ANNEX I
AMENDMENT NO. 2 TO AMENDED AND RESTATED CREDIT AGREEMENT
AND
AMENDMENT NO. 1 TO AMENDED AND RESTATED
HOLDCO GUARANTY AND PLEDGE AGREEMENT
THIS AMENDMENT NO. 2 TO AMENDED AND RESTATED CREDIT
AGREEMENT AND AMENDMENT NO. 1 TO AMENDED AND RESTATED HOLDCO GUARANTY AND PLEDGE
AGREEMENT (this "AMENDMENT"), dated as of January 11, 2002, among ▇▇▇▇▇▇▇ River
Laboratories, Inc., a Delaware corporation (the "BORROWER"), ▇▇▇▇▇▇▇ River
Laboratories International, Inc. (f/k/a ▇▇▇▇▇▇▇ River Laboratories Holdings,
Inc.), a Delaware corporation ("HOLDCO"), Credit Suisse First Boston, 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 administrative agent (the "ADMINISTRATIVE AGENT") for the Lenders.
W I T N E S S E T H:
WHEREAS, the Borrower, 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, Holdco and the Administrative Agent are parties to the Amended
and Restated Holdco Guaranty and Pledge Agreement, dated as of February 6, 2001
(as heretofore modified and supplemented and in effect from time to time, the
"EXISTING HOLDCO GUARANTY" and as further amended hereby, the "HOLDCO
GUARANTY");
WHEREAS, Holdco desires, among other things, to (a) issue up to
$200,000,000 in aggregate principal amount of its convertible senior unsecured
debentures that, subject to certain conditions set forth therein, may be
converted to common stock of Holdco and (b) make a cash contribution and/or an
intercompany loan of all of the net cash proceeds from such issuance to the
Borrower;
WHEREAS, the Borrower desires, among other things, to use the proceeds of
such cash contribution and intercompany loan to (a) redeem and/or defease and
redeem all of its outstanding Senior Subordinated Notes and (b) use any amount
remaining following such redemption and/or defeasance and redemption for general
corporate purposes; and
WHEREAS, the Borrower and Holdco desire, and the Lenders are willing, on
the terms and subject to the conditions hereinafter set forth, to amend the
Existing Credit Agreement and the Holdco Guaranty as set forth herein to permit
them to do so;
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 4.1.
"BORROWER" is defined in the PREAMBLE.
"CREDIT AGREEMENT" is defined in FIRST RECITAL.
"EXISTING CREDIT AGREEMENT" is defined in the FIRST RECITAL.
"EXISTING HOLDCO GUARANTY" is defined in the SECOND RECITAL.
"HOLDCO" is defined in the PREAMBLE.
"HOLDCO GUARANTY" is defined in the SECOND RECITAL.
"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 EXISTING 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 Existing 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.
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(a) Section 1.1 of such Article is hereby amended by inserting the
following definitions in such Section in the appropriate alphabetical order:
"AMENDMENT NO. 2" means Amendment No. 2 to Amended and Restated
Credit Agreement and Amendment No. 1 to Amended and Restated Holdco
Guaranty and Pledge Agreement, dated as of January 11, 2002, among the
Borrower, Holdco and the Agents, which amendment was consented to by the
Lenders constituting the Required Lenders.
"CONVERTIBLE SENIOR UNSECURED DEBENTURES" is defined in Section
5.9(b)(i) of the Holdco Guaranty and Pledge Agreement.
"CONVERTIBLE SENIOR UNSECURED DEBENTURES CASH CONTRIBUTION" is
defined in Section 5.9(b)(i) of the Holdco Guaranty and Pledge Agreement.
"CONVERTIBLE SENIOR UNSECURED DEBT" means the Indebtedness evidenced
by the Convertible Senior Unsecured Debentures, if any.
"CONVERTIBLE SENIOR UNSECURED DEBT DOCUMENTS" means the Convertible
Senior Unsecured Debentures and all other instruments, agreements or other
documents evidencing or governing any Convertible Senior Unsecured Debt or
pursuant to which any Convertible Senior Unsecured Debt has been issued.
"DESIGNATED ACCOUNT" means a securities account (as defined in
Section 8-501 of the UCC) maintained by a securities intermediary (as
defined in Section 8-102(a)(14) of the UCC) satisfactory to Holdco and the
Agents pursuant to the Designated Account Agreement.
"DESIGNATED ACCOUNT AGREEMENT " means an account control agreement
in form and substance satisfactory to the Agents, among Holdco, as debtor,
the Administrative Agent, as secured party, and a securities intermediary
(as defined in Section 8-102(a)(14) of the UCC) satisfactory to Holdco and
the Agents, which agreement shall provide for, among other things, that
(a) the Administrative Agent will have control (as defined in Section
8-106 of the UCC) over the Designated Account and the financial assets (as
defined in Section 8-102(a)(9) of the UCC) credited thereto, (b) Holdco
may only issue entitlement orders (as defined in Section 8-102(a)(8) of
the UCC) to such securities intermediary that direct such securities
intermediary to transfer or redeem and transfer any such financial asset
to (i) pay the Convertible Senior Unsecured Debentures or (ii) the
Borrower and (c) such securities intermediary shall agree (i) not to
comply with any such entitlement order from Holdco following notice by the
Administrative Agent to Holdco that an Event of Default has occurred, (ii)
to follow any entitlement order issued to such securities intermediary by
the Administrative Agent following the giving of such notice by the
Administrative Agent, (iii) waive its right of set-off against the
Designated Account and the assets therein and (iv) to treat all cash and
all other property in the Designated Account as financial assets (as
defined in Section 8-102(a)(9)(iii) of the UCC).
"HOLDCO INTERCOMPANY LOAN" is defined in CLAUSE (L) of SECTION 7.2.2.
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"HOLDCO INTERCOMPANY NOTE" is defined in clause (l) of Section 7.2.2.
"SENIOR SUBORDINATED INDENTURE" means the Indenture, dated as of
September 29, 1999, among the Borrower, the guarantors parties thereto and
State Street Bank and Trust Company, as trustee.
(b) The definition of "Debt" contained in Section 1.1 of such Article is
hereby amended to insert the words "Holdco and" immediately following the words
"the outstanding principal amount of all Indebtedness of" and immediately
preceding the words "the Borrower and its Restricted Subsidiaries" in such
definition.
(c) Clause (vi) of the definition of "Excluded Equity Proceeds" contained
in Section 1.1 of such Article is hereby amended and restated in its entirety to
read as follows: "(vi) the issuance by Holdco of (A) any of its common stock to
repay or prepay or effect the conversion of (1) the PAIC Subordinated
Convertible Note in accordance with the proviso to CLAUSE (b) of SECTION 7.2.6
or (2) the Convertible Senior Unsecured Debentures in accordance with the terms
thereof and (B) $16,500,000 of its common stock in connection with the Primedica
Related Issuance,".
(d) Clause (b)(iii) of the definition of "Fixed Charge Coverage Ratio"
contained in Section 1.1 of such Article is hereby amended by deleting the
clause reference "(c)(iii)(y) of SECTION 7.2.6" contained in such definition and
inserting the clause reference "(c)(iii)(y)(II) of SECTION 7.2.6" in lieu
thereof.
(e) The last sentence of the definition of "Indebtedness" contained in
Section 1.1 of such Article is hereby amended by:
(i) inserting the clause lettering "(x)" immediately following the
words "the Indebtedness of any Person shall" and immediately preceding the
words "include the Indebtedness of any partnership or joint venturer" in
such sentence; and
(ii) inserting the words "and (y) exclude the Senior Subordinated
Debt and any Contingent Liabilities in respect thereof so long as,
following the defeasance of the Senior Subordinated Debt pursuant to
clause (y) of the proviso to SECTION 7.2.6(b), Sections 4.07, 4.08, 4.09,
4.11, 4.12, 4.14, 4.15, 4.16 and 4.17 of the Senior Subordinated Indenture
are not binding upon the Borrower or any of its Restricted Subsidiaries"
immediately following the words "such Person is liable for such
Indebtedness)" and immediately preceding the period (".") at the end of
such sentence.
(f) The definition of "Interest Expense" contained in Section 1.1 of such
Article is hereby amended by inserting a new sentence at the end of such
definition, which new sentence shall read in its entirety as follows:
"Notwithstanding anything to the contrary herein, Interest Expense shall
include interest expense of Holdco in respect of the Convertible Senior
Unsecured Debentures but shall exclude interest expense of the Borrower in
respect of the Holdco Intercompany Loan.
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(g) Clause (a) of the definition of "Leverage Ratio" contained in Section
1.1 of such Article is hereby amended and restated in its entirety to read as
follows:
"(a) total Debt less the sum of (i) cash and Cash Equivalent
Investments of the Borrower and its Restricted Subsidiaries on a
consolidated basis outstanding at such time and (ii) cash and Cash
Equivalent Investments of Holdco that are held in the Designated
Account;".
(h) The definition of "Loan Document" contained in Section 1.1 of such
Article is hereby amended to insert the words "the Designated Account
Agreement," immediately following the words "each Pledge Agreement," and
immediately preceding the words "the Subsidiary Guaranty" in such definition.
(i) The definition of "Material Documents" contained in Section 1.1 of
such Article is hereby amended by inserting the words ", the Convertible Senior
Unsecured Debt Documents" immediately following the words "the Primedica
Purchase Agreement " and immediately preceding the words "and the Senior
Subordinated Debt Documents" in such definition.
(j) Section 1.4 of such Article is hereby amended by inserting a new
clauses (c) and (d) at the end of such Section, which new clauses (c) and (d)
shall read in their entirety as follows:
"(c) Notwithstanding anything to the contrary herein, cash and
securities of the Borrower and its Restricted Subsidiaries that are
deposited into an irrevocable trust in connection with the defeasance of
the Senior Subordinated Notes in accordance with CLAUSE (y)(bb) of the
proviso to CLAUSE (b) of SECTION 7.2.6 shall not constitute assets of the
Borrower or such Restricted Subsidiary following the making of such
deposit.
(d) Notwithstanding anything to the contrary herein, in determining
`the cash portion of Interest Expense (net of interest income)' for
purposes of clause (b)(i) of the definition of the term `Excess Cash
Flow', clause (b)(i) of the definition of the term `Fixed Charge Coverage
Ratio' and clause (b)(i) of the definition of the term `Interest Coverage
Ratio', interest income shall include interest income earned by Holdco.".
SUBPART 2.2 AMENDMENTS TO ARTICLE VII. Section 7.2. of the Existing Credit
Agreement is hereby amended as set forth in this Subpart 2.2.
(a) Section 7.2.2 of the Existing Credit Agreement is hereby amended by:
(i) inserting the words "until the date that such Indebtedness is
defeased in accordance with CLAUSE (y)(bb) of the proviso to CLAUSE (b) of
SECTION 7.2.6" immediately following the words "and subordinated
guarantees thereof" and immediately preceding the semicolon (";") at the
end of clause (e) of such Section;
(ii) deleting the word "and" following the semicolon (";") at the end
of clause (j) of such Section;
(iii) deleting the period at the end of clause (k) of such Section
and inserting the text "; and" in lieu thereof: and
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(iv) inserting a new clause (1) to such Section immediately following
clause (k) thereof, which new clause (l) shall read in its entirety as
follows:
"(1) unsecured Indebtedness of the Borrower owing to Holdco
and consisting of one or more intercompany loans (collectively, the
`HOLDCO INTERCOMPANY LOAN') made by Holdco to the Borrower with the
net cash proceeds of the issuance of the Convertible Senior
Unsecured Debt or pursuant to the proviso to Section 7.2.6(b)(i)(B)
or Section 5.3 of the Holdco Guaranty and Pledge Agreement, which
intercompany loans shall (A) not mature prior to the sixth
anniversary of the issuance thereof and (B) be evidenced by a single
promissory note (the `HOLDCO INTERCOMPANY NOTE') in form and
substance reasonably satisfactory to the Agents which shall be duly
executed and delivered to (and indorsed to the order of) the
Administrative Agent in pledge pursuant to the Holdco Guaranty and
Pledge Agreement;".
(b) Clause (b) of Section 7.2.6 is hereby amended and restated in its
entirety to read as follows:
"(b) the Borrower will not, and will not permit any of its Restricted
Subsidiaries to, (i) directly or indirectly make any payment or prepayment
of principal of, or make any payment of interest on, (A) any Senior
Subordinated Debt or the Indebtedness evidenced by the PAIC Subordinated
Convertible Note on any day other than the stated, scheduled date for such
payment or prepayment set forth in the Senior Subordinated Debt Documents
or the PAIC Subordinated Convertible Note or which would violate the
subordination provisions of such Senior Subordinated Debt Documents or the
PAIC Subordinated Convertible Note or (B) the Holdco Intercompany Loan on
any day other than payments of cash interest on the stated, scheduled date
for such payment set forth in the Holdco Intercompany Note (PROVIDED,
HOWEVER, that such payments of interest on the Holdco Intercompany Loan
may only be made so long as no Default shall have occurred and be
continuing on the date such payment is to be made and to the extent the
proceeds of such payment are not concurrently applied by Holdco upon its
receipt thereof to the payment of cash interest on the Convertible Senior
Unsecured Debentures, Holdco shall make a cash contribution or an
intercompany loan that is evidenced by the Holdco Intercompany Note, which
cash contribution or intercompany loan, shall be in the amount of such
proceeds not so applied to the payment of cash interest on the Convertible
Senior Unsecured Debentures to the Borrower on the date such payment is
made) or (ii) redeem, purchase or defease any Senior Subordinated Debt or
Indebtedness evidenced by the PAIC Subordinated Convertible Note or the
Holdco Intercompany Note; PROVIDED, HOWEVER, that all Indebtedness
(whether consisting of principal or interest) that is evidenced by (x) the
PAIC Subordinated Convertible Note may (A) be repaid or prepaid in
accordance with the conversion provisions thereof so long as (1) no cash
is paid by or on behalf of the Borrower in connection therewith and (2)
the sole consideration for such repayment or prepayment is common stock of
Holdco (such repayment or prepayment referred to herein as the `PAIC
CONVERSION EVENT') or (B) be repaid or prepaid in cash with the proceeds
of the issuance by Holdco of its Capital Stock so long as no Event of
Default has occurred and is the n outstanding and (y) all (and not less
than all) of the Senior Subordinated Notes may be (aa) redeemed and/or
(bb) defeased and redeemed, in
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each case, (I) in accordance with the terms and conditions set forth in
the Senior Subordinated Debt Documents (including in the case of such
defeasance and redemption, the applicable terms and conditions set forth
in Section 8.04 of the Senior Subordinated Indenture) and pursuant to
documentation in form and substance reasonably satisfactory to the Agents
(which documentation shall be certified by an Authorized Officer of the
Borrower as being true and complete), (II) with the proceeds of the
Convertible Senior Unsecured Debentures Cash Contribution and/or the
Holdco Intercompany Loan (other than the Holdco Intercompany Loans made
pursuant to the proviso to SECTION 7.2.6(b)(i)(B)) and (III) so long as no
Event of Default has occurred and is then continuing;".
(c) Clause (c)(iii)(y) of Section 7.2.6 of the Existing Credit Agreement
is hereby amended by inserting the words "(I) the Convertible Senior Unsecured
Debentures and (II)" immediately following the words "make cash payments of
interest with respect to" and immediately preceding the words "the Senior
Discount Debentures in accordance with the terms thereof" contained in such
clause.
PART III
AMENDMENTS TO EXISTING HOLDCO GUARANTY
Effective on (and subject to the occurrence of) the Amendment Effective
Date, the Existing Holdco Guaranty is hereby amended in accordance with this
Part III. Except to the extent amended by this Amendment, the Existing Holdco
Guaranty is and shall continue to be in full force and effect and is hereby
ratified and confirmed in all respects.
SUBPART 3.1 AMENDMENTS TO ARTICLE I. Article I of the Holdco Guaranty is
amended as set forth in this Subpart 3.1.
(a) Section 1.1 of such Article is hereby amended by inserting the
following definition in such Section in the appropriate alphabetical order:
"PLEDGED NOTE" means the Holdco Intercompany Note or other
promissory note issued in substitution therefor, as amended, modified or
supplemented from time to time.
(b) The definition of "Pledged Property" contained in Section 1.1 of such
Article is hereby amended to insert the words "the Pledged Note," immediately
following the words "all other pledged shares of Capital Stock," and immediately
preceding the words "all other securities" in such definition.
SUBPART 3.2 AMENDMENTS TO ARTICLE II. Article II of the Existing Holdco
Guaranty is amended as set forth in this Subpart 3.2.
(a) Section 2.1 of such Article is hereby amended by as follows:
(i) clauses (c), (d) and (e) of such Section are hereby relettered as
clauses (d), (e) and (g), respectively;
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(ii) a new clause (c) is hereby inserted in such Section immediately
following clause (b) and immediately preceding such relettered clause (d) of
such Section, which new clause (c) shall read in its entirety as follows:
"(c) the Pledged Note;";
(iii) such relettered clause (e) is hereby amended by (A) inserting
the words "interest," immediately following the words "all Dividends,
Distributions," and immediately preceding the words "and other payments and
rights" in such clause and (B) deleting the word "and" at the end of such
clause; and
(iv) a new clause (f) is hereby inserted in such Section immediately
following relettered clause (e) and immediately preceding such relettered clause
(g) of such Section, which new clause (f) shall read in its entirety as follows:
"(f) the Designated Account, if any, all cash, securities,
financial assets and other assets therein and all interest, earnings and
proceeds in respect thereof;".
(b) Section 2.3 of such Article is hereby amended by
(i) inserting the words "and the Pledged Note" immediately following
the words "including all Pledged Shares" and immediately preceding the words ",
shall (to the extent" in such Section; and
(ii) inserting the words "(and, in the case of the Pledged Note,
endorsed to the order of)" immediately following the words "delivered to
and held by or on behalf of" and immediately preceding the words "the
Administrative Agent pursuant hereto" in such Section.
(c) The last sentence of Section 2.5 of such Article is hereby amended by
ins erting the words "and the Pledged Note" immediately following the words
"representing or evidencing all Pledged Shares" and immediately preceding the
words ", together with all other Collateral" in such Section.
SUBPART 3.3 AMENDMENTS TO ARTICLE IV. Article IV of the Existing Holdco
Guaranty is amended as set forth in this Subpart 3.3.
(a) Section 4.1 of such Article is hereby amended by inserting the words
"and the Pledged Note" immediately following the words "(including each pledge
and delivery of Pledged Shares" and immediately preceding the words ") by Holdco
to the Administrative Agent " in such Section.
(b) Section 4.1.3 of such Article is hereby amended by and restated in its
entirety to read as follows:
"SECTION 4.1.3. VALID SECURITY INTEREST. The execution and delivery
of this Agreement, together with (a) in the case of the Collateral (other
than the Collateral
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described in CLAUSE (f) of SECTION 2.1), the delivery of such Collateral
to the Administrative Agent and (b) in the case of the Collateral
described in CLAUSE (f) of SECTION 2.1, the execution and delivery to the
Administrative Agent of the Designated Account Agreement by the parties
thereto, is effective to create a valid, perfected, first-priority
security interest in such Collateral and all proceeds thereof, securing
the Secured Obligations, subject only to Liens of the type referred to
in clauses (b), (d) and (g) of Section 7.2.3 of the Credit Agreement.
Possession by the Administrative Agent of the Collateral (other than the
Collateral described in CLAUSE (f) of SECTION 2.1) and the effectiveness
of the Designated Account Agreement is the only action necessary to
perfect or protect such security interest in all of the Collateral,
subject to Section 9-315 of the U.C.C.
(c) Section 4.1.4 of such Article is hereby amended by
(i) inserting the words "THE PLEDGED NOTE AND THE DESIGNATED ACCOUNT"
immediately following the words "AS TO PLEDGED SHARES" and immediately
preceding the period (".") in the heading of such Section;
(ii) inserting the clause lettering "(a)" immediately following the
heading to such Section and immediately preceding the first sentence of
such Section; and
(iii) inserting new clauses (b) and (c) at the end of such Section,
which new clauses (b) and (c) shall read in their entirety as follows:
"(b) The Pledged Note has been duly authorized, executed,
endorsed, issued and delivered and is the legal, valid and binding
obligation of the Borrower.
(c) The Administrative Agent shall have the right to apply any
amount in the Designated Account to the payment of any Obligations
which are due and payable or payable upon demand.".
SUBPART 3.4 AMENDMENTS TO ARTICLE V. Article V of the Existing Holdco
Guaranty is amended as set forth in this Subpart 3.4.
(a) Section 5.3 of such Article is hereby amended by inserting (i) the
words "the Pledged Note, all interest, principal and other proceeds with respect
to the Pledged Note," immediately following the words "all Dividends and
Distributions with respect thereto," and immediately preceding the words "and
all other Collateral and other securities" in such Section and (ii) a new
sentence at the end of such Section, which new sentence shall read in its
entirety as follows:
"Holdco further agrees that it shall not issue any entitlement orders to
the securities intermediary at which the Designated Account is maintained;
PROVIDED, HOWEVER, that Holdco may issue an entitlement order to such
securities intermediary to transfer or redeem and transfer assets in the
Designated Account to make (a) scheduled payments of cash interest in
respect of the Convertible Senior Unsecured Debentures in the amount and
on the date provided for in the Convertible Senior Unsecured Debentures so
long as no Default has occurred and is then outstanding or would result
therefrom and (b) cash
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contributions or an intercompany loan that is evidenced by the Holdco
Intercompany Note to the Borrower."
(b) Section 5.6(b) of such Article is hereby amended by deleting the open
square bracket ("[") and the close square bracket ("]") around the number
"$5,000,000" in such Section.
(c) Section 5.9(b)(i) of such Article is hereby amended by inserting the
words ", unsecured Indebtedness in an aggregate principal amount not
exceeding $200,000,000, which Indebtedness is evidenced by convertible
senior unsecured debentures (the `CONVERTIBLE SENIOR UNSECURED DEBENTURES')
of Holdco (PROVIDED, HOWEVER, that (A) all of the terms and provisions of
the Convertible Senior Unsecured Debentures and the other Convertible Senior
Unsecured Debt Documents shall be reasonably satisfactory to the Agents,
(B) no Default or Event of Default shall have occurred and be then
outstanding both immediately before and after such issuance, (C) after
giving effect to such issuance (and the redemption by the Borrower of all or
any of its Senior Subordinated Notes on the same day of such issuance), the
Borrower shall be in PRO FORMA compliance with the covenants set forth in
clauses (b), (c) and (d) of Section 7.2.4 of the Credit Agreement for the
most recent full Fiscal Quarter immediately preceding the date of the making
of such issuance (and redemptions) for which the relevant financial
information has been delivered pursuant to clause (a) or clause (b) of
Section 7.1.1 of the Credit Agreement, (D) Holdco shall have made (1) a cash
contribution (the `CONVERTIBLE SENIOR UNSECURED DEBENTURES CASH
CONTRIBUTION') and/or (2) the Holdco Intercompany Loan to the Borrower using
all of the net cash proceeds from such issuance to the Borrower upon
Holdco's receipt of such proceeds (PROVIDED, HOWEVER, that Holdco may
withhold from the funding of the Convertible Senior Unsecured Debentures
Cash Contribution and the Holdco Intercompany Loan, (i) a portion of such
net cash proceeds in an amount not exceeding the amount of cash required to
make the first scheduled payment of cash interest on the Convertible Senior
Unsecured Debentures or (ii) any amount of such net cash proceeds so long as
such net cash proceeds are placed in the Designated Account (PROVIDED
FURTHER, HOWEVER, that if the Senior Subordinated Notes are or are to be
redeemed and/or defeased and redeemed at any time, Holdco shall (in the
case of any amounts held in the Designated Account, to the extent permitted
under CLAUSE (b) of the proviso to the last sentence of SECTION 5.3) make a
cash contribution of such withheld cash to the Borrower concurrent with
such redemption and/or defeasance and redemption in an amount necessary to
effect such redemption and/or defeasance and redemption and such cash
contribution shall be deemed to constitute proceeds of the Convertible
Senior Unsecured Debentures Cash Contribution for purposes of the Credit
Agreement)) and (E) prior to or concurrent with the issuance of such
Convertible Senior Unsecured Debentures, an Authorized Officer of Holdco
shall have provided the Agents with a certificate certifying that (1)
attached thereto are true and complete copies of the Convertible Senior
Unsecured Debentures and all other Convertible Senior Unsecured Debt
Documents, together with such notes and documents, (2) after giving effect
to such issuance (and all redemptions by the Borrower of its Senior
Subordinated Notes on the same day of such issuance), the Borrower shall be
in PRO FORMA compliance with the covenants set forth in clauses (b), (c) and
(d) of Section 7.2.4 of the Credit Agreement for the most recent full Fiscal
Quarter immediately preceding the date of the making of such issuance (and
redemptions) for which the relevant financial information has been delivered
pursuant to clause (a) or clause (b) of Section 7.1.1 of the Credit
Agreement, together with calculations in support thereof (in form and detail
reasonably satisfactory to the Agents) and (3) no Default or Event of
Default has or will have occurred and be then outstanding both immediately
before and
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after such is suance)" immediately following the words "unsecured Indebtedness
in respect of the Seller Subordinated Discount Note of Holdco" and immediately
preceding the words "or other Indebtedness consented to by the Required Lenders"
contained at the end of such Section.
(d) Section 5.9(b)(v) of such Article is hereby amended by deleting the
words "any schedules, exhibits or agreements related thereto, in each case"
contained therein and inserting the words "any Convertible Senior Unsecured
Debenture or any other Convertible Senior Unsecured Debt Document" in lieu
thereof.
(e) Section 5.9(b)(vi) of such Article is hereby amended by inserting the
words "(b) (so long as such Investment is maintained in the Designated Account)
or" immediately following the words "an Investment of the type referred to in
clause" and immediately preceding the words "(g) of Section 7.2.5 of the Credit
Agreement" in such Section.
PART IV
CONDITIONS TO EFFECTIVENESS
SUBPART 4.1 AMENDMENT EFFECTIVE DATE. This Amendment shall become
effective as of the date (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 V MISCELLANEOUS
SUBPART 5.1 EXPENSES. The Borrower hereby agrees to pay and reimburse the
Agents for all of their respective 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 Agents.
SUBPART 5.2 BORROWER AND HOLDCO REPRESENTATIONS AND WARRANTIES. The
delivery of an executed counterpart hereof by each of the Borrower and Holdco
shall constitute a representation and warranty by each such Obligor that:
(a) on the Amendment Effective Date, after giving effect to this
Amendment, (i) all representations, warranties and other statements set
forth in Article VI of the Existing Credit Agreement and Article IV of the
Existing Holdco Guaranty, as then amended by this Amendment, are true and
correct in all material respects 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 in all material respects on and as of
such earlier date) and (ii) no Default has occurred and is then
continuing; and
(b) this Amendment constitutes the legal, valid and binding
obligation of each of the Borrower and Holdco enforceable in accordance
with its terms subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other
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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 5.3 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 5.4 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 5.5 COUNTERPARTS. This Ame ndment 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 5.6 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 hereto have executed and delivered this
Amendment as of the date first above written.
BORROWER: ▇▇▇▇▇▇▇ RIVER LABORATORIES, INC.
By:___________________________________
Name:
Title:
HOLDCO: ▇▇▇▇▇▇▇ RIVER LABORATORIES
INTERNATIONAL, INC. (f/k/a ▇▇▇▇▇▇▇
River Laboratories Holdings, Inc.)
By:___________________________________
Name:
Title:
AGENTS : CREDIT SUISSE FIRST BOSTON, as
Syndication Agent
By:___________________________________
Name:
Title:
By:___________________________________
Name:
Title:
FLEET NATIONAL BANK, as Administrative
Agent
By:___________________________________
Name:
Title:
S-1