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PARENT GUARANTY
This PARENT GUARANTY (the "Guaranty"), dated as of May 2,
2000, made by Alpharma Inc., a Delaware corporation (together
with its successors and assigns, the "Parent Guarantor"), in
favor of the Banks party to the Credit Agreement (as defined
below), First Union National Bank, as Administrative Agent (the
"Administrative Agent") under the Credit Agreement, the
Syndication Agent party to the Credit Agreement and the Co-
Arrangers party to the Credit Agreement, (the Banks the Co-
Arrangers and the Administrative Agent, collectively, the
"Guaranteed Parties" and individually a "Guaranteed Party").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Credit Agreement, dated as
of May 2, 2000, by and among Alpharma U.S. Inc., (the
"Borrower"), Alpharma Inc., as Parent Guarantor, the Subsidiary
Guarantors party thereto, the Banks party thereto, First Union
National Bank, as Administrative Agent, Summit Bank, as
Syndication Agent and Den norske Bank ASA, as Documentation
Agent(as amended, restated, modified or supplemented from time to
time hereafter) (the "Credit Agreement"), such Banks have agreed
to make certain loans to Borrower; and
WHEREAS, it is a condition precedent to the Initial Funding
Date under the Credit Agreement that the Parent Guarantor shall
have executed and delivered this Guaranty;
NOW, THEREFORE, in consideration of the premises and in
order to induce the Banks to make the loans under the Credit
Agreement, the Parent Guarantor hereby agrees as follows (with
capitalized terms used herein and not otherwise defined used with
the meaning ascribed thereto in the Credit Agreement):
SECTION 1 Guaranty. The Parent Guarantor hereby
unconditionally and irrevocably guarantees to the Administrative
Agent the punctual payment when due, whether at stated maturity,
by acceleration or otherwise, of all obligations of the Borrower
now or hereafter existing under the Credit Agreement and the
other Loan Documents, and becomes surety, as though it was a
primary obligor for, the full and punctual payment and
performance when due (whether on demand, at stated maturity, by
acceleration, or otherwise and including any amounts which would
become due but for the operation of an automatic stay under the
federal bankruptcy code of the United States or any similar laws
of any country or jurisdiction) of all Guaranteed Obligations,
including, without limiting the generality of the foregoing, all
obligations, liabilities, and indebtedness from time to time of
the Borrower or the Parent Guarantor to the Administrative Agent
or any of the Banks or any Affiliate of any Bank under or in
connection with the Credit Agreement, any other Loan Document, or
any Swap Agreement (used herein as defined in the Credit
Agreement) entered into between any Guaranteed Party and any Loan
Party whether for principal, interest, fees, indemnities,
expenses, or otherwise, and all refinancings or refundings
thereof, whether such obligations, liabilities, or indebtedness
are direct or indirect, secured or unsecured, joint or several,
absolute or contingent, due or to become due, whether for payment
or performance, now existing or hereafter arising (and including
obligations, liabilities, and indebtedness arising or accruing
after the commencement of any bankruptcy, insolvency,
reorganization, or similar proceeding with respect to the
Borrower or the Parent Guarantor or which would have arisen or
accrued but for the commencement of such proceeding, even if the
claim for such obligation, liability, or indebtedness is not
enforceable or allowable in such proceeding, and including all
obligations, liabilities, and indebtedness arising from any
extensions of credit under or in connection with the Loan
Documents from time to time, regardless whether any such
extensions of credit are in excess of the amount committed under
or contemplated by the Loan Documents or are made in
circumstances in which any condition to extension of credit is
not satisfied) (all of the foregoing obligations, liabilities and
indebtedness are referred to herein collectively as the
"Guaranteed Obligations" and each as a "Guaranteed Obligation").
Without limitation of the foregoing, any of the Guaranteed
Obligations shall be and remain Guaranteed Obligations entitled
to the benefit of this Guaranty if the Administrative Agent or
any of the Banks (or any one or more assignees or transferees
thereof) from time to time assign or otherwise transfer all or
any portion of their respective rights and obligations under the
Loan Documents, or any other Guaranteed Obligations, to any other
Person.
SECTION 2 Guaranty Absolute. The Parent Guarantor
guarantees that the Guaranteed Obligations will be paid strictly
in accordance with the terms of the Credit Agreement and the Loan
Documents, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such
terms or the rights of any Guaranteed Party with respect thereto.
The liability of the Parent Guarantor under this Guaranty shall
be absolute and unconditional irrespective of:
(a) any lack of genuineness, legality, allowability, validity or
enforceability (in a bankruptcy, insolvency, reorganization or
similar proceeding, or otherwise), or subordination, in whole or
in part, of any of the Loan Documents (including this Guaranty)
or any other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Guaranteed Obligations, or
any other amendment or waiver of or any consent to departure from
the Loan Documents;
(c) any exchange, release or nonperfection of any collateral, or
any release or amendment or waiver of or consent to departure
from any other guaranty, for all or any of the Guaranteed
Obligations; or
(d) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Borrower, a
Subsidiary Guarantor or other guarantor.
SECTION 3 Waiver. The Parent Guarantor hereby waives all
notices with respect to any of the Guaranteed Obligations and
this Guaranty and any requirement that any Guaranteed Party
protect, secure, perfect or insure any security interests or lien
on any property subject thereto or exhaust any right or take any
action against the Borrower, or any other person or entity or any
collateral.
SECTION 4 Subrogation.
(a) The Parent Guarantor shall not exercise any rights which it
may have acquired by way of subrogation under this Guaranty, by
any payment made hereunder or otherwise nor shall the Parent
Guarantor seek any reimbursement from the Borrower in respect of
payments made by the Parent Guarantor hereunder, unless and until
all of the Guaranteed Obligations shall have been paid and
discharged, in full, and if any payment shall be made to the
Parent Guarantor on account of such subrogation or reimbursement
rights at any time when the Guaranteed Obligations shall not have
been paid and discharged, in full, each and every amount so paid
shall forthwith be paid to the Administrative Agent to be
credited and applied against the Guaranteed Obligations, whether
matured or unmatured.
(b) If, pursuant to applicable Law, the Parent Guarantor, by
payment or otherwise, becomes subrogated to all or any of the
rights of the Guaranteed Parties under any of the Loan Documents,
the rights of the Guaranteed Parties to which the Parent
Guarantor shall be subrogated shall be accepted by the Parent
Guarantor "as is" and without any representation or warranty of
any kind by the Guaranteed Parties, express or implied, with
respect to the legality, value, validity or enforceability of any
such rights, or the existence, availability, value,
merchantability or fitness for any particular purpose of any
collateral and shall be without recourse to the Guaranteed
Parties.
SECTION 5 Representations and Warranties. The Parent
Guarantor hereby represents and warrants as follows:
(a) Incorporation and Good Standing. It is (i) a corporation
duly incorporated, validly existing and in good standing under
the laws of the State of Delaware; and (ii) duly qualified and in
good standing as a foreign corporation under the laws of each
other jurisdiction in which the failure so to quality would have
a Material Adverse Effect.
(b) Corporate Power and Authorization. The execution, delivery
and performance by the Parent Guarantor of this Guaranty are
within the Parent Guarantor's corporate powers, have been duly
authorized by all necessary corporate action, do not contravene
the Parent Guarantor's charter or by-laws, any law or any
contractual restriction binding on or affecting and material to
the Parent Guarantor, and do not result in or require the
creation of any Lien upon or with respect to any of its
properties.
(c) Authorization. No authorization, consent or approval or
other action by, and no notice to or filing with, any
Governmental Authority or regulatory body is required for the due
execution, delivery and performance by the Parent Guarantor of
this Guaranty, other than (i) 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, (ii) notices, filings or registrations that have been
given or effected, and (iii) the filing of copies of Loan
Documents with the Securities and Exchange Commission as exhibits
to its public filings.
(d) Valid Guaranty. This Guaranty is a legal, valid and binding
obligation of the Parent Guarantor, enforceable against the
Parent Guarantor in accordance with its terms, except where such
enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or
limiting creditor's rights generally or equitable principles
relating to enforceability.
(e) Litigation. There is no pending or threatened action or
proceeding affecting the Parent Guarantor or 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 which could have a Material
Adverse Effect or result in a Material Credit Agreement Change.
(f) Taxes. All federal, and all material state, local and
foreign tax returns, reports and statements required to be filed
by the Parent Guarantor 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 Parent Guarantor 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 Parent Guarantor, its Subsidiaries or any
consolidated, combined or unitary group which includes the Parent
Guarantor 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 Parent Guarantor or such
Subsidiary in accordance with GAAP. Proper and accurate amounts
have been withheld by or on behalf of the Parent Guarantor 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 Parent Guarantor 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 Parent Guarantor or a Tax Affiliate ending after December 31,
1998, which has not been reflected in the financial statements
delivered pursuant to Section 6(g) of the UBN Parent Guaranty and
which would have a Material Adverse Effect. The Parent Guarantor
has no obligation to any Person other than the Borrower and the
Parent Guarantor's Subsidiaries under any tax sharing agreement
or other tax sharing arrangement.
(g) Financial Information. (i) The reports 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 respective dates.
(ii) Since December 31, 1999 there has been no Material
Adverse Change or Material Credit Agreement Change.
(iii) None of the Parent Guarantor or any
Subsidiary of the Parent Guarantor had at March 31, 2000 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 (i) above or in the notes thereto.
(h) ERISA.
(i) No liability under Sections 4062, 4063, 4064 or 4069 of
ERISA has been or is expected by the Parent Guarantor to be
incurred by the Parent Guarantor 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.
(ii) 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 Parent Guarantor 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.
(iii) Each Plan of the Parent Guarantor, 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.
(iv) Neither the Parent Guarantor 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.
(v) None of the Parent Guarantor, 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 parent Guarantor, any
of its Subsidiaries or any ERISA Affiliate in an amount that
could reasonably be expected to have a Material Adverse Effect.
(i) No Defaults. Neither the Parent Guarantor nor any of its
Subsidiaries is in breach of or default under or with respect to
any instrument, document or agreement binding upon the Parent
Guarantor 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 Parent Guarantor
or its Subsidiaries.
(j) Disclosure. All written information relating to the Parent
Guarantor and any of its Subsidiaries which has been delivered by
or on behalf of the Parent Guarantor or 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 Parent Guarantor's best good faith
estimates and assumptions at the time they were prepared.
(k) Subsidiaries. (i) Schedule 5(k) hereto 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 or another Subsidiary of the Parent
Guarantor, (ii) the Parent Guarantor or another Subsidiary, as
the case may be, has the unrestricted right to vote, and to
receive dividends and dividends on, all capital stock indicated
on such Schedule as owned by the Parent Guarantor or such
Subsidiary (subject to limitations imposed by applicable Law or
the Loan Documents) and (iii) such capital stock has been duly
authorized and issued and is fully paid and nonassessable.
(l) Subsidiary Guarantors. Schedule 5(l) hereto sets forth all
of the Subsidiary Guarantors in existence as of the Closing Date.
(m) 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
insurance 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, worker's compensation
insurance.
(n) Environmental Protection.
(i) There are no known conditions or circumstances known to the
Parent Guarantor associated with the currently or previously
owned or leased properties or operations of the Parent Guarantor
or its Subsidiaries or tenants which may give rise to any
Environmental Liabilities and Costs which would have a Material
Adverse Effect; and
(ii) No Environmental Lien has attached to any Property of the
Parent Guarantor or any of its Subsidiaries which would have a
Material Adverse Effect.
(o) Regulatory Matters. Except as described in the most recent
Form 10-K or Report on Form 10-Q delivered to the Banks under
Section 6(g), the Parent Guarantor 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 Parent Guarantor or any of its
Subsidiaries do business or operate manufacturing facilities,
including without limitation those relating to compliance by the
Parent Guarantor'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 Parent Guarantor'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.
(p) Title and Liens. Each of the Parent Guarantor 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.
(q) Compliance with Law. Each of the Parent Guarantor 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 Parent Guarantor and its Subsidiaries
taken as a whole, or the Parent Guarantor's ability to perform
its obligations under the Loan Documents.
(r) Trademarks, Copyrights, Etc. The Parent Guarantor 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 Parent Guarantor for
the conduct of the business of the Parent Guarantor and its
Subsidiaries as now conducted.
(s) Year 2000 Issue. The Parent Guarantor 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 Parent Guarantor and its
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.
(t) Pari Passu Obligations. The obligations of the Parent
Guarantor under this Guaranty do rank at least pari passu in
priority of payment with all other present unsecured Indebtedness
of the Parent Guarantor.
(u) Investment Company Act. It 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 and the consummation of the transactions
contemplated by the Credit Agreement will not violate any
provision of such act or any rule, regulation or order issued by
the Securities and Exchange Commission thereunder.
(v) 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.
(w) Corporate Headquarters. The Parent Guarantor and the
Borrower maintain dual corporate headquarters in Oslo, Norway
through Alpharma A.S. and in northern New Jersey (currently Fort
Lee), U.S.A. through the Parent Guarantor.
SECTION 6 Affirmative Covenants. Incorporation of UBN
Agreement Covenants. As long as any of the Guaranteed
Obligations or any other amounts shall remain unpaid, or any Bank
shall have any Line of Credit Loan Commitment under the Credit
Agreement, unless otherwise agreed by the written consent of the
Majority Banks, the Parent Guarantor shall comply with all of the
affirmative covenants (the "Affirmative Covenants") set forth in
Section 6 of that certain Parent Guaranty dated as of January 20,
1999, made by the Parent Guarantor, as in effect on the date
hereof, as amended by an Amendment No. 1 dated as of April 16,
1999, and Amendment No. 2 dated as of September 9, 1999,
Amendment No. 3 dated as of April 19, 2000 and Amendment No. 4
dated as of May 2, 2000 (the "UBN Parent Guaranty"). The
Affirmative Covenants and the definition 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 Parent Guarantor shall comply with the
Affirmative Covenants as set forth in the UBN Parent Guaranty as
in effect on the date hereof without regard to any amendment,
modification, restatement or termination of any of the
Affirmative Covenants of the UBN Parent Guaranty (or the UBN
Parent Guaranty) which occurs after the date hereof. Any
delivery or deliveries to be made to any agent or bank under the
UBN Credit Agreement pursuant to the Affirmative Covenants shall
also be made to the Administrative Agent and the Banks, if
requested by the Administrative Agent.
SECTION 7 Negative Covenants. So long as any of the
Guaranteed Obligations or any other amounts shall remain unpaid
or any Bank shall have any Line of Credit Loan Commitment under
the Credit Agreement, unless otherwise agreed by the written
consent of the Majority Banks, the Parent Guarantor shall comply
with all of the negative covenants (the "Negative Covenants") set
forth in Section 7 of the UBN Parent Guaranty. 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 Parent Guarantor shall comply with the Negative Covenants as
set forth in the UBN Parent Guaranty as in effect on the date
hereof without regard to any amendment, modification, restatement
or termination of any of the Negative Covenants of the UBN Parent
Guaranty (or the UBN Parent Guaranty) which occurs after the date
hereof.
SECTION 8 Financial Covenants. As long as any of the
Guaranteed Obligations shall remain unpaid or any Bank shall have
any Line of Credit Loan Commitment under the Credit Agreement,
unless otherwise agreed by the written consent of the Majority
Banks, the Parent Guarantor shall comply with all of the
financial covenants (the "Financial Covenants") set forth in
Section 8 of the UBN Parent Guaranty. The Financial Covenants
and the definitions used therein for purposes of the Financial
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
Parent Guarantor shall comply with the Financial Covenants as set
forth in the UBN Parent Guaranty as in effect on the date hereof
without regard to any amendment, modification, restatement or
termination of any of the Financial Covenants of the UBN Parent
Guaranty (or the UBN Parent Guaranty) which occurs after the date
hereof.
SECTION 9 Payments and Computations.
(a) The Parent Guarantor 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 of the Credit Agreement in
immediately available funds without set-off or counterclaims, for
the account of the several Banks.
(b) No Reductions.
(i) Subject to Section 9(b)(ii) and (iii), payments due to the
Administrative Agent, the Syndication Agent, the Documentation
Agent, the Co-Arranger or any Bank hereunder, and all other
terms, conditions, covenants and agreements to be observed and
performed by the Parent Guarantor hereunder, shall be made,
observed or performed by the Parent Guarantor without any
reduction or deduction whatsoever, including any reduction or
deduction for any set-off, 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 Parent Guarantor hereunder is required for any Taxes
under any applicable law, rule or regulation, then the Parent
Guarantor 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
Parent Guarantor 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 Guaranty 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 Parent
Guarantor hereunder required for any Taxes.
The Parent Guarantor 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 Parent Guarantor 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 Parent Guarantor 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 Parent
Guarantor 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 an
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 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 Parent
Guarantor (or 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 9(b)(iii), certifying that such
Bank is entitled to receive payments under this Guaranty 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 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 Parent Guarantor delivers
this Guaranty, deliver to the Parent Guarantor 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 Guaranty, and the Loans
without deduction or withholding of any United States federal
income taxes. Each Bank that undertakes to deliver to the Parent
Guarantor and the Administrative Agent an IRS Form 1001 or 4224
under the preceding sentence further undertakes to deliver to the
Administrative Agent and the Parent Guarantor 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 Parent Guarantor and the Administrative Agent, and
such extensions or renewals thereof as may reasonably be required
by the Parent Guarantor, certifying, in the case of a Form 1001
or 4224, that such Bank is entitled to receive payments under
this Guaranty and the Loans without deduction or withholding of
any United States federal income taxes, unless, in any such case,
an event (including, 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 (I) furnish to the Parent Guarantor 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 Parent
Guarantor that the Bank is not capable of receiving payments
without any deduction or withholding of United States federal
income tax.
SECTION 10 Addresses for Notices. All notices and other
communications provided for hereunder shall be in writing
(including telegraphic or telecopy communication) and mailed,
telegraphed, telecopied or delivered, if to the Parent Guarantor,
addressed to it at One Executive Drive, Fort Lee, New Jersey
07024, Tel: (201) 947-7774, Fax: (201) 947-0795 Attention:
Treasurer, if to the Administrative Agent, addressed to it at the
address specified in the Credit Agreement, or as to each party at
such other address as shall be designated by such party in a
written notice to each other party complying as to delivery with
the terms of this Section. All such notices and other
communications shall, when mailed or telegraphed, respectively,
be effective when deposited in the mails or delivered to the
telegraph company, respectively, addressed as aforesaid, and
shall, when delivered or telecopied, be effective when received.
SECTION 11 No Waiver; Remedies. No failure on the part of
any Guaranteed Party 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 right hereunder 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.
SECTION 12 Right of Set-off. Upon the occurrence and during
the continuance of any Event of Default (as defined in the Credit
Agreement), 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 Parent Guarantor against any and all of the
obligations of the Parent Guarantor now or hereafter existing
under this Guaranty, irrespective of whether or not such Bank
shall have made any demand under this Guaranty. Each Bank agrees
promptly to notify the Parent Guarantor after any such set-off
and application made by such Bank; provided, however, that the
failure to give such notice shall not affect the validity of such
set-off and application. The rights of each Bank under this
Section are in addition to other fights and remedies (including,
without limitation, other rights of set-off) which such Bank may
have.
SECTION 13 Continuing Guaranty; Transfer of Interest. This
Guaranty is a continuing guaranty and shall (i) remain in full
force and effect until indefeasible payment in full of the
Guaranteed Obligations and all other amounts payable under this
Guaranty, (ii) be binding upon the Parent Guarantor, its
successors and permitted assigns, provided that the Parent
Guarantor may not assign or transfer its obligations hereunder
without the consent of the Majority Banks, and (iii) inure to the
benefit of and be enforceable by any Guaranteed Party, and its
respective successors, transferees, and assigns, without limiting
the generality of the foregoing clause (iii), any Bank may assign
or otherwise transfer all or any part of its rights and
obligations under the Credit Agreement in accordance therewith,
and such other person or entity shall thereupon become vested
with all the rights in respect thereof granted to such Bank
herein or otherwise, subject, however, to the provisions of
Article XI of the Credit Agreement.
SECTION 14 Reinstatement. This Guaranty shall remain in full
force and effect and continue to be effective should any petition
be filed by or against any Loan Party (as defined in the Credit
Agreement) for liquidation or reorganization, should any Loan
Party become insolvent or make an assignment for the benefit of
creditors or should a receiver or trustee be appointed for all or
any significant part of any Loan Party's assets, and shall, to
the fullest extent permitted by law, continue to be effective or
be reinstated, as the case may be, if at any time payment and
performance of the Guaranteed Obligations, or any part thereof,
is, pursuant to applicable law, rescinded or reduced in amount,
or must otherwise be restored or returned by any obligee of the
Guaranteed Obligations, whether as a "voidable preference",
"fraudulent conveyance", or otherwise, all as though such payment
or performance had not been made. In the event that any payment,
or any part thereof, is rescinded, reduced, restored, or
returned, the Guaranteed Obligations shall, to the fullest extent
permitted by law, be reinstated and deemed reduced only by such
amount paid and not so rescinded, reduced, restored or returned.
SECTION 15 Defined Terms. (a) As used in this Guaranty, the
following terms have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the
terms defined):
"Adjusted Equity Ratio" has the meaning specified in Section
8(a) of the UBN Parent Guaranty.
"Bermuda Partnership" means Alpharma Bermuda G.P., a general
partnership formed under the laws of Bermuda.
"Current Assets" means, at any time, as to the Parent
Guarantor and its Subsidiaries, the consolidated current assets
of the Parent Guarantor and its Subsidiaries for the then most
recently ended fiscal quarter, as shown on the Parent Guarantor's
then most recent consolidated balance sheet at such time.
"Current Liabilities" of the Parent Guarantor and its
Subsidiaries means, at any time, (a) the consolidated current
liabilities of the Parent Guarantor and its Subsidiaries plus (b)
to the extent not included in (a), the current liabilities of any
Person (other than the Parent Guarantor or any of its
Subsidiaries) that are guaranteed by the Parent Guarantor or any
of its Subsidiaries, in each case for the then most recently
ended fiscal quarter as shown on the Parent Guarantor's then most
recent consolidated balance sheet at such time.
"Earnings from Operations" means, at any time, operating
income for the Parent Guarantor and its Subsidiaries on a
consolidated basis as set forth in the consolidated statement of
income of the Parent Guarantor and its Subsidiaries for the
immediately preceding four consecutive fiscal quarters (or such
fewer number of consecutive fiscal quarters as shall have ended
immediately following the Effective Date) for which financial
statements have been delivered to the Banks pursuant to Section
6(g) of the UBN Parent Guaranty; provided, however, that if the
Parent Guarantor or any of its Subsidiaries makes a Significant
Acquisition, then there shall be in the foregoing calculation of
EBIT the EBIT attributable to the product or product line so
acquired.
"EBIT" means, at any time, an amount equal to (a) the
consolidated net income of the Parent Guarantor and its
Subsidiaries before interest expense and provision for taxes
(excluding extraordinary gains and losses and gains from sales of
assets other than sales of inventory in the ordinary course of
business ), in each case determined in accordance with GAAP for
the immediately preceding four consecutive fiscal quarters (as
shown on the Parent Guarantor's consolidated financial statements
and other reports, statements, budgets and forecasts, if any,
most recently delivered to the Administrative Agent);
"EBITDA" means, for any period, an amount equal to (a) the
consolidated net income of the Parent Guarantor and its
Subsidiaries plus, to the extent deducted in computing such net
income, interest expense and provision for taxes plus (b) the
amount of all amortization of intangibles and depreciation that
were deducted in arriving at such amount minus (c) the amount of
all non-cash gains that were added in arriving at such amount, in
each case determined in accordance with GAAP for such period (as
shown on the Parent Guarantor's most recent consolidated
financial statements delivered to the Administrative Agent);
provided, however, that extraordinary gains and losses and gains
from sales of assets other than sales of inventory in the
ordinary course of business shall be excluded from the
calculation of such consolidated net income; provided, further
that if the Parent Guarantor or any of its Subsidiaries makes a
Significant Acquisition during such period, then there shall be
included in the foregoing calculation of EBITDA the EBITDA of the
acquired Person and/or the EBIT attributable to the acquired
product or product line, as the case may be, for such period;
provided, further, that subject to the consent of the Banks
(which shall not be unreasonably withheld), the following items
may be excluded from the calculation of EBITDA for purposes of
calculating the Margin Ratio under the Credit Agreement and
compliance with Section 7(f)(i)(B) of the UBN Parent Guaranty:
(i) one time charges resulting from reorganizations of the Parent
Guarantor and/or both existing and new Subsidiaries, (ii) gains
and/or losses from the sale of a business and (iii) one time
charges in connection with an acquisition as may be required in
accordance with GAAP (and, for the avoidance of doubt, the Banks
have consented to the exclusion of the one time charge relating
to the acquisition of Arthur H. Cox & Co. Limited, a U.K. company
and English company, and its Subsidiaries from the calculation of
EBITDA as aforesaid).
"Group" means, with respect to any Person, a group of
Persons all of whom are, directly or indirectly, wholly-owned
Subsidiaries of the Parent Guarantor and which consists of (a)
such Person and (b) any other Person (other than the Parent
Guarantor) (i) the stock of which is wholly-owned, either
directly or indirectly, by such Person or (ii) which, directly or
indirectly, owns all of the stock of such Person.
"Net Worth" means, at any time, as to the Parent Guarantor
and its Subsidiaries on a consolidated basis, the excess of total
assets over total liabilities, as shown on the Parent Guarantor's
then most recent consolidated balance sheet.
"Permitted Indebtedness" has the meaning specified in
Section 7(f) of the UBN Parent Guaranty.
"Permitted Liens" has the meaning specified in Section 7(a)
of the UBN Parent Guaranty.
"Permitted Intercompany Indebtedness" means Indebtedness
incurred by the Parent Guarantor, the Borrower, a Subsidiary
Guarantor, Pledged Subsidiary or any (directly or indirectly)
wholly-owned Non-U.S. Subsidiary of the Parent Guarantor and
owing to the Parent Guarantor, any Subsidiary Guarantor, Pledged
Subsidiary or any (directly or indirectly) wholly-owned Non-U.S.
Subsidiary of the Parent Guarantor (as the case may be).
"Senior Ratio" means at any time the sum of (a) the
aggregate principal amount of all Senior Indebtedness at such
time outstanding divided by (b) EBITDA at such time.
"Senior Indebtedness" means all Indebtedness of the Parent
Guarantor and its Subsidiaries on a consolidated basis other than
Subordinated Indebtedness.
"Significant Acquisition" means an acquisition (whether in a
single Transaction or in a series of transactions over any 12
month period) of Equity or assets having a fair market value
greater than $50,000,000 in the aggregate.
"Significant Acquisition Date" means, with respect to a
Significant Acquisition, the date on which the transaction
involving such Significant Acquisition (or, if a series of
transactions, the first transaction in which the fair market
value of the Acquisition when aggregated with all other
acquisitions during such 12 month period exceeded $50,000,000) is
consummated.
"Subordinated Indebtedness" means, as to the Parent
Guarantor and its Subsidiaries, Indebtedness that (a) is subject
to subordination terms that are no less favorable to the Banks
than those contained in Exhibit A hereto and that are otherwise
satisfactory to the Administrative Agent and (b) does not
commence to amortize or otherwise require any mandatory
installments of principal until six months after the Termination
Date.
"Total Capital" means, at any time, as to the Parent
Guarantor and its Subsidiaries on a consolidated basis, the sum
for the Parent Guarantor and its Subsidiaries of (a) Net Worth
plus (b) Subordinated Indebtedness.
"Total Interest Expense" means, for any period, the cash
interest expense incurred by the Parent Guarantor and its
Subsidiaries, on a consolidated basis, for such period with
respect to the aggregate amount of all Indebtedness outstanding
during such period; provided, however, that if the Parent
Guarantor or any of its Subsidiaries makes a Significant
Acquisition during such period, then there shall be included in
the foregoing calculation of Total Interest Expense the Total
Interest Expense of the acquired Person and/or the Total Interest
Expense attributable to the acquired product or product line, as
the case may be, for such period.
"Total Indebtedness" means, at any time, the aggregate
principal amount of Indebtedness of the Parent Guarantor and its
Subsidiaries (on a consolidated basis) outstanding at such time.
Any terms used in this Guaranty and not otherwise defined
are used with the meaning ascribed thereto in the Credit
Agreement.
SECTION 16 GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
SECTION 17 WAIVER OF JURY TRIAL. THE PARENT GUARANTOR
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS OR REMEDIES HEREUNDER,
UNDER THE CREDIT AGREEMENT OR UNDER THE OTHER LOAN DOCUMENTS
RELATIVE TO EACH OF THE FOREGOING.
[SIGNATURE PAGE 1 OF 1 TO PARENT GUARANTY]
IN WITNESS WHEREOF, the Parent Guarantor has caused this
Guaranty to be duly executed and delivered by its officer
thereunto duly authorized as of the date first above written.
ALPHARMA INC.
By:
Name:
Title:
Schedule 5(k)
Subsidiaries
Schedule 5(l)
Subsidiary Guarantors