Exhibit 10.10
WARNING THE TAKING OF THIS DOCUMENT OR ANY CERTIFIED COPY OF IT OR ANY OTHER DOCUMENT WHICH CONSTITUTES SUBSTITUTE DOCUMENTATION FOR IT, OR ANY DOCUMENT WHICH INCLUDES WRITTEN CONFIRMATIONS OR REFERENCES TO IT, INTO AUSTRIA AS WELL AS PRINTING OUT ANY E-MAIL COMMUNICATION WHICH REFERS TO THIS DOCUMENT IN AUSTRIA OR SENDING ANY E-MAIL COMMUNICATION TO WHICH A PDF SCAN OF THIS DOCUMENT IS ATTACHED TO AN AUSTRIAN ADDRESSEE OR SENDING ANY E-MAIL COMMUNICATION CARRYING AN ELECTRONIC OR DIGITAL SIGNATURE WHICH REFERS TO THIS DOCUMENT TO AN AUSTRIAN ADDRESSEE MAY CAUSE THE IMPOSITION OF AUSTRIAN STAMP DUTY. ACCORDINGLY, KEEP THE ORIGINAL DOCUMENT AS WELL AS ALL CERTIFIED COPIES THEREOF AND WRITTEN AND SIGNED REFERENCES TO IT OUTSIDE OF AUSTRIA AND AVOID PRINTING OUT ANY E-MAIL COMMUNICATION WHICH REFERS TO THIS DOCUMENT IN AUSTRIA OR SENDING ANY E-MAIL COMMUNICATION TO WHICH A PDF SCAN OF THIS DOCUMENT IS ATTACHED TO AN AUSTRIAN ADDRESSEE OR SENDING ANY E-MAIL COMMUNICATION CARRYING AN ELECTRONIC OR DIGITAL SIGNATURE WHICH REFERS TO THIS DOCUMENT TO AN AUSTRIAN ADDRESSEE. |
AMENDMENT NO. 1 TO CREDIT AGREEMENT AND
INCREMENTAL TERM LOAN ASSUMPTION AGREEMENT
This Amendment No. 1 to Credit Agreement and Incremental Term Loan Assumption Agreement (this “Amendment”) is dated as of September 29, 2014, by and among DPX HOLDINGS B.V. (formerly known as JLL/Delta Dutch Newco B.V.), a private company with limited liability incorporated under the laws of the Netherlands (the “Parent Borrower”), the Subsidiary Borrowers party hereto (collectively, the “Subsidiary Borrowers” and, together with the Parent Borrower, the “Borrowers”), the other Guarantors party hereto (collectively, the “Subsidiary Guarantors” and, together with the Parent Borrower and the Subsidiary Borrowers, the “Credit Parties”), the lending institutions party hereto, as hereinafter defined (the “2014 Incremental Lenders”), and UBS AG, STAMFORD BRANCH, as administrative agent for the Lenders (the “Administrative Agent”).
WHEREAS, the Parent Borrower, the Subsidiary Borrowers, the Administrative Agent and the Lenders party thereto are parties to that certain Credit Agreement, dated as of March 11, 2014, which provides, among other things, for term loans, revolving loans, letters of credit and other financial accommodations, all upon certain terms and conditions stated therein (as the same has been and may be further amended, restated or otherwise modified from time to time, the “Credit Agreement”);
WHEREAS, the Parent Borrower has notified the Administrative Agent that it is requesting the establishment of the 2014 Incremental Term Loans (as defined below) pursuant to Section 2.18 of the Credit Agreement;
WHEREAS, this Amendment constitutes an Incremental Borrowing Notice under the Credit Agreement;
WHEREAS, pursuant to Section 2.18 of the Credit Agreement, the Borrowers may obtain Incremental Term Loan Commitments by, among other things, entering into one or more Incremental Term Loan Assumption Agreements in accordance with the terms and conditions of the Credit Agreement;
WHEREAS, pursuant to Section 2.18 of the Credit Agreement, the Parent Borrower has requested (i) Dollar denominated loans under Incremental Dollar Term Loan Commitments in an aggregate principal amount of $160,000,000 (the “2014 Incremental Dollar Term Loan Commitments” and such loans, the “2014 Incremental Dollar Term Loans”), to be effected as an increase of the principal amount of the Initial Dollar Term Loans and the Initial Dollar Term Commitments and on terms identical to those applicable to the Initial Dollar Term Loans and the Initial Dollar Term Commitments and (ii) Euro denominated loans under Incremental Euro Term Loan Commitments in an aggregate principal amount of €70,000,000 (the “2014 Incremental Euro Term Loan Commitments” and together with the 2014 Incremental Dollar Term Loan Commitments, the “2014 Incremental Term Loan Commitments” and such loans, the “2014 Incremental Euro Term Loans” or the “Euro Term B-1 Loans” and together with the 2014 Incremental Dollar Term Loans, the “2014 Incremental Term Loans”);
WHEREAS, the Parent Borrower intends to acquire Gallus BioPharmaceuticals, LLC, a Delaware limited liability company (the “Target”), pursuant to that certain Security Purchase Agreement (together with all exhibits, schedules and disclosure letters thereto, in each case, as amended, waived, supplemented or otherwise modified, the “2014 Acquisition Agreement”), dated as of August 23, 2014, among the Parent Borrower, the Target and the other parties thereto (the “2014 Acquisition” and, together with the incurrence of the 2014 Incremental Term Loans, the payment of consideration, fees and expenses incurred in connection with the foregoing, the 2014 Acquisition and this Amendment, the “2014 Transactions”);
WHEREAS, on the First Amendment Effective Date, the 2014 Incremental Lenders are willing, on a joint and several basis, to make the 2014 Incremental Term Loans in the amounts set forth opposite such 2014 Incremental Lenders’ names inSchedule 1 hereof;
NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein contained and for other valuable considerations, the Credit Parties, the Administrative Agent and the 2014 Incremental Lenders hereby agree as follows:
Section 1.Definitions. Each capitalized term used herein and not otherwise defined in this Amendment shall be defined in accordance with the Credit Agreement.
Section 2.Amendments to Credit Agreement.
2.1 Amendment to Section 1.01. Section 1.01 of the Credit Agreement is hereby amended as follows:
(i) the following new definitions are added to Section 1.01 of the Credit Agreement in proper alphabetical order:
““2014 Incremental Term Loans” has the meaning assigned to such term in the First Amendment.”
““Euro Term B-1 Loans” has the meaning assigned to such term in the First Amendment.”
““First Amendment” means Amendment No. 1 to Credit Agreement and Incremental Term Loan Assumption Agreement, dated as of September 29, 2014, among the Parent Borrower, the Subsidiary Borrowers and Subsidiary Guarantors party thereto, the Administrative Agent and the Lenders party thereto.”
““First Amendment Effective Date” has the meaning set forth in the First Amendment, which date is September 29, 2014.”
(ii) the definition of “Adjusted Eurodollar Rate” is amended by adding the phrase “and Euro Term B-1 Loans” immediately following the phrase “Initial Term Loans”.
(iii) the definition of “Applicable Term Loan Margin” is amended by deleting the word “and” immediately prior to the phrase “(b)” and adding the phrase “; and (c) with respect to Euro Term B-1 Loans, for any day, a percentageper annum equal to (i) 2.50% per annum for Euro Term B-1 Loans that are Base Rate Loans and (ii) 3.50%per annumfor Euro Term B-1 Loans that are Eurodollar Loans” immediately prior to the “.” at the end of such definition.
(iv) the definition of “Base Rate” is amended by adding the phrase “and Euro Term B-1 Loans” immediately following the phrase “Initial Term Loans”.
(v) the definition of “Maturity Date” is amended by deleting the word “and” immediately prior to the phrase “(v)” and adding the phrase adding the phrase “and (vi) with respect to the Euro Term B-1 Loans, the date that is seven (7) years after the Closing Date” immediately prior to the “.” at the end of such definition.
(vi) the definition of “Repricing Transaction” is amended by adding the words “or the 2014 Incremental Term Loans” immediately following each reference to “Initial Term Loans”.
2.2 Amendment to Section 2.15(f). Section 2.15(f) of the Credit Agreement is hereby amended by (x) deleting the phrase “the Closing Date” and replacing it with “the First Amendment Effective Date” and (y) adding the words “or the 2014 Incremental Term Loans” immediately following each reference to “Initial Term Loans”.
2.3 Amendment to Schedule 1.Schedule 1 to the Credit Agreement is hereby amended by modifying such schedule to include the 2014 Incremental Term Loan Commitments of the 2014 Incremental Lenders party hereto as set forth onSchedule 1 hereto.
Section 3.Incremental Term Loans.
3.1 Borrowing of Incremental Term Loans and Terms Generally.
(i) Pursuant to Section 2.03(c) of the Credit Agreement, on the First Amendment Effective Date (a) each 2014 Incremental Lender with a 2014 Incremental Dollar Term Loan Commitment set forth onSchedule 1 hereto hereby agrees to make a 2014 Incremental Dollar Term Loan in Dollars to the Parent Borrower in an aggregate principal amount equal to its “2014 Incremental Dollar Term Loan Commitment” as set forth next to such 2014 Incremental Lender’s name onSchedule 1 hereto and (a) each 2014 Incremental Lender with a 2014 Incremental Euro Term Loan Commitment set forth onSchedule 1 hereto hereby agrees to make a 2014 Incremental Euro Term Loan in Euros to the Parent Borrower in an aggregate principal amount equal to its “2014 Incremental Euro Term Loan Commitment” as set forth next to such 2014 Incremental Lender’s name onSchedule 1 hereto. The 2014 Incremental Term Loan Commitments shall automatically terminate upon the making of the 2014 Incremental Term Loans on the First Amendment Effective Date.
(ii) Pursuant to Section 2.18 of the Credit Agreement, (a) each 2014 Incremental Lender shall constitute, and have all of the rights and privileges of, an “Incremental Term Lender” and “Additional Lender” for all purposes under the Credit Agreement and each other Loan Document, (b) the 2014 Incremental Term Loan Commitments shall constitute “Incremental Term Loan Commitments” for all purposes under the Credit Agreement and each other Loan Document and (c) the 2014 Incremental Dollar Term Loans and the Euro Term B-1 Loans (as defined below) shall constitute “Incremental Term Loans” or “Term Loans” for all purposes under the Credit Agreement and each other Loan Document, in each case, all other related terms will have correlative meanings mutatis mutandis.
(iii) The 2014 Incremental Dollar Term Loans shall be repaid on the date of each Scheduled Repayment occurring after the First Amendment Effective Date in the amount equal to 0.25% multiplied by the original principal amount of the 2014 Incremental Dollar Term Loans, and the Euro Term B-1 Loans shall be repaid on the date of each Scheduled Repayment occurring after the First Amendment Effective Date in the amount equal to 0.25% multiplied by the original principal amount of the Euro Term B-1 Loans; provided, that the payment due on the Initial Term Loan Maturity Date shall in any event be in the entire remaining principal amount of the outstanding 2014 Incremental Term Loans. Such repayments will constitute “Scheduled Repayments” for all purposes of the Credit Agreement.
(iv) The 2014 Incremental Dollar Term Loans shall have terms identical to the Initial Dollar Term Loans outstanding under the Credit Agreement immediately prior to the date hereof (including as to pricing, tenor, rights of payment and prepayment and right of security).
(v) The 2014 Incremental Euro Term Loans shall constitute a new Class of Term Loans under the Credit Agreement, which Class of Term Loans shall be titled “Euro Term B-1 Loans” thereunder and the existing Term Loans outstanding immediately prior to the effectiveness of this Amendment shall constitute a separate Class of Term Loans under the Credit Agreement.
(vi) The “Applicable Term Loan Margin” for the Euro Term B-1 Loans shall be for any day, a percentage per annum equal to (i) 2.50% per annum for Euro Term B-1 Loans that are Base Rate Loans and (ii) 3.50% per annum for Euro Term B-1 Loans that are Eurodollar Loans. For purposes of the definition of “Adjusted Eurodollar Rate” in the Credit Agreement, the Adjusted Eurodollar Rate with respect to the Euro Term B-1 Loans shall in no event be less than 1.00% per annum.
(vii) The “Maturity Date” for the Euro Term B-1 Loans shall be the date that is seven (7) years after the Closing Date.
(viii) Prepayments and repayments of the Euro Term B-1 Loans shall be made on a ratable basis with the other Term Loans under the Credit Agreement. Scheduled installments of principal of the Euro Term B-1 Loans set forth in Section 3.1(iii) above shall be reduced in connection with any voluntary or mandatory prepayments of the Initial Term Loans in accordance with Sections 2.15 of the Credit Agreement, in accordance with the terms thereof.
(ix) On the First Amendment Effective Date, there shall commence an initial Interest Period with respect to the 2014 Incremental Term Loans, which Interest Period shall end on the last day of the Interest Period applicable to the existing Initial Dollar Term Loans (in the case of the 2014 Incremental Dollar Term Loans) or the existing Initial Euro Term Loans (in the case of the Euro Term B-1 Loans), as the case may be, as in effect immediately prior to the First Amendment Effective Date.
3.2 Incremental Term Lenders. Each 2014 Incremental Lender (i) confirms that it has received a copy of the Credit Agreement and the other Loan Documents and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Amendment; (ii) agrees that it will, independently and without reliance on the Administrative Agent, the Arrangers or any other Incremental Term Lender or any other Lender or Agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement; (iii) appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Credit Agreement and the other Loan Documents as are delegated to the Administrative Agent by the terms thereof, together with such powers and discretion as are reasonably incidental thereto; (iv) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Credit Agreement are required to be performed by it as a Lender and (v) to the extent not already a Lender, acknowledges and agrees that upon its execution of this Amendment that such Incremental Term Lender shall become a “Lender” under, and for all purposes of, the Credit Agreement and the other Loan Documents, and shall be subject to and bound by the terms thereof.
3.3 Use of Proceeds of Incremental Term Loans. The net cash proceeds of the 2014 Incremental Term Loans shall be used by the Borrowers on the First Amendment Effective Date (a) to finance the 2014 Transactions, (b) to pay the consideration, fees and expenses for the 2014 Acquisition and the fees and expenses incurred in connection with the 2014 Transactions and (c) to pay fees and expenses related to this Amendment.
Section 4.Representations of the Parent Borrower.
The Parent Borrower represents and warrants that:
4.1 Each of the Credit Parties that is a Borrower or a Material Subsidiary is a duly organized or formed and validly existing corporation, partnership or limited liability company, as the case may be, in good standing or in full force and effect under the laws of the jurisdiction of its formation.
4.2 Each Credit Party that is a Borrower or a Material Subsidiary has the corporate or other organizational power and authority to execute and deliver the terms and provisions of this Amendment and the Loan Documents to which it is party on the First Amendment Effective Date and has taken all necessary corporate or other organizational action to authorize the execution, delivery and performance of this Amendment and the Loan Documents to which it is party. Each Credit Party that is a Borrower or a Material Subsidiary has duly executed and delivered this Amendment and each Loan Document to which it is party and this Amendment and each Loan Document to which it is party constitutes the legal, valid and binding agreement and obligation of such Credit Party enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law) on the First Amendment Effective Date.
4.3 Neither the execution, delivery and performance by any Credit Party of this Amendment or any Loan Documents to which it is party (i) will contravene any provision of any law, statute, rule, regulation, order, writ, injunction or decree of any Governmental Authority applicable to such Credit Party or its properties and assets, except as would not reasonably be expected to have a Material Adverse Effect, taken as a whole, or (ii) will violate any provision of the Organizational Documents of such Credit Party.
Section 5.Effectiveness.
5.1 Conditions Precedent. The effectiveness of this Amendment is subject to the satisfaction of the following conditions precedent:
(i) Amendment Executed. This Amendment shall have been executed by each Credit Party, the Administrative Agent and each Lender with a 2014 Incremental Term Loan Commitment, and counterparts hereof as so executed shall have been delivered to the Administrative Agent.
(ii) Opinions of Counsel. The Administrative Agent shall have received customary legal opinions of (a) Simpson Thacher & Bartlett LLP, (b) Hill Smith King & Wood and (c) NautaDutilh N.V.
(iii) Organizational Documents; Good Standing Certificates. The Administrative Agent shall have received a certificates (i) of the Target (a) attaching a copy of the Certificate of Incorporation, Certificate of Formation, Certificate of Limited Partnership or other similar document, as applicable, of the Target or the Target’s by-laws, agreement of limited partnership or other similar document; (b) attaching copies of the resolutions of the board of directors (or similar governing body) of the Target or, in the case of a partnership, the board of directors (or similar governing body) of its general partner evidencing corporate approval of this Amendment; (c) attaching a good standing certificate (to the extent applicable) of the Target from the Secretary of State or similar governmental authority of the state or jurisdiction of incorporation or formation, as applicable, dated as of a recent date, listing all charter documents affecting the Target and certifying as to the good standing of the Target; and (d) certifying the names and true signatures of the officers of the Target authorized to sign the Loan Documents to which the Target is a party and (ii) either confirming that no changes have been made to the Certificate of Incorporation, Certificate of Formation, Certificate of Limited Partnership or other similar document, as applicable, of any Credit Party or to any Credit Party’s by-laws, agreement of limited partnership or other similar document, as applicable, since March 11, 2014 or specifying attaching any applicable amendments to such documents since such time; (b) attaching copies of the resolutions of the board of directors (or similar governing body) of each Credit Party or, in the case of a partnership, the board of directors (or similar governing body) of its general partner evidencing corporate approval of this Amendment; (c) attaching a good standing certificate (to the extent applicable) of each Credit Party from the Secretary of State or similar governmental authority of the state or jurisdiction of incorporation or formation, as applicable, dated as of a recent date, listing all charter documents affecting such Credit Party and certifying as to the good standing of such Credit Party; and (d) certifying the names and true signatures of the officers of each Credit Party authorized to sign the Loan Documents to which such Credit Party is a party.
(iv) Solvency Certificate. The Administrative Agent shall have received a certificate from the chief financial officer (or other financial officer reasonably acceptable to the Administrative Agent) of the Parent Borrower, certifying that the Parent Borrower and its restricted subsidiaries, on a consolidated basis, after giving effect to the 2014 Transactions, are solvent, in substantially the form attached as Exhibit D to the Credit Agreement.
(v) Specified Representations and Specified Acquisition Agreement Representations. The 2014 Specified Representations (as defined below) and the 2014 Specified Acquisition Agreement Representations (as defined below) are true and correct. The “2014 Specified Representations” shall mean the representations and warranties of the Credit Parties set forth in Section 5.01 (only as it relates to the corporate existence of the Borrowers and any Guarantor that is a Material Subsidiary), Section 5.02 (with respect to the entering into and performance of this Amendment by of the Borrowers and any Guarantor that is a Material Subsidiary), Section 5.03 (with respect to the entering into of this Amendment and excluding clause (ii) thereof), Section 5.06(c), Section 5.08 (after giving effect to the 2014 Transactions as evidenced by a certificate substantially the form attached as Exhibit D to the Credit Agreement), Section 5.15, Section 5.16 (with respect to the Collateral referred to in clause (xii) below and subject in all respects to the limitations set forth in such clause (xii)), Section 5.19 (only as it relates to the proceeds of the 2014 Incremental Term Loans) and Section 5.20, in each case of the Credit Agreement. The “2014 Specified Acquisition Agreement Representations” shall mean the representations to be made on the Closing Date (as defined in the 2014 Acquisition Agreement) by the Target in the 2014 Acquisition Agreement, in each case that are material to the interests of Lenders, but only to the extent that any party to the 2014 Acquisition Agreement has (or its applicable affiliate has) the right to terminate its obligations under the 2014 Acquisition Agreement or to decline to consummate the 2014 Acquisition (in each case pursuant to the terms thereof) as a result of the breach of one or more of such representations in the 2014 Acquisition Agreement.
(vi) No Company Material Adverse Effect. Since December 31, 2013, no Company Material Adverse Effect (as defined in the 2014 Acquisition Agreement) shall have occurred.
(vii) No Specified Event of Default. No Specified Event of Default exists.
(viii) Officer’s Certificate. The Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate dated as of the First Amendment Effective Date and executed by an Authorized Officer as to the matters set forth inSections 4.1 (v),(vi) and(vii) above.
(ix) Pro Forma Financial Statements. The 2014 Incremental Lenders shall have received a pro forma consolidated balance sheet and related pro forma consolidated statements of income of Parent Borrower as of, and for the twelve month period ending on, the last day of the most recently completed four fiscal quarter period for which financial statements of the Parent Borrower have been required to be delivered pursuant to the terms of the Credit Agreement prepared after giving effect to the 2014 Transactions as if the 2014 Transactions had occurred as of such date (in the case of the balance sheet) or at the beginning of such period (in the case of such statement of income), which need not be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting.
(x) Consummation of Acquisition. The 2014 Acquisition shall have been consummated or shall be consummated, substantially concurrently with the initial funding of the 2014 Incremental Term Loans hereunder, in all material respects in accordance with, the 2014 Acquisition Agreement, and no provision thereof shall have been amended or waived (including consents granted thereunder) in any respect that would be materially adverse to the Lenders without the consent of the Lenders party hereto.
(xi) Fees, etc. The Parent Borrower shall have paid or caused to be paid all fees and other amounts due and payable on or prior to the First Amendment Effective Date, including, to the extent invoiced at least two business days prior to the First Amendment Effective Date, reimbursement or payment of all documented and reasonable out-of-pocket expenses of the Administrative Agent and of special counsel to the Administrative Agent in connection with the preparation, negotiation, execution and delivery of this Amendment.
(xii) Security Documents. Subject in all respects to the second sentence of this clause (xii), all documents and instruments required to create and perfect the Administrative Agent’s security interest in the Collateral (as defined in the Credit Agreement) shall have been executed and delivered by the relevant Loan Parties and, if applicable, be in proper form for filing (or reasonably satisfactory arrangements shall have been mutually agreed upon for the execution, delivery and filing of such documents and instruments substantially concurrently with the consummation of the 2014 Acquisition). Notwithstanding the foregoing, to the extent that any security interest in any Collateral (including the creation or perfection of any security interest) is not or cannot reasonably be created or perfected on the First Amendment Effective Date (other than the pledge of certificated capital stock of the Target and its wholly-owned material U.S. subsidiaries to the extent that the Parent Borrower receives such certificated capital stock in accordance with the terms of the 2014 Acquisition Agreement on the First Amendment Effective Date, and the grant and perfection of security interests in other assets required to be pledged pursuant to which a lien may be perfected upon closing solely by the filing of a financing statement under the Uniform Commercial Code, as applicable) after Parent Borrower’s use of commercially reasonable efforts to do so, or without undue burden or expense, then the creation or perfection, as applicable, of any such Collateral shall not constitute a condition precedent to the effectiveness of this Amendment, but instead shall be created or perfected, as applicable, within 90 days after the First Amendment Effective Date or such later date as the Administrative Agent may agree in its sole discretion, pursuant to reasonably satisfactory arrangements to be mutually agreed upon.
(xiii) Know Your Customer Information. The Administrative Agent shall have received, at least three business days prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act; provided, that any requests for such information shall have been received by Parent Borrower at least ten business days prior to Closing Date.
5.2 Effective Date. This Amendment shall be effective on the date upon which the conditions precedent set forth in Section 5.1 above are satisfied (or waived) (the “First Amendment Effective Date”). Unless otherwise specifically set forth herein, each of the amendments and other modifications set forth in this Amendment shall be effective on and after such date.
Section 6.Miscellaneous.
6.1 Waiver. Each Credit Party, by signing below, hereby waives and releases Administrative Agent and each of the Lenders and their respective directors, officers, employees, attorneys, affiliates and subsidiaries from any and all claims, offsets, defenses and counterclaims, in each case arising on or prior to the date of this Amendment, such waiver and release being with full knowledge and understanding of the circumstances and effect thereof and after having consulted legal counsel with respect thereto.
6.2 Guarantors. The Parent Borrower and each Subsidiary Guarantor consents and agrees to and acknowledges the terms of this Amendment and specifically acknowledges the terms of and consents to the amendments set forth in this Amendment. The Parent Borrower and each Subsidiary Guarantor further agrees that its obligations pursuant to each Loan Document to which it is a party shall remain in full force and effect and be unaffected hereby.
6.3 Credit Agreement Unaffected. Each reference that is made in the Credit Agreement or any Loan Document to the Credit Agreement shall hereafter be construed as a reference to the Credit Agreement, as amended hereby. Except as herein otherwise specifically provided, all provisions of the Credit Agreement shall remain in full force and effect and be unaffected hereby. This Amendment is a Loan Document, an Incremental Borrowing Notice and an Incremental Term Loan Assumption Agreement.
6.4 Reaffirmation. Each of the Borrowers and the Subsidiary Guarantors confirms and agrees that each Loan Document to which such Credit Party is a party is, and the obligations of such Credit Party contained in the Credit Agreement, this Amendment or in any other Loan Document to which it is a party are, and shall continue to be, in full force and effect and are hereby ratified and confirmed in all respects, in each case as amended by this Amendment. For greater certainty and without limiting the foregoing, each Credit Party hereby confirms that the existing security interests granted by it in favor of the Secured Creditors pursuant to the Loan Documents in the Collateral described therein shall continue to secure the Obligations as and to the extent provided in the Loan Documents. With respect to the Dutch Security Documents, the Dutch Credit Parties and each Secured Creditor hereby furthermore confirm and agree that, at the time of the entering into the Dutch Security Documents, it was their intention (and with respect to the Dutch Credit Parties, it is still their intention and agreement) that the security rights created pursuant to the Dutch Security Documents would secure the Obligations as they may be amended, restated, supplemented or otherwise modified from time to time, including the amendments to the Credit Agreement and any other Loan Document such as the amendments to be effected by this Agreement.
6.5 Counterparts. This Amendment may be executed in any number of counterparts, by different parties hereto in separate counterparts and by facsimile signature, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement.
6.6 Expenses. The Parent Borrower agrees to pay on demand all costs and expenses incurred by the Administrative Agent in connection with the preparation, negotiation and execution of this Amendment, including without limitation, the reasonable costs, fees, expenses and disbursements of the Administrative Agent’s legal counsel.
6.7 Severability. Any term or provision of this Amendment held by a court of competent jurisdiction to be invalid or unenforceable shall not impair or invalidate the remainder of this Amendment, and the effect thereof shall be confined to the term or provision so held to be invalid or unenforceable.
6.8 Entire Agreement. This Amendment is specifically limited to the matters expressly set forth herein. This Amendment and all other instruments, agreements and documents executed and delivered in connection with this Amendment embody the final, entire agreement among the parties hereto with respect to the subject matter hereof and supersede any and all prior commitments, agreements, representations and understandings, whether written or oral, relating to the matters covered by this Amendment, and may not be contradicted or varied by evidence of prior, contemporaneous or subsequent oral agreements or discussions of the parties hereto. There are no oral agreements among the parties hereto relating to the subject matter hereof or any other subject matter relating to the Credit Agreement.
6.9 Governing Law; Submission to Jurisdiction, Venue. The rights and obligations of all parties hereto shall be governed by the laws of the State of New York, without regard to principles of conflicts of laws. The provisions of Sections 11.08(b), (c) and (d) of the Credit Agreement apply to this Amendment, mutatis mutandis.
6.10 JURY TRIAL WAIVER. EACH CREDIT PARTY, THE ADMINISTRATIVE AGENT AND EACH OF THE LENDERS HEREBY WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG THE CREDIT PARTIES, THE ADMINISTRATIVE AGENT AND THE LENDERS, OR ANY THEREOF, ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AMENDMENT OR ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO.
6.11 Austrian Matters. Section 11.28 of the Credit Agreement shall apply hereto and with respect to all 2014 Incremental Term Loans,mutatis mutandis.
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IN WITNESS WHEREOF, this Amendment No. 1 to Credit Agreement and Incremental Term Loan Assumption Agreement has been executed by the parties hereto as of the date first written above.
| | THE PARENT BORROWER: |
| | | |
| | DPX HOLDINGS B.V. |
| | | |
| | By: | /s/ Michael Lytton |
| | Name: | Michael Lytton |
| | Title: | Managing Director |
| | | |
Acknowledged and Agreed:
PATHEON INC., as a Subsidiary Borrower
| By: | /s/ Michael Lytton | |
| Name: | Michael Lytton | |
| Title: | President | |
| | | |
| | | |
PATHEON PHARMACEUTICALS INC., as a Subsidiary Borrower
| By: | /s/ Michael Lytton | |
| Name: | Michael Lytton | |
| Title: | President | |
| | | |
| | | |
PATHEON UK LIMITED, as a Subsidiary Borrower
| By: | /s/ Michael Lytton | |
| Name: | Michael Lytton | |
| Title: | Director | |
| | | |
| | | |
| [Amendment Signature Page] |
DPx Fine Chemicals Austria GmbH & CoKG, as a Subsidiary Borrower
| By: | /s/ Michael Lytton | |
| Name: | Michael Lytton | |
| Title: | Authorized Signatory | |
| | | |
| | | |
BANNER PHARMACAPS INC., as a Subsidiary Borrower
| By: | /s/ Dean Wilson | |
| Name: | Dean Wilson | |
| Title: | Treasurer | |
| | | |
| | | |
PATHEON PUERTO RICO, INC., as a Subsidiary Borrower
| By: | /s/ Dean Wilson | |
| Name: | Dean Wilson | |
| Title: | Treasurer | |
| | | |
| | | |
DPI NEWCO LLC, as a Subsidiary Borrower
| By: | /s/ Michael Lytton | |
| Name: | Michael Lytton | |
| Title: | President | |
| | | |
| | | |
Patheon Softgels B.V., as a Subsidiary Guarantor
| By: | /s/ Michael Lytton | |
| Name: | Michael Lytton | |
| Title: | Authorized Signatory | |
| | | |
| | | |
| [Amendment Signature Page] |
CEPH International Corporation, as a Subsidiary Guarantor
| By: | /s/ Dean Wilson | |
| Name: | Dean Wilson | |
| Title: | Treasurer | |
| | | |
| | | |
DSM Agro Services B.V., as a Subsidiary Guarantor
| By: | /s/ Jason Conner | |
| Name: | Jason Conner | |
| Title: | Authorized Signatory | |
| | | |
| | | |
DPx Fine Chemicals GmbH, as a Subsidiary Guarantor
| By: | /s/ Michael Stanek | |
| Name: | Michael Stanek | |
| Title: | Director | |
| | | |
| | | |
DPx Life Science Products International GmbH, as a Subsidiary Guarantor
| By: | /s/ Klaus Hilber | |
| Name: | Klaus Hilber | |
| Title: | Director | |
| | | |
| | | |
DSM Pharma Chemicals North America, Inc., as a Subsidiary Guarantor
| By: | /s/ Michael Lytton | |
| Name: | Michael Lytton | |
| Title: | President | |
| | | |
| | | |
| [Amendment Signature Page] |
DSM Pharmaceutical Products, Inc., as a Subsidiary Guarantor
| By: | /s/ Michael Lytton | |
| Name: | Michael Lytton | |
| Title: | President | |
| | | |
| | | |
JLL Partners Fund V (Patheon), L.P., as a Subsidiary Guarantor
| By: | /s/ Michael Lytton | |
| Name: | Michael Lytton | |
| Title: | Authorized Signatory | |
| | | |
| | | |
JLL/Delta Dutch Sub B.V., as a Subsidiary Guarantor
| By: | /s/ Michael Lytton | |
| Name: | Michael Lytton | |
| Title: | Managing Director | |
| | | |
| | | |
Patheon B.V., as a Subsidiary Guarantor
| By: | /s/ Dean Wilson | |
| Name: | Dean Wilson | |
| Title: | Director | |
| | | |
| | | |
Patheon Banner U.S. Holdings Inc., as a Subsidiary Guarantor
| By: | /s/ Michael Lytton | |
| Name: | Michael Lytton | |
| Title: | President | |
| | | |
| | | |
| [Amendment Signature Page] |
Patheon Calculus Merger LLC, as a Subsidiary Guarantor
| By: | /s/ Dean Wilson | |
| Name: | Dean Wilson | |
| Title: | Treasurer | |
| | | |
| | | |
Patheon Coöperatief U.A., as a Subsidiary Guarantor
| By: | /s/ Dean Wilson | |
| Name: | Dean Wilson | |
| Title: | Director | |
| | | |
| | | |
Patheon Finance LLC, as a Subsidiary Guarantor
| By: | /s/ Livia Maduri | |
| Name: | Livia Maduri | |
| Title: | Secretary | |
| | | |
| | | |
Patheon Manufacturing Services LLC, as a Subsidiary Guarantor
| By: | /s/ Dean Wilson | |
| Name: | Dean Wilson | |
| Title: | Treasurer | |
| | | |
| | | |
Patheon Pharmaceuticals Services Inc., as a Subsidiary Guarantor
| By: | /s/ Michael Lytton | |
| Name: | Michael Lytton | |
| Title: | President | |
| | | |
| | | |
| [Amendment Signature Page] |
Patheon Coöperatief U.A., as a Subsidiary Guarantor
| By: | /s/ Michael Lytton | |
| Name: | Michael Lytton | |
| Title: | Authorized Signatory | |
| | | |
| | | |
DSM Agro Services B.V., as a Subsidiary Guarantor
| By: | /s/ Michael Lytton | |
| Name: | Michael Lytton | |
| Title: | Authorized Signatory | |
| | | |
| | | |
Patheon B.V., as a Subsidiary Guarantor
| By: | /s/ Michael Lytton | |
| Name: | Michael Lytton | |
| Title: | Authorized Signatory | |
| | | |
| | | |
| [Amendment Signature Page] |
Patheon Puerto Rico Acquisitions Corporation, as a Subsidiary Guarantor
| By: | /s/ Dean Wilson | |
| Name: | Dean Wilson | |
| Title: | Treasurer | |
| | | |
| | | |
Patheon U.S. Holdings Inc., as a Subsidiary Guarantor
| By: | /s/ Michael Lytton | |
| Name: | Michael Lytton | |
| Title: | President | |
| | | |
| | | |
Patheon U.S. Holdings LLC, as a Subsidiary Guarantor
| By: | /s/ Livia Maduri | |
| Name: | Livia Maduri | |
| Title: | Secretary | |
| | | |
| | | |
DPX/GALLUS RE LLC, as a Subsidiary Guarantor
| By: | /s/ Michael Lytton | |
| Name: | Michael Lytton | |
| Title: | President | |
| | | |
| | | |
Gallus RE LLC, as a Subsidiary Guarantor
| By: | /s/ Michael Lytton | |
| Name: | Michael Lytton | |
| Title: | President | |
| | | |
| | | |
Gallus BioPharmaceuticals, LLC, as a Subsidiary Guarantor
| By: | /s/ Mark Bamforth | |
| Name: | Mark Bamforth | |
| Title: | Chief Executive Officer | |
| | | |
| | | |
| [Amendment Signature Page] |
Gallus BioPharmaceuticals NJ, LLC, as a Subsidiary Guarantor
| By: | /s/ Mark Bamforth | |
| Name: | Mark Bamforth | |
| Title: | Chief Executive Officer | |
| | | |
| | | |
DSM Pharma Chemicals Venlo B.V., as a Subsidiary Guarantor
| By: | /s/ Michael Lytton | |
| Name: | Michael Lytton | |
| Title: | Authorized Signatory | |
| | | |
| | | |
DSM Biosolutions B.V., as a Subsidiary Guarantor
| By: | /s/ Michael Lytton | |
| Name: | Michael Lytton | |
| Title: | Authorized Signatory | |
| | | |
| | | |
Patheon Biologics B.V., as a Subsidiary Guarantor
| By: | /s/ Michael Lytton | |
| Name: | Michael Lytton | |
| Title: | Authorized Signatory | |
| | | |
| | | |
| [Amendment Signature Page] |
| | THE ADMINISTRATIVE AGENT AND THE LENDERS: |
| | | |
| | UBS AG, STAMFORD BRANCH, as Administrative Agent |
| | | |
| | By: | /s/ Lana Gifas |
| | Name: | Lana Gifas |
| | Title: | Director |
| | | |
| | | |
| | By: | /s/ Jennifer Anderson |
| | Name: | Jennifer Anderson |
| | Title: | Associate Director |
| | UBS AG, STAMFORD BRANCH, as a 2014 Incremental Lender |
| | | |
| | By: | /s/ Lana Gifas |
| | Name: | Lana Gifas |
| | Title: | Director |
| | | |
| | | |
| | By: | /s/ Jennifer Anderson |
| | Name: | Jennifer Anderson |
| | Title: | Associate Director |
| [Amendment Signature Page] |
Schedule 1
2014 Incremental Lenders and 2014 Incremental Term Loan Commitments
| Name of 2014 Incremental Lender | 2014 Incremental Dollar Term Loan Commitment |
| UBS AG, Stamford Branch | $160,000,000 |
| Total | $160,000,000 |
| Name of 2014 Incremental Lender | 2014 Incremental Euro Term Loan Commitment |
| UBS AG, Stamford Branch | €70,000,000 |
| Total | €70,000,000 |
