Exhibit 10.10
EXECUTION COPY
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CREDIT AGREEMENT
dated as of
April 6, 2007
between
CAMBREX CORPORATION
The SUBSIDIARY BORROWERS Party Hereto
The SUBSIDIARY GUARANTORS Party Hereto
The LENDERS Party Hereto
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
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$200,000,000
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▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
as Sole Lead Arranger and Sole Bookrunner
CITIBANK, N.A.
and
KEYBANK NATIONAL ASSOCIATION,
as Co-Syndication Agents
CITIZENS BANK
and
FORTIS CAPITAL CORP.,
as Co-Documentation Agents
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS.......................................................................................1
SECTION 1.01. Defined Terms...............................................................................1
SECTION 1.02. Classification of Loans and Borrowings.....................................................23
SECTION 1.03. Terms Generally............................................................................23
SECTION 1.04. Accounting Terms; GAAP.....................................................................24
SECTION 1.05. Currencies; Currency Equivalents; Provisions Relating to European Monetary Union...........24
ARTICLE II THE CREDITS.....................................................................................25
SECTION 2.01. The Commitments............................................................................25
SECTION 2.02. Loans and Borrowings.......................................................................25
SECTION 2.03. Requests for Syndicated Borrowings.........................................................26
SECTION 2.04. Swingline Loans............................................................................27
SECTION 2.05. Letters of Credit..........................................................................29
SECTION 2.06. Funding of Borrowings......................................................................34
SECTION 2.07. Interest Elections.........................................................................35
SECTION 2.08. Termination, Reduction and Increase of the Commitments.....................................36
SECTION 2.09. Repayment of Loans; Evidence of Debt.......................................................39
SECTION 2.10. Prepayment of Loans........................................................................40
SECTION 2.11. Fees.......................................................................................41
SECTION 2.12. Interest...................................................................................42
SECTION 2.13. Alternate Rate of Interest.................................................................43
SECTION 2.14. Increased Costs............................................................................43
SECTION 2.15. Break Funding Payments.....................................................................45
SECTION 2.16. Taxes..................................................................................... 45
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Set-offs................................48
SECTION 2.18. Mitigation Obligations; Replacement of Lenders.............................................51
SECTION 2.19. Designation of Subsidiary Borrowers........................................................51
ARTICLE III GUARANTEE......................................................................................53
SECTION 3.01. The Guarantee..............................................................................53
SECTION 3.02. Obligations Unconditional..................................................................54
SECTION 3.03. Reinstatement..............................................................................55
SECTION 3.04. Subrogation................................................................................55
SECTION 3.05. Remedies...................................................................................55
SECTION 3.06. Instrument for the Payment of Money........................................................56
SECTION 3.07. Continuing Guarantee.......................................................................56
SECTION 3.08. Rights of Contribution.....................................................................56
SECTION 3.09. General Limitation on Guarantee Obligations................................................56
ARTICLE IV REPRESENTATIONS AND WARRANTIES..................................................................57
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SECTION 4.01. Organization; Powers.......................................................................57
SECTION 4.02. Authorization; Enforceability..............................................................57
SECTION 4.03. Governmental Approvals; No Conflicts.......................................................57
SECTION 4.04. Financial Condition; No Material Adverse Change............................................58
SECTION 4.05. Properties.................................................................................58
SECTION 4.06. Litigation and Environmental Matters.......................................................58
SECTION 4.07. Compliance with Laws and Agreements........................................................59
SECTION 4.08. Investment Company Status..................................................................59
SECTION 4.09. Taxes......................................................................................59
SECTION 4.10. ERISA......................................................................................59
SECTION 4.11. Disclosure.................................................................................59
SECTION 4.12. Use of Credit..............................................................................60
SECTION 4.13. Subsidiaries...............................................................................60
SECTION 4.14. Labor Matters..............................................................................60
SECTION 4.15. Representations and Warranties Affecting Certain Subsidiary Borrowers......................60
ARTICLE V CONDITIONS.......................................................................................61
SECTION 5.01. Effective Date.............................................................................61
SECTION 5.02. Each Credit Event..........................................................................63
ARTICLE VI AFFIRMATIVE COVENANTS...........................................................................63
SECTION 6.01. Financial Statements and Other Information.................................................64
SECTION 6.02. Notices of Material Events.................................................................65
SECTION 6.03. Existence; Conduct of Business.............................................................66
SECTION 6.04. Payment of Obligations.....................................................................66
SECTION 6.05. Maintenance of Properties; Insurance.......................................................66
SECTION 6.06. Books and Records; Inspection Rights.......................................................66
SECTION 6.07. Compliance with Laws.......................................................................66
SECTION 6.08. Use of Proceeds and Letters of Credit......................................................66
SECTION 6.09. Certain Obligations Respecting Subsidiaries; Further Assurances............................67
ARTICLE VII NEGATIVE COVENANTS.............................................................................68
SECTION 7.01. Indebtedness...............................................................................68
SECTION 7.02. Liens......................................................................................69
SECTION 7.03. Mergers, Consolidations, etc.; Changes in Lines of Business................................71
SECTION 7.04. Disposition of Assets......................................................................71
SECTION 7.05. Investments and Acquisitions...............................................................72
SECTION 7.06. Restricted Payments........................................................................73
SECTION 7.07. Transactions with Affiliates...............................................................74
SECTION 7.08. Restrictive Agreements.....................................................................74
SECTION 7.09. Certain Financial Covenants................................................................74
SECTION 7.10. Sale and Leaseback Transactions............................................................75
ARTICLE VIII EVENTS OF DEFAULT.............................................................................75
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ARTICLE IX THE ADMINISTRATIVE AGENT........................................................................78
ARTICLE X MISCELLANEOUS....................................................................................80
SECTION 10.01. Notices...................................................................................80
SECTION 10.02. Waivers; Amendments.......................................................................81
SECTION 10.03. Expenses; Indemnity; Damage Waiver........................................................82
SECTION 10.04. Successors and Assigns....................................................................84
SECTION 10.05. Survival..................................................................................87
SECTION 10.06. Counterparts; Integration; Effectiveness..................................................87
SECTION 10.07. Severability..............................................................................88
SECTION 10.08. Right of Setoff...........................................................................88
SECTION 10.09. Governing Law; Jurisdiction; Etc..........................................................88
SECTION 10.10. WAIVER OF JURY TRIAL......................................................................89
SECTION 10.11. Judgment Currency.........................................................................90
SECTION 10.12. Headings..................................................................................90
SECTION 10.13. Treatment of Certain Information; Confidentiality.........................................90
SECTION 10.14. USA PATRIOT Act...........................................................................91
SECTION 10.15. Waiver of Immunity........................................................................91
SECTION 10.16. Appointment of Company as Agent...........................................................92
SECTION 10.17. Lender Representation - Professional Market Party.........................................92
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SCHEDULE 1.01 - Commitments
SCHEDULE 2.05(l) - Existing Letters of Credit
SCHEDULE 4.06(a) - Litigation
SCHEDULE 4.06(b) Environmental Matters
SCHEDULE 4.13 - Subsidiaries
SCHEDULE 7.01 - Indebtedness
SCHEDULE 7.02 - Liens
SCHEDULE 7.05 - Investments
SCHEDULE 7.08 - Restrictive Agreements
EXHIBIT A - Form of Assignment and Acceptance
EXHIBIT B - Form of Pledge Agreement
EXHIBIT C - Form of Guarantee Assumption Agreement
EXHIBIT D-1 - Form of Opinion of General Counsel of the Obligors
EXHIBIT D-2 - Form of Opinion of Special New York Counsel to the Obligors
EXHIBIT E - Form of Opinion of Special New York Counsel to JPMCB
EXHIBIT F - Form of Subsidiary Borrower Designation Letter
EXHIBIT G - Form of Subsidiary Borrower Termination Letter
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CREDIT AGREEMENT dated as of April 6, 2007, between CAMBREX CORPORATION,
the SUBSIDIARY BORROWERS party hereto, the SUBSIDIARY GUARANTORS party hereto,
the LENDERS party hereto, and JPMORGAN CHASE BANK, N.A., as Administrative
Agent.
The Company (as hereinafter defined) has requested that the Lenders (as so
defined) extend credit to it, under the guarantee of the Subsidiary Guarantors
(as so defined), in an aggregate principal or face amount not exceeding
$200,000,000, for the purposes specified herein. The Lenders are prepared to
extend such credit upon the terms and conditions hereof, and, accordingly, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans constituting such Borrowing, are denominated in Dollars
and bear interest at a rate determined by reference to the Alternate Base Rate.
"Acquired Entity" means any business, assets or Person subject to an
Acquisition.
"Acquisition" means any transaction, or any series of related
transactions, consummated after the date hereof, by which the Company and/or any
of its Subsidiaries (a) acquires any going business or all or substantially all
of the assets of any corporation, limited liability company, partnership, joint
venture or other entity or any division of any corporation, limited liability
company, partnership, joint venture or other entity or the right to use or
manage or otherwise exploit any such business or assets, whether through
purchase or lease of assets, merger or otherwise or (b) directly or indirectly
acquires ownership or Control of at least a majority (in number of votes) of
Capital Stock which has ordinary voting power for the election of directors or
other managers of any corporation, limited liability company, partnership, joint
venture or other entity.
"Adjusted LIBO Rate" means, for the Interest Period for any Eurocurrency
Borrowing, an interest rate per annum (rounded upwards, if necessary, to the
next 1/100 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied
by (b) the Statutory Reserve Rate for such Interest Period.
"Administrative Agent" means JPMCB, in its capacity as administrative
agent for the Lenders hereunder.
"Administrative Agent's Account" means, for each currency, an account in
respect of such currency designated by the Administrative Agent in a notice to
the Company and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Agreed Foreign Currency" means, at any time, any of Pounds Sterling,
euro, Japanese Yen and, with the agreement of each Lender, any other Foreign
Currency, so long as, in respect of any such specified currency or other Foreign
Currency, at such time (a) such currency is dealt with in the London interbank
deposit market, (b) such currency is freely transferable and convertible into
Dollars in the London foreign exchange market and (c) no central bank or other
governmental authorization in the country of issue of such currency (including,
in the case of the euro, any authorization by the European Central Bank) is
required to permit use of such currency by any Lender for making any Loan
hereunder and/or to permit the relevant Borrower to borrow and repay the
principal thereof and to pay the interest thereon, unless such authorization has
been obtained and is in full force and effect.
"Agreed Swingline Foreign Currency" means, at any time, any of Pounds
Sterling and euro.
"Alternate Base Rate" means, for any day, a rate per annum equal to the
greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate for such day plus 0.50%. Any change in the Alternate Base Rate
due to a change in the Prime Rate or the Federal Funds Effective Rate shall be
effective from and including the effective date of such change in the Prime Rate
or the Federal Funds Effective Rate, as the case may be.
"Applicable Percentage" means, with respect to any Lender, the percentage
of the total Commitments represented by such Lender's Commitment. If the
Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Applicable Rate" means, for any day, with respect to any ABR Loan
(including any Swingline Loan that bears interest based upon the Alternate Base
Rate) or Eurocurrency Loan (including any Swingline Loan that bears interest
based upon the Swingline Multicurrency Rate), or with respect to the facility
fees payable hereunder, as the case may be, the applicable rate per annum set
forth below under the caption "ABR Spread", "Eurocurrency Spread" or "Facility
Fee Rate", respectively, based upon the Leverage Ratio as of the most recent
determination date; provided that from and after the Effective Date to but
excluding the third Business Day after delivery of the financial statements for
the fiscal quarter ending September 30, 2007, the "Applicable Rate" shall be
deemed to be in Category 2:
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ABR Eurodollar Facility
Leverage Ratio Spread Spread Fee Rate
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Category 1 < 1.75x 0.025 1.025% 0.225%
Category 2 > or = 1.75x 0.225 1.225% 0.275%
< 2.50x
Category 3 > or = 2.50x 0.45 1.45% 0.30%
< 3.00x
Category 4 > or = 3.00x 0.675 1.675% 0.325%
For purposes of the foregoing, (i) the Leverage Ratio shall be determined as of
the end of each fiscal quarter or fiscal year of the Company, as applicable,
based upon the Company's consolidated financial statements delivered pursuant to
Section 6.01(a) or (b) and (ii) subject to the proviso set forth above in this
definition, each change in the Applicable Rate resulting from a change in the
Leverage Ratio shall be effective during the period commencing on and including
the date three Business Days after delivery to the Administrative Agent of such
consolidated financial statements (and the related compliance certificate
required under Section 6.01(c)) indicating such change and ending on the date
immediately preceding the effective date of the next such change; provided that
(A) the Leverage Ratio shall be deemed to be in Category 4 at any time that an
Event of Default has occurred and is continuing and (B) if the Company fails to
deliver the consolidated financial statements required to be delivered by it
pursuant to Section 6.01(a) or (b) (and/or the related compliance certificate
required to be delivered by it pursuant to Section 6.01(c)), any adjustment in
the Applicable Rate shall be delayed until the delivery thereof and shall be
retroactively applied for the period from the expiration of the time for
delivery thereof until the date of such delivery.
"Approved Fund" means any Person (other than a natural person) that is
engaged in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course of its business and that is
administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers or manages a Lender.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 10.04), and accepted by the Administrative Agent, in the
form of Exhibit A or any other form approved by the Administrative Agent.
"Assuming Lender" has the meaning set forth in Section 2.08(e).
"Availability Period" means the period from and including the Effective
Date to but excluding the earlier of the Commitment Termination Date and the
date of termination of the Commitments.
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"Bio Transaction" means the sale by the Company of the Biopharma and
Bioproducts business segments, consummated as of February 6, 2007.
"Board" means the Board of Governors of the Federal Reserve System of the
United States of America.
"Borrowers" means the Company and the Subsidiary Borrowers.
"Borrowing" means (a) all Syndicated ABR Loans made, converted or
continued on the same date, (b) all Eurocurrency Loans denominated in the same
currency that have the same Interest Period or (c) a Swingline Loan.
"Borrowing Request" means a request by a Borrower for a Syndicated
Borrowing in accordance with Section 2.03.
"Business Day" means any day (a) that is not a Saturday, Sunday or (other
than with respect to determining any Interest Period) other day on which
commercial banks in New York City are authorized or required by law to remain
closed, (b) if such day relates to a borrowing of, a payment or prepayment of
principal of or interest on, a continuation or conversion of or into, or the
Interest Period for, a Eurocurrency Borrowing, or to a notice by the relevant
Borrower with respect to any such borrowing, payment, prepayment, continuation,
conversion, or Interest Period, that is also a day on which dealings in deposits
denominated in the currency of such Borrowing are carried out in the London
interbank market and (c) (i) if such day relates to a borrowing or continuation
of, a payment or prepayment of principal of or interest on, or the Interest
Period for, any Eurocurrency Borrowing denominated in any Foreign Currency
(other than euros), or to a notice by the relevant Borrower with respect to any
such borrowing, continuation, payment, prepayment or Interest Period, that is
also a day on which commercial banks and the London foreign exchange market
settle payments in the Principal Financial Center for such Foreign Currency or
(ii) if such day relates to a borrowing or continuation of, a payment or
prepayment of principal of or interest on, or the Interest Period for, any
Eurocurrency Borrowing denominated in euros, or to a notice by the relevant
Borrower with respect to any such borrowing, continuation, payment, prepayment
or Interest Period, that is also a TARGET Day.
"Capital Lease Obligations" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase any of the foregoing.
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"Change in Control" means (a) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934, as amended, and the rules of the
Securities and Exchange Commission thereunder as in effect on the date hereof),
of shares representing more than 35% of the aggregate ordinary voting power
represented by the issued and outstanding common stock of the Company or (b)
occupation of a majority of the seats (other than vacant seats) on the board of
directors of the Company by Persons who were neither (i) nominated by the board
of directors of the Company nor (ii) appointed by directors so nominated.
"Change in Law" means (a) the adoption of any law, rule or regulation
after the date hereof, (b) any change in any law, rule or regulation or in the
interpretation or application thereof by any Governmental Authority after the
date hereof or (c) compliance by any Lender or the Issuing Lender (or, for
purposes of Section 2.14(b), by any lending office of such Lender or by such
Lender's or the Issuing Lender's holding company, if any) with any request,
guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date hereof.
"Change in Tax Law" means, with respect to any Person, a change in or
amendment to the Code or a change in, or amendment to, or the entering into of,
an income tax treaty between the United States of America and the jurisdiction
where such Person is a tax resident, or a change in or amendment to the treasury
regulations, in each case that occurred after such Person became a party to this
Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans constituting such Borrowing, are Syndicated
Loans or Swingline Loans.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Commitment" means, with respect to each Lender, the commitment of such
Lender to make Syndicated Loans and to acquire participations in Letters of
Credit and Swingline Loans hereunder, expressed as an amount representing the
maximum aggregate amount of such Lender's Revolving Credit Exposure hereunder,
as such commitment may be (a) reduced from time to time pursuant to Section
2.08(b), (b) increased from time to time pursuant to Section 2.08(e), and (c)
reduced or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 10.04. The initial amount of each Lender's Commitment
is set forth on Schedule 1.01, or in the Assignment and Acceptance (or in any
confirmation or agreement of a Lender under Section 2.08(e)) pursuant to which
such Lender shall have assumed its Commitment, as applicable. The aggregate
amount of the Lenders' Commitments is $200,000,000 as of the Effective Date.
"Commitment Increase" has the meaning set forth in Section 2.08(e).
"Commitment Increase Date" has the meaning set forth in Section 2.08(e).
"Commitment Termination Date" means April 6, 2012.
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"Company" means Cambrex Corporation, a Delaware corporation.
"Consolidated EBITDA" means, for any period, the sum, for the Company and
its Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following: (a) Consolidated Net Income for such
period plus (b) without duplication and to the extent deducted in determining
such Consolidated Net Income, the sum of (i) Consolidated Interest Expense for
such period, (ii) income tax expense for such period, (iii) all amounts
attributable to depreciation and amortization for such period, (iv) all
extraordinary losses, (v) all non-cash amounts attributable to the impairment of
goodwill or other intangibles or to the expensing of in-process research and
development in connection with any acquisition, (vi) all non-cash losses
associated with the sale or write-down of assets not in the ordinary course of
business, (vii) all non-cash losses associated with foreign currency
translations (including as a result of marking to market any investment or any
hedging arrangement relating thereto), (viii) all non-cash expenses in
connection with or as a result of any equity, equity-like or equity-linked
grants or awards by the Company or any of its Subsidiaries to its directors,
officers, employees or consultants, (ix) all non-cash expenses, losses or
write-downs attributable to restructuring charges, plant shut-downs or
discontinued operations, in each case, that are non-recurring, unusual or
extraordinary, (x) one-time costs and charges (other than charges of the types
covered under clause (xi) below) incurred in connection with the consummation of
the Bio Transaction not exceeding $5,000,000 in the aggregate, (xi) cash
severance, retention and change of control payments in connection with the Bio
Transaction not exceeding $30,000,000 in the aggregate, provided that accruals
for such payments shall be made no later than 13 months after the date of the
consummation of the Bio Transaction, and (xii) cash charges relating to
discontinued operations not exceeding $10,000,000 in the aggregate; provided
that such charges shall be incurred within the 24 month period following the
Effective Date, and minus (c) without duplication and to the extent included in
determining such Consolidated Net Income, (i) all non-cash gains associated with
the sale or write-down of assets not in the ordinary course of business
(including all such gains measured in accordance with GAAP as a result of the
Bio Transaction), (ii) all extraordinary gains for such period and (iii) all
non-cash gains associated with foreign currency translations (including as a
result of marking to market any investment or any hedging arrangement relating
thereto; provided that, without duplication, if during any period for which
Consolidated EBITDA is being determined, the Company or any of its Subsidiaries
shall have made any Disposition or Acquisition (in one or a series of related
transactions) or shall have acquired one or more income producing assets as part
of a single transaction, in each case, in excess of $25,000,000 in fair market
value, Consolidated EBITDA shall be determined for purposes of this Agreement by
(x) with respect to any such Disposition, excluding the Consolidated EBITDA of
the Disposed Entity (to the extent not already excluded in the relevant
financial statements of the Company) or (y) in the case of any such Acquisition
or acquisition of income producing assets, including the Consolidated EBITDA of
the Acquired Entity or the earnings associated with such assets, as applicable,
for such period, in each case, as if the relevant transaction had been made or
consummated on the first day of such period; provided further that,
notwithstanding the foregoing, for purposes of determining compliance with
Section 7.09 at any time prior to June 30, 2007, to the extent applicable to
such determination, (I) Consolidated EBITDA for the fiscal quarter ended
September 30, 2006 shall be deemed to be $12,643,000, (II) Consolidated EBITDA
for the fiscal quarter ended December 31, 2006 shall be
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deemed to be $13,547,000, (III) (except as provided in clause (IV) below)
Consolidated EBITDA for the fiscal quarter ended March 31, 2007 shall be
determined by excluding the Consolidated EBITDA of the businesses and assets
disposed of in the Bio Transaction (to the extent not already excluded in the
relevant financial statements of the Company) for such fiscal quarter, as if the
Bio Transaction had been consummated on the first day of such fiscal quarter and
(IV) for the fiscal quarter ended March 31, 2007, corporate overhead expense
will be deemed to be the sum of (A) the actual aggregate amount of corporate
overhead expense for the period from and including February 7, 2007 through
March 31, 2007 plus (B) an assumed amount of corporate overhead expense of
$1,800,000 (of which $103,000 is assumed to be depreciation).
"Consolidated Funded Indebtedness" means, as of any date, all
interest-bearing Indebtedness (including Capital Lease Obligations) of the
Company and its Subsidiaries classified as indebtedness in accordance with GAAP
on the Company's consolidated balance sheet minus an amount equal to (i) the
excess (if any) of (x) the aggregate amount of all cash deposits (regardless of
currency or location) held in accounts owned by and under the control of the
Company or any of its Subsidiaries on such date over (y) $5,000,000, minus (ii)
an amount equal to the United States federal income tax liability (if any) that
would be imposed on such amount in the event such amount was transferred to the
United States, as reasonably estimated by the Company.
"Consolidated Interest Expense" means, for any period, the sum, for the
Company and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following: (a) all interest in
respect of Indebtedness (including the interest component of any payments in
respect of Capital Lease Obligations) accrued or capitalized during such period
(whether or not actually paid during such period) plus (b) the net amount
payable (or minus the net amount receivable) under Hedging Agreements relating
to interest during such period (whether or not actually paid or received during
such period).
"Consolidated Net Income" means, for any period, the net income or loss of
the Company and its Subsidiaries (determined on a consolidated basis in
accordance with GAAP) for such period; provided that there shall be excluded the
income (or deficit) of any Person (other than a Subsidiary of the Company or any
other Person Controlled by the Company) in which the Company or any of its
Subsidiaries has an ownership interest, except to the extent that any such
income is actually received by the Company or such Subsidiary in the form of
dividends or similar distributions.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Currency Valuation Date" means the first Business Day of each calendar
month.
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"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Disposed Entity" means any business, assets or Person subject to a
Disposition.
"Disposition" means any sale, lease, license, transfer, assignment or
other disposition of all or a material portion of the business, assets, rights,
revenues or property, real, personal or mixed, tangible or intangible, of the
Company or any of its Subsidiaries, whether in one or a series of transactions.
"Dollar Equivalent" means, with respect to any Borrowing denominated in
any Foreign Currency, the amount of Dollars that would be required to purchase
the amount of the Foreign Currency of such Borrowing on the date two Business
Days prior to the date of such Borrowing (or, in the case of any determination
made under Section 2.10(b) or redenomination under the last sentence of Section
2.17(a), on the date of determination or redenomination therein referred to),
based upon the spot selling rate at which the Person serving as Administrative
Agent offers to sell such Foreign Currency for Dollars in the London foreign
exchange market at approximately 11:00 a.m., London time, for delivery two
Business Days later.
"Dollars" or "$" refers to lawful money of the United States of America.
"Domestic Subsidiary" means a Subsidiary (other than a Receivables
Subsidiary) that is not a Foreign Subsidiary.
"Effective Date" means the date (which shall not be later than April 30,
2007) on which the conditions specified in Section 5.01 are satisfied (or waived
in accordance with Section 10.02).
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Company or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Equity Rights" means, with respect to any Person, any subscriptions,
options, warrants, commitments, preemptive rights or agreements of any kind
(including any
- 8 -
shareholders' or voting trust agreements) for the issuance, sale, registration
or voting of, or securities convertible into, any additional shares of Capital
Stock of any class, or partnership or other ownership interests of any type in,
such Person.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Company, is treated as a single employer
under Section 414(b) or (c) of the Code, or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section 4043
of ERISA or the regulations issued thereunder with respect to a Plan (other than
an event for which the 30-day notice period is waived); (b) the existence with
respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Company or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Company or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Company or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Company or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Company or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"euro" means the single currency of Participating Member States of the
European Union, which shall be an Agreed Foreign Currency and a Foreign Currency
under this Agreement.
"Eurocurrency", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans constituting such Borrowing, bear interest at a
rate determined by reference to the Adjusted LIBO Rate or (in the case of any
Swingline Loan denominated in an Agreed Swingline Foreign Currency) the
Swingline Multicurrency Rate.
"Event of Default" has the meaning set forth in Article VIII.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, the Issuing Lender or any other recipient of any payment to be made (a)
by or on account of any obligation of the Company or any Subsidiary Borrower,
(i) income or franchise taxes imposed on (or measured by) its net income, net
profit, net worth (however denominated), and franchise or capital taxes imposed,
in each case, by the United States of America, or by the jurisdiction under the
laws of which such recipient is organized or in which its principal office is
located or, in the
- 9 -
case of any Lender, in which its applicable lending office is located and (ii)
any branch profits taxes imposed by the United States of America or any similar
tax imposed by any other jurisdiction in which the Company or any such
Subsidiary Borrower that is a Domestic Subsidiary is located, (b) by or on
account of the Company, a Domestic Subsidiary or a Subsidiary Borrower organized
in the Netherlands, income or franchise taxes imposed on (or measured by) its
net income, net profit, net worth (however denominated), and franchise or
capital taxes imposed, in each case, by a jurisdiction in which such Person is
doing business (unless such Person would not have been subject to such Tax in
such jurisdiction but for (i) the transactions contemplated hereunder or under
any other Loan Document or (ii) such Person performing any obligations,
receiving any payments or enforcing any rights hereunder or thereunder), (c) by
or on account of any obligation of the Company or any Domestic Subsidiary that
is a Subsidiary Borrower, in the case of a Foreign Lender (other than an
assignee pursuant to a request by the Company under Section 2.18(b)), any
withholding tax that (i) is in effect and would apply to amounts payable to such
Foreign Lender by the Company or any such Domestic Subsidiary at the time such
Foreign Lender becomes a party to this Agreement (or designates a new lending
office for purposes hereof), other than any withholding tax imposed on any
payment by the Company or any such Domestic Subsidiary to the extent that such
Foreign Lender, in the case of a designation of a new lending office (or its
assignor, in the case of an assignment) was entitled as a result of a Change in
Tax Law, at the time of such designation (or assignment, as the case may be), to
receive additional amounts from the Company or any such Domestic Subsidiary with
respect to any withholding tax pursuant to Section 2.16(a), or (ii) is
attributable to such Foreign Lender's failure or inability (other than as a
result of a Change in Law) to comply with Section 2.16(e), and (d) by or on
account of any obligation of any Subsidiary Borrower that is organized under the
laws of the Netherlands, in the case of any Lender that first becomes a party to
this Agreement after a change in withholding tax law imposed by the Netherlands
(other than an assignee pursuant to a request by the Company under Section
2.18(b)), any withholding tax imposed by the Netherlands to the extent that such
tax exceeds the Netherlands withholding tax to which such Lender's assignor
would have been subject or that is imposed by the Netherlands solely by reason
of such Lender's failure or inability (other than as a result of a Change in
Law) to comply with Section 2.16(f).
"Federal Funds Effective Rate" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer, treasurer, vice
president-finance or corporate controller of the Company.
"First-Tier Foreign Subsidiary" mean any Foreign Subsidiary that is owned
directly by the Company or any Domestic Subsidiary.
- 10 -
"Foreign Currency" means at any time any currency other than Dollars.
"Foreign Currency Equivalent" means, with respect to any amount in
Dollars, the amount of any Foreign Currency that could be purchased with such
amount of Dollars using the reciprocal of the foreign exchange rate(s) specified
in the definition of the term "Dollar Equivalent", as determined by the
Administrative Agent.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Company is located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" means any Subsidiary that is organized under the laws
of a jurisdiction other than the United States of America, a State thereof or
the District of Columbia.
"GAAP" means generally accepted accounting principles in the United States
of America.
"Governmental Authority" means the government of the United States of
America, or of any other nation, or any political subdivision thereof, whether
state, local or foreign, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" of or by any Person (the "guarantor") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation of any other Person
(the "primary obligor") in any manner, whether directly or indirectly, and
including any obligation of the guarantor, direct or indirect, (a) to purchase
or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party or applicant in
respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business.
"Guarantee Assumption Agreement" means a Guarantee Assumption Agreement
substantially in the form of Exhibit C by an entity that, pursuant to Section
6.09, is required to become a "Subsidiary Guarantor" hereunder in favor of the
Administrative Agent and for the benefit of the Lenders.
"Guarantors" means the Company (with respect to its obligations as a
guarantor under Article III) and the Subsidiary Guarantors.
- 11 -
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Agreement" means any interest rate protection agreement, foreign
currency exchange agreement, commodity price protection agreement or other
interest or currency exchange rate or commodity price hedging arrangement.
"Immaterial Domestic Subsidiary" means any Domestic Subsidiary that has
less than $5,000,000 of assets and revenues, determined (in the case of assets)
as of the end of and (in the case of revenues) for the most recently completed
fiscal quarter of the Company.
"Immaterial Foreign Subsidiary" means any Foreign Subsidiary that has less
than $5,000,000 of assets and revenues, determined (in the case of assets) as of
the end of and (in the case of revenues) for the most recently completed fiscal
quarter of the Company.
"Immaterial Subsidiary" means any Subsidiary that has less than $500,000
of assets and revenues, determined (in the case of assets) as of the end of and
(in the case of revenues) for the most recently completed fiscal quarter for
which consolidated financial statements of the Company are available.
"Increasing Lender" has the meaning set forth in Section 2.08(e).
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (d) all obligations of
such Person in respect of the deferred purchase price of property or services
(excluding current accounts payable incurred in the ordinary course of
business), (e) all Indebtedness of others secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be secured
by) any Lien on property owned or acquired by such Person, whether or not the
Indebtedness secured thereby has been assumed, (f) all Guarantees by such Person
of Indebtedness of others of the type included within this definition (other
than this clause (f)), (g) all Capital Lease Obligations of such Person, (h) all
obligations, contingent or otherwise, of such Person as an account party or
applicant in respect of letters of credit, letters of guaranty and similar
instruments, (i) all obligations, contingent or otherwise, of such Person in
respect of bankers' acceptances, (j) the liquidation value of any mandatorily
redeemable preferred Capital Stock of such Person or any of its Subsidiaries
held by any Person (other than such Person or any of its Subsidiaries) that is
redeemable in whole or in part at any time prior to December 31, 2012, but only
if such liquidation value exceeds $5,000,000 and (k) all obligations under
Hedging Agreements; provided that the amount of Indebtedness under clauses (e)
and (f) above shall be the lesser of (i) the amount of such Indebtedness of such
other Person and (ii)(x) in the case of clause (e), the fair market value of the
property subject to such Lien and (y) in the
- 12 -
case of clause (f), the actual obligation of such other Person. The Indebtedness
of any Person shall include the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent such Person
is liable therefor as a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Interest Coverage Ratio" means, as at any date, the ratio of (a)
Consolidated EBITDA for the period of four fiscal quarters ending on or most
recently ended prior to such date to (b) Consolidated Interest Expense for such
period.
"Interest Election Request" means a request by the relevant Borrower to
convert or continue a Syndicated Borrowing in accordance with Section 2.07.
"Interest Payment Date" means (a) with respect to any Syndicated ABR Loan
or Eurocurrency Loan, each Quarterly Date, (b) with respect to any Swingline
Loan denominated in Dollars, the last Business Day of each month and (c) with
respect to any Swingline Loan denominated in an Agreed Swingline Foreign
Currency, the last day of each Interest Period therefor.
"Interest Period" means (a) for any Eurocurrency Loan or Borrowing (other
than any Swingline Loan denominated in an Agreed Swingline Foreign Currency),
the period commencing on the date of such Loan or Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter or, with respect to such portion of any Eurocurrency Loan
or Borrowing denominated in a Foreign Currency that is scheduled to be repaid on
the Commitment Termination Date, a period of less than one month's duration
commencing on the date of such Loan or Borrowing and ending on the Commitment
Termination Date, as specified in the applicable Borrowing Request or Interest
Election Request and (b) for any Swingline Loan denominated in an Agreed
Swingline Foreign Currency, the period commencing on the date of such Loan and
ending on the day that is designated in the relevant notice delivered pursuant
to Section 2.04(b) with respect to such Loan, which shall not be later than the
seventh day thereafter; provided that (i) if any Interest Period would end on a
day other than a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless such next succeeding Business Day would fall
in the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day, and (ii) any Interest Period (other than an
Interest Period pertaining to a Eurocurrency Borrowing denominated in a Foreign
Currency that ends on the Commitment Termination Date that is permitted to be of
less than one month's duration as provided in this definition) that commences on
the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such
Interest Period. For purposes hereof, the date of a Loan initially shall be the
date on which such Loan is made and thereafter shall be the effective date of
the most recent conversion or continuation of such Loan, and the date of a
Syndicated Borrowing comprising Loans that have been converted or continued
shall be the effective date of the most recent conversion or continuation of
such Loans.
- 13 -
"Investment" means, for any Person: (a) the acquisition (whether for cash,
property, services or securities or otherwise) of Capital Stock, bonds, notes,
debentures, partnership or other ownership interests or other securities of any
other Person or any agreement to make any such acquisition (including any "short
sale" or any sale of any securities at a time when such securities are not owned
by the Person entering into such sale); (b) the making of any deposit with, or
advance, loan or other extension of credit to, any other Person (including the
purchase of property from another Person subject to an understanding or
agreement, contingent or otherwise, to resell such property to such Person), but
excluding any such advance, loan or extension of credit having a term not
exceeding 180 days arising in connection with the sale of inventory or supplies
by such Person in the ordinary course of business; (c) the entering into of any
Guarantee of, or other contingent obligation with respect to, Indebtedness or
any other liability of any other Person and (without duplication) any amount
committed to be advanced, lent or extended to such Person; or (d) the entering
into of any Hedging Agreement.
"Issuing Lender" means JPMCB, in its capacity as the issuer of Letters of
Credit hereunder, and its successors in such capacity as provided in Section
2.05(j).
"JPMCB" means JPMorgan Chase Bank, N.A.
"LC Disbursement" means a payment made by the Issuing Lender pursuant to a
Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the relevant Borrower at such time. The LC Exposure of any Lender at any time
shall be its Applicable Percentage of the total LC Exposure at such time.
"Lender Affiliate" means, with respect to any Lender, (i) an Affiliate of
such Lender or (ii) any entity (whether a corporation, partnership, trust or
otherwise) that is engaged in making, purchasing, holding or otherwise investing
in bank loans and similar extensions of credit in the ordinary course of its
business and is administered or managed by such Lender or an Affiliate of such
Lender.
"Lenders" means the Persons listed on Schedule 1.01 and any other Person
that shall have become a party hereto pursuant to an Assignment and Acceptance
or as an Assuming Lender pursuant to Section 2.08(e), other than any such Person
that ceases to be a party hereto pursuant to an Assignment and Acceptance.
Unless the context otherwise requires, the term "Lenders" includes the Swingline
Lender.
"Letter of Credit" means any letter of credit issued pursuant to this
Agreement.
"Letter of Credit Documents" means, with respect to any Letter of Credit,
collectively, any application therefor and any other agreements, instruments,
guarantees or other documents (whether general in application or applicable only
to such Letter of Credit) governing
- 14 -
or providing for (a) the rights and obligations of the parties concerned or at
risk with respect to such Letter of Credit or (b) any collateral security for
any of such obligations, each as the same may be modified and supplemented and
in effect from time to time.
"Leverage Ratio" means, as at any date, the ratio of (a) Consolidated
Funded Indebtedness as of such date to (b) Consolidated EBITDA for the period of
four fiscal quarters ending on or most recently ended prior to such date.
"LIBO Rate" means, for the Interest Period for any Eurocurrency Borrowing
denominated in any currency, the rate appearing on the Screen at approximately
11:00 a.m., London time, on the Quotation Date prior to the commencement of such
Interest Period, as LIBOR for deposits denominated in such currency with a
maturity comparable to such Interest Period. In the event that such rate is not
available on the Screen at such time for any reason, then the LIBO Rate for such
Interest Period shall be the rate at which deposits in such currency in the
amount of $5,000,000 (or the Foreign Currency Equivalent) and for a maturity
comparable to such Interest Period are offered by the principal London office of
the Person serving as Administrative Agent in immediately available funds to
leading banks in the London interbank market at approximately 11:00 a.m., London
time, on the Quotation Date prior to the commencement of such Interest Period.
"LIBOR" means, for any currency, the rate at which deposits denominated in
such currency are offered to leading banks in the London interbank market.
"Lien" means, with respect to any asset, (a) any mortgage, deed of trust,
lien, pledge, hypothecation, encumbrance, charge or security interest in, on or
of such asset and (b) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement (or any financing
lease having substantially the same economic effect as any of the foregoing)
relating to such asset.
"Loan Documents" means, collectively, this Agreement, each promissory note
(if any) issued under Section 2.09(e), the Letter of Credit Documents and the
Security Documents.
"Loans" means the loans made by the Lenders to the Borrowers
pursuant to this Agreement.
"Local Time" means (a) with respect to any Loan denominated in or any
payment to be made in Dollars, local time in New York, New York, (b) with
respect to any Loan denominated in or any payment to be made in any Foreign
Currency (other than euro), the local time in the Principal Financial Center for
the currency in which such Loan is denominated or such payment is to be made and
(c) with respect to any Loan denominated in or any payment to be made in euro,
the local time in London, England.
"Margin Stock" means "margin stock" within the meaning of Regulations T, U
and X of the Board.
- 15 -
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations or condition, financial or otherwise, of the
Company and its Subsidiaries taken as a whole, (b) the ability of any Obligor to
perform any of its obligations under this Agreement or any of the other Loan
Documents to which it is a party or (c) the rights of or benefits available to
the Lenders under this Agreement or any of the other Loan Documents.
"Material Indebtedness" means Indebtedness (other than the Loans and
Letters of Credit), or obligations in respect of one or more Hedging Agreements,
of any one or more of the Company and its Subsidiaries in an aggregate principal
amount exceeding $10,000,000. For purposes of determining Material Indebtedness,
the "principal amount" of the obligations of the Company or any Subsidiary in
respect of any Hedging Agreement at any time shall be the maximum aggregate
amount (giving effect to any netting agreements) that the Company or such
Subsidiary, as the case may be, would be required to pay if such Hedging
Agreement were terminated at such time.
"Money Market Rate" means such rate of interest per annum (if any) as the
Swingline Lender may quote from time to time on any single commercial borrowing
for a period of up to 90 days.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"National Currency" means the currency, other than the euro, of a
Participating Member State.
"Obligors" means the Borrowers and the Guarantors.
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made under any Loan Document or from the execution, delivery or
enforcement of, or otherwise with respect to, any Loan Document.
"Participating Member State" means any member state of the European
Community that adopts or has adopted the euro as its lawful currency in
accordance with the legislation of the European Union relating to the European
Monetary Union.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes, assessments and governmental charges
or levies that are not yet due or are being contested in compliance with
Section 6.04;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's,
landlords' and other like Liens imposed by law, arising in the ordinary
course of business
- 16 -
and securing obligations that are not overdue by more than 45 days or are
being contested in compliance with Section 6.04;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) Liens to secure the performance of bids, trade contracts (other than
for borrowed money), leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each case in the
ordinary course of business;
(e) judgment liens in respect of judgments that do not constitute an Event
of Default under clause (k) of Article VIII;
(f) easements, zoning restrictions, rights-of-way and similar encumbrances
on real property imposed by law or arising in the ordinary course of business
that do not secure any monetary obligations and do not materially detract
from the value of the affected property or interfere with the ordinary
conduct of business of the Company or any Subsidiary;
(g) any interest or title of a lessor under any lease entered into by the
Company or any Subsidiary in the ordinary course of its business and covering
only the assets so leased;
(h) licenses, sublicenses, leases and subleases granted to third parties
in the ordinary course that do not materially interfere with the ordinary
conduct of business by the Company or any Subsidiary;
(i) Liens arising from the filing of precautionary UCC financing
statements regarding operating leases;
(j) Liens arising out of the consignment or similar arrangement for the
sale of goods entered into in the ordinary course of business;
(k) set-off, charge-back and other statutory or common law rights of
depository and collection banks and other regulated financial institutions
with respect to money or instruments of the Company or its Subsidiaries on
deposit with or in the possession of such institutions; and
(l) Liens arising under any indenture governing Indebtedness solely in
favor of the trustee named therein for its own benefit (and not for the
benefit of the holders of any such Indebtedness);
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
- 17 -
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and interest on
which are unconditionally guaranteed by, the United States of America (or by
any agency thereof to the extent such obligations are backed by the full
faith and credit of the United States of America) or any member state of the
European Union and rated at least investment grade, in each case maturing
within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the date
of acquisition thereof and rated, at such date of acquisition, A-2 or better
by Standard & Poor's Ratings Services or P-2 or better by ▇▇▇▇▇'▇ Investors
Service, Inc.;
(c) investments in certificates of deposit, banker's acceptances and time
deposits maturing within 180 days from the date of acquisition thereof issued
or guaranteed by or placed with, and money market deposit accounts issued or
offered by, any domestic office of any commercial bank organized under the
laws of the United States of America or any State thereof which has a
combined capital and surplus and undivided profits of not less than
$250,000,000; and
(d) fully collateralized repurchase agreements with a term of not more
than 30 days for securities described in clause (a) of this definition and
entered into with a financial institution satisfying the criteria described
in clause (c) of this definition.
"Permitted Securitization" means any transaction or series of transactions
that may be entered into by the Company or any of its Subsidiaries pursuant to
which the Company or such Subsidiary, as the case may be, may sell, convey or
otherwise transfer to (a) a Receivables Subsidiary (in the case of a transfer by
the Company or any of its Subsidiaries) intended to be a true sale transaction
and (b) any other Person (in the case of a transfer by a Receivables
Subsidiary), and any Receivables Subsidiary may transfer, or grant a security
interest in, any receivables (whether now existing or arising in the future) of
the Company or any of its Subsidiaries and any assets related thereto, including
all collateral securing such receivables, all contracts and all guarantees or
other obligations in respect of such receivables and the proceeds of such
receivables; provided that (i) the aggregate outstanding principal amount of
Indebtedness of the Receivables Subsidiaries incurred in connection with such
transactions shall not exceed $25,000,000 at any time outstanding, (ii) there
shall be no recourse under such securitization to the Company or any of its
other Subsidiaries other than pursuant to Standard Securitization Undertakings
and (iii) the Administrative Agent shall be reasonably satisfied that the terms
of such securitization are in compliance with the terms of this Agreement.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Plan" means any employee pension benefit plan (other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code
or Section 302 of ERISA, and in respect of which the Company or any ERISA
Affiliate is (or, if such plan were
- 18 -
terminated, would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Pledge Agreement" means a Pledge Agreement substantially in the form of
Exhibit B between the Company and the Administrative Agent (or such other pledge
or similar agreement between the Company or a Domestic Subsidiary, as
applicable, and the Administrative Agent (or a sub-agent of the Administrative
Agent) providing for the pledge of certain Capital Stock of a Foreign Subsidiary
and entered into pursuant to Section 5.01(f) or Section 6.09(b), in form and
substance satisfactory to the Administrative Agent).
"Prime Rate" means the rate of interest per annum publicly announced from
time to time by JPMCB as its prime rate in effect at its principal office in New
York City; each change in the Prime Rate shall be effective from and including
the date such change is publicly announced as being effective.
"Principal Financial Center" means, in the case of any Foreign Currency,
the principal financial center where such currency is cleared and settled, as
reasonably determined by the Administrative Agent and notified to the Company
prior to any relevant payment date.
"Prior Credit Agreement" means the Credit Agreement dated as of October 7,
2005 among the Company, the lenders party thereto, JPMCB, as administrative
agent and the other parties thereto, which was terminated and paid off on
February 6, 2007.
"Priority Indebtedness" means, without duplication, (a) all Indebtedness
of the Company or any of its Subsidiaries secured by a Lien on property owned by
the Company or any of its Subsidiaries (other than any such Indebtedness
permitted under clauses (e), (f) and (h) of Section 7.01); (b) all Indebtedness
of any Subsidiary that is not an Obligor (other than Indebtedness permitted
under clause (g) of Section 7.01, unless the relevant standby letter of credit
supports Indebtedness); and (c) all rental payments or other scheduled amounts
required to be paid (valued at their present value, discounted at an applicable
market rate, as of the later of the date such transaction is entered into or the
end of the most recently completed fiscal year of the Company) by the Company or
any Subsidiary in connection with any sale-and-leaseback transaction or
Synthetic Lease referred to in Section 7.10.
"Purchase Price" means, with respect to any Acquisition, the aggregate
consideration, whether cash, property or securities (including, without
limitation, any Indebtedness incurred pursuant to Section 7.01), paid or
delivered by the Company and its Subsidiaries (but excluding any fees or
expenses payable) in connection with such Acquisition.
"Quarterly Dates" means the last Business Day of January, April, July and
October in each year, the first of which shall be the first such day after the
date hereof.
"Quotation Date" means, for any Eurocurrency Interest Period, (a) for
Dollars or any Agreed Foreign Currency other than Pounds Sterling, the date two
Business Days prior to the commencement of such Eurocurrency Interest Period and
(b) for Pounds Sterling, the first day of such Eurocurrency Interest Period,
provided that if market practice differs in the relevant
- 19 -
interbank market for any currency, the "Quotation Date" for such currency shall
be determined by the Administrative Agent in accordance with market practice in
the relevant interbank market (and if quotations would normally be given by
leading banks in the relevant interbank market on more than one date, the
"Quotation Date" shall be the last of such days).
"Receivables Subsidiary" means a wholly owned Subsidiary of the Company
which engages in no activities other than in connection with the financing of
receivables and which is designated by the Board of Directors of the Company as
a Receivables Subsidiary, (a) no portion of the Indebtedness or any other
obligations (contingent or otherwise) of which (i) is guaranteed by the Company
or any other Subsidiary (excluding guarantees of obligations, other than the
principal of, and interest on, Indebtedness, under Standard Securitization
Undertakings), (ii) is recourse to or obligates the Company or any other
Subsidiary in any way other than pursuant to Standard Securitization
Undertakings or (iii) subjects any property or asset of the Company or any other
Subsidiary, directly or indirectly, contingently or otherwise, to the
satisfaction thereof, other than the receivables and related rights sold into
the applicable Permitted Securitization and other than pursuant to Standard
Securitization Undertakings and (b) to which neither the Company nor any other
Subsidiary has any obligation to maintain or preserve such entity's financial
condition or cause such entity to achieve certain levels of operating results.
Any such designation by the Board of Directors of the Company shall be evidenced
to the Administrative Agent by filing with the Administrative Agent a certified
copy of the resolution of such Board of Directors giving effect to such
designation and an officers' certificate of the Company certifying that such
designation complied with the foregoing conditions.
"Register" has the meaning set forth in Section 10.04(c).
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Revolving Credit
Exposures and unused Commitments representing more than 50% of the sum of the
total Revolving Credit Exposures and unused Commitments at such time.
"Requirement of Law" means, as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Restricted Payment" means any dividend or other distribution (whether in
cash, securities or other property) with respect to any shares of any class of
Capital Stock of the Company or any Subsidiary, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit, on
account of the purchase, redemption, retirement, acquisition, cancellation or
termination of any such shares of Capital Stock of the
- 20 -
Company or any Subsidiary or any option, warrant or other right to acquire any
such shares of Capital Stock of the Company or any Subsidiary.
"Revolving Credit Exposure" means, with respect to any Lender at any time,
the sum of the outstanding principal amount of such Lender's Syndicated Loans
and its LC Exposure and Swingline Exposure at such time.
"Screen" means, for any currency, the relevant display page for LIBOR for
such currency (as determined by the Administrative Agent) on the Telerate
Service; provided that, if the Administrative Agent determines that there is no
such relevant display page for LIBOR for such currency, "Screen" means the
relevant display page for LIBOR for such currency (as determined by the
Administrative Agent) on the Reuters Monitor Money Rates Service.
"Security Documents" means, collectively, each Pledge Agreement, each
other pledge, security or similar agreement entered into pursuant hereto in
favor of the Administrative Agent, and all Uniform Commercial Code financing
statements and/or other filings, registrations or the like required by the terms
of any such agreement to be made with respect to the security interests in
personal property created pursuant thereto.
"Special Dividend" has the meaning set forth in Section 7.06(b).
"Standard Securitization Undertakings" means representations, warranties,
covenants and indemnities entered into by the Company or any Subsidiary that are
reasonably customary in the non-recourse securitization of receivables
transactions.
"Statutory Reserve Rate" means, for the Interest Period for any
Eurocurrency Borrowing, a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the
arithmetic mean, taken over each day in such Interest Period, of the aggregate
of the maximum reserve percentages (including any marginal, special, emergency
or supplemental reserves) expressed as a decimal established by the Board to
which the Person serving as Administrative Agent is subject for eurocurrency
funding (currently referred to as "Eurocurrency liabilities" in Regulation D of
the Board). Such reserve percentages shall include those imposed pursuant to
such Regulation D. Eurocurrency Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under such Regulation D or any comparable regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"Subsidiary" means, with respect to any Person (the "parent") at any date,
(a) any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date and (b) any
other corporation, limited liability company, partnership, association or other
entity of which Capital Stock having ordinary voting power (other than Capital
Stock having such power only by reason of the happening of a contingency) to
elect a majority of the board of
- 21 -
directors or other managers of such corporation, limited liability company,
association or other entity are, as of such date, owned or Controlled, directly
or indirectly through one or more intermediaries, or both, by such Person.
Unless otherwise specified, "Subsidiary" means a Subsidiary of the Company.
"Subsidiary Borrower" means each of the Subsidiaries of the Company
identified under the caption "SUBSIDIARY BORROWERS" on the signature pages
hereto and each Subsidiary of the Company that becomes a "Subsidiary Borrower"
after the date hereof pursuant to Section 2.19, in each case so long as such
entity shall remain a Subsidiary Borrower hereunder.
"Subsidiary Borrower Designation Letter" means a Subsidiary Borrower
Designation Letter entered into by the Company and a wholly-owned Subsidiary of
the Company pursuant to Section 2.19(a), pursuant to which such Subsidiary shall
(subject to the terms and conditions of Section 2.19) be designated as a
Borrower, substantially in the form of Exhibit F or any other form approved by
the Administrative Agent.
"Subsidiary Borrower Termination Letter" has the meaning set forth in
Section 2.19(c).
"Subsidiary Guarantor" means each of the Subsidiaries of the Company
identified under the caption "SUBSIDIARY GUARANTORS" on the signature pages
hereto and each Subsidiary of the Company that becomes a "Subsidiary Guarantor"
after the date hereof pursuant to Section 6.09.
"Swingline Exposure" means, at any time, the aggregate principal amount of
all Swingline Loans outstanding at such time. The Swingline Exposure of any
Lender at any time shall be its Applicable Percentage of the total Swingline
Exposure at such time.
"Swingline Lender" means JPMCB, in its capacity as lender of Swingline
Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.04.
"Swingline Multicurrency Rate" means, with respect to any Swingline Loan
denominated in an Agreed Swingline Foreign Currency having an Interest Period of
1 day to 7 days, the rate per annum determined by the Administrative Agent on
the date of such Swingline Loan at which deposits in the currency of such
Swingline Loan are offered by JPMCB for such Interest Period to major banks in
the London interbank market.
"Swingline Subsidiary Borrower" means Cambrex Netherlands B.V. (but
effective only upon the designation of Cambrex Netherlands B.V. as a Borrower
pursuant to Section 2.19).
- 22 -
"Syndicated", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans constituting such Borrowing, are made pursuant
to Section 2.01.
"Synthetic Lease" means a lease of property or assets by the Company or
any Subsidiary with any Person (other than the Company or any Subsidiary)
designed to permit the lessee (a) to claim depreciation and amortization on such
property or assets under U.S. tax law and (b) to treat such lease as an
operating lease or not to reflect the leased property or assets on the lessee's
balance sheet under GAAP.
"TARGET Day" means any day on which the Trans-European Automated Real-time
Gross Settlement Express Transfer payment system (or any successor settlement
system as determined by the Administrative Agent) is open for the settlement of
payments in euro.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Transactions" means the execution, delivery and performance by each
Obligor of this Agreement and the other Loan Documents to which such Obligor is
intended to be a party, the borrowing of Loans, the use of the proceeds thereof
and the issuance of Letters of Credit hereunder.
"Type", when used in reference to any Loan or Borrowing, refers to whether
the rate of interest on such Loan, or on the Loans constituting such Borrowing,
is determined by reference to the Adjusted LIBO Rate, the Alternate Base Rate or
(in the case of Swingline Loans only) a Money Market Rate.
"Withdrawal Liability" means liability to a Multiemployer Plan as a result
of a complete or partial withdrawal from such Multiemployer Plan, as such terms
are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g., a "Syndicated
Loan"), by Type (e.g., an "ABR Loan") or by Class and Type (e.g., a "Syndicated
ABR Loan"). Borrowings also may be classified and referred to by Class (e.g., a
"Syndicated Borrowing"), by Type (e.g., an "ABR Borrowing") or by Class and Type
(e.g., a "Syndicated ABR Borrowing"). Loans and Borrowings may also be
identified by currency.
SECTION 1.03. Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or
- 23 -
otherwise modified (subject to any restrictions on such amendments, supplements
or modifications set forth herein), (b) any reference herein to any Person shall
be construed to include such Person's successors and assigns, (c) the words
"herein", "hereof" and "hereunder", and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular
provision hereof, (d) all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits
and Schedules to, this Agreement and (e) the words "asset" and "property" shall
be construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP consistently applied, as in effect from time
to time; provided that, if the Company notifies the Administrative Agent that
the Company requests an amendment to any provision hereof to eliminate the
effect of any change occurring after the date hereof in GAAP or in the
application thereof on the operation of such provision (or if the Administrative
Agent notifies the Company that the Required Lenders request an amendment to any
provision hereof for such purpose), regardless of whether any such notice is
given before or after such change in GAAP or in the application thereof, then
such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such
notice shall have been withdrawn or such provision amended in accordance
herewith. To enable the ready and consistent determination of compliance with
the covenants set forth in Article VII, the Company will not change the last day
of its fiscal year from December 31, or the last days of the first three fiscal
quarters in each of its fiscal years from March 31, June 30 and September 30,
respectively.
SECTION 1.05. Currencies; Currency Equivalents; Provisions Relating to
European Monetary Union. (a) At any time, any reference in the definition of the
term "Agreed Foreign Currency" or in any other provision of this Agreement to
the currency of any particular nation means the lawful currency of such nation
at such time whether or not the name of such currency is the same as it was on
the date hereof. Except as provided in Section 2.10(b) and the last sentence of
Section 2.17(a), for purposes of determining (i) whether the amount of any
Borrowing, together with all other Borrowings then outstanding or to be borrowed
at the same time as such Borrowing, would exceed the aggregate amount of the
Commitments, (ii) the aggregate unutilized amount of the Commitments and (iii)
the aggregate outstanding principal amount of Borrowings, the outstanding
principal amount of any Borrowing that is denominated in any Foreign Currency
shall be deemed to be the Dollar Equivalent of the amount of the Foreign
Currency of such Borrowing determined as of the date of such Borrowing
(determined in accordance with the last sentence of the definition of the term
"Interest Period").
(b) Wherever in this Agreement in connection with a Borrowing or Loan an
amount, such as a required minimum or multiple amount, is expressed in Dollars,
but such Borrowing or Loan is denominated in a Foreign Currency, such amount
shall be the relevant Foreign Currency Equivalent of such Dollar amount (rounded
to the nearest 1,000 units of such Foreign Currency), as determined by the
Administrative Agent.
- 24 -
(c) Each obligation hereunder of any party hereto that is denominated in
the National Currency of a state that is not a Participating Member State on the
date hereof shall, effective from the date on which such state becomes a
Participating Member State, be redenominated in euro in accordance with the
legislation of the European Union applicable to the European Monetary Union;
provided that, if and to the extent that any such legislation provides that any
such obligation of any such party payable within such Participating Member State
by crediting an account of the creditor can be paid by the debtor either in
euros or such National Currency, such party shall be entitled to pay or repay
such amount either in euros or in such National Currency. If the basis of
accrual of interest or fees expressed in this Agreement with respect to an
Agreed Foreign Currency of any country that becomes a Participating Member State
after the date on which such currency becomes an Agreed Foreign Currency shall
be inconsistent with any convention or practice in the interbank market for the
basis of accrual of interest or fees in respect of the euro, such convention or
practice shall replace such expressed basis effective as of and from the date on
which such state becomes a Participating Member State; provided that, with
respect to any Borrowing denominated in such currency that is outstanding
immediately prior to such date, such replacement shall take effect at the end of
the Interest Period therefor. Without prejudice to the respective liabilities of
the Company to the Lenders and the Lenders to the Company under or pursuant to
this Agreement, each provision of this Agreement shall be subject to such
reasonable changes of construction as the Administrative Agent may from time to
time reasonably specify to be necessary or appropriate to reflect the
introduction or changeover to the euro in any country that becomes a
Participating Member State after the date hereof; provided that the
Administrative Agent shall provide the Company and the Lenders with prior notice
of the proposed change with an explanation of such change in sufficient time to
permit the Company and the Lenders an opportunity to respond to such proposed
change.
ARTICLE II
THE CREDITS
SECTION 2.01. The Commitments. Subject to the terms and conditions set
forth herein, each Lender agrees to make Syndicated Loans in Dollars or in any
Agreed Foreign Currency to the Company and/or any Subsidiary Borrower from time
to time during the Availability Period in an aggregate principal amount that
will not result in (a) such Lender's Revolving Credit Exposure exceeding such
Lender's Commitment, (b) the total Revolving Credit Exposures exceeding the
total Commitments or (c) the total Revolving Credit Exposures in respect of
extensions of credit hereunder to the Subsidiary Borrowers exceeding
$75,000,000. Within the foregoing limits and subject to the terms and conditions
set forth herein, the Borrowers may borrow, prepay and reborrow Syndicated
Loans.
SECTION 2.02. Loans and Borrowings.
(a) Obligations of Lenders. Each Syndicated Loan shall be made to any
Borrower as part of a Borrowing by such Borrower consisting of Loans of the same
currency and
-25-
Type made by the Lenders ratably in accordance with their respective
Commitments. The failure of any Lender to make any Loan required to be made by
it shall not relieve any other Lender of its obligations hereunder; provided
that the Commitments of the Lenders are several and no Lender shall be
responsible for any other Lender's failure to make Loans as required.
(b) Type of Loans. Subject to Section 2.13, each Syndicated Borrowing
shall be constituted entirely of ABR Loans or of Eurocurrency Loans denominated
in a single currency as the relevant Borrower may request in accordance
herewith. Each Swingline Loan shall be an ABR Loan, a Eurocurrency Borrowing or
a Money Market Rate Borrowing, as applicable. Each ABR Loan (whether a
Syndicated Loan or a Swingline Loan) shall be denominated in Dollars. Each
Lender at its option may make any Eurocurrency Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan; provided that any
exercise of such option shall not affect the obligation of any Borrower to repay
such Loan in accordance with the terms of this Agreement.
(c) Minimum Amounts; Limitation on Number of Borrowings. Each
Eurocurrency Borrowing shall be in an aggregate amount of $2,000,000 or a larger
multiple of $500,000. Each Syndicated ABR Borrowing shall be in an aggregate
amount equal to $250,000 or a larger multiple of $100,000; provided that a
Syndicated ABR Borrowing may be in an aggregate amount that is equal to the
entire unused balance of the total Commitments or that is required to finance
the reimbursement of an LC Disbursement as contemplated by Section 2.05(f). Each
Swingline Loan shall be in an amount equal to $100,000 or a larger multiple
thereof. Borrowings of more than one Class, currency and Type may be outstanding
at the same time; provided that there shall not at any time be more than a total
of twenty Eurocurrency Borrowings outstanding.
(d) Limitations on Interest Periods. Notwithstanding any other
provision of this Agreement, the Borrowers shall not be entitled to request (or
to elect to convert to or continue as a Eurocurrency Borrowing) any Borrowing if
the Interest Period requested therefor would end after the Commitment
Termination Date.
SECTION 2.03. Requests for Syndicated Borrowings.
(a) Notice by the Borrowers. To request a Syndicated Borrowing, any
Borrower shall notify the Administrative Agent of such request by telephone (i)
in the case of a Eurocurrency Borrowing denominated in Dollars, not later than
12:00 noon, New York City time, three Business Days before the date of the
proposed Borrowing, (ii) in the case of a Eurocurrency Borrowing denominated in
a Foreign Currency, not later than 12:00 noon, London time, four Business Days
before the date of the proposed Borrowing or (iii) in the case of a Syndicated
ABR Borrowing, not later than 12:00 noon, New York City time, on the date of the
proposed Borrowing. Each such telephonic Borrowing Request shall be irrevocable
and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Borrowing Request in a form approved by the
Administrative Agent and signed by the Company.
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(b) Content of Borrowing Requests. Each telephonic and written
Borrowing Request shall specify the following information in compliance with
Section 2.02:
(i) the name of the relevant Borrower;
(ii) the aggregate amount and currency of the requested Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) in the case of a Syndicated Borrowing denominated in Dollars,
whether such Borrowing is to be an ABR Borrowing or a Eurocurrency
Borrowing;
(v) in the case of a Eurocurrency Borrowing, the Interest Period
therefor, which shall be a period contemplated by the definition of the
term "Interest Period" and permitted under Section 2.02(d); and
(vi) the location and number of such Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.06.
(c) Notice by the Administrative Agent to the Lenders. Promptly
following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing.
(d) Failure to Elect. If no election as to the currency of a
Syndicated Borrowing is specified, then the requested Syndicated Borrowing shall
be denominated in Dollars. If no election as to the Type of a Syndicated
Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing
unless an Agreed Foreign Currency has been specified, in which case the
requested Syndicated Borrowing shall be a Eurocurrency Borrowing denominated in
such Agreed Foreign Currency. If no Interest Period is specified with respect to
any requested Eurocurrency Borrowing, (i) if the currency specified for such
Borrowing is Dollars (or if no currency has been so specified), the requested
Borrowing shall be made instead as a Syndicated ABR Borrowing, and (ii) if the
currency specified for such Borrowing is an Agreed Foreign Currency, the
relevant Borrower shall be deemed to have selected an Interest Period of one
month's duration.
SECTION 2.04. Swingline Loans.
(a) Agreement to Make Swingline Loans. Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline Loans
from time to time during the Availability Period to (A) the Company in Dollars
and (B) the Swingline Subsidiary Borrower in any Agreed Swingline Foreign
Currency, in an aggregate principal amount at any time outstanding that will not
result in (i) the aggregate principal amount of outstanding Swingline Loans made
to the Company exceeding $20,000,000, (ii) the aggregate principal amount of
outstanding Swingline Loans made to the Swingline Subsidiary Borrower exceeding
- 27 -
$20,000,000, (iii) the total Revolving Credit Exposures exceeding the total
Commitments or (iv) the total Revolving Credit Exposures in respect of
extensions of credit hereunder to the Swingline Subsidiary Borrower exceeding
$75,000,000; provided that the Swingline Lender shall not be required to make a
Swingline Loan to refinance an outstanding Swingline Loan; provided further that
the Swingline Lender at its option may make any Swingline Loan to the Swingline
Subsidiary Borrower by causing any domestic or foreign branch or Affiliate of
JPMCB to make such Swingline Loan, provided that any exercise of such option
shall not affect the obligation of the Swingline Subsidiary Borrower to repay
such Swingline Loan in accordance with the terms of this Agreement. Within the
foregoing limits and subject to the terms and conditions set forth herein, the
Company or the Swingline Subsidiary Borrower may borrow, prepay and reborrow
Swingline Loans. Each Swingline Loan to the Company shall be an ABR Borrowing
unless, prior to requesting a Swingline Loan, the Company shall have requested a
Money Market Rate Borrowing and the Swingline Lender shall have quoted a Money
Market Rate therefor which the Company shall select in its notice delivered
pursuant to paragraph (b) below, provided that the Swingline Lender shall be
required to provide interest rate quotes for a Money Market Rate Borrowing only
subject to the availability of Money Market Rates by the Swingline Lender. Each
Swingline Loan to the Swingline Subsidiary Borrower shall be a Eurocurrency
Borrowing.
(b) Notice of Swingline Loans. To request a Swingline Loan, the
Company or the Swingline Subsidiary Borrower shall notify the Administrative
Agent of such request by telephone (confirmed by telecopy), not later than (i)
in the case of a Swingline Loan to the Company, 12:00 noon, New York City time
and (ii) in the case of a Swingline Loan to the Swingline Subsidiary Borrower,
11:00 a.m., London time, on the date of a proposed Swingline Loan. Each such
notice shall be irrevocable and shall specify for the requested Swingline Loan
the requested borrowing date (which shall be a Business Day), the amount, the
Type and (in the case of a Swingline Loan to the Swingline Subsidiary Borrower)
the currency and the Interest Period to be applicable thereto. The
Administrative Agent will promptly advise the Swingline Lender of any such
notice received from the Company or the Swingline Subsidiary Borrower. The
Swingline Lender shall make each Swingline Loan available to the relevant
Borrower by means of a credit to the general deposit account of such Borrower
with the Swingline Lender or as otherwise instructed by such Borrower (or, in
the case of a Swingline Loan made to finance the reimbursement by the Company of
an LC Disbursement as provided in Section 2.05(f), by remittance to the Issuing
Lender) by 3:00 p.m., Local Time, on the requested date of such Swingline Loan.
(c) Participations by Lenders in Swingline Loans. The Swingline Lender
may by written notice given to the Administrative Agent not later than 10:00
a.m., Local Time, on any Business Day require the Lenders to acquire
participations on such Business Day in all or a portion of the Swingline Loans
outstanding. Such notice to the Administrative Agent shall specify the aggregate
amount of Swingline Loans and the currency thereof in which Lenders will
participate. Promptly upon receipt of such notice, the Administrative Agent will
give notice thereof to each Lender, specifying in such notice such Lender's
Applicable
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Percentage of such Swingline Loan or Loans and the currency thereof.
Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice
as provided above in this paragraph, to pay to the Administrative Agent, for
account of the Swingline Lender, such Lender's Applicable Percentage of such
Swingline Loan or Loans in the relevant currency. Each Lender acknowledges and
agrees that its obligation to acquire participations in Swingline Loans pursuant
to this paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or reduction or termination of the Commitments, and that each such payment shall
be made without any offset, abatement, withholding or reduction whatsoever. Each
Lender shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.06 with
respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis
mutandis, to the payment obligations of the Lenders), and the Administrative
Agent shall promptly pay to the Swingline Lender the amounts so received by it
from the Lenders. The Administrative Agent shall notify the relevant Borrower of
any participations in any Swingline Loan acquired pursuant to this paragraph,
and thereafter payments in respect of such Swingline Loan shall be made to the
Administrative Agent and not to the Swingline Lender. Any amounts received by
the Swingline Lender from any Borrower in respect of a Swingline Loan after
receipt by the Swingline Lender of the proceeds of a sale of participations
therein shall be promptly remitted to the Administrative Agent; any such amounts
received by the Administrative Agent shall be promptly remitted by the
Administrative Agent to the Lenders that shall have made their payments pursuant
to this paragraph and to the Swingline Lender, as their interests may appear.
The purchase of participations in a Swingline Loan pursuant to this paragraph
shall not relieve the Company or the Swingline Subsidiary Borrower of any
default in the payment thereof.
SECTION 2.05. Letters of Credit.
(a) General. Subject to the terms and conditions set forth herein, in
addition to the Loans provided for in Section 2.01, any Borrower may request the
Issuing Lender to issue, at any time and from time to time during the
Availability Period, Letters of Credit denominated in Dollars or in any Agreed
Foreign Currency for its own account in such form as is acceptable to the
Issuing Lender in its reasonable determination. Letters of Credit issued
hereunder shall constitute utilization of the Commitments.
(b) Notice of Issuance, Amendment, Renewal or Extension. To request
the issuance of a Letter of Credit (or the amendment, renewal or extension of an
outstanding Letter of Credit), any Borrower shall hand deliver or telecopy (or
transmit by electronic communication, if arrangements for doing so have been
approved by the Issuing Lender) to the Issuing Lender and the Administrative
Agent (reasonably in advance of the requested date of issuance, amendment,
renewal or extension) a notice requesting the issuance of a Letter of Credit, or
identifying the Letter of Credit to be amended, renewed or extended, and
specifying the date of issuance, amendment, renewal or extension (which shall be
a Business Day), the date on which such Letter of Credit is to expire (which
shall comply with paragraph (d) of this Section), the amount and currency of
such Letter of Credit, the name and address of the beneficiary thereof and such
other information as shall be necessary to prepare, amend, renew or extend such
Letter of Credit. If requested by the Issuing Lender, the relevant Borrower also
shall submit a letter of credit application on the Issuing Lender's standard
form in connection with any request for a Letter of Credit. In the event of any
inconsistency between the terms and conditions of this Agreement and the terms
and conditions of any form of letter of credit
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application or other agreement submitted by the relevant Borrower to, or entered
into by such Borrower and/or the Company with, the Issuing Lender relating to
any Letter of Credit, the terms and conditions of this Agreement shall control.
(c) Limitations on Amounts. A Letter of Credit shall be issued,
amended, renewed or extended only if (and upon issuance, amendment, renewal or
extension of each Letter of Credit the Company shall be deemed to represent and
warrant that), after giving effect to such issuance, amendment, renewal or
extension (i) the aggregate LC Exposure of the Issuing Lender (determined for
these purposes without giving effect to the participations therein of the
Lenders pursuant to paragraph (e) of this Section) shall not exceed $50,000,000,
(ii) the aggregate Revolving Credit Exposures shall not exceed the total
Commitments and (iii) the aggregate Revolving Credit Exposures in respect of
extensions of credit hereunder to the Subsidiary Borrowers shall not exceed
$75,000,000.
(d) Expiration Date. Each Letter of Credit shall expire at or prior to
the close of business on the earlier of (i) the date two years after the date of
the issuance of such Letter of Credit (or, in the case of any renewal or
extension of a Letter of Credit which had an original expiration date twelve
months after the date of the issuance thereof and which has been renewed or
extended for one or more for additional twelve-month periods, the date twelve
months after the then-current expiration date of such Letter of Credit, so long
as such renewal or extension occurs within three months of such then-current
expiration date) and (ii) the date that is five Business Days prior to the
Commitment Termination Date.
(e) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) by the Issuing
Lender, and without any further action on the part of the Issuing Lender or the
Lenders, the Issuing Lender hereby grants to each Lender, and each Lender hereby
acquires from the Issuing Lender, a participation in such Letter of Credit equal
to such Lender's Applicable Percentage of the aggregate amount available to be
drawn under such Letter of Credit. Each Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments.
In consideration and in furtherance of the foregoing, each Lender
hereby absolutely and unconditionally agrees to pay to the Administrative Agent,
for account of the Issuing Lender, such Lender's Applicable Percentage of each
LC Disbursement made by the Issuing Lender promptly upon the request of the
Issuing Lender at any time from the time of such LC Disbursement until such LC
Disbursement is reimbursed by the relevant Borrower or at any time after any
reimbursement payment is required to be refunded to the relevant Borrower for
any reason. Such payment shall be made without any offset, abatement,
withholding or reduction whatsoever. Each such payment shall be made in the same
manner as provided in Section 2.06 with respect to Loans made by such Lender
(and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of
the Lenders), and the Administrative Agent shall promptly pay to the Issuing
Lender the amounts so received by it from the Lenders. Promptly following
receipt by the Administrative Agent of any payment from the relevant Borrower
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pursuant to the next following paragraph, the Administrative Agent shall
distribute such payment to the Issuing Lender or, to the extent that the Lenders
have made payments pursuant to this paragraph to reimburse the Issuing Lender,
then to such Lenders and the Issuing Lender as their interests may appear. Any
payment made by a Lender pursuant to this paragraph to reimburse the Issuing
Lender for any LC Disbursement shall not constitute a Loan and shall not relieve
any Borrower of its obligation to reimburse such LC Disbursement.
(f) Reimbursement. If the Issuing Lender shall make any LC
Disbursement in respect of a Letter of Credit denominated in Dollars issued by
it for account of the Company or any Borrower that is a Domestic Subsidiary, the
relevant Borrower shall reimburse the Issuing Lender in respect of such LC
Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 12:00 noon, New York City time, on (i) the Business
Day that the relevant Borrower receives notice that such LC Disbursement has
been made, if such notice is received prior to 10:00 a.m., New York City time,
or (ii) the Business Day immediately following the day that the relevant
Borrower receives such notice, if such notice is not received prior to such
time; provided that, if such LC Disbursement is made in respect of such a Letter
of Credit, then the Company or the relevant Borrower, as the case may be, may,
subject to the conditions to borrowing set forth herein, request in accordance
with Section 2.03 or 2.05 that such payment be financed with all or any portion
of a Syndicated ABR Borrowing or a Swingline Loan, as applicable, in an amount
permitted under Section 2.02(c) and, to the extent so financed, such Borrower's
obligation to make such payment in respect of such reimbursement obligation
shall be discharged and replaced by the resulting Syndicated ABR Borrowing or
Swingline Loan (or the applicable portion thereof).
If the Issuing Lender shall make any LC Disbursement in respect of a
Letter of Credit issued by it for account of any Borrower denominated in an
Agreed Foreign Currency, the Company or the relevant Borrower, as the case may
be, shall reimburse the Issuing Lender in respect of such LC Disbursement by
paying to the Issuing Lender in the Currency in which such Letter of Credit is
denominated an amount equal to such LC Disbursement not later than 12:00 noon,
Local Time of the Issuing Lender, on the Business Day immediately following the
day that the relevant Borrower receives notice of such LC Disbursement, if such
notice is received prior to 5:00 p.m., Local Time of the Issuing Lender or (ii)
the Business Day which is two Business Days after the day that the relevant
Borrower and the Company receive such notice, if such notice is not received
prior to such time. The Issuing Lender shall promptly notify the Administrative
Agent of the amount and date of each such reimbursement.
If the relevant Borrower fails to make such payment when due, the
Administrative Agent shall notify each Lender of the applicable LC Disbursement,
the payment then due from such Borrower in respect thereof and such Lender's
Applicable Percentage thereof.
Without limiting any other obligations of any Borrower hereunder, the
relevant Borrower hereby agrees to indemnify the Issuing Lender of each Letter
of Credit denominated in a Foreign Currency and issued for the account of such
Borrower for any and all costs, expenses and losses incurred by it as a result
of receiving payment or reimbursement for any LC Disbursement thereunder from
any Person in a currency other than the currency in which such
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Letter of Credit was originally denominated. Any such amount payable to any
Issuing Lender shall be payable within 10 days after demand by such Issuing
Lender.
(g) Obligations Absolute. Each Borrower's obligation to reimburse LC
Disbursements as provided in paragraph (f) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit, or any term or provision therein, (ii) any draft or other document
presented under a Letter of Credit proving to be forged, fraudulent or invalid
in any respect or any statement therein being untrue or inaccurate in any
respect, (iii) payment by the Issuing Lender under a Letter of Credit against
presentation of a draft or other document that does not comply strictly with the
terms of such Letter of Credit, and (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of
such Borrower's obligations hereunder.
Neither the Administrative Agent, the Lenders nor the Issuing Lender,
nor any of their Related Parties, shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of Credit
by the Issuing Lender or any payment or failure to make any payment thereunder
(irrespective of any of the circumstances referred to in the preceding
sentence), or any error, omission, interruption, loss or delay in transmission
or delivery of any draft, notice or other communication under or relating to any
Letter of Credit (including any document required to make a drawing thereunder),
any error in interpretation of technical terms or any consequence arising from
causes beyond the control of the Issuing Lender; provided that the foregoing
shall not be construed to excuse the Issuing Lender from liability to the
relevant Borrower to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived by such
Borrower to the extent permitted by applicable law) suffered by such Borrower
that are caused by the Issuing Lender's gross negligence or willful misconduct
when determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that:
(i) the Issuing Lender may accept documents that appear on their face
to be in substantial compliance with the terms of a Letter of Credit
without responsibility for further investigation, regardless of any notice
or information to the contrary, and may make payment upon presentation of
documents that appear on their face to be in substantial compliance with
the terms of such Letter of Credit;
(ii) the Issuing Lender shall have the right, in its sole discretion,
to decline to accept such documents and to make such payment if such
documents are not in strict compliance with the terms of such Letter of
Credit; and
(iii) this sentence shall establish the standard of care to be
exercised by the Issuing Lender when determining whether drafts and other
documents presented under a Letter of Credit comply with the terms thereof
(and the parties hereto hereby waive, to
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the extent permitted by applicable law, any standard of care inconsistent
with the foregoing).
(h) Disbursement Procedures. The Issuing Lender shall, within a
reasonable time following its receipt thereof, examine all documents purporting
to represent a demand for payment under a Letter of Credit. The Issuing Lender
shall promptly after such examination notify the Administrative Agent and the
Company by telephone (confirmed by telecopy) of such demand for payment and
whether the Issuing Lender has made or will make an LC Disbursement thereunder;
provided that any failure to give or delay in giving such notice shall not
relieve any Borrower of its obligation to reimburse the Issuing Lender and the
Lenders with respect to any such LC Disbursement.
(i) Interim Interest. If the Issuing Lender shall make any LC
Disbursement, then, unless the Company or the relevant Borrower shall reimburse
such LC Disbursement in full on the date such LC Disbursement is made, the
unpaid amount thereof shall bear interest, for each day from and including the
date such LC Disbursement is made to but excluding the date that the Company or
the relevant Borrower reimburses such LC Disbursement, at the rate per annum
then applicable to Syndicated ABR Loans (if such amount is denominated in
Dollars) or at the overnight London interbank offered rate for the relevant
Agreed Foreign Currency determined by the Administrative Agent in good faith (if
such amount is denominated in such currency); provided that, if the Company
fails to reimburse such LC Disbursement when due pursuant to paragraph (f) of
this Section, then Section 2.12(d) shall apply. Interest accrued pursuant to
this paragraph shall be for account of the Issuing Lender, except that interest
accrued on and after the date of payment by any Lender pursuant to paragraph (e)
of this Section to reimburse the Issuing Lender shall be for account of such
Lender to the extent of such payment.
(j) Replacement of the Issuing Lender. The Issuing Lender may be
replaced at any time by written agreement between the Company, the
Administrative Agent, the replaced Issuing Lender and the successor Issuing
Lender. The Administrative Agent shall notify the Lenders of any such
replacement of the Issuing Lender. At the time any such replacement shall become
effective, the Company shall pay all unpaid fees accrued for account of the
replaced Issuing Lender pursuant to Section 2.11(b). From and after the
effective date of any such replacement, (i) the successor Issuing Lender shall
have all the rights and obligations of the replaced Issuing Lender under this
Agreement with respect to Letters of Credit to be issued thereafter and (ii)
references herein to the term "Issuing Lender" shall be deemed to refer to such
successor or to any previous Issuing Lender, or to such successor and all
previous Issuing Lenders, as the context shall require. After the replacement of
an Issuing Lender hereunder, the replaced Issuing Lender shall remain a party
hereto and shall continue to have all the rights and obligations of an Issuing
Lender under this Agreement with respect to Letters of Credit issued by it prior
to such replacement, but shall not be required to issue additional Letters of
Credit.
(k) Cash Collateralization. If either (i) an Event of Default shall
occur and be continuing and the Company receives notice from the Administrative
Agent or the Required Lenders (or, if the maturity of the Loans has been
accelerated, Lenders with LC Exposure representing more than 50% of the total LC
Exposure) demanding the deposit of cash collateral pursuant to this paragraph,
or (ii) the Company shall, or shall cause the Subsidiary Borrowers to,
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provide cover for LC Exposure pursuant to Section 2.10, the Company shall
immediately deposit into an account established and maintained on the books and
records of the Administrative Agent, which account may be a "securities account"
(within the meaning of Section 8-501 of the Uniform Commercial Code as in effect
in the State of New York), in the name of the Administrative Agent and for the
benefit of the Lenders, an amount in cash equal to, in the case of an Event of
Default, the LC Exposure as of such date plus any accrued and unpaid interest
thereon and, in the case of cover pursuant to Section 2.10, the amount required
under Section 2.10; provided that the obligation to deposit such cash collateral
shall become effective immediately, and such deposit shall become immediately
due and payable, without demand or other notice of any kind, upon the occurrence
of any Event of Default with respect to any Obligor described in clause (h) or
(i) of Article VIII. Such deposit shall be held by the Administrative Agent as
collateral for the LC Exposure under this Agreement and thereafter for the
payment of the "Secured Obligations" under and as defined in the Pledge
Agreement, and for these purposes the Borrowers hereby grant a security interest
to the Administrative Agent for the benefit of the Lenders in such collateral
account and in any financial assets (as defined in the Uniform Commercial Code)
or other property held therein.
(l) Existing Letters of Credit. The outstanding letters of credit
listed on Schedule 2.05(l) issued by JPMCB for the account of the Company shall,
effective as of the Effective Date, subject to the satisfaction of the
conditions to effectiveness of the obligations of the Lenders hereunder set
forth in Article V, be deemed to be "Letters of Credit" issued hereunder, and as
of the Effective Date each Lender shall have a participation interest therein
equal to such Lender's Applicable Percentage of the undrawn face amount of each
such Letter of Credit.
SECTION 2.06. Funding of Borrowings.
(a) Funding by Lenders. Each Lender shall make each Loan to be made by
it hereunder on the proposed date thereof by wire transfer of immediately
available funds by 3:00 p.m., Local Time, to the account of the Administrative
Agent most recently designated by it for such purpose by notice to the Lenders;
provided that Swingline Loans shall be made as provided in Section 2.04. The
Administrative Agent will make such Loans available to the relevant Borrower by
promptly crediting the amounts so received, in like funds, to an account of such
Borrower designated in the applicable Borrowing Request; provided that
Syndicated ABR Borrowings made to finance the reimbursement of an LC
Disbursement as provided in Section 2.05(f) shall be remitted by the
Administrative Agent to the Issuing Lender.
(b) Presumption by the Administrative Agent. Unless the Administrative
Agent shall have received notice from a Lender prior to any Borrowing that such
Lender will not make available to the Administrative Agent such Lender's share
of such Borrowing, the Administrative Agent may assume that such Lender has made
such share available on such date in accordance with paragraph (a) of this
Section and may, in reliance upon such assumption, make available to the
relevant Borrower a corresponding amount. In such event, if a Lender has not in
fact made its share of the applicable Borrowing available to the Administrative
Agent, then the applicable Lender and the Company severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest
thereon, for each day from and including the date such amount is made available
to the relevant Borrower to but excluding the
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date of payment to the Administrative Agent, at (i) in the case of such Lender,
the Federal Funds Effective Rate or (ii) in the case of the Company, the
interest rate applicable to ABR Loans. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
SECTION 2.07. Interest Elections.
(a) Elections by the Borrowers for Syndicated Borrowings. The Loans
constituting each Syndicated Borrowing initially shall be of the Type specified
in the applicable Borrowing Request and, in the case of a Eurocurrency
Borrowing, shall have the Interest Period specified in such Borrowing Request.
Thereafter, the relevant Borrower may elect to convert such Borrowing to a
Borrowing of a different Type or to continue such Borrowing as a Borrowing of
the same Type and, in the case of a Eurocurrency Borrowing, may elect the
Interest Period therefor, all as provided in this Section; provided that (i) a
Syndicated Borrowing denominated in one currency may not be continued as, or
converted to, a Syndicated Borrowing in a different currency, (ii) no
Eurocurrency Borrowing denominated in a Foreign Currency may be continued if,
after giving effect thereto, the aggregate Revolving Credit Exposures would
exceed the aggregate Commitments, and (iii) a Eurocurrency Borrowing denominated
in a Foreign Currency may not be converted to a Borrowing of a different Type.
The relevant Borrower may elect different options with respect to different
portions of the affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding the Loans constituting such
Borrowing, and the Loans constituting each such portion shall be considered a
separate Borrowing. This Section shall not apply to Swingline Borrowings, which
may not be converted or continued.
(b) Notice of Elections. To make an election pursuant to this Section,
the relevant Borrower shall notify the Administrative Agent of such election by
telephone by the time that a Borrowing Request would be required under Section
2.03 if such Borrower were requesting a Syndicated Borrowing of the Type
resulting from such election to be made on the effective date of such election.
Each such telephonic Interest Election Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent of a
written Interest Election Request in a format approved by the Administrative
Agent and signed by the Company.
(c) Content of Interest Election Requests. Each telephonic and written
Interest Election Request shall specify the following information in compliance
with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies and,
if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing
(in which case the information to be specified pursuant to clauses (iii)
and (iv) of this paragraph shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
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(iii) whether, in the case of a Borrowing denominated in Dollars, the
resulting Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing;
and
(iv) if the resulting Borrowing is a Eurocurrency Borrowing, the
Interest Period therefor after giving effect to such election, which shall
be a period contemplated by the definition of the term "Interest Period"
and permitted under Section 2.02(d).
(d) Notice by the Administrative Agent to the Lenders. Promptly
following receipt of an Interest Election Request, the Administrative Agent
shall advise each Lender of the details thereof and of such Lender's portion of
each resulting Borrowing.
(e) Failure to Elect; Events of Default. If any Borrower fails to
deliver a timely and complete Interest Election Request with respect to a
Eurocurrency Borrowing prior to the end of the Interest Period therefor, then,
unless such Borrowing is repaid as provided herein, (i) if such Borrowing is
denominated in Dollars, at the end of such Interest Period such Borrowing shall
be converted to a Syndicated ABR Borrowing, and (ii) if such Borrowing is
denominated in a Foreign Currency, such Borrower shall be deemed to have
selected an Interest Period of one month's duration. Notwithstanding any
contrary provision hereof, if an Event of Default has occurred and is continuing
and the Administrative Agent, at the request of the Required Lenders, so
notifies the Company, then, so long as an Event of Default is continuing (A) no
outstanding Syndicated Borrowing denominated in Dollars may be converted to or
continued as a Eurocurrency Borrowing, (B) unless repaid, each Eurocurrency
Borrowing denominated in Dollars shall be converted to a Syndicated ABR
Borrowing at the end of the Interest Period therefor and (C) no outstanding
Eurocurrency Borrowing denominated in a Foreign Currency may have an Interest
Period of more than one month's duration.
SECTION 2.08. Termination, Reduction and Increase of the Commitments.
(a) Scheduled Termination. Unless previously terminated, the
Commitments shall terminate on the Commitment Termination Date.
(b) Voluntary Termination or Reduction. The Company may at any time
terminate, or from time to time reduce, the Commitments; provided that (i) each
reduction of the Commitments shall be in an amount that is $2,000,000 or a
larger multiple of $1,000,000 and (ii) the Company shall not terminate or reduce
the Commitments if, after giving effect to any concurrent prepayment of the
Syndicated Loans in accordance with Section 2.10, the total Revolving Credit
Exposures would exceed the total Commitments.
(c) Notice of Voluntary Termination or Reduction. The Company shall
notify the Administrative Agent of any election to terminate or reduce the
Commitments under paragraph (b) of this Section at least three Business Days
prior to the effective date of such termination or reduction, specifying such
election and the effective date thereof. Promptly following receipt of any
notice, the Administrative Agent shall advise the Lenders of the contents
thereof. Each notice delivered by the Company pursuant to this Section shall be
irrevocable; provided that a notice of termination of the Commitments delivered
by the Company may state that such notice is conditioned upon the effectiveness
of other credit facilities, in which
- 36 -
case such notice may be revoked by the Company (by notice to the Administrative
Agent on or prior to the specified effective date) if such condition is not
satisfied.
(d) Effect of Termination or Reduction. Any termination or reduction
of the Commitments shall be permanent.
(e) Increase of the Commitments.
(i) Requests for Increase. The Company may, at any time, propose that
the total Commitments hereunder be increased (each such proposed increase being
a "Commitment Increase") by notice to the Administrative Agent, specifying each
existing Lender (each an "Increasing Lender") and/or each additional lender
(each an "Assuming Lender") that shall have agreed to an additional Commitment
and the date on which such increase is to be effective (the "Commitment Increase
Date"), which shall be a Business Day at least three Business Days after
delivery of such notice and 30 days prior to the Commitment Termination Date;
provided that no Lender shall have any obligation hereunder to become an
Increasing Lender and any election to do so shall be in the sole discretion of
each Lender; provided further that:
(A) that the minimum amount of the Commitment of any Assuming
Lender, and the minimum amount of the increase of the Commitment of
any Increasing Lender, as part of such Commitment Increase shall be
$5,000,000 or a larger multiple of $1,000,000;
(B) immediately after giving effect to such Commitment Increase,
the aggregate amount of Commitment Increases hereunder shall not
exceed $50,000,000;
(C) no Default shall have occurred and be continuing on such
Commitment Increase Date or shall result from the proposed Commitment
Increase; and
(D) the representations and warranties contained in this
Agreement shall be true and correct on and as of the Commitment
Increase Date as if made on and as of such date (or, if any such
representation or warranty is expressly stated to have been made as of
a specific date, as of such specific date).
(ii) Effectiveness of Commitment Increase. The Assuming Lender, if
any, shall become a Lender hereunder as of such Commitment Increase Date and the
Commitment of any Increasing Lender and such Assuming Lender shall be increased
as of such Commitment Increase Date; provided that:
(x) the Administrative Agent shall have received on or prior to
9:00 a.m., New York City time, on such Commitment Increase Date a
certificate of a duly authorized officer of the Company stating that
each of the applicable conditions to such Commitment Increase set
forth in this paragraph (e) has been satisfied;
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(y) with respect to each Assuming Lender, the Administrative
Agent shall have received, on or prior to 9:00 a.m., New York City
time, on such Commitment Increase Date, an agreement, in form and
substance satisfactory to the Company and the Administrative Agent,
pursuant to which such Assuming Lender shall, effective as of such
Commitment Increase Date, undertake a Commitment, duly executed by
such Assuming Lender and the Company and acknowledged by the
Administrative Agent; and
(z) each Increasing Lender shall have delivered to the
Administrative Agent, on or prior to 9:00 a.m., New York City time, on
such Commitment Increase Date, confirmation in writing satisfactory to
the Administrative Agent as to its increased Commitment, with a copy
of such confirmation to the Company.
(iii) Recordation into Register. Upon its receipt of confirmation from
a Lender that it is increasing its Commitment hereunder, together with the
certificate referred to in clause (ii)(x) above, the Administrative Agent shall
(A) record the information contained therein in the Register and (B) give prompt
notice thereof to the Company. Upon its receipt of an agreement referred to in
clause (ii)(y) above executed by an Assuming Lender, together with the
certificate referred to in clause (ii)(x) above, the Administrative Agent shall,
if such agreement has been completed, accept such agreement, record the
information contained therein in the Register and give prompt notice thereof to
the Company.
(iv) Adjustments of Borrowings upon Effectiveness of Increase. In the
event that the Administrative Agent shall have received notice from the Company
as to any agreement with respect to a Commitment Increase on or prior to the
relevant Commitment Increase Date and the actions provided for in clauses
(ii)(x) through (ii)(z) above shall have occurred by 9:00 a.m., New York City
time, on such Commitment Increase Date, the Administrative Agent shall notify
the Lenders (including any Assuming Lenders) of the occurrence of such
Commitment Increase Date promptly on such date by facsimile transmission or
electronic messaging system. On the date of such Commitment Increase, the
Borrowers shall simultaneously (A) prepay the then outstanding Syndicated Loans
(if any) in full held by the Lenders immediately prior to giving effect to such
Commitment Increase, (B) if any Borrower shall so request in accordance with the
terms hereof, borrow new Syndicated Loans from all Lenders (including any
Assuming Lenders) in an aggregate amount at least equal to such prepayment, so
that, after giving effect thereto, the Syndicated Loans are held ratably by the
Lenders in accordance with their respective Commitments (after giving effect to
such Commitment Increase) and (C) pay to the Lenders the amounts, if any,
payable under Section 2.15. To the extent that on the date of such Commitment
Increase any participations in Swingline Loans are outstanding under Section
2.04(c) or any Letters of Credit are outstanding under Section 2.05, the
participations of the Lenders in such Swingline Loans and/or Letters of Credit
shall be deemed re-allocated among the Lenders in accordance with their
respective Commitments (after giving effect to such Commitment Increase).
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SECTION 2.09. Repayment of Loans; Evidence of Debt.
(a) Repayment.
(i) Each Borrower hereby unconditionally promises to pay on the
Commitment Termination Date to the Administrative Agent for account of the
Lenders the outstanding principal amount of the Syndicated Loans made to such
Borrower.
(ii) The Company and the Swingline Subsidiary Borrower (as applicable)
hereby unconditionally promise to pay (A) (in the case of Swingline Loans made
to the Company) to the Swingline Lender the then unpaid principal amount of each
Swingline Loan made by it on the earlier of the Commitment Termination Date and
the first date after such Swingline Loan is made that is the 15th or last day of
a calendar month and is at least two Business Days after such Swingline Loan is
made and (B) (in the case of Swingline Loans made to the Swingline Subsidiary
Borrower) to the Swingline Lender on the earlier of the Commitment Termination
Date and the last day of the Interest Period therefor.
(b) Maintenance of Records by Lenders. Each Lender shall maintain in
accordance with its usual practice records evidencing the indebtedness of the
Borrowers to such Lender resulting from each Loan made by such Lender, including
the amounts and currency of principal and interest payable and paid to such
Lender from time to time hereunder.
(c) Maintenance of Records by the Administrative Agent. The
Administrative Agent shall maintain records in which it shall record (i) the
amount and currency of each Loan made hereunder, the Class and Type thereof and
each Interest Period therefor, (ii) the amount and currency of any principal or
interest due and payable or to become due and payable from each Borrower to each
Lender hereunder and (iii) the amount and currency of any sum received by the
Administrative Agent hereunder for account of the Lenders and each Lender's
share thereof.
(d) Effect of Entries. The entries made in the records maintained
pursuant to paragraph (b) or (c) of this Section shall be prima facie evidence
of the existence and amounts of the obligations recorded therein; provided that
the failure of any Lender or the Administrative Agent to maintain such records
or any error therein shall not in any manner affect the obligation of any
Borrower to repay the Loans in accordance with the terms of this Agreement.
(e) Promissory Notes. Any Lender may request that Loans made by it to
any Borrower be evidenced by a promissory note of such Borrower. In such event,
such Borrower shall prepare, execute and deliver to such Lender a promissory
note payable to such Lender (or, if requested by such Lender, to such Lender and
its registered assigns) and in a form approved by the Administrative Agent.
Thereafter, the Loans evidenced by such promissory note and interest thereon
shall at all times (including after assignment pursuant to Section 10.04) be
represented by one or more promissory notes in such form payable to the payee
named therein (or, if such promissory note is a registered note, to such payee
and its registered assigns).
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SECTION 2.10. Prepayment of Loans.
(a) Optional Prepayments. Each Borrower shall have the right at any
time and from time to time to prepay any Borrowing by such Borrower in whole or
in part, subject to the requirements of this Section.
(b) Mandatory Prepayments in respect of Currency Fluctuation.
(i) Determination of Amount Outstanding. On each Currency Valuation
Date, the Administrative Agent shall determine the aggregate Revolving
Credit Exposure (including the Dollar Equivalent of any portion thereof
that is denominated in Foreign Currencies). For the purpose of this
determination, the outstanding principal amount of any Loan that is
denominated in any Foreign Currency shall be deemed to be the Dollar
Equivalent of the amount in the Foreign Currency of such Loan, determined
as of the relevant Currency Valuation Date. Upon making such determination,
the Administrative Agent shall promptly notify the Lenders and the Company
thereof.
(ii) Prepayment. If on the date of such determination the aggregate
Revolving Credit Exposure (including the Dollar Equivalent of any portion
thereof that is denominated in Foreign Currencies) exceeds 105% of the
aggregate amount of the Commitments as then in effect, the Company shall,
and shall cause the Subsidiary Borrowers to, if requested by the Required
Lenders (through the Administrative Agent), prepay the Syndicated Loans and
Swingline Loans (and/or provide cover for LC Exposure as specified in
Section 2.05(k)) in such amounts as shall be necessary so that after giving
effect thereto the aggregate Revolving Credit Exposure does not exceed the
Commitments.
Any prepayment pursuant to this paragraph shall be applied, first, to Swingline
Loans outstanding, second, to Syndicated Loans outstanding and third, as cover
for LC Exposure.
(c) Notices, Etc. The Company shall notify the Administrative Agent
(and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurocurrency Borrowing in Dollars, not later than 12:00 noon,
Local Time, two Business Days before the date of prepayment, (ii) in the case of
prepayment of a Eurocurrency Borrowing in a Foreign Currency, not later than
12:00 noon, Local Time, three Business Days before the date of prepayment, (iii)
in the case of prepayment of a Syndicated ABR Borrowing, not later than 12:00
noon, Local Time, on the date of prepayment or (iv) not later than (i) in the
case of prepayment of a Swingline Loan made to the Company, 12:00 noon, Local
Time and (ii) in the case of prepayment of a Swingline Loan made to the
Swingline Subsidiary Borrower, 11:00 a.m., Local Time, on the date of
prepayment. Each such notice shall be irrevocable and shall specify the
prepayment date, the principal amount of each Borrowing or portion thereof to be
prepaid and, in the case of a mandatory prepayment, a reasonably detailed
calculation of the amount of such prepayment; provided that, if a notice of
prepayment is given in connection with a conditional notice of termination of
the Commitments as contemplated by Section 2.08, then such notice of prepayment
may be revoked if such notice of termination is revoked in accordance with
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Section 2.08. Promptly following receipt of any such notice relating to a
Syndicated Borrowing, the Administrative Agent shall advise the Lenders of the
contents thereof. Each partial prepayment of any Borrowing shall be in an amount
that would be permitted in the case of a Borrowing of the same Type as provided
in Section 2.02, except as necessary to apply fully the required amount of a
mandatory prepayment. Each prepayment of a Syndicated Borrowing shall be applied
ratably to the Loans included in the prepaid Borrowing. Prepayments shall be
accompanied by accrued interest to the extent required by Section 2.12. If the
relevant Borrower fails to make a timely selection of the Borrowing or
Borrowings to be prepaid, such prepayment shall be applied, first, to pay any
outstanding ABR Borrowings of such Borrower and, second, to other Borrowings of
such Borrower in the order of the remaining duration of their respective
Interest Periods (the Borrowing with the shortest remaining Interest Period to
be repaid first).
SECTION 2.11. Fees.
(a) Facility Fee. The Company agrees to pay to the Administrative
Agent for account of each Lender a facility fee, which shall accrue at the
Applicable Rate on the daily amount of the Commitment of such Lender (whether
used or unused) during the period from and including the Effective Date to but
excluding the earlier of the date such Commitment terminates and the Commitment
Termination Date. Accrued facility fees shall be payable on each Quarterly Date
and on the earlier of the date the Commitments terminate and the Commitment
Termination Date, commencing on the first such date to occur after the date
hereof. All facility fees shall be computed on the basis of a year of 360 days
and shall be payable for the actual number of days elapsed (including the first
day but excluding the last day).
(b) Letter of Credit Fees. Each Borrower that is an account party in
respect of any Letter of Credit agrees to pay (i) to the Administrative Agent
for account of each Lender a participation fee with respect to such Lender's
participations in each such Letter of Credit, which shall accrue at a rate per
annum equal to the Applicable Rate applicable to interest on Eurocurrency Loans
on the average daily amount of such Lender's LC Exposure (excluding any portion
thereof attributable to unreimbursed LC Disbursements) during the period from
and including the Effective Date to but excluding the later of the date on which
such Lender's Commitment terminates and the date on which such Lender ceases to
have any LC Exposure, and (ii) to the Issuing Lender a fronting fee, which shall
accrue at the rate of 0.125% per annum on the average daily amount of the LC
Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Effective Date to but
excluding the later of the date of termination of the Commitments and the date
on which there ceases to be any LC Exposure, as well as the Issuing Lender's
standard fees with respect to the issuance, amendment, renewal or extension of
any Letter of Credit or processing of drawings thereunder. Participation fees
and fronting fees accrued through and including each Quarterly Date shall be
payable on the third Business Day following such Quarterly Date, commencing on
the first such date to occur after the Effective Date; provided that all such
fees shall be payable on the date on which the Commitments terminate and any
such fees accruing after the date on which the Commitments terminate shall be
payable on demand. Any other fees payable to the Issuing Lender pursuant to this
paragraph shall be payable within 10 days after demand. All participation fees
and fronting fees shall be computed on the basis of a year of 360 days and shall
- 41 -
be payable for the actual number of days elapsed (including the first day but
excluding the last day).
(c) Administrative Agent Fees. The Company agrees to pay to the
Administrative Agent, for its own account, fees payable in the amounts and at
the times separately agreed upon between the Company and the Administrative
Agent.
(d) Payment of Fees. All fees payable hereunder shall be paid on the
dates due, in Dollars and immediately available funds, to the Administrative
Agent (or to the Issuing Lender, in the case of fees payable to it) for
distribution, in the case of facility fees and participation fees, to the
Lenders entitled thereto. Fees paid shall not be refundable under any
circumstances.
SECTION 2.12. Interest.
(a) ABR Loans. The Loans (other than Swingline Loans) constituting
each ABR Borrowing (other than any Swingline Loan) shall bear interest at a rate
per annum equal to the Alternate Base Rate plus the Applicable Rate.
(b) Eurocurrency Loans. The Loans (other than Swingline Loans)
constituting each Eurocurrency Borrowing shall bear interest at a rate per annum
equal to the Adjusted LIBO Rate for the Interest Period for such Borrowing plus
the Applicable Rate.
(c) Swingline Loans. The Swingline Loans shall bear interest at a rate
per annum equal to (i) the Alternate Base Rate plus the Applicable Rate, (ii)
the Swingline Multicurrency Rate plus the Applicable Rate or (iii) the Money
Market Rate, as applicable.
(d) Default Interest. Notwithstanding the foregoing, if any principal
of or interest on any Loan or any fee or other amount payable by any Borrower
hereunder is not paid when due, whether at stated maturity, upon acceleration,
by mandatory prepayment or otherwise, such overdue amount shall bear interest,
after as well as before judgment, at a rate per annum equal to (i) in the case
of overdue principal of any Loan, 2% plus the rate otherwise applicable to such
Loan as provided above or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Loans as provided in paragraph (a) of this Section.
(e) Payment of Interest. Accrued interest on each Loan shall be
payable in arrears on each Interest Payment Date for such Loan and, in the case
of Syndicated Loans, upon termination of the Commitments; provided that (i)
interest accrued pursuant to paragraph (c) of this Section shall be payable on
demand, (ii) in the event of any repayment or prepayment of any Loan (other than
a prepayment of a Syndicated ABR Loan prior to the Commitment Termination Date),
accrued interest on the principal amount repaid or prepaid shall be payable on
the date of such repayment or prepayment and (iii) in the event of any
conversion of any Eurocurrency Borrowing denominated in Dollars prior to the end
of the Interest Period therefor, accrued interest on such Borrowing shall be
payable on the effective date of such conversion.
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(f) Computation. All interest hereunder shall be computed on the basis
of a year of 360 days, except that interest computed by reference to the
Alternate Base Rate at times when the Alternate Base Rate is based on the Prime
Rate and interest on all Loans denominated in Pounds Sterling shall be computed
on the basis of a year of 365 days (or 366 days in a leap year), and in each
case shall be payable for the actual number of days elapsed (including the first
day but excluding the last day). The applicable Alternate Base Rate or Adjusted
LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.13. Alternate Rate of Interest. If prior to the commencement
of the Interest Period for any Eurocurrency Borrowing (the currency of such
Borrowing herein called the "Affected Currency"):
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate for the Affected Currency for
such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that
the Adjusted LIBO Rate for the Affected Currency for such Interest Period
will not adequately and fairly reflect the cost to such Lenders of making
or maintaining their respective Loans included in such Borrowing for such
Interest Period;
then the Administrative Agent shall give notice thereof to the Company and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Company and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Syndicated Borrowing to, or
the continuation of any Syndicated Borrowing as, a Eurocurrency Borrowing
denominated in the Affected Currency shall be ineffective and (A) if the
Affected Currency is Dollars, such Syndicated Borrowing (unless prepaid) shall
be continued as, or converted to, a Syndicated ABR Borrowing and (B) if the
Affected Currency is a Foreign Currency, such Syndicated Borrowing shall be
prepaid, (ii) if the Affected Currency is Dollars and any Borrowing Request
requests a Eurocurrency Borrowing denominated in Dollars, such Borrowing shall
be made as a Syndicated ABR Borrowing and (iii) if the Affected Currency is a
Foreign Currency, any Borrowing Request that requests a Eurocurrency Borrowing
denominated in the Affected Currency shall be ineffective.
SECTION 2.14. Increased Costs.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
account of, or credit extended by, any Lender (except any such reserve
requirement reflected in the Adjusted LIBO Rate) or the Issuing
Lender; or
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(ii) impose on any Lender or the Issuing Lender or the London
interbank market any other condition affecting this Agreement or
Eurocurrency Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
Issuing Lender of participating in, issuing or maintaining any Letter of Credit
or to reduce the amount of any sum received or receivable by such Lender or the
Issuing Lender hereunder (whether of principal, interest or otherwise) other
than any such increase relating to Taxes (which shall be governed exclusively by
Section 2.16), by an amount which such Lender or the Issuing Lender, as the case
may be, deems in its sole discretion to be material, then, subject to the
delivery of a certificate contemplated by paragraph (c) below, the Company will
pay to such Lender or the Issuing Lender, as the case may be, in Dollars, such
additional amount or amounts as will compensate such Lender or the Issuing
Lender, as the case may be, for such additional costs incurred or reduction
suffered.
(b) Capital Requirements. If any Lender or the Issuing Lender
determines that any Change in Law regarding capital requirements has or would
have the effect of reducing the rate of return on such Lender's or the Issuing
Lender's capital or on the capital of such Lender's or the Issuing Lender's
holding company, if any, as a consequence of this Agreement or the Loans made
by, or participations in Letters of Credit held by, such Lender, or the Letters
of Credit issued by the Issuing Lender, to a level below that which such Lender
or the Issuing Lender or such Lender's or the Issuing Lender's holding company
could have achieved but for such Change in Law (taking into consideration such
Lender's or the Issuing Lender's policies and the policies of such Lender's or
the Issuing Lender's holding company with respect to capital adequacy), then,
subject to the delivery of a certificate contemplated by paragraph (c) below,
from time to time the Company will pay to such Lender or the Issuing Lender, as
the case may be, in Dollars, such additional amount or amounts as will
compensate such Lender or the Issuing Lender or such Lender's or the Issuing
Lender's holding company for any such reduction suffered.
(c) Certificates from Lenders. A certificate of a Lender or the
Issuing Lender setting forth in reasonable detail the amount or amounts, in
Dollars, necessary to compensate such Lender or the Issuing Lender or its
holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the Company and shall be conclusive absent
manifest error. The Company shall pay such Lender or the Issuing Lender, as the
case may be, the amount shown as due on any such certificate within 20 days
after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender or
the Issuing Lender to demand compensation pursuant to this Section shall not
constitute a waiver of such Lender's or the Issuing Lender's right to demand
such compensation; provided that the Company shall not be required to compensate
a Lender or the Issuing Lender pursuant to this Section for any increased costs
or reductions incurred more than 120 days prior to the date that such Lender or
the Issuing Lender, as the case may be, notifies the Company of the Change in
Law giving rise to such increased costs or reductions and of such Lender's or
the Issuing Lender's intention to claim compensation therefor; provided further
that, if the Change in Law giving rise to such
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increased costs or reductions is retroactive, then the 120-day period referred
to above shall be extended to include the period of retroactive effect thereof.
SECTION 2.15. Break Funding Payments. In the event of (a) the payment
of any principal of any Eurocurrency Loan other than on the last day of an
Interest Period therefor (including as a result of an Event of Default), (b) the
conversion of any Eurocurrency Loan other than on the last day of an Interest
Period therefor, (c) the failure to borrow, convert, continue or prepay any
Syndicated Loan on the date specified in any notice delivered pursuant hereto
(regardless of whether such notice is permitted to be revocable under Section
2.10(c) and is revoked in accordance herewith) (other than as a result of
Section 2.13), or (d) the assignment as a result of a request by the Company
pursuant to Section 2.18(b) of any Eurocurrency Loan other than on the last day
of an Interest Period therefor, then, in any such event, the Company shall
compensate each Lender for the loss, cost and expense attributable to such
event. In the case of a Eurocurrency Loan, the loss to any Lender attributable
to any such event shall be deemed to include an amount determined by such Lender
to be equal to the excess, if any, of (i) the amount of interest that such
Lender would pay for a deposit equal to the principal amount of such Loan
denominated in the currency of such Loan for the period from the date of such
payment, conversion, failure or assignment to the last day of the then current
Interest Period for such Loan (or, in the case of a failure to borrow, convert
or continue, the duration of the Interest Period that would have resulted from
such borrowing, conversion or continuation) if the interest rate payable on such
deposit were equal to the Adjusted LIBO Rate for such currency for such Interest
Period, over (ii) the amount of interest that such Lender would earn on such
principal amount for such period if such Lender were to invest such principal
amount for such period at the interest rate that would be bid by such Lender (or
an affiliate of such Lender) for deposits denominated in such currency from
other banks in the eurocurrency market at the commencement of such period. A
certificate of any Lender setting forth in reasonable detail the basis for and
calculation of any amount or amounts that such Lender is entitled to receive
pursuant to this Section shall be delivered to the Company and shall be
conclusive absent manifest error. The Company shall pay such Lender the amount
shown as due on any such certificate within 20 days after receipt thereof.
SECTION 2.16. Taxes.
(a) Payments Free of Taxes. Any and all payments by or on account of
any obligation of any Borrower hereunder or under any other Loan Document shall
be made free and clear of and without deduction for any Indemnified Taxes or
Other Taxes; provided that if any Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable
shall be increased as necessary so that after making all such required
deductions (including deductions applicable to additional sums payable under
this Section) the Administrative Agent, each Lender or the Issuing Lender (as
the case may be) receives an amount equal to the sum it would have received had
no such deductions been made, (ii) such Borrower shall make such deductions and
(iii) such Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) Payment of Other Taxes. In addition, each Borrower shall pay any
Other Taxes to the relevant Governmental Authority in accordance with applicable
law.
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(c) Indemnification by the Borrowers. Each Borrower shall indemnify
the Administrative Agent, each Lender and the Issuing Lender, within 20 days
after written demand therefor, for the full amount of any Indemnified Taxes or
Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on
or attributable to amounts payable under this Section) paid by the
Administrative Agent, such Lender or the Issuing Lender, as the case may be, and
any penalties, interest and reasonable expenses arising therefrom or with
respect thereto ; provided that upon the request, and at the sole expense of,
any Borrower, the Administrative Agent, such Lender or the Issuing Lender, as
the case may be, shall reasonably afford such Borrower the opportunity to
contest (at such Borrower's expense), and reasonably cooperate with such
Borrower in contesting, the imposition of any Taxes giving rise to such amount;
provided that (i) to the extent that any such Taxes are required by applicable
law to be paid prior to commencing any such contest, such Borrower shall pay or
reimburse such Taxes whether or not such Taxes were correctly or legally imposed
or asserted by the relevant Governmental Authority, (ii) such Borrower shall
have confirmed in writing to such Person its obligation to pay such indemnity
amounts pursuant to this Agreement, (iii) such Person shall have received at
such Borrower's sole expense an opinion, in a form reasonably satisfactory to
such Person, of independent tax counsel selected by such Borrower and reasonably
acceptable to such Person to the effect that there exists a reasonable basis for
such contest, (iv) such Borrower shall reimburse such Person for its reasonable
attorneys' and accountants' fees and disbursements incurred in so cooperating
with such Borrower in so contesting and (v) nothing in this paragraph (c) shall
be construed to require such Person to rearrange its tax affairs other than as
it sees fit in its sole discretion or to disclose or provide its tax returns or
other information it reasonably considers confidential or proprietary to any
Person. A certificate setting forth in reasonable detail the amount of such
payment or liability delivered to the Company by a Lender or the Issuing Lender,
or by the Administrative Agent on its own behalf or on behalf of a Lender or the
Issuing Lender, shall be conclusive absent manifest error.
(d) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by any Borrower to a Governmental Authority,
such Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
(e) U.S. Law Exemptions; Required Certificates. Any Foreign Lender
that is entitled to an exemption from or reduction of withholding tax under the
law of the jurisdiction in which the Company or any Subsidiary Borrower that is
a Domestic Subsidiary is located, or any treaty to which such jurisdiction is a
party, with respect to payments under this Agreement shall deliver to the
Company (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law or reasonably requested by the Company, such
properly completed and executed documentation prescribed by applicable law as
will permit such payments to be made without withholding or at a reduced rate.
Without limiting the foregoing, each Foreign Lender, with respect to
Loans made to the Company or any Subsidiary Borrower that is a Domestic
Subsidiary, or Letters of Credit
- 46 -
issued for the account of the Company or any such Subsidiary Borrower, shall
deliver to the Company and each such Subsidiary Borrower, with copies to the
Administrative Agent, two copies of either U.S. Internal Revenue Service Form
W-8BEN or Form W-8ECI, or, in the case of a Foreign Lender claiming exemption
from the withholding of U.S. federal income tax under Section 871(h) or 881(c)
of the Code with respect to payments of "portfolio interest," a certificate
representing that such Foreign. Lender is not (i) a "bank" for purposes of
Section 881(c) of the Code, (ii) a ten-percent shareholder of the Company
(within the meaning of Section 871(h)(3)(B) of the Code) or (iii) a controlled
foreign corporation related to the Company (within the meaning of Section
864(d)(4) of the Code), and a Form W-8BEN, or any subsequent versions thereof or
successors thereto, in all cases properly completed and duly executed by such
Foreign Lender claiming complete exemption from, or a reduced rate of,
withholding of U.S. federal income tax on all payments by or on account of any
obligation of the Company or (if applicable) such Subsidiary Borrower under this
Agreement or under any other Loan Document. Such forms shall be delivered by
each such Foreign Lender on or before the date it becomes a party to this
Agreement. In addition, each such Foreign Lender shall deliver such forms
immediately prior to the obsolescence or invalidity of any form previously
delivered by such Foreign Lender. Each such Foreign Lender shall promptly notify
the Company and (if applicable) such Subsidiary Borrower at any time it
determines that it is no longer in a position to provide any previously
delivered certificate to the Person(s) to whom such certificate was previously
delivered (or any other form of certification adopted by the U.S. taxing
authorities for such purpose).
(f) Foreign Subsidiary Borrower Exemptions; Required Certificates. If
the Administrative Agent or any Lender is entitled to an exemption from or
reduction in the rate of the imposition, deduction or withholding of any
Indemnified Tax or Other Tax under the laws of the jurisdiction in which any
Subsidiary Borrower that is a Foreign Subsidiary is organized or engaged in
business, or any treaty to which such jurisdiction is a party, with respect to
payments by such Subsidiary Borrower under this Agreement or any other Loan
Document, then the Administrative Agent or such Lender (as the case may be)
shall deliver to such Subsidiary Borrower or the relevant Governmental
Authority, in the manner and at the time or times prescribed by applicable law
or as reasonably requested by the Company (at least 60 days prior to the due
date required for submission thereof), such properly completed and executed
documentation prescribed by applicable law or reasonably requested by the
Company as will permit such payments to be made without the imposition,
deduction or withholding of such Indemnified Tax or Other Tax or at a reduced
rate, provided that the Administrative Agent or such Lender is legally entitled
to complete, execute and deliver such documentation and in its reasonable
judgment such completion, execution or submission would not materially prejudice
its commercial or legal position or require disclosure of information it
considers confidential or proprietary.
(g) Refunds. If the Administrative Agent, a Lender or the Issuing
Lender determines, in its reasonable discretion, that it has received a refund
of any Taxes or Other Taxes as to which it has been indemnified by any Borrower
or with respect to which any Borrower has paid additional amounts pursuant to
this Section, it shall pay over such refund to such Borrower (but only to the
extent of indemnity payments made, or additional amounts paid, by such Borrower
under this Section with respect to the Taxes or Other Taxes giving rise to such
refund),
- 47 -
net of all out-of-pocket expenses of the Administrative Agent, such Lender or
the Issuing Lender, as the case may be, and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such
refund); provided that such Borrower, upon the request of the Administrative
Agent, such Lender or the Issuing Lender, agrees to repay the amount paid over
to such Borrower (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority, other than any such penalties, interest or
other charges attributable to the gross negligence or willful misconduct of the
Administrative Agent, such Lender or the Issuing Lender, as applicable) to the
Administrative Agent, such Lender or the Issuing Lender in the event the
Administrative Agent, such Lender or the Issuing Lender is required to repay
such refund to such Governmental Authority. This Section shall not be construed
to require the Administrative Agent, any Lender or the Issuing Lender to make
available its tax returns (or any other information relating to its taxes which
it deems confidential or proprietary) to any Borrower or any other Person.
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs.
(a) Payments by the Obligors. Each Obligor shall make each payment
required to be made by it hereunder (whether of principal, interest, fees or
reimbursement of LC Disbursements, or under Section 2.14, 2.15 or 2.16, or
otherwise) or under any other Loan Document (except to the extent otherwise
provided therein) prior to 12:00 noon, Local Time, on the date when due, in
immediately available funds, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at the Administrative Agent's Account,
except as otherwise expressly provided in the relevant Loan Document and except
payments to be made directly to the Issuing Lender or the Swingline Lender as
expressly provided herein and payments pursuant to Sections 2.14, 2.15, 2.16 and
10.03, which shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day and, in the case of any payment accruing interest, interest thereon
shall be payable for the period of such extension. All amounts owing under this
Agreement (including facility fees, payments required under Section 2.14, and
payments required under Section 2.15 relating to any Loan denominated in
Dollars, but not including principal of, and interest on, any Loan denominated
in any Foreign Currency or payments relating to any such Loan required under
Section 2.15, which are payable in such Foreign Currency) or under any other
Loan Document (except to the extent otherwise provided therein) are payable in
Dollars. Notwithstanding the foregoing, if any Borrower shall fail to pay any
principal of any Loan when due (whether at stated maturity, by acceleration, by
mandatory prepayment or otherwise) or shall fail to pay any reimbursement
obligation in respect of any LC Disbursement when due, the unpaid portion of
such Loan or reimbursement obligation shall, if such Loan or reimbursement
obligation is not denominated in Dollars, automatically be redenominated in
Dollars on the due date thereof (or, if such due date is a day other than the
last day of the Interest Period therefor, on the last day of such Interest
Period) in an amount equal to the Dollar Equivalent thereof on the date of such
redenomination and such principal or reimbursement obligation shall be payable
on
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demand; and if any Borrower shall fail to pay any interest on any Loan that is
not denominated in Dollars or on any LC Disbursement made pursuant to a Letter
of Credit that is not denominated in Dollars, such interest shall automatically
be redenominated in Dollars on the due date therefor (or, if such due date is a
day other than the last day of the Interest Period therefor, on the last day of
such Interest Period) in an amount equal to the Dollar Equivalent thereof on the
date of such redenomination and such interest shall be payable on demand.
(b) Application of Insufficient Payments. If at any time insufficient
funds are received by and available to the Administrative Agent to pay fully all
amounts of principal, unreimbursed LC Disbursements, interest and fees then due
hereunder, such funds shall be applied (i) first, to pay interest and fees then
due hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (ii) second, to pay
principal and unreimbursed LC Disbursements then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of principal and
unreimbursed LC Disbursements then due to such parties.
(c) Pro Rata Treatment. Except to the extent otherwise provided
herein: (i) each Syndicated Borrowing shall be made from the Lenders, each
payment of facility fee under Section 2.11 shall be made for account of the
Lenders, and each termination or reduction of the amount of the Commitments
under Section 2.08 shall be applied to the respective Commitments of the
Lenders, pro rata according to the amounts of their respective Commitments; (ii)
each Syndicated Borrowing shall be allocated pro rata among the Lenders
according to the amounts of their respective Commitments (in the case of the
making of Syndicated Loans) or their respective Loans that are to be included in
such Borrowing (in the case of conversions and continuations of Loans); (iii)
each payment or prepayment of principal of Syndicated Loans by any Borrower
shall be made for account of the Lenders pro rata in accordance with the
respective unpaid principal amounts of the Syndicated Loans held by them; and
(iv) each payment of interest on Syndicated Loans by any Borrower shall be made
for account of the Lenders pro rata in accordance with the amounts of interest
on such Loans then due and payable to the respective Lenders.
(d) Sharing of Payments by Lenders. If any Lender shall, by exercising
any right of set-off or counterclaim or otherwise, obtain payment in respect of
any principal of or interest on any of its Syndicated Loans or participations in
LC Disbursements or Swingline Loans resulting in such Lender receiving payment
of a greater proportion of the aggregate amount of its Syndicated Loans and
participations in LC Disbursements and Swingline Loans and accrued interest
thereon then due than the proportion received by any other Lender, then the
Lender receiving such greater proportion shall purchase (for cash at face value)
participations in the Syndicated Loans and participations in LC Disbursements
and Swingline Loans of other Lenders to the extent necessary so that the benefit
of all such payments shall be shared by the Lenders ratably in accordance with
the aggregate amount of principal of and accrued interest on their respective
Syndicated Loans and participations in LC Disbursements and Swingline Loans;
provided that (i) if any such participations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations
shall be rescinded and the purchase price restored to the extent of such
recovery, without interest, and (ii) the provisions of this paragraph shall not
be construed to apply to any payment made by any Obligor pursuant to and in
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accordance with the express terms of this Agreement or any payment obtained by a
Lender as consideration for the assignment of or sale of a participation in any
of its Loans or participations in LC Disbursements to any assignee or
participant, other than to the Company or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply). Each Obligor
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against such Obligor rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of such Obligor in the amount of such participation.
(e) Presumptions of Payment. Unless the Administrative Agent shall
have received notice from the relevant Borrower prior to the date on which any
payment is due to the Administrative Agent for account of the Lenders or the
Issuing Lender hereunder that such Borrower will not make such payment, the
Administrative Agent may assume that such Borrower has made such payment on such
date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders or the Issuing Lender, as the case may be, the amount
due. In such event, if the relevant Borrower has not in fact made such payment,
then each of the Lenders or the Issuing Lender, as the case may be, severally
agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender or the Issuing Lender with interest thereon, for each
day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the Federal Funds
Effective Rate.
(f) Certain Deductions by the Administrative Agent. If any Lender
shall fail to make any payment required to be made by it pursuant to Section
2.04(c), 2.05(e), 2.06(b) or 2.17(e), then the Administrative Agent may, in its
discretion (notwithstanding any contrary provision hereof), apply any amounts
thereafter received by the Administrative Agent for account of such Lender to
satisfy such Lender's obligations under such Sections until all such unsatisfied
obligations are fully paid.
(g) Payments in Foreign Currencies by the Administrative Agent
Generally. With respect to the payment of any amount denominated in euros or in
a National Currency, the Administrative Agent shall not be liable to the
Borrowers or any of the Lenders in any way whatsoever for any delay, or the
consequences of any delay, in the crediting to any account of any amount
required by this Agreement to be paid by the Administrative Agent if the
Administrative Agent shall have taken all relevant steps to achieve, on the date
required by this Agreement, the payment of such amount in immediately available,
freely transferable, cleared funds (in euros or in such National Currency, as
the case may be) to the account of any Lender in the Principal Financial Center
in the Participating Member State which the relevant Borrower or such Lender, as
the case may be, shall have specified for such purpose. For the purposes of this
paragraph, "all relevant steps" means all such steps as may be prescribed from
time to time by the regulations or operating procedures of such clearing or
settlement system as the Administrative Agent may from time to time determine
for the purpose of clearing or settling payments in euros or such National
Currency.
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SECTION 2.18. Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender requests
compensation under Section 2.14, or if the Company is required to pay any
additional amount to any Lender or any Governmental Authority for account of any
Lender pursuant to Section 2.16, then such Lender shall use reasonable efforts
to designate a different lending office for funding or booking its Loans
hereunder or to assign its rights and obligations hereunder to another of its
offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant
to Section 2.14 or 2.16, as the case may be, in the future and (ii) would not
subject such Lender to any unreimbursed cost or expense and would not otherwise
be disadvantageous to such Lender. The Company hereby agrees to pay, within 20
days after written demand therefor, all reasonable costs and expenses incurred
by any Lender in connection with any such designation or assignment; provided
that such Lender shall use reasonable efforts to notify the Company in advance
before incurring such cost or expense which such Lender deems to be material.
(b) Replacement of Lenders. If (i) any Lender requests compensation
under Section 2.14, (ii) the Company is required to pay any additional amount to
any Lender or any Governmental Authority for account of any Lender pursuant to
Section 2.16, (iii) any Lender defaults in its obligation to fund Loans
hereunder or (iv) any Lender refuses to consent to any amendment, modification
or waiver of this Agreement or any other Loan Documents that pursuant hereto or
thereto requires the consent of all of the Lenders (or all of the Lenders
affected thereby), then the Company may, at its sole expense and effort, upon
notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 10.04), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the Company shall have received the prior written
consent of the Administrative Agent (and, if a Commitment is being assigned, the
Issuing Lender and the Swingline Lender), which consent shall not unreasonably
be withheld, (ii) such Lender shall have received payment of an amount equal to
the outstanding principal of its Loans and participations in LC Disbursements
and Swingline Loans, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder, from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the Company (in the case
of all other amounts) and (iii) in the case of any such assignment resulting
from a claim for compensation under Section 2.14 or payments required to be made
pursuant to Section 2.16, such assignment will result in a reduction in such
compensation or payments. A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Company to require such
assignment and delegation cease to apply.
SECTION 2.19. Designation of Subsidiary Borrowers.
(a) Designation of Subsidiary Borrowers. Subject to the terms and
conditions of this Section (including paragraph (b) of this Section), the
Company may, at any time or from time to time upon not less than 10 Business
Days' notice to the Administrative Agent (or such
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other period which is acceptable to the Administrative Agent), request that a
wholly-owned Subsidiary specified in such notice become a party to this
Agreement as a Borrower; provided that each such designation shall be subject to
the prior approval of the Administrative Agent (which approval shall not be
unreasonably withheld). The Administrative Agent shall upon receipt of such
notice from the Company promptly notify each Lender of the Company's
designation. Upon such approval and the satisfaction of the conditions specified
in paragraph (b) of this Section, such Subsidiary shall become a party to this
Agreement as a Borrower hereunder and shall be entitled to borrow Loans or
request the issuance of Letters of Credit on and subject to the terms and
conditions of this Agreement, and the Administrative Agent shall promptly notify
the Lenders of such designation.
(b) Conditions Precedent to Designation Effectiveness. The designation
by the Company of any wholly-owned Subsidiary as a Subsidiary Borrower hereunder
shall not become effective until the date on which the Administrative Agent
shall have received each of the following documents (each of which shall be
satisfactory to the Administrative Agent in form and substance):
(i) Designation Letter. A Subsidiary Borrower Designation Letter, duly
completed and executed by the Company and the relevant Subsidiary,
delivered to the Administrative Agent at least 5 Business Days before the
date on which such Subsidiary is proposed to become a Subsidiary Borrower;
(ii) Opinion of Counsel. If requested by the Administrative Agent, a
favorable written opinion (addressed to the Administrative Agent and the
Lenders and appropriately dated) of counsel to such Subsidiary satisfactory
to the Administrative Agent in the jurisdiction in which such Subsidiary is
organized (the "Relevant Jurisdiction"), (and the Company and such
Subsidiary Borrower hereby and by delivery of such Subsidiary Borrower
Designation Letter instruct such counsel to deliver such opinion to the
Lenders and the Administrative Agent, if such opinion is so requested), as
to such other matters as the Administrative Agent may reasonably request
(which may include the due incorporation of such Subsidiary under the laws
of the Relevant Jurisdiction, the due authorization, execution and delivery
by such Subsidiary of such Subsidiary Borrower Designation Letter and of
any extensions of credit to made by it hereunder, the obtaining of all
licenses, approvals and consents of, and the making of all filings and
registrations with, any applicable Governmental Authority required in
connection therewith (or the absence of any thereof), the legality,
validity and binding effect and enforceability thereof and the absence of
any withholding or similar tax under the laws of the Relevant Jurisdiction
in respect of payments by such Subsidiary Borrower hereunder);
(iii) Corporate Documents. Such documents and certificates as the
Administrative Agent may reasonably request (including certified copies of
the organizational documents of such Subsidiary and of resolutions of its
board of directors authorizing such Subsidiary becoming a Borrower
hereunder, and of all documents evidencing all other necessary corporate or
other action required with respect to such Subsidiary Borrower becoming
party to this Agreement); and
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(iv) Other Documents. Receipt of such other documents relating thereto
as the Administrative Agent or its counsel may reasonably request, which
may include other documents that are consistent with conditions for
Subsidiary Borrowers set forth in Section 4.01.
(c) Termination of Subsidiary Borrowers. The Company may, at any time
at which a Subsidiary Borrower shall not be an account party with respect to an
outstanding Letter of Credit and which shall have no unpaid LC Disbursements or
unpaid interest on any LC Disbursements and no Loans or any other amounts
hereunder or under any other Loan Documents shall be outstanding to such
Subsidiary Borrower, terminate such Subsidiary Borrower as a Borrower hereunder
by delivering to the Administrative Agent an executed notice thereof (each a
"Subsidiary Borrower Termination Letter"), substantially in the form of Exhibit
G. Any Subsidiary Borrower Termination Letter furnished hereunder shall be
effective upon receipt thereof by the Administrative Agent (which shall promptly
so notify the Lenders and the Issuing Lender), whereupon all commitments of the
Issuing Lender to issue Letters of Credit for account of such Subsidiary
Borrower and all commitments of the Lenders to make Loans to such Subsidiary
Borrower and all of rights of such Subsidiary Borrower hereunder shall terminate
and such Subsidiary Borrower shall immediately cease to be a Borrower hereunder.
Notwithstanding anything herein to the contrary, the delivery of a Subsidiary
Borrower Termination Letter with respect to any Subsidiary Borrower shall not
terminate (i) any obligation of such Subsidiary Borrower that remains unpaid at
the time of such delivery (including any obligation arising thereafter in
respect of such Subsidiary Borrower under Section 2.16) or (ii) the obligations
of the Company under Article III with respect to any such unpaid obligations.
ARTICLE III
GUARANTEE
SECTION 3.01. The Guarantee.
(a) The Company hereby guarantees to each Lender and the
Administrative Agent and their respective successors and assigns the prompt
payment in full when due (whether at stated maturity, by acceleration or
otherwise) of the principal of and interest on the Loans made by the Lenders to
each Subsidiary Borrower, all reimbursement obligations in respect of LC
Disbursements and all interest thereon payable by each Subsidiary Borrower, and
all other amounts from time to time owing by each Subsidiary Borrower to the
Lenders or the Administrative Agent under any of the other Loan Documents or to
any Lender or any Affiliate thereof under Hedging Agreements, in each case
strictly in accordance with the terms thereof (such obligations being herein
collectively called the "Company Guaranteed Obligations"). The Company hereby
further agrees that if any Subsidiary Borrower shall fail to pay in full when
due (whether at stated maturity, by acceleration or otherwise) any of the
Company Guaranteed Obligations owing by such Subsidiary, the Company will
promptly pay the same, without any demand or notice whatsoever, and that in the
case of any extension of time of payment or renewal of any of the Company
Guaranteed Obligations, the same will be promptly paid in full
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when due (whether at extended maturity, by acceleration or otherwise) in
accordance with the terms of such extension or renewal.
(b) The Subsidiary Guarantors hereby jointly and severally guarantee
to each Lender and the Administrative Agent and their respective successors and
assigns the prompt payment in full when due (whether at stated maturity, by
acceleration or otherwise) of the principal of and interest on the Loans made by
the Lenders to each Borrower (other than such Subsidiary Guarantor), all
reimbursement obligations in respect of LC Disbursements and all interest
thereon payable by each such Borrower and all other amounts from time to time
owing to the Lenders or the Administrative Agent by each such Borrower under
this Agreement and under any of the other Loan Documents, in each case strictly
in accordance with the terms thereof (such obligations being herein collectively
called the "Subsidiary Borrower Guaranteed Obligations" and, together with the
Company Guaranteed Obligations, the "Guaranteed Obligations"). The Subsidiary
Guarantors hereby further jointly and severally agree that if any Borrower shall
fail to pay in full when due (whether at stated maturity, by acceleration or
otherwise) any of the Subsidiary Borrower Guaranteed Obligations, the Subsidiary
Guarantors will promptly pay the same, without any demand or notice whatsoever,
and that in the case of any extension of time of payment or renewal of any of
the Subsidiary Borrower Guaranteed Obligations, the same will be promptly paid
in full when due (whether at extended maturity, by acceleration or otherwise) in
accordance with the terms of such extension or renewal.
SECTION 3.02. Obligations Unconditional. The obligations of the
Guarantors under Section 3.01 are absolute and unconditional, joint and several,
irrespective of the value, genuineness, validity, regularity or enforceability
of the obligations of any Borrower under this Agreement or any other agreement
or instrument referred to herein, or any substitution, release or exchange of
any other guarantee of or security for any of the Guaranteed Obligations, and,
also to the fullest extent permitted by applicable law, irrespective of any
other circumstance whatsoever that might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor, it being the intent of
this Section that the obligations of the Guarantors hereunder shall be absolute
and unconditional, joint and several, under any and all circumstances. Without
limiting the generality of the foregoing, it is agreed that, to the fullest
extent permitted by applicable law, the occurrence of any one or more of the
following shall not alter or impair the liability of the Guarantors hereunder,
which shall remain absolute and unconditional as described above:
(i) at any time or from time to time, without notice to the
Guarantors, the time for any performance of or compliance with any of the
Guaranteed Obligations shall be extended, or such performance or compliance
shall be waived;
(ii) any of the acts mentioned in any of the provisions of this
Agreement or any other agreement or instrument referred to herein shall be
done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under this Agreement
or any other agreement or instrument referred to herein shall be waived or
any other guarantee of any of the Guaranteed Obligations or
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any security therefor shall be released or exchanged in whole or in part or
otherwise dealt with; or
(iv) any lien or security interest granted to, or in favor of, the
Administrative Agent or any Lender or Lenders as security for any of the
Guaranteed Obligations shall fail to be perfected.
The Guarantors hereby expressly waive diligence, presentment, demand of payment,
protest and all notices whatsoever, and any requirement that the Administrative
Agent or any Lender exhaust any right, power or remedy or proceed against any
Borrower under this Agreement or any other agreement or instrument referred to
herein, or against any other Person under any other guarantee of, or security
for, any of the Guaranteed Obligations.
SECTION 3.03. Reinstatement. The obligations of the Guarantors under
this Article shall be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of any Borrower in respect of the Guaranteed
Obligations is rescinded or must be otherwise restored by any holder of any of
the Guaranteed Obligations, whether as a result of any proceedings in bankruptcy
or reorganization or otherwise, and the Guarantors jointly and severally agree
that they will indemnify the Administrative Agent and each Lender on demand for
all reasonable costs and expenses (including reasonable fees of counsel)
incurred by the Administrative Agent or such Lender in connection with such
rescission or restoration, including any such costs and expenses incurred in
defending against any claim alleging that such payment constituted a preference,
fraudulent transfer or similar payment under any bankruptcy, insolvency or
similar law.
SECTION 3.04. Subrogation. The Guarantors hereby jointly and severally
agree that until the payment and satisfaction in full of all Guaranteed
Obligations and the expiration and termination of the Commitments of the Lenders
under this Agreement they shall not exercise any right or remedy arising by
reason of any performance by them of their guarantee in Section 3.01, whether by
subrogation or otherwise, against any Borrower or any other guarantor of any of
the Guaranteed Obligations or any security for any of the Guaranteed
Obligations.
SECTION 3.05. Remedies. The Guarantors jointly and severally agree
that, as between the Guarantors and the Lenders, the obligations of the
Borrowers under this Agreement may be declared to be forthwith due and payable
as provided in Article VIII (and shall be deemed to have become automatically
due and payable in the circumstances provided in Article VIII) for purposes of
Section 3.01 notwithstanding any stay, injunction or other prohibition
preventing such declaration (or such obligations from becoming automatically due
and payable) as against any Borrower and that, in the event of such declaration
(or such obligations being deemed to have become automatically due and payable),
such obligations (whether or not due and payable by any Borrower) shall
forthwith become due and payable by the Guarantors for purposes of Section 3.01.
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SECTION 3.06. Instrument for the Payment of Money. Each Guarantor
hereby acknowledges that the guarantee in this Article constitutes an instrument
for the payment of money, and consents and agrees that any Lender or the
Administrative Agent, at its sole option, in the event of a dispute by such
Guarantor in the payment of any moneys due hereunder, shall have the right to
bring motions and/or actions under New York CPLR Section 3213.
SECTION 3.07. Continuing Guarantee. The guarantee in this Article is
a continuing guarantee, and shall apply to all Guaranteed Obligations whenever
arising.
SECTION 3.08. Rights of Contribution. The Subsidiary Guarantors
hereby agree, as between themselves, that if any Subsidiary Guarantor shall
become an Excess Funding Guarantor (as defined below) by reason of the payment
by such Subsidiary Guarantor of any Guaranteed Obligations, each other
Subsidiary Guarantor shall, on demand of such Excess Funding Guarantor (but
subject to the next sentence), pay to such Excess Funding Guarantor an amount
equal to such Subsidiary Guarantor's Pro Rata Share (as defined below and
determined, for this purpose, without reference to the properties, debts and
liabilities of such Excess Funding Guarantor) of the Excess Payment (as defined
below) in respect of such Guaranteed Obligations. The payment obligation of a
Subsidiary Guarantor to any Excess Funding Guarantor under this Section shall be
subordinate and subject in right of payment to the prior payment in full of the
obligations of such Subsidiary Guarantor under the other provisions of this
Article and such Excess Funding Guarantor shall not exercise any right or remedy
with respect to such excess until payment and satisfaction in full of all of
such obligations.
For purposes of this Section, (i) "Excess Funding Guarantor" means,
in respect of any Guaranteed Obligations, a Subsidiary Guarantor that has paid
an amount in excess of its Pro Rata Share of such Guaranteed Obligations, (ii)
"Excess Payment" means, in respect of any Guaranteed Obligations, the amount
paid by an Excess Funding Guarantor in excess of its Pro Rata Share of such
Guaranteed Obligations and (iii) "Pro Rata Share" means, for any Subsidiary
Guarantor, the ratio (expressed as a percentage) of (x) the amount by which the
aggregate present fair saleable value of all properties of such Subsidiary
Guarantor (excluding any shares of stock of any other Subsidiary Guarantor)
exceeds the amount of all the debts and liabilities of such Subsidiary Guarantor
(including contingent, subordinated, unmatured and unliquidated liabilities, but
excluding the obligations of such Subsidiary Guarantor hereunder and any
obligations of any other Subsidiary Guarantor that have been guaranteed by such
Subsidiary Guarantor) to (y) the amount by which the aggregate fair saleable
value of all properties of all of the Subsidiary Guarantors exceeds the amount
of all the debts and liabilities (including contingent, subordinated, unmatured
and unliquidated liabilities, but excluding the obligations of the Company and
the Subsidiary Guarantors hereunder and under the other Loan Documents) of all
of the Subsidiary Guarantors, determined (A) with respect to any Subsidiary
Guarantor that is a party hereto on the Effective Date, as of the Effective
Date, and (B) with respect to any other Subsidiary Guarantor, as of the date
such Subsidiary Guarantor becomes a Subsidiary Guarantor hereunder.
SECTION 3.09. General Limitation on Guarantee Obligations. In any
action or proceeding involving any state corporate law, or any state or Federal
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of any
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Subsidiary Guarantor under Section 3.01 would otherwise, taking into account the
provisions of Section 3.08, be held or determined to be void, invalid or
unenforceable, or subordinated to the claims of any other creditors, on account
of the amount of its liability under Section 3.01, then, notwithstanding any
other provision hereof to the contrary, the amount of such liability shall,
without any further action by such Subsidiary Guarantor, any Lender, the
Administrative Agent or any other Person, be automatically limited and reduced
to the highest amount that is valid and enforceable and not subordinated to the
claims of other creditors as determined in such action or proceeding.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Lenders that:
SECTION 4.01. Organization; Powers. Each of the Company and its
Subsidiaries (other than any Immaterial Subsidiary) (a) is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, (b) has all requisite power and authority to carry on its business
as now conducted and (c) is qualified to do business in, and is in good standing
in, every jurisdiction where such qualification is required, except, in the case
of clause (b) or (c) above, where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 4.02. Authorization; Enforceability. The Transactions are
within each Obligor's corporate powers and have been duly authorized by all
necessary corporate and, if required, by all necessary shareholder action. This
Agreement has been duly executed and delivered by each Obligor and constitutes,
and each of the other Loan Documents to which it is a party when executed and
delivered by such Obligor will constitute, a legal, valid and binding obligation
of such Obligor, enforceable against each Obligor in accordance with its terms,
except as such enforceability may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium or similar laws of general applicability affecting
the enforcement of creditors' rights and (b) the application of general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
SECTION 4.03. Governmental Approvals; No Conflicts. The Transactions
(a) do not require any consent or approval of, registration or filing with, or
any other action by, any Governmental Authority, except for (i) such as have
been obtained or made and are in full force and effect and (ii) filings and
recordings in respect of the Liens created pursuant to the Security Documents,
(b) will not violate any Requirement of Law applicable to the Company or any of
its Subsidiaries (other than any Immaterial Subsidiaries), (c) will not violate
or result in a default under any indenture, agreement or other instrument
binding upon the Company or any of its Subsidiaries (other than any Immaterial
Subsidiaries) or assets, or give rise to a right thereunder to require any
payment to be made by any such Person, and (d) except for the Liens
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created pursuant to the Security Documents, will not result in the creation or
imposition of any Lien on any asset of the Company or any of its Subsidiaries.
SECTION 4.04. Financial Condition; No Material Adverse Change.
(a) Financial Condition. The Company has heretofore furnished to the
Lenders its consolidated balance sheet and statements of income, stockholders'
equity and cash flows as of and for the fiscal year ended December 31, 2006,
reported on by PricewaterhouseCoopers LLP, independent public accountants. Such
financial statements present fairly, in all material respects, the financial
condition and results of operations and cash flows of the Company and its
Subsidiaries as of such date and for such period in accordance with GAAP.
(b) No Material Adverse Change. Since December 31, 2006, there has
been no material adverse change in the business, assets, operations or
condition, financial or otherwise, of the Company and its Subsidiaries, taken as
a whole (other than as a result of the consummation of the Bio Transaction).
SECTION 4.05. Properties.
(a) Property Generally. Each of the Company and its Subsidiaries
(other than any Immaterial Subsidiary) has good title to, or valid leasehold
interests in, all its real and personal property material to its business,
subject only to Liens permitted by Section 7.02 and except for minor defects in
title that do not interfere with its ability to conduct its business as
currently conducted or to utilize such properties for their intended purposes.
(b) Intellectual Property. Each of the Company and its Subsidiaries
(other than any Immaterial Subsidiary) owns, or is licensed to use, all
trademarks, tradenames, copyrights, patents and other intellectual property
material to its business, and the use thereof by the Company and its
Subsidiaries does not infringe upon the rights of any other Person, except for
any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 4.06. Litigation and Environmental Matters.
(a) Actions, Suits and Proceedings. There are no actions, suits or
proceedings by or before any arbitrator or Governmental Authority now pending
against or, to the knowledge of the Company, threatened against or affecting the
Company or any of its Subsidiaries (i) as to which there is a reasonable
possibility of an adverse determination and that, if adversely determined, could
reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect (other than the actions, suits and proceedings disclosed
in Schedule 4.06(a)) or (ii) that involve this Agreement, any other Loan
Document or the Transactions.
(b) Environmental Matters. Each of the Company and its Subsidiaries
has obtained all environmental, health and safety permits, licenses and other
authorizations required under all Environmental Laws to carry on its business as
now being or as proposed to be conducted, except to the extent failure to have
any such permit, license or authorization,
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individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect. Each of such permits, licenses and authorizations is
in full force and effect and each of the Company and its Subsidiaries is in
compliance with the terms and conditions thereof, and is also in compliance with
all other limitations, restrictions, conditions, standards, prohibitions,
requirements, obligations, schedules and timetables contained in any applicable
Environmental Law or in any regulation, code, plan, order, decree, judgment,
injunction, notice or demand letter issued, entered, promulgated or approved
thereunder, except to the extent failure to comply therewith, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse
Effect (other than the matters disclosed in Schedule 4.06(b)).
(c) Disclosed Matters. Since the date hereof, there has been no
change in the status of the actions, suits, proceedings and other matters
disclosed in Schedules 4.06(a) and 4.06(b) that, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse Effect.
SECTION 4.07. Compliance with Laws and Agreements. Each of the
Company and its Subsidiaries is in compliance with all laws, regulations and
orders of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. No Default has
occurred and is continuing.
SECTION 4.08. Investment Company Status. Neither the Company nor any
of its Subsidiaries is an "investment company" as defined in, or subject to
regulation under, the Investment Company Act of 1940.
SECTION 4.09. Taxes. Each of the Company and its Subsidiaries has
timely filed or caused to be filed all Tax returns and reports required to have
been filed and has paid or caused to be paid all Taxes required to have been
paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which such Person has set aside on its books
adequate reserves in accordance with GAAP or (b) to the extent that the failure
to do so could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 4.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the date
of the most recent financial statements reflecting such amounts, exceed by more
than $40,000,000 the fair market value of the assets of such Plan, and the
present value of all accumulated benefit obligations of all underfunded Plans
(based on the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed by more than $40,000,000 the fair
market value of the assets of all such underfunded Plans.
SECTION 4.11. Disclosure. The Company has disclosed to the Lenders
all agreements, instruments and corporate or other restrictions to which it or
any of its Subsidiaries
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is subject, and all other matters known to it, that, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse Effect.
None of the reports, financial statements, certificates or other information
furnished in writing by or on behalf of the Obligors to the Administrative Agent
or the Lenders in connection with the negotiation of this Agreement and the
other Loan Documents or delivered hereunder or thereunder (as modified or
supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that, with respect to projected financial
information, the Company represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time.
SECTION 4.12. Use of Credit. Neither the Company nor any of its
Subsidiaries is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose, whether immediate, incidental
or ultimate, of buying or carrying Margin Stock, and no part of the proceeds of
any extension of credit hereunder will be used to buy or carry any Margin Stock.
SECTION 4.13. Subsidiaries. Set forth in Schedule 4.13 is a complete
and correct list of all of the Subsidiaries of the Company as of the date
hereof, together with, for each Subsidiary, (i) the jurisdiction of organization
of such Subsidiary, (ii) each Person holding ownership interests in such
Subsidiary and (iii) the nature of the ownership interests held by each such
Person and the percentage of ownership of such Subsidiary represented by such
ownership interests. Except as disclosed in Schedule 4.13, (x) each of the
Company and its Subsidiaries owns, free and clear of Liens (other than Liens
created pursuant to the Security Documents and Permitted Encumbrances), and has
the unencumbered right to vote, all outstanding ownership interests in each
Subsidiary shown to be held by it in Schedule 4.13, (y) all of the issued and
outstanding Capital Stock of each Subsidiary organized as a corporation is
validly issued, fully paid and nonassessable and (z) there are no outstanding
Equity Rights with respect to each such Subsidiary.
SECTION 4.14. Labor Matters. There are no strikes or other labor
disputes against the Company or any of its Subsidiaries pending or, to the
knowledge of the Company, threatened, other than any thereof that (individually
or in the aggregate) could not reasonably be expected to result in a Material
Adverse Effect. Hours worked by and payment made to employees of the Company and
its Subsidiaries have not been in violation of the Fair Labor Standards Act or
any other applicable law, regulation or order of any Governmental Authority
dealing with such matters that (individually or in the aggregate) could
reasonably be expected to result in a Material Adverse Effect. All payments due
from the Company or any of its Subsidiaries on account of employee health and
welfare insurance that (individually or in the aggregate) could reasonably be
expected to result in a Material Adverse Effect if not paid have been paid or
accrued as a liability on the books of the Company or the relevant Subsidiary.
SECTION 4.15. Representations and Warranties Affecting Certain
Subsidiary Borrowers. In the case of each Subsidiary Borrower that is a Foreign
Subsidiary: (a) no authorizations, approvals or consents of, and no filings or
registrations with, any Governmental Authority are necessary for the execution,
delivery or performance by such Subsidiary Borrower
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of the Subsidiary Borrower Designation Letter to which it is a party (if
applicable), this Agreement or any other Loan Documents or for the validity or
enforceability of any thereof or for the Borrowings (if any) by or other
extensions of credit to such Subsidiary Borrower hereunder; (b) to ensure the
legality, validity, enforceability or admissibility in evidence of this
Agreement against such Subsidiary Borrower, it is not necessary that this
Agreement or any other document be filed or recorded with any Governmental
Authority or that any stamp or similar tax be paid on or in respect of this
Agreement, or any other document other than such filings and recordations that
have already been made and such stamp or similar taxes that have already been
paid; (c) each of this Agreement and the other Loan Documents to which such
Subsidiary Borrower is a party is in proper legal form under the law of the
jurisdiction of organization of each Subsidiary Borrower for the enforcement
thereof against each Subsidiary Borrower, and all formalities required in the
jurisdiction of organization of such Subsidiary Borrower for the validity and
enforceability of this Agreement and such other Loans Documents (including any
necessary registration, recording or filing with any court or other authority in
such jurisdiction) have been accomplished, and no Indemnified Taxes or Other
Taxes are required to be paid to such jurisdiction, or any political subdivision
thereof or therein, and no notarization is required, for the validity and
enforceability thereof; (d) such Subsidiary Borrower is subject to
administrative civil and commercial law with respect to its obligations under
the Loan Documents, and the execution, delivery and performance of the Loan
Documents by such Subsidiary Borrower constitute private and commercial acts
rather than public or governmental acts (to the extent that these concepts are
applicable under the law of its jurisdiction of organization); and (e) under the
laws of the jurisdiction in which such Subsidiary Borrower is located, such
Subsidiary Borrower is not entitled to immunity on the ground of sovereignty or
the like from the jurisdiction of any court or from any action, suit or
proceeding, or the service of process in connection therewith, arising under the
Loan Documents.
ARTICLE V
CONDITIONS
SECTION 5.01. Effective Date. The obligations of the Lenders to make
Loans and of the Issuing Lender to issue Letters of Credit hereunder shall not
become effective until the date on which the Administrative Agent shall have
received each of the following documents, each of which shall be satisfactory to
the Administrative Agent (and to the extent specified below, to each Lender) in
form and substance (or such condition shall have been waived in accordance with
Section 10.02):
(a) Executed Counterparts. From each party hereto either (i) a
counterpart of this Agreement signed on behalf of such party or (ii)
written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page to this
Agreement) that such party has signed a counterpart of this Agreement.
(b) Opinion of Counsel to the Obligors. An opinion, addressed to the
Administrative Agent and the Lenders and dated the Effective Date, of (i)
▇▇▇▇▇ ▇▇▇▇▇▇,
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Esq., General Counsel of the Company, substantially in the form of Exhibit
▇-▇, (▇▇) ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special New York counsel to the
Obligors, substantially in the form of Exhibit D-2 and (iii) ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ & Co., Bahamas counsel to the Company, in form and substance
satisfactory to the Administrative Agent, in form and substance
satisfactory to the Administrative Agent and, in each case covering such
other matters relating to the Company, the other Obligors, this Agreement
or the Transactions as the Required Lenders shall reasonably request (and
the Company hereby instructs such counsel to deliver such opinion to the
Lenders and the Administrative Agent).
(c) Opinion of Special New York Counsel to JPMCB. An opinion, dated
the Effective Date, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special New
York counsel to JPMCB, substantially in the form of Exhibit E (and JPMCB
hereby instructs such counsel to deliver such opinion to the Lenders).
(d) Corporate Documents. Such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the
organization, existence and good standing of each Obligor, the
authorization of the Transactions and any other legal matters relating to
the Obligors, this Agreement or the Transactions, all in form and
substance satisfactory to the Administrative Agent and its counsel.
(e) Officer's Certificate. A certificate, dated the Effective Date
and signed by the President, a Vice President or a Financial Officer of
the Company, confirming compliance with the conditions set forth in the
lettered clauses of the first sentence of Section 5.02.
(f) Pledge Agreement. A Pledge Agreement in respect of 66% of the
capital stock of Cambrex Bahamas, Inc., in substantially the form of
Exhibit B, duly executed and delivered by the Company and the
Administrative Agent, together with the certificate in respect of such
capital stock accompanied by an undated stock power executed in blank. In
addition, the Company shall have taken such other action as the
Administrative Agent shall have requested in order to perfect the security
interests created pursuant to such Pledge Agreement.
(g) Financial Information. (i) A pro forma consolidated balance
sheet of the Company as of December 31, 2006, adjusted to give pro forma
effect to the consummation of the Bio Transaction, the payment of the
Special Dividend (with up to $150,000,000 to be funded by Loans hereunder)
and the repayment of loans under, and the termination of, the Prior Credit
Agreement; and (ii) a certificate of the Company, executed by its chief
financial officer, confirming that, based on then available unaudited
financial statements prepared in good faith by the Company, pro forma
Consolidated EBITDA for (A) the period of four consecutive fiscal quarters
ending December 31, 2006 (assuming corporate overhead expense of
$17,500,000 (including $1,000,000 of depreciation) for such period,
adjusted to give effect to the Bio Transaction) will be at least
$49,000,000 and (B) for the fiscal quarter ending March 31, 2007 (it being
understood that, for purposes of such calculation, corporate overhead
expense will be deemed to be the sum of (i) the actual aggregate amount of
corporate overhead expense
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for the period from and including February 7, 2007 through March 31, 2007
plus (ii) an assumed amount of corporate overhead expense of $1,800,000
(of which $103,000 is assumed to be depreciation)) will be at least
$10,000,000.
(h) Other Documents. Such other documents as the Administrative
Agent or special New York counsel to JPMCB may reasonably request.
The obligation of each Lender to make its initial extension of
credit hereunder is also subject to the payment by the Company of such fees as
the Company shall have agreed to pay to any Lender or the Administrative Agent
in connection herewith, including the reasonable fees and expenses of Milbank,
Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special New York counsel to JPMCB, in connection
with the negotiation, preparation, execution and delivery of this Agreement and
the other Loan Documents and the extensions of credit hereunder (to the extent
that statements for such fees and expenses have been delivered to the Company).
The Administrative Agent shall notify the Company and the Lenders of the
Effective Date, and such notice shall be conclusive and binding.
SECTION 5.02. Each Credit Event. The obligation of each Lender to
make any Loan, and of the Issuing Lender to issue, amend, renew or extend any
Letter of Credit, is additionally subject to the satisfaction of the following
conditions:
(a) each of the representations and warranties made by the Company
in this Agreement, and by each Obligor in each of the other Loan Documents
to which it is a party, shall be true and complete on and as of the date
of such Loan or the date of issuance, amendment, renewal or extension of
such Letter of Credit, as applicable, with the same force and effect as if
made on and as of such date (or, if any such representation or warranty is
expressly stated to have been made as of a specific date, as of such
specific date); and
(b) at the time of and immediately after giving effect to such Loan
or the issuance, amendment, renewal or extension of such Letter of Credit,
as applicable, no Default shall have occurred and be continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Company on the date thereof as to the matters specified in the preceding
sentence.
ARTICLE VI
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all other amounts owing hereunder
shall have been paid
in full and all
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Letters of Credit shall have expired or terminated and all LC Disbursements
shall have been reimbursed, the Company covenants and agrees with the Lenders
that:
SECTION 6.01. Financial Statements and Other Information. The
Company will furnish to the Administrative Agent (and upon receipt thereof the
Administrative Agent will promptly furnish to each Lender):
(a) within 100 days after the end of each fiscal year of the
Company, the audited consolidated balance sheet and related statements of
operations, stockholders' equity and cash flows of the Company and its
Subsidiaries as of the end of and for such fiscal year, setting forth in
each case in comparative form the figures for (or, in the case of the
balance sheet, as of the end of) the previous fiscal year, all reported on
by PricewaterhouseCoopers LLP or other independent public accountants of
recognized national standing (without a "going concern" or like
qualification or exception and without any qualification or exception as
to the scope of such audit) to the effect that such consolidated financial
statements present fairly in all material respects the financial condition
and results of operations of the Company and its Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied;
(b) within 60 days after the end of each of the first three fiscal
quarters of each fiscal year of the Company, the consolidated balance
sheet and related statements of operations, stockholders' equity and cash
flows of the Company and its Subsidiaries as of the end of and for such
fiscal quarter and the then elapsed portion of such fiscal year, setting
forth in each case in comparative form the figures for (or, in the case of
the balance sheet, as of the end of) the corresponding period or periods
of the previous fiscal year, all certified by a Financial Officer of the
Company as presenting fairly in all material respects the financial
condition and results of operations of the Company and its Subsidiaries on
a consolidated basis in accordance with GAAP consistently applied, subject
to normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) of this Section, a certificate of a Financial Officer
(i) certifying as to whether a Default has occurred and, if a Default has
occurred, specifying the details thereof and any action taken or proposed
to be taken with respect thereto, (ii) setting forth reasonably detailed
calculations demonstrating compliance with Sections 7.01, 7.02, 7.05, 7.09
and 7.10, (iii) stating whether any change in GAAP or in the application
thereof has occurred since the date of the audited financial statements
referred to in Section 4.04 and, if any such change has occurred,
specifying the effect of such change on the financial statements
accompanying such certificate and (iv) setting forth the name of any
Subsidiary formed or acquired during the three-month period ending on the
last day of the relevant fiscal quarter or fiscal year and its
jurisdiction of organization;
(d) concurrently with any delivery of financial statements under
clause (a) of this Section, a certificate of the accounting firm that
reported on such financial statements stating whether they obtained
knowledge during the course of their examination of such
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financial statements of any Default (which certificate may be limited to
the extent required by accounting rules or guidelines);
(e) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
the Company or any of its Subsidiaries with the Securities and Exchange
Commission, or any Governmental Authority succeeding to any or all of the
functions of said Commission, or with any national securities exchange, or
distributed by the Company to its shareholders generally; and
(f) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Company or any of its Subsidiaries, or compliance with the terms of this
Agreement and the other Loan Documents, as the Administrative Agent or any
Lender (through the Administrative Agent) may reasonably request.
SECTION 6.02. Notices of Material Events. The Company will furnish
to the Administrative Agent (and upon receipt thereof the Administrative Agent
will promptly furnish to each Lender) prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by
or before any arbitrator or Governmental Authority against or affecting
the Company or any of its Affiliates that, if adversely determined, could
reasonably be expected to result in liability of the Company and its
Subsidiaries in an aggregate amount exceeding $15,000,000;
(c) the occurrence of any ERISA Event that, alone or together with
any other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Company and its Subsidiaries in an aggregate
amount exceeding $15,000,000;
(d) the assertion of any environmental matter by any Person against,
or with respect to the activities of, the Company or any of its
Subsidiaries and any violation of or non-compliance with any Environmental
Laws or any permits, licenses or authorizations, other than any
environmental matter or alleged violation that could not reasonably be
expected to (either individually or in the aggregate) result in liability
of the Company and its Subsidiaries in an aggregate amount exceeding
$15,000,000; and
(e) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Company setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
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SECTION 6.03. Existence; Conduct of Business. The Company will, and
will cause each of its Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of its business; provided that the foregoing shall not prohibit
any merger, consolidation, liquidation or dissolution permitted under Section
7.03.
SECTION 6.04. Payment of Obligations. The Company will, and will
cause each of its Subsidiaries to, pay its obligations, including tax
liabilities, before the same shall become delinquent or in default, except where
(a) the validity or amount thereof is being contested in good faith by
appropriate proceedings, (b) the Company or such Subsidiary has set aside on its
books adequate reserves with respect thereto in accordance with GAAP and (c) the
failure to make payment pending such contest could not reasonably be expected to
result in a Material Adverse Effect.
SECTION 6.05. Maintenance of Properties; Insurance. The Company
will, and will cause each of its Subsidiaries to, (a) keep and maintain all
property material to the conduct of its business in good working order and
condition, ordinary wear and tear excepted, and (b) maintain, with financially
sound and reputable insurance companies, insurance in such amounts and against
such risks as are customarily maintained by companies engaged in the same or
similar businesses operating in the same or similar locations.
SECTION 6.06. Books and Records; Inspection Rights. The Company
will, and will cause each of its Subsidiaries to, keep proper books of record
and account in which full, true and correct entries in accordance with GAAP and
all Requirements of Law are made of all dealings and transactions in relation to
its business and activities. The Company will, and will cause each of its
Subsidiaries to (i) not more than once per any fiscal quarter for any Lender or
the Administrative Agent (unless any Event of Default shall have occurred and be
continuing), permit any representatives designated by the Administrative Agent
or any Lender, upon reasonable prior notice, to visit and inspect its
properties, to examine and (if doing so shall be reasonably related to this
Agreement) make extracts from its books and records, and to discuss its affairs,
finances and condition with its officers and independent accountants, all at
such reasonable times and as often as reasonably requested and (ii) not more
than once per any fiscal quarter (unless any Event of Default shall have
occurred and be continuing), permit the Administrative Agent or any
representatives designated by the Administrative Agent to conduct a
comprehensive field audit of its books, records, properties and assets.
SECTION 6.07. Compliance with Laws. The Company will, and will cause
each of its Subsidiaries to, comply with all laws, rules, regulations and orders
of any Governmental Authority (including, without limitation, Environmental
Laws) applicable to it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
SECTION 6.08. Use of Proceeds and Letters of Credit. The proceeds of
the Loans will be used for the general corporate purposes of the Company and its
Subsidiaries, including to pay fees and expenses payable in connection herewith,
and to fund up to $150,000,000 of the Special Dividend. No part of the proceeds
of any Loan and no Letters of
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Credit will be used, whether directly or indirectly, for any purpose that
entails a violation of any of the regulations of the Board, including, without
limitation, Regulations T, U and X. Letters of Credit will be issued only for
general corporate purposes of the Company and its Subsidiaries.
SECTION 6.09. Certain Obligations Respecting Subsidiaries; Further
Assurances.
(a) Domestic Subsidiary Guarantors. The Company will take such
action, and will cause each of its Subsidiaries to take such action, from time
to time as shall be necessary to ensure that all Domestic Subsidiaries of the
Company (other than an Immaterial Domestic Subsidiary) are "Subsidiary
Guarantors" hereunder. Without limiting the generality of the foregoing, in the
event that the Company or any of its Subsidiaries shall form or acquire any new
Domestic Subsidiary (other than an Immaterial Domestic Subsidiary) after the
Effective Date, the Company and its Subsidiaries will cause such new Domestic
Subsidiary, promptly but in no event later than 45 days following the formation
or acquisition of such new Domestic Subsidiary, to
(i) become a "Subsidiary Guarantor" hereunder, pursuant to a
Guarantee Assumption Agreement, and
(ii) deliver such proof of corporate action, incumbency of officers,
opinions of counsel and other documents as is consistent with those
delivered by each Obligor pursuant to Section 5.01 on the Effective Date
or as the Administrative Agent shall have requested.
Notwithstanding anything herein to the contrary; (A) if at any time the
aggregate assets or revenues of Domestic Subsidiaries that are not Subsidiary
Guarantors hereunder exceed $20,000,000 (as determined (in the case of assets)
as of the end of and (in the case of revenues) for the most recently completed
fiscal quarter or fiscal year of the Company), the Company will cause one or
more Domestic Subsidiaries that are not then Subsidiary Guarantors to become a
Subsidiary Guarantor hereunder pursuant to this Section 6.09(a) so that such
condition no longer exists, promptly but in no event later than 45 days
following the delivery of the financial statements of the Company for such
fiscal quarter or fiscal year and (B) if at any time any Domestic Subsidiary
that is not a Subsidiary Guarantor hereunder shall no longer be an Immaterial
Domestic Subsidiary (as determined (in the case of assets) as of the end of and
(in the case of revenues) for the most recently completed fiscal quarter or
fiscal year of the Company), the Company will cause such Domestic Subsidiary to
become a Subsidiary Guarantor pursuant to this Section 6.09(a), promptly but in
no event later than 45 days following the delivery of the financial statements
of the Company for such fiscal quarter or fiscal year.
(b) Foreign Subsidiaries. The Company will take such action, and
will cause each of its Domestic Subsidiaries to take such action, from time to
time as shall be necessary to ensure that (i) 66% of the voting Capital Stock of
any First-Tier Foreign Subsidiary (other than an Immaterial Foreign Subsidiary)
and (ii) so long as the pledge thereof could not have any adverse tax
consequences for the Company, 100% of all other Capital Stock of such Foreign
Subsidiary shall be pledged in favor of the Administrative Agent (or a sub-agent
thereof) for the
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benefit of the Lenders, pursuant to a Pledge Agreement. Without limiting the
generality of the foregoing, in the event that the Company or any of its
Domestic Subsidiaries shall form or acquire any new First-Tier Foreign
Subsidiary (other than an Immaterial Foreign Subsidiary) after the Effective
Date, the Company will or cause such Domestic Subsidiary to, comply with the
requirements of this Section 6.09(b) promptly but in no event later than 45 days
following the formation or acquisition of such Foreign Subsidiary, and in that
connection the Company or such Domestic Subsidiary, as the case may be, shall
deliver such proof of corporate action, incumbency of officers, opinions of
counsel and other documents as is consistent with those delivered by each
Obligor pursuant to Section 5.01 on the Effective Date or as the Administrative
Agent shall have requested. Notwithstanding anything herein to the contrary; (A)
if at any time the aggregate assets or revenues of First-Tier Foreign
Subsidiaries the shares of Capital Stock of which have not been pledged pursuant
to this Agreement exceed $20,000,000 (as determined (in the case of assets) as
of the end of and (in the case of revenues) for the most recently completed
fiscal quarter or fiscal year of the Company), the Company will, or cause the
relevant Domestic Subsidiary to, pledge the Capital Stock of one or more such
First-Tier Foreign Subsidiaries pursuant to this Section 6.09(b) so that such
condition no longer exists, promptly but in no event later than 45 days
following the delivery of the financial statements of the Company for such
fiscal quarter or fiscal year and (B) if at any time any First-Tier Foreign
Subsidiary (the capital stock of which has not been pledged pursuant to this
Agreement) shall no longer be an Immaterial Foreign Subsidiary (as determined
(in the case of assets) as of the end of and (in the case of revenues) for the
most recently completed fiscal quarter or fiscal year of the Company), the
Company will, or cause the relevant Domestic Subsidiary to, comply with the
requirements of this Section 6.09(b) with respect to the Capital Stock of such
First-Tier Foreign Subsidiary, promptly but in no event later than 45 days
following the delivery of the financial statements of the Company for such
fiscal quarter or fiscal year.
(c) Further Assurances. The Company will, and will cause each of its
Subsidiaries to, take such action from time to time as shall reasonably be
requested by the Administrative Agent to effectuate the purposes and objectives
of this Agreement.
ARTICLE VII
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal
of and interest on each Loan and all other amounts owing hereunder have been
paid in full and all Letters of Credit have expired or terminated and all LC
Disbursements shall have been reimbursed, the Company covenants and agrees with
the Lenders that:
SECTION 7.01. Indebtedness. The Company will not, nor will it permit
any of its Subsidiaries to create, incur, assume or permit to exist any
Indebtedness, except:
(a) Indebtedness created hereunder and under the other Loan
Documents;
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(b) Indebtedness existing on the date hereof and listed in Schedule
7.01 and extensions, renewals and replacements of any such Indebtedness
that do not increase the outstanding principal amount thereof;
(c) Indebtedness of the Company owing to any Subsidiary or of any
Subsidiary owing to the Company or another Subsidiary;
(d) Guarantees by the Company or any Subsidiary of Indebtedness of
the Company or any other Subsidiary;
(e) Indebtedness of any Subsidiary incurred to finance the
acquisition, construction or improvement of any fixed or capital assets,
including Capital Lease Obligations and any Indebtedness assumed in
connection with the acquisition of any such assets or secured by a Lien on
any such assets prior to the acquisition thereof, and extensions, renewals
and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof; provided that (i) such Indebtedness
is incurred prior to or within 90 days after such acquisition or the
completion of such construction or improvement and (ii) the aggregate
principal amount of Indebtedness permitted by this clause (e) shall not
exceed $25,000,000 at any time outstanding;
(f) Indebtedness of any Person that becomes a Subsidiary after the
date hereof and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount
thereof; provided that such Indebtedness exists at the time such Person
becomes a Subsidiary and is not created in contemplation of or in
connection with such Person becoming a Subsidiary;
(g) Indebtedness of the Company or any Subsidiary as an account
party or applicant in respect of letters of credit in an aggregate face
amount not exceeding $10,000,000 (or its equivalent in other currencies)
at any time outstanding;
(h) Indebtedness of the Company or any Subsidiary arising in respect
of Permitted Securitizations;
(i) Priority Indebtedness not exceeding $10,000,000 in the aggregate
at any time outstanding;
(j) Indebtedness under Hedging Agreements entered into by the
Company or any Subsidiary Borrower in the ordinary course of business and
not for speculative purposes; and
(k) other unsecured Indebtedness not exceeding $5,000,000 in the
aggregate at any time outstanding.
SECTION 7.02. Liens. The Company will not, nor will it permit any of
its Subsidiaries to, create, incur, assume or permit to exist any Lien on any
property or asset now owned or hereafter acquired by it, or assign or sell any
income or revenues (including accounts receivable) or rights in respect of any
thereof, except:
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(a) Liens created hereunder or under any of the other Loan
Documents;
(b) Permitted Encumbrances;
(c) Liens existing on the date hereof and listed in Schedule 7.02,
and extensions, renewals and replacements thereof that do not increase the
outstanding principal amount secured thereby, provided that (i) no such
Lien shall extend to any other property or asset of the Company or any of
its Subsidiaries and (ii) any such Lien shall secure only those
obligations which it secures on the date hereof;
(d) any Lien existing on any property or asset prior to the
acquisition thereof by the Company or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the date
hereof prior to the time such Person becomes a Subsidiary; provided that
(i) such Lien is not created in contemplation of or in connection with
such acquisition or such Person becoming a Subsidiary, as the case may be,
(ii) such Lien shall not apply to any other property or assets of the
Company or any Subsidiary and (iii) such Lien shall secure only those
obligations which it secures on the date of such acquisition or the date
such Person becomes a Subsidiary, as the case may be, and extensions,
renewals and replacements thereof that do not increase the outstanding
principal amount thereof;
(e) Liens on fixed or capital assets acquired, constructed or
improved by the Company or any Subsidiary; provided that (i) such security
interests secure (x) Indebtedness of the Company permitted by Section
7.09(b) and (y) Indebtedness of the Subsidiaries permitted by clause (e)
of Section 7.01, (ii) such security interests and the Indebtedness secured
thereby are incurred prior to or within 90 days after such acquisition or
the completion of such construction or improvement, (iii) the Indebtedness
secured thereby does not exceed 100% of the cost of acquiring,
constructing or improving such fixed or capital assets and (iv) such
security interests shall not apply to any other property or assets of the
Company or any Subsidiary;
(f) Liens arising in connection with Permitted Securitizations;
(g) Liens securing Priority Indebtedness permitted under Section
7.01(i);
(h) Liens securing obligations under Hedging Agreements referred to
in Section 7.01(j); and
(i) Liens incurred by the Company or any of its Subsidiaries, in
addition to Liens incurred under the foregoing clauses (a) through (h) of
this Section, provided that neither (i) the aggregate outstanding
principal amount of the obligations secured thereby nor (ii) the aggregate
fair market value (determined as of the date such Lien is incurred) of the
property subject thereto shall exceed (as to the Company and all
Subsidiaries) $5,000,000 at any time outstanding.
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SECTION 7.03. Mergers, Consolidations, etc.; Changes in Lines of
Business.
(a) The Company will not, nor will it permit any of its Subsidiaries
to, merge or consolidate or amalgamate with any other Person, or liquidate, wind
up or dissolve itself (or suffer any liquidation or dissolution) or take any
other action having a similar effect, except:
(i) any Subsidiary may merge into the Company in a transaction in
which the Company is the surviving corporation;
(ii) any Subsidiary may merge into another Subsidiary;
(iii) any Subsidiary may liquidate or dissolve if the Company
determines in good faith that such liquidation or dissolution is in the
best interests of the Company and not materially disadvantageous to the
Lenders; and
(iv) the Company may merge with any Person (other than a Subsidiary)
in a transaction in which the Company is the surviving corporation;
provided that (A) prior to the consummation of any such merger, the
Company has provided the Administrative Agent with pro forma financial
statements demonstrating compliance by the Company with Section 7.09,
together with a certificate of the chief financial officer of the Company
certifying compliance by the Company therewith after giving effect to such
merger, and the other requirements of this Section and (B) both
immediately prior to such merger and after giving effect thereto, no
Default shall have occurred and be continuing.
(b) The Company will not, and will not permit any of its
Subsidiaries to, engage in any business if, as a result, the general nature of
the business in which the Company and its Subsidiaries taken as a whole would
then be engaged would be substantially changed from the general nature of the
business in which the Company and its Subsidiaries taken as a whole are engaged
as of the date hereof including the business of research and development,
manufacturing, sales or marketing of drugs or medical devices (including the
conduct of clinical trials and the application for, and the processing of,
governmental approvals related thereto).
SECTION 7.04. Disposition of Assets. The Company will not, nor will
it permit any of its Subsidiaries to, make any Disposition, except:
(a) sales of inventory in the ordinary course of business upon
customary credit terms;
(b) any Disposition of scrap or obsolete property, materials or
equipment;
(c) any Disposition of property of any Subsidiary to the Company or
any other Subsidiary; and
(d) Dispositions of property having an aggregate book value
(disregarding any write-downs of such book value other than ordinary
depreciation and amortization) not
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exceeding $20,000,000, provided that, both immediately before such
transaction and after giving effect thereto, no Default shall have
occurred and be continuing.
SECTION 7.05. Investments and Acquisitions. (a) The Company will
not, nor will it permit any of its Subsidiaries to, make any Investments,
except:
(i) extensions of trade credit made in the ordinary course of
business on customary credit terms and commission, travel and similar
advances (having a tenor not exceeding 365 days) made to its officers and
employees in the ordinary course of business;
(ii) Investments outstanding on the date hereof and listed in
Schedule 7.05;
(iii) operating deposit accounts with banks;
(iv) Investments in cash and Permitted Investments;
(v) Investments by the Company and its Subsidiaries (other than any
Receivables Subsidiary) in the Company and its Subsidiaries or in respect
of Indebtedness or other obligations of the Company or any Subsidiary
(including, without limitation, Subsidiaries formed or organized after the
date hereof);
(vi) Investments consisting of Indebtedness permitted under Section
7.01(c) or (d) or Indebtedness related to Letters of Credit;
(vii) Hedging Agreements entered into in the ordinary course of
business to hedge or mitigate risks to which the Company or any of its
Subsidiaries is exposed in the conduct of its business or the management
of its liabilities;
(viii) Investments in Capital Stock of the Company which is held by
the Company as treasury stock and is restored to unissued status or is
eliminated from authorized shares, or options in respect thereof;
(ix) Investments constituting capital expenditures;
(x) Investments consisting of security deposits with utilities and
other like Persons, and Investments in respect of Guarantees of, or
contingent obligations with respect to, indemnification and contribution
agreements, "take or pay" or similar agreements, surety and appeal bonds,
performance bonds and other obligations of a like nature and contracts for
the purchase or use of equipment, inventory and supplies required by the
Company and its Subsidiaries, in each case made in the ordinary course of
business or in connection with other transactions permitted hereunder;
(xi) accommodation guarantees for the benefit of trade creditors of
the Company or any of its Subsidiaries in the ordinary course of business;
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(xii) Guarantees of collectibility in respect of accounts receivable
or notes receivable up to face value;
(xiii) Investments in connection with any Acquisition (subject to
compliance with the requirements of Section 7.05(b)) or any Disposition
(subject to compliance with the requirements of Section 7.04);
(xiv) Indebtedness of any Person which is the purchaser in
connection with any Disposition permitted hereunder that is issued to the
Company or any Subsidiary as consideration in whole or in part in respect
of the purchase price thereof; and
(xv) Investments in any Person (including Capital Stock or any debt
securities convertible into Capital Stock) that is not, and as a result of
such Investment does not become, a Subsidiary in an aggregate amount not
exceeding $15,000,000 (or the equivalent thereof in any other currency),
provided that such Person is engaged in a line of business permitted under
Section 7.03(b).
(b) The Company will not, nor will it permit any of its Subsidiaries
to, make any Acquisition with respect to which the Purchase Price paid by the
Company and its Subsidiaries exceeds $25,000,000 (or the equivalent thereof in
any other currency), unless (i) such Acquisition, if the Acquired Entity is a
publicly held corporation, shall have been approved by the board of directors of
such Acquired Entity, (ii) after giving effect to any such Acquisition of
Capital Stock, the Acquired Entity becomes a direct or indirect Subsidiary of
the Company, (iii) the Acquired Entity is engaged in a line of business
permitted under Section 7.03(b), or is otherwise acceptable to the Required
Lenders, (iv) both immediately prior to such Acquisition and after giving effect
thereto, no Default shall have occurred and be continuing, and (v) not less than
three Business Days prior to the consummation of such Acquisition, the Company
has furnished to the Administrative Agent (x) pro forma financial statements
demonstrating compliance with Section 7.09 after giving effect to such
Acquisition and (y) a certificate of the chief financial officer of the Company
certifying compliance with this Section 7.05(b), after giving effect to such
Acquisition.
SECTION 7.06. Restricted Payments. The Company will not, nor will it
permit any of its Subsidiaries to, declare or make, or agree to pay or make,
directly or indirectly, any Restricted Payment; provided that:
(a) the Company may declare and pay dividends with respect to its
Capital Stock payable solely in additional shares of its Capital Stock;
(b) the Company may declare and pay within 30 days after the
Effective Date a special one-time cash dividend or distribution to its
shareholders (the "Special Dividend") in an aggregate amount not exceeding
the sum of (i) the cash proceeds received by the Company and its
Subsidiaries from the Bio Transaction (after deducting therefrom the
amount of all related transaction costs payable in connection with the Bio
Transaction, any change of control payments, if any, payable to officers
of the Company following the consummation of the Bio Transaction, and all
amounts paid under the Prior
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Credit Agreement in connection with the termination and pay-off thereof)
plus (ii) $150,000,000 (but only to the extent funded by the proceeds of
Loans hereunder) plus (iii) an amount up to $30,000,000 from existing cash
deposits of the Company or any of its Subsidiaries (net of United States
federal income tax liabilities (if any) resulting from the transfer of all
or any portion of such cash deposits to the United States, as reasonably
estimated by the Company); provided that, both immediately prior to such
declaration and such payment and after giving effect thereto, no Default
shall have occurred and be continuing; and
(c) the Company may make, pay, declare or authorize any other
Restricted Payment if, both immediately before and after giving effect to
such Restricted Payment, no Default shall have occurred and be continuing.
Nothing herein shall be deemed to prohibit the making of any Restricted Payment
by any Subsidiary to the Company or to any of its shareholders.
SECTION 7.07. Transactions with Affiliates. The Company will not,
nor will it permit any of its Subsidiaries to, sell, lease or otherwise transfer
any property or assets to, or purchase, lease or otherwise acquire any property
or assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (a) transactions in the ordinary course of business at prices
and on terms and conditions not less favorable to the Company or such Subsidiary
than could be obtained on an arm's-length basis from unrelated third parties,
(b) transactions between or among the Company and its Subsidiaries not involving
any other Affiliate and (c) any Restricted Payment permitted by Section 7.06.
SECTION 7.08. Restrictive Agreements. The Company will not, and will
not permit any of its Subsidiaries to, directly or indirectly, enter into, incur
or permit to exist any agreement or other consensual arrangement that prohibits,
restricts or imposes any condition upon the ability of any Subsidiary to pay
dividends or other distributions with respect to any shares of its Capital Stock
or to make or repay loans or advances to the Company or any other Subsidiary or
to guarantee Indebtedness of the Company or any other Subsidiary; provided that
the foregoing shall not apply to (a) restrictions and conditions imposed by law
(including any Requirement of Law) or by this Agreement, (b) restrictions and
conditions existing on the date hereof and identified in Schedule 7.08 (and any
extension or renewal of, or any amendment or modification to, any such
restriction or condition that does not expand in any material respect the scope
thereof) and (c) customary restrictions and conditions contained in agreements
relating to the sale of a Subsidiary pending such sale, provided that such
restrictions and conditions apply only to the Subsidiary that is to be sold and
such sale is permitted hereunder.
SECTION 7.09. Certain Financial Covenants.
(a) Interest Coverage Ratio. The Company will not permit the
Interest Coverage Ratio to be less than 3.00 to 1.0 at any time.
(b) Leverage Ratio. The Company will not permit the Leverage Ratio
to be greater than 3.50:1.0 at any time.
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SECTION 7.10. Sale and Leaseback Transactions. The Company will not,
nor will it permit any of its Subsidiaries to, become or remain liable in any
way, whether directly or by assignment or as a guarantor or other contingent
obligor, for the obligations of the lessee or user under any lease or contract
for the use of any real or personal property if such property was owned by the
Company or any of its Subsidiaries for more than 90 days prior to the date such
Person became liable for such obligation and has been or is to be sold or
transferred to any other Person and was, is or will be used by the Company or
any such Subsidiary for substantially the same purpose as such property was used
by the Company or such Subsidiary prior to such sale or transfer or to enter
into any Synthetic Lease, except to the extent any such transaction is permitted
under Section 7.01(i).
ARTICLE VIII
EVENTS OF DEFAULT
If any of the following events ("Events of Default") shall occur:
(a) any Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or otherwise;
(b) any Borrower shall fail to pay any interest on any Loan or any
fee or any other amount (other than an amount referred to in clause (a) of
this Article) payable under this Agreement or under any other Loan
Document, when and as the same shall become due and payable, and such
failure shall continue unremedied for a period of five or more Business
Days;
(c) any representation or warranty made or deemed made by or on
behalf of any Obligor in or in connection with this Agreement or any other
Loan Document or any amendment or modification hereof or thereof, or in
any report, certificate, financial statement or other document furnished
pursuant to or in connection with this Agreement or any other Loan
Document or any amendment or modification hereof or thereof, shall prove
to have been incorrect in any material respect when made or deemed made or
furnished;
(d) the Company shall fail to observe or perform any covenant,
condition or agreement contained in Section 6.02(a), 6.03 (with respect to
the Company's existence) or 6.08 (other than the second sentence thereof)
or in Article VII; or any Guarantor shall default in the performance of
any of its obligations contained herein; or the Company shall fail to
observe or perform any covenant, condition or agreement contained in
Section 6.09 and such failure shall continue unremedied for a period of 15
or more days;
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(e) any Obligor shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those
specified in clause (a), (b) or (d) of this Article) or any other Loan
Document and such failure shall continue unremedied for a period of 30 or
more days after written notice thereof from the Administrative Agent
(given at the request of any Lender) to the Company;
(f) the Company or any of its Subsidiaries (other than any
Immaterial Subsidiary) shall fail to make any payment (whether of
principal or interest and regardless of amount) in respect of any Material
Indebtedness, when and as the same shall become due and payable (after
taking into account any applicable grace period);
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables
or permits (after taking into account any applicable grace period) the
holder or holders of any Material Indebtedness or any trustee or agent on
its or their behalf to cause any Material Indebtedness to become due, or
to require the prepayment, repurchase, redemption or defeasance thereof,
prior to its scheduled maturity; provided that this clause (g) shall not
apply to secured Indebtedness that becomes due as a result of the
voluntary sale or transfer of the property or assets securing such
Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of the Company or any of its Subsidiaries (other than
any Immaterial Subsidiary) or its debts, or of all or a substantial part
of its assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator
or similar official for the Company or any such Subsidiary or for all or a
substantial part of its assets, and, in any such case, such proceeding or
petition shall continue undismissed for a period of 60 or more days or an
order or decree approving or ordering any of the foregoing shall be
entered;
(i) the Company or any of its Subsidiaries (other than any
Immaterial Subsidiary) shall (i) voluntarily commence any proceeding or
file any petition seeking liquidation, reorganization or other relief
under any Federal, state or foreign bankruptcy, insolvency, receivership
or similar law now or hereafter in effect, (ii) consent to the institution
of, or fail to contest in a timely and appropriate manner, any proceeding
or petition described in clause (h) of this Article, (iii) apply for or
consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Company or any such
Subsidiary or for all or a substantial part of its assets, (iv) file an
answer admitting the material allegations of a petition filed against it
in any such proceeding, (v) make a general assignment for the benefit of
creditors or (vi) take any action for the purpose of effecting any of the
foregoing;
(j) the Company or any of its Subsidiaries (other than any
Immaterial Subsidiary) shall become unable, admit in writing its inability
or fail generally to pay its debts as they become due;
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(k) one or more judgments for the payment of money in an aggregate
amount in excess of $10,000,000 shall be rendered against the Company or
any of its Subsidiaries or any combination thereof and the same shall
remain undischarged for a period of 30 consecutive days during which such
judgment shall not be effectively bonded or stayed, or any action shall be
legally taken by a judgment creditor to attach or levy upon any assets of
the Company or any of its Subsidiaries to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that
have occurred, could reasonably be expected to result in liability of the
Company and its Subsidiaries in an aggregate amount exceeding $20,000,000;
(m) a Change in Control shall occur; or
(n) any Lien created by the Security Documents shall at any time not
constitute a valid and perfected Lien on the collateral intended to be
covered thereby (to the extent perfection by filing, registration,
recordation or possession is required herein or therein) in favor of the
Administrative Agent and for the benefit of the Lenders, free and clear of
all other Liens (other than Permitted Encumbrances) or, except for
expiration in accordance with its terms, any of the Security Documents
shall for whatever reason be terminated or cease to be in full force and
effect, or the enforceability of any Loan Document shall be contested by
any Obligor party thereto;
then, and in every such event (other than an event with respect to any Obligor
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Company, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Obligors accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by each Obligor; and in case of any
event with respect to any Obligor described in clause (h) or (i) of this
Article, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Obligors accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by each Obligor.
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ARTICLE IX
THE ADMINISTRATIVE AGENT
Each of the Lenders and the Issuing Lender hereby irrevocably
appoints the Administrative Agent as its agent hereunder and under the other
Loan Documents and authorizes the Administrative Agent to take such actions on
its behalf and to exercise such powers as are delegated to the Administrative
Agent by the terms hereof or thereof, together with such actions and powers as
are reasonably incidental thereto. Without limiting the foregoing, each Lender
hereby authorizes and directs the Administrative Agent to execute and deliver
the Pledge Agreements (and/or any amendments thereto) contemplated by Section
5.01(f) and, if applicable, Section 6.09(b) and/or to take such other steps with
respect to the pledge of Capital Stock of any Foreign Subsidiary thereunder as
the Administrative Agent shall reasonably determine (and the Lenders hereby
approve and ratify the terms of each such Pledge Agreement).
The Person serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and
may exercise the same as though it were not the Administrative Agent, and such
Person and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of business with the Company or any Subsidiary or other
Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall not
be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing, (b) the Administrative Agent shall not
have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or
by the other Loan Documents that the Administrative Agent is required to
exercise in writing by the Required Lenders, and (c) except as expressly set
forth herein and in the other Loan Documents, the Administrative Agent shall not
have any duty to disclose, and shall not be liable for the failure to disclose,
any information relating to the Company or any of its Subsidiaries that is
communicated to or obtained by the bank serving as Administrative Agent or any
of its Affiliates in any capacity. The Administrative Agent shall not be liable
for any action taken or not taken by it with the consent or at the request of
the Required Lenders (or, to the extent required by this Agreement, all of the
Lenders) or in the absence of its own gross negligence or willful misconduct.
The Administrative Agent shall be deemed not to have knowledge of any Default
unless and until written notice thereof is given to the Administrative Agent by
the Company or a Lender, and the Administrative Agent shall not be responsible
for or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement or any other Loan
Document, (ii) the contents of any certificate, report or other document
delivered hereunder or thereunder or in connection herewith or therewith, (iii)
the performance or observance of any of the covenants, agreements or other terms
or conditions set forth herein or therein, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Loan Document or any
other agreement, instrument or document, or
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(v) the satisfaction of any condition set forth in Article V or elsewhere herein
or therein, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall
not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing believed by it to be
genuine and to have been signed or sent by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any
liability for relying thereon. The Administrative Agent may consult with legal
counsel (who may be counsel for an Obligor), independent accountants and other
experts selected by it, and shall not be liable for any action taken or not
taken by it in accordance with the advice of any such counsel, accountants or
experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent (and which may include any of its
Affiliates and, without limiting the foregoing, it is agreed that as of the date
hereof (and until such appointment may be revoked by the Administrative Agent)
▇.▇. ▇▇▇▇▇▇ Europe Limited will act for the purposes of performing certain
administrative functions with respect to extensions of credit hereunder to be
made in currencies other than Dollars). The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
The Administrative Agent may resign at any time by notifying the
Lenders, the Issuing Lender and the Company. Upon any such resignation, the
Required Lenders shall have the right, in consultation with the Company, to
appoint a successor. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent's resignation shall nonetheless become effective
and (1) the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder and (2) the Required Lenders shall perform the duties
of the Administrative Agent (and all payments and communications provided to be
made by, to or through the Administrative Agent shall instead be made by or to
each Lender directly) until such time as the Required Lenders appoint a
successor agent as provided for above in this paragraph. Upon the acceptance of
its appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring (or retired) Administrative Agent and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder (if not already discharged therefrom as provided above in this
paragraph). The fees payable by the Company to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Company and such successor. After the Administrative Agent's
resignation hereunder, the provisions of this Article and Section 10.03 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Administrative Agent.
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Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
Except as otherwise provided in Section 10.02(b) with respect to
this Agreement, the Administrative Agent may, with the prior consent of the
Required Lenders (but not otherwise), consent to any modification, supplement or
waiver under any of the Loan Documents, provided that, without the prior consent
of each Lender, the Administrative Agent shall not, and shall not consent to any
modification, supplement or waiver of any of the Security Documents to, except
as provided herein or in the Security Documents, release all or substantially
all of the collateral or otherwise terminate all or substantially all of the
Liens under any Security Document providing for collateral security, except that
no such consent shall be required, and the Administrative Agent is hereby
authorized, to (or to consent to, as the case may be) release any Lien covering
property that is the subject of either a disposition of property permitted
hereunder or a disposition to which the Required Lenders have consented and
provided, further, that no such consent shall be required for any amendment or
modification to any Security Document as contemplated by the last sentence of
the first paragraph of this Article.
Notwithstanding anything herein to the contrary, the Sole Lead
Arranger and Sole Bookrunner, the Co-Syndication Agents and the Co-Documentation
Agents named on the cover page of this Agreement shall not have any duties or
liabilities under this Agreement or the other Loan Documents, except in their
respective capacity (if any) as a Lender.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Notices. (a) Notices Generally. Except in the case of
notices and other communications expressly permitted to be given by telephone,
all notices and other communications provided for herein shall be in writing and
shall be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(i) if to the Company or any Subsidiary Guarantor, to it at ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇
▇▇▇▇▇, Treasurer (Telecopy No. ▇▇▇-▇▇▇-▇▇▇▇; Telephone No. (201)
804-3081);
(ii) if to the Administrative Agent, to JPMorgan Chase Bank, N.A.,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention of Loan
and Agency Services
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Group, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (Telecopy No. ▇▇▇-▇▇▇-▇▇▇▇; Telephone No.
▇▇▇-▇▇▇-▇▇▇▇) and, if such notice or other communication relates to
borrowings of, or payments or prepayments of, or the duration of Interest
Periods for, Loans denominated in a Foreign Currency, also to ▇.▇. ▇▇▇▇▇▇
Europe Limited, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇ (Telecopy No. ▇▇-▇▇▇-▇▇▇-▇▇▇▇;
Telephone No. ▇▇-▇▇▇-▇▇▇-▇▇▇▇);
(iii) if to the Issuing Lender, to it at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇ (Telecopy No. ▇▇▇-▇▇▇-▇▇▇▇; Telephone
No. ▇▇▇-▇▇▇-▇▇▇▇);
(iv) if to a Lender, to it at its address (or telecopy number) set
forth in its Administrative Questionnaire.
(b) Electronic Communications. Notices and other communications to
the Lenders hereunder may be delivered or furnished by electronic communications
pursuant to procedures approved by the Administrative Agent; provided that the
foregoing shall not apply to notices pursuant to Article II unless otherwise
agreed by the Administrative Agent and the applicable Lender. The Administrative
Agent or the Company may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be
limited to particular notices or communications.
(c) Change of Address, Etc. Any party hereto may change its address
or telecopy number for notices and other communications hereunder by notice to
the other parties hereto (or, in the case of any such change by a Lender, by
notice to the Company and the Administrative Agent). All notices and other
communications given to any party hereto in accordance with the provisions of
this Agreement shall be deemed to have been given on the date of receipt.
SECTION 10.02. Waivers; Amendments.
(a) No Deemed Waivers; Remedies Cumulative. No failure or delay by
the Administrative Agent, the Issuing Lender, any Lender or any Obligor in
exercising any right or power hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the Issuing
Lender, the Lenders or any Obligor hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by any Obligor
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan or
issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent, any Lender or the
Issuing Lender may have had notice or knowledge of such Default at the time.
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(b) Amendments. Neither this Agreement nor any provision hereof may
be waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Company and the Required Lenders or by the Company
and the Administrative Agent with the consent of the Required Lenders; provided
that no such agreement shall
(i) increase the Commitment of any Lender without the written
consent of such Lender,
(ii) reduce the principal amount of any Loan or LC Disbursement or
reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby,
(iii) postpone the scheduled date of payment of the principal amount
of any Loan or LC Disbursement, or any interest thereon, or any fees
payable hereunder, or reduce the amount of, waive or excuse any such
payment, or postpone the scheduled date of expiration of any Commitment,
without the written consent of each Lender affected thereby,
(iv) change Section 2.17(c) without the consent of each Lender
affected thereby,
(v) change any of the provisions of this Section or the percentage
in the definition of the term "Required Lenders" or any other provision
hereof specifying the number or percentage of Lenders required to waive,
amend or modify any rights hereunder or make any determination or grant
any consent hereunder, without the written consent of each Lender, or
(vi) release the Company from its guarantee obligations under
Article III, release all or substantially all of the Subsidiary Guarantors
from their guarantee obligations under Article III or release all or
substantially all of the collateral, in each case without the written
consent of each Lender;
provided further that (x) no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent, the Issuing Lender or
the Swingline Lender hereunder without the prior written consent of the
Administrative Agent, the Issuing Lender or the Swingline Lender, as the case
may be, and (y) any modification or supplement of Article III shall require the
consent of each Subsidiary Guarantor.
SECTION 10.03. Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Company shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of this
Agreement and the other Loan Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by the Issuing Lender
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in connection with the issuance, amendment, renewal or extension of any Letter
of Credit or any demand for payment thereunder, (iii) all out-of-pocket expenses
incurred by the Administrative Agent, the Issuing Lender or any Lender,
including the fees, charges and disbursements of any counsel for the
Administrative Agent, the Issuing Lender or any Lender, in connection with the
enforcement or protection of its rights in connection with this Agreement and
the other Loan Documents, including its rights under this Section, or in
connection with the Loans made or Letters of Credit issued hereunder, including
in connection with any workout, restructuring or negotiations in respect thereof
and (iv) all reasonable costs, expenses, taxes, assessments and other charges
incurred in connection with any filing, registration, recording or perfection of
any security interest contemplated by any Security Document or any other
document referred to therein.
(b) Indemnification by the Company. The Company shall indemnify the
Administrative Agent, the Issuing Lender and each Lender, and each Related Party
of any of the foregoing Persons (each such Person being called an "Indemnitee"),
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the fees, charges and
disbursements of any counsel for any Indemnitee, incurred by or asserted against
any Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement or any agreement or instrument
contemplated hereby, the performance by the parties hereto of their respective
obligations hereunder or the consummation of the Transactions or any other
transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use
of the proceeds therefrom (including any refusal by the Issuing Lender to honor
a demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such Letter
of Credit) or (iii) any actual or prospective claim, litigation, investigation
or proceeding relating to any of the foregoing, whether based on contract, tort
or any other theory and regardless of whether any Indemnitee is a party thereto;
provided that (x) such indemnity shall not, as to any Indemnitee, be available
to the extent that such losses, claims, damages, liabilities or related expenses
are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee and (y) such indemnity shall not apply to Taxes, which shall
governed exclusively by Section 2.16.
(c) Reimbursement by Lenders. To the extent that the Company fails
to pay any amount required to be paid by it to the Administrative Agent, the
Issuing Lender or the Swingline Lender under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Administrative Agent, the
Issuing Lender or the Swingline Lender, as the case may be, such Lender's
Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent, the Issuing Lender or the Swingline Lender in
its capacity as such.
(d) Waiver of Consequential Damages, Etc. To the extent permitted by
applicable law, no Obligor shall assert, and each Obligor hereby waives, any
claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this
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Agreement or any agreement or instrument contemplated hereby, the Transactions,
any Loan or Letter of Credit or the use of the proceeds thereof.
(e) Payments. All amounts due under this Section shall be payable
promptly after written demand therefor.
SECTION 10.04. Successors and Assigns.
(a) Assignments Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby, except that no Obligor may assign or
otherwise transfer any of its rights or obligations hereunder without the prior
written consent of each Lender (and any attempted assignment or transfer by any
Obligor without such consent shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby
and, to the extent expressly contemplated hereby, the Related Parties of each of
the Administrative Agent, the Issuing Lender and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may assign to one or more
assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at the time owing to
it) with the prior written consent (such consent in each case not to be
unreasonably withheld) of (x) the Company, provided that no consent of the
Company shall be required (i) for an assignment to a Lender, an Affiliate of a
Lender or an Approved Fund or (ii) if an Event of Default under clause (a), (b),
(h) or (i) of Article VIII has occurred and is continuing, for an assignment to
any other Person and (y) the Administrative Agent, the Issuing Lender and the
Swingline Lender, provided that assignments shall be subject to the following
additional conditions:
(A) except in the case of an assignment to a Lender or a Lender
Affiliate or an assignment of the entire remaining amount of the assigning
Lender's Commitment, the amount of the Commitment of the assigning Lender
subject to each such assignment (determined as of the date the Assignment
and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 unless each of the
Company and the Administrative Agent otherwise consent (provided that no
such consent of the Company shall be required if an Event of Default under
clause (a), (b), (h) or (i) of Article VIII has occurred and is
continuing),
(B) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations
under this Agreement,
(C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee of $3,500,
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(D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire; and
(E) so long as any Borrower is organized under the laws of the
Netherlands, in the case of any assignment to an Affiliate of a Lender or
an Approved Fund, such assignee shall be capable of making the
representation contemplated in Section 10.17 (and the relevant assignee
Lender and such assignee agrees to provide reasonable prior notice of such
assignment to such Borrower, and provide such information to such Borrower
relating to such representation as such Borrower shall reasonably
request).
Upon acceptance and recording pursuant to paragraph (d) of this Section, from
and after the effective date specified in each Assignment and Acceptance, the
assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.14, 2.15, 2.16 and 10.03). Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (e) of this Section. The Company shall
not be liable for any costs or expenses of any Lender in effecting any
assignment under this Section.
Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Lender") may grant to a special purpose vehicle (an "SPV")
of such Granting Lender, identified as such in writing from time to time by the
Granting Lender to the Administrative Agent and the Company, the option to
provide to any Borrower all or any part of any Loan that such Granting Lender
would otherwise be obligated to make to such Borrower pursuant to Section 2.01,
provided that (i) nothing herein shall constitute a commitment by any SPV to
make any Loan, (ii) if an SPV elects not to exercise such option or otherwise
fails to provide all or any part of such Loan, the Granting Lender shall be
obligated to make such Loan pursuant to the terms hereof and (iii) any Borrower
may bring any proceeding against either the Granting Lender or the SPV in order
to enforce any rights of such Borrower under any of the Loan Documents. The
making of a Loan by an SPV hereunder shall utilize the Commitment of the
Granting Lender to the same extent, and as if, such Loan were made by the
Granting Lender. Each party hereto hereby agrees that no SPV shall be liable for
any payment under this Agreement for which a Lender would otherwise be liable,
for so long as, and to the extent, the related Granting Lender makes such
payment. In furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Agreement) that, prior to the
date that is one year and one day after the payment in full of all outstanding
commercial paper or other senior indebtedness of any SPV, it will not institute
against, or join any other Person in instituting against, such SPV any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or similar proceedings under the laws of the United States or any State thereof
arising out of any claim against such SPV under this Agreement. In addition,
notwithstanding anything to the contrary contained in this Section, any SPV may
with notice to, but without the
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prior written consent of, the Company or the Administrative Agent and without
paying any processing fee therefor, assign all or a portion of its interests in
any Loans to its Granting Lender or to any financial institutions (consented to
by the Company and the Administrative Agent, which consent, in each case, shall
not be unreasonably withheld) providing liquidity and/or credit support (if any)
with respect to commercial paper issued by such SPV to fund such Loans and such
SPV may disclose, on a confidential basis, confidential information with respect
to the Company and its Subsidiaries to any rating agency, commercial paper
dealer or provider of a surety, guarantee or credit liquidity enhancement to
such SPV. This paragraph may not be amended without the consent of any SPV at
the time holding Loans under this Agreement.
(c) Maintenance of Register by the Administrative Agent. The
Administrative Agent, acting for this purpose as an agent of the Borrowers,
shall maintain at one of its offices in New York City a copy of each Assignment
and Acceptance delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitment of, and principal amount of the
Loans and LC Disbursements owing to, each Lender pursuant to the terms hereof
from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrowers, the Administrative Agent, the Issuing Lender and
the Lenders shall treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrowers, the Issuing Lender and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(d) Effectiveness of Assignments. Upon its receipt of a duly
completed Assignment and Acceptance executed by an assigning Lender and an
assignee, the assignee's completed Administrative Questionnaire (unless the
assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section and any written consent to such
assignment required by paragraph (b) of this Section, the Administrative Agent
shall accept such Assignment and Acceptance and record the information contained
therein in the Register. No assignment shall be effective for purposes of this
Agreement unless it has been recorded in the Register as provided in this
paragraph.
(e) Participations. Any Lender may, without the consent of the
Company, the Administrative Agent, the Issuing Lender or the Swingline Lender,
sell participations to one or more banks or other entities (a "Participant") in
all or a portion of such Lender's rights and obligations under this Agreement
and the other Loan Documents (including all or a portion of its Commitment and
the Loans owing to it); provided that (i) such Lender's obligations under this
Agreement and the other Loan Documents shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the performance
of such obligations and (iii) the Borrowers, the Administrative Agent, the
Issuing Lender and the other Lenders shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations under
this Agreement and the other Loan Documents. Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Agreement and the other Loan
Documents and to approve any amendment, modification or waiver of any provision
of this Agreement or any other Loan Document; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in the
first
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proviso to Section 10.02(b) that affects such Participant. Subject to paragraph
(f) of this Section, the Borrowers agree that each Participant shall be entitled
to the benefits of Sections 2.14, 2.15 and 2.16 to the same extent as if it were
a Lender and had acquired its interest by assignment pursuant to paragraph (b)
of this Section. The Borrowers shall not be liable for any costs or expenses of
any Lender in effecting any participation under this Section.
(f) Limitations on Rights of Participants. A Participant shall not
be entitled to receive any greater payment under Section 2.14 or 2.16 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Company's prior written consent. A Participant
shall not be entitled to the benefits of Section 2.16 unless the Company is
notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrowers, to comply with Section 2.16(e) and (f)
as though it were a Lender.
(g) Certain Pledges. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement to
secure obligations of such Lender, including any such pledge or assignment to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such assignee for such Lender as a party hereto.
(h) No Assignments to the Obligors or Affiliates. Anything in this
Section to the contrary notwithstanding, no Lender may assign or participate any
interest in any Loan or LC Exposure held by it hereunder to the Company or any
of its Affiliates or Subsidiaries without the prior consent of each Lender.
SECTION 10.05. Survival. All covenants, agreements, representations
and warranties made by the Obligors herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any Loans
and issuance of any Letters of Credit, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Lender or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated. The provisions of Sections 2.14, 2.15, 2.16, 3.03, 10.03, 10.11
and 10.13 and Article IX shall survive and remain in full force and effect
regardless of the consummation of the transactions contemplated hereby, the
repayment of the Loans, the expiration or termination of the Letters of Credit
and the Commitments or the termination of this Agreement or any provision
hereof.
SECTION 10.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement and
any separate letter agreements with respect to fees payable to the
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Administrative Agent constitute the entire contract between and among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 5.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page to this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 10.07. Severability. Any provision of this Agreement held to
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 10.08. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or the account of any Obligor against any of and all the
obligations of any Obligor now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured. The
rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have. Each
Lender agrees to notify the Company and the Administrative Agent as promptly as
practicable after any such set-off and application made by such Lender, provided
that the failure to give such notice shall not affect the validity of such
set-off and application.
SECTION 10.09. Governing Law; Jurisdiction; Etc.
(a) Governing Law. This Agreement shall be construed in accordance
with and governed by the law of the State of New York.
(b) Submission to Jurisdiction. Each Obligor hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement, or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent, the Issuing Lender or any Lender may otherwise have to
bring any action
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or proceeding relating to this Agreement against any Obligor or its properties
in the courts of any jurisdiction.
(c) Waiver of Venue. Each obligor hereby irrevocable and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement in
any court referred to in paragraph (b) of this Section. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(d) Appointment of Agent for Service of Process. Each Subsidiary
Borrower irrevocably designates and appoints the Company as its authorized
agent, to accept and acknowledge on its behalf, service of any and all process
which may be served in any suit, action or proceeding of the nature referred to
in Section 10.09(b) in any federal or New York State court sitting in New York
City. The Company hereby agrees to accept such appointment by each Subsidiary
Borrower party hereto from time to time and to give such Subsidiary Borrower
prompt notice upon receipt of, and to forward promptly to such Subsidiary
Borrower, all papers served upon the Company pursuant to such appointment. Said
designation and appointment shall be irrevocable by each such Subsidiary
Borrower until all Loans, all reimbursement obligations, interest thereon and
all other amounts payable by such Subsidiary Borrower hereunder and under the
other Loan Documents shall have been paid in full in accordance with the
provisions hereof and thereof and such Subsidiary Borrower shall have been
terminated as a Borrower hereunder pursuant to Section 2.19. If the Company
shall cease so to act as such agent, each such Subsidiary Borrower covenants and
agrees to notify the Administrative Agent promptly thereof and to designate
irrevocably and appoint without delay another such agent satisfactory to the
Administrative Agent and to deliver promptly to the Administrative Agent
evidence in writing of such other agent's acceptance of such appointment.
(e) Service of Process. Each party to this Agreement irrevocably
consents to service of process in the manner provided for notices in Section
10.01. Nothing in this Agreement will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 10.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
- 89 -
SECTION 10.11. Judgment Currency. This is an international loan
transaction in which the specification of Dollars or any Foreign Currency, as
the case may be (the "Specified Currency"), and payment in New York City or the
country of the Specified Currency, as the case may be (the "Specified Place"),
is of the essence, and the Specified Currency shall be the currency of account
in all events relating to Loans denominated in the Specified Currency. The
payment obligations of each Obligor under this Agreement shall not be discharged
or satisfied by an amount paid in another currency or in another place, whether
pursuant to a judgment or otherwise, to the extent that the amount so paid on
conversion to the Specified Currency and transfer to the Specified Place under
normal banking procedures does not yield the amount of the Specified Currency at
the Specified Place due hereunder. If for the purpose of obtaining judgment in
any court it is necessary to convert a sum due hereunder in the Specified
Currency into another currency (the "Second Currency"), the rate of exchange
that shall be applied shall be the rate at which in accordance with normal
banking procedures the Administrative Agent could purchase the Specified
Currency with the Second Currency on the Business Day next preceding the day on
which such judgment is rendered. The obligation of each Obligor in respect of
any such sum due from it to the Administrative Agent or any Lender hereunder or
under any other Loan Document (in this Section called an "Entitled Person")
shall, notwithstanding the rate of exchange actually applied in rendering such
judgment, be discharged only to the extent that on the Business Day following
receipt by such Entitled Person of any sum adjudged to be due hereunder in the
Second Currency such Entitled Person may in accordance with normal banking
procedures purchase and transfer to the Specified Place the Specified Currency
with the amount of the Second Currency so adjudged to be due; and each Obligor
hereby, as a separate obligation and notwithstanding any such judgment, agrees
to indemnify such Entitled Person against, and to pay such Entitled Person on
demand, in the Specified Currency, the amount (if any) by which the sum
originally due to such Entitled Person in the Specified Currency hereunder
exceeds the amount of the Specified Currency so purchased and transferred.
SECTION 10.12. Headings. Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part of
this Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 10.13. Treatment of Certain Information; Confidentiality.
(a) Treatment of Certain Information. The Borrowers acknowledge that
from time to time the Administrative Agent or any Lender, in connection with the
performance of its duties or the exercise of its rights relating to this
Agreement, may employ the services of one or more subsidiaries or affiliates of
the Administrative Agent or such Lender, as the case may be, and the Company
hereby authorizes each Lender to share any information delivered to such Lender
by the Company and its Subsidiaries pursuant to this Agreement, or in connection
with the decision of such Lender to enter into this Agreement, to any such
subsidiary or affiliate, it being understood that any such subsidiary or
affiliate receiving such information shall be bound by the provisions of
paragraph (b) of this Section as if it were a Lender hereunder. Such
authorization shall survive the repayment of the Loans, the expiration or
termination of the Letters of Credit and the Commitments or the termination of
this Agreement or any provision hereof.
- 90 -
(b) Confidentiality. Each of the Administrative Agent, the Issuing
Lender and the Lenders agrees to maintain the confidentiality of the Information
(as defined below), except that Information may be disclosed (i) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors reasonably necessary in connection with this
Agreement (it being understood that the Persons to whom such disclosure is made
will be informed of the confidential nature of such Information and will be
provided to such Person upon the understanding that such Information will be
kept confidential), (ii) to the extent requested by any regulatory authority,
(iii) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (iv) to any other party to this Agreement,
(v) in connection with the exercise of any remedies hereunder or under any other
Loan Document or any suit, action or proceeding relating to this Agreement or
any other Loan Document or the enforcement of rights hereunder or thereunder,
(vi) subject to an agreement in writing containing provisions substantially the
same as those of this paragraph and for the benefit of the Company, to (a) any
assignee of or Participant in, or any prospective assignee of or Participant in,
any of its rights or obligations under this Agreement or (b) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction
relating to the Borrowers and their respective obligations, (vii) with the
consent of the Company or (viii) to the extent such Information (A) becomes
publicly available other than as a result of a breach of this paragraph or (B)
becomes available to the Administrative Agent, the Issuing Lender or any Lender
on a nonconfidential basis from a source other than an Obligor not known by such
Person to be in breach of a confidentiality agreement; provided that each Lender
shall, unless prohibited by any Requirement of Law and except in the normal
course of bank examinations, use reasonable efforts to notify the Company of any
request or requirement for disclosure of Information under clause (ii) or (iii)
above prior to such disclosure. For the purposes of this paragraph,
"Information" means all information received from or on behalf of any Obligor
relating to the Company or any of its Subsidiaries or any of their respective
businesses, other than any such information that is available to the
Administrative Agent, the Issuing Lender or any Lender on a nonconfidential
basis prior to disclosure by or on behalf of an Obligor. Any Person required to
maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
SECTION 10.14. USA PATRIOT Act. Each Lender hereby notifies the
Borrowers that pursuant to the requirements of the USA PATRIOT Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001)), such Lender may be required
to obtain, verify and record information that identifies the Borrowers, which
information includes the names and addresses of the Borrowers and other
information that will allow such Lender to identify the Borrowers in accordance
with said Act.
SECTION 10.15. Waiver of Immunity. To the extent that any Subsidiary
Borrower that is a Foreign Subsidiary may be or become entitled to claim for
itself or its property any immunity on the ground of sovereignty or the like
from suit, court jurisdiction, attachment prior to judgment, attachment in aid
of execution of a judgment or execution of a judgment, and to the extent that in
any such jurisdiction there may be attributed such an immunity (whether or not
claimed), such Subsidiary Borrower hereby irrevocably agrees not to
- 91 -
claim and hereby irrevocably waives such immunity with respect to its
obligations under this Agreement.
SECTION 10.16. Appointment of Company as Agent. Each Subsidiary
Borrower designated as a "Borrower" pursuant to Section 2.19, by its
acknowledgment to the Subsidiary Borrower Designation Letter relating to such
Subsidiary Borrower, as applicable:
(a) appoints and authorizes the Company for the purposes of (i)
signing documents deliverable by or on behalf of such Subsidiary Borrower
hereunder or under any other Loan Document, (ii) providing notices to or
making requests of the Administrative Agent, the Issuing Lender or any
Lender on behalf of such Subsidiary Borrower, (iii) receiving notices and
documents from the Administrative Agent, any Issuing Lender or any Lender
on behalf of such Subsidiary Borrower, and (iv) taking any other action on
behalf such Subsidiary Borrower hereunder or under any other Loan
Document, in each case to the extent specifically provided for hereunder
or thereunder, and such Subsidiary Borrower agrees to be irrevocably bound
by all such actions being taken on behalf of such Subsidiary Borrower by
the Company and all such notices received by the Company on behalf of such
Subsidiary Borrower; provided that another Person may be appointed to act
in substitution for the Company with the power and authority granted
thereto by such Subsidiary Borrower under this clause (a) so long as such
Person shall have been certified as such in a single writing executed by
such Subsidiary Borrower and delivered to the Administrative Agent;
(b) authorizes the Administrative Agent, the Issuing Lender and each
Lender to treat (i) each document signed by, each notice given or received
by, each document delivered or received by and each request made by the
Company on its behalf and (ii) each other action which specifically
provides herein or therein that the Company acts on behalf, or at the
direction, of such Subsidiary Borrower as if such Subsidiary Borrower (and
not the Company) had in fact signed such document, given or received such
notice, delivered or received such document, made such request or taken
such action; and
(c) acknowledges that the Administrative Agent, the Issuing Lender
and each Lender are relying upon the appointments and authorizations set
forth in this Section in connection with the making of their Commitments
and credit extensions hereunder.
In the event the Administrative Agent, the Issuing Lender or any Lender
reasonably believes that it has received a conflicting notice or instruction
from the Company and/or its designees, the Administrative Agent, the Issuing
Lender or such Lender may refrain from action upon such notice or instruction
and shall promptly request the Company for clarification regarding such notice
or instruction.
SECTION 10.17. Lender Representation - Professional Market Party.
Each Lender represents and warrants to each Borrower incorporated or resident in
The Netherlands on the date of this Agreement that it is a Professional Market
Party and each new Lender or other entity to whom a Lender assigns or transfers
any or all of its rights and obligations under this Agreement (if on the date
such assignment or transfer becomes effective it is a requirement
- 92 -
under Dutch law that such new Lender is a Professional Market Party) will be
deemed to have represented and warranted to each Borrower incorporated or
resident in The Netherlands that on such date it is a Professional Market Party.
For purposes of this Section, (i) "Exemption Regulation" means the Dutch
exemption regulation dated 26 June 2002 (Vrijstellingsregeling Wtk 1992) (as
amended from time to time) as promulgated in connection with the WTK; (ii)
"Professional Market Party" means a professional market party (professionele
marktpartij) within the meaning of the Exemption Regulation; and (iii) "WTK"
means the Dutch Act on the Supervision of Credit Institutions 1992 (Wet toezicht
kredietwezen 1992) (as amended from time to time).
- 93 -
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
CAMBREX CORPORATION
By_____________________________________
Name:
Title:
- 94 -
SUBSIDIARY BORROWERS
[NONE]
- 95 -
SUBSIDIARY GUARANTORS
CAMBREX ▇▇▇▇▇▇▇ CITY, INC.
CAMBREX NORTH BRUNSWICK, INC.
CBM TECHNOLOGIES, INC.
By_____________________________________
Name:
Title:
- 96 -
LENDERS
JPMORGAN CHASE BANK, N.A.
individually, as Swingline Lender and as
Administrative Agent
By_____________________________________
Name:
Title:
- 97 -
CITIBANK, N.A.
By_____________________________________
Name:
Title:
- 98 -
KEYBANK, NATIONAL ASSOCIATION
By_____________________________________
Name:
Title:
- 99 -
CITIZENS BANK of PENNSYLVANIA
By_____________________________________
Name:
Title:
FORTIS CAPITAL CORP.
By_____________________________________
Name:
Title:
- 2 -
NATIONAL CITY BANK
By_____________________________________
Name:
Title:
- 3 -
SVENSKA HANDELSBANKEN AB (PUBL)
By_____________________________________
Name:
Title:
- 4 -
SCHEDULE 1.01
Commitments
Name of Lender Commitment ($)
-------------------------------- --------------
JPMorgan Chase Bank, N.A. $ 40,000,000
Citibank, N.A. $ 35,000,000
Keybank, National Association $ 35,000,000
Citizens Bank of Pennsylvania $ 27,500,000
Fortis Capital Corp. $ 27,500,000
National City Bank $ 20,000,000
Svenska Handelsbanken AB (Publ) $ 15,000,000
TOTAL $200,000,000
Schedule 1.01 to Credit Agreement
SCHEDULE 2.05(l)
Existing Letters of Credit
See Schedule 7.01 - Indebtedness.
Schedule 2.05(l) to Credit Agreement
SCHEDULE 4.06(a)
Litigation
See the Contingencies footnote in the Cambrex Corporation Annual Report on Form
10-K for the year ending December 31, 2006; including without limitation the
Litigation and Other Matters section.
Schedule 4.06(a) to Credit Agreement
SCHEDULE 4.06(b)
Environmental Matters
See the Contingencies footnote in the Cambrex Corporation Annual Report on Form
10-K for the year ending December 31, 2006, including without limitation the
Environmental section.
- 2 -
SCHEDULE 4.13
Subsidiaries
Nature of
Person holding ownership ownership Percent of
Name of Subsidiary Jurisdiction interests interests ownership
---------------------------------- --------------- ------------------------- ----------- ------------
Cambrex Corporation Delaware - - -
Cambrex ▇▇▇▇▇▇▇ City, Inc. Iowa Cambrex Corporation Direct 100%
Cambrex North Brunswick, Inc. Delaware Cambrex Corporation Direct 100%
Cambrex International, Inc. New Jersey Cambrex Corporation Direct 100%
CasChem, Inc. Delaware ▇▇▇▇▇▇▇▇▇▇ Chemicals, Inc. Direct 100%
CBM Intellectual Properties, Inc. Nevada Cambrex Corporation Direct 100%
CBM Technologies, Inc. Nevada Cambrex Corporation Direct 100%
Cosan Chemical Corporation New Jersey ▇▇▇▇▇▇▇▇▇▇ Chemicals, Inc. Direct 100%
The ▇▇▇▇▇▇▇▇ Chemical Co., Inc. Delaware Cambrex Corporation Direct 100%
Nepera, Inc. New York ▇▇▇▇▇▇▇▇▇▇ Chemicals, Inc. Direct 100%
Nepcam, Inc. New York Nepera, Inc. Direct 100%
Nordic Synthesis, Inc. Delaware Cambrex Corporation Direct 100%
▇▇▇▇▇▇▇▇▇▇ Chemicals, Inc. Delaware Cambrex Corporation Direct 100%
Zeeland Chemicals, Inc. Michigan ▇▇▇▇▇▇▇▇▇▇ Chemicals, Inc. Direct 100%
Cambrex Absorption Systems, Inc. Delaware Cambrex Corporation Direct 100%
Cambrex Bahamas, Inc. Bahamas Cambrex Corporation Direct 100%
Cambrex Limited U.K. Cambrex Bahamas, Inc. Direct 100%
Cambrex (UK & Eire) Limited U.K. Cambrex Limited Direct 100%
CasChem Limited U.K. Cambrex Limited Direct 100%
Cosan Limited U.K. Cambrex Limited Direct 100%
Dutyfocus Limited U.K. Cambrex Limited Direct 100%
Nepera Limited U.K. Cambrex Limited Direct 100%
Schedule 4.13 to Credit Agreement
Nature of
Person holding ownership ownership Percent of
Name of Subsidiary Jurisdiction interests interests ownership
---------------------------------- --------------- ------------------------- ----------- ------------
Cambrex Holdings Limited U.K. Cambrex Limited Direct 100%
CBM Denmark I/S Denmark Partnership - Cambrex Direct 99% (C.I.)
(C.I.) Ltd and
Cambrex and
(Jersey) Ltd. 1%
Jersey
Cambrex DK ApS Denmark Cambrex B.V. Direct 100%
Cambrex OCB Limited Mauritius Cambrex Bahamas, Direct 80% /
Inc.
Cambrex (Jersey) Ltd. 20%
Cambrex (Jersey) Limited Channel Cambrex Bahamas, Inc. Direct 100%
Islands, U.K.
Cambrex (C.I.) Limited Channel Cambrex (Jersey) Ltd. Direct 100%
Islands, U.K.
Nepera Foreign Sales Corporation US Virgin Nepera, Inc. Direct 100%
Islands
Cambrex AB Sweden Cambrex Netherlands B.V. Direct 100%
Cambrex Karlskoga International AB Sweden Cambrex AB Direct 100%
Cambrex Karlskoga AB Sweden Cambrex Karlskoga Direct 100%
International AB
Cambrex GmbH Germany Cambrex Netherlands B.V. Direct 100%
Cambrex B.V. The Netherlands Cambrex Netherlands B.V. Direct 100%
Cambrex Netherlands B.V. The Netherlands Cambrex Holdings Ltd. Direct 100%
Cambrex Profarmaco Milano, S.r.l. Italy Cambrex Netherlands B.V. Direct 95% (Nether-lands) and
and Cambrex BV 5% (BV)
Cambrex Profarmaco Research S.r.l. Italy Cambrex Profarmaco Milano Direct 100%
S.r.l.
Schedule 4.13 to Credit Agreement
Nature of
Person holding ownership ownership Percent of
Name of Subsidiary Jurisdiction interests interests ownership
---------------------------------- --------------- ------------------------- ----------- -------------
Cambrex SARL France Cambrex B.V. Direct 100%
Cambrex Profarmaco Brazil Ltda. Brazil Cambrex Profarmaco ▇▇▇▇▇▇ Direct 50%
S.r.l. and
Cambrex B.V. 50%
Cambrex Hong Kong Limited Hong Kong Cambrex Corporation/Luke Direct 99% /
▇. ▇▇▇▇▇▇ 1%
Schedule 4.13 to Credit Agreement
SCHEDULE 7.01
Indebtedness
(ALL AMOUNTS ARE IN US$)
6.9885 SEK/USD
1.3348 EUR/USD
ENTITY TYPE AMOUNT
---------------------------------- -------------------------------------------------- --------------------
Cambrex Profarmaco Milano Export Financing (10MM Euro Available) - -
S.r.l. - Banca Popolare di Sondrio
---------------------
- -
OVERDRAFT FACILITY
Cambrex Karlskoga AB Overdraft Facility (100,000 SEK Available) - -
---------------------
-
GUARANTEES
Cambrex Karlskoga AB Cover Note with Swedish Authority for Customs Duty 85,855 600,000
Cambrex Karlskoga AB Guarantee for pension liability 258,608 1,807,280
DOMESTIC INDEBTEDNESS
LEASES
Cambrex ▇▇▇▇▇▇▇ City, Inc. Capital Lease - Linde Gas 111,435
OTHER INDEBTEDNESS
(DOMESTIC)
Cambrex Corporation Standby Letter of Credit 215,000
Cambrex Corporation Standby Letter of Credit 1,000,000
COMPANY OBLIGEE AMOUNT
------------------------- -------------------------------- ---------
SURETY BONDS
Cambrex ▇▇▇▇▇▇▇ City, Inc. U.S. Customs Service 50,000
Cambrex Corporation Missouri Dept. of Revenue 5,000
--------
55,000
LOCAL GOVERNMENT BONDS
Humphrey Chemicals, Inc. Town of North Haven, Connecticut 23,029
▇▇▇▇▇▇▇▇ Chemicals, Inc. Town of North Haven, Connecticut 3,009
--------
26,038
SUBSIDIARY INDEBTEDNESS - FINANCING OF ACQUISITION & CAPITAL IMPROVEMENTS -
SUBSIDIARY INDEBTEDNESS - TRADE LC & EURO STANDBY LC -
PERMITTED SECURITIZATION -
Schedule 7.01 to Credit Agreement
SCHEDULE 7.02
Liens
See Schedule 7.01 - Indebtedness.
Schedule 7.02 to Credit Agreement
SCHEDULE 7.05
Investments
ENTITY AMOUNT
PRC Ticinum Lab S.r.l. 33,370
ABC Labs 41,667
Tercica 100,000
---------
TOTAL $ 175,037
Schedule 7.05 to Credit Agreement
SCHEDULE 7.08
Restrictive Agreements
None.
Schedule 7.08 to Credit Agreement
EXHIBIT A
[Form of Assignment and Acceptance]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of April 6, 2007 (as
amended and in effect on the date hereof, the "Credit Agreement"), between
Cambrex Corporation, the Subsidiary Borrowers party thereto, the Subsidiary
Guarantors party thereto, the Lenders party thereto and JPMorgan Chase Bank,
N.A., as Administrative Agent for the Lenders. Terms defined in the Credit
Agreement are used herein with the same meanings.
The Assignor named below hereby sells and assigns, without recourse, to
the Assignee named below, and the Assignee hereby purchases and assumes, without
recourse, from the Assignor, effective as of the Assignment Date set forth
below, the interests set forth below (the "Assigned Interest") in the Assignor's
rights and obligations under the Credit Agreement, including the interests set
forth below in the Commitment of the Assignor on the Assignment Date and
Syndicated Loans owing to the Assignor which are outstanding on the Assignment
Date, together with unpaid interest accrued on the assigned Loans to the
Assignment Date, the participations in Letters of Credit, LC Disbursements and
Swingline Loans held by the Assignor on the Assignment Date, and the amount, if
any, set forth below of the fees accrued to the Assignment Date for account of
the Assignor. The Assignee hereby acknowledges receipt of a copy of the Credit
Agreement. From and after the Assignment Date (i) the Assignee shall be a party
to and be bound by the provisions of the Credit Agreement and, to the extent of
the interests assigned by this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent of
the interests assigned by this Assignment and Acceptance, relinquish its rights
and be released from its obligations under the Credit Agreement.
This Assignment and Acceptance is being delivered to the Administrative
Agent together with (i) if the Assignee is a Foreign Lender, any documentation
required to be delivered by the Assignee pursuant to Section 2.16(e) of the
Credit Agreement, duly completed and executed by the Assignee, and (ii) if the
Assignee is not already a Lender under the Credit Agreement, an Administrative
Questionnaire in the form supplied by the Administrative Agent, duly completed
by the Assignee. The [Assignee/Assignor] shall pay the fee payable to the
Administrative Agent pursuant to Section 10.04(b) of the Credit Agreement.
This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of New York.
Assignment and Acceptance
- 2 -
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
("Assignment Date"):
Principal Amount
Facility Assigned
-------------------- ----------------
Commitment Assigned: $
Syndicated Loans:
Fees Assigned (if any):
The terms set forth above and below are hereby agreed to:
[NAME OF ASSIGNOR], as Assignor
By:_______________________________
Name:
Title:
[NAME OF ASSIGNEE], as Assignee
By:_______________________________
Name:
Title:
Assignment and Acceptance
- 3 -
The undersigned hereby consent to the within assignment:(1)
CAMBREX CORPORATION
By:________________________________
Name:
Title:
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent,
as Swingline Lender
and as Issuing Lender
By:________________________________
Name:
Title:
----------
(1) Consents to be included to the extent required by Section 10.04(b) of the
Credit Agreement.
Assignment and Acceptance
EXHIBIT B
[Form of Pledge Agreement]
PLEDGE AGREEMENT dated as of April 6, 2007, between CAMBREX
CORPORATION, a corporation duly organized and validly existing under the laws of
the State of Delaware (the "Company"), and JPMORGAN CHASE BANK, N.A., as
administrative agent under the Credit Agreement referred to below (in such
capacity, together with its successors in such capacity, the "Administrative
Agent").
The Company, certain Subsidiaries of the Company, certain lenders
(the "Lenders") and JPMorgan Chase Bank, N.A., as administrative agent (in such
capacity, together with its successors in such capacity, the "Administrative
Agent"), are entering into the Credit Agreement, dated as of April 6, 2007 (as
modified and supplemented and in effect from time to time, including any
refinancing or replacement thereof, the "Credit Agreement"), providing, subject
to the terms and conditions thereof, for extensions of credit (by making loans
and issuing letters of credit) to be made by the Lenders to the Borrowers (as
defined therein) in an aggregate initial principal or face amount not exceeding
$200,000,000.
To induce the Lenders to enter into the Credit Agreement, and to
extend credit thereunder, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company has agreed
to grant a security interest in the Collateral (as hereinafter defined) as
security for the Secured Obligations (as so defined).
Accordingly, the parties hereto agree as follows:
Section 1. Definitions. Terms defined in the Credit Agreement which
are not defined herein are used herein as defined therein. In addition, as used
herein:
"Collateral" has the meaning assigned to such term in Section 3.
"Issuer" means any corporation or other entity identified on Annex 1
under the caption "Issuer".
"Pledged Stock" has the meaning assigned to such term in Section
3(a).
"Proceeds" has the meaning assigned to such term in the Uniform
Commercial Code.
"Secured Obligations" means, collectively, (a) all obligations of
each Borrower in respect of the unpaid principal of and interest on the
Loans made by the Lenders to such Borrower under the Credit Agreement and
all other amounts whatsoever now or hereafter from time to time owing to
the Lenders or the Administrative Agent, or any of them, by any Borrower
under the Loan Documents (including all reimbursement obligations of any
Borrower in respect of LC Disbursements and interest thereon), (b) all
obligations of the
Pledge Agreement
- 2 -
Guarantors in respect of any guarantee of any of such obligations of any
Borrower and (c) all obligations of the Company hereunder.
"Secured Parties" means, collectively, the Lenders, the
Administrative Agent and their respective successors, assigns and
transferees.
"Uniform Commercial Code" means the Uniform Commercial Code as in
effect from time to time in the State of New York.
Section 2. Representations and Warranties. The Company represents
and warrants to the Secured Parties that:
(a) Ownership and Liens. The Company is the sole beneficial owner of
the Collateral and no Lien exists upon the Collateral, except for
Permitted Encumbrances and except the security interest created pursuant
hereto, which security interest constitutes a valid and perfected security
interest in and to all of the Collateral, subject to no other Lien except
for Permitted Encumbrances.
(b) Status of Pledged Stock. The Pledged Stock in which the Company
grants a security interest hereunder has been duly authorized and is
validly existing, fully paid and non-assessable and none of such Pledged
Stock is subject to any contractual restriction, or any restriction under
the charter, by-laws or other organizational documents of the respective
Issuer of such Pledged Stock, upon the pledge of such Pledged Stock or the
transfer thereof upon the enforcement by the Administrative Agent of its
remedies hereunder (except for any such restriction contained or permitted
herein or hereunder or in or under any other Loan Documents).
(c) No Other Stock. The Pledged Stock evidenced by the certificate
or certificates identified in Annex 1 constitutes 66% of the issued and
outstanding shares of voting Capital Stock, and (subject to clause (ii) of
the proviso at the end of Section 3) all of the issued and outstanding
shares of any other Capital Stock, of the respective Issuer beneficially
owned by the Company on the date hereof (whether or not registered in the
name of the Company) (and it is acknowledged and agreed that if more than
66% of the outstanding voting Capital Stock of any Issuer is delivered to
the Administrative Agent, the Administrative Agent shall have a security
interest in such voting Capital Stock only up to an amount equal to 66% of
all of the issued and outstanding shares of the voting Capital Stock of
such Issuer) and Annex 1 correctly identifies, as at the date hereof, the
respective Issuer of such Pledged Stock, the respective class and par
value (if any) of the shares constituting such Pledged Stock and the
respective number of shares (and registered owners thereof) represented by
each such certificate.
Section 3. The Pledge. As collateral security for the prompt payment
in full when due (whether at stated maturity, by acceleration or otherwise) of
the Secured Obligations, whether now existing or hereafter from time to time
arising, the Company hereby pledges and grants a security interest in all of the
Company's right, title and interest in the following property, whether now owned
by the Company or hereafter acquired and whether now existing
Pledge Agreement
- 3 -
or hereafter coming into existence (all being collectively referred to herein as
"Collateral"), to the Administrative Agent for the benefit of the Secured
Parties as hereinafter provided:
(a) the Capital Stock of the Issuer or Issuers represented by the
certificate or certificates identified in Annex 1 and all other shares of
Capital Stock of whatever class of the Issuers, now or hereafter owned by
the Company, in each case together with the certificate or certificates,
if any, evidencing the same (collectively, the "Pledged Stock").
(b) all shares, securities, moneys or property representing a
dividend on any of the Pledged Stock, or representing a distribution or
return of capital upon or in respect of the Pledged Stock, or resulting
from a split-up, revision, reclassification or other like change of the
Pledged Stock or otherwise received in exchange therefor, and any
subscription warrants, rights or options issued to the holders of, or
otherwise in respect of, the Pledged Stock;
(c) without affecting the obligations of the Company under any
provision prohibiting such action hereunder or under any other Loan
Document, in the event of any consolidation or merger in which an Issuer
is not the surviving corporation, all shares of Capital Stock of the
successor corporation formed by or resulting from such consolidation or
merger, but only if such successor corporation is a Foreign Subsidiary
owned directly by the Company or any Domestic Subsidiary (the Pledged
Stock, together with all other certificates, shares, securities,
properties or moneys as may from time to time be pledged hereunder
pursuant to clause (a) or (b) above and this clause (c) being herein
collectively called the "Stock Collateral"); and
(d) all Proceeds of and to any of the property of the Company
described in the foregoing clauses (a), (b) and (c) of this Section 3;
provided that, notwithstanding anything herein to the contrary, (i) the shares
of voting Capital Stock of an Issuer that are pledged hereunder shall not at any
time exceed 66% of the issued and outstanding voting Capital Stock of such
Issuer and (ii) if shares of any non-voting Capital Stock of an Issuer are
pledged or required to be pledged hereunder and the Company notifies the
Administrative Agent in writing that the creation or continuation of such
pledge, as the case may be, could have adverse tax consequences for the Company,
then (y) with respect to shares that have not yet been pledged hereunder, the
Company shall have no obligation to pledge such shares hereunder and such shares
shall not constitute Pledged Stock and (z) with respect to shares pledged
hereunder prior to such notice from the Company, such shares shall be released
from the pledge hereunder and shall no longer constitute Pledged Stock (and the
Administrative Agent is hereby authorized, without further action by any other
Secured Party, forthwith to release such pledge and cause to be assigned,
transferred or delivered, against receipt but without any recourse, warranty or
representation whatsoever, the certificate(s) for such shares and any related
stock power theretofore delivered to the Administrative Agent hereunder).
Section 4. Further Assurances; Remedies. In furtherance of the grant
of the security interest pursuant to Section 3, the Company hereby agrees with
each Secured Party as follows:
Pledge Agreement
- 4 -
4.01. Delivery and Other Perfection. The Company shall:
(a) subject to Section 4.04(c) and the proviso at the end of Section
3, if any of the shares, securities, moneys or property required to be
pledged by the Company under clauses (a), (b) and (c) of Section 3 are
received by the Company, forthwith either (x) transfer and deliver to the
Administrative Agent such shares or securities so received by the Company
(together with the certificate or certificates, if any, for any such
shares and securities duly endorsed in blank or accompanied by undated
stock powers duly executed in blank), all of which thereafter shall be
held by the Administrative Agent, pursuant to the terms of this Agreement,
as part of the Collateral or (y) take such other action as the
Administrative Agent shall reasonably deem necessary or appropriate to
duly record the Lien created hereunder in such shares, securities, moneys
or property in said clauses (a), (b) and (c);
(b) give, execute, deliver, file and/or record any financing
statement, notice, instrument, document, agreement or other papers that
may be necessary or desirable (in the reasonable judgment of the
Administrative Agent) to create, preserve, perfect or validate the
security interest granted pursuant hereto or to enable the Administrative
Agent to exercise and enforce its rights hereunder with respect to such
security interest;
(c) keep full and accurate books and records relating to the
Collateral, and stamp or otherwise ▇▇▇▇ such books and records in such
manner as the Administrative Agent may reasonably require in order to
reflect the security interests granted by this Agreement; and
(d) not more than once per any fiscal quarter (unless any Event of
Default shall have occurred and be continuing), permit representatives of
the Administrative Agent, upon reasonable prior notice and at reasonable
times, to inspect and make abstracts from its books and records pertaining
to the Collateral, and forward copies of any material notices or
communications received by the Company with respect to the Collateral, all
in such manner as the Administrative Agent may reasonably require.
4.02. Other Financing Statements and Liens. The Company shall not
file or (to the extent within its control) suffer to be on file, or authorize or
permit to be filed or (to the extent within its control) to be on file, in any
jurisdiction, any financing statement or like instrument with respect to the
Collateral in which the Administrative Agent is not named as the sole secured
party for the benefit of the Secured Parties.
4.03. Preservation of Rights. The Administrative Agent shall not be
required to take steps necessary to preserve any rights against prior parties to
any of the Collateral.
Pledge Agreement
- 5 -
4.04. Collateral.
(a) The Company will cause (i) that portion of the Collateral
consisting of shares of the voting Capital Stock of an Issuer to
constitute at all times 66% of the total number of shares of voting
Capital Stock of such Issuer then outstanding and (ii) (subject to clause
(ii) of the proviso at the end of Section 3) that portion of the
Collateral consisting of shares of any other Capital Stock of an Issuer to
constitute at all times 100% of the total number of shares of such Capital
Stock then outstanding.
(b) So long as no Event of Default shall have occurred and be
continuing, the Company shall have the right to exercise all voting,
consensual and other powers of ownership pertaining to the Collateral for
all purposes not inconsistent with the terms of this Agreement or any
other Loan Document; and the Company agrees that it will not vote the
Collateral in any manner that is inconsistent with the terms of this
Agreement or any other Loan Document; and the Administrative Agent shall
execute and deliver to the Company or cause to be executed and delivered
to the Company all such proxies, powers of attorney, dividend and other
orders, and all such instruments, without recourse, as the Company may
reasonably request for the purpose of enabling the Company to exercise the
rights and powers that it is entitled to exercise pursuant to this Section
4.04(b).
(c) Unless and until an Event of Default has occurred and is
continuing, the Company shall be entitled to receive and retain any and
all cash dividends and distributions on the Collateral.
(d) If any Event of Default shall have occurred, then so long as
such Event of Default shall continue, and whether or not the
Administrative Agent or any other Secured Party exercises any available
right to declare any Secured Obligation due and payable or seeks or
pursues any other relief or remedy available to it under applicable law or
under this Agreement, the Credit Agreement or any other agreement relating
to such Secured Obligation, upon written notice from the Administrative
Agent (acting upon instructions of the Required Lenders) to the Company,
all dividends and other distributions on the Collateral shall be paid
directly to the Administrative Agent and retained by it as part of the
Collateral, subject to the terms of this Agreement, and, if the
Administrative Agent shall so request in writing, the Company agrees to
execute and deliver to the Administrative Agent appropriate additional
dividend, distribution and other orders and documents to that end;
provided that if such Event of Default is cured, any such dividend or
distribution theretofore paid to the Administrative Agent shall, upon
request of the Company (except to the extent theretofore applied to the
Secured Obligations), be returned by the Administrative Agent to the
Company.
Pledge Agreement
- 6 -
4.05. Events of Default, Etc. During the period during which an
Event of Default shall have occurred and be continuing:
(a) the Administrative Agent shall have all of the rights and
remedies with respect to the Collateral of a secured party under the
Uniform Commercial Code (whether or not the Uniform Commercial Code is in
effect in the jurisdiction where the rights and remedies are asserted, to
the fullest extent permitted by applicable law) and such additional rights
and remedies to which a secured party is entitled under the laws in effect
in any jurisdiction where any rights and remedies hereunder may be
asserted, including, without limitation, the right, to the maximum extent
permitted by law, to exercise all voting, consensual and other powers of
ownership pertaining to the Collateral as if the Administrative Agent were
the sole and absolute owner thereof (and the Company agrees to take all
such action as may be appropriate to give effect to such right);
(b) the Administrative Agent in its discretion may, in its name or
in the name of the Company or otherwise, demand, ▇▇▇ for, collect or
receive any money or property at any time payable or receivable on account
of or in exchange for any of the Collateral, but shall be under no
obligation to do so; and
(c) the Administrative Agent may, upon ten Business Days' prior
written notice to the Company of the time and place, with respect to the
Collateral or any part thereof that shall then be or shall thereafter come
into the possession, custody or control of the Administrative Agent, any
other Secured Party or any of their respective agents, sell, lease, assign
or otherwise dispose of all or any part of such Collateral, at such place
or places as the Administrative Agent deems best, and for cash or for
credit or for future delivery (without thereby assuming any credit risk),
at public or private sale, without demand of performance or notice of
intention to effect any such disposition or of the time or place thereof
(except such notice as is required above or by applicable statute and
cannot be waived), and the Administrative Agent or any other Secured Party
or anyone else may be the purchaser, lessee, assignee or recipient of any
or all of the Collateral so disposed of at any public sale (or, to the
extent permitted by law, at any private sale) and thereafter hold the same
absolutely, free from any claim or right of whatsoever kind, including any
right or equity of redemption (statutory or otherwise), of the Company,
any such demand, notice and right or equity being hereby expressly waived
and released to the fullest extent permitted by applicable law. The
Administrative Agent may, without notice or publication, to the fullest
extent permitted by applicable law, adjourn any public or private sale or
cause the same to be adjourned from time to time by announcement at the
time and place fixed for the sale, and such sale may be made at any time
or place to which the sale may be so adjourned.
The proceeds of each collection, sale or other disposition under this Section
4.05 shall be applied in accordance with Section 4.09.
The Company recognizes that, by reason of certain prohibitions
contained in the Securities Act of 1933, as amended, and applicable state
securities laws, the Administrative
Pledge Agreement
- 7 -
Agent may be compelled, with respect to any sale of all or any part of the
Collateral, to limit purchasers to those who will agree, among other things, to
acquire the Collateral for their own account, for investment and not with a view
to the distribution or resale thereof. The Company acknowledges that any such
private sales may be at prices and on terms less favorable to the Administrative
Agent than those obtainable through a public sale without such restrictions,
and, notwithstanding such circumstances, agrees that any such private sale shall
be deemed to have been made in a commercially reasonable manner and that the
Administrative Agent shall have no obligation to engage in public sales and no
obligation to delay the sale of any Collateral for the period of time necessary
to permit the respective Issuer thereof to register it for public sale.
4.06. Deficiency. If the proceeds of sale, collection or other
realization of or upon the Collateral pursuant to Section 4.05 are insufficient
to cover the costs and expenses of such realization and the payment in full of
the Secured Obligations, the Company shall remain liable for any deficiency.
4.07. Removals, Etc. Without at least 30 days' prior written notice
to the Administrative Agent, the Company shall not change its name from the name
shown on the signature pages hereto.
4.08. Private Sale. The Administrative Agent and the other Secured
Parties shall incur no liability as a result of the sale of the Collateral, or
any part thereof, at any private sale pursuant to Section 4.05 conducted in a
commercially reasonable manner. The Company hereby waives any claims against the
Administrative Agent or any other Secured Party arising by reason of the fact
that the price at which the Collateral may have been sold at such a private sale
was less than the price that might have been obtained at a public sale or was
less than the aggregate amount of the Secured Obligations, even if the
Administrative Agent accepts the first offer received and does not offer the
Collateral to more than one offeree.
4.09. Application of Proceeds. Except as otherwise herein expressly
provided, the Proceeds of any collection, sale or other realization of all or
any part of the Collateral pursuant hereto, and any other cash at the time held
by the Administrative Agent under this Section 4, shall be applied by the
Administrative Agent in the following order:
(i) first, to the payment of the reasonable costs and expenses of
such collection, sale or other realization, including reasonable
out-of-pocket costs and expenses of the Administrative Agent and the
reasonable fees and expenses of its agents and counsel, and all reasonable
costs, expenses or other liabilities incurred and advances made by the
Administrative Agent in connection with this Agreement;
(ii) second, to the payment in full of the Secured Obligations, in
each case equally and ratably in accordance with the respective amounts
thereof then due and owing or as the Secured Parties holding the same may
otherwise agree; and
(iii) finally, to the payment to the Company, or as may be directed
by the Company, or as a court of competent jurisdiction may direct, of any
surplus then remaining.
Pledge Agreement
- 8 -
4.10. Attorney-in-Fact. Without limiting any rights or powers
granted by this Agreement to the Administrative Agent while no Event of
Default has occurred and is continuing, upon the occurrence and during the
continuance of such Event of Default the Administrative Agent is hereby
appointed the attorney-in-fact of the Company for the purpose of carrying
out the provisions of this Agreement and taking any action and executing
any instruments that the Administrative Agent may deem necessary or
advisable to accomplish the purposes hereof, which appointment as
attorney-in-fact is irrevocable and coupled with an interest. Without
limiting the generality of the foregoing, upon the occurrence and during
the continuance of any Event of Default, the Administrative Agent shall
have the right and power to receive, endorse and collect all checks made
payable to the order of the Company representing any dividend, payment or
other distribution in respect of the Collateral or any part thereof and to
give full discharge for the same.
4.11. Perfection. Prior to or concurrently with the execution and
delivery of this Agreement, the Company shall deliver to the
Administrative Agent the certificate or certificates identified in Annex
1, accompanied by undated stock powers duly executed in blank.
4.12. Termination. When (a) all Secured Obligations shall have been
paid in full (other than any indemnity or other obligations expressly
stated to survive termination of any Loan Document), (b) all commitments
of the Secured Parties to make extensions of credit under the Credit
Agreement shall have expired or been terminated and (c) all letters of
credit issued under the Credit Agreement shall have expired or been
terminated, this Agreement shall terminate, and the Administrative Agent
shall, at the expense of the Company, forthwith cause to be assigned,
transferred and delivered, against receipt but without any recourse,
warranty or representation whatsoever, any remaining Collateral and money
received in respect thereof, to or on the order of the Company and to be
released and canceled all licenses and rights referred to in Section 4.04.
4.13. Further Assurances. The Company agrees that, from time to time
upon the written request of the Administrative Agent, the Company will
execute and deliver such further documents and do such other acts and
things as the Administrative Agent may reasonably request in order fully
to effect the purposes of this Agreement.
Section 5. Miscellaneous.
5.01. Notices. All notices, requests, consents and demands hereunder
shall be in writing and telecopied or delivered to the intended recipient at its
address for notices and other communications specified pursuant to Section 10.01
of the Credit Agreement and shall be deemed to have been given at the times
specified in said Section 10.01.
5.02. No Waiver. No failure on the part of the Administrative Agent
or any other Secured Party to exercise, and no course of dealing with respect
to, and no delay in exercising, any right, power or remedy hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise by the
Administrative Agent or any other Secured Party of any right, power or remedy
hereunder preclude any other or further exercise thereof or the exercise of any
other
Pledge Agreement
- 9 -
right, power or remedy. The remedies herein are cumulative and are not
exclusive of any remedies provided by law.
5.03. Amendments, Etc. The terms of this Agreement may be waived,
altered or amended only by an instrument in writing duly executed by the Company
and the Administrative Agent (acting with all requisite consents as provided in
the Credit Agreement). Any such amendment or waiver shall be binding upon the
Administrative Agent, each other Secured Party, each other holder of any of the
Secured Obligations and the Company.
5.04. Expenses. The Company agrees to reimburse each of the
Administrative Agent and the other Secured Parties for all reasonable costs and
expenses of the Administrative Agent and the other Secured Parties (including,
without limitation, the reasonable fees and expenses of legal counsel) in
connection with (i) any Default and any enforcement or collection proceeding
resulting therefrom, including, without limitation, all manner of participation
in or other involvement with (w) performance by the Administrative Agent of any
obligations of the Company in respect of the Collateral that the Company has
failed or refused to perform, (x) bankruptcy, insolvency, receivership,
foreclosure, winding up or liquidation proceedings, or any actual or attempted
sale, or any exchange, enforcement, collection, compromise or settlement in
respect of any of the Collateral, and for the care of the Collateral and
defending or asserting rights and claims of the Administrative Agent in respect
thereof, by litigation or otherwise, (y) judicial or regulatory proceedings and
(z) workout, restructuring or other negotiations or proceedings (whether or not
the workout, restructuring or transaction contemplated thereby is consummated)
and (ii) the enforcement of this Section 5.04, and all such costs and expenses
shall be Secured Obligations entitled to the benefits of the collateral security
provided pursuant to Section 3.
5.05. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the respective successors and assigns of the
Company, the Administrative Agent, each other Secured Party and each other
holder of any of the Secured Obligations; provided that the Company shall not
assign or transfer its rights hereunder without the prior written consent of
each Secured Party (and any attempted assignment or transfer by the Company
without such consent shall be null and void).
5.06. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and either of the parties hereto may execute this Agreement by
signing any such counterpart.
5.07. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the law of the State of New York.
5.08. Jurisdiction. The Company hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement, or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such
Pledge Agreement
- 10 -
action or proceeding may be heard and determined in any such New York State or,
to the extent permitted by law, in such federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that any party may otherwise have to bring any action or proceeding
relating to this Agreement in the courts of any jurisdiction.
5.09. Waiver of Venue. The Company hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement in
any court referred to in Section 5.08. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
5.10. Service of Process. Each party to this Agreement irrevocably
consents to service of process in the manner provided for notices in Section
5.01. Nothing in this Agreement will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
5.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
5.12. Captions. The captions and section headings appearing herein
are included solely for convenience of reference and are not intended to affect
the interpretation of any provision of this Agreement.
5.13. Agents and Attorneys-in-Fact. The Administrative Agent may
employ agents and attorneys-in-fact in connection herewith and shall not be
responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it in good faith and in the absence of gross
negligence or willful misconduct.
5.14. Severability. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(a) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be construed in order to carry out the intentions of the
parties hereto as nearly as may be possible and (b) the invalidity or
Pledge Agreement
- 11 -
unenforceability of any provision hereof in any jurisdiction shall not affect
the validity or enforceability of such provision in any other jurisdiction.
Pledge Agreement
- 12 -
IN WITNESS WHEREOF, the parties hereto have caused this Pledge
Agreement to be duly executed and delivered as of the day and year first above
written.
CAMBREX CORPORATION
By:__________________________
Name:
Title:
Pledge Agreement
- 13 -
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
By:________________________
Name:
Title:
Pledge Agreement
ANNEX 1
PLEDGED STOCK
Certificate
Issuer No(s). Registered Owner Number of Shares
--------------------- ----------- ------------------- ----------------------
Cambrex Bahamas, Inc. 1 Cambrex Corporation 1,000 Ordinary shares,
par value $1.00
Pledge Agreement
EXHIBIT C
[Form of Guarantee Assumption Agreement]
GUARANTEE ASSUMPTION AGREEMENT
GUARANTEE ASSUMPTION AGREEMENT dated as of ________ __, 20__ by
[NAME OF ADDITIONAL SUBSIDIARY GUARANTOR], a ________ corporation (the
"Additional Subsidiary Guarantor"), in favor of JPMorgan Chase Bank, N.A., as
administrative agent for the lenders party as "Lenders" to the Credit Agreement
referred to below (in such capacity, together with its successors in such
capacity, the "Administrative Agent").
Cambrex Corporation, a Delaware corporation, the Subsidiary
Borrowers referred to therein, the Subsidiary Guarantors referred to therein,
the Lenders referred to therein and the Administrative Agent are parties to the
Credit Agreement dated as of April 6, 2007 (as modified and supplemented and in
effect from time to time, the "Credit Agreement").
Pursuant to Section 6.09(a) of the Credit Agreement, the Additional
Subsidiary Guarantor hereby agrees to become a "Subsidiary Guarantor" for all
purposes of the Credit Agreement. Without limiting the foregoing, the Additional
Subsidiary Guarantor hereby, jointly and severally with the other Subsidiary
Guarantors, guarantees to each Lender and the Administrative Agent and their
respective successors and assigns the prompt payment in full when due (whether
at stated maturity, by acceleration or otherwise) of all Subsidiary Borrower
Guaranteed Obligations (as defined in Section 3.01(b) of the Credit Agreement)
in the same manner and to the same extent as is provided in Article III of the
Credit Agreement. In addition, the Additional Subsidiary Guarantor hereby makes
the representations and warranties set forth in Sections 4.01, 4.02 and 4.03 of
the Credit Agreement with respect to itself and its obligations under this
Agreement, as if each reference in such Sections to the Loan Documents included
reference to this Agreement.
The Additional Subsidiary Guarantor hereby instructs its counsel to
deliver the opinions referred to in Section 6.09(a)(ii) of the Credit Agreement
to the Lenders and the Administrative Agent.
Guarantee Assumption Agreement
- 2 -
IN WITNESS WHEREOF, the Additional Subsidiary Guarantor has caused
this Guarantee Assumption Agreement to be duly executed and delivered as of the
day and year first above written.
[NAME OF ADDITIONAL SUBSIDIARY
GUARANTOR]
By:____________________________
Name:
Title:
Accepted and agreed:
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
By:____________________________
Name:
Title:
Guarantee Assumption Agreement
EXHIBIT D-1
[Form of Opinion of General Counsel of the Obligors]
April 6, 2007
JPMorgan Chase Bank, N.A.,
as Administrative Agent under the
Credit Agreement referred to below
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
and
Each of the Lenders named in Annex A
hereto that are parties to the
Credit Agreement referred to below
Ladies and Gentlemen:
I am Senior Vice President, General Counsel and Secretary of Cambrex
Corporation, a Delaware corporation (the "Company"), and have acted as counsel
for the Company and certain of its subsidiaries in connection with (a) the
Credit Agreement, dated as of April 6, 2007 (the "Credit Agreement") among the
Company, the Subsidiary Borrowers party thereto, the Subsidiary Guarantors party
thereto, the lenders named on the signature pages thereof (the "Lenders") and
JPMorgan Chase Bank, N.A., as Administrative Agent (in such capacity, the
"Administrative Agent") and (b) the Pledge Agreement, dated as of April 6, 2007
(the "Pledge Agreement"), between the Company and the Administrative Agent.
I am rendering this opinion pursuant to Section 5.01(b)(i) of the
Credit Agreement. As used herein, the following terms shall have the following
meanings: The term "Subsidiary Guarantors" means those subsidiaries of the
Company listed in Annex B hereto. The term "Borrower" means the Company. The
term "Obligors" means the Borrower and the Subsidiary Guarantors. The term "Loan
Documents" means the Credit Agreement, the Pledge Agreement and each promissory
note of the Borrower (if any) executed on the date hereof under the Credit
Agreement (the "Notes"). Capitalized terms not otherwise defined herein shall
have the meanings ascribed to them in the Credit Agreement.
As counsel to the Obligors, I have examined the following
instruments and documents: (i) the Loan Documents and (ii) such other documents
relating to the transactions contemplated by the Credit Agreement that I have
deemed necessary or appropriate. I have also examined and relied upon
certificates of public officials and officers of the Obligors, and have examined
such other documents and instruments and have made such further investigations
as I have deemed necessary or appropriate in connection with rendering this
opinion. I have reviewed the charter documents, including amendments, and the
Bylaws of the Obligors and am
Opinion of General Counsel of the Obligors
- 2 -
familiar with the affairs of and actions taken by such Obligors in connection
with the execution and delivery of the Loan Documents.
Based upon the foregoing, it is my opinion that:
1. Each of the Obligors is a corporation duly incorporated, validly
existing and in good standing under the laws of the state of its incorporation,
and is duly qualified to do business, and is in good standing, in each
additional jurisdiction where such qualification is necessary under applicable
law, except where the failure to so qualify would not have a Material Adverse
Effect. Each of the Obligors has all requisite corporate power to own its
properties and to carry on its business as now being conducted, and to execute,
deliver and perform the Loan Documents to which it is a party and to engage in
the transactions contemplated by such Loan Documents.
2. The execution, delivery, and performance of the Loan Documents
and the transactions contemplated thereby are within the corporate powers of
each of the Obligors party thereto, have been duly authorized by all necessary
corporate action, and do not contravene any law, rule or regulation, or any
judgment, decree, writ, injunction, order or award of any arbitrator, court or
governmental authority, or of the terms of the certificate of incorporation or
by-laws of any such Obligor, or of any contract or undertaking to which any such
Obligor is a party or by which any such Obligor or its property may be bound or
affected or, in the case of the Borrower, result in the imposition of any Lien
except for Permitted Encumbrances and Liens created pursuant to the Loan
Documents.
3. Except as set forth in Schedules 4.06(a) and 4.06(b) to the
Credit Agreement, there are no actions, suits, proceedings or other matters
pending or, to the best of my knowledge after due inquiry, threatened against or
affecting the Company or any of its Subsidiaries before any court, governmental
authority, or arbitrator (i) as to which there is a reasonable possibility of an
adverse determination and that, if adversely determined, could reasonably be
expected, individually or in the aggregate, to result in a Material Adverse
Effect or (ii) that involve any Loan Document or the Transactions.
4. No consent, approval or authorization of or declaration,
registration or filing with any United States or New York governmental authority
or any nongovernmental person on the part of any Obligor is required to be
obtained or made in connection with the execution, delivery and performance of
the Loan Documents to which it is a party or the transactions contemplated
hereby or thereby, or as a condition to the legality, validity or enforceability
of such documents.
5. Each Obligor has duly executed and delivered each Loan Document
to which it is a party.
6. None of the Obligors is an "investment company" as defined in, or
subject to regulation under, the Investment Company Act of 1940.
Opinion of General Counsel of the Obligors
- 3 -
I am qualified to practice law only in the State of New York and I
express no opinion as to the laws of other jurisdictions other than the federal
law of the United States and the General Corporation Law of the State of
Delaware. Insofar as the laws of any such other jurisdiction are relevant to the
opinions expressed herein with respect to any Obligor organized under the laws
of any State other than New York or Delaware, I have assumed, with your
concurrence, that such laws are not materially different from the comparable
laws of the State of New York.
This opinion is solely for the benefit of the Administrative Agent
and the Lenders and their attorneys, accountants, employees, representatives,
successors and assigns in connection with the transactions contemplated pursuant
to the Credit Agreement and the agreements and documents executed in connection
therewith.
Very truly yours,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Opinion of General Counsel of the Obligors
Annex A
LENDERS
JPMorgan Chase Bank, N.A.
[____________]
Opinion of General Counsel of the Obligors
Annex B
SUBSIDIARY GUARANTORS
Cambrex ▇▇▇▇▇▇▇ City, Inc.
Cambrex North Brunswick, Inc.
CBM Technologies, Inc.
Opinion of General Counsel of the Obligors
EXHIBIT D-2
[Form of Opinion of Special New York Counsel to the Obligors]
April 6, 2007
JPMorgan Chase Bank, N.A.,
as Administrative Agent under the
Credit Agreement referred to below
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Each of the Lenders named in Annex A
attached hereto that are parties to the
Credit Agreement referred to below
We have acted as special New York counsel to (i) Cambrex
Corporation, a Delaware corporation (the "Company") and (ii) each of the
Subsidiary Guarantors referred to below in connection with (a) the Credit
Agreement, dated as of April 6, 2007 (the "Credit Agreement"), among the
Company, the Subsidiary Borrowers party thereto, the Subsidiary Guarantors party
thereto, the lenders named on the signature pages thereof (collectively, the
"Lenders") and JPMorgan Chase Bank, N.A., as Administrative Agent (in such
capacity, the "Administrative Agent") and (b) the Pledge Agreement, dated as of
April 6, 2007 (the "Pledge Agreement"), between the Company and the
Administrative Agent. Capitalized terms used but not otherwise defined herein
shall have the meanings ascribed to them in the Credit Agreement.
The opinions expressed below are furnished to you pursuant to
Section 5.01(b)(ii) of the Credit Agreement. As used herein, the following terms
shall have the following meanings: The term "Certificated Securities" means the
Pledged Stock (as defined in the Pledge Agreement) of Cambrex Bahamas, Inc. that
is held by the Company, to the extent such Pledged Stock constitutes
certificated securities within the meaning of Section 8-102(a)(4) of the UCC.
The term "Subsidiary Guarantors" means those subsidiaries of the Company listed
in Annex B hereto. The term "Borrower" means the Company. The term "Obligors"
means the Borrower and the Subsidiary Guarantors. The term "Loan Documents"
means the Credit Agreement, the Pledge Agreement and each promissory note of the
Borrower (if any) executed on the date hereof under the Credit Agreement (each,
a "Note"). The term "UCC" means the Uniform Commercial Code as in effect in the
State of New York on the date hereof.
- 3 -
JPMorgan Chase Bank, N.A.,
as Administrative Agent
Each of the Lenders named
in Annex A [_______], 2007
In arriving at the opinions expressed below,
1. we have examined and relied as to factual matters on the following
(including, but not limited to, the representations and warranties contained
therein):
(a) originals, or copies certified or otherwise identified to our
satisfaction, of the Loan Documents;
(b) such corporate or partnership documents and records of the
Obligors and such other instruments and certificates of public officials,
officers and representatives of the Obligors, and other persons, as we
have deemed necessary or appropriate for the purposes of this opinion; and
2. we have made such investigations of law as we have deemed appropriate as a
basis for this opinion.
In rendering the opinions expressed below, we have assumed, with
your permission, without independent investigation or inquiry, (a) the
authenticity of all documents submitted to us as originals, the genuineness of
all signatures, and the conformity to the authentic originals of all documents
submitted to us as telecopied, certified, photostatic or reproduced copies and
the authenticity of the originals of such latter documents, (b) that each Loan
Document has been duly authorized by each person party thereto, that each such
person has the requisite power and authority to execute, deliver and perform
such Loan Document, that each such person is duly organized and that each such
person is validly existing and in good standing under the laws of its
jurisdiction of organization, (c) that each Loan Document has been duly executed
and delivered by each person party thereto, (d) that each Loan Document is the
valid and binding obligation of each person party thereto (other than the
Obligors), enforceable against such person in accordance with its terms and (e)
the accuracy of the separate opinion, addressed to you, dated today, of ▇▇▇▇▇ ▇.
▇▇▇▇▇▇, Senior Vice President, General Counsel and Secretary to the Company.
Based upon and subject to the foregoing and the assumptions,
qualifications and limitations hereinafter set forth, we are of the opinion
that:
1. Each of the Credit Agreement and (when executed and delivered for
value) Note constitutes the valid and binding obligation of each Obligor party
thereto, enforceable against such Obligor in accordance with its terms.
2. (a) The provisions of the Pledge Agreement are effective to
create a valid security interest in favor of the Administrative Agent, as
security for the Secured
- 4 -
JPMorgan Chase Bank, N.A.,
as Administrative Agent
Each of the Lenders named
in Annex A [_______], 2007
Obligations (as defined in the Pledge Agreement) set forth in the Pledge
Agreement, in all of the Collateral (as defined in the Pledge Agreement)
described therein that is of the type in which a security interest can be
created under Article 9 of the UCC, to the extent the UCC is applicable to the
creation of such security interest.
(b) Upon the due execution and delivery today of the Pledge
Agreement and delivery in New York State of the Certificated Securities (in
certificated form), in each case either in bearer form or registered form,
issued or endorsed in each case in the name of the Administrative Agent or in
blank, to (and retention of control (as defined in Section 8-106 of the UCC)
thereof in New York State by) the Administrative Agent, the Administrative Agent
will have a perfected security interest, for the benefit of the Lenders, in such
Certificated Securities, to the extent the UCC is applicable to the perfection
of such security interest.
Our opinions set forth above are subject to the effects of (a)
bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer,
reorganization and moratorium laws and other similar laws relating to or
affecting creditors' rights or remedies generally and (b) general equitable
principles (whether considered in a proceeding in equity or at law). Our
opinions set forth above are also subject to the effects of (i) concepts of good
faith, reasonableness and fair dealing, and standards of materiality, (ii)
applicable laws and interpretations which may affect the validity or
enforceability of certain provisions of the Pledge Agreement, which limitations,
however, do not, in our opinion, make the remedies provided for therein
inadequate for the practical realization of the principal benefits intended to
be provided thereby (subject to the other qualifications expressed herein) and
(iii) limitations on the validity or enforceability of rights to
indemnification, contribution or exculpation under applicable law (including
court decisions).
Without limiting the foregoing, we express no opinion as to the
validity, binding effect or enforceability of any provision of any Loan Document
that purports to (i) prohibit any Obligor from transferring its respective
rights in the collateral described in the Loan Documents or any proceeds
thereof, as contemplated by Section 9-401 of the UCC, (ii) permit the
Administrative Agent to vote or otherwise exercise any rights with respect to
any of the collateral under the Loan Documents absent compliance with the
requirements of applicable laws and regulations as to the voting of or other
exercise of rights with respect to such collateral, (iii) waive, release or vary
any defense, right or privilege of, or any duties owing to, any Obligor to the
extent that such waiver, release or variation may be limited by Section
1-102(3), 9-602 or 9-603 of the UCC or other provisions of applicable law, (iv)
grant any right of set-off with respect to any contingent or unmatured
obligation, (v) maintain or impose any obligation to pay any amount in U.S.
dollars where a final judgment concerning such obligation is rendered in another
currency, (vi) constitute a waiver of inconvenient forum, or (vii) relate to the
subject
- 5 -
JPMorgan Chase Bank, N.A.,
as Administrative Agent
Each of the Lenders named
in Annex A [_______], 2007
matter jurisdiction of a court to adjudicate any controversy. We express
no opinion as to (a) Section 3.06 of the Credit Agreement or (b) the waiver by
any Subsidiary Guarantor of any defense, right, privilege or benefit to the
extent such waiver is made to a greater extent than would be permitted by
applicable law. We wish to call to your attention that the enforceability of
waivers of immunity is subject to the limitations imposed by the U.S. Foreign
Sovereign Immunities Act of 1976, as amended.
We express no opinion as to the creation, validity or perfection of
any security interest, or the validity, binding effect or enforceability of any
Loan Document to the extent that such Loan Document grants or purports to grant
(a) a security interest (i) that is not governed by the UCC (including but not
limited to any such security interest with respect to (A) copyrights, copyright
licenses, patents, patent licenses, trademarks and trademark licenses or (B)
insurance policies), (ii) in commercial tort claims, letter-of-credit rights,
fixtures, cooperative interests, farm products, as-extracted collateral or
timber to be cut, (iii) in any property the terms of or governing which void or
prohibit, or are violated by, the granting of such security interest or (iv) in
any claim against the United States, (b) a mortgage or other interest in real
property, or (c) an agricultural lien. Our opinion set forth in paragraph 2
above is limited to Articles 8 and 9 of the UCC and therefore does not address
(i) laws of jurisdictions other than New York, (ii) laws of New York other than
Articles 8 and 9 of the UCC or (iii) collateral of a type not subject to Article
9 of the UCC. We express no opinion as to what law governs perfection of any
security interest granted by the Loan Documents. We have assumed with your
permission that (i) none of the Lenders or the Administrative Agent has waived,
subordinated or agreed with any third party to any modification of the priority
of any security interest granted by the Loan Documents, (ii) the Certificated
Securities will be held at all times by the Administrative Agent in the State of
New York and (iii) each Obligor has sufficient rights in the collateral
described in the Loan Documents for the security interests granted thereby to
attach. We express no opinion as to the title or any other interest of any
Obligor in or to any of the collateral described in the Loan Documents. No
security interest will exist with respect to after-acquired property of any
Obligor until such Obligor has rights therein within the meaning of Section
9-203 of the UCC and, in the case of investment property, the Administrative
Agent has taken control thereof in the manner prescribed by Section 8-106 of the
UCC.
Except as set forth in paragraph 2 above, we express no opinion as
to the validity or perfection of the security interests purported to be created
by the Loan Documents. We express no opinion as to the validity or perfection of
such security interests:
(i) with respect to collateral sold, exchanged or otherwise disposed
of by any Obligor;
- 6 -
JPMorgan Chase Bank, N.A.,
as Administrative Agent
Each of the Lenders named
in Annex A [_______], 2007
(ii) to the extent such security interests may be affected by (A)
▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code, under which a bankruptcy
court has discretion as to the extent to which post-petition proceeds may
be subject to a lien arising from a security agreement entered into by the
debtor before the commencement of the case, or (B) Section 547(b) of the
United States Bankruptcy Code, relating to the power to avoid a
preference;
(iii) with respect to proceeds, to the extent of limitations under
Section 9-315 of the UCC on the perfection of a security interest in
proceeds;
(iv) as to any collateral acquired by the party granting such
security interest more than four months after such party changes its name
so as to make the relevant financing statements seriously misleading,
unless amendments to such financing statements indicating the new name,
identity or corporate structure of such party are properly filed before
the expiration of such four months;
(v) as to any collateral acquired by a new debtor after becoming
bound by a security agreement entered into by another person;
(vi) as to any property subject to a statute, regulation or treaty
of the United States, whose requirements for a security interest's
obtaining priority over the rights of a lien creditor with respect to such
property preempt Section 9-310(a) of the UCC;
(vii) as to any goods that are an accession to, or commingled or
processed with, other goods, to the extent limited by Section 9-335 or
9-336 of the UCC; or
(viii) as to goods of any kind, such as motor vehicles, subject to
certificate of title statutes.
We call to your attention that (A) the UCC requires periodic filing
of continuation statements in order to maintain the effectiveness of financing
statements filed pursuant thereto and (B) Section 8-107 of the UCC may in
certain circumstances limit the rights of a secured party in respect of any
unauthorized endorsement with respect to certificated securities constituting
collateral under the Pledge Agreement not registered in the name of or issued to
the Administrative Agent and not originally issued in bearer form.
We express no opinion as to the priority of the security interests
purported to be created by the Loan Documents. Our opinion in paragraph 2 above
is subject to the provisions of the law of any jurisdiction where an issuer of
Stock Collateral (as defined in
- 7 -
JPMorgan Chase Bank, N.A.,
as Administrative Agent
Each of the Lenders named
in Annex A [_______], 2007
the Pledge Agreement) is incorporated or formed. Without limiting the foregoing,
we express no opinion as to the priority of any security interest (i) as against
any claims or liens in favor of the United States or any state thereof, or any
federal or state agency, instrumentality or political subdivision, including but
not limited to liens for payment of federal, state or local taxes that are given
priority by operation of law, liens under Title IV of the Employee Retirement
Security Act of 1974, as amended, or claims arising under 31 U.S.C. Section
3713, (ii) as against any rights of a person in possession of proceeds
consisting of money or "instruments" (as defined in Section 9-102(a)(47) of the
UCC), (iii) as against liens under Section 4-208 of the UCC, relating to
security interests of a collecting bank, (iv) as against liens granted under
Section 364(d) of the United States Bankruptcy Code, relating to liens granted
by a court after the commencement of a case, or (v) that has been perfected by
"control" under Section 8-106 of the UCC, as against any other security interest
in the same property that has also been perfected by "control."
We express no opinion as to the effect of, or compliance with, any
Federal or State laws regarding fraudulent transfers or conveyances, or laws
governing preferential transfers, or provisions of state law restricting
dividends, loans or other distributions by a corporation to or for the benefit
of its stockholders, or any Federal or State securities laws, rules or
regulations, including without limitation as to the effect thereof on the
validity, binding effect or enforceability of any of the Loan Documents.
We express no opinion as to the laws of any jurisdiction other than
the laws of the State of New York and the Federal laws of the United States of
America that, in our experience, are generally applicable to transactions of
this type. In particular (and without limiting the generality of the foregoing)
we express no opinion as to (a) the laws of any country (other than the Federal
laws of the United States of America) or (b) the effect of such laws (whether
limiting, prohibitive or otherwise) on any of the rights or obligations of any
Obligor or of any other party to or beneficiary of any of the Loan Documents, or
(c) whether the choice of the law of the State of New York as the governing law
in any Loan Document would be given effect by any court or governmental
authority other than a court of the State of New York. In giving the foregoing
opinion, we express no opinion as to the effect (if any) of any law of any
jurisdiction (except the State of New York) in which any Lender is located which
limits the rate of interest that such Lender may charge or collect. In giving
the foregoing opinion, we have assumed that the execution and delivery by each
Obligor of the Loan Documents to which it is a party and the performance by each
Obligor of its obligations thereunder will not be illegal or unenforceable or
violate any fundamental public policy under applicable law (other than the laws
of the State of New York and Federal laws of the United States of America), and
that no such party has entered therein with the intent of avoiding or a view to
violating applicable law.
- 8 -
JPMorgan Chase Bank, N.A.,
as Administrative Agent
Each of the Lenders named
in Annex A [_______], 2007
This opinion letter is limited to the matters stated and no opinion
is implied or may be inferred beyond the matters expressly stated herein. The
opinions expressed herein are rendered only as of the date hereof, and we assume
no responsibility to advise you of facts, circumstances, events or developments
which hereafter may be brought to our attention and which may alter, affect or
modify the opinions expressed herein.
The opinions expressed herein are solely for your benefit and,
without our prior consent, neither our opinions nor this opinion letter may be
relied upon by or disclosed to any other person.
Very truly yours,
Annex A
LENDERS
JPMorgan Chase Bank, N.A.
[__________]
Annex B
SUBSIDIARY GUARANTORS
Cambrex ▇▇▇▇▇▇▇ City, Inc.
Cambrex North Brunswick, Inc.
CBM Technologies, Inc.
Opinion of Special New York Counsel to the Obligors
EXHIBIT E
[Form of Opinion of Special New York Counsel to JPMCB]
April 6, 2007
To the Lenders party to the Credit Agreement
referred to below and JPMorgan Chase Bank, N.A.,
as Administrative Agent
Ladies and Gentlemen:
We have acted as special New York counsel to JPMorgan Chase Bank,
N.A. ("JPMCB") in connection with the Credit Agreement (the "Credit Agreement")
dated as of April 6, 2007, between Cambrex Corporation (the "Company"), the
Subsidiary Guarantors party thereto, the lenders party thereto and JPMCB, as
Administrative Agent, providing for extensions of credit to be made by said
lenders to the Company in an aggregate initial principal or face amount not
exceeding $200,000,000.
Except as otherwise provided herein, terms defined in the Credit
Agreement are used herein as defined therein. The Company and the Subsidiaries
of the Company party to the Credit Agreement are herein collectively referred to
as the "Obligors". This opinion letter is being delivered pursuant to Section
5.01(c) of the Credit Agreement.
In rendering the opinions expressed below, we have examined executed
counterparts of the Credit Agreement. In our examination, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals and the conformity with authentic original documents of all
documents submitted to us as copies. When relevant facts were not independently
established, we have relied upon representations made in or pursuant to the
Credit Agreement. We have also assumed that the Credit Agreement has been duly
authorized, executed and delivered by, and (except, to the extent set forth
below, as to the Obligors) constitutes legal, valid, binding and enforceable
obligations of, all of the parties thereto, that all signatories thereto have
been duly authorized and that all such parties are duly organized and validly
existing and have the power and authority (corporate or other) to execute,
deliver and perform the same and that all authorizations, approvals or consents
of (including without limitation all foreign exchange control approvals), and
all filings or registrations with, any governmental or regulatory authority or
agency (including any central bank) required for the making and performance by
the Obligors of the Credit Agreement have been obtained or made and are in
effect.
Based upon and subject to the foregoing and subject also to the
comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinions
expressed below, we are of the opinion that the Credit Agreement constitutes the
legal, valid and binding obligation of each Obligor party thereto,
Opinion of Special New York Counsel to JPMCB
- 2 -
enforceable against such Obligor in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization, fraudulent conveyance or
transfer, moratorium or other similar laws relating to or affecting the rights
of creditors generally, and subject to the possible judicial application of
foreign laws or governmental action affecting the rights of creditors generally,
and except as the enforceability of the Credit Agreement is subject to the
application of general principles of equity (regardless of whether considered in
a proceeding in equity or at law), including (a) the possible unavailability of
specific performance, injunctive relief or any other equitable remedy and (b)
concepts of materiality, reasonableness, good faith and fair dealing.
The foregoing opinions are subject to the following comments and
qualifications:
(A) The enforceability of Section 10.03 of the Credit Agreement may
be limited by laws limiting the enforceability of provisions exculpating
or exempting a party from, or requiring indemnification of a party for,
liability for its own action or inaction, to the extent the action or
inaction involves gross negligence, recklessness, willful misconduct or
unlawful conduct.
(B) The enforceability of provisions in the Credit Agreement to the
effect that terms may not be waived or modified except in writing may be
limited under certain circumstances.
(C) We express no opinion as to (i) the effect of the laws of any
jurisdiction in which any Lender is located (other than the State of New
York) that limit the interest, fees or other charges such Lender may
impose for the loan or use of money or other credit, (ii) the last
sentence of Section 2.17(d) or Section 3.06 of the Credit Agreement, (iii)
the first sentence of Section 10.09(b) of the Credit Agreement, insofar as
such sentence relates to the subject-matter jurisdiction of the United
States District Court for the Southern District of New York to adjudicate
any controversy related to the Credit Agreement, (iv) the waiver of
inconvenient forum set forth in Section 10.09(c) of the Credit Agreement
with respect to proceedings in the United States District Court for the
Southern District of New York, (v) Section 10.11 of the Credit Agreement
and (vi) Section 10.15 of the Credit Agreement to the extent it relates to
immunity acquired after the date of execution and delivery of the Credit
Agreement.
(D) Paragraph (iii) of Section 3.02 of the Credit Agreement may not
be enforceable to the extent that the Guaranteed Obligations are
materially modified.
(E) We express no opinion as to the applicability to the obligations
of the Subsidiary Guarantors of Section 548 of the Bankruptcy Code,
Article 10 of the New York Debtor Creditor Law or any other provision of
law relating to fraudulent conveyances, transfers or obligations, nor do
we express any opinion as to the enforceability of such obligations.
Opinion of Special New York Counsel to JPMCB
- 3 -
The foregoing opinions are limited to matters involving the Federal
laws of the United States of America and the law of the State of New York, and
we do not express any opinion as to the laws of any other jurisdiction.
At the request of our client, this opinion letter is, pursuant to
Section 5.01(c) of the Credit Agreement, provided to you by us in our capacity
as special New York counsel to JPMCB and may not be relied upon by any other
person or for any purpose other than in connection with the transactions
contemplated by the Credit Agreement without, in each instance, our prior
written consent.
Very truly yours,
WJM/MJB
Opinion of Special New York Counsel to JPMCB
EXHIBIT F
[Form of Subsidiary Borrower Designation Letter]
SUBSIDIARY BORROWER DESIGNATION LETTER
_____________, 20__
To JPMorgan Chase Bank, N.A.,
as Administrative Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Re: Subsidiary Borrower Designation
Ladies and Gentlemen:
Reference is made to the Credit Agreement (the "Credit Agreement")
dated as of April 6, 2007 among Cambrex Corporation (the "Company"), the
Subsidiary Borrowers party thereto, the Subsidiary Guarantors party thereto, the
Lenders party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent
(the "Administrative Agent"). Capitalized terms used but not defined herein
shall have the respective meanings assigned to such terms in the Credit
Agreement.
The Company hereby designates [________] (the "Subject Subsidiary"),
a wholly-owned Subsidiary of the Company and a [corporation] duly organized
under the laws of [________], as a Subsidiary Borrower in accordance with
Section 2.19(a) of the Credit Agreement until such designation is terminated in
accordance with Section 2.19(c).
The Subject Subsidiary hereby accepts the above designation and
hereby expressly and unconditionally accepts the obligations of a Subsidiary
Borrower and an Obligor under the Credit Agreement, adheres to the Credit
Agreement and agrees and confirms that, upon your execution and return to the
Company of the enclosed copy of this letter, it shall be a Subsidiary Borrower
for purposes of the Credit Agreement and agrees to be bound by and perform and
comply with the terms and provisions of the Credit Agreement applicable to it as
if it had originally executed the Credit Agreement as a Subsidiary Borrower.
Pursuant to Section 10.16 of the Credit Agreement, the Subject Subsidiary hereby
authorizes and empowers the Company to act as its representative and
attorney-in-fact for the purposes of signing documents and giving and receiving
notices (including notices of Borrowing under the Credit Agreement) and other
communications in connection with the Credit Agreement and the transactions
contemplated thereby and for the purposes of modifying or amending any provision
of the Credit
Subsidiary Borrower Designation Letter
- 2 -
Agreement and further agrees that the Administrative Agent and each Lender may
conclusively rely on the foregoing authorization.
The Company hereby confirms and agrees that after giving effect to
this Designation Letter the Guarantee of the Company contained in Article III of
the Credit Agreement shall apply to all of the obligations of the Subject
Subsidiary under the Credit Agreement.
The Subject Subsidiary hereby represents and warrants:
1. The Subject Subsidiary is a wholly-owned Subsidiary of the
Company;
2. Each of the representations and warranties set forth in Sections
4.01, 4.02 and 4.03 of the Credit Agreement is true as if each reference
therein to the Company or to an Obligor were a reference to the Subject
Subsidiary and as if each reference therein to the Loan Documents were a
reference to this Designation Letter and the promissory notes, if any,
executed by the Subject Subsidiary in connection herewith;
3. [The representations and warranties set forth in Section 4.15 are
true and correct on the date hereof;](2)
4. The Subject Subsidiary's addresses for notices, other
communications and service of process provided for in the Credit Agreement
shall be given in the manner, and with the effect, specified in Sections
10.01 and 10.09(e) of the Credit Agreement to it at its "Address for
Notices" specified on the signature pages below; and
5. The Subject Subsidiary shall deliver to the Administrative Agent
the documents and certificates set forth in Section 2.19 of the Credit
Agreement and such other documents as the Administrative Agent shall
reasonably request that are consistent with conditions for Subsidiary
Obligors set forth in Section 5.01 of the Credit Agreement, each in form
and substance reasonably satisfactory to the Administrative Agent.
Attached hereto are certified copies of the following documents:
(i) the [certificate of incorporation][certificate of
formation][articles of organization] and [by-laws][limited
liability company agreement] [partnership agreement] of the
Subject Subsidiary and authorizing resolutions of the [Board
of Directors][Sole Member][General Partner] of the Subject
Subsidiary;(3) and
(ii) a certificate of the Secretary or an Assistant Secretary of
the Subject Subsidiary in respect of each of the officers (x)
who are authorized to sign this Agreement and the other Loan
Documents on the Subject Subsidiary's behalf, and (y) who
will, until replaced by another officer or officers duly
----------
(2) Insert if the Subject Subsidiary is a Foreign Subsidiary.
(3) To be revised as appropriate to reflect the relevant organizational
documents of the Subject Subsidiary.
Subsidiary Borrower Designation Letter
- 3 -
authorized for that purpose, act as its representative for the
purposes of signing documents and giving notices and other
communications in connection with the Credit Agreement, the
other Loan Documents and the transactions contemplated
thereby.
The designation of the Subject Subsidiary as a Subsidiary Borrower
under the Credit Agreement shall become effective as of the date (the "Effective
Date") on which the Administrative Agent accepts this Designation Letter as
provided on the signature pages below. As of the Effective Date, the Subject
Subsidiary shall be entitled to the rights, and subject to the obligations, of a
Subsidiary Borrower. Except as expressly herein agreed with respect to the
joinder of the Subject Subsidiary as a Subsidiary Borrower, the Credit Agreement
shall remain unchanged and in full force and effect.
The Subject Subsidiary hereby agrees that this Designation Letter,
the Credit Agreement and the Notes shall be governed by, and construed in
accordance with, the law of the State of New York. The Subject Subsidiary hereby
submits to the nonexclusive jurisdiction of any New York State court or Federal
court of the United States of America, in each case sitting in New York County,
and any appellate court from any thereof, for the purposes of all legal
proceedings arising out of or relating to this Designation Letter, the Credit
Agreement or the transactions contemplated thereby. The Subject Subsidiary
irrevocably waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought in such a
court has been brought in an inconvenient forum. The Subject Subsidiary further
agrees that service of process in any such action or proceeding brought in New
York may be made upon its agent appointed as provided in Section 10.09(d) of the
Credit Agreement.
THE SUBJECT SUBSIDIARY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS DESIGNATION LETTER, THE CREDIT
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY.
This Designation Letter may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
agreement.
Subsidiary Borrower Designation Letter
- 4 -
IN WITNESS WHEREOF, the Company and the Subject Subsidiary have
caused this Subsidiary Borrower Designation Letter to be duly executed and
delivered as of the day and year first above written.
CAMBREX CORPORATION
By__________________________
Title:
[NAME OF SUBJECT SUBSIDIARY]
a _________ [corporation]
By:_________________________
Name:
Title:
Address for Notices
____________________________
____________________________
____________________________
Attn:_______________________
Tel:________________________
Fax:________________________
Subsidiary Borrower Designation Letter
- 5 -
ACCEPTED:
JPMORGAN CHASE BANK, N.A.
as Administrative Agent
By____________________________
Title:
Subsidiary Borrower Designation Letter
- 6 -
EXHIBIT G
[Form of Subsidiary Borrower Termination Letter]
_____________, 20__
To JPMorgan Chase Bank, N.A.,
as Administrative Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Each of the Lenders party to the
Credit Agreement referred to below
Re: Termination of [____________] (the "Subject Subsidiary") as Subsidiary
Borrower
The Company hereby gives notice pursuant to Section 2.19(c) of the
Credit Agreement dated as of April 6, 2007 (the "Credit Agreement") among
Cambrex Corporation (the "Company"), the Subsidiary Borrowers party thereto, the
Subsidiary Guarantors party thereto, the Lenders party thereto and JPMorgan
Chase Bank, N.A., as Administrative Agent (the "Administrative Agent") that,
effective as of the date hereof, the Subject Subsidiary is terminated as a
Borrower under the Credit Agreement and all commitments by the Lenders to issue
Letters of Credit or make Loans for account of such Borrower under the Credit
Agreement are hereby terminated.
Pursuant to Section 2.19(c) of the Credit Agreement, the Company
hereby certifies (a) that there is no LC Exposure outstanding with respect to
any Letter of Credit for which the Subject Subsidiary is an account party and
(b) that all principal and interest on any Loan of the Subject Subsidiary and
all other amounts payable by such Subject Subsidiary pursuant to the Credit
Agreement have been paid in full on or prior to the date hereof.
All obligations of the Subject Subsidiary arising in respect of any
period in which the Subject Subsidiary was, or on account of any action or
inaction taken by the Subject Subsidiary as an account party or a Borrower under
the Credit Agreement shall survive the termination effected by this notice.
Terms used herein have the meanings assigned to them in the Credit
Agreement.
CAMBREX CORPORATION
By_________________________________
Title:
Subsidiary Borrower Termination Letter