$225,000,000
CREDIT AGREEMENT
dated as of
May 2, 2000,
among
ALPHARMA U.S. INC.,
as Borrower,
ALPHARMA INC.,
as Parent Guarantor,
THE SUBSIDIARY GUARANTORS NAMED HEREIN,
as Subsidiary Guarantors
THE BANKS NAMED HEREIN,
as Banks,
FIRST UNION NATIONAL BANK,
as Administrative Agent,
SUMMIT BANK,
as Syndication Agent,
DEN NORSKE BANK ASA,
as Documentation Agent
and
UNION BANK OF NORWAY AND
FIRST UNION SECURITIES, INC.,
as Co-Arrangers
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS 1
1.1 DEFINED TERMS 1
1.2 COMPUTATION OF TIME PERIODS 20
1.3 ACCOUNTING TERMS 20
1.4 ADDITIONAL DEFINITIONS 20
ARTICLE II AMOUNT AND TERMS OF THE LINE OF CREDIT LOANS 20
2.1 THE LINE OF CREDIT LOANS 20
2.2 MAKING THE LINE OF CREDIT LOANS 22
2.3 MATURITY OF THE LINE OF CREDIT LOAN 24
2.4 MANDATORY PREPAYMENTS 25
2.5 CONVERSION OF LINE OF CREDIT LOANS TO TERM LOANS 26
2.6 SYNDICATION OF PERMANENT CREDIT FACILITY 26
2.7 REPAYMENT OF THE LOANS SUBSEQUENT TO CONVERSION 26
ARTICLE III SECURITY 27
3.1 GRANTING OF SECURITY 27
3.2 SECURITY EVENTS 29
ARTICLE IV INTEREST, FEES, ETC. 30
4.1 INTEREST PERIOD ELECTION 30
4.2 INTEREST RATE; PAYMENT OF INTEREST 31
4.3 INTEREST RATE DETERMINATION AND PROTECTION 32
4.4 PREPAYMENTS OF EURODOLLAR LOANS 34
4.5 AGENTS' FEE 34
4.6 INCREASED COSTS 34
4.7 ILLEGALITY 36
4.8 CAPITAL ADEQUACY 36
4.9 PAYMENTS AND COMPUTATIONS 37
4.10 SHARING OF PAYMENTS, ETC 41
ARTICLE V CONDITIONS OF LENDING 42
5.1 CONDITIONS PRECEDENT TO THE MAKING OF THE
INITIAL LOANS 42
5.2 CONDITIONS PRECEDENT TO THE MAKING OF EACH LOAN 45
ARTICLE VI REPRESENTATIONS AND WARRANTIES 46
6.1 CORPORATE EXISTENCE 46
6.2 CORPORATE POWER; AUTHORIZATION; ENFORCEABLE
OBLIGATIONS 46
6.3 TAXES 47
6.4 FINANCIAL INFORMATION 48
6.5 LITIGATION 48
6.6 MARGIN REGULATIONS 49
6.7 ERISA 49
6.8 NO DEFAULTS 50
6.9 INVESTMENT COMPANY ACT 50
6.10 INSURANCE 50
6.11 ENVIRONMENTAL PROTECTION 50
6.12 REGULATORY MATTERS 50
6.13 TITLE AND LIENS 51
6.14 COMPLIANCE WITH LAW 51
6.15 TRADEMARKS, COPYRIGHTS, ETC. 51
6.16 DISCLOSURE 51
6.17 SUBSIDIARIES 52
6.18 SENIOR DEBT STATUS 52
6.19 YEAR 2000 52
6.20 SECURITY INTERESTS 52
6.21 CORPORATE HEADQUARTERS 53
ARTICLE VII AFFIRMATIVE COVENANTS 53
7.1 INCORPORATION OF UBN CREDIT AGREEMENT COVENANTS 53
7.2 USE OF PROCEEDS; ACQUISITION 54
7.3 DELIVERY OF MORTGAGES AND RELATED DOCUMENTS 54
7.4 ADDITIONAL SUBSIDIARY GUARANTIES 55
7.5 ADDITIONAL PLEDGES 55
7.6 ADDITIONAL COLLATERAL DOCUMENTS 55
ARTICLE VIII NEGATIVE COVENANTS 56
8.1 INCORPORATION OF UBN CREDIT AGREEMENT COVENANTS 56
8.2 ADDITIONAL RESTRICTIONS ON ACQUISITIONS 56
8.3 LOAN CONVERSION COVENANTS 56
ARTICLE IX EVENTS OF DEFAULT 59
9.1 EVENTS OF DEFAULT 59
ARTICLE X THE ADMINISTRATIVE AGENT 63
10.1 AUTHORIZATION AND ACTION 63
10.2 THE ADMINISTRATIVE AGENT'S RELIANCE, ETC. 63
10.3 FIRST UNION NATIONAL BANK 64
10.4 BANK CREDIT DECISION 64
10.5 DETERMINATIONS UNDER SECTIONS 5.1 AND 5.2 64
10.6 INDEMNIFICATION 65
10.7 SUCCESSOR ADMINISTRATIVE AGENTS 65
10.8 NOTICES AND FORWARDING OF DOCUMENTS TO BANKS 66
10.9 DELEGATION OF DUTIES 66
10.10 NOTICE OF DEFAULT 66
ARTICLE XI MISCELLANEOUS 67
11.1 AMENDMENTS, ETC. 67
11.2 NOTICES, ETC. 67
11.3 NO WAIVER; REMEDIES; INTEGRATION 68
11.5 RIGHT OF SETOFF 70
11.6 BINDING EFFECT 71
11.7 ASSIGNMENTS AND PARTICIPATION; ADDITIONAL BANKS 71
11.8 PARI PASSU RANKING 74
11.9 GOVERNING LAW; SEVERABILITY 74
11.10 SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL 74
11.11 CONFIDENTIALITY 75
11.12 SECTION TITLES 75
11.13 EXECUTION IN COUNTERPARTS 75
Schedules
Schedule I - Lending Offices
Schedule II - Commitments
Schedule III - Inactive Subsidiaries
Schedule IV - Investments
Schedule V - Liens on Real Property
Exhibits
Exhibit 1.1(L) - Form of Line of Credit Note
Exhibit 1.1(M) - Form of Mortgage
Exhibit 1.1(N) - Form of Notice of Borrowing
Exhibit 1.1(P)(1) - Form of Parent Guaranty
Exhibit 1.1(P)(2) - Form of Patent, Trademark and Copyright
Security Agreement
Exhibit 1.1(P)(3) - Form of Pledge Agreement
Exhibit 1.1(S)(1) - Form of Security Agreement
Exhibit 1.1(S)(2) - Form of Subsidiary Guaranty
Exhibit 4.1 - Form of Notice of Interest Period
Exhibit 5.1(a) - Form of Opinion of Counsel to Loan
Parties
Exhibit 5.1(b) - Form of Collateral Agency Agreement
Exhibit 5.1(c) - Form of Consent and Amendment Agreement
Exhibit 11.7 - Form of Assignment and Assumption Agreement
CREDIT AGREEMENT, dated as of May 2, 2000, among ALPHARMA
U.S. INC., a Delaware corporation (together with its successors
and assigns, the "Borrower"), ALPHARMA INC., as Parent Guarantor,
the Subsidiary Guarantors party hereto, the Banks parties hereto
from time to time (the "Banks"), FIRST UNION NATIONAL BANK, as
Administrative Agent, SUMMIT BANK, as Syndication Agent, DEN
NORSKE BANK ASA, as Documentation Agent and UNION BANK OF NORWAY
and FIRST UNION SECURITIES, as Co-Arrangers.
WITNESSETH:
WHEREAS, the Borrower has requested that the Banks provide
financing for the acquisition by Alpharma Inc. and Alpharma
(Luxembourg) Sarl of certain of the assets of the medicated feed
additive business of Hoffman-LaRoche ("Alpine") (such acquisition
referred to herein as the "Alpine Acquisition") and the costs
incurred by the Borrower in connection with such acquisition, and
the Banks are willing to make funds available for such purposes,
but only upon the terms and subject to the conditions contained
herein;
NOW, THEREFORE, in consideration of the premises and the
covenants and agreements contained herein, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1 Defined Terms. As used in this Agreement, the following
terms have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms
defined):
"Affiliate" means, as to any Person, any Subsidiary of such
Person and any other Person which, directly or indirectly,
controls, is controlled by or is under common control with such
Person. For the purposes of this definition, "control" means the
possession of the power to direct or cause the direction of
management and policies of any Person, whether through the
ownership of voting securities, by contract or otherwise and as
to the Parent Guarantor and any of its Subsidiaries shall be
deemed to include (without limitation) A.L. Industrier AS.
"Agency Fee" has the meaning specified in Section 4.5.
"Administrative Agent" means First Union National Bank, in
its capacity as the Administrative Agent, or any successor in
such capacity.
"Agents' Fee Letter" has the meaning specified in
Section 4.5.
"Agreement" means this Credit Agreement, as modified,
amended or supplemented from time to time.
"Agreement Termination Date" means the first day on which
all the Line of Credit Loan Commitments have been reduced to
zero, this Agreement is terminated and no Loan Party has any
obligations outstanding under this Agreement or any other Loan
Document.
"Alpine" has the meaning specified in the recitals hereof.
"Alpine Acquisition" has the meaning specified in the
recitals hereof.
"Alpine Purchase Agreement" shall mean that Asset Purchase
Agreement dated as of April 26, 2000 between Roche Vitamins Inc,
a Delaware corporation, and F. Hoffmann-LaRoche Ltd, a Swiss
corporation and its Affiliates, as sellers, and the Parent
Guarantor and Alpharma (Luxembourg) Sarl, a Luxembourg
corporation, as buyers.
"Alternate Base Rate" means a fluctuating rate per annum
equal at all times to the higher of (i) the Base Rate or
(ii) one-half of 1 percent (1/2%) above the Federal Funds Rate.
"Applicable Margin" means (a) prior to the Line of Credit
Loan Commitment Termination Date, two and three-quarters percent
(2-3/4%) for Eurodollar Loans (b) on and after the Line of
Credit Loan Commitment Termination Date but prior to the First
Extended Termination Date, two and seven-eighths percent (2-
7/8%) for Eurodollar Loans and (c) on and after the First
Extended Termination Date but prior to the Second Extended
Termination Date, three percent (3.00%) for Eurodollar.
"Assignment and Assumption Agreement" has the meaning
specified in Section 11.7(a).
"Banks" means the lenders listed on the signature pages
hereof, and such other lenders as may become parties hereto from
time to time pursuant to Section 11.7.
"Base Rate" means the rate of interest announced from time
to time by the Administrative Agent as its "base rate" or "base
lending rate." This rate of interest is determined from time to
time by the Administrative Agent as a means of pricing some loans
to its customers and is neither tied to any external rate of
interest or index nor does it necessarily reflect the lowest rate
of interest actually charged by the Administrative Agent to any
particular class or category of customers of the Administrative
Agent.
"Borrower" has the meaning specified in the recitals hereof.
"Borrowing" means a Line of Credit Loan Borrowing.
"Business Day" means a day of the year on which banks are
not required or authorized to close in New York City or Oslo,
Norway and on which dealings are also carried on in Dollars in
the London interbank market.
"Capital Market Transaction" means the issuance of any
Equity (except for exercise of employee or director stock options
or issuance of stock of the Parent Guarantor in connection with
any employee stock option or purchase plan) whether by means of a
public offering, private placement, or other capital market
method.
"Capitalized Lease" means, as applied to any Person, any
lease of property by such Person as lessee which is or should be
capitalized on a balance sheet of such Person prepared in
accordance with GAAP.
"Cash Equivalent" means any one or more of the following
instruments:
(a) open-market commercial paper issued by corporations
organized in the United States of America, maturing not later
than 270 days after the date of issuance thereof and having at
the time of acquisition a rating of at least A-1 from Standard &
Poor's Rating Group or P-1 from Moody's Investors Services, Inc.
(b) readily marketable direct obligations issued by the United
States of America, or by any agency thereof that are
unconditionally guaranteed or backed by the full faith and credit
of the United States of America, in each case maturing within one
year from the date of acquisition thereof; and
(c) certificates of deposit or bankers' acceptances maturing
within one year from the date of creation thereof issued by any
Bank or by a commercial bank or trust company organized under the
laws of the United States of America, or of any state thereof,
having combined capital, surplus and undivided profits of not
less than $1,000,000,000 (or its equivalent in any other
currency) and having, in respect of its long-term senior debt
securities, a rating of at least A- from Standard & Poor's Rating
Group or A3 from Moody's Investors Services, Inc.,
in the case of each of (a), (b) and (c), so long as the same
(x) provide for the payment of principal and interest (and not
principal alone or interest alone) and (y) are not subject to any
contingency regarding the payment of principal or interest.
"Change in Tax Law" means the enactment, promulgation,
execution or ratification of, any tax treaty, law (including,
without limitation, the Code), rule or regulation (or any change
in the application or judicial, administrative or other official
interpretation of any treaty, law, rule or regulation).
"Closing Date" shall mean the Business Day on which the
first Loan shall be made, which shall be May 2, 2000 or, if all
the conditions specified in Section 5 have not been satisfied or
waived by such date, not later than May 2, 2000, as designated by
the Borrower by at least three Business Days' notice to the
Administrative Agent, or such other date as the parties agree.
"Co-Arrangers" means collectively Union Bank of Norway and
First Union Securities, Inc.
"Code" means the Internal Revenue Code of 1986 (or any
successor legislation thereto), as amended from time to time.
"Collateral" means (i) the property of the Loan Parties in
which liens and security interests are granted under (a) the
Pledge Agreement, (b) the Security Agreement, and (c) the Patent,
Trademark and Copyright Security Agreement, and (ii) the Real
Property.
"Collateral Agency and Sharing Agreement" means the
Collateral Agency and Sharing Agreement in the form of Exhibit
5.1(b).
"Collateral Agent" means First Union National Bank, in its
capacity as Collateral Agent, or any successor in such capacity.
"Collateral Documents" means the Mortgages, the Patent,
Trademark and Copyright Security Agreement, the Pledge Agreement,
the Security Agreement and all other instruments creating or
perfecting the liens of the Collateral Agent for the benefit of
the Senior Lenders in the Property of the Borrower, the Parent
Guarantor and the Subsidiary Guarantors.
"Consideration" means with respect to any acquisition by a
Loan Party, the aggregate of (i) the cash paid by the Loan
Parties, directly or indirectly, to the seller in connection
therewith, (ii) the Indebtedness incurred or assumed by the Loan
Parties, whether in favor of the seller or otherwise and whether
fixed or contingent, (iii) any guaranty given or incurred by the
Loan Parties in connection therewith, and (iv) any other
consideration given or obligation incurred by the Loan Parties in
connection therewith.
"Contaminant" means any waste, pollutant, hazardous
substance, toxic substance, hazardous waste, special waste,
petroleum or petroleum derived substance or waste, or any
constituent of such substance or waste, including any substance
regulated under any Environmental Law.
"Credit Support Documents" means the Parent Guaranty, the
Subsidiary Guaranty and the Collateral Documents.
"Debt Offering" means the incurrence of any Indebtedness by
the Borrower, the Parent Guarantor or any Subsidiary Guarantor
pursuant to any bonds, debentures, notes or other similar
instruments, including without limitation, the issuance of any
high yield notes, or any such instrument which is convertible
into Equity (including high yield notes which convert to Equity)
or related instruments of Indebtedness, provided, however, that
(i) the intercompany Indebtedness among the Parent Guarantor
and/or its Subsidiaries, (ii) Indebtedness with respect to a Swap
Agreement (as hereafter defined), (iii) Indebtedness incurred
under the UBN Credit Agreement not in excess of the current
commitments under the UBN Credit Agreement, (iv) Indebtedness
incurred under the existing multicurrency line of credit in the
principal amount of $30,000,000 with Union Bank of Norway and Den
norske Bank ASA not in excess of the current commitments existing
thereunder on the date hereof and, (v) Indebtedness incurred
under various overdraft facilities in principal amounts not in
excess of $1,000,000 individually or $10,000,000 in the
aggregate, in the case of each of (i) through (v) shall be
excluded from this definition of Debt Offering.
"Default" means any event which with the passing of time or
the giving of notice or both would become an Event of Default.
"Dollars" and the sign "$" each mean the lawful money of the
United States of America.
"Effective Date" means the first day on which the conditions
set forth in Sections 5.1 and 5.2 are satisfied or waived.
"Engagement Letter" means that certain letter agreement
dated April 25, 2000 between the Borrower and FUSI.
"Environmental Law" means the Comprehensive Environmental
Response, Compensation, and Liability Act (42 U.S.C. 9601
et seq.), the Hazardous Material Transportation Act (49 U.S.C.
1801 et seq.), the Resource Conservation and Recovery Act
(42 U.S.C. 6901 et seq.), the Federal Water Pollution Control
Act (33 U.S.C. 12S1 et seq.), the Clean Air Act (42 U.S.C.
7401 et seq.), the Toxic Substances Control Act (15 U.S.C.
2601 et seq.), and the Occupational Safety and Health Act
(29 U.S.C. 651 et seq.), in each case as amended or
supplemented from time to time, and any analogous future federal
or present or future state or local statutes, including, without
limitation, transfer of ownership notification statutes such as
the New Jersey Industrial Site Recovery Act and the Connecticut
Industrial Transfer Law of 1985 (Conn. Gen. Stat. 22a-134
et seq.) and the regulations promulgated pursuant thereto.
"Environmental Liabilities and Costs" means, as to any
Person, all liabilities, obligations, responsibilities, Remedial
Actions, losses, damages, punitive damages, consequential
damages, treble damages, costs and expenses (including, without
limitation, all reasonable fees, disbursements and expenses of
counsel, expert and consulting fees, and costs of investigation
and feasibility studies), fines, penalties, sanctions and
interest incurred as a result of any claim or demand, by any
Person, whether based in contract, tort, implied or express
warranty, strict liability, any criminal or civil statute,
including any Environmental Law, Permit, order or agreement with
any Government Authority or other Person, arising from
environmental, health or safety conditions, or the Release or
threatened Release of a Contaminant into the environment, from
the past, present or future operations of such Person or its
Subsidiaries.
"Environmental Lien" means any Lien in favor of any
Governmental Authority for Environmental Liabilities and Costs.
"Equity" means all shares, options, equity interests,
general or limited partnership interests, joint venture interests
or participations or other equivalents (regardless of how
designated) of or in a corporation, partnership or other entity,
whether voting or non-voting, and including, without limitation,
common stock, preferred stock, purchase rights, warrants or
options for any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of
1974 (or any successor legislation thereto) and the rules and
regulations promulgated thereunder, as amended from time to time.
"ERISA Affiliate" shall mean a corporation, partnership or
other entity which is considered one employer with the Borrower
under Section 4001 of ERISA or Section 414 of the Code.
"ERISA Event" means (i) a Reportable Event with respect to a
Title IV Plan; (ii) the withdrawal of the Borrower, any of its
Subsidiaries or any ERISA Affiliate from a Title IV Plan subject
to Section 4063 of ERISA during a plan year in which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA;
(iii) the filing of a notice of intent to terminate a Title IV
Plan or the treatment of a plan amendment as a termination under
Section 4041 of ERISA; or (iv) the institution of proceedings to
terminate a Title IV Plan or Multiemployer Plan by the PBGC.
"Eurocurrency Liabilities" has the meaning specified in
Regulation D.
"Eurodollar Loans" means Loans bearing interest at the
Eurodollar Rate plus the Applicable Margin.
"Eurodollar Rate" means, for any Interest Period, the rate
per annum determined by the Administrative Agent to be the rate
at which the Reference Bank offered or would have offered to
place with first-class banks in the London interbank market
deposits in Dollars in amounts comparable to the Eurodollar Loan
being requested by the Borrower to which such Interest Period
applies, for a period equal to such Interest Period, at
11:00 a.m. (London time) on the second Business Day before the
first day of such Interest Period. If the Reference Bank is
unable or otherwise fails to furnish the Administrative Agent
with appropriate rate information in a timely manner, the
Eurodollar Rate shall mean the rate of interest for deposits in
Dollars for a maturity equal to the applicable Interest Period
therefor which appears on Telerate Page 3750 as of 11:00 a.m.
(London time), on the second Business Day before the first day of
such Interest Period.
"Eurodollar Reserve Requirement" means, at any time, the
then current maximum rate for which reserves (including any
marginal, supplemental or emergency reserve) are required to be
maintained under Regulation D by member banks of the Federal
Reserve System in New York City with deposits exceeding five
billion Dollars against Eurocurrency Liabilities.
"Event of Default" has the meaning specified in Section 9.1.
"Federal Funds Rate" means, for any day, a fluctuating
interest rate per annum equal for such day to the weighted
average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds
brokers, as published for such day (or, if such day is not a
Business Day, for the next preceding 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 of the quotations
for such day on such transactions received by the Administrative
Agent from three federal funds brokers of recognized standing
selected by it.
"Final Judgment" has the meaning specified in
Section 9.1(h).
"First Extended Termination Date" means the date which is
one hundred twenty (120) days after the Closing Date.
"First Union" means First Union National Bank, its
successors and/or assigns.
"Fiscal Year" means each twelve-month period ending
December 31, or such other fiscal year-end date as may be
determined by the Borrower following the Closing Date.
"Fully Underwritten Commitment" has the meaning specified in
Section 2.3.
"FUSI" means First Union Securities, Inc., its successors
and/or assigns.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect from time to time and set
forth in the rules, regulations, opinions and pronouncements of
the Accounting Principles Board and the American Institute of
Certified Public Accountants and the statements and
pronouncements of the Financial Accounting Standards Board, or in
such other statements by such other entity as may be in general
use by significant segments of the accounting profession and
which are applicable to the circumstances as of the date of
determination.
"GAAS" means generally accepted auditing standards in the
United States of America as in effect from time to time and set
forth in the rules, regulations, opinions and pronouncements of
the Accounting Principles Board and the American Institute of
Certified Public Accountants and the statements and
pronouncements of the Financial Accounting Standards Board, or in
such other statements by such other entity as may be in general
use by significant segments of the accounting profession and
which are applicable to the circumstances as of the date of
determination.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Guarantor" means individually any of the Parent Guarantor
or the Subsidiary Guarantors and "Guarantors" means collectively,
the Parent Guarantor and the Subsidiary Guarantors.
"Inactive Subsidiary" means any Subsidiary of Borrower that
has less than $50,000 in assets (determined at fair market value)
and less than $50,000 in annual revenues, including those such
Subsidiaries existing on the Closing Date as described on
Schedule III hereto.
"Indebtedness" of any Person means at any date, without
duplication, (i) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments, (ii) all
obligations of such Person to pay the deferred purchase price of
Property or services, except as provided below, (iii) all
obligations of such Person as lessee under Capitalized Leases,
(iv) all Indebtedness of others secured by a Lien on any Property
of such Person, whether or not such Indebtedness is assumed by
such Person, (v) all Indebtedness of others directly or
indirectly guaranteed or otherwise assumed by such Person,
including any obligations of others endorsed (otherwise than for
collection or deposit in the ordinary course of business) or
discounted or sold with recourse by such Person, or in respect of
which such Person is otherwise directly or indirectly liable,
including, without limitation any Indebtedness in effect
guaranteed by such Person through any agreement (contingent or
otherwise) to purchase, repurchase or otherwise acquire such
obligation or any security therefor, or to provide funds for the
payment or discharge of such obligation, or to maintain the
solvency or any balance sheet or other financial condition of the
obligor of such obligation, (vi) all obligations of such Person
as issuer, customer or account party under letters of credit or
bankers' acceptances that are either undrawn, drawn or that back
financial obligations that would otherwise be Indebtedness,
(vii) any obligation (as determined in accordance with GAAP) with
respect to an interest rate or currency swap or similar
obligation (a "Swap Agreement") obligating such Person to make
payments, whether periodically or upon the happening of a
contingency, except that if any agreement relating to such
obligation provides for the netting of amounts payable by and to
such Person thereunder or if any such agreement provides for the
simultaneous payment of amounts by and to such Person, then in
each such case, the amount of such obligation shall be the net
amount thereof, (viii) obligations under conditional sale or
other title retention agreements, (ix) indebtedness of any
partnership or unincorporated joint venture in which such Person
is a partner or joint venturer for which such Person is legally
obligated or has a reasonable expectation of being liable
therefor and (x) all other indebtedness for borrowed money.
"Indebtedness for Borrowed Money" of any Person means at any
date, without duplication, Indebtedness described in clauses (i),
(iii), (v), (vi) and (vii) of the definition of Indebtedness.
"Indemnified Liability" has the meaning specified in
Section 11.4(b).
"Indemnified Person" has the meaning specified in
Section 11.4(b).
"Initial Funding Date" means the date on which (i) the
conditions set forth in Sections 5.1 and 5.2 are satisfied or
waived and (ii) the initial Line of Credit Loans are made
hereunder.
"Initial Term" has the meaning specified in Section 2.3.
"Interest Period" means with respect to any Eurodollar Loans
(i) initially, the period commencing on the date such Eurodollar
Loans are made and ending one, two, three or six months
thereafter, as selected by the Borrower in its Notice of
Borrowing or Notice of Interest Period given to the
Administrative Agent pursuant to Section 4.1, and
(ii) thereafter, the period commencing on the last day of the
immediately preceding Interest Period therefor and ending one,
two, three or six months thereafter, as selected by the Borrower
in its Notice of Interest Period given to the Administrative
Agent pursuant to Section 4.1, subject, however, to the
following:
(i) if any Interest Period would otherwise end on a day that is
not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day, unless the result of such extension
for any Loan would be to extend such Interest Period into another
calendar month, in which event such Interest Period shall end on
the immediately preceding Business Day;
(ii) any Interest Period in respect of Loans that begins on the
last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last
Business Day of a calendar month; and
(iii) no Interest Period may extend beyond the Line of Credit
Loan Commitment Termination Date, the First Extended Termination
Date or the Second Extended Termination Date (as applicable)
unless the Majority Banks have agreed in writing to the Loan
Conversion, in which case no Interest Period may extend beyond
the Term Loan Maturity Date.
"Interim Term Loan Facility" has the meaning specified in
Section 2.5.
"IRS" means the Internal Revenue Service, or any successor
thereto.
"Law" means (a) all applicable common law and principles of
equity and (b) all applicable provisions of all
(i) constitutions, statutes, rules, regulations and orders of
governmental bodies, (ii) governmental approvals and
(iii) orders, decisions, judgments and decrees of all courts
(whether at law, in equity or admiralty) and arbitrators.
"Lending Office" means, with respect to any Bank, the office
of such Bank specified as its "Lending Office" opposite its name
on Schedule I or such other office of such Bank as such Bank may
from time to time specify to the Borrower and the Administrative
Agent.
"Lien" means any mortgage, deed of trust, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or other), security interest or preference, priority
or other security agreement or preferential arrangement of any
kind or nature whatsoever, including, without limitation, any
conditional sale or other title retention agreement.
"Line of Credit Loan" means a Loan made to the Borrower
pursuant to Section 2.1.
"Line of Credit Loan Availability Period" means the period
beginning on the Closing Date and ending on the Line of Credit
Loan Commitment Termination Date, the First Extended Termination
Date (if extended) or the Second Extended Termination Date (if
extended a second time).
"Line of Credit Loan Borrowing" means a borrowing by the
Borrower consisting of Line of Credit Loans made on the same day
by the Banks ratably according to their respective Line of Credit
Loan Commitments.
"Line of Credit Loan Commitment" has the meaning specified
in Section 2.1(a).
"Line of Credit Loan Commitment Termination Date" means the
date which is ninety (90) days after the Closing Date.
"Line of Credit Note" means any promissory note in the form
of Exhibit 1.1(L).
"Loan Conversion" means the conversion of the Line of Credit
Loans to term loans on the Line of Credit Loan Commitment
Termination Date, the First Extended Termination Date or the
Second Extended Termination Date (as applicable) subject to the
terms of Sections 2.3 and 2.5.
"Loan Documents" means (i) this Agreement, the Notes and the
Credit Support Documents and (ii) all other agreements, documents
and instruments that may hereafter be entered into relating to or
arising out of any agreement, document or instrument referred to
in clause (i).
"Loan Party" means any Person (other than the Administrative
Agent, the Banks and the Co-Arrangers) that is a party to a Loan
Document.
"Loans" means the Line of Credit Loans, as the same may
convert to term loans in the Majority Banks' sole and absolute
discretion.
"Majority Banks" means, at any time, Banks holding more than
66-2/3% of the then aggregate unpaid principal amount of Loans
held by the Banks, or, if no such principal amount is then
outstanding, Banks having more than 66-2/3% of the aggregate
amount of the Line of Credit Loan Commitments.
"Mandatory Prepayment of Debt Proceeds" has the meaning
specified in Section 2.4(a).
"Mandatory Prepayment of Equity Proceeds" has the meaning
specified in Section 2.4(b).
"Margin Stock" has the meaning specified in Regulation U.
"Material Adverse Change" means a change that has resulted,
or would result, in a Material Adverse Effect.
"Material Adverse Effect" means, in the judgment of the
Majority Banks (or, for purposes of any notice of a Material
Adverse Effect to be given by a Loan Party, in the judgment of
such Loan Party), a material adverse effect on the business,
financial condition, operations, prospects or Properties of the
Borrower and its Subsidiaries or of the Parent Guarantor and its
Subsidiaries (as the case may be), in each case taken as a whole.
"Material Credit Agreement Change" means, in the judgment of
the Majority Banks (or, for purposes of any notice of a Material
Credit Agreement Change to be given by a Loan Party, in the
judgment of such Loan Party), a change that has materially
adversely affected or would materially adversely affect the
legality, validity or enforceability of any payment obligation of
the Borrower, the Parent Guarantor, or any of the Subsidiary
Guarantors under this Agreement or any other Loan Document.
"Mortgages" shall mean the Mortgages in substantially the
form of Exhibit 1.1(M) with respect to the real Property of the
Loan Parties located in the United States and Puerto Rico granted
to the Collateral Agent for the benefit of the Senior Lenders.
"Multiemployer Plan" means a multiemployer plan, as defined
in Section 4001(a)(3) of ERISA, to which the Borrower, any of its
Subsidiaries or any ERISA Affiliate is making, is obligated to
make, has made or been obligated to make, contributions on behalf
of participants who are or were employed by any of them.
"Net Cash Proceeds" means:
(a) in reference to asset sales, proceeds in cash as and
when received by the Borrower or any of its Subsidiaries, or the
Parent Guarantor or any of its Subsidiaries, from, or in
connection with, the sale by the Borrower or any of its
Subsidiaries, or the Parent Guarantor or any of its Subsidiaries,
to any Person (other than the Borrower or any of its
Subsidiaries, or the Parent Guarantor or any of its Subsidiaries)
of any asset outside of the ordinary course of business
(including, without limitation, the sale of any facility,
division, plant or other real property or interest in real
property outside the ordinary course of business), net of the
direct costs relating to such sale, including, without
limitation, (i) legal, accounting and investment banking fees and
sale commissions, (ii) taxes paid or payable as a result thereof
(after taking into account any available tax credits or
deductions and any tax sharing arrangements in each case arising
directly from such sale), (iii) amounts required to be applied to
the repayment of Indebtedness relating to the asset that is the
subject of such sale and not otherwise provided for by the terms
of such sale, and (iv) reasonable reserves for purchase price
adjustments; and
(b) in reference to Capital Market Transactions by any
Person, the proceeds in cash received from such Capital Market
Transactions, net of all issuance fees, discounts, and other
costs.
(c) in reference to Debt Offerings by any Person and
increases in credit available under the UBN Credit Agreement, the
proceeds in cash received from such Debt Offerings or increase,
net of all issuance fees, facility fees and other costs.
For purposes of this definition, proceeds received by any
Subsidiary of the Borrower or of the Parent Guarantor other than
a wholly owned Subsidiary shall be deemed to be Net Cash Proceeds
received by the Borrower or the Parent Guarantor only in an
amount proportionate to the equity ownership interest of the
Borrower or the Parent Guarantor in the Subsidiary receiving such
proceeds.
"Non-U.S. Subsidiary" means, as to any Person, each
Subsidiary of such Person that is incorporated or organized under
the laws of a jurisdiction outside of the United States of
America.
"Notes" means the Line of Credit Notes.
"Notice of Borrowing" means a notice of the Borrower
substantially in the form of Exhibit 1.1( N) hereto specifying
therein (i) the date of the proposed Borrowing, (ii) the
aggregate amount of such proposed Borrowing and (iii) the initial
Interest Period or Interest Periods for such Loans.
"Notice of Interest Period" has the meaning specified in
Section 4.1.
"Original Banks" means each financial institution that is a
"Bank" as of the Closing Date.
"Parent Guarantor" means Alpharma Inc., a Delaware
corporation.
"Parent Guaranty" means the guaranty by the Parent Guarantor
of the obligations of the Borrower pursuant to the Loan
Documents, substantially in the form of Exhibit 1.1(P)(1) hereto.
"Patent, Trademark and Copyright Security Agreement" means
the Patent, Trademark and Copyright Security Agreement in the
form of Exhibit 1.1(P)(2) executed and delivered by the Loan
Parties to the Collateral Agent for the benefit of the Senior
Lenders.
"PBGC" means the Pension Benefit Guaranty Corporation, or
any successor thereto.
"Pension Plan" means an employee pension benefit plan, as
defined in Section 3(2) of ERISA (other than a Multiemployer
Plan), which is not an individual account plan, as defined in
Section 3(34) of ERISA, and which the Borrower, any of its
Subsidiaries or any ERISA Affiliate now or in the future
maintains, contributes to or has an obligation to contribute to
on behalf of participants who are or were employed by any of
them.
"Permanent Credit Facility" means any senior secured credit
facility arranged and syndicated by FUSI as sole manager that
provides the Borrower with financing sufficient to pay all
amounts owing by the Borrower hereunder and under the UBN Credit
Agreement and that results in the termination of this Agreement
and all Line of Credit Loan Commitments and the UBN Credit
Agreement and the commitments thereunder.
"Permit" means any permit, approval, authorization, license,
variance or permission required from a Governmental Authority
under an applicable Requirement of Law.
"Permitted Acquisition" means an acquisition by any Loan
Party which (i) is an acquisition of a Person in the same or
similar line of business; (ii) complies with the terms of this
Agreement (including, without limitation, Section 8.2); and (iii)
after giving effect to such acquisition on a pro forma basis,
does not result in a Default or Event of Default.
"Permitted Investments" means: (i) cash and Cash
Equivalents; (ii) receivables and advances to suppliers, in each
case if created, acquired or made in the ordinary course of
business and payable or dischargeable in accordance with
customary trade terms; (iii) investments in and loans to any then
existing Loan Parties; (iv) loans and advances to officers,
directors, employees and Affiliates in an aggregate amount not to
exceed $2,000,000 at any time outstanding; (v) investments
(including debt obligations) received in connection with the
bankruptcy or reorganization of suppliers arising in settlement
of delinquent obligations of, and other disputes with, suppliers
arising in the ordinary course of business; (vi) investments in
acquisitions permitted by this Agreement; (vii) investments
existing on the Closing Date and investments for which the Loan
Parties are obligated on the Closing Date as set forth on
Schedule IV hereto; (viii) intercompany transactions in the
ordinary course of business or consistent with the restructuring
which has been outlined to the Banks among the Subsidiaries of
the Parent Guarantor that are organized under the Laws of a
jurisdiction other than the U.S. or any of its states and (ix)
additional loan advances and/or investments of a nature not
contemplated by the foregoing clauses hereof in an aggregate
amount not to exceed $2,000,000 at any time; as used herein,
"investment" means all investments, in cash or by delivery of
property, made, directly or indirectly in, to or from any Person,
whether by acquisition of shares of capital stock, property,
assets, indebtedness or other obligations or securities of such
Person or by loan advance, capital contribution or otherwise to
such Person.
"Permitted Liens" has the meaning set forth in UBN Credit
Agreement.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture or other entity, or
Governmental Authority.
"Plan" shall mean an employee benefit plan as defined in
Section 3(3) of ERISA which is maintained or contributed to by
the Borrower or an ERISA Affiliate.
"Pledge Agreement" shall mean the Pledge Agreement in the
form of Exhibit 1.1(P)(3) executed and delivered by the Parent
Guarantor, the Borrower and each applicable Subsidiary Guarantor
to the Collateral Agent for the benefit of the Senior Lenders.
"Principal Subsidiary" means any Subsidiary of the Parent
Guarantor that (a) owns more than 5% of the total assets of the
Parent Guarantor and its Subsidiaries on a consolidated basis, or
(b) is responsible for more than 5% of the total revenues of the
Parent Guarantor and its Subsidiaries, on a consolidated basis.
"Property" means any interest in any kind of property or
asset, whether real, personal or mixed, and whether tangible or
intangible, including, without limitation, the right to use,
transmit, display, license or otherwise temporarily or
permanently benefit from the possession of, control of or access
to any film, television program, trademark, trade name,
copyright, service mark or any other type of intellectual or
intangible property.
"Qualified Plan" means an employee pension benefit plan, as
defined in Section 3(2) of ERISA, which is intended to be tax-
qualified under Section 401(a) of the Code, and which the
Borrower, any of its Subsidiaries or any ERISA Affiliate now or
in the future maintains, contributes to or has an obligation to
contribute to on behalf of participants who are or were employed
by any of them.
"Ratable Portion" means, as to any Bank, the percentage
obtained by dividing the amount of such Bank's Line of Credit
Loan Commitment by the aggregate amount of all Line of Credit
Loan Commitments of all the Banks.
"Real Property" means the real estate owned by the Parent
Guarantor or its Subsidiaries located in the United States or
Puerto Rico, each parcel of which shall be encumbered by a
Mortgage as provided herein.
"Reference Bank" means First Union National Bank.
"Reference Rate" has the meaning specified in Section
4.2(b).
"Register" has the meaning specified in Section 11.7(g)
hereof.
"Regulation D," "Regulation T," "Regulation U" and
"Regulation X" mean Regulation D, T, U, and X, respectively, of
the Board of Governors of the Federal Reserve System (or any
successor thereto), as in effect from time to time, or any
successor thereto.
"Release" means, as to any Person, any release, spill,
emission, leaking, pumping, injection, deposit, disposal,
discharge, disbursal, leaching or migration into the indoor or
outdoor environment or into or out of any property owned by such
Person, including the movement of Contaminants through or in the
air, soil, surface water, ground water or property.
"Remedial Action" means all actions required to (i) clean
up, remove, treat or in any other way address Contaminants in the
indoor or outdoor environment, (ii) prevent the Release or threat
of Release or minimize the further Release of Contaminants so
they do not migrate or endanger or threaten to endanger public
health or welfare or the indoor or outdoor environment, or
(iii) perform pre-remedial studies and investigations and post-
remedial monitoring and care.
"Reportable Event" means any of the events described in
Section 4043(b)(1), (2), (3), (5), (6), (8) or (9) of ERISA.
"Responsible Financial Officer" of any Person means the
chief financial officer, treasurer, assistant treasurer,
controller, secretary, assistant secretary or other officer of
such Person listed in the certificate delivered to the
Administrative Agent pursuant to Section 5.l(a)(iii) or otherwise
notified to the Administrative Agent as being authorized to
execute documents and certificates and otherwise act on behalf of
such Person in connection with financial matters arising under
this Agreement or any other Loan Document.
"Responsible Officer" of any Person means any of the
officers of such Person listed in the certificate delivered to
the Administrative Agent pursuant to Section 5.1(a)(iii) or
otherwise notified to the Administrative Agent as being
authorized to execute and deliver documents and certificates and
otherwise act on behalf of such Person in all matters (other than
financial matters) arising under this Agreement or any other Loan
Document.
"Scandinavian Principal Companies" means Alpharma AS, and
Dumex-Alpharma ApS.
"Second Extended Termination Date" means the date which is
one hundred fifty (150) days after the Closing Date.
"Security Agreement" means the Security Agreement in
substantially the form of Exhibit 1.1(S)(1) executed and
delivered by each of the Loan Parties to the Collateral Agent for
the benefit of the Senior Lenders.
"Security Event" has the meaning specified in Section 3.2.
"Seller" means collectively, Roche Vitamins, Inc. and F.
Hoffman-LaRoche Ltd.
"Senior Lenders" has the meaning specified in
Section 3.l(a).
"Single-Employer Plan" means a single, employer plan as
defined in Section 4001(a)(15) of ERISA which is subject to the
provisions of Title IV of ERISA.
"Subsidiary" means, with respect to any Person, any
corporation, partnership or other business entity of which more
than 50% of the outstanding Equity having ordinary voting power
to elect a majority of the board of directors (or equivalent
governing body) of such entity (irrespective of whether, at the
time, Equity of any other class or classes of such entity shall
have or might have voting power by reason of the happening of any
contingency) is, or of which more than 50% of the interests in
which are, at the time, directly or indirectly, owned by such
Person and/or one or more Subsidiaries of such Person.
"Subsidiary Guarantor" means each of Alpharma USPD Inc., a
Maryland corporation; ParMed Pharmaceuticals, Inc., a Delaware
corporation; G.F. Reilly Company, a Delaware corporation;
Alpharma Animal Health Company, a Texas corporation; Barre Parent
Corporation, a Delaware corporation; Mikjan Corporation, an
Arkansas corporation, Alpharma NW Inc., a Washington corporation,
Alpharma US Pharmaceutical LLC, a Delaware limited liability
company, NMC Laboratories, Inc. a New York corporation and
Alpharma Euro Holdings Inc., a Delaware corporation, and all
other Subsidiaries that are incorporated or organized under the
laws of a jurisdiction located in the United States, exclusive of
Alpharma International Holdings Inc., Alpharma (Bermuda) Inc.,
A.L. Specialty Chemicals Inc. and Inactive Subsidiaries.
"Subsidiary Guaranty" means any of the guaranties of the
obligations of the Borrower delivered by each of the Subsidiary
Guarantors, pursuant to this Agreement, substantially in the form
of Exhibit 1.1(S)(2) hereto.
"Successful Offering" has the meaning set forth in Section
2.3.
"Swap Agreement" has the meaning specified in the definition
of Indebtedness.
"Take-Out Offering" means any subordinated debt and/or
secondary equity offering or offerings by the Borrower that is in
a total amount sufficient to pay all Loans and other amounts
owing by the Borrower hereunder, that results in the termination
of this Agreement and all Line of Credit Loan Commitments.
"Tax" means any federal, state, local or foreign tax,
assessment or other governmental charge or levy (including any
withholding tax) upon a Person or upon its assets, revenues,
income or profits.
"Tax Affiliate" means, as to any Person, (i) any Subsidiary
of such Person, or (ii) any Affiliate of such Person with which
such Person files or is required to file consolidated, combined
or unitary tax returns.
"Title IV Plan" means a Pension Plan, other than a
Multiemployer Plan, which is covered by Title IV of ERISA.
"Term Loan Maturity Date" means the sixth anniversary of the
Initial Funding Date of Term Loans (as such terms are defined in
the UBN Credit Agreement).
"UBN Credit Agreement" means that certain Credit Agreement
dated as of January 20, 1999, as amended, among the Borrower,
Union Bank of Norway, as Administrative Agent for the banks party
thereto and the banks party to such agreement.
"U.S." means the United States of America.
"Withdrawal Liability" means, as to any Person, at any time,
the aggregate amount of the liabilities, if any, of such Person
pursuant to Section 4201 of ERISA.
1.2 Computation of Time Periods. In this Agreement, in the
computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including" and
the words "to" and "until" each mean "to but excluding" and the
word "through" means "to and including."
1.3 Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP.
1.4 Additional Definitions. Capitalized terms used but not
defined herein shall have the meanings ascribed to such terms in
the UBN Credit Agreement.
ARTICLE II
AMOUNT AND TERMS OF THE LINE OF CREDIT LOANS
2.1 The Line of Credit Loans.
(a) Commitment to Lend. On the terms and subject to the
conditions contained in this Agreement, including without
limitation Section 5.2, each Bank severally agrees to make Line
of Credit Loans to the Borrower from time to time on any Business
Day during the Line of Credit Loan Availability Period, each such
Loan being part of a Line of Credit Loan Borrowing in an
aggregate amount not to exceed the amount set forth opposite such
Bank's name on Schedule II as its "Line of Credit Loan
Commitment" (as adjusted from time to time by reason of
assignments in accordance with the provisions of Section 11.7,
such Bank's "Line of Credit Loan Commitment"); provided, however,
that following the making of each such proposed Line of Credit
Loan, the aggregate amount of all Line of Credit Loans
outstanding shall not exceed the aggregate amount of the Line of
Credit Loan Commitments of the Banks. The Line of Credit Loans
are not revolving credit loans, and the Borrower shall not have
the right to reborrow any Line of Credit Loans repaid to the
Banks.
(b) Evidence of Debt.
(i) Each Bank shall maintain in accordance with its usual
practice an account or accounts and shall receive from the
Borrower a single Line of Credit Note payable to the order of
such Bank, both evidencing the Indebtedness to such Bank
resulting from each Line of Credit Loan made by such Bank to the
Borrower from time to time, including the amounts of principal
and interest payable and paid to such Bank from time to time
hereunder. In the event that the Borrower requests a Loan
Conversion and the Majority Banks consent to such request
pursuant to Section 2.5, the accounts maintained by the Banks and
the Line of Credit Notes shall continue to evidence the
Indebtedness of the Borrower to such Banks for the Line of Credit
Loans, as so modified in accordance with the terms of this
Agreement.
(ii) The Register maintained by the Administrative Agent pursuant
to Section 11.7(g) shall include a "Line of Credit Loan control
account" for each Bank, in which account shall be recorded
(A) the date and amount of each Line of Credit Loan Borrowing
hereunder, (B) the amount of each Bank's Line of Credit Loan
comprising such Borrowing and, in the case of Eurodollar Loans,
the Interest Period applicable thereto, (C) the amount of any
principal or interest due and payable or to become due and
payable from the Borrower to each Bank with respect to each such
Line of Credit Loan hereunder and (D) the amount of any sum
received by the Administrative Agent from the Borrower with
respect to such Line of Credit Loans hereunder and each Bank's
Ratable Portion thereof.
(iii) The entries made in the Register in respect of the Line
of Credit Loans shall be conclusive and binding for all purposes,
absent manifest error.
(c) Voluntary Prepayment of Line of Credit Loans.
(i) Subject to the provisions of Sections 2.6 and 4.4, the
Borrower may, upon at least three Business Days' prior notice to
the Administrative Agent (which shall be irrevocable) stating the
proposed date and aggregate principal amount of the prepayment,
prepay without premium the outstanding principal amount of the
Line of Credit Loans comprising a part of the same Line of Credit
Loan Borrowing, in whole or in part, together with accrued
interest to the date of such prepayment on the principal amount
prepaid; provided, that any such prepayments shall be in an
aggregate amount of not less than $1,000,000 or an integral
multiple of $1,000,000 in excess thereof (or such lesser amount
as may be necessary to prepay all outstanding Loans).
(ii) The Borrower shall indemnify the Banks pursuant to
Section 11.4(c) in the event that any prepayment shall be made on
a day other than the last day of an Interest Period for the Loan
or Loans being prepaid.
2.2 Making the Line of Credit Loans.
(a) Each Line of Credit Loan Borrowing shall be made upon
receipt of a Notice of Borrowing, given by the Borrower to the
Administrative Agent not later than 11:00 a.m. (New York City
time) at least three Business Days prior to the date of the
proposed Line of Credit Loan Borrowing in the case of Eurodollar
Loans.
(b) The Administrative Agent shall give to each Bank prompt
notice of its receipt of a Notice of Borrowing in respect of Line
of Credit Loans, the amount of Eurodollar Loans requested and
upon the Administrative Agent's determination of the applicable
interest rate under Section 4.3(b), notice of said interest rate.
Each Bank shall, before 11:00 a.m. (New York City time) on the
date of the proposed Line of Credit Loan Borrowing, make
available for the account of its Lending Office to the
Administrative Agent at its address referred to in Section 11.2,
in immediately available funds, such Bank's Ratable Portion of
such proposed Line of Credit Loan Borrowing. After the
Administrative Agent's receipt of such funds and upon Borrower's
fulfillment of the applicable conditions set forth in Article V,
such funds shall be available to the Borrower at the
Administrative Agent's aforesaid address.
(c) Each Line of Credit Loan Borrowing pursuant to this
Section 2.2 shall be in an aggregate amount of not less than
$1,000,000 or an integral multiple of $1,000,000 in excess
thereof (or such lesser amount as may be necessary to draw down
the full amount of the Line of Credit Loan Commitment). The
number of Interest Periods outstanding in respect of Eurodollar
Loans at any one time shall not exceed (i) prior to a Loan
Conversion, three (3) Interest Periods during the Line of Credit
Loan Availability Period, and (ii) after a Loan Conversion, six
(6) Interest Periods.
(d) Each Notice of Borrowing pursuant to this Section 2.2 shall
be irrevocable and binding on the Borrower. The Borrower shall
indemnify each Bank against any loss, cost or expense incurred by
such Bank as a result of any failure to fulfill on or before the
date specified in such Notice of Borrowing for such proposed
Borrowing the applicable conditions set forth in Article V,
including, without limitation, any loss, cost or expense incurred
by reason of the liquidation or re-employment of deposits or
other funds acquired by such Bank to fund any Line of Credit Loan
to be made by such Bank as part of such proposed Line of Credit
Loan Borrowing when such Line of Credit Loan, as a result of such
failure, is not made on such date. A certificate as to such
amounts submitted to the Borrower and the Administrative Agent by
such Bank shall be conclusive and binding, absent manifest error.
(e) Unless the Administrative Agent shall have received notice
from a Bank prior to the date of any proposed Line of Credit Loan
Borrowing pursuant to this Section 2.2 that such Bank will not
make available to the Administrative Agent such Bank's Ratable
Portion of such Line of Credit Loan Borrowing, the Administrative
Agent may assume that such Bank has made such Ratable Portion
available to the Administrative Agent on the date of such Line of
Credit Loan Borrowing in accordance with this Section 2.2 and the
Administrative Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount.
If and to the extent that such Bank shall not have so made such
Ratable Portion available to the Administrative Agent and the
Administrative Agent has so made available such amount, such Bank
and the Borrower severally agree to repay to the Administrative
Agent forthwith on demand such corresponding amount, together
with interest thereon, for each day from the date such amount is
made available to the Borrower until the date such amount is
repaid to the Administrative Agent, at (i) in the case of the
Borrower, the interest rate applicable at the time to the Line of
Credit Loan comprising such Line of Credit Loan Borrowing and
(ii) in the case of such Bank, the Federal Funds Rate. If such
Bank shall repay to the Administrative Agent such corresponding
amount, such amount so repaid shall constitute such Bank's Line
of Credit Loan as part of such Borrowing for purposes of this
Agreement. If the Borrower shall repay to the Administrative
Agent such corresponding amount, such payment shall not relieve
such Bank of any obligation it may have to the Borrower
hereunder.
(f) The failure of any Bank to make the Line of Credit Loan to
be made by it as part of any Line of Credit Loan Borrowing
pursuant to this Section 2.2 shall not relieve any other Bank of
its obligation, if any, hereunder to make its Line of Credit Loan
on the date of such Borrowing, but no Bank shall be responsible
for the failure of any other Bank to make the Line of Credit Loan
to be made by such other Bank on the date of any such Line of
Credit Loan Borrowing.
2.3 Maturity of the Line of Credit Loan. Subject to the terms
of this Section 2.3 and Section 2.5, the Line of Credit Loans are
due and payable in full, together with all accrued but unpaid
interest thereon, on the Line of Credit Loan Commitment
Termination Date, the First Extended Termination Date or the
Second Extended Termination Date (as applicable), and the
Borrower shall pay the outstanding principal amount of the Line
of Credit Loans (together with all accrued but unpaid interest
thereon) and all other amounts payable under this Agreement in
full on the Line of Credit Loan Commitment Termination Date, the
First Extended Termination Date or the Second Extended
Termination Date (as applicable). Upon the written request of the
Borrower to the Administrative Agent at least ten (10) days prior
to the Line of Credit Loan Commitment Termination Date, the
Majority Banks in their sole discretion may consent in writing to
extend the Line of Credit Commitment Termination Date to the
First Extended Termination Date. Upon the written request of the
Borrower to the Administrative Agent at least ten (10) days prior
to the First Extended Termination Date, the Majority Banks in
their sole discretion may consent in writing to extend the First
Extended Termination Date to the Second Extended Termination
Date. Further, in the event (i) the Borrower has not consummated
a Take-Out Offering on or before the Line of Credit Commitment
Termination Date but is using its best good faith efforts to
arrange and negotiate such Take-Out Offering on commercially
reasonable terms as evidenced by commencement of the drafting of
an offering memorandum or prospectus, as the case may be, and
commencement of the roadshow process or substantial progress
toward the completion of each of these steps, and the capital
markets on the Line of Credit Loan Commitment Termination Date
appear likely to be conducive to a successful completion of such
Take-Out Offering at the time at which such Take-Out Offering is
expected to price (such determination to be made at the sole
discretion of FUSI in consultation with the Borrower and its Take-
Out Offering providers) ("Successful Offering"), or (ii) the
Borrower notifies the Banks prior to the Line of Credit Loan
Commitment Termination Date that (A) it intends to proceed with a
Permanent Credit Facility or (B) it has received and accepted in
writing a fully-underwritten commitment from a lending
institution to provide a permanent bank credit facility (a "Fully
Underwritten Commitment"), the proceeds from which will be used
to pay all amounts owing by the Borrower hereunder and under the
UBN Credit Agreement and that results in the termination of this
Agreement and all Line of Credit Loan Commitments and the UBN
Credit Agreement and the commitments thereunder, then the Banks
shall not unreasonably withhold their consent to extend the Line
of Credit Commitment Termination Date to the First Extended
Termination Date or the First Extended Termination Date to the
Second Extended Termination Date, as applicable. In the event
that on the Line of Credit Commitment Termination Date (1) a Take-
Out Offering has not occurred, (2) either the Borrower is not
using its best good faith efforts to arrange and negotiate a Take-
Out Offering or the capital markets do not appear likely to be
conducive to a Successful Offering and (3) the Borrower has not
received a Fully Underwritten Commitment, then FUSI is hereby
authorized and engaged pursuant to the Engagement Letter, in its
discretion based on consultation with the Borrower, to commence
the arrangement and syndication of a Permanent Credit Facility.
2.4 Mandatory Prepayments. Whether or not a Loan Conversion has
occurred pursuant to Section 2.5, the Borrower shall and shall
cause the Loan Parties to make the following mandatory
prepayments with respect to the Loans:
(a) Within five Business Days of the effective date of any new
Debt Offering or any increase in the commitments under the UBN
Credit Agreement, the Borrower or the applicable Loan Party shall
make a mandatory prepayment of principal on the Loans equal to
the Net Cash Proceeds of the Debt Offering or the increase in the
amount of the commitments under UBN Credit Agreement, together
with accrued interest on such principal amount (each such
payment, a "Mandatory Prepayment of Debt Proceeds"). Each
Mandatory Prepayment of Debt Proceeds shall be applied to payment
of the principal amount of the Loans, and in the event that the
payment occurs subsequent to a Loan Conversion, by application to
the unpaid installments of principal in the inverse order of
scheduled maturities.
(b) Within five Business Days of the effective date of a Capital
Market Transaction by the Borrower, the Parent Guarantor or any
Subsidiary Guarantor, the Borrower or the applicable Loan Party
shall make a mandatory prepayment of principal on the Loans equal
to the Net Cash Proceeds of the Capital Market Transaction (each
such payment, a "Mandatory Prepayment of Equity Proceeds"). Each
Mandatory Prepayment of Equity Proceeds shall be applied to
payment of the principal amount of the Loans, and in the event
that the payment occurs subsequent to a Loan Conversion, by
application to the unpaid installments of principal in the
inverse order of scheduled maturities.
(c) In accordance with Section 4.4(c), the Borrower shall
indemnify the Banks for any loss or expense, including loss of
margin, incurred with respect to any such prepayments applied to
Eurodollar Loans on any day other than the last day of the
applicable Interest Period.
2.5 Conversion of Line of Credit Loans to Term Loans. Subject
to the terms of Section 2.3, on each of the Line of Credit Loan
Commitment Termination Date, the First Extended Termination Date
and the Second Extended Termination Date, the Majority Banks
shall have the right in their sole discretion to convert (the
"Loan Conversion") the Line of Credit Loans of all the Banks to
term loans (the "Interim Term Loan Facility") which will be fully
secured in accordance with the terms of Article III hereof and
rank pari passu with the UBN Credit Agreement.
2.6 Syndication of Permanent Credit Facility. The Borrower
agrees that, on and after the Line of Credit Loan Commitment
Termination Date, it will cooperate with FUSI in syndicating any
Permanent Credit Facility that is priced and structured based on
current market conditions at such time in order to ensure a
successful syndication of such Permanent Credit Facility on or
prior to the Second Extended Termination Date. With respect to
any such Permanent Credit Facility, certain commitment levels and
titles (as determined by FUSI after consultation with the
Borrower) will be reserved for the Banks. Before the completion
of the syndication of a Permanent Credit Facility, (a) FUSI
shall, after consultation with the Borrower, be entitled to
change the pricing, structure or terms of such Permanent Credit
Facility if FUSI determines that such changes are warranted by
market conditions or to ensure an optimal capital and/or credit
structure of any such facility and (b) the Majority Banks shall,
after consultation with the Borrower, be entitled to change the
pricing, structure or terms of the Interim Term Loan Facility if
the Majority Banks determine that such changes are warranted by
market conditions or to ensure an optimal capital and/or credit
structure of any such facilities.
2.7 Repayment of the Loans Subsequent to Conversion. In the
event that the Loans are not due and payable on the Line of
Credit Loan Commitment Termination Date, the First Extended
Termination Date or the Second Extended Termination Date (as
applicable) as a result of a Loan Conversion, and subject to the
earlier acceleration of the Loans pursuant to Section 9.1, the
Borrower shall repay the principal balance outstanding on the
Line of Credit Loan Commitment Termination Date, the First
Extended Termination Date or the Second Extended Termination Date
(as applicable) in ten (10) semi-annual installments of principal
in the amount and on the dates set forth in the table below
(subject to proportional adjustment in the event that less than
the full principal amount of the Line of Credit Loan Commitments
are outstanding and adjustment to reflect any prepayments);
provided that, in any event, on the Term Loan Maturity Date the
Borrower shall pay the full principal amount of all Loans then
outstanding and all other amounts owing hereunder (together with
all accrued and unpaid interest thereon).
Payment Date Principal Payment
Amount
October 20, 2000 $11,250,000
January 20, 2001 $16,875,000
July 20, 2001 $16,875,000
January 20, 2002 $16,875,000
July 20, 2002 $16,875,000
January 20, 2003 $16,875,000
July 20, 2003 $16,875,000
January 20 2004 $16,875,000
July 20, 2004 $16,875,000
January 20, 2005 $78,750,000
ARTICLE III
SECURITY
3.1 Granting of Security.
(a) Creation of Liens. If a Security Event shall occur, then
upon the occurrence of such Security Event, the Liens of each of
the Borrower, the Parent Guarantor and the Subsidiary Guarantors
granted under the Collateral Documents shall immediately become
effective without further action on the part of the parties to
this Agreement and the Collateral Documents. All Liens granted
under the Collateral Documents shall become enforceable against
the Loan Parties and upon all of their respective properties and
assets, whether now owned or hereafter acquired, including
without limitation real estate, personal property, agreements of
sale, purchase options, stock or partnership interests in
Affiliates, intercompany obligations and any collateral for any
of the foregoing. All Liens granted pursuant to the Collateral
Documents are in favor of the Collateral Agent for the benefit of
(i) the Banks and (ii) the banks under the UBN Credit Agreement
(the Banks and the banks under the UBN Credit Agreement being
collectively referred to herein as the "Senior Lenders"), so that
the Senior Lenders shall be secured equally and ratably by all of
Borrower's, the Parent Guarantor's and the Subsidiary Guarantors'
assets in accordance with each such Lender's proportionate share
of the Loans and the loans and other credit extended under the
UBN Credit Agreement. In the event that any Senior Lender
provides a Swap Agreement to the Borrower or any Guarantor, the
obligations under such Swap Agreement shall be pari passu with
such Loan Party's obligations under this Agreement and shall be
secured by liens and security interests under the Collateral
Documents upon the occurrence of a Security Event.
(b) Delivery and Recordation of Documents. All Collateral
Documents shall be in substantially the forms attached as
exhibits to this Agreement or as otherwise approved by Collateral
Agent with such changes as Collateral Agent may approve
including, without limitation, such changes as may be required by
virtue of differences in the laws of the state where the
collateral is located, and shall be accompanied by such
additional documents and agreements relating thereto, including
additional evidence of property, title insurance, casualty and
liability insurance, existing environmental studies, consents to
assignment and legal opinions as the Collateral Agent may
require. In furtherance of the foregoing and as provided in
Section 5.1, the Borrower, the Parent Guarantor and each
Subsidiary Guarantor shall execute and deliver to the Collateral
Agent all of the Collateral Documents except for the Mortgages
relating to assets owned by the Loan Parties as of the Closing
Date. Upon the request of the Collateral Agent, and to the
extent necessary to effect a first priority lien (subject to
Permitted Liens) in favor of the Collateral Agent, the Borrower,
the Parent Guarantor and each Subsidiary Guarantor shall execute,
acknowledge (if required) and deliver to the Collateral Agent all
Mortgages and other Collateral Documents relating to each
property now existing or acquired by the Borrower, the Parent
Guarantor or the Subsidiary Guarantors after the Closing Date.
The Collateral Agent shall hold the executed Collateral Documents
in escrow until the occurrence of a Security Event. The
Administrative Agent shall have the right to conduct lien
searches, intellectual property searches and title searches as
the Administrative Agent deems, appropriate at Borrower's
expense. Upon the occurrence of a Security Event, the Collateral
Documents shall, without further act on the part of Borrower, the
Parent Guarantor or the Subsidiary Guarantors, be deemed to have
been fully delivered to the Collateral Agent free of any
limitation or restriction imposed by this Agreement and shall be
recorded or filed by Collateral Agent, at Borrower's expense, in
all locations as Collateral Agent may deem necessary or
appropriate. Upon the happening of a Security Event, the
Borrower shall cause to be delivered a favorable opinion of
counsel to the Loan Parties in form and substance acceptable to
the Administrative Agent relating, inter alia, to the Collateral
Documents From time to time upon request of Collateral Agent
following the occurrence of a Security Event, the Borrower, the
Parent Guarantor and the Subsidiary Guarantors shall provide to
Collateral Agent such information as may be required to update
and correct any property descriptions constituting a part of any
Collateral Documents to reflect sales or other dispositions of
portions of the property so described or acquisitions of new
assets or property and shall execute any other Mortgages or
Collateral Documents and take other actions as required by the
Administrative Agent in order to protect and perfect the
Collateral Agent's security interest in the Collateral.
(c) Power of Attorney. Each of Borrower, the Parent Guarantor
and the Subsidiary Guarantors hereby appoints any officer or
agent of the Collateral Agent as its true and lawful attorney,
for it and in its name, place and stead, to make, execute,
deliver, and cause to be recorded or filed any or all such
mortgages, deeds of trust, assignments, pledges, security
interests, financing statements and additional documents and
agreements relating thereto, granting unto said attorney full
power to do any and all things said attorney may consider
reasonably necessary or appropriate to be done with respect to
the Collateral Documents as fully and effectively as the
Borrower, the Parent Guarantor and the Subsidiary Guarantors
might or could do, and hereby ratifying and confirming all its
said attorney shall lawfully do or cause to be done by virtue
hereof. This power of attorney is coupled with an interest and
shall be irrevocable for the term of this Agreement and all
transactions hereunder. Each of the Banks hereby consents to and
authorizes the Administrative Agent to enter into and execute,
amend or modify from time to time on its behalf, and agrees to be
bound by, the Collateral Agency and Sharing Agreement.
3.2 Security Events. Each of the following shall be a security
event ("Security Event") hereunder unless waived by the Majority
Banks in writing:
(a) the occurrence of an Event of Default hereunder;
(b) the Line of Credit Loans, interest accrued but unpaid
thereon, expenses reimbursable by the Borrower and all other
obligations of the Borrower to the Administrative Agent and the
Banks under this Agreement and the Loan Documents have not been
paid in full on or before the Line of Credit Loan Commitment
Termination Date, the First Extended Termination Date, or the
Second Extended Termination Date (as applicable); and
(c) the occurrence of a Loan Conversion.
ARTICLE IV
INTEREST, FEES, ETC.
4.1 Interest Period Election. The Borrower shall elect the
Interest Period that shall apply to each Eurodollar Loan;
provided that all Eurodollar Loans related to the same Borrowing
shall have the same Interest Period and prior to the written
consent of the Majority Banks to the Loan Conversion, the last
day of any Interest Period shall end on or prior to the Line of
Credit Loan Commitment Termination Date, the First Extended
Termination Date or the Second Extended Termination Date (as
applicable); provided further, that during the time period
preceding the Line of Credit Loan Commitment Termination Date,
the First Extended Termination Date or the Second Extended
Termination Date (as applicable), the Borrower may only select an
Interest Period of one month. Each such election shall be in
substantially the form of Exhibit 4.1 hereto (a "Notice of
Interest Period") and shall be made by giving the Administrative
Agent at least three Business Days' prior written notice thereof
specifying the Interest Period being elected. The Administrative
Agent shall promptly notify each Bank of its receipt of a Notice
of Interest Period and of the contents thereof. If, within the
time period required under the terms of this Section 4.1, the
Administrative Agent does not receive a Notice of Interest Period
from the Borrower, or a Default or Event of Default shall then
exist and be continuing, then the Administrative Agent shall
inform the Banks of the same and the Interest Period applicable
to such Eurodollar Loans thereafter shall be (x) one month, in
the case of the Borrower's failure to deliver a Notice of
Interest Period, and (y) of such duration as the Administrative
Agent may determine, in the event a Default or Event of Default
shall then exist and be continuing, until such time as (i) in the
case of the foregoing clause (x), the Borrower delivers a Notice
of Interest Period in accordance with the terms of this Agreement
electing a different Interest Period or (ii) such Loans become
due and payable (as the case may be). Each Notice of Interest
Period shall be irrevocable.
4.2 Interest Rate; Payment of Interest.
(a) For Eurodollar Loans, the Borrower shall pay interest on the
unpaid principal amount thereof from the date of the making
thereof until the principal amount thereof shall be paid in full
at (i) during the Line of Credit Loan Availability Period, a rate
per annum equal at all times during the applicable Interest
Period for each Eurodollar Loan to the sum of the Eurodollar Rate
for such Interest Period plus the Applicable Margin (calculated
on the basis of a year of 360 days), and (ii) upon the occurrence
of a Loan Conversion, at a rate per annum equal at all times
during the applicable Interest Period for each Eurodollar Loan to
the sum of the Eurodollar Rate for such Interest Period plus
three and three-quarters percent (3-3/4%), provided that the
Majority Banks shall, after consultation with the Borrower, be
entitled to change the pricing, structure or terms of the Interim
Term Loan Facility if the Majority Banks determine that such
changes are warranted by market conditions or to ensure an
optimal capital and/or credit structure of any such facilities.
Interest shall be payable by the Borrower in arrears on the last
day of such Interest Period, except that in the case of
Eurodollar Loans having an Interest Period of six months,
interest shall be payable both on the three-month anniversary of
the date such Eurodollar Loan was made and on the last day of
such Interest Period.
(b) Eurodollar Rate Unascertainable. If on any date on which a
Eurodollar Rate would otherwise be determined, the Administrative
Agent shall have determined that adequate and reasonable means do
not exist for ascertaining such Eurodollar Rate, or a contingency
has occurred which materially and adversely affects the London
interbank eurodollar market relating to the Eurodollar Rate, then
in that event, the Administrative Agent shall give notice to the
Borrower and the Banks (the "Determination Notice") and:
(i) with respect to Banks located in the United States, interest
shall accrue and be payable by the Borrower at a rate of interest
equal to the Alternate Base Rate plus 2.75% subject to adjustment
in accordance with Section 4.2(a) and (ii) with respect to the
Loans of the Banks located outside of the United States that are
not lending through a branch or Affiliate located in the United
States, the Borrower, such Banks and the Administrative Agent
shall then negotiate in good faith in order to agree upon a
mutually satisfactory interest rate (or separate rates in respect
of the Loans of the several Banks) (the "Reference Rate") and
Interest Period (or Periods) to be substituted for those which
would otherwise have applied under this Agreement; provided
however, if the Borrower, such Banks and the Administrative Agent
are unable to agree upon an interest rate (or rates) and Interest
Period (or Periods) within a period not exceeding thirty days of
the giving of such Determination Notice, then the Administrative
Agent shall (after consultation with such Banks) set an interest
rate (or separate rates in respect of the Loans of the several
Banks) and an Interest Period (or Periods) all to take effect
from the expiration of the Interest Period current at the date of
the Determination Notice, which rate (or rates) shall be the
aggregate of the Applicable Margin (as defined in the UBN Credit
Agreement) and the cost to each of the Banks of funding their
Ratable Portion of the Loans. In the event that the conditions
referred to in this Section 4.2(b) shall extend beyond the end of
an Interest Period so agreed or set, the foregoing procedure
shall be repeated as often as may be necessary.
(c) Default Rate of Interest. If any amount of principal of any
Loan is not paid when due, whether at stated maturity, by
acceleration or otherwise, the interest rate applicable to any
such amount shall be the interest rate applicable to such Loan
(as determined in accordance with this Agreement) plus two
percent (2%) per annum, payable on demand. If any interest, fee
or other amount payable hereunder is not paid when due, such
amount shall bear interest at a rate per annum equal at all times
to the applicable interest rate in effect at such time (and, in
the case of a Eurodollar Loan, for a period and for a Dollar
amount determined by the Administrative Agent), plus 2% per
annum, payable on demand.
4.3 Interest Rate Determination and Protection.
(a) If the Administrative Agent shall on behalf of the Banks
determine in good faith (which determination shall be conclusive
and binding on the Borrower and the Banks) that, by reason of
circumstances affecting the international interbank Eurocurrency
market generally, adequate and reasonable means do not or will
not exist for ascertaining the Eurodollar Rate applicable to any
Interest Period, the Administrative Agent shall give notice of
such determination (hereinafter called a "Determination Notice")
to the Borrower and each of the Banks. The Borrower, the Banks
and the Administrative Agent shall then negotiate in good faith
in order to agree upon a mutually satisfactory interest rate (or
separate rates in respect of the Eurodollar Loans of the several
Banks) and Interest Period (or Periods) to be substituted for
those which would otherwise have applied under this Agreement.
If the Borrower, the Banks and the Administrative Agent are
unable to agree upon an interest rate (or rates) and Interest
Period (or Periods) within a period not exceeding 30 days of the
giving of such Determination Notice, then the Borrower shall have
the right to prepay any such Loans (without premium or penalty)
and with respect to any such Eurodollar Loans that are not so
prepaid, the Administrative Agent shall (after consultation with
the Banks) set an interest rate (or separate rates in respect of
the Eurodollar Loans of the several Banks) and an Interest Period
(or Periods) all to take effect from the expiration of the
Interest Period current at the date of the Determination Notice,
which rate (or rates) shall be (i) during the Line of Credit Loan
Availability Period, the Base Rate or Reference Rate for non-U.S.
Banks plus 1.75%, and (ii) upon the occurrence of the Loan
Conversion, the Base Rate or Reference Rate for non-U.S. Banks
set forth in Section 4.2(b).
(b) The Administrative Agent shall give prompt notice to the
Borrower and the Banks of the applicable interest rate determined
by the Administrative Agent for purposes of Section 4.2, and the
applicable rate furnished by the Reference Bank.
(c) If the Majority Banks notify the Administrative Agent that
the Eurodollar Rate for any Interest Period will not adequately
reflect the cost to such Banks of making or maintaining their
respective Loans for such Interest Period, the Administrative
Agent shall forthwith give notice thereof to the Borrower and the
Banks stating the circumstances which have caused such notice to
be given, and if such notice shall be given prior to the Loan or
Loans being advanced by the Banks, the Borrower's right to borrow
the Eurodollar Loans hereunder from the Banks shall be suspended
during the continuation of such circumstances. In any event,
during the 30 days following the giving of such notice, the
Borrower, the Administrative Agent and the Banks shall negotiate
in good faith in order to arrive at an alternative interest rate
or (as the case may be) an alternative basis for the Banks to
fund or continue to fund their Ratable Portion of such Eurodollar
Loans during such Interest Period. If within such 30-day period
an alternative interest rate or (as the case may be) an
alternative basis is agreed upon, then such alternative interest
rate or (as the case may be) alternative basis shall take effect
in accordance with the terms of such agreement. If the Borrower,
the Administrative Agent and the Banks fail to agree on such an
alternative interest rate or (as the case may be) alternative
basis within such 30-day period and such circumstances are
continuing at the end of such 30-day period, then the
Administrative Agent with the agreement of each Bank shall set an
interest period and interest rate which rate (or rates) shall be
(i) during the Line of Credit Loan Availability Period, the Base
Rate or Reference Rate for non-U.S. Banks plus 1.75% , and
(ii) upon the occurrence of the Loan Conversion, the Base Rate or
Reference Rate for non-U.S. Banks set forth in Section 4.2(b).
If the circumstance shall continue at the end of such interest
period, the procedure in this Section 4.3(c) shall be repeated.
If the Borrower shall not agree with such rate then the Borrower
may, upon not less than 15 Business Days' irrevocable notice of
prepayment to the Administrative Agent, prepay (without premium
or penalty) the Loans on the first Business Day after such
period, together with accrued interest thereon at the applicable
rate plus the Applicable Margin.
4.4 Prepayments of Eurodollar Loans.
(a) Optional Prepayments. Subject to the provisions of this
Section 4.4, and upon at least three (3) Business Days prior
written notice (which notice shall be irrevocable) the Borrower
may prepay Eurodollar Loans on the last day of any Interest
Period with respect to such Eurodollar Loans in accordance with
Section 2.1(c) (i).
(b) Mandatory Prepayment. The Borrower shall prepay Line of
Credit Loans to the extent necessary to ensure that the aggregate
principal amount of all Line of Credit Loans outstanding, will
not at any time exceed the Line of Credit Loan Commitments of the
Banks.
(c) Indemnification of Banks. The Borrower shall indemnify the
Banks pursuant to Section 11.4(c) in the event that any
prepayment shall be made on a day other than the last day of an
Interest Period for the Eurodollar Loan or Loans being prepaid.
(d) Amount and Allocation of Prepayment. Each partial
prepayment permitted under this Section 4.4 shall be in an
aggregate amount of not less than $1,000,000 or integral
multiples of $1,000,000 in excess thereof.
4.5 Agents' Fee. The Borrower will pay to the Administrative
Agent and the Syndication Agent, for their respective account,
the fees (the "Agency Fees") in accordance with the letter
agreement dated April 26, 2000, between the Borrower and the
Administrative Agent and the Syndication Agent (the "Agents' Fee
Letter"). Such fee shall be paid in accordance with the terms of
the Agents' Fee Letter.
4.6 Increased Costs. (a) If, due to either (i) the introduction
of or any change (other than any change by way of imposition or
increase of reserve requirements included in the Eurodollar
Reserve Requirement) in, or in the interpretation of, any law or
regulation or (ii) the compliance with any guideline or request
from any central bank or other Governmental Authority (whether or
not having the force of law), there shall be any increase in the
cost (other than with respect to income, franchise or withholding
taxes or other taxes of a similar nature) to any Bank of agreeing
to make or making, funding or maintaining any Loans, then
(A) such Bank shall, as soon as such Bank becomes aware of such
increased cost, but in any event not later than 90 days after
such increased cost was incurred, deliver to the Borrower and the
Administrative Agent a notice stating the actual amount of such
increased cost incurred by such Bank; (B) the Borrower shall,
promptly upon its receipt of such notice pay to the
Administrative Agent for the account of such Bank amounts
sufficient to compensate such Bank for the increased cost
incurred by it as set forth in the notice referred to above and
(C) such Bank shall use its reasonable best efforts to designate
another of its then existing offices as its Lending Office if the
making of such designation would, without any detrimental effect
to such Bank, as determined by such Bank in its sole discretion,
avoid the need for, or reduce the amount of, future increased
costs which are probable of being incurred by such Bank. The
amount of increased costs payable by the Borrower to any Bank as
stated in any such notice delivered to the Borrower and the
Administrative Agent pursuant to the provisions of this
Section 4.6(a) shall be conclusive and binding for all purposes,
absent manifest error.
(a)
(b) If any Bank shall be required under Regulation D to maintain
reserves with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities, then (i) such Bank shall,
within 45 days after the end of any Interest Period with respect
to any Eurodollar Loan during which such Bank was so required to
maintain such reserves, deliver to the Borrower and the
Administrative Agent a notice stating (A) that such Bank was
required to maintain reserves and as a result such Bank incurred
additional costs in connection with making Eurodollar Loans and
(B) in reasonable detail, such Bank's computations of the amount
of additional interest payable by the Borrower pursuant to the
provisions of this Section 4.6(b), and (ii) the Borrower shall
promptly upon receipt of any such notice, pay to the
Administrative Agent, for the account of such Bank, additional
interest on the unpaid principal amount of each Eurodollar Loan
of such Bank outstanding during the Interest Period with respect
to which the above-referenced notice was delivered to the
Borrower, at a rate per annum equal to the difference obtained by
subtracting (x) the Eurodollar Rate for such Interest Period from
(y) the rate obtained by dividing such Eurodollar Rate by a
percentage equal to 100% minus the Eurodollar Reserve Requirement
of such Bank for such Interest Period. The amount of interest
payable by the Borrower to any Bank as stated in any certificate
delivered to the Borrower and the Administrative Agent pursuant
to the provisions of this Section 4.6(b) shall be conclusive and
binding for all purposes, absent manifest error.
(c) The payments required under Sections 4.6(a) and (b) are in
addition to any other payments and indemnities required under
this Agreement.
4.7 Illegality. Notwithstanding any other provision of this
Agreement, if the introduction of or any change in or in the
interpretation of any law or regulation, in each case after the
date hereof, shall make it unlawful, or any central bank or other
Governmental Authority shall assert that it is unlawful, for any
Bank or its Lending Office to make Loans or to continue to fund
or maintain Loans, then, on notice thereof and demand therefor by
such Bank to the Borrower through the Administrative Agent,
(i) the obligation of such Bank to make Loans shall be suspended
until such Bank through the Administrative Agent shall notify the
Borrower that the circumstances causing such suspension no longer
exist and (ii) the Borrower shall forthwith prepay (without
premium or penalty) in full all Loans of such Bank then
outstanding, together with interest accrued thereon; provided,
however, that before making any such demand, each Bank agrees to
use its reasonable best efforts to designate another of its then
existing offices as its Lending Office if the making of such a
designation would, without any detrimental effect to such Bank,
cause the making of Loans to not be subject to this Section 4.7.
4.8 Capital Adequacy. If any Bank shall, at any time,
reasonably determine that (a) the adoption (i) after the date of
this Agreement, of any capital adequacy guidelines or (ii) at any
time, of any other applicable Law, government rule, regulation or
order regarding capital adequacy of banks or bank holding
companies, (b) any change in (i) any of the foregoing or (ii) the
interpretation or administration of any of the foregoing by any
Governmental Authority, central bank or comparable agency or
(c) compliance with any policy, guideline, directive or request
regarding capital adequacy (whether or not having the force of
law and whether or not failure to comply therewith would be
unlawful) of any Governmental Authority, central bank or
comparable agency, would have the effect of reducing the rate of
return on the capital of such Bank to a level below that which
such Bank could have achieved but for such adoption, change or
compliance (taking into consideration the policies of such Bank
with respect to capital adequacy in effect immediately before
such adoption, change or compliance) and (x) such reduction is as
a consequence of the Line of Credit Loan Commitment of, or the
making of any Loans by, such Bank hereunder and (y) such
reduction is reasonably deemed by such Bank to be material, then
(1) such Bank shall deliver to the Borrower and the
Administrative Agent a notice stating the reduction in the rate
of return such Bank will in the future suffer as a result of its
Line of Credit Loan Commitment or the making of any Loans by it
to the Borrower hereunder and (2) the Borrower shall, promptly
upon receipt of such notice pay to the Administrative Agent for
the account of such Bank from time to time as specified by such
Bank such amount as shall be sufficient to compensate such Bank
for such reduced return. The amount stated in any notice
delivered to the Borrower pursuant to the provisions of this
Section 4.8 shall be conclusive and binding for all purposes,
absent manifest error. In determining any such amount, such Bank
may use reasonable averaging and attribution methods. The
payments required under this Section 4.8 are in addition to any
other payments and indemnities required hereunder.
4.9 Payments and Computations.
(a) The Borrower shall make each payment payable by it hereunder
not later than 11:00 a.m. (New York City time) on the day when
due, in Dollars, to the Administrative Agent at its address
referred to in Section 11.2 in immediately available funds
without setoff or counterclaim. The Administrative Agent will
promptly thereafter cause to be distributed like funds relating
to the payment of principal or interest or fees ratably (other
than amounts payable pursuant to Section 4.6, 4.7 or 4.8) to the
Banks for the account of their respective Lending Offices, and
like funds relating to the payment of any other amount payable to
any Bank to such Bank for the account of its Lending Office, in
each case to be applied in accordance with the terms of this
Agreement. Payment received by the Administrative Agent after
11:00 a.m. (New York City time) shall be deemed to be received on
the next Business Day.
(b) No Reductions.
(i) Subject to Section 4.9(b)(ii) and (iii), payments due to the
Administrative Agent, the Co-Arrangers, or any Bank under the
Loan Documents, and all other terms, conditions, covenants and
agreements to be observed and performed by the Borrower
thereunder, shall be made, observed or performed by the Borrower
without any reduction or deduction whatsoever, including any
reduction or deduction for any setoff, recoupment, counterclaim
(whether sounding in tort, contract or otherwise) or Tax.
(ii) (x) If any withholding or deduction from any payment to be
made by the Borrower hereunder is required for any Taxes under
any applicable Law, rule or regulation, then the Borrower will:
(A) pay directly to the relevant taxing authority the full
amount required to be so withheld or deducted;
(B) promptly forward to the Administrative Agent an official
receipt or other documentation satisfactory to the Administrative
Agent evidencing such payment to such authority; and
(C) pay to the Administrative Agent for the account of the Banks
such additional amount or amounts necessary to ensure that the
net amount actually received by each Bank will equal the full
amount such Bank would have received had no such withholding or
deduction been required.
In addition, to the extent permitted by applicable Law, the
Borrower agrees to pay any present or future stamp or documentary
taxes, excise or property taxes, or any other charges or similar
levies which arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect
to, this Agreement or the Notes (hereinafter referred to as
"Other Taxes").
Each Bank shall use its reasonable best efforts to designate
another of its then existing offices as its Lending Office if the
making of such designation would, without any detrimental effect
to such Bank (as determined by the Bank in its sole discretion),
avoid the need for, or reduce the amount of, such withholding or
deduction from any payment to be made to such Bank by the
Borrower hereunder required for any Taxes.
The Borrower will indemnify each Bank and the Administrative
Agent for the full amount of Taxes or Other Taxes paid by such
Bank or the Administrative Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or
Other Taxes were correctly or legally asserted. This
indemnification shall be made within 30 days from the date such
Bank or the Administrative Agent (as the case may be) makes
written demand therefor.
If the Borrower fails to pay any Taxes or Other Taxes when
due to the appropriate taxing authority or fails to remit to the
Administrative Agent, for the account of the respective Banks,
the required receipts or other required documentary evidence, the
Borrower shall indemnify the Administrative Agent and the Banks
for any incremental Taxes or Other Taxes, penalties, interest or
expenses that may become payable by the Administrative Agent or
any Bank as a result of any such failure.
(y) Notwithstanding subsection (x), the Borrower shall
not be required to indemnify or pay additional amounts for or on
account of:
(A) Taxes imposed on or measured by the net
income of the Administrative Agent or any Bank or franchise Taxes
imposed on the Administrative Agent or any Bank, but in each case
only to the extent imposed by the jurisdiction under the laws of
which the Administrative Agent or such Bank is organized or doing
business (other than as a result of the transactions contemplated
by the Loan Documents or the Administrative Agent's or any Bank's
enforcement of its rights under any Loan Document) or any
political subdivision or taxing authority thereof or therein, or
by any jurisdiction in which the Administrative Agent or such
Bank's lending office or principal executive office is located or
any political subdivision or taxing authority thereof or therein
(except, in each case, to the extent required by the following
paragraph to make payments on a net after-tax-basis), or
(B) any Tax or Other Tax imposed by reason of
either (i) the failure of the certification made by a Bank on any
form provided pursuant to Section 4.9(b)(iii) to be accurate and
true in all material respects unless any such failure is
attributable solely to a Change in Tax Law that occurs on or
after the date on which such form is provided by such Bank, or
(ii) the failure by a Bank to deliver to the Borrower and the
Administrative Agent two duly completed and executed copies of
IRS Form 1001 or 4224 (or successor applicable forms) in
accordance with the second sentence of Section 4.9(b)(iii),
certifying that such Bank is entitled to receive payments under
this Agreement and the Loans without deduction or withholding of
any United States federal income taxes, provided that this
clause (B)(ii) will not apply if such failure is attributable
solely to a Change in Tax Law that occurs on or after the date
hereof.
All amounts payable as additional amounts or indemnities
pursuant to this Section 4.9(b) shall include an amount necessary
to hold the Administrative Agent or the relevant Bank harmless on
a net after-tax-basis from and against all Taxes required to be
paid with respect to or as a result of the payment of such
additional amount or indemnity (including, without limitation,
Taxes described in clause (A) of the preceding paragraph).
(iii) Each Bank that is not a United States person (as such
term is defined in Section 7701(a)(30) of the Code) agrees that
it will, on or before the date that the Bank executes this
Agreement (or, in the case of a Bank that becomes a Bank pursuant
to an assignment described in Section 11.7, on or before the date
that the Administrative Agent records the Notice of the
Assignment and Acceptance by which it becomes a Bank), deliver to
the Borrower and the Administrative Agent two duly completed and
executed copies of IRS Form 1001 or 4224 or successor applicable
form, as the case may be, certifying in each case that such Bank
is entitled to receive payments payable to it under this
Agreement and the Loans without deduction or withholding of any
United States federal income taxes. Each Bank that undertakes to
deliver to the Borrower and the Administrative Agent an IRS
Form 1001 or 4224 under the preceding sentence further undertakes
to deliver to the Administrative Agent and the Borrower two
additional duly completed and executed copies of Form 1001 or
4224 (or successor applicable forms) on or before the date that
any such form expires or becomes obsolete or after the occurrence
of any event requiring a change in the most recent form
previously delivered by it to the Borrower and the Administrative
Agent, and such extensions or renewals thereof as may reasonably
be required by the Borrower, certifying, in the case of a
Form 1001 or 4224, that such Bank is entitled to receive payments
under this Agreement and the Loans without deduction or
withholding of any United States federal income taxes, unless, in
any such case, an event (inducing, without limitation, any Change
in Tax Law) has occurred before the date on which any such
delivery would otherwise be required which renders all such forms
inapplicable or which causes such Bank to be no longer eligible
to complete and deliver any such form with respect to it, in
which case the Bank shall either (1) furnish to the Borrower such
forms or other certification as the Bank (in its sole opinion) is
legally entitled to furnish evidencing the Bank's eligibility for
a complete exemption from or a reduced rate of withholding of
United States federal income taxes, or (2) notify the Borrower
that the Bank is not capable of receiving payments without any
deduction or withholding of United States federal income tax.
(c) Computations. All computations of interest based on the
Eurodollar Rate shall be made by the Administrative Agent on the
basis of a year of 360 days, and all computations of other
interest and other fees shall be made by the Administrative Agent
on the basis of a year of 365 or 366 days, as the case may be, in
each case for the actual number of days (including the first day
but excluding the last day) occurring in the period for which
such interest and fees are payable. Each determination by the
Administrative Agent of an interest rate hereunder shall be
conclusive and binding for all purposes, absent manifest error.
(d) Payment Due on Other Than Business Day. Whenever any
payment hereunder shall be stated to be due on a day other than a
Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or fees, as
the case may be.
(e) Notice to Administrative Agent of Non-Payment; Presumption
of Payment. Unless the Administrative Agent shall have received
notice from the Borrower prior to the date on which any payment
is due to the Banks hereunder that the Borrower will not make
such payment in full, the Administrative Agent may assume that
the Borrower has made such payment in full to the Administrative
Agent on such date and the Administrative Agent may, in reliance
upon such assumption, cause to be distributed to each Bank on
such due date an amount equal to the amount then due such Bank.
If and to the extent that the Borrower shall not have so made
such payment in full to the Administrative Agent, each Bank shall
repay to the Administrative Agent forthwith on demand such amount
distributed to such Bank together with interest thereon, for each
day from the date such amount is distributed to such Bank until
the date such Bank repays such amount to the Administrative
Agent, at the Federal Funds Rate.
4.10 Sharing of Payments, Etc.
(a) If, prior to the occurrence of an Event of Default, any Bank
shall obtain any payment (whether voluntary, involuntary, through
the exercise of any right of setoff, or otherwise) on account of
the Loans made by it (other than pursuant to Section 4.6, 4.7,
4.8 or 4.9) in excess of its Ratable Portion of payments on
account of the Loans of the same type obtained by all the Banks,
such Bank shall forthwith purchase from the other Banks such
participation in the Loans of such type made by them as shall be
necessary to cause such purchasing Bank to share the excess
payment ratably with each of them; provided, however, that if all
or any portion of such excess payment is thereafter recovered
from such purchasing Bank, such purchase from each Bank shall be
rescinded and each such Bank shall repay to the purchasing Bank
the purchase price to the extent of such recovery together with
an amount equal to such Bank's ratable share (according to the
proportion of (i) the amount of such Bank's required repayment to
(ii) the total amount so recovered from the purchasing Bank) of
any interest or other amount paid or payable by the purchasing
Bank in respect of the total amount so recovered. The Borrower
agrees that any Bank so purchasing a participation from another
Bank pursuant to this Section 4.10 may, to the fullest extent
permitted by law, exercise all its rights of payment (including
the right of setoff) with respect to such participation as fully
as if such Bank were the direct creditor of the Borrower in the
amount of such participation.
(b) If, after the Loans are declared to be due and owing (in
accordance with the provisions of this Agreement) prior to their
stated maturity, any Bank shall obtain any payment (whether
voluntary, involuntary, through the exercise of any right of
setoff, or otherwise) on account of any Loan or Loans made by it
(other than pursuant to Section 4.6, 4.7, 4.8 or 4.9) in excess
of its Ratable Portion of payments on account of all Loans
obtained by all the Banks, such Bank shall pay over to the
Administrative Agent such excess amount and the Administrative
Agent shall forthwith distribute such payment to the Banks pro
rata in accordance with each such Bank's Ratable Portion of all
Loans then outstanding.
ARTICLE V
CONDITIONS OF LENDING
5.1 Conditions Precedent to the Making of the Initial Loans.
The making of the initial Loans hereunder is subject to
satisfaction of the conditions precedent that:
(a) the Administrative Agent shall have received the following,
in form and substance satisfactory to the Administrative Agent,
and in sufficient copies for each Bank:
(i) Certified copies of (1) the resolutions of the Board of
Directors of each Loan Party approving each Loan Document to
which it is a party, and (2) all documents evidencing any other
necessary corporate action and required governmental and any
third-party approvals, licenses and consents with respect to each
Loan Document to which it is a party;
(ii) A copy of the certificate of incorporation of each Loan
Party certified as of a recent date by the Secretary of State of
such Person's jurisdiction of incorporation (or by an official of
equivalent standing in the case of a Loan Party incorporated
outside the U.S.), together with certificates of such official
attesting to the good standing of such Person, and a copy of the
bylaws of each such Person certified by its Secretary or one of
its Assistant Secretaries;
(iii) A certificate of the Secretary or an Assistant
Secretary of each Loan Party certifying the names and true
signatures of its officers who have been authorized to execute
and deliver each Loan Document to which it is a party and each
other document and certificate to be executed or delivered
hereunder on behalf of such Person;
(iv) A favorable opinion of counsel to the Loan Parties, in
substantially the form of Exhibit 5.1(a) hereto;
(v) the Notes, duly executed on behalf of the Borrower;
(vi) A duly executed Parent Guaranty;
(vii) A Subsidiary Guaranty duly executed on behalf of each
of the Subsidiary Guarantors;
(viii) a Security Agreement duly executed on behalf of the
Borrower, the Parent Guarantor and each Subsidiary Guarantor with
respect to the Collateral which can be created and perfected
under the Uniform Commercial Code;
(ix) Pledge Agreement duly executed on behalf of each Loan Party
with respect to the capital stock, partnership interests and
limited liability interests in which the Loan Parties have an
interest, which Pledge Agreement provides for a pledge of all the
outstanding capital stock, partnership interest and limited
liability interests of entities organized under the laws of the
U.S. and its states in which the Loan Parties have an interest
(exclusive of Alpharma International Holdings Inc., Alpharma Euro
Holdings Inc. and Alpharma Bermuda Inc.), (ii) a pledge of sixty-
five percent (65%) of the outstanding capital stock of Alpharma
International Holdings Inc., and (iii) subject to Section 7.5, a
pledge of sixty-five percent (65%) of the outstanding capital
stock, partnership interest and limited liability interests of
direct Subsidiaries of the Borrower and its domestic Subsidiaries
which are organized under the laws other than the laws of the
U.S. and its states. The Collateral Agent shall have received
the certificates representing the shares pledged pursuant to the
Pledge Agreement, together with an undated stock power for each
such certificate executed in blank by a duly authorized officer
of the pledgor thereof;
(x) a Patent, Trademark and Copyright Security Agreement duly
executed on behalf of any Loan Party with intellectual property
rights which warrant the recordation of such a security agreement
with the U.S. Patent and Trademark Office or U.S. Copyright
Office;
(xi) collateral assignments, financing statements, consents to
assignment and such additional documents relating to the
Collateral as the Administrative Agent shall request in its
absolute discretion;
(xii) the Administrative Agent shall have received Lien
searches for UCC liens, judgments and tax liens, the scope of
such searches to be satisfactory to the Administrative Agent;
(xiii) the Administrative Agent shall have received (a)
audited financial statements of the Parent Guarantor and its
Subsidiaries for the fiscal years ending December 31, 1997, 1998
and 1999, and (b) an audited statement of revenues and expenses
of Alpine for the fiscal year ending December 31, 1999.
(xiv) since December 31, 1999, no Material Adverse Change
shall have occurred; prior to the Closing Date, there shall have
been no material change in the senior management (a division
president or higher) of the Parent Guarantor (excluding Ingrid
Wiik), and there shall have been delivered to the Administrative
Agent a certificate by an authorized officer of the Borrower and
the Parent Guarantor to such effect;
(xv) a Responsible Officer of the Borrower shall have delivered a
certificate of a Responsible Officer of the Borrower in form and
substance satisfactory to the Administrative Agent as to the
capital adequacy and solvency of the Borrower after giving effect
to the transactions contemplated hereby;
(xvi) the Borrower shall have paid or caused to be paid to
the Administrative Agent for itself and for the account of the
Banks to the extent not previously paid, all fees accrued through
the Closing Date and the cost and expenses for which the
Administrative Agent and the Banks are entitled to be reimbursed;
(xvii) the Administrative Agent shall have received the
consent and agreement of the banks under the UBN Credit Agreement
to the granting of the security interests provided for herein and
an executed Collateral Agency Agreement substantially in the form
of Exhibit 5.1(b) hereto;
(xviii) the Alpine Acquisition contemplated hereby shall be
consummated simultaneously with the closing of the initial Loans
hereunder in accordance with the terms and conditions of the
Alpine Purchase Agreement as heretofore reviewed by the
Administrative Agent without any material amendment or material
waiver which would be adverse to the Borrower not consented to by
the Administrative Agent. The Loan Parties shall evidence to the
satisfaction of the Administrative Agent that the aggregate of
(i) all Indebtedness for Borrowed Money of the Seller assumed by
the Borrower, (ii) all indebtedness of the Seller satisfied in
connection with the transactions effected by the Alpine Purchase
Agreement, and (iii) all Consideration paid to the Seller and
expenses incurred by the Loan Parties in connection with the
Borrower's acquisition of certain of the assets of the Seller
does not exceed $255,000,000, plus an amount which in the
reasonable judgment of the Borrower and Parent Guarantor shall
not exceed $70,000,000 and is payable in accordance with the
terms of the Alpine Purchase Agreement based solely on a
valuation of usable and saleable inventory acquired under the
Alpine Acquisition;
(xix) the Borrower shall deliver to the Administrative Agent
a certificate prepared as of the Closing Date showing total
unused availability under the UBN Credit Agreement, after giving
effect to the Loans to be made on the Closing Date and
consummation of the transactions contemplated hereby, of at least
$40,000,000;
(xx) the Administrative Agent shall have received pro forma
financial statements showing that after giving effect to the
Alpine Acquisition, for the twelve month period ending as of
December 31, 1999, the Borrower's earnings before interest
expense, taxes, depreciation and amortization of $215,000,000
(b) on the date of such Loans, the UBN Credit Agreement shall
have been (or shall simultaneously be) amended substantially in
the form of Exhibit 5.1(c) hereto, to allow for the grant of the
liens and security interests contemplated in this Agreement and
the Collateral Documents, and the Borrower, the Parent Guarantor
and the Subsidiary Guarantors shall have obtained such additional
consents as shall be necessary in order to grant the Liens under
the Collateral Documents. In addition, Union Bank of Norway and
the other Senior Lenders shall have entered into satisfactory
agreements with the Administrative Agent relating to the
Administrative Agent's role as Collateral Agent for such Senior
Lenders, which agreements shall include terms and provisions
limiting the liability of the Administrative Agent, indemnifying
the Administrative Agent, and providing for reimbursement of the
Administrative Agent's expenses as are standard for such
agreements.
5.2 Conditions Precedent to the Making of Each Loan. The
obligation of each Bank to make any Loan, including the initial
Loans, shall be subject to the further conditions precedent that
the following statements shall be true on the date of the making
of such Loan, before and after giving effect thereto and to the
application of the proceeds therefrom (and the acceptance by the
Borrower of the proceeds of such Loan shall constitute a
representation and warranty by the Borrower that on the date of
such Loan such statements are true):
(i) The representations and warranties contained in Article VI
(other than those stated to be made as of a particular date) are
true and correct in all material respects on and as of such date
as though made on and as of such date; and
(ii) No event has occurred and is continuing, or would result
from the Loans being made on such date, which constitutes a
Default or an Event of Default.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and Banks to enter into
this Agreement, the Borrower represents and warrants to the
Administrative Agent and the Banks as follows:
6.1 Corporate Existence. The Borrower, its Subsidiaries and
each other Loan Party (i) is a corporation duly incorporated,
validly existing and in good standing (in jurisdictions where
good standing is an applicable concept) and all fees and taxes
due or owing to any Governmental Authority have been paid under
the laws of the jurisdiction of its incorporation; (ii) is duly
qualified and in good standing (in jurisdictions where due
qualification and good standing are applicable concepts) as a
foreign corporation under the laws of each other jurisdiction in
which the failure so to qualify would have a Material Adverse
Effect; (iii) has all requisite corporate power and authority to
conduct its business as now being conducted and as proposed to be
conducted; (iv) is in compliance with its articles or certificate
of incorporation and by-laws.
6.2 Corporate Power; Authorization; Enforceable Obligations.
(a) The execution, delivery and performance by the Borrower and
each other Loan Party of this Agreement or any other Loan
Document to which it is a party:
(i) are within its corporate powers;
(ii) have been duly authorized by all necessary corporate action;
(iii) do not (A) contravene its certificate of incorporation
or by-laws, (B) violate any law or regulation (including, without
limitation, Regulations T, U or X ), or any order or decree of
any court or governmental instrumentality, except those as to
which the failure to comply would not have a Material Adverse
Effect, (C) conflict with or result in the breach of, or
constitute a default under, any instrument, document or agreement
binding upon and material to the Borrower or such Loan Party, or
(D) result in the creation or imposition of any Lien (other than
Permitted Liens) upon any of the Property of the Borrower, any of
its Subsidiaries or any other Loan Party; and
(iv) do not and will not require any consent of, authorization
by, approval of, notice to, or filing or registration with, any
Governmental Authority or any other consent or approval,
including any consent or approval of any Subsidiary of the
Borrower or any consent or approval of the stockholders of the
Borrower or any Subsidiary of the Borrower, other than
(A) consents, authorizations and approvals that have been
obtained, are final and not subject to review on appeal or to
collateral attack, and are in full force and effect and,
(B) notices, filings or registrations that have not occurred
prior to a Security Event that have been given or effected, and
(C) the filing of copies of Loan Documents with the Securities
and Exchange Commission as exhibits to its public filings within
the legally permissible time limits (D) the filing of financing
statements, recording of Mortgages and other actions necessary to
perfect the Liens created in favor of the Collateral Agent
created hereby and by the Collateral Documents.
(b) This Agreement and each other Loan Document has been duly
executed and delivered by each Loan Party that is a party hereto
or thereto, and is the legal, valid and binding obligation of
each such Person, enforceable against it in accordance with its
terms, except where such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar
laws relating to or limiting creditors rights generally or
equitable principles relating to enforceability.
6.3 Taxes. All federal, and all material state, local and
foreign tax returns, reports and statements required to be filed
by the Borrower or any of its Subsidiaries have been filed with
the appropriate governmental agencies in all jurisdictions in
which such returns, reports and statements are required to be
filed. All consolidated, combined or unitary returns which
include the Borrower or any of its Subsidiaries have been filed
with the appropriate governmental agencies in all jurisdictions
in which such returns, reports and statements are required to be
filed except where such filing is being contested or may be
contested. All federal, and all material state, local and
foreign taxes, charges and other impositions of the Borrower, its
Subsidiaries or any consolidated, combined or unitary group which
includes the Borrower or any of its Subsidiaries which are due
and payable have been timely paid prior to the date on which any
fine, penalty, interest, late charge or loss may be added thereto
for non-payment thereof except where contested in good faith and
by appropriate proceedings if adequate reserves therefor have
been established on the books of the Borrower or such Subsidiary
in accordance with GAAP. Proper and accurate amounts have been
withheld by or on behalf of the Borrower and each of its
Subsidiaries from their respective employees for all periods in
full and complete compliance with the tax, social security and
unemployment withholding provisions of applicable federal, state,
local and foreign law and such withholdings have been timely paid
to the respective governmental agencies, in all material
respects. Neither the Borrower nor any of its Tax Affiliates has
agreed or has been requested to make any adjustment under
Section 481 (a) of the Code by reason of a change in accounting
method or otherwise relating to the Borrower or any of its
Subsidiaries which will affect a taxable year of the Borrower or
a Tax Affiliate ending after December 31, 1998, which has not
been reflected in the financial statements delivered pursuant to
Section 7.1 and which would have a Material Adverse Effect. The
Borrower has no obligation to any Person other than the Parent
Guarantor and Subsidiaries of the Parent Guarantor under any tax
sharing agreement or other tax sharing arrangement.
6.4 Financial Information.
(a) The report of the Parent Guarantor on Form 10-K for the
Fiscal Year ended December 31, 1999, which has been furnished to
the Administrative Agent and each Bank are respectively complete
and correct in all material respects as of such respective dates,
and the financial statements therein have been prepared in
accordance with GAAP and fairly present the financial condition
and results of operations of the Parent Guarantor and its
consolidated Subsidiaries as of such date.
(b) Since December 31, 1999, there has been no Material Adverse
Change or Material Credit Agreement Change.
(c) None of the Parent Guarantor or any Subsidiary of the Parent
Guarantor had at December 31, 1999 any obligation, contingent
liability, or liability for taxes or long-term leases material to
the Parent Guarantor and its Subsidiaries taken as a whole which
is not reflected in the balance sheets referred to in
subsection (a) above or in the notes thereto.
6.5 Litigation. There are no pending, or to the best knowledge
of the Borrower threatened, actions, investigations or
proceedings against or affecting the Borrower or any of its
Subsidiaries before any court, governmental agency or arbitrator
in which, individually or in the aggregate, there is a reasonable
probability of an adverse decision that could have a Material
Adverse Effect or result in a Material Credit Agreement Change.
6.6 Margin Regulations. The Borrower is not engaged in the
business of extending credit for the purpose of purchasing or
carrying Margin Stock, and no proceeds of any Borrowing will be
used to purchase or carry any Margin Stock or to extend credit to
others for the purpose of purchasing or carrying any Margin
Stock.
6.7 ERISA.
(a) No liability under Sections 4062, 4063, 4064 or 4069 of
ERISA has been or is expected by the Borrower to be incurred by
the Borrower or any ERISA Affiliate with respect to any Plan
which is a Single-Employer Plan in an amount that could
reasonably be expected to have a Material Adverse Effect.
(b) No Plan which is a Single-Employer Plan had an accumulated
funding deficiency, whether or not waived, as of the last day of
the most recent fiscal year of such Plan ended prior to the date
hereof. Neither the Borrower nor any ERISA Affiliate is
(A) required to give security to any Plan which is a Single-
Employer Plan pursuant to Section 401(a)(29) of the Code or
Section 307 of ERISA, or (B) subject to a Lien in favor of such a
Plan under Section 302(f) of ERISA.
(c) Each Plan of the Borrower, each of its Subsidiaries and each
of its ERISA Affiliates is in compliance in all material respects
with the applicable provisions of ERISA and the Code, except
where the failure to comply would not result in any Material
Adverse Effect.
(d) Neither the Borrower nor any of its Subsidiaries has
incurred a tax liability under Section 4975 of the Code or a
penalty under Section 502(i) of ERISA in respect of any Plan
which has not been paid in full, except where the incurrence of
such tax or penalty would not result in a Material Adverse
Effect.
(e) None of the Borrower, any of its Subsidiaries or any ERISA
Affiliate has incurred or reasonably expects to incur any
Withdrawal Liability under Section 4201 of ERISA as a result of a
complete or partial withdrawal from a Multiemployer Plan which
will result in Withdrawal Liability to the Borrower, any of its
Subsidiaries or any ERISA Affiliate in an amount that could
reasonably be expected to have a Material Adverse Effect
6.8 No Defaults. Neither the Borrower nor any of its
Subsidiaries is in breach of or default under or with respect to
any instrument, document or agreement binding upon the Borrower
or such Subsidiary which breach or default is reasonably probable
to have a Material Adverse Effect or result in the creation of a
Lien on any Property of the Borrower or its Subsidiaries.
6.9 Investment Company Act. The Borrower is not an "investment
company" or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company," as such
terms are defined in the Investment Company Act of 1940, as
amended. The making of the Loans by the Banks, the application
of the proceeds and repayment thereof by the Borrower and the
consummation of the transactions contemplated by this Agreement
will not violate any provision of such act or any rule,
regulation or order issued by the Securities and Exchange
Commission thereunder.
6.10 Insurance. All policies of insurance of any kind or nature
owned by the Parent Guarantor and its Subsidiaries are maintained
with reputable insurers which to the Parent Guarantor's best
knowledge are financially sound. The Parent Guarantor currently
maintains insurance with respect to its Properties and business
and causes its Subsidiaries (to the extent not covered by
policies of the Parent Guarantor) to maintain insurance with
respect to their respective Properties and business against loss
or damage of the kinds customarily insured against by
corporations engaged in the same or similar business and
similarly situated, of such types and in such amounts as are
customarily carried under similar circumstances by such other
corporations including, without limitation, workers' compensation
insurance.
6.11 Environmental Protection.
(a) There are no known conditions or circumstances known to the
Borrower associated with the currently or previously owned or
leased properties or operations of the Borrower or its
Subsidiaries or tenants which may give rise to any Environmental
Liabilities and Costs which would have a Material Adverse Effect;
and
(b) No Environmental Lien has attached to any Property of the
Borrower or any of its Subsidiaries which would have a Material
Adverse Effect.
6.12 Regulatory Matters. Except as disclosed in the Parent
Guarantor's Form 10-K for the fiscal year ending December 31,
1999, the Borrower and its Subsidiaries are to the best of their
knowledge in compliance with all rules, regulations and other
requirements of the Food and Drug Administration ("FDA") and
other regulatory authorities of jurisdictions in which the
Borrower or any of its Subsidiaries do business or operate
manufacturing facilities, including without limitation those
relating to compliance by the Borrower's or any such Subsidiary's
manufacturing facilities with "Current Good Manufacturing
Practices" as interpreted by the FDA, except to the extent any
such noncompliance would not have a Material Adverse Effect.
Except as so disclosed, neither the FDA nor any other such
regulatory authority has requested (or, to the Borrower's
knowledge, are considering requesting) any product recalls or
other enforcement actions that (a) if not complied with would
result in a Material Adverse Effect and (b) with which the
Borrower has not complied within the time period allowed.
6.13 Title and Liens. Each of the Borrower and its Subsidiaries
has good and marketable title to its real properties and owns or
leases all its other material Properties, in each case, as shown
on its most recent quarterly balance sheet, and none of such
Properties is subject to any Lien except for Permitted Liens.
6.14 Compliance With Law. Each of the Borrower and its
Subsidiaries is in compliance with all applicable Law, including,
without limitation, all Environmental Laws, except where any
failure to comply with any such laws would not, alone or in the
aggregate, have a Material Adverse Effect on the business or
financial condition of the Borrower and its Subsidiaries taken as
a whole, or the Borrower's ability to perform its obligations
under the Loan Documents.
6.15 Trademarks, Copyrights, Etc. The Borrower and each of its
Subsidiaries own or have the rights to use such trademarks,
service marks, trade names, copyrights, patents, licenses or
rights in any thereof, as in the aggregate are adequate in the
reasonable judgment of the Borrower for the conduct of the
business of the Borrower and its Subsidiaries as now conducted.
6.16 Disclosure. All written information relating to the
Borrower, the Parent Guarantor and any of their respective
Subsidiaries which has been delivered by or on behalf of the
Borrower to the Administrative Agent or the Banks in connection
with the Loan Documents and all financial and other information
furnished to the Administrative Agent is true and correct in all
material respects and contains no misstatement of a fact of a
material nature. Any financial projections and other information
regarding anticipated future plans or developments contained
therein was based upon the Borrower's best good faith estimates
and assumptions at the time they were prepared.
6.17 Subsidiaries. (a) Schedule 5(k) to the Parent Guaranty sets
forth all of the Subsidiaries, their jurisdictions of
incorporation and the percentages of the various classes of their
capital stock owned by the Parent Guarantor, (b) Schedule 5(l) to
the Parent Guaranty sets forth all of the Principal Subsidiaries
in existence as of the Closing Date, (c) the Parent Guarantor or
another Subsidiary, as the case may be, has the unrestricted
right to vote, and (subject to limitations imposed by applicable
Law or the Loan Documents) to receive dividends on all capital
stock indicated on Schedule 5(k) to the Parent Guaranty as owned
by the Parent Guarantor or such Subsidiary, (d) such capital
stock has been duly authorized and issued and is fully paid and
nonassessable, and (e) except for the Subsidiary Guarantors, the
Borrower has no Subsidiaries other than Non-U.S. Subsidiaries and
Inactive Subsidiaries.
6.18 Senior Debt Status. The obligations of the Borrower, the
Parent Guarantor and the Subsidiary Guarantors under this
Agreement, the Notes, the Parent Guaranty, the Subsidiary
Guaranty and the other Loan Documents to which each such Loan
Party is a party do rank and will rank at least pari passu in
priority of payment with all other Indebtedness of such Loan
Party, except Indebtedness of such Loan Party to the extent
secured by Permitted Liens. There is no Lien upon or with
respect to any of the Property or income of any Loan Party or any
Subsidiary of any Loan Party which secures Indebtedness or other
obligations of any Person except for Permitted Liens.
6.19 Year 2000. The Borrower and its Subsidiaries have reviewed
the areas within their business and operations which could be
adversely affected by, and have developed a program to address on
a timely basis, the risk that certain computer applications used
by the Borrower, the Parent Guarantor and their Subsidiaries (or
their respective material suppliers, customers or vendors) may be
unable to recognize and perform proper data-sensitive functions
involving dates prior to and after December 31, 1999 (the "Year
2000 Problem"). The Year 2000 Problem will not result in a
Material Adverse Effect.
6.20 Security Interests. Upon the occurrence of a Security
Event, the filing of the UCC-1 financing statements delivered in
connection with the Security Agreement and the recordation of the
Mortgages, the Liens and security interests granted to the
Collateral Agent for the benefit of the Banks (and the banks
under the UBN Credit Agreement) pursuant to the Patent, Trademark
and Copyright Security Agreement, the Pledge Agreement, the
Mortgages and the Security Agreement constitute and will continue
to constitute first priority, perfected liens and security
interests in the Collateral under the Uniform Commercial Code (as
in effect in the applicable jurisdiction) or other applicable
Law, subject only to Permitted Liens. The Collateral Agent and
the Banks shall be entitled to all the rights, benefits and
priorities provided by the Uniform Commercial Code or such law.
Upon such security interests becoming effective by their terms,
the filing of financing statements relating to said security
interests in each office and in each jurisdiction where required
in order to perfect the security interests described above, the
recording of the Mortgages in the jurisdictions where the real
property subject thereto is located, taking possession of any
stock certificates evidencing the Pledged Collateral and
recordation of the Patent, Trademark and Copyright Security
Agreement in the United States Patent and Trademark Office and
United States Copyright Office (or equivalent Office of a foreign
Governmental Authority in the case of Patents, Trademarks or
Copyrights granted by such foreign Governmental Authority) as
applicable, all such action as is necessary or advisable to
establish such rights of the Collateral Agent will have been
taken, and there will be upon execution and delivery of the
Patent, Trademark and Copyright Security Agreement, the
Mortgages, the Pledge Agreement and the Security Agreement, such
filings and such taking of possession, no necessity for any
further action in order to preserve, protect and continue such
rights, except the filing of continuation statements with respect
to such financing statements as required under the Uniform
Commercial Code. All filing fees and other expenses in
connection with each such action have been or will be paid by the
Borrower.
6.21 Corporate Headquarters. The Borrower maintains dual
headquarters in Oslo, Norway through Alpharma A.S. and in
northern New Jersey (currently Fort Lee), U.S.A. through the
Parent Guarantor.
ARTICLE VII
AFFIRMATIVE COVENANTS
7.1 Incorporation of UBN Credit Agreement Covenants. As long as
any of the Loans or any other amounts shall remain unpaid or any
Bank shall have any Line of Credit Loan Commitment hereunder,
unless otherwise agreed by the written consent of the Majority
Banks, the Borrower shall comply with all of the affirmative
covenants (the "Affirmative Covenants") set forth in Article VIII
of the UBN Credit Agreement as in effect on the date hereof. The
Affirmative Covenants and the definitions used therein for
purposes of the Affirmative Covenants are incorporated herein by
reference, mutatis mutandis, as if set forth at length herein and
shall run to the direct benefit of the Banks. It is acknowledged
and agreed that the Borrower shall comply with the Affirmative
Covenants as set forth in the UBN Credit Agreement as in effect
on the date hereof without regard to any amendment, modification,
restatement or termination of any of the Affirmative Covenants or
the UBN Credit Agreement which occurs after the date hereof.
7.2 Use of Proceeds; Acquisition. The Borrower and the Parent
Guarantor shall use the proceeds of the Line of Credit Loans only
in connection with the acquisition of certain of the assets of
the medicated feed additive business of Hoffman-LaRoche and the
reasonable and customary expenses incurred by the Borrower and
the Parent Guarantor in connection with such acquisition. The
Borrower shall promptly provide the Administrative Agent and the
Banks with copies of all transaction documents executed and
delivered in connection with the Alpine Acquisition and such
additional information as is necessary in the judgment of the
Administrative Agent to obtain Liens in favor of the
Administrative Agent for the benefit of the Senior Lenders in the
assets purchased pursuant to the Alpine Acquisition, such Liens
to be effective upon the occurrence of a Security Event in
accordance with Article III.
7.3 Delivery of Mortgages and Related Documents. Upon the
request of the Administrative Agent at its reasonable discretion
but in any event no later than the occurrence of Loan Conversion,
the Borrower shall and shall cause its Subsidiaries that own Real
Property located in the United States or Puerto Rico to deliver
Mortgages duly executed on behalf of each Loan Party which owns
Real Property interests accompanied with the respective legal
descriptions relating to such Real Property interests. The
Administrative Agent shall have received maps or plats of an as-
built survey of the sites of property covered by each Mortgage,
certified to the Administrative Agent in a manner satisfactory to
the Administrative Agent by an independent professional licensed
land surveyor satisfactory to the Administrative Agent. The
Administrative Agent shall have received in respect of each
parcel covered by a Mortgage a mortgagee's title policy (or
policies) or marked-up unconditional binder for such insurance
(issued by an insurance company acceptable to the Administrative
Agent) in favor of the Administrative Agent for the benefit of
the Lenders in an amount satisfactory to the Administrative Agent
and ensuring that the Mortgage insured thereby creates a valid
first Lien, subject to the Liens set forth on Schedule V hereto
on such Property free and clear of all defects and encumbrances,
except such as shall be approved by the Administrative Agent.
The Borrower and its Subsidiaries shall cause to be performed and
completed an environmental audit with respect to the Real
Property by consultants satisfactory to the Administrative Agent
and shall provide all reports and results of such audit in
writing to the Administrative Agent. Such reports shall meet the
Administrative Agent's minimum requirements for phase I
environmental assessments and any other requirements of the
Administrative Agent and the Banks. The Borrower and its
Subsidiaries shall provide landlord and mortgagee waivers for any
locations where a material part of the Collateral is located and
use its best efforts to provide landlord and mortgagee waivers at
other locations as requested by the Administrative Agent (or by
the Majority Banks through the Administrative Agent) in its
reasonable discretion.
7.4 Additional Subsidiary Guaranties. The Borrower shall cause
any Subsidiary organized in the United States that is an Inactive
Subsidiary on the date of this Agreement, but which ceases to be
an Inactive Subsidiary, to promptly after ceasing to be an
Inactive Subsidiary, execute and deliver a Subsidiary Guaranty,
the Security Agreement, a Mortgage (if such Subsidiary comes to
own real property) and any other Collateral Documents and
instruments as requested by the Administrative Agent and to cause
the owner of such Subsidiary to pledge the ownership interests of
such Subsidiary pursuant to a Pledge Agreement.
7.5 Additional Pledges. The Borrower represents that it intends
to transfer the ownership of all of its Subsidiaries organized
under the laws of jurisdictions other than the U.S. and its
states existing on the Closing Date to Alpharma (Luxembourg) Sarl
within 90 days after the Closing Date. If such transfer does not
occur within ninety (90) days after the Closing Date, the
Borrower shall cause to be pledged to the Collateral Agent sixty-
five percent (65%) of the outstanding capital stock, partnership
interest and limited liability interests of such Subsidiaries.
7.6 Additional Collateral Documents. Upon the request of the
Administrative Agent after the occurrence of a Security Event,
the Borrower shall execute and deliver, and cause the Parent
Guarantor and the Subsidiary Guarantor to execute and deliver,
such security agreements, financing statements and other
collateral documents and instruments as the Administrative Agent
may reasonably request.
ARTICLE VIII
NEGATIVE COVENANTS
8.1 Incorporation of UBN Credit Agreement Covenants. So long as
any of the Loans or any other amounts shall remain unpaid or any
Bank shall have any Line of Credit Loan Commitment hereunder,
unless otherwise agreed by the written consent of the Majority
Banks, the Borrower shall comply with all of the negative
covenants (the "Negative Covenants") set forth in Article IX of
the UBN Credit Agreement as in effect on the date hereof. The
Negative Covenants and the definitions used therein for purposes
of the Negative Covenants are incorporated herein by reference,
mutatis mutandis, as if set forth at length herein and shall run
to the direct benefit of the Banks. It is acknowledged and
agreed that the Borrower shall comply with the Negative Covenants
as set forth in the UBN Credit Agreement as in effect on the date
hereof without regard to any amendment, modification, restatement
or termination of the Negative Covenants or the UBN Credit
Agreement which occurs after the date hereof.
8.2 Additional Restrictions on Acquisitions. In addition to
the negative covenants in Article IX of the UBN Credit Agreement,
the Borrower, the Parent Guarantor and the Loan Parties and their
Subsidiaries shall not acquire by purchase, merger, lease or
otherwise all or substantially all of the assets or capital stock
of any other Person, if the total Consideration in connection
with such acquisition is individually or when aggregated with all
other acquisitions during the term of this Agreement by such
party, greater than $50,000,000; provided that capital
expenditures and intercompany transactions among the Parent
Guarantor and its Subsidiaries made in the ordinary course of
business are not prohibited hereby.
8.3 Loan Conversion Covenants. In the event of the Loan
Conversion in accordance with Section 2.5, the following
additional negative covenants shall be applicable without any
action on the part of any Loan Party, the Administrative Agent or
the Banks.
(a) Nature of Business. The Loan Parties will not, nor will
they permit any Subsidiary to, alter the character of its
business in any material respect from that conducted as of the
Closing Date.
(b) Advances, Investments and Loans. The Loan Parties will not,
nor will they permit any Subsidiary to, lend money or extend
credit or make advances to any Person, or purchase or acquire any
stock, obligations or securities of, or any other interest in, or
make any capital contribution to, any other Person except for
Permitted Investments.
(c) Fiscal Year; Organizational Documents; Contractual
Obligations. The Loan Parties will not, nor will they permit any
of their Subsidiaries to, change their respective fiscal year or
accounting policies unless required by GAAP. The Loan Parties
will not, nor will they permit any Subsidiary to, amend, modify
or change the Alpine Purchase Agreement or its articles of
incorporation (or corporate charter or other similar
organizational document) or bylaws (or other similar document)
without the prior written consent of the Majority Banks unless
such amendment, modification or change could not reasonably be
expected to have a Material Adverse Effect and would not
adversely affect the interests of the Banks under the Loan
Documents. The Loan Parties will not, nor will they permit any
of their Subsidiaries to, without the prior written consent of
the Majority Banks, amend, modify, waive any default of or breach
under, cancel or terminate or fail to renew or extend or permit
the amendment, modification, waiver of any default of or breach
under or cancellation or termination of any of its contractual
obligations unless such amendment, modification, waiver,
cancellation, termination or failure to renew or extend could not
reasonably be expected to have a Material Adverse Effect.
(d) Limitation on Restricted Actions. The Loan Parties will
not, nor will they permit any Subsidiary to, directly or
indirectly, create or otherwise cause or suffer to exist or
become effective any encumbrance or restriction on the ability of
any such Person to (A) pay dividends or make any other
distributions to any Loan Party on its capital stock or with
respect to any other interest or participation in, or measured
by, its profits, (B) pay any Indebtedness or other obligation
owed to any Loan Party, (C) make loans or advances to any Loan
Party, (D) sell, lease or transfer any of its properties or
assets to any Loan Party, or (E) act as a guarantor and pledge
its assets pursuant to the Loan Documents or any renewals,
refinancings, exchanges, refundings or extension thereof, except
(in respect of any of the matters referred to in clauses (A)-(D)
above) for such encumbrances or restrictions existing under or by
reason of (i) this Agreement and the other Loan Documents,
(ii) applicable Law, (iii) any document or instrument governing
Indebtedness which is purchase money indebtedness, provided that
any such restriction contained therein relates only to the asset
or assets constructed or acquired in connection therewith,
(iv) any Permitted Lien or any document or instrument governing
any Permitted Lien, provided that any such restriction contained
therein relates only to the asset or assets subject to such
Permitted Lien, and (v) customary nonassignment provisions in any
lease governing a leasehold interest or in any contract.
(e) Restricted Payments. The Loan Parties will not, nor will
they permit any Subsidiary to, directly or indirectly, declare,
order, make or set apart any sum for or pay any dividend or
distribution, except (a) to make dividends payable solely in the
same class of capital stock of such Person, and (b) to make
dividends or other distributions payable to the Borrower or any
other Loan Party (directly or indirectly through Subsidiaries).
(f) Prepayments of Indebtedness and Modifications of
Subordinated Indebtedness. The Loan Parties will not, nor will
they permit any Subsidiary to, (a) after the issuance thereof,
amend or modify (or permit the amendment or modification of) any
of the terms of any Indebtedness which by its terms is expressly
subordinated to the Indebtedness hereunder (other than
intercompany Indebtedness and Indebtedness issued in connection
with the redemption of employee shares) if such amendment or
modification would have a material adverse effect on the
interests of the Banks under the Loan Documents, or shorten the
final maturity or average life to maturity or require any payment
to be made sooner than originally scheduled or increase the
interest rate applicable thereto or change any subordination
provision thereof, and (b) make (or give any notice with respect
thereto) any voluntary or optional payment or prepayment,
redemption, acquisition for value or defeasance of (including
without limitation, by way of depositing money or securities with
the trustee with respect thereto before due for the purpose of
paying when due), refund, refinance or exchange of any
Subordinated Indebtedness (used herein as defined in the Parent
Guaranty); provided that this Section shall not prohibit (i) the
redemption of convertible securities of the Guarantor if the
Guarantor reasonably believes, based on the market price of
Guarantor's common stock at the time of the notice of redemption
and the advice of an investment banking firm, that as a result of
a call for such redemption substantially all of the convertible
securities will be converted into common stock or (ii) any other
action taken prior to the date redemption is permitted which is
intended to cause holders to convert the convertible securities
of the Guarantor into common stock (including the prepayment of
interest and/or the payment of financial inducement up to 7% of
the market price of the Guarantor's common stock with respect to
each share issued on conversion).
(g) Sale Leasebacks. The Loan Parties will not, nor will they
permit any Subsidiary to, directly or indirectly, become or
remain liable as lessee or as guarantor or other surety with
respect to any lease, whether an operating lease, a capital lease
or any "synthetic" lease or other off-balance sheet financing
lease, of any property (whether real, personal or mixed), whether
now owned or hereafter acquired, (a) which any Loan Party or any
Subsidiary thereof has sold or transferred or is to sell or
transfer to or has caused to be sold or transferred from a third
party to a Person which is not such Loan Party or Subsidiary or
(b) which any Loan Party or any Subsidiary thereof intends to use
for substantially the same purpose as any other property which
has been sold or is to be sold or transferred by such Loan Party
or Subsidiary or such third party to another Person which is not
such Loan Party or Subsidiary in connection with such lease,
other than those purchased pursuant to the Alpine Acquisition,
provided that such leases shall not be extended or renewed.
(h) No Further Negative Pledges. The Loan Parties will not, nor
will they permit any Subsidiary to, enter into, assume or become
subject to any agreement prohibiting or otherwise restricting the
creation or assumption of any Lien upon their properties or
assets, whether now owned or hereafter acquired, or requiring the
grant of any security for such obligation if security is given
for some other obligation except (a) pursuant to this Agreement
and the other Loan Documents, (b) pursuant to applicable Law,
(c) pursuant to any document or instrument governing Indebtedness
which is purchase money Indebtedness; provided that any such
restriction contained therein relates only to the asset or assets
constructed or acquired in connection therewith, (d) in
connection with any Permitted Lien or any document or instrument
governing any Permitted Lien; provided that any such restriction
contained therein relates only to the asset or assets subject to
such Permitted Lien, (e) pursuant to customary nonassignment
provisions in any lease governing a leasehold interest or in any
contract and (f) pursuant to the UBN Credit Agreement as existing
on the date hereof.
ARTICLE IX
EVENTS OF DEFAULT
9.1 Events of Default. If any of the following events ("Events
of Default") shall occur and be continuing:
(a) The Borrower or any other Loan Party shall fail to pay
(i) any principal when due in accordance with the terms and
provisions of this Agreement or any other Loan Document, or
(ii) any interest on any amounts due hereunder or thereunder, or
any fee or any other amount due hereunder or thereunder within
five Business Days after the same becomes due and payable; or
(b) Any representation or warranty made by any Loan Party in
this Agreement or any other Loan Document or by any Loan Party
(or any of its officers) in connection with this Agreement or any
other Loan Document shall prove to have been incorrect in any
material respect when made; or
(c) Any commitment to lend under the UBN Credit Agreement shall
be terminated by the banks under the UBN Credit Agreement; or
(d) If the Parent Guarantor fails to satisfy any of the
financial covenants set forth in the Parent Guaranty, which
failure shall remain unremedied for forty-five (45) days after
the earliest of the date on which (x) telephonic, telefaxed or
telegraphic notice thereof shall have been given to the
Administrative Agent by the Borrower pursuant to Section 11.2,
(y) written notice thereof shall have been given to the Borrower
by the Administrative Agent and (z) the Borrower or any other
Loan Party knows, or should have known, of such failure; or
(e) Any Loan Party shall fail to perform or observe any term,
covenant or agreement contained in this Agreement or any other
Loan Document and not otherwise specifically dealt with in this
Article IX, which failure or change shall remain unremedied for
30 days after the earlier of the date on which (x) telephonic,
telefaxed or telegraphic notice thereof shall have been given to
the Administrative Agent by the Borrower pursuant to
Section 11.2, (y) written notice thereof shall have been given to
the Borrower by the Administrative Agent and (z) the Borrower or
any other Loan Party knows, or should have known, of such
failure; or
(f) The Borrower, the Parent Guarantor or any of their
Subsidiaries shall fail to pay any principal of, or premium or
interest on, any Indebtedness for Borrowed Money of the Borrower,
the Parent Guarantor or such Subsidiary, in an aggregate amount
of not less than $2,500,000 when the same becomes due and payable
(whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise); or any other event shall
occur or condition shall exist under any agreement or instrument
relating to any such Indebtedness for Borrowed Money, if the
effect of such event or condition is to accelerate, or to permit
the acceleration of, the maturity of such Indebtedness or to
terminate any commitment to lend; or any such Indebtedness shall
be declared to be due and payable, or required to be prepaid
(other than by a regularly scheduled required prepayment), prior
to the stated maturity thereof and, with respect to all of the
foregoing, after the expiration of the earlier of (i) any
applicable grace period or the giving of any required notice or
both and (ii) a period of 30 days after such Indebtedness for
Borrowed Money first became due; or
(g) Any of the Borrower, the Parent Guarantor or any of the
Principal Subsidiaries shall generally not pay its debts as such
debts become due, or shall admit in writing its inability to pay
its debts generally, or shall make a general assignment for the
benefit of creditors, or any proceedings shall be instituted by
or against the Borrower, the Parent Guarantor or any of the
Principal Subsidiaries seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it
or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee or
other similar official for it or for a material part of its
Property employed in its business or any writ, attachment,
execution or similar process shall be issued or levied against a
material part of the Property employed in the business of the
Borrower or the Parent Guarantor and their respective
Subsidiaries taken as a whole, and, in the case of any such
proceedings instituted against the Borrower or the Parent
Guarantor or any of the Principal Subsidiaries (but not
instituted by it), either such proceedings shall remain
undismissed or unstayed for a period of 60 days or any of the
actions sought in such proceedings shall occur; or the Borrower,
the Parent Guarantor or any of the Principal Subsidiaries shall
take any corporate action to authorize any of the actions set
forth above in this subsection (g); or
(h) Any order for the payment of money or judgment of any court,
not appealable or not subject to certiorari or appeal (a "Final
Judgment"), which, with other outstanding Final Judgments,
exceeds an aggregate of $5,000,000 shall be rendered against the
Borrower or any of its Principal Subsidiaries and, within 60 days
after entry thereof, such Final Judgment shall not have been
discharged; or
(i) (i) With respect to any Plan, a final determination is made
that a prohibited transaction within the meaning of Section 4975
of the Code or Section 406 of ERISA occurred which results in
direct or indirect liability of the Borrower or any of its
Principal Subsidiaries, (ii) with respect to any Title IV Plan,
the filing of a notice to voluntarily terminate any such plan in
a distress termination, (iii) with respect to any Multiemployer
Plan, the Borrower, any of its Principal Subsidiaries or any of
its or their ERISA Affiliates shall incur any Withdrawal
Liability, or (iv) with respect to any Qualified Plan, the
Borrower, any of its Principal Subsidiaries or any of its or
their ERISA Affiliates shall incur an accumulated funding
deficiency or request a funding waiver from the IRS; provided,
however, that with respect to the events listed in clauses (i),
(iii) and (iv) hereof there shall be no Event of Default if the
liability of the Borrower, the relevant Principal Subsidiary or
the relevant ERISA Affiliate is satisfied in full or in
accordance with the due dates therefor; or
(j) This Agreement or any other Loan Document shall cease to be
valid or enforceable for any reason in any material respect;
provided, that in the case of the invalidity or unenforceability
of a Credit Support Document, such event shall not constitute a
Default if the Borrower shall have delivered, or caused to be
delivered, within 15 days of learning or receiving notice of such
invalidity or unenforceability additional security or credit
support in form and substance satisfactory to the Administrative
Agent; or
(k) A Material Adverse Change shall occur;
then, and in any such event, the Administrative Agent (i) shall
at the request, or may with the consent, of the Majority Banks,
by notice to the Borrower, declare the obligation of each Bank to
make Loans to be terminated, whereupon the same shall forthwith
terminate, and (ii) shall at the request, or may with the
consent, of the Majority Banks, by notice to the Borrower,
declare all amounts due under this Agreement and all interest
thereon to be forthwith due and payable, whereupon all amounts
due under this Agreement and all such interest and all such
amounts shall become and be forthwith due and payable; provided,
however, that upon an actual or deemed entry of an order for
relief with respect to the Borrower or the Parent Guarantor or
any of its Principal Subsidiaries under the federal Bankruptcy
Code, (A) the obligation of each Bank to make Loans shall
automatically be terminated and (B) all amounts due under this
Agreement and all such interest and all such amounts shall
automatically and without further notice become and be due and
payable. In addition to the remedies set forth above, the
Administrative Agent may exercise any other remedies provided for
by this Agreement in accordance with the terms hereof or any
other remedies provided by applicable Law.
ARTICLE X
THE ADMINISTRATIVE AGENT
10.1 Authorization and Action. Each Bank hereby appoints and
authorizes the Administrative Agent to take such action as
Administrative Agent on its behalf and to exercise such powers
under this Agreement as are delegated to such Administrative
Agent by the terms hereof, together with such powers as are
reasonably incidental thereto. As to any matters not expressly
provided for by this Agreement, the Administrative Agent shall
not be required to exercise any discretion or take any action,
but shall be required to act or to refrain from acting (and shall
be fully protected in so acting or refraining from acting) upon
the instructions of the Majority Banks (or when expressly
required hereunder, all the Banks), and such instructions shall
be binding upon all Banks; provided, however, that the
Administrative Agent shall not be required to take any action
that exposes the Administrative Agent to personal liability or
that is contrary to this Agreement or applicable Law. The
Administrative Agent shall have no duties or responsibilities
except those expressly set forth in this Agreement, and the
Administrative Agent shall not by reason of this Agreement or any
other Loan Document be a trustee for any Bank or owe any Bank a
fiduciary duty or similar duties.
10.2 The Administrative Agent's Reliance, Etc. Neither the
Administrative Agent, its Affiliates nor any of their respective
directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by any of them under or in
connection with this Agreement, except for its own gross
negligence or willful misconduct (as determined by a court of
competent jurisdiction). Without limitation of the generality of
the foregoing, (i) the Administrative Agent may consult with
legal counsel (including counsel to the Borrower), independent
public accountants and other experts selected by it and shall not
be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel,
accountants or experts; (ii) the Administrative Agent makes no
warranty or representation to any Bank and it shall not be
responsible to any Bank for any statements, warranties or
representations made in or in connection with this Agreement;
(iii) the Administrative Agent shall have no duty to ascertain or
to inquire as to the performance or observance of any of the
terms, covenants or conditions of this Agreement on the part of
the Borrower or to inspect the Properties (including the books
and records) of the Borrower; (iv) the Administrative Agent shall
not be responsible to any Bank for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of
this Agreement or any other instrument or document furnished
pursuant hereto or for any failure of the Borrower to perform its
obligations hereunder or thereunder; and (v) the Administrative
Agent shall not incur liability under or in respect of this
Agreement by acting upon any notice, consent, certificate or
other instrument or writing (which may be by telegram, e-mail,
telecopy, cable or telex) believed by it to be genuine and signed
or sent by the proper party or parties.
10.3 First Union National Bank. With respect to the Line of
Credit Loan Commitment of First Union National Bank and the Loans
made by it, First Union National Bank shall have the same rights
and powers under this Agreement as any other Bank and may
exercise the same as though it were not an Administrative Agent,
and the term "Bank" or "Banks" shall, unless otherwise expressly
indicated, include First Union National Bank, in its individual
capacity. First Union National Bank and its Affiliates may
accept deposits from, lend money to, act as trustee under
indentures of, and generally engage in any kind of business with,
the Borrower, any of its Subsidiaries and any Person who may do
business with or own securities of the Borrower or any such
Subsidiary, all as if First Union National Bank was not an
Administrative Agent, and without any duty to account therefor
to the Banks.
10.4 Bank Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Administrative Agent,
Co-Arrangers or any other Bank, and based on the financial
statements of the Borrower and the Loan Parties and such other
documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement.
Each Bank also acknowledges that it will, independently and
without reliance upon the Administrative Agent, or Co-Arrangers
or any other Bank 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 this
Agreement.
10.5 Determinations Under Sections 5.1 and 5.2. For purposes of
determining compliance with the conditions specified in Sections
5.1 and 5.2, each Bank shall be deemed to have consented to,
approved or accepted, or to be satisfied with each document or
other matter required thereunder to be consented to or approved
by or acceptable or satisfactory to the Banks unless an officer
of the Administrative Agent responsible for the transactions
contemplated by this Agreement shall have received notice from
such Bank prior to the applicable Borrowing specifying its
objection thereto (unless such objection shall have been
withdrawn by notice to the Administrative Agent to that effect or
such Bank shall have made available to the Administrative Agent
such Bank's ratable portion of such Borrowing).
10.6 Indemnification. Each Bank agrees to indemnify the
Administrative Agent and its respective Affiliates, and their
respective directors, officers, employees, agents and advisors
(to the extent not reimbursed by the Borrower), ratably according
to such Bank's Ratable Portion of the Line of Credit Loan
Commitments, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements (including, without
limitation, fees and disbursements of legal counsel) of any kind
or nature whatsoever which may be imposed on, incurred by, or
asserted against, any such Person in any way relating to or
arising out of this Agreement or any lawful action taken or
omitted by any such Person under this Agreement; provided,
however, that no Bank shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from
any such Person's gross negligence or willful misconduct as
determined by a court of competent jurisdiction. Without
limitation of the foregoing, each Bank agrees to reimburse any
such Person promptly upon demand for its ratable share of any out-
of-pocket expenses (including fees and disbursements of one
counsel) incurred by such Person in connection with the
preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, to the extent
that such Person is not reimbursed for such expenses by the
Borrower. The agreements in this Section 10.6 shall survive the
termination of this Agreement and payment of the Loans and all
other amounts payable hereunder.
10.7 Successor Administrative Agents. Any Administrative Agent
may resign at any time by giving written notice thereof to the
Banks and the Borrower. Upon any such resignation, the Majority
Banks shall have the right to appoint a successor to such
Administrative Agent, subject to the consent of the Borrower
which shall not be unreasonably withheld or delayed. If no
successor to such Administrative Agent shall have been so
appointed by the Majority Banks, and shall have accepted such
appointment, within 30 days after the retiring Administrative
Agent's giving of notice of resignation, then such retiring
Administrative Agent on behalf of the Banks shall appoint a
successor Administrative Agent, subject to the consent of the
Borrower which shall not be unreasonably withheld or delayed.
Upon the acceptance of any appointment as an Administrative Agent
hereunder by any successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and such retiring Administrative
Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Administrative Agent's
resignation hereunder, the provisions of this Article X shall
inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent.
10.8 Notices and Forwarding of Documents to Banks. Promptly upon
receipt of the same, the Administrative Agent shall furnish to
the Banks copies of all notices received from the Borrower or any
other Loan Party.
10.9 Delegation of Duties. The Administrative Agent may execute
any of its duties under this Agreement by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence
or misconduct of any agents or attorneys-in-fact selected by it
with reasonable care. Without limiting the foregoing, the
Administrative Agent may appoint one of its affiliates as its
agent to perform the functions of the Administrative Agent
hereunder relating to the advancing of funds to the Borrower and
distribution of funds to the Lenders and to perform such other
related functions of the Administrative Agent hereunder as are
reasonably incidental to such functions.
10.10 Notice of Default. The Administrative Agent shall not
be deemed to have knowledge or notice of the occurrence of any
Default or Event of Default hereunder unless the Administrative
Agent has received notice from a Bank or the Borrower referring
to this Agreement, describing such Default or Event of Default
and stating that such notice is a "notice of default". In the
event that the Administrative Agent receives such a notice, the
Administrative Agent shall give prompt notice thereof to the
Banks. The Administrative Agent shall take such action with
respect to such Default or Event of Default as shall be
reasonably directed by the Majority Banks; provided, however,
that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall
not be obligated to) take such action, or refrain from taking
such action, with respect to such Default or Event of Default as
it shall deem advisable in the best interests of the Banks except
to the extent that this Agreement expressly requires that such
action be taken, or not taken, only with the consent or upon the
authorization of the Majority Banks, or all of the Banks, as the
case may be.
ARTICLE XI
MISCELLANEOUS
11.1 Amendments, Etc. No amendment or waiver of any provision of
this Agreement or any other Loan Document, nor consent to any
departure by the Borrower therefrom, shall in any event be
effective unless the same shall be in writing and signed by the
Majority Banks, and then such waiver or consent shall be
effective only in the specific instance and for the specific
purpose for which given; provided, however, that no amendment,
waiver or consent shall, unless in writing signed by all the
Banks and consented to by all of the Banks, do any of the
following: (a) waive any of the conditions specified in
Section 5.1 or 5.2; (b) increase the Line of Credit Loan
Commitments of the Banks or subject the Banks to any additional
obligations; (c) change the principal of, or decrease the
interest on, any amounts payable hereunder; (d) postpone any date
fixed for any scheduled payment of any principal of, or interest
on, any amounts payable hereunder; (e) change the definition of
Majority Banks; (f) terminate, or release the Parent Guarantor
from its obligations under, the Parent Guaranty or (g) amend this
Section 11.1; and provided, further, however, that no amendment,
waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Persons required above to
take such action, affect the rights or duties of the
Administrative Agent under this Agreement.
11.2 Notices, Etc. Except as otherwise set forth herein, all
notices and other communications provided for hereunder shall be
in writing (including telegraphic, telex, telecopy or cable
communication) and mailed, telegraphed, telexed, telecopied,
cabled or delivered by hand,
(i) if to the Borrower, at: Alpharma U.S. Inc.
One Executive Drive
Fort Lee, New Jersey 07024
Attn: Treasurer
Telephone: (201) 947-7774
Telefax: (201) 947-0795
and to: Chief Legal Officer
Telephone: (201) 228-5022
Telecopy: (201) 592-1481
(ii) if to the Administrative Agent, at:
First Union National Bank
201 College Street, 6th Floor
Charlotte, NC 28288-0760
Attn: Joyce Barry
Telephone: (704) 374-4151
Telecopy: (704) 374-4793
With a copy to: First Union National Bank
301 College Street, 5th Floor
Charlotte, NC 28288-0737
Attn: David Gillespie
Telephone: (704) 383-6392
Telecopy: (704) 383-1931
(iii) if to any Bank, at its Lending Office on the signature
pages hereof, and if to any other lender that becomes a "Bank,"
at its Lending Office specified in the Assignment and Assumption
Agreement by which it became a Bank;
or, as to the Borrower, any Bank or the Administrative Agent, at
such other address as shall be designated by such party in a
written notice to the other parties and, as to each other party,
at such other address as shall be designated by such party in a
written notice to the Borrower and the Administrative Agent. All
such notices and communications shall, when mailed, telegraphed,
telexed, telecopied, cabled or delivered, be effective when
deposited in the mails, delivered to the telegraph company,
confirmed by telex answerback, telecopied with confirmation of
receipt, delivered to the cable company, delivered by overnight
courier with confirmation of receipt or delivered by hand to the
addressee, or its Administrative Agent, respectively, except that
notices and communications to the Administrative Agent shall not
be effective until received by the Administrative Agent.
11.3 No Waiver; Remedies; Integration. No failure on the part of
any Bank or the Administrative Agent to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any such
right preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
Except for the Administrative Agent's Fee Letter, this Agreement
and the Loan Documents supersede all prior understandings and
agreements, whether oral or written, among the parties hereto and
thereto relating to the transactions provided for herein and
therein, including any prior confidentiality agreements and
commitments.
11.4 Costs; Expenses; Indemnities.
(a) The Borrower agrees to pay on demand all reasonable costs
and expenses in connection with the preparation, execution,
delivery, administration, modification and amendment of this
Agreement, the other Loan Documents and the other documents to be
delivered hereunder or thereunder, including, without limitation,
the reasonable fees and out-of-pocket expenses of counsel to the
Administrative Agent and the Syndication Agent with respect
thereto and with respect to advising the Administrative Agent and
the Syndication Agent as to their rights and responsibilities
under this Agreement, and all costs and expenses of the
Administrative Agent and the Banks (including, without
limitation, reasonable counsel fees and expenses) in connection
with the enforcement (whether through negotiations, legal
proceedings or otherwise) of this Agreement, the other Loan
Documents and the other documents to be delivered hereunder and
thereunder.
(b) The Borrower agrees to defend, indemnify and hold harmless
each of the Administrative Agent, the Co-Arrangers and the Banks
and their respective affiliates and their respective directors,
officers, attorneys, agents, employees, successors and assigns
(each, an "Indemnified Person") from and against any and all
liabilities, obligations, losses, damages, penalties, actions,
claims, judgments, suits, costs, expenses and disbursements of
any kind or nature whatsoever (including, without limitation,
fees and disbursements of counsel of the Administrative Agent,
the Co-Arrangers or the Banks) which may be incurred by or
asserted or awarded against any Indemnified Person, in each case
arising in any manner of or in connection with or by reason of
this Agreement, the other Loan Documents, the Line of Credit Loan
Commitments or any undertakings in connection therewith, or the
proposed or actual application of the proceeds of the Loans (all
of the foregoing collectively, the "Indemnified Liabilities") and
will reimburse each Indemnified Person on a current basis for all
properly documented expenses (including outside counsel fees as
they are incurred by such party) in connection with
investigating, preparing or defending any such action, claim or
suit, whether or not in connection with pending or threatened
litigation irrespective of whether such Indemnified Person is
designated a party thereto; provided that the Borrower shall not
have any liability hereunder to any Indemnified Person with
respect to Indemnified Liabilities which are determined by a
court of competent jurisdiction to have arisen primarily from the
gross negligence or willful misconduct of such Indemnified
Person; and provided, further, that if the Borrower has
determined in good faith that such Indemnified Liabilities were
primarily the result of such Indemnified Person's gross
negligence or willful misconduct, it shall not be obligated to
pay such Indemnified Liabilities until a court of competent
jurisdiction has determined whether such Indemnified Person acted
with gross negligence or willful misconduct. If for any reason
the foregoing indemnification is unavailable to an Indemnified
Person or insufficient to hold an Indemnified Person harmless,
then the Borrower shall contribute to the amount paid or payable
by such Indemnified Person as a result of any Indemnified
Liability in such proportion as is appropriate to reflect not
only the relative benefits received by the Borrower and the
Administrative Agent, the Co-Arrangers and each Bank, but also
the relative fault of the Borrower and the Administrative Agent,
the Co-Arrangers and each Bank, as well as any other relevant
equitable considerations. The foregoing indemnity shall be in
addition to any rights that any Indemnified Person may have at
common law or otherwise, including, but not limited to, any right
to contribution.
(c) If any Bank receives any payment of principal of any Loan
other than on the last day of an Interest Period relating to such
Loan, as a result of any payment made by the Borrower or
acceleration of the maturity of the amounts due under this
Agreement pursuant to Section 10.1 or for any other reason, the
Borrower shall, upon demand by such Bank (with a copy of such
demand to the Administrative Agent), pay to the Administrative
Agent for the account of such Bank any amounts required to
compensate such Bank for any additional losses, costs or expenses
which it may reasonably incur as a result of such payment,
including, without limitation, any loss, cost or expense incurred
by reason of the liquidation or reemployment of deposits or other
funds acquired by such Bank to fund or maintain such Loan. The
foregoing obligations of the Borrower contained in
paragraphs (a), (b) and (c) of this Section 11.4, and the
obligations of the Borrower contained in Sections 4.6(a), 4.6(b),
4.8 and 4.9, shall survive the payment of the Loans.
11.5 Right of Setoff. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the
request or the granting of the consent specified by Section 9.1
to authorize the Administrative Agent to declare all amounts
under this Agreement due and payable pursuant to the provisions
of Section 9.1 or the automatic acceleration of such amounts
pursuant to the proviso to that Section, each Bank 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 Bank to or for the credit or the account of the Borrower
against any and all of the obligations of the Borrower now or
hereafter existing under this Agreement irrespective of whether
or not such Bank shall have made any demand under this Agreement
and although such obligations may be unmatured. Each Bank agrees
promptly to notify the Borrower after any such setoff and
application made by such Bank; provided, however, that the
failure to give such notice shall not affect the validity of such
setoff and application. The rights of each Bank under this
Section 11.5 are in addition to any other rights and remedies
(including, without limitation, any other rights of setoff) which
such Bank may have.
11.6 Binding Effect. This Agreement shall become effective when
it shall have been executed by the Borrower, the Administrative
Agent and the Co-Arrangers and when the Administrative Agent
shall have been notified by each of the Banks that such Bank has
executed it and thereafter shall be binding upon and inure to the
benefit of the Borrower, the Administrative Agent, the Co-
Arrangers and each of the Banks and their respective successors
and assigns, except that (i) the Borrower shall have no right to
assign its rights hereunder or any interest herein without the
prior written consent of the Banks and (ii) no Bank may sell,
transfer, assign, pledge or grant participation in any of its
Loans or any of its rights or obligations hereunder except in
accordance with Section 11.7 or as expressly required hereunder.
11.7 Assignments and Participation; Additional Banks.
(a) During the time period prior to the Line of Credit Loan
Commitment Termination Date, the First Extended Termination Date
or the Second Extended Termination Date (as applicable), any Bank
may, at any time, by notice substantially in the form of
Exhibit 11.7 hereto (each, a "Assignment and Assumption
Agreement") delivered to the Administrative Agent for its
acceptance and recording, together with a recording fee in the
amount of $3,500, assign all or any part of its rights and
obligations and delegate its duties under this Agreement (A) to
any other Bank or any affiliate of any Bank which actually
controls, is controlled by, or is under common control with such
Bank or to any Federal Reserve Bank (in either case without
limitation as to amount), or (B) with the prior consent of the
Administrative Agent and the Borrower (such consent not to be
unreasonably withheld), to any other Person (but if in part, in a
minimum amount of $10,000,000 or, if less, the balance of such
Bank's Line of Credit Loan Commitment); provided, however, (i)
the prior consent of the Borrower shall not be required during
the existence of a Default or Event of Default and (ii) that
after any such assignment, the assigning Bank's aggregate
outstanding Loans hereunder shall not be less than $10,000,000.
During the time period subsequent to the Line of Credit Loan
Commitment Termination Date, the First Extended Termination or
the Second Extended Termination Date (as applicable), any Bank
may, at any time, by notice substantially in the form of
Exhibit 11.7 hereto (each, an "Assignment and Assumption
Agreement") delivered to the Administrative Agent for its
acceptance and recording, together with a recording fee in the
amount of $3,500, assign all or any part of its rights and
obligations and delegate its duties under this Agreement to any
other Bank (or any affiliate of any Bank) or any other financial
institution (in either case without limitation as to amount);
provided, however, that after any such assignment, the assigning
Bank's aggregate outstanding Loans hereunder shall not be less
than $5,000,000.
(b) Any Bank may at any time sell or grant participations in its
Line of Credit Loan Commitment, its Loans or the obligations
owing to or from any Person existing under this Agreement;
provided, however, that (i) as between such Bank and the
Borrower, the existence of such participation shall not give rise
to any direct rights or obligations between the Borrower and the
participants; (ii) such Bank shall remain solely responsible to
the other parties hereto for the performance of such obligations;
(iii) the Borrower, the Administrative Agent and the other Banks
shall continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations under this
Agreement; and (iv) no such sale or grant of a participation
shall, without the consent of the Borrower, require the Borrower
to file a registration statement with the Securities and Exchange
Commission or apply to qualify the Line of Credit Loan
Commitments or the Loans under the securities laws of any state.
(c) If an assignment is made by any Bank in accordance with the
provisions of paragraph (a) above, upon acceptance and recording
by the Administrative Agent, and approval by the Borrower, where
applicable, of each Assignment and Assumption Agreement, (i) the
assignee thereunder shall become a party to this Agreement and
the Borrower shall release and discharge the assigning Bank from
its duties, liabilities or obligations under this Agreement to
the extent the same are so assigned and delegated by such Bank,
provided that no such consent, release or discharge shall have
effect until the Borrower shall have received a fully executed
copy of the Assignment and Assumption Agreement relating to such
assignment and (ii) Schedule II shall be deemed amended to give
effect to such assignment. The Borrower agrees that each such
disposition will give rise to a direct obligation of the Borrower
to any such assignee. The Borrower agrees that, promptly
following any such assignment, it shall deliver upon delivery of
the applicable outstanding Notes or Notes for cancellation a new
Note or Notes to the assignee and a replacement Note or Notes to
the transferor, in amounts properly reflecting such assignment.
(d) The Borrower authorizes each Bank to disclose to any
prospective assignee or participant and any assignee or
participant any and all financial information in such Bank's
possession concerning the Borrower and this Agreement; provided,
however, that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree to
preserve the confidentiality of any confidential information
relating to the Borrower received by it from such Bank in
accordance with Section 11.11.
(e) Any Bank which sells or grants participation in any Loans or
its Line of Credit Loan Commitment may not grant to the
participants the right to vote other than on amendments,
consents, waivers, modifications or other actions which change
the principal amount of, postpone the scheduled maturity of, or
decrease the interest rates applicable to, any Loans under, or
increase the amount of, such Line of Credit Loan Commitment
(except with respect to participating Affiliates actually
controlled by, controlling or under common control with, such
Bank); provided, however, that as between the Bank and the
Borrower, only the Bank shall be entitled to cast such votes.
(f) No participant in any Bank's rights or obligations shall be
entitled to receive any greater payment under Section 4.6, 4.8 or
4.9 than such Bank would have been entitled to receive with
respect to the rights participated, and no participation shall be
sold or granted to any Person as to which the events specified in
Section 4.7 have occurred on or before the date of participation.
(g) The Administrative Agent shall maintain at its address
referred to in Section 11.2 a copy of each Assignment and
Assumption Agreement received by it and a register, containing
the terms of each Assignment and Assumption Agreement, for the
recordation of the names and addresses of each Bank and the
Commitment of, and principal amount of the Loans owing to, each
Bank from time to time (the "Register"). The entries in the
Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrower, the Banks, and the
Administrative Agent may treat each Person whose name is recorded
in the Register as a Bank hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the
Borrower, or any Bank, at any reasonable time and from time to
time upon reasonable prior notice.
11.8 Pari Passu Ranking. The obligations of the Borrower
hereunder shall rank at least pari passu in right of payment and
in liquidation with all of the Borrower's other unsecured and
unsubordinated obligations.
11.9 GOVERNING LAW; SEVERABILITY. THIS AGREEMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
WHEREVER POSSIBLE, EACH PROVISION OF THIS AGREEMENT SHALL BE
INTERPRETED IN SUCH MANNER AS TO BE EFFECTIVE AND VALID UNDER
APPLICABLE LAW, BUT IF ANY PROVISION OF THIS AGREEMENT SHALL BE
PROHIBITED BY OR INVALID UNDER APPLICABLE LAW, SUCH PROVISION
SHALL BE INEFFECTIVE TO THE EXTENT OF SUCH PROHIBITION OR
INVALIDITY, WITHOUT INVALIDATING THE REMAINDER OF SUCH PROVISION
OR THE REMAINING PROVISIONS OF THIS AGREEMENT.
11.10 SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.
(a) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY DOCUMENT RELATED HERETO MAY BE BROUGHT IN THE
COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES OF
AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, EACH OF THE BORROWER, THE
ADMINISTRATIVE AGENT AND THE BANKS HEREBY ACCEPTS FOR ITSELF AND
IN RESPECT OF ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS. THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVE ANY OBJECTION, INCLUDING, WITHOUT LIMITATION,
ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUM NON CONVENIENS, WHICH ANY OF THEM MAY NOW OR HEREAFTER HAVE
TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH
RESPECTIVE JURISDICTIONS.
(b) Each of the Borrower, the Administrative Agent and the Banks
irrevocably consents to the service of process of any of the
aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail,
postage prepaid, to the Borrower and the Administrative Agent at
their respective addresses specified for notices in or pursuant
to Section 11.2 hereof and to the Banks as set forth on
Schedule I, such service to become effective on the earlier of
the date of receipt or 30 days after such mailing.
(c) Nothing contained in this Section 11.10 shall affect the
right of the Administrative Agent or any Bank to serve process in
any other manner permitted by law or commence legal proceedings
or otherwise proceed against the Borrower or any other Loan Party
in any other jurisdiction.
(d) EACH OF THE PARTIES HERETO WAIVES ANY RIGHT IT MAY HAVE TO
TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF THIS AGREEMENT.
11.11 Confidentiality. Each Bank and the Administrative
Agent agrees to keep confidential information obtained by it
pursuant hereto (or otherwise obtained from the Borrower in
connection with this Agreement) confidential in accordance with
such Person's customary practices and agrees that it will only
use such information in connection with the transactions
contemplated by this Agreement and not disclose any of such
information other than (i) to such Person's employees, counsel,
representatives and agents who are or are expected to be involved
in the evaluation of such information in connection with the
transactions contemplated by this Agreement and who in each case
agree to be bound by the provisions of this sentence, (ii) to the
extent that disclosure by such Person is required, or to the
extent that such Person has been advised by counsel that
disclosure is required, in order to comply with any law,
regulation or judicial order or requested or required by bank
regulators or auditors or other Governmental Authority, (iii) to
assignees or participants of the Loans or Line of Credit Loan
Commitments or potential assignees or participants of the Loans
or Line of Credit Loan Commitments who in each case agree in
writing to be bound by the provisions of this sentence or (iv) to
the extent that such information has otherwise been disclosed or
made public other than by such Person, or such Person's
employees, counsel, representatives or agents, in violation of
this Section 11.11.
11.12 Section Titles. The Section titles contained in this
Agreement are and shall be without substantive meaning or content
of any kind whatsoever and are not a part of the agreement
between the parties hereto.
11.13 Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different Parties
hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
[Signature Page 1 of 5 to Credit Agreement]
IN WITNESS WHEREOF, the parties hereto have caused this
Credit Agreement to be duly executed as of the date first above
written.
ALPHARMA U.S. INC., as
Borrower
By:
Name:
Title:
ALPHARMA INC., as Parent
Guarantor
By:
Name:
Title:
BARRE PARENT CORPORATION, as
Subsidiary Guarantor
By:
Name:
Title:
G.F. REILLY COMPANY, as
Subsidiary Guarantor
By:
Name:
Title:
MIKJAN CORPORATION, as
Subsidiary Guarantor
By:
Name:
Title:
[Signature Page 2 of 5 to Credit Agreement]
PARMED PHARMACEUTICALS, INC.,
as Subsidiary Guarantor
By:
Name:
Title:
ALPHARMA ANIMAL HEALTH
COMPANY, as Subsidiary
Guarantor
By:
Name:
Title:
ALPHARMA USPD INC., as
Subsidiary Guarantor
By:
Name:
Title:
ALPHARMA EURO HOLDINGS INC.,
as Subsidiary Guarantor
By:
Name:
Title:
ALPHARMA NW INC., as
Subsidiary Guarantor
By:
Name:
Title:
[Signature Page 3 of 5 to Credit Agreement]
ALPHARMA US PHARMACEUTICAL LLC
By:
Name:
Title:
NMC LABORATORIES, INC., as
Subsidiary Guarantor
By:
Name:
Title:
FIRST UNION NATIONAL BANK, as
Administrative Agent
By:
Name:
Title:
FIRST UNION NATIONAL BANK, as
Bank
By:
Name:
Title:
[Signature Page 4 of 5 to Credit Agreement]
SUMMIT BANK, as Syndication
Agent
By:
Name:
Title:
SUMMIT BANK, as Bank
By:
Name:
Title:
UNION BANK OF NORWAY, as Bank
By:
Name:
Title:
DEN NORSKE BANK ASA, as
Documentation Agent
By:
Name:
Title:
DEN NORSKE BANK ASA, as Bank
By:
Name:
Title:
[Signature Page 5 of 5 to Credit Agreement]
LANDESBANK SCHLESWIG-HOLSTEIN
GIROZENTRALE COPENHAGEN
BRANCH, as Bank
By:
Name:
Title:
By:
Name:
Title: