First Supplemental Indenture - ICN Pharmaceuticals Inc., SPI Pharmaceuticals Inc. and Bank of America NT&SA
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENT TO INDENTURE, dated as of October 14, 1994 between
ICN Pharmaceuticals, Inc. (the "Company"), ICN Merger Corp., a Delaware
corporation and a wholly-owned subsidiary of SPI Pharmaceuticals, Inc. ("New
ICN"), and Bank of America National Trust and Savings Association, as trustee
(the "Trustee"), under the Indenture hereinafter mentioned.
RECITALS OF THE COMPANY
The Company has executed and delivered an indenture (the "Indenture"),
dated as of May 15, 1984, between the Company and the Trustee pursuant to which
ICN has issued $30,000,000 aggregate principal amount of 12.50% Senior
Subordinated Debentures due 1999 (the "Debentures"). On the date hereof, the
principal amount of $20,238,000 remains outstanding.
In accordance with Articles 11 and 12 of the Indenture and pursuant to
resolutions of the Board of Directors of the Company and New ICN, the Company
and New ICN desire to evidence the merger (the "Merger") of the Company and
certain of its affiliates with and into New ICN, pursuant to which New ICN
shall be the surviving corporation, and New ICN's assumption of the Company's
obligations under the Indenture. Upon the effectiveness of the Merger, New ICN
will change its name to ICN Pharmaceuticals, Inc.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH, that,
for and in consideration of the premises and in order to comply with the terms
of Article 12 of the Indenture, New ICN hereby covenants and agrees with the
Trustee as follows:
1. Assumption. Upon the effectiveness of this First Supplemental
Indenture and without further action by the parties hereto, New ICN will
succeed to the Company under the Indenture and assume all of the Company's
obligations with respect to (a) the due and punctual payment of the principal
of and interest on all the Debentures, according to their tenor, and (b) the
due and punctual performance of every covenant of the Company under the
Indenture to be performed or observed by the Company.
2. Covenants. On the effective date of the Merger, New ICN shall
deliver to the Trustee:
(a) an Officers' Certificate stating that as of the time
immediately after the effectiveness of the Merger the covenants of the Company
contained in Section 12.01 of the Indenture have been complied with and New ICN
is not in default under the provisions of the Indenture; and
(b) an Opinion of Counsel stating that in his opinion such
covenants have been complied with and that any instrument or instruments
executed in the performance of such covenants comply with the requirements
thereof.
3. Effectiveness. This First Supplemental Indenture shall be
deemed to be effective immediately upon the filing of the Certificate of Merger
merging the Company and its affiliates into New ICN with the Secretary of State
of the State of Delaware.
4. Instruments to Be Read Together. This First Supplemental
Indenture is an indenture supplemental to and in implementation of the
Indenture, and said Indenture and this First Supplemental Indenture shall
henceforth be read together.
5. Confirmation. The Indenture as amended and supplemented by
this First Supplemental Indenture is in all respects confirmed and preserved.
6. Terms Defined. All terms defined elsewhere in the Indenture
have the same meanings herein.
104
<PAGE> 2
7. Counterparts. This First Supplemental Indenture my be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
8. Governing Law. This First Supplemental Indenture shall be
construed in accordance with and governed by the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, all as of the date and year first
above written.
ICN PHARMACEUTICALS, INC.
By:
---------------------------------
Name: John E. Giordani
Title: Executive Vice President and
Chief Financial Officer
ICN MERGER CORP.
By:
---------------------------------
Name: John E. Giordani
Title: Director and Vice President
BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION
By:
---------------------------------
Name:
Title:
105