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Exhibit (b)(8)
LOAN AGREEMENT
BANK HAPOALIM B.M. As of September 13, 1999
1177 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
This Letter Agreement, including attached Schedule A, Exhibit A, and any
attached Riders, Exhibits, Schedules, Supplements and Modifications
(collectively, the "AGREEMENT") together set forth our mutual agreement as to
the terms and conditions of the credit facility extended by Bank Hapoalim B.M.
(the "BANK") to Teva Pharmaceuticals USA, Inc. (the "BORROWER"). Certain defined
terms are set forth in Paragraph 16 hereof.
1. The Facility.
The Bank agrees, on the terms and conditions hereinafter set forth, to
make advances to Borrower (hereinafter, the "EXTENSIONS OF CREDIT").
All Extensions of Credit will be secured as provided in this Agreement.
Borrower hereby absolutely and unconditionally promises to pay in
United States dollars to Bank Hapoalim B.M. or to its order, at its
office at 1177 Avenue of the Americas, New York, New York, or at such
other place as it may hereafter designate to Borrower in writing, all
then outstanding Extensions of Credit made pursuant to this Agreement
plus interest thereon at the rates and at such time as set forth in
this Agreement.
2. Amount.
The aggregate amount of Extensions of Credit shall not exceed at any
time $115,000,000.00 (the "LOANS").
3. Note; Subordination.
(a) The Loan pursuant to this Agreement shall be evidenced by
Borrower's promissory note, substantially in the form of
Exhibit A attached hereto (the "NOTE") in the principal amount
of $115,000,000.00; provided, however, that the principal
amount actually payable at any time under the Note shall not
be more than the advances pursuant to this Agreement which
then remain unpaid, as reflected on the Bank's books and
records; provided further, however, that if the aggregate
outstanding advances pursuant to this Agreement shall exceed
the principal amount of the Note, such advances in excess of
the amount of the Note shall nevertheless be payable as
provided in this Agreement. The Extensions of Credit shall be
available to the Borrower no later than December 31, 1999 (the
"COMMITMENT TERMINATION DATE"). The Note shall be dated the
date of this Agreement and be payable on December 31, 2000
(the "EXPIRY DATE"), and if earlier, at such other times as
shall be required by the terms of this Agreement.
(b) The Borrower from time to time agrees that all payments on the
Note shall be subordinate and subject in right of payment, to
the extent set forth in this Section 3(b) to the prior payment
in full in cash of all Senior Debt (as defined below). The
provisions of this Section 3(b) are made for the benefit of
all present and future holders of Senior Debt and their
successors and assigns (irrespective of whether such Senior
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Debt was created or acquired before or after the effectiveness
of this Agreement), and shall be enforceable by each of them
directly against the Bank from time to time. This Section 3(b)
may not be amended without the written consent of each holder
of Senior Debt and any purported amendment without such
consent shall be void. THE PROVISIONS OF THIS SECTION 3(B) ARE
SEPARATE AND APART FROM, AND DO NOT AFFECT THE OBLIGATIONS OF
THE GUARANTOR UNDER THE GUARANTY, AND NONE OF THE PROVISIONS
OF THIS SECTION 3(B) SHALL GRANT ANY HOLDER OF SENIOR DEBT THE
RIGHT TO RECEIVE ANY PAYMENTS MADE BY THE GUARANTOR TO THE
BANK OR BANK HAPOALIM B.M., HEAD OFFICE UNDER THIS AGREEMENT
OR THE NOTE, OR TO REQUIRE THE BANK OR BANK HAPOALIM B.M.,
HEAD OFFICE TO TURN OVER TO THE HOLDER OF SENIOR DEBT OR
OTHERWISE ACCOUNT TO SUCH HOLDER FOR AMOUNTS RECEIVED FROM THE
GUARANTOR PURSUANT TO THE PROVISIONS OF THE GUARANTY.
(i) For purposes of this Section 3(b), the term "Senior
Debt" means the principal of (and premium, if any),
and interest on (A) indebtedness of the Borrower in
an aggregate principal amount up to $50,000,000 for
money borrowed under a working capital credit
facility from, or which is evidenced by a note or
similar instrument given to, PNC Bank, National
Association ("PNC") and such other lending
institutions as may join with PNC in providing such
facility, or acquire a participation in such
facility, or as may be successors to institutions in
respect of such facility, and (B) amendments,
renewals, extensions, modifications and refundings of
any such indebtedness, whether any such indebtedness
described in the preceding clause is outstanding on
the date hereof or hereafter created, incurred or
assumed, unless the instrument creating or evidencing
any such indebtedness pursuant to which the same is
outstanding expressly provides that such indebtedness
is not superior in right of payment to the Note.
(ii) Upon any payment or distribution of assets or
securities of the Borrower of any kind or character
(whether in cash, property or securities) upon any
dissolution, winding up or total or partial
liquidation or reorganization of the Borrower,
whether voluntary or involuntary or in a bankruptcy,
insolvency, receivership or other proceeding (an
"Insolvency Event"), all Senior Debt shall first be
paid in full in cash, before the Bank shall be
entitled to receive, directly or indirectly, any
payment of the principal of, or interest on or any
other amount due with respect to this Agreement.
Before any payment of the principal of, or interest
on or any other amount due with respect to the Note
upon any such Insolvency Event, any payment to of the
Borrower of any kind or character (whether in cash,
property or securities) to which the Bank would be
entitled but for the provisions of this Section 3(b),
shall be made by the Borrower or by any receiver,
trustee in bankruptcy, liquidating trustee, agent or
other person making such payment or distribution,
directly to the holders of Senior Debt to the extent
necessary to pay the Senior Debt in full in cash
after giving effect to any concurrent payment or
distribution to the holders of Senior Debt.
(iii) No direct or indirect payment by or on behalf of the
Borrower of the principal of, or interest on or any
other amount due with respect to, the Note (whether
upon acceleration or otherwise) shall be made if, at
the time of such payment,
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there exists any default or event of default under
any provision of any agreement relating to the Senior
Debt (a "Blocking Event").
(iv) The Bank shall not declare the Note to be due and
payable, and the Note shall not otherwise become due
and payable, prior to its stated maturity upon the
occurrence of any default hereunder unless and until
there shall previously have been an acceleration of
the Senior Debt.
(v) If, notwithstanding the foregoing provisions
prohibiting such payment or distribution, the Bank
shall have received any payment on account of the
Note at any time following the occurrence of an
Insolvency Event or following receipt by such Party
from any holder of Senior Debt of written notice to
the effect that a Blocking Event has occurred, and
before all Senior Debt is paid in full in cash, then
such payment or distribution shall be received and
held in trust for the holders of Senior Debt and
shall be paid over or delivered to the holders of
Senior Debt remaining unpaid to the extent necessary
to pay in full all Senior Debt in cash upon their
delivery to the Bank of reasonable evidence of their
ownership of such Senior Debt together with payment
instructions.
(vi) If the Senior Debt has not been paid in full in cash
at a time at which the Borrower is subject to an
Insolvency Event, the Bank shall duly and promptly
take such reasonable actions as the Borrower may
request to collect and receive all amounts payable by
the Borrower in respect of the Note and to file
appropriate claims or proofs of claim in respect of
the Note.
(vii) No right of the holders of Senior Debt nor any other
present or future holder of the Senior Debt to
enforce the provisions of this Section 3(b) shall at
any time or in any way be prejudiced or impaired by
any failure to act by the holders of Senior Debt or
by any noncompliance by the Borrower with the terms
and provisions and covenants herein, regardless of
any knowledge thereof a holder of Senior Debt may
have or otherwise be charged with. The provisions of
this Section 3(b) are intended to be for the benefit
of, and shall be enforceable directly by, any present
or future holder of the Senior Debt.
(viii) The Bank agrees not to sell, assign or transfer all
or any part of the Note while any Senior Debt remains
unpaid unless such sale, assignment or transfer is
made expressly subject to this Section 3(b).
(ix) Upon the payment by them in full, in cash, of all
Senior Debt, the Bank shall be subrogated to the
rights of the holders of Senior Debt to receive
payments or distributions of cash, property or
securities of the Borrower applicable to Senior Debt
until the Note shall have been paid in full.
(x) The Bank agree to forbear and not take any action the
purpose or effect of which would give them a
preference or priority over the Senior Debt.
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4. Availability.
The Loan may be utilized, at the Borrower's option, upon three business
days' (except in the case of the first drawdown, two business days')
written, telex, telecopy or telephonic (immediately confirmed in
writing) notice to the Bank for loans for periods of one year or such
other periods as the Bank and the Borrower may agree but not later than
one year from the initial drawdown of such Loan (provided no Loan shall
have a maturity later than the Expiry Date).
5. Conditions Precedent.
The Bank shall not be obligated to make any Extensions of Credit to the
Borrower hereunder unless the following conditions have been satisfied:
(a) Prior to the first utilization of credit hereunder, the Bank
shall have received the following documents, each in form and
substance satisfactory to the Bank:
(i) the Note executed by the Borrower;
(ii) the Guaranty by Teva Pharmaceutical Industries Ltd.
(the "GUARANTOR"), in form and substance satisfactory
to the Bank (the "GUARANTY");
(iii) a legal opinion of counsel to the Borrower, in form
and substance satisfactory to the Bank;
(iv) a legal opinion of counsel to the Guarantor, in form
and substance satisfactory to the Bank;
(v) (A) certified copies of the organizational documents
of the Borrower and the Guarantor, (B) certified
copies of the resolutions of the Board of Directors
of the Borrower authorizing, among other things, the
Borrower to execute, deliver and perform this
Agreement and the Note and the resolutions the Board
of Directors (or an authorized committee) of the
Guarantor authorizing, among other things, the
Guarantor to execute, deliver and perform the
Guarantee and (C) certificates of the Secretary or
Assistant Secretary of each of the Borrower and the
Guarantor certifying the names of the officer or
officers of the Borrower and the Guarantor, as the
case may be, who have signed or will sign this
Agreement, the Note, the Guaranty and other documents
provided for in this Agreement or the Guaranty to be
executed by the Borrower or the Guarantor, as the
case may be, together with a sample of the true
signature of each such officer.
(vi) evidence that the aggregate amount of cash
consideration payable pursuant to the Tender Offer
shall not have increased materially, in the
reasonable judgment of the Bank after consultation
with the Borrower, above the amount offered, and all
conditions to the consummation of the Tender Offer
shall have been satisfied.
(b) The obligation of the Bank to make the Loan on the occasion of
any Borrowing is subject to the satisfaction of the following
conditions:
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(i) the fact that the Loan shall have occurred on or
prior to December 31, 1999 and all conditions to the
consummation of the Tender Offer shall have been
satisfied.
(ii) receipt by the Bank of a notice of drawdown as
required by Paragraph 4.
(iii) there shall exist no Event of Default or event which
with the giving of notice or passage of time or both
would become an Event of Default and if requested by
the Bank there shall be delivered to the Bank a
certificate of compliance and non-default, dated the
date of such Extension of Credit, in and form and
substance satisfactory to the Bank.
(iv) All representations and warranties made by the
Borrower to the Bank herein or in any other document
executed in connection herewith shall be true and
correct as if made on the date of such advance shall
be deemed as restated on the date of any advance or
Extension of Credit and shall be true and correct as
if made on such date (except to the extent any such
representation or guaranty speaks as of a different
date).
6. Interest.
(a) Interest on all Loans hereunder shall be payable at the rate
per annum, for each Interest Period, of 0.25% plus the LIBOR
Rate (the "LOAN RATE").
(b) Interest on each Loan shall be payable in arrears on the last
day of each Interest Period.
(c) The Borrower shall pay interest on overdue principal and (to
the extent permitted by applicable law) on overdue interest,
on demand, at the rate of 2% plus the higher of (x) the Loan
Rate applicable to the immediately preceding Interest Period
and (y) the rate designated by the Bank from time to time as
its Prime Rate. The effective interest rate payable hereunder
shall, in any event, never exceed the applicable maximum
lawful interest rate; if any provision(s) of this Agreement
would require any payment in excess of such maximum lawful
interest rate, such provision(s) shall be deemed amended to
provide for interest at such maximum lawful rate during such
time as it would otherwise exceed such rate.
(d) The Loan Rate shall be computed on the basis of the actual
number of days elapsed over a year of 360 days.
(e) If the Bank determines in its sole discretion at the time of
any election of an Interest Period that the LIBOR Rate cannot
be determined or does not represent its effective cost of
maintaining the Loan during such Interest Period, then
interest on the Loan during such Interest Period shall accrue
at the effective cost to the Bank to maintain the Loan during
such Interest Period (as determined by the Bank in its sole
discretion).
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7. Payments, Prepayments and Indemnity.
(a) Mechanics.
All payments hereunder shall be made at the office of the Bank
set forth below in lawful money of the United States of
America and in immediately available funds, without set off,
counterclaim, withholding or deduction of any kind whatsoever.
Any payment due hereunder on a day which is not a Business Day
shall be payable on the next succeeding Business Day. The
Borrower hereby authorizes the Bank, if and to the extent
payment owed to the Bank is not made when due hereunder or
under the Note, to charge from time to time against any of the
Borrower's accounts with the Bank any amount so due.
(b) Prepayment.
(i) In the event any loan is not borrowed on the date
specified therefor in a notice of borrowing, or is
repaid other than at its maturity, which prepayment
may be made only upon not less than thirty days'
prior written notice, the Borrower shall pay to the
Bank an amount (determined by the Bank in its sole
discretion which determination shall be conclusive
and binding absent manifest error) as shall
compensate the Bank for any costs, expenses or loss
(including loss of profit) incurred by it in
connection with its costs of funding such Extension
of Credit; provided that if the repayment occurs at
the end of an Interest Period only fourteen days'
prior written notice is required and no penalty cost
will be imposed against the Borrower.
(ii) If at any time the Bank shall determine that the
making or continuation of loans at the Libor Rate has
become unlawful, its obligation to make such loans
shall be terminated and the Borrower shall forthwith
prepay any such loans then outstanding.
(iii) If, after the date hereof, any change in law,
regulation or directive or in the interpretation
thereof subjects the Bank to any increase in the cost
to it of making or maintaining loans to the Borrower
hereunder, the Borrower shall pay to the Bank, on
demand from time to time, such additional amounts
(determined by the Bank in its sole discretion which
determination shall be conclusive and binding absent
manifest error) as shall compensate the Bank for such
increased cost.
(iv) In the event that after the date hereof the
implementation of or any change in any law or
regulation, or any guideline or directive of any
Governmental Authority or the interest on any
Extension of Credit made to the Borrower, the
Borrower shall pay, on demand, at the rate of 2% per
annum in excess of the greater on any day of (x) the
interest rate otherwise applicable to such Extension
of Credit and (y) the Prime Rate.
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8. Representations and Warranties.
Borrower warrants and represents that, at the time of, and as a
precondition for, each request for an advance hereunder, and at all
times while advances shall be outstanding, the following shall be true
and the Borrower agrees that:
(a) Corporate Existence and Power.
The Borrower is a corporation duly incorporated, validly
existing and in good standing under the laws of the state of
its incorporation, and has all corporate powers and all
Material governmental licenses, authorizations,
qualifications, consents and approvals required to carry on
its business as now conducted.
(b) Corporate and Governmental Authorizations
The Borrower has full right, power and authority to enter
into, execute and deliver this Agreement, financing statements
(and/or amendments thereto), the Note and all other documents
to be executed and delivered by it in connection herewith or
therewith (collectively the "Loan Documents"); the Borrower
has the full right, power and authority to perform each and
all matters and things required to be performed under the Loan
Documents, and the Loan Documents have been duly authorized,
executed and delivered and constitute the legal, valid and
binding contracts of the Borrower, enforceable in accordance
with their terms (subject to (i) bankruptcy and other laws of
general application affecting the rights of creditors and (ii)
the award by courts of monetary damages rather than specific
performance of contractual provisions involving matters other
than the payment of money).
(c) No Conflict.
The execution and delivery by the Borrower of the Loan
Documents are not, and the performance by the Borrower of any
of the obligations thereunder will not be, in contravention
of, or constitute a Default under, any provision of law or any
charter or by-law provision or any covenant, indenture or
agreement, judgment, injunction, order, decree or other
instrument binding upon the Borrower or affecting the Borrower
or any property of the Borrower or of any governmental body,
agency or official.
(d) No Claims.
There is no action, suit or proceeding pending or, to the
Borrower's knowledge, threatened against the Borrower or its
properties before any court, administrative or governmental
body, or any arbitration forum, which if determined against
the Borrower would reasonably be expected to affect the
Borrower's ability to enter into any of the Loan Documents or
prejudice in any way the Borrower's ability to fulfill the
obligations set forth in the Loan Documents that are required
to be disclosed in the Borrower's periodic reports under the
Exchange Act and that have not been so disclosed.
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(e) Binding Effect.
This Agreement constitutes a valid and binding agreement of
the Borrower and the Note, when executed and delivered in
accordance with this Agreement, will constitute valid and
binding obligations of the Borrower in each case enforceable
in accordance with its terms excepts as the same may be
limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and by general principles of
equity.
(f) Environmental Compliance.
(i) The Borrower shall at all times ensure that its
properties and the businesses, operations and
activities conducted thereon, are in full compliance
with all Environmental Laws, except where such
noncompliance could not reasonably be expected to
have a Material adverse effect on the business or
financial condition of the Borrower. The Borrower
shall not permit any hazardous substance to be
brought upon, used, treated, stored, handled,
discharged, released, generated, manufactured or
disposed of in, on or under any of its properties,
except to the extent commonly used in the day-to-day
operations of such properties and only in compliance
with all Environmental Laws, except where such
noncompliance could not reasonably be expected to
have a Material adverse effect on the business or
financial condition of the Borrower.
(ii) If the Borrower shall become aware of or receive any
notice or other communication concerning any actual,
alleged, suspected or threatened violation of or
liability under any Environmental Laws, or that any
representation of the Borrower contained herein
relating to hazardous substances is not or is no
longer accurate in any material respect, including,
but not limited to, any notice or other communication
concerning any actual or threatened environmental
claim, then the Borrower shall deliver to the Bank,
within ten days after receipt of such notice or other
communication, a written description of said
violation, liability, or actual or threatened event
or condition, together with copies of all documents
evidencing same. Receipt of such notice shall not be
deemed to create any obligation on the part of the
Bank to defend or otherwise respond to such
notification. The Borrower shall promptly take any
and all actions and steps necessary to defend such
notification or environmental claim, or remedy any
condition which gave rise to such notification or
environmental claim.
(iii) The Borrower has established accruals for matters
that are probable and reasonably estimable as
required by FASB Statement No. 5, "According for
Contingencies." To the Borrower's knowledge, any
liability that may result from the resolution of
known environmental matters in excess of amounts
accrued therefor will not have a Material Adverse
Effect.
(g) Compliance with ERISA.
Each member of the controlled group of corporations (as
defined in Section 414 (b) of the Internal Revenue Code of
1986), which includes the Borrower and its subsidiaries (the
"TEVA GROUP"), has (i) fulfilled its obligations under the
minimum funding
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standards of Part 3 of Title I of the Employee Retirement
Income Security Act of 1974 (as amended and, together with any
successor statute, "ERISA") and Section 412 of the Internal
Revenue Code of 1986 (as amended and, together with any
successor statute, the "CODE") with respect to each defined
benefit plan (as defined in Section 3 (35) of ERISA)
maintained by a member of the Teva Group (each, a "PLAN") and
(ii) is in compliance in all material respects with the
presently applicable provisions of ERISA and the Code with
respect to each such Plan. No member of the Teva Group has (x)
sought a waiver of the minimum funding standard under Section
412 of the Code in respect of any Plan, (y) failed to make any
contribution or payment required to be made to a Plan or to
any multi-employer plan (as defined in Section 3 (37)(A) of
ERISA) or made any amendment to any Plan which has resulted or
could result in the imposition of a lien or the posting of a
bond or other security under ERISA or the Code or (z) incurred
any liability under Title IV of ERISA other than the liability
to the Pension Benefit Guaranty Corporation ("PBGC") for
premiums under Section 4007 of ERISA.
(h) Taxes.
The Borrower has filed all United States federal income tax
returns and all other material tax returns which are required
to have been filed by it (subject to any available extensions)
and have paid all taxes indicated as due on such returns. The
Borrower has made adequate and reasonable provision for all
material taxes not yet due and payable, if any, and all
material assessments, if any.
(i) Government Regulation.
The Borrower is not registered as a public utility under the
Public Utility Holding Company Act of 1935, as amended, or as
an investment company under the Investment Company Act of
1940, as amended.
(j) Not an Investment Company.
The Borrower is not an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
(k) Full Disclosure.
All written information heretofore furnished by the Borrower
to the Bank for purposes of or in connection with this
Agreement or any transaction contemplated hereby is, and all
such information hereafter furnished by the Borrower to the
Bank will be, true and accurate in all material respects on
the date as of which such information is stated or certified.
9. Covenants.
Until payment in full of all advances and so long as any amount payable
under the Note remains unpaid and as a precondition for advances:
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(a) Financial Records.
The Borrower will deliver to the Bank:
(i) as soon as available and in any event within 125 days
after the end of each fiscal year of the Borrower, a
consolidated balance sheet of the Borrower and the
Guarantor as of the end of such fiscal year and the
related consolidated statements of income and cash
flows for such fiscal year, setting forth in each
case in comparative form the figures for the previous
fiscal year, all reported on in a manner acceptable
to the Securities and Exchange Commission by
PricewaterhouseCoopers LLP or other independent
public accountants of nationally recognized standing;
(ii) as soon as available and in any event within 60 days
after the end of each of the first three quarters of
each fiscal year of the Borrower, a consolidated
balance sheet of the Borrower and the Guarantor as of
the end of such quarter and the related consolidated
statements of income and cash flows for such quarter
and for the portion of the Borrower's fiscal year
ended at the end of such quarter, setting forth in
the case of such statements of income and cash flows
in comparative form the figures for the corresponding
quarter and the corresponding portion of the
Borrower's previous fiscal year, all certified
(subject to normal year-end adjustments) as to
fairness of presentation, generally accepted
accounting principles and consistency by the chief
financial officer or the chief accounting officer of
the Borrower and the Guarantor;
(iii) simultaneously with the delivery of each set of
financial statements referred to in clauses (a) and
(b) above, a certificate of the chief financial
officer (or such officer's designee, designated in
writing by such officer) or the chief accounting
officer of the Borrower stating whether any Default
exists on the date of such certificate and, if any
Default then exists, setting forth the details
thereof and the action which the Borrower is taking
or proposes to take with respect thereto;
(iv) within five Business Days after any chief executive
officer, chief financial officer, chief accounting
officer or general counsel or any of their assistants
of the Borrower or the Borrower obtains knowledge of
any Default, if such Default is then continuing, a
certificate of the chief financial officer or the
chief accounting officer of the Borrower setting
forth the details thereof and the action which the
Borrower is taking or proposes to take with respect
thereto;
(v) promptly upon the mailing thereof to the shareholders
of the Borrower and the Guarantor, if applicable,
generally, copies of all financial statements,
reports and proxy statements so mailed;
(vi) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits
thereto and any registration statements on Form S-8
or its equivalent) and reports on Forms 20-F or 6-K
(or their equivalents) which the Guarantor and the
Borrower, if applicable, shall have filed with the
Securities and Exchange Commission;
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(vii) if and when any member of the Teva Group (1) gives or
is required to give notice to the PBGC of any
"reportable event" (as defined in Section 4043 of
ERISA) with respect to any Plan which might
constitute grounds for a termination of such Plan
under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to
give notice of any such reportable event, a copy of
the notice of such reportable event given or required
to be given to the PBGC; (2) receives notice of
complete or partial withdrawal liability under Title
IV of ERISA or notice that any multiemployer plan is
in reorganization, is insolvent or has been
terminated, a copy of such notice; (3) receives
notice from the PBGC under Title IV of ERISA of an
intent to terminate, impose liability (other than for
premiums under Section 4007 of ERISA) in respect of,
or appoint a trustee to administer any Plan, a copy
of such notice; (4) applies for a waiver of the
minimum funding standard under Section 412 of the
Internal Revenue Code, a copy of such application;
(5) gives notice of intent to terminate any Plan
under Section 4041(c) of ERISA, a copy of such notice
and other information filed with the PBGC; (6) gives
notice of withdrawal from any Plan pursuant to
Section 4063 of ERISA, a copy of such notice; or (7)
fails to make any payment or contribution to any Plan
or multiemployer plan or in respect of any Benefit
Arrangement or makes any amendment to any Plan or
Benefit Arrangement which has resulted or could
result in the imposition of a Lien or the posting of
a bond or other security, a certificate of the chief
financial officer or the chief accounting officer of
the Borrower setting forth details as to such
occurrence and action, if any, which the Borrower or
applicable member of the Teva Group is required or
proposes to take; and
(viii) from time to time such additional information
regarding the financial position or business of the
Borrower and its Subsidiaries and the Borrower and as
the Bank may reasonably request.
(b) Maintenance of property; Insurance.
(i) The Borrower will keep all property useful and
necessary in its business in good working order and
condition, ordinary wear and tear excepted.
(ii) The Borrower will maintain, with financially sound
and responsible insurance companies, insurance on all
its respective properties in at least such amounts
and against at least such risks (and with such risk
retention) as are usually insured against in the same
general area by companies of established repute
engaged in the same or a similar business; and will
furnish to the Bank, upon request from the Bank,
information presented in reasonable detail as to the
insurance so carried; provided that, in lieu of any
such insurance, the Borrower may maintain a system or
systems of self-insurance and reinsurance which will
accord with sound practices of similarly situated
corporations maintaining such systems and with
respect to which the Borrower will maintain adequate
insurance reserves, all in accordance with generally
accepted accounting principles and in accordance with
sound insurance principles and practice.
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(c) Maintenance of Existence. The Borrower will preserve, renew
and keep in full force and effect its respective corporate
existence and its respective Material governmental licenses,
authorizations, consents and approvals required to carry on
its business in the ordinary course.
(d) Compliance with Laws. The Borrower will comply in all Material
respects with all applicable laws, ordinances, rules,
regulations, and requirements of governmental authorities
(including, without limitation, Environmental Laws and ERISA
and the rules and regulations thereunder), except where the
necessity of compliance therewith is contested in good faith
by appropriate proceedings and for which adequate reserves in
conformity with generally accepted accounting principles have
been established.
(e) Inspection of Property, Books and Records. The Borrower will
keep, proper books of record and account in which full, true
and correct entries shall be made of all dealings and
transactions in relation to its business and activities; and
will permit representatives of the Bank at such Bank's expense
to visit and inspect any of their respective properties, to
examine and make copies from any of their respective books and
records and to discuss their respective affairs, finances and
accounts with its officers, employees and independent public
accountants, all at such reasonable times and as often as may
reasonably be desired.
(f) Consolidations, Mergers and Sales of Assets. The Borrower will
not (i) consolidate with or merge into any other Person or
(ii) sell, lease or otherwise transfer, directly or
indirectly, all or substantially all of the assets of the
Borrower, taken as a whole, to any other Party; provided that
the foregoing restriction does not apply to the consolidation,
merger or amalgamation of the Borrower with or into, or the
conveyance, transfer or lease of all or substantially all of
the property of the Borrower in a single transaction or series
of transactions to, another corporation or entity which
transaction or series of transactions meets the following
requirements (a "Qualified Transaction"):
(i) the successor formed by such consolidation or
amalgamation or the survivor of such merger or the
Person that acquires by conveyance, transfer or lease
all or substantially all of the property of the
Borrower as an entirety, as the case may be (the
"Borrower Successor Corporation"), shall be a solvent
corporation organized and existing under the laws of
the United States of America or any state thereof;
(ii) if the Borrower is not the Borrower Successor
Corporation, such corporation shall have executed and
delivered to the Bank an assumption agreement,
providing, among other things, for its assumption of
the due and punctual performance and observance of
each covenant and condition of the Loan Documents
applicable to the Borrower and the Borrower shall
have caused to be delivered to the Bank an opinion of
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ or other internationally
recognized independent New York counsel to the effect
that such assumption agreement is enforceable in
accordance with its terms (subject to standard
qualification) and complies with the terms of the
Loan Documents; and
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(iii) Immediately after giving effect to such transaction,
no Default or Event of Default exists or would exist.
If the Borrower is not the Borrower Successor Corporation but
each of the conditions in the foregoing clauses (i) through
(iii), inclusive, is satisfied, any such conveyance or
transfer (but not a lease) of all or substantially all of the
property of the Borrower shall have the effect of releasing
the Party that was the Borrower immediately prior to giving
effect to such transaction (but not the related Borrower
Successor Corporation) from such Party's liability under the
Loan Documents.
(g) Use of Proceeds. The proceeds of the Loans made under this
Agreement will be used by the Borrower for financing the
Tender Offer and any reasonable expenses incidental to the
Tender Offer. None of such proceeds will be used, directly or
indirectly, in violation of any applicable law or regulation,
and no use of such proceeds for general corporate purposes
will include any use for the purpose, whether immediate,
incidental or ultimate, of buying or carrying any Margin Stock
in contravention of Regulation U or Regulation X promulgated
by the Board of Governors of the Federal Reserve System.
(h) Year 2000 Compatibility. The Borrower shall take all
reasonable action necessary to ensure that the computer based
systems of the Borrower are able to operate and effectively
process data including dates on or after January 1, 2000,
except that such action shall not be required to the extent
that the failure to take such action would not have a material
adverse effect on the consolidated financial position or
consolidated results of operations of the Borrower considered
as a whole. At the request of the Bank, the Borrower shall
provide assurance reasonably acceptable to the Bank of the
year 2000 compatibility of the Borrower.
(i) Tax Compliance.
The Borrower will pay to the appropriate governmental
authorities when due, all Federal, state, local and other
taxes, assessments or contributions required to be paid or
deposited by the Borrower ("Taxes"), except that the Borrower
may defer any such payment while the Borrower is diligently
contesting the respective Taxes in good faith by appropriate
proceedings, but any such deferment shall not extend beyond
the time when such unpaid Taxes would become a Lien upon any
of the Borrower's assets. The Borrower will furnish the Bank
promptly at the Bank's request with evidence satisfactory to
the Bank establishing payment of such taxes, assessments and
contributions. In the Bank's discretion, the Bank shall have
the right (but shall not be obligated) to pay any such tax,
assessment or contribution (including any interest or
penalties thereon) for the Borrower's benefit in the event the
Borrower shall fail timely to do so; any such payment shall be
deemed an advance hereunder bearing interest at the rate and
in the manner specified in Paragraph 6 hereof. The Borrower
shall, promptly on demand, reimburse the Bank for any such
payment and any costs and expenses (including reasonable
attorneys' fees) which Bank may incur in connection therewith.
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(j) Adverse Changes.
The Borrower shall promptly notify Bank: (i) of any Material
adverse change in the Borrower's or the Guarantor's financial
condition, operations or business or (promptly upon the
Borrower's or the Guarantor's obtaining receipt of notice or
knowledge thereof) in the Borrower's or the Guarantor's
customers or in the collectability of any of the Accounts
Receivable, (ii) if one or more judgments or other claim in
excess of $5,000,000, alone or in the aggregate, becomes a
lien or encumbrance upon any or all of the Borrower's or the
Guarantor's assets, or (iii) of any Event of Default or event,
which with the giving of notice or passage of time or both
would become an Event of Default and furnish the Bank with a
statement setting forth details of such Event of Default and
the action which the Borrower or the Guarantor proposes to
take with respect thereto.
10. Events of Default.
(a) General.
Each of the following shall be an "EVENT OF DEFAULT":
(i) NONPAYMENT. (A) Any principal of any Loan shall not
be paid when due, or any interest, any fees or any
other amount payable hereunder shall not be paid; or
(B) the prohibition by any Law of payment of any part
of any amount due to the Bank in connection with any
Loan.
(ii) BANKRUPTCY; ADVERSE PROCEEDINGS. (A) The occurrence
of any Debtor Relief Action; (B) the appointment of a
receiver, trustee, committee, custodian, personal
representative or similar official for any Party or
for any Material part of any Party's property; (C)
any action taken by any Party to authorize or consent
to any action set forth in Paragraph 10(a)(ii)(A) or
(B); (D) the rendering against any Party of one or
more judgments, orders and/or decrees and/or
arbitration awards (whether for the payment of money
or injunctive or other relief) which alone or in the
aggregate equal or exceed the amount of $5,000,000,
if they continue in effect for 30 days without being
vacated, discharged, stayed, satisfied or performed;
(E) the issuance or filing of any warrant, process,
order of attachment, garnishment or other lien or
levy against any Material part of any Party's
property; (F) the commencement of any proceeding
under, or the use of any of the provisions of, any
Law against any Material part of any party's
property, including but not limited to any Law (1)
relating to the enforcement of judgments or (2)
providing for forfeiture to, or condemnation,
appropriation, seizure or taking possession by, or on
order of, any Governmental Authority, unless such
proceeding shall be stopped within 30 days of
commencement; (G) the forfeiture to, or the
condemnation, appropriation, seizure, or taking
possession by, or on order of, any Governmental
Authority, of any Material part of any Party's
property; (H) any Party being charged with a crime by
indictment, information or the like, other than as
related to the proceedings disclosed in Item 3 of the
Guarantor's annual report on Form 20-F for the year
ended December 31, 1998.
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15
(iii) NONCOMPLIANCE. (A) Any Material Default with respect
to this Agreement, of which the Bank has provided
oral or written notice, at the Bank's sole
discretion, to the Borrower; (B) the giving to the
Bank by or on behalf of any Party at any time of any
materially incorrect or incomplete representation,
warranty, statement or information; (C) the failure
of any Party to furnish to the Bank, copies of its
financial statements and such other information
respecting its business, properties, condition or
operations, financial or otherwise, promptly when,
and in such form as, reasonably required or requested
by the Bank, of which the Bank has provided oral or
written notice, at the sole discretion of the Bank,
to the Borrower; (D) any Party's failure or refusal,
upon reasonable notice from the Bank, to permit the
Bank's representative(s) to visit such Party's
premises during normal business hours and to examine
such Party's property and to make photographs and
materials of its books and records (excluding those
copies relating solely to the issues of research and
development and other confidential materials); (E)
any Party's concealing, removing or permitting to be
concealed or removed, any part of its property with
the intent to hinder or defraud any of its creditors;
(F) any Party's making or suffering any Transfer of
any of its property, which Transfer is deemed
fraudulent under the law of any applicable
jurisdiction; (G) the revocation or early termination
of any Party's obligations under any agreement with
or to the Bank (including but not limited to any
amount due to Bank in connection with this
Agreement), or the validity, binding effect or
enforceability of any of such obligations being
challenged by the institution of proceedings with
legal body or Governmental Authority; (H) the failure
of the Borrower to observe or perform any covenant
contained in this Agreement, of which the Bank has
provided oral or written notice, at the Bank's sole
discretion, to the Borrower; (I) any representation,
warranty, certification or statement made by the
Borrower in this Agreement or in any certificate or
other document delivered pursuant this Agreement
shall prove to have been incorrect in any material
respect when make (or deemed made).
(iv) ADVERSE CHANGES. (A) The occurrence of a Material
adverse change in any Party's financial condition;
(B) the dissolution or liquidation (if a corporation,
partnership or other entity) of any Party or such
Party's failure to be and remain in good standing and
qualified to do business in each jurisdiction
Material to such Party (which failure would
reasonably be expected to have a Material adverse
effect on such Party); (C) any Material Default with
respect to any Material agreement other than with or
to the Bank; (D) any Default pursuant to which any
Person shall have the power to effect an Acceleration
of any Material Debt; (E) any Acceleration or demand
of payment with respect to any Material Debt; (F) any
Party's becoming insolvent, as defined in the Uniform
Commercial Code; (G) the Material suspension of any
Party's business; (H) any Party's Material failure to
pay any Material tax when due, except such taxes as
are being contested in good faith by appropriate
proceedings (to the extent such proceedings are
required) and with respect to which the Borrower has
set up an adequate reserve under GAAP for the payment
of such taxes; (I) the expulsion of any Party from
any exchange or self-regulatory organization, if
applicable, or any loss, suspension, nonrenewal or
invalidity of any Party's license, permit franchise,
patent, copyright,
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trademark or the like, which would reasonably be
expected to have a Material adverse effect on such
Party; (J) the occurrence of any event which gives
any Person the right to assert a lien, levy or right
of forfeiture against any Material part of any
Party's Property; or (K) Borrower's failure to give
the Bank notice, within 10 Business Days after
Borrower had notice or knowledge, of the occurrence
of any event which, with the giving of notice and/or
lapse of time, would constitute an Event of Default;
(v) BUSINESS CHANGES. Without the prior written consent
of the Bank there shall occur or take place (A) any
change in Control of any Party, which the Bank, in
its sole discretion, determines that such change is a
Material adverse change to the Borrower's business;
(B) any merger or consolidation involving any Party,
except as may be permitted, with the consent of the
Bank; or (C) any Material change in the nature or
structure of any Party's business; provided that the
foregoing restriction does not apply to a Qualified
Transaction.
(vi) ERISA. Any member of the Teva Group shall fail to pay
when due an amount or amounts aggregating in excess
of $5,000,0000 which it shall have become liable to
pay under Title IV of ERISA; or notice of intent to
terminate a Material Plan shall be filed under Title
IV of ERISA by any member of the Teva Group, any plan
administrator or any combination of the foregoing; or
the PBGC shall institute proceedings under Title IV
of ERISA to terminate, to impose liability (other
than for premiums under Section 4007 of ERISA) in
respect of, or to cause a trustee to be appointed to
administer any Material Plan; or a condition shall
exist by reason of which the PBGC would be entitled
to obtain a decree adjudicating or partial withdrawal
from, or a Default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more
Multiemployer Plans which could cause one or more
members of the Teva Group to incur a current payment
obligation in excess of $5,000,000;
(vii) BENEFICIAL OWNERSHIP. Any person or group of persons
(within the meaning of Section 13 or 14 of the
Exchange Act) shall have acquired beneficial
ownership (within the meaning of Rule 13d-3
promulgated by the SEC under said Act) of 30% or more
of the outstanding shares of common stock of the
Borrower;
(viii) CONTINUING DIRECTORS. At any time Continuing
Directors shall not constitute a majority of the
board of directors of the Borrower ("CONTINUING
DIRECTOR" means each (i) individual who was a
director of the Borrower at the effective date of the
Tender Offer or (ii) individuals who were nominated
or elected to be a director of the Borrower by at
least two-thirds of the Continuing Directors at the
time of such nomination or election).
(b) Bank's Rights Upon Default in Payment.
Upon the occurrence of any Event of Default and such Event of
Default shall not have been cured and shall continue for ten
days, all of Borrower's obligations to the Bank under this
Agreement and the Note not then due shall, at Bank's option,
become forthwith due and payable without further notice or
demand, which Borrower waives,
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provided, however, that such obligations shall automatically
become due and payable upon the occurrence of any Debtor
Relief Action. Upon any such acceleration of any amounts due
to the Bank in connection with this Agreement, the Bank shall
have and may exercise against Borrower all the rights and
remedies granted by, this Agreement or any other document
executed by Borrower at any time or otherwise by law.
11. Term.
This Agreement shall have a term expiring on the Expiry Date and all
amounts due hereunder shall, unless the term shall be extended by
written agreement, be due and payable on the Expiry Date.
12. Miscellaneous.
(a) Actions Not Required.
Bank is not obligated to take any action which Bank is
permitted to take pursuant to this Agreement.
(b) Liability Limited.
Bank shall have no liability for taking or refraining from
taking or for the manner of taking any such action, except for
Bank's gross negligence or willful misconduct, and in no event
for consequential, special or punitive damages. The Bank shall
not have any liability for negligence except solely to the
extent required by law and not disclaim, and except for its
own gross negligence or willful misconduct. In any event, the
Bank shall not have any liability for any special,
consequential or punitive damages.
(c) Obligations Not Assumed.
Nothing contained herein or in any other document and no
action taken by Bank shall be deemed an assumption by Bank of
any obligation to any account debtor or other person.
(d) Notices.
Unless otherwise expressly provided for herein, any notice,
request, approval, demand or other communication provided for
herein shall be in writing and deemed effectively given or
made when mailed by registered or certified mail, postage
prepaid and return receipt requested, addressed to the party
for whom intended at such party's address stated herein or
such other address as either party may hereafter designate for
itself by similar notice, or when actually received if given
or made in any other manner, except that notice of change of
address shall be deemed given only when received.
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(e) Waivers, Including Jury Trial Waiver.
(i) In General.
No provision hereof and no right or remedy of either
Party hereto may be waived by any future action,
course of dealing or otherwise, except in writing
signed by the other Party hereto. Borrower waives
presentment, protest and notice of dishonor of any
instrument. No payment due to Bank hereunder shall be
reduced by Borrower for any reason whatsoever, and
Borrower hereby waives the right to assert any right
of offset, recoupment or other deduction and any
counterclaim in any litigation or other proceeding in
which Bank may seek to enforce Bank's rights and
remedies under this Agreement. The Borrower waives
all rights to special, consequential or punitive
damages arising from, out of or in connection with
this Agreement or any performance related to it. The
Bank waives all rights to punitive damages arising
from, out of or in connection with this Agreement or
any performance related to it. Neither any failure
nor any delay by either Party to exercise any right
in connection with this Agreement shall operate as a
waiver thereof or preclude any other or further
exercise thereof nor shall any single or partial
waiver of any such right preclude any other or
further exercise thereof, or the exercise of any
other right.
(ii) Waiver of Right to Jury Trial.
Both Borrower and Bank waive the right to a trial by
jury in any litigation arising from, out of or in
connection with this Agreement or any transactions
contemplated by this Agreement.
(f) Governing Law, Changes, No Third Party Beneficiaries.
This Agreement shall be governed by the internal laws of New
York without giving effect to conflict of laws rules; may not
be changed or terminated orally; and shall not be deemed for
the benefit of any third party.
(g) Submission to Jurisdiction.
The Borrower and the Bank submit to the jurisdiction of
federal and state courts located within New York State and
agree, to the extent permitted by law, that service of process
upon Borrower and the Bank (in the same manner as provided in
Paragraph 12(d) of this Agreement for the giving of notices)
shall be sufficient in any action or proceeding brought by the
Bank or the Borrower in connection with this Agreement.
(h) Partial Unenforceability.
Any provision of this Agreement which is prohibited,
unenforceable or not authorized in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such
prohibition, unenforceability or non authorization, without
invalidating the remaining provisions of this Agreement in
that or any other jurisdiction and without affecting the
validity, enforceability or legality of such provision in any
other jurisdiction.
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(i) Parties.
(i) This Agreement is binding upon each of the Parties
hereto and its respective successors and permitted
assigns and shall inure to the benefit of each of the
Parties hereto and its respective successors and
permitted assigns.
(ii) The obligations under this Agreement shall continue
in force and shall apply notwithstanding any change
in the membership of any partnership executing this
Agreement, whether arising from the death or
retirement of one or more partners or the accession
of one or more new partners.
(j) Captions.
Captions are inserted in this Agreement for reference purposes
only and shall not modify, explain or limit the texts to which
they refer.
(k) Counterparts.
This Agreement may be executed in counterparts, each of which
when so executed, shall be deemed an original, but all such
counterparts shall constitute one and the same instrument.
13. Expenses; Indemnification.
(a) The Borrower shall pay (i) all reasonable out-of-pocket
expenses of the Bank, including reasonable fees and
disbursements of special counsel for the Bank, in connection
with preparation and administration of this Agreement, any
waiver or consent hereunder or any amendment hereof or any
Default or alleged Default hereunder and (ii) if an Event of
Default occurs, all out-of-pocket expenses incurs by the Bank,
including reasonable fees and disbursements of counsel, in
connection with such Event of Default and collection,
bankruptcy, insolvency and other enforcement proceedings
resulting therefrom.
(b) The Borrower agrees to indemnify the Bank, its respective
affiliates and respective directors, officers, agents and
employees of the foregoing (each an "Indemnitee") and hold
each Indemnitee harmless from and against any and all
liabilities, losses, damages, costs and expenses of any kind,
including, without limitation, the reasonable fees and
disbursements of counsel, which may be incurred by such
Indemnitee in connection with any investigative,
administrative or judicial proceeding (whether or not such
Indemnitee shall be designated a party thereto) brought or
threatened relating to or arising out of this Agreement or any
actual or proposed use of proceeds of the Loans hereunder;
provided that (i) no Indemnitee shall have the right to be
indemnified hereunder for such Indemnitee's own gross
negligence or willful misconduct as determined by a court of
competent jurisdiction and (ii) the Borrower shall not be
liable for any settlement entered into by an Indemnitee
without its consent (which shall not be unreasonably
withheld).
(c) Each Indemnitee agrees to give the Borrower prompt written
notice after it receives any notice of the commencement of any
action, suit or proceeding for which such Indemnitee may wish
to claim indemnification pursuant to subparagraph (b). The
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Borrower shall have the right, exercisable by giving written
notice within fifteen Business Days after the receipt of
notice from such Indemnitee of such commencement, to assume,
at the Borrower's expense, the defense of any such action,
suit or proceeding; provided, that such Indemnitee shall have
the right to employ separate counsel in any such action, suit
or proceeding and to participate in the defense thereof, but
the fees and expenses of such separate counsel shall be at
such Indemnitee's expense unless (1) the Borrower shall have
agreed to pay such fees and expenses; (2) the Borrower shall
have failed to assume the defense of such action, suit or
proceeding or shall have failed to employ counsel reasonably
satisfactory to such Indemnitee in any such action, suit or
proceeding; or (3) such Indemnitee shall have been advised by
independent counsel in writing (with a copy to the Borrower)
that there may be one or more defenses available to such
Indemnitee which are in conflict with those available to the
Borrower (in which case, if such Indemnitee notifies the
Borrower in writing that it elects to employ separate counsel
at the Borrower's expense, the Borrower shall be obligated to
assume the expense, it being understood, however, that the
Borrower shall not be liable for the fees or expenses of more
than one separate firm of attorneys, which firm shall be
designated in writing by such Indemnitee).
14. Continuing Representations and Warranties.
All representations and warranties in this Agreement, and in all other
Related Documents, statements, certificates, instruments and documents
furnished to Bank in connection with this Agreement, are continuing and
shall be deemed repeated each time an advance is made to Borrower, and
shall survive until all amounts due in connection with this Agreement
have been paid in full.
15. Transfer by Bank.
(a) Without limiting Bank's rights hereunder, Bank may Transfer
all or any part of (i) this Agreement; (ii) the Note, (iii)
any other obligations of Borrower to Bank, (iv) any guaranty
of, any subordination to, and any other rights of Bank against
any third party(ies) in connection with, this Agreement, (v)
any instruments or documents relating to or evidencing any of
the foregoing, and/or (v) Bank's rights and, if any,
obligations with respect to any of the foregoing, all of which
are referred to in this Agreement as "Transferred Items".
(b) In the event Bank shall make any such Transfer, then to the
extent provided by the Bank with respect to such Transfer the
transferee shall have the obligations, rights, powers,
privileges and remedies of the Bank. The Bank shall
thereafter, to the extent of such Transfer, be forever
relieved and fully discharged from all liability and
responsibility, if any, that it may have had to Borrower with
respect thereto. Bank shall retain all its rights and powers
with respect to any Transferred Items to the extent not so
Transferred.
(c) Without limiting the foregoing, the provisions of this
Agreement regarding set-off rights shall apply to any account
of Borrower with, and any claim of Borrower against, any
Transferee to the extent of any such Transfer.
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(d) Bank is authorized to disclose any information it may have or
acquire about Borrower to any prospective or actual
Transferee.
(e) If the Note and/or this Agreement is not a negotiable
instrument, then Borrower hereby waives all defenses (except
such defenses as may be asserted against a holder in due
course of a negotiable instrument) which Borrower may have or
acquire against any Transferee who takes the Note, and/or this
Agreement, or any complete or partial interest in them, for
value, in good faith and without notice that any obligation
thereunder is overdue or has been dishonored or of any defense
against or claim to them on the part of any person.
(f) Borrower may not assign any of its rights or delegate any of
its obligations under this Agreement without the Bank's prior
written consent; any such assignment or delegation without
said consent shall be void.
16. Definitions.
As used in this Agreement, the following words shall, unless otherwise
defined herein, have the following meanings: (1) ACCELERATION: any
acceleration of payment or requirement of prepayment of any Debt, or
any Debt's becoming due and payable prior to stated maturity. (2)
AFFILIATE: when used with respect to the Borrower, any other Person
controlling, controlled by, or under common control with the Borrower.
(3) BENEFIT ARRANGEMENT: at any time an employee benefit plan within
the meaning of Section 3(3) of ERISA which is not a Plan or a
multiemployer plan and which is maintained or otherwise contributed to
by any member of the Teva Group. (4) BUSINESS DAY: any day on which
banks are regularly open for business in New York City. (5) CODE:
meaning set forth in Paragraph 8(g). (6) CONTROL: the power, alone or
in conjunction with others, directly or indirectly, through voting
securities, by contract or otherwise, to direct or cause the direction
of a Person's management and policies. (7) DEBT: any Person's
obligation of any sort (in whole or in part) for the payment of money
to any Person, whether (a) absolute or contingent, (b) secured or
unsecured, (c) joint, several or independent, (d) now or hereafter
existing, or (e) due or to become due. (8) DEBTOR RELIEF ACTION: the
commencement by any Party or (unless dismissed or terminated within 30
days) against any Party of any proceeding under any law of any
jurisdiction (domestic or foreign) relating to bankruptcy,
reorganization, insolvency, arrangement, composition, receivership,
liquidation, dissolution, moratorium or other relief of financially
distressed debtors, or the making by any Party of an assignment for the
benefit of creditors. (9) DEFAULT: any breach, default or event of
default under, or any failure to comply with, any provision of this
Agreement. (10) ENVIRONMENTAL LAWS: all federal, state, local and
foreign laws relating to pollution or protection of the environment,
including, without limitation, laws relating to emissions, discharges,
releases or threatened releases of pollutants, contaminants, chemicals,
or industrial, toxic or hazardous substances or wastes into the
environment (including, without limitation, ambient air, surface water,
ground water, or land), or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport,
or handling of pollutants, contaminants, chemicals, or industrial,
toxic or hazardous substances or wastes, and any and all regulations,
codes, plans, orders, decrees, judgments, injunctions, notices or
demand letters issued, entered, promulgated or approved thereunder.
(11) ERISA: meaning set forth in Paragraph 8(g). (12) EVENT OF DEFAULT:
the meaning set forth in Paragraph 10. (13) FACILITY: any line, loan,
letter of credit, other credit facility or other arrangement between
the Bank and any Person. (14) GOVERNMENTAL AUTHORITY: any domestic or
foreign, national or
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local, (a) government, (b) governmental, quasi-governmental or
regulatory agency or authority, (c) court or (d) central bank or other
monetary authority. (15) INSTRUMENT: the meaning assigned to it under
the Uniform Commercial Code in any relevant jurisdiction. (16) INTEREST
PERIOD: a period of one, two, or three months or such other period as
the Borrower and Bank may agree, with the first Interest period
commencing on the date hereof and each subsequent Interest Period
commencing on the last day of the immediately preceding Interest
Period, provided that no Interest Period shall extend beyond the final
maturity date of this Agreement, and if an Interest Period would
otherwise end a non-Business Day it shall end on the next succeeding
Business Day, unless such day would be in another calendar month, in
which case it shall end on the next preceding Business Day. (17) LAW:
any treaty, law, regulation, rule, judgment, order, decree, guideline,
interpretation or request issued by any Governmental Authority. (18)
LIBOR: "Libor Rate" for each loan to which it applies shall mean the
rate or rates established by the New York Branch of the Bank two
Business Days prior to the first Business Day of the applicable
Interest Period, by applying the following: (i) the British Bankers
Association ("BBA") Interest Settlement Rates for U.S. Dollars, as
defined in the BBA official definitions and reflected on the Telerate
BBA pages, for the applicable amounts and interest periods, which rates
reflect the offered rates as which deposits are being quoted to prime
banks in the London Interbank Market at 11:00 A.M. London Time
calculated as set forth in said BBA official definition; or (ii) such
other recognized source of London Eurocurrency deposit rates as the
Bank may determine from time to time. In the event the applicable BBA
page or pages shall be replaced by another Telerate page or other
Telerate pages for quoting London Eurocurrency rates, then rates quoted
on said replacement page or pages shall be applied. If the Bank
determines that London Eurocurrency rates are no longer being quoted
(temporarily or permanently) on any Telerate pages or that Telerate is
no longer functioning (temporarily or permanently) in substantially the
same manner as on the date hereof, then the Bank shall notify the
Borrower of a substitute, publicly available reference for the
determination of the Libor Rate. If the Bank determines in its sole
discretion that the Libor Rate cannot be determined or does not
represent its effective cost of maintaining Loans under this Agreement,
then interest shall accrue at the effective cost to the Bank to
maintain the Loans (as determined by the Bank in its sole discretion.
(19) LIEN: with respect to any asset, any mortgage lien, pledge,
charge, security interest or encumbrance of any kind, or any other type
of preferential arrangement that has the practical effect of creating a
security interest in respect of such asset. For the purpose of this
Agreement, the Borrower and any of its subsidiaries shall be deemed to
own subject to a Lien any asset which it has acquired or holds subject
to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement relating to
such asset. (20) LOAN DOCUMENTS: meaning set forth in Paragraph 8(b).
(21) MARGIN STOCK: "margin stock' as such term is defined in Regulation
U of the Board of Governors of the Federal Reserve System, as in effect
from time to time. (22) MATERIAL: material to the business or financial
condition of any Party on a consolidated or consolidating basis. (23)
PARTY: (a) any maker, co-maker or endorser of any agreement of a nature
Material to the Bank evidencing, or any guarantor, surety,
accommodation party or indemnitor with respect to, or any Person that
provides any collateral as security (all of the foregoing being of a
nature Material to the Bank) for, or any Person that issues a
subordination, comfort letter, standby letter of credit, repurchase
agreement, put agreement, option, other Agreement or other credit
support of a nature Material to the Bank with respect to any amounts
due to the Bank in connection with this Agreement; and (b) any Person
(i) that is under the Control of any Party and (ii) whose business or
financial condition is Material to such Party and to this Agreement.
(24) PERSON: any person, partnership, joint venture, company,
corporation, unincorporated organization or association, trust, estate,
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Governmental Authority, or any other entity. (25) PLAN: meaning set
forth in Paragraph 8(g). (26) PRIME RATE: the Bank's stated prime rate
as reflected in its books and records as such prime rate may change
from time to time. The Bank's determination of its Prime Rate shall be
conclusive and final. The Prime Rate is a reference rate and not
necessarily the lowest rate charged by the Bank. (27) PROPERTY: any
property, whether real, personal or mixed, and whether tangible or
intangible. (28) TENDER OFFER: the offer to purchase for cash all the
outstanding shares of common stock, par vale $.01 of ▇▇▇▇▇▇
Pharmaceutical, Inc. at $11.00 per share upon the terms and conditions
set forth in the Offer to Purchase dated August 16, 1999 and related
Letter of Transmittal as filed on August 16, 1999 with the Securities
and Exchange Commission as exhibits to Schedule 14D-1. (29) TEVA GROUP:
meaning set forth in Paragraph 8(g). (30) TRANSFER: any negotiation,
assignment, participation, conveyance, grant of a security interest,
lease, delegation, or any other direct or indirect transfer of a
complete or partial, legal, beneficial, economic or other interest or
obligation.
17. NO REPRESENTATIONS OF NON-ENFORCEMENT. BORROWER HEREBY CERTIFIES THAT
NONE OF THE BANK'S REPRESENTATIVES OR AGENTS HAS REPRESENTED, EXPRESSED
OR OTHERWISE INDICATED TO BORROWER OR ANY OF ITS AGENTS OR
REPRESENTATIVES THAT, IN THE EVENT OF LITIGATION OR OTHERWISE, THE BANK
WILL NOT SEEK TO ENFORCE, OR WILL WAIVE OR MODIFY, ANY OF THE
PROVISIONS OF THIS AGREEMENT.
Very truly yours,
TEVA PHARMACEUTICALS USA, INC.
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President/Chief Financial
Officer
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
CONSENTED AND AGREED TO BY:
BANK HAPOALIM B.M.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President/Manager of New York Branch
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: First Vice President
TEVA PHARMACEUTICAL INDUSTRIES LTD.,
as Guarantor
By: /s/▇▇▇ ▇▇▇▇▇▇▇▇▇ September 14, 1999
--------------------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
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