President

CALLIDUS DEBT PARTNERS CLO FUND II, LTD.
By:/s/ Mavis Taintor
Title: Managing Director

CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Marc Berg
Title: Authorized Signatory

CAPTIVA III FINANCE LTD.
By: /s/ David Dyer
Title: Director

CARLYLE HY PARTNERS II LTD
By: /s/_Linda Pace
Title: Managing Director

CARLYLE HY PARTNERS III LTD
By: /s/_Linda Pace
Title: Managing Director

CARLYLE HY PARTNERS IV LTD
By: /s/_Linda Pace
Title: Managing Director

CARLYLE HY PARTNERS, LP
By: /s/_Linda Pace
Title: Managing Director

CARLYLE LOAN OPPORTUNITY FUND
By: /s/_Linda Pace
Title: Managing Director

CENTURION CDO II, LTD.
By: /s/ Leanne Stavrakis
Title: Director - Operations

CENTURION CDO VI, LTD.
By: /s/ Leanne Stavrakis
Title: Director - Operations

CENTURION CDO VII, LTD.
By: /s/ Leanne Stavrakis
Title: Director - Operations

CHAMPLAIN CLO LTD.
By: /s/ Thomas H. B. Ewald
Title: Authorized Signatory

CHARTER VIEW PORTFOLIO
By: /s/ Thomas H. B. Ewald
Title: Authorized Signatory

CITICORP USA, INC.
By: /s/ Allen Fisher
Title: Vice President

CITIGROUP INVESTMENTS CORPORATE LOAN FUND INC. TRAVELERS ASSET MANAGEMENT INTERNATIONAL COMPANY LLC
By: /s/ Maura K. Connor
Title: Vice President

CLYDESDALE CLO 2001-1, LTD.
By: /s/ Elizabeth Maclean
Title: Director

CLYDESDALE CLO 2003, LTD.
By: /s/ Elizabeth Maclean
Title: Director

COLUMBUS LOAN FUNDING, LTD. TRAVELERS ASSET MANAGEMENT INTERNATIONAL COMPANY LLC
By: /s/ Maura K. Connor
Title: Vice President

DELANO COMPANY
By: /s/ Mohan V. Phansalkar
Title: Managing Director

DNB NOR BANK ASA (formerly known as Den Norske Bank ASA)
By: /s/ Berit Henriksen
Title: Executive Vice President
By: /s/ Philip F. Kurpiewski
Title: First Vice President

DENALI CAPITAL CLO I LTD.
By: /s/ Charles A. Stearns
Title: Vice President

DENALI CAPITAL CLO II LTD.
By: /s/ Charles A. Stearns
Title: Vice President

DENALI CAPITAL CLO III LTD.
By: /s/ Charles A. Stearns
Title: Vice President

DIVERSIFIED CREDIT PORTFOLIO LTD
By: /s/ Thomas H.B. Ewald
Title: Authorized Signatory

EMERALD ORCHARD LIMITED
By: /s/ Stacey Malek
Title: Attorney In Fact

ENDURANCE CLO I, LTD.
By: /s/ Michael D. Hatley
Title: Managing Director

FIDELITY ADVISOR SERIES II: FIDELITY ADVISOR FLOATING RATE HIGH INCOME FUND
By: /s/ John H. Costello
Title: Assistant Treasurer

FLAGSHIP CLO 2001-1
By: /s/ Eric S. Meyer
Title: Director

FLAGSHIP CLO II
By: /s/ Eric S. Meyer
Title: Director

FOREST CREEK CLO, LTD
By: /s/ Dale Burrow
Title: Senior Vice President

GALAXY CLO 1999-1 LTD
By: /s/ Steven S. Oh
Title: Managing Director

HIGHLAND LOAN FUNDING V, LTD.
By: /s/ Todd Travers
Title: Senior Portfolio Manager

HSH NORDBANK AG
By: /s/ Steffen Anderson
Title: Head of Commercial Banking Prodcuts
By: /s/ Volker Schliecker
Title: Deputy Head of Commercial Banking
Products

INDOSUEZ CAPITAL FUNDING IIA, LIMITED
By: /s/ Charles Krobayashi
Title: Principal and Portfolio Manager

ING-ORYX CLO, LTD.
By: /s/ Michael D. Hatley
Title: Managing Director

INVESCO CBO 2000-1 LTD.
By:/s/ Thomas H.B. Ewald
Title: Authorized Signatory

JUPITER LOAN FUNDING LLC
By: /s/ Diana M. Himes
Title: Assistant Vice President

KATONAH I, LTD.
By: /s/ Ralph Della Rocca
Title: Authorized Officer

KATONAH II, LTD.
By: /s/ Ralph Della Rocca
Title: Authorized Officer

KATONAH III, LTD.
By: /s/ Ralph Della Rocca
Title: Authorized Officer

KATONAH IV, LTD.
By: /s/ Ralph Della Rocca
Title: Authorized Officer

KZH CYPRESSTREE-1 LLC
By: /s/ Hi Hua
Title: Authorized Agent

KZH SOLEIL LLC
By: /s/ Hi Hua
Title: Authorized Agent

KZH SOLEIL-2 LLC
By: /s/ Hi Hua
Title: Authorized Agent

KZH STERLING LLC
By: /s/ Hi Hua
Title: Authorized Agent

LOAN FUNDING IV, LLC
By: /s/ Todd Travers
Title: Senior Portfolio Manager

LOAN FUNDING VII, LLC
By: /s/ Todd Travers
Title: Senior Portfolio Manager

LONG GROVE CLO, LIMITED
By: /s/ Dale Burrow
Title: Senior Vice President

ML CLO XII PILGRIM AMERICA (CAYMAN) LTD.
By: /s/ Michael Prince
Title: Vice President

MOUNTAIN CAPITAL CLO I LTD.
By: /s/ Chris Siddons
Title: Director

MOUNTAIN CAPITAL CLO II LTD.
By: /s/ Chris Siddons
Title: Director

MUIRFIELD TRADING LLC
By: /s/ Meredith J. Koslick
Title: Assistant Vice President

NATIONAL CITY BANK
By: /s/ Michael A. Moose
Title: Account Officer

NEAMAN CLO, LTD.
By: /s/ Michael D. Hatley
Title: Managing Director

NOMURA BOND & LOAN FUND
By: /s/ Elizabeth MacLean
Title: Director

ORIX FUNDING LLC
By: /s/ Diana M. Himes
Title: Assistant Vice President

PAMCO CAYMAN, LTD
By: /s/ Todd Travers
Title: Senior Portfolio Manager

PILGRIM CLO 1999-1 LTD
By: /s/ Michael Prince
Title: Vice President

PROTECTIVE LIFE INSURANCE COMPANY
By: /s/ Diane S. Griswald
Title: Assistant Vice President

ROSEMONT CLO, LTD
By: /s/ Dale Burrow
Title: Senior Vice President

ROYALTON COMPANY
By: /s/ Mohan V. Phansalkar
Title: Managing Director

SAGAMORE CLO LTD.
By: /s/ Thomas H. B. Ewald
Title: Authorized Signatory

SARATOGA CLO I, LIMITED
By: /s/ Thomas H. B. Ewald
Title: Authorized Signatory

SAWGRASS TRADING LLC
By: /s/ Diana M. Himes
Title: Assistant Vice President

SEABOARD CLO 2000 LTD
By: /s/ William A. Hayes
Title: Managing Director

SEQUILS-CENTURION V. LTD.
By:/s/ Leanne Stavrakis
Title: Director - Operations

SEQUILS CUMBERLAND I, LTD.
By: /s/ Dale Burrow
Title: Senior Vice President

SEQUILS ING-I (HBDGM), LTD.
By: /s/ Michael D. Hatley
Title: Managing Director

SEQUILS LIBERTY, LTD
By: /s/ Thomas H. B. Ewald
Title: Authorized Signatory

SMOKY RIVER CDO, L.P.
By: /s/ Melissa Marano
Title: Authorized Signatory

SPIRIT IV LOAN TRUST 2003-B
By: /s/ Rachel L. Simpson
Title: Financial Services Officer

THE SUMITOMO TRUST & BANKING CO., LTD., NEW YORK BRANCH
By: /s/ Elizabeth A. Quirk
Title: Vice President

SUNAMERICA LIFE INSURANCE COMPANY
By: /s/ Steven S. Oh
Title: Managing Director

THE TRAVELERS INSURANCE COMPANY
By: /s/ Matthew J. McInerny
Title: Investment Banker

TRS 1 LLC
By: /s/ Deborah O'Keeffe
Title: Vice President

WINGED FOOT FUNDING TRUST
By: /s/ Diana M. Himes
Title: Authorized Agent

 

CONSENT

Dated as of August 3, 2004

Each of the undersigned, as Guarantors under, as applicable, the (i) Parent Guaranty dated as of October 5, 2001, (ii) Subsidiary Guaranty dated as of October 5, 2001 or (iii) Subsidiary Guaranty dated as of December 26, 2001, in each case in favor of the Secured Parties referred to therein (collectively, the "Guaranty"), hereby consents to the foregoing Amendment and hereby confirms and agrees that (a) notwithstanding the effectiveness of such Amendment, the Guaranty is, and shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects, except that, on and after the effectiveness of such Amendment, each reference in the Guaranty to the "Credit Agreement", "thereunder", "thereof" or words of like import shall mean and be a reference to the Credit Agreement, as amended by such Amendment, and (b) each of the Collateral Documents to which such Guarantor is a party and all of the Collateral described therein do, and shall continue to, secure the p ayment of all of the Secured Obligations (in each case, as defined therein).

ALPHARMA OPERATING CORPORATION

 

By: /s/ Robert F. Wrobel
Title: Secretary

 

ALPHARMA USPD INC.

 

By: /s/ Robert F. Wrobel
Title: Secretary

 

ALPHARMA U.S. INC.

 

By: /s/ Robert F. Wrobel
Title: Secretary

 

BARRE PARENT CORPORATION

 

By: /s/ Robert F. Wrobel
Title: Secretary

 

 

 

 

G.F. REILLY COMPANY

 

By: /s/ Robert F. Wrobel
Title: Secretary

 

PARMED PHARMACEUTICALS, INC.

 

By: /s/ Robert F. Wrobel
Title: Secretary

 

ALPHARMA EURO HOLDINGS INC.

 

By: /s/ Robert F. Wrobel
Title: Secretary

 

ALPHARMA (BERMUDA) INC.

 

By: /s/ Robert F. Wrobel
Title: Secretary

 

ALPHARMA USHP INC.

 

By: /s/ Robert F. Wrobel
Title: Secretary

 

ALPHARMA US PHARMACEUTICAL LLC

 

By: /s/ Robert F. Wrobel
Title: Secretary

 

ALPHARMA ANIMAL HEALTH COMPANY

 

By: /s/ Robert F. Wrobel
Title: Secretary

 

 

 

MIKJAN CORPORATION

 

By: /s/ Robert F. Wrobel
Title: Secretary

 

ALPHARMA NW INC.

 

By: /s/ Robert F. Wrobel
Title: Secretary

 

NMC LABORATORIES, INC.

 

By: /s/ Robert F. Wrobel
Title: Secretary

 

US ORAL PHARMACEUTICALS PTY LTD

 

By: /s/ Robert F. Wrobel
Title: Secretary

 

ALPHARMA HOLDINGS INC.

 

By: /s/ Robert F. Wrobel
Title: Secretary

 

ALPHARMA PHARMACEUTICALS INC.

 

By: /s/ Robert F. Wrobel
Title: Secretary

 

POINT HOLDINGS INC.

 

By: /s/ John W. LaRocca
Title: Secretary

 

 

 

PUREPAC PHARMACEUTICAL HOLDINGS INC.

 

By: /s/ Robert F. Wrobel
Title: Secretary

 

ALPHARMA BRANDED PRODUCTS

DIVISION INC.

 

By: /s/ Robert F. Wrobel
Title: Secretary

 

PUREPAC PHARMACEUTICAL CO.

 

By: /s/ John W. LaRocca
Title: Secretary

 

ALPHARMA INVESTMENT INC.

 

By: /s/ Robert F. Wrobel
Title: Secretary