EXECUTION COPY
$300,000,000
CREDIT AGREEMENT
dated as of
January 20, 1999,
among
ALPHARMA U.S. INC.
as Borrower,
THE BANKS NAMED HEREIN,
as Banks,
UNION BANK OF NORWAY
as Arranger,
DEN NORSKE BANK ASA,
as Co-Arranger
and
UNION BANK OF NORWAY,
as Agent
TABLE OF CONTENTS
ARTICLE I - DEFINITIONS AND ACCOUNTING TERMS 1
1.1. Defined Terms 1
1.2. Computation of Time Periods 18
1.3. Accounting Terms 18
ARTICLE II - AMOUNT AND TERMS OF THE TERM LOANS 18
2.1. The Term Loans 18
2.2. Making the Term Loans 19
2.3. Termination/Reduction of the Term Loan Commitments 20
2.4. Consolidation and Repayment of Term Loans 21
ARTICLE III - AMOUNT AND TERMS OF THE REVOLVING LOANS 22
3.1. The Revolving Loans 22
3.2. Making the Revolving Loans 23
3.3. Termination/Reduction of the Revolving Credit
Commitments 24
3.4. Extension of Revolving Credit Commitment
Termination Date 25
ARTICLE IV - AMOUNT AND TERMS OF THE WORKING CAPITAL LOANS 26
4.1. The Working Capital Loans 26
4.2. Making the Working Capital Loans 27
4.3. Termination/Reduction of the Working Capital Loan
Commitments 29
4.4. Letters of Credit 29
4.5. Obligations Absolute 34
ARTICLE V - INTEREST, FEES, ETC. 34
5.1. Interest Period Election 34
5.2. Interest Rate 35
5.3. Interest Rate Determination and Protection 36
5.4. Prepayments 37
5.5. Fees 38
5.6. Increased Costs 39
5.7. Illegality 40
5.8. Capital Adequacy 40
5.9. Payments and Computations 41
5.10. Sharing of Payments, Etc. 45
ARTICLE VI - CONDITIONS OF LENDING 45
6.1. Conditions Precedent to the Making of the Initial
Loans and/or Initial Issuance of Letters of Credit 45
6.2. Conditions Precedent to the Making of Each Loan
and Issuance of Each Letter of Credit 47
ARTICLE VII - REPRESENTATIONS AND WARRANTIES 47
7.1. Corporate Existence 47
7.2. Corporate Power; Authorization; Enforceable
Obligations. 47
7.3. Taxes 48
7.4. Financial Information 49
7.5. Litigation 49
7.6. Margin Regulations 49
7.7. ERISA 50
7.8. No Defaults 50
7.9. Investment Company Act 50
7.10. Insurance 51
7.11. Environmental Protection 51
7.12. Regulatory Matters 51
7.13. Title and Liens 51
7.14. Compliance with Law 51
7.15. Trademarks, Copyrights, Etc. 52
7.16. Disclosure 52
7.18. Subsidiaries. 52
7.19. Principal Subsidiaries. 52
7.20. Year 2000 Issue 52
7.21. Pari Passu Obligations 53
7.22. Corporate Headquarters 53
ARTICLE VIII - AFFIRMATIVE COVENANTS 53
8.1. Compliance with Laws, Etc. 53
8.2. Payment of Taxes, Etc. 53
8.3. Maintenance of Insurance 53
8.4. Preservation of Corporate Existence, Etc. 53
8.5. Books and Access 54
8.6. Maintenance of Properties, Etc. 54
8.7. Application of Proceeds 54
8.8. Financial Statements 54
8.9. Reporting Requirements 55
8.10. Acquisition Related Loan 56
8.11. Additional Credit Support Documents 56
8.12. Delivery of Opinions 57
8.13. Year 2000 Compliance 57
8.14 Pari Passu Obligations 57
8.15 Corporate Headquarters. 57
8.16 Indebtedness Under Other Facilities 57
ARTICLE IX - NEGATIVE COVENANTS 58
9.1. Liens, Etc. 58
9.2. Mergers 58
9.3. Substantial Asset Sale 58
9.4. Transactions with Affiliates 59
9.5. Restrictions on Indebtedness 59
ARTICLE X - EVENTS OF DEFAULT 60
10.1. Events of Default 60
ARTICLE XI - THE AGENT AND WORKING CAPITAL AGENT 63
11.1. Authorization and Action 63
11.2. The Agent's Reliance, Etc. 63
11.3. Union Bank of Norway and Den norske Bank AS 64
11.4. Bank Credit Decision 64
11.5. Determinations Under Sections 6.1. and 6.2 65
11.6. Indemnification 65
11.7. Successor Agents/Working Capital Agents 66
11.8. Notices and Forwarding of Documents to Banks 66
ARTICLE XII - MISCELLANEOUS 66
12.1. Amendments, Etc. 66
12.2. Notices, Etc. 67
12.3. No Waiver; Remedies 68
12.4. Costs; Expenses; Indemnities 68
12.5. Right of Set-off 70
12.6. Binding Effect 70
12.7. Assignments and Participation; Additional Banks 70
12.8. GOVERNING LAW; SEVERABILITY. 73
12.10. SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL 73
12.11. Confidentiality 73
12.12. Section Titles 74
12.13. Execution in Counterparts 74
SCHEDULES AND ANNEXES
Annex A -
Pricing Grid
Schedule I -
Lending Offices
Schedule II -
Commitments
Schedule III -
Restructuring Documents
Schedule 7.2(a)(iv) -
Required Consents and Approvals
EXHIBITS
Exhibit A-1 - Form of Term
Note
Exhibit A-2 - Form of
Revolving Credit Note
Exhibit A-3 - Form of Working
Capital Note
Exhibit B - Form of
Acquisition Related Guaranty
Exhibit C - Form of
Intercreditor Agreement
Exhibit D - Form of Notice
of Borrowing
Exhibit E - Form of Parent
Guaranty
Exhibit F - [Intentional
omitted]
Exhibit G - Form of
Subsidiary Guaranty
Exhibit H - Form of
Assignment of Intercompany Note
Exhibit I - Form of Notice
of Interest Period
Exhibit J-1 - Form of Opinion
of Kirkland & Ellis
Exhibit J-2 - Form of Opinion
of Robert Wrobel, Corporate Counsel
of the Borrower
Exhibit J-3 - Form of Opinion
of Watson, Farley & Williams
Exhibit J-4 - Form of Opinion
of Wikborg & Rein (Norwegian law)
Exhibit J-5 - Form of Opinion
of Gorrissen & Federspiel (Danish
law)
Exhibit J-6 - Form of Opinion
of McCarter & English (New Jersey
law)
Exhibit J-7 - Form of Opinion
of Bird & Bird (English law)
Exhibit K - Form of Notice
of Assignment and Acceptance
CREDIT AGREEMENT dated as of January 20, 1999 among ALPHARMA
U.S. INC., a Delaware corporation (together with its successors
and assigns, the "Borrower"), the Banks parties hereto from time
to time (the "Banks"), UNION BANK OF NORWAY, as Agent, UNION BANK
OF NORWAY, as Arranger, DEN NORSKE BANK ASA, as Co-Arranger and
Co-Syndication Agent and SUMMIT BANK, as Working Capital Agent,
Documentation Agent and Co-Syndication Agent.
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Banks provide
financing for, among other things, (a) the refinancing of certain
existing indebtedness of the Borrower and (b) for general
corporate purposes, 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):
"Acquisition Related Guarantor" means an Affiliate of the
Borrower to whom the proceeds of a Borrowing are, directly or
indirectly, made available for purposes of effecting an
acquisition of Equity or assets.
"Acquisition Related Guaranty" means a guaranty of the
obligations of the Borrower pursuant to the Loan Documents made
by an Acquisition Related Guarantor in connection with a
Borrowing made in respect of an acquisition of Equity or assets
substantially in the form of Exhibit B hereto.
"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 5.5(c).
"Agent" means Union Bank of Norway, in its capacity as the
Agent, or any successor in such capacity.
"Agreement" means this Credit Agreement, as further
modified, amended or supplemented from time to time.
"Agreement Date" means the date set forth as such on the
last signature page hereof.
"Agreement Termination Date" means the first day on which
all the 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.
"A.L. Pharma A/S" means A.L. Pharma A/S, a Danish
corporation.
"Alpharma AS" means Alpharma AS, a Norwegian corporation.
"Alternate Base Rate" means a fluctuating rate per annum
equal at all times to the higher of (i) the Base Rate and (ii)
the Federal Funds Rate, in each case plus the Applicable Margin.
"Alternate Base Rate Working Capital Loan" means a Working
Capital Loan bearing interest at the Alternate Base Rate.
"Applicable 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.
"Applicable Margin" shall mean a percentage per annum
determined in accordance with the Pricing Grid.
"Arrangement Fee" has the meaning specified in Section
5.5(b).
"Arranger" means Union Bank of Norway.
"Assignment of Intercompany Note" means the Assignment made
by the Parent Guarantor in favor of the Agent, substantially in
the form of Exhibit H hereto.
"Available Revolving Credit Commitment" means, as to any
Bank, at any time of determination, an amount equal to (x) such
Bank's Revolving Credit Commitment at such time minus (y) such
Bank's aggregate Outstanding Revolving Extensions of Credit at
such time.
"Base Rate" means the rate of interest announced from time
to time by the Working Capital Agent as its "base rate" or "base
lending rate". This rate of interest is determined from time to
time by the Working Capital 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 Working Capital Agent to
any particular class or category of customers of the Working
Capital Agent.
"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 12.7.
"Borrower" has the meaning specified in the recitals hereof.
"Borrowing" means a Term Loan Borrowing, a Revolving Loan
Borrowing or a Working Capital Loan Borrowing (as the case may
be).
"Business Day" means a day of the year on which banks are
not required or authorized to close in New York City and 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 (including convertible debt securities but excluding any
other debt securities), in each case 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 Equivalents" 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 each case 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).
"Co-Arranger" means Den norske Bank ASA.
"Code" means the Internal Revenue Code of 1986 (or any
successor legislation thereto), as amended from time to time.
"Commitment" means, as to any Bank, the aggregate of such
Bank's Term Loan Commitment and Revolving Credit Commitment and
"Commitments" means, as to all of the Banks, the aggregate of the
Term Loan Commitments and Revolving Credit Commitments of all the
Banks.
"Commitment Fee" means any of the fees paid by the Borrower
pursuant to Section 5.5(a).
"Consolidation" means any adjustment of Interest Periods in
respect of Term Loans in accordance with Section 2.4(a) of this
Agreement.
"Consolidation Date" means the day that is six (6) months
after the Initial Funding Date with respect to Term Loans or such
earlier date on which the Consolidation of Term Loans occurs as
the Agent may designate by notice to the Banks.
"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 Document" means the Parent Guaranty, the
Subsidiary Guaranties, the Pledge Agreements, the Assignment of
Intercompany Note and the Acquisition Related Guaranties.
"Default" means any event which with the passing of time or
the giving of notice or both would become an Event of Default.
"Documentation Agent" means Summit Bank, in its capacity as
Documentation Agent, or any successor in such capacity.
"Dollars" and the sign "$" each mean the lawful money of the
United States of America.
"Dumex" means Dumex - Alpharma A/S, a Danish corporation.
"Earnings from Operations" has the meaning specified in the
Parent Guaranty.
"EBITDA" has the meaning ascribed thereto in the Parent
Guaranty.
"Effective Date" means the first day on which the conditions
set forth in Section 6.1 are satisfied or waived.
"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. 12Sl 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
Environmental Cleanup Responsibility Act (N.J. Stat. Ann.
13:lK-6 et seg.) 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,
resulting 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 participation or other equivalents (regardless of how
designated) of or in a corporation, limited liability company,
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.
"Equity Ratio" has the meaning specified in the Parent
Guaranty.
"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 equal to (a) the rate quoted by the Agent as appearing
on the Telerate Page 3750 or on any other relevant Telerate page
as of 11:00 A.M. (London time) on the second Business Day before
the first day of such Interest Period for a period equal to such
Interest Period or (b) if such rate does not appear on the
Telerate Page 3750 or on any other relevant Telerate page, such
other widely published rate at which deposits in Dollars are
offered in the London interbank market at 11:00 A.M. (London
time) as the Agent may select on the second Business Day before
the first day of such Interest Period for a period equal to 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.
"Eurodollar Working Capital Loans" means a Working Capital
Loan bearing interest at the Eurodollar Rate plus the Applicable
Margin.
"Event of Default" has the meaning specified in Section
10.1.
"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 Agent from
three federal funds brokers of recognized standing selected by
it.
"Final Judgment" has the meaning specified in Section
10.1(f).
"Fiscal Quarter" means any three month period ending March
31, June 30, September 30 or December 31 of any Fiscal Year.
"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 Agreement Date.
"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.
"Indebtedness" of any Person means at any date, without
duplication, (i) all obligations of such Person for borrowed
money, including obligations 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 (but not including
any obligation under a performance bond), (vi) all obligations of
such Person as issuer, customer or account party under letters of
credit or bankers' acceptances that are either drawn or that back
financial obligations that would otherwise be Indebtedness, and
(vii) for purposes of Section 10.1(e) only, all obligations of
such Person in respect of Swap Agreements.
"Indebtedness for Borrowed Money" of any Person means at any
date, without duplication, Indebtedness described in clauses (i),
(iii), (v) and (vii) of the definition of Indebtedness.
"Indemnified Liability" has the meaning specified in Section
12.4(b).
"Indemnified Person" has the meaning specified in Section
12.4(b).
"Initial Funding Date" means, with respect to each of the
Term Loans, Revolving Loans and Working Capital Loans, the date
on which (i) the conditions set forth in Sections 6.1 and 6.2 are
satisfied or waived and (ii) the initial Term Loans, Revolving
Loans or Working Capital Loans, respectively, are made hereunder.
"Intercreditor Agreement" means the Intercreditor Agreement
among the Agent, the Banks and the Other Lenders, substantially
in the form of Exhibit C hereto.
"Interest Period" means, with respect to any Eurodollar
Loans, (a) in the case of the first such Interest Period, the
period commencing on the date such Loans are made and ending (i)
six months thereafter, in the case of Term Loans, and (ii) one,
three or six months (or 12 months, in accordance with Section
5.1(b)) thereafter, in the case of Revolving Loans and Eurodollar
Working Capital Loans, as selected by the Borrower in its Notice
of Borrowing or Notice of Interest Period given to the Agent
pursuant to Section 2.2, 3.2, 4.2 or 5.1, as the case may be, and
(b) thereafter, the period commencing on the last day of the
immediately preceding Interest Period and ending (i) six months
thereafter, in the case of Term Loans, and (ii) one, three, six
or twelve months thereafter, in the case of Revolving Loans and
Eurodollar Working Capital Loans, as selected by the Borrower in
its Notice of Interest Period given to the Agent or the Working
Capital Agent, as the case may be, pursuant to Section 5.1,
subject, however, to the following:
(A) 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;
(B) 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;
(C) no Interest Period may extend beyond (I) the Term
Loan Maturity Date, in the case of the Term Loans or (II)
the Revolving Credit Commitment Termination Date, in the
case of Revolving Loans and Eurodollar Working Capital
Loans; and
(D) there shall be outstanding at any one time in the
aggregate no more than (I) four (4) Interest Periods prior
to the Consolidation Date and one (1) Interest Period
thereafter, with respect to Term Loans, (II) six (6)
Interest Periods (no more than four of which may have a
duration of one month) with respect to Revolving Loans and
(III) ten (10) Interest Periods with respect to Eurodollar
Working Capital Loans.
"IRS" means the Internal Revenue Service, or any successor
thereto.
"Issuing Bank" means Summit Bank or First Union National
Bank, N.A., as the case may be, as the issuer of Letters of
Credit hereunder, together with its successors and assigns in
such capacity.
"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 Agent.
"Letter of Credit" has the meaning specified in Section 4.4.
"Letter of Credit Documents" means, with respect to any
Letter of Credit, collectively, any application therefor and any
other agreements, instruments, guarantees or other documents
(whether general in application or applicable only to such Letter
of Credit) governing or providing for (a) the rights and
obligations of the parties concerned or at risk with respect to
such Letter of Credit or (b) any collateral security for any of
such obligations, each as the same may be modified and
supplemented and in effect from time to time.
"Letter of Credit Liability" means, without duplication, at
any time and in respect of any Letter of Credit, the sum of (a)
the undrawn face amount of such Letter of Credit plus (b) the
aggregate unpaid principal amount of all Reimbursement
Obligations of the Borrower at such time due and payable in
respect of all drawings made under such Letter of Credit. For
purposes of this Agreement, a Working Capital Bank (other than
the Issuing Bank) shall be deemed to a hold a Letter of Credit
Liability in an amount equal to its Ratable Portion of the Letter
of Credit under Section 4.4 hereof, and the Issuing Bank shall be
deemed to hold a Letter of Credit Liability in an amount equal to
its retained interest in the related Letter of Credit after
giving effect to the acquisition by the Banks other than the
Issuing Bank of their participation interests under said Section
4.4.
"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.
"Loan Documents" means (i) this Agreement, the Notes, the
Credit Support Documents and the Intercreditor Agreement 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 Agent, the
Banks, the Arranger, the Co-Arranger, the Working Capital Agent,
the Documentation Agent and the Other Lenders) that is a party
to a Loan Document.
"Loans" means, collectively, the Term Loans, the Revolving
Loans and the Working Capital Loans.
"Majority Banks" means, at any time, Banks holding 66 2/3%
or more of (a) until the Initial Funding Date, the Commitments
and (b) thereafter, the sum of (i) the then aggregate unpaid
principal amount of Term Loans held by the Banks and (ii) the
Revolving Credit Commitments or, if the Revolving Credit
Commitments have been terminated, the then aggregate unpaid
principal amount of Revolving Loans, Working Capital Loans and
Letter of Credit Liabilities; provided, that for purposes of the
last paragraph of Section 10.1(A) hereof, the relevant percentage
for determining Majority Banks shall be 51%.
"Majority Working Capital Banks" means, at any time, Working
Capital Banks holding 66 2/3% or more of the aggregate amount of
the Working Capital Loan Commitments.
"Margin Ratio" means, as at the last day of any period, the
ratio of (a) Total Indebtedness on such day to (b) EBITDA for
such period, as calculated in accordance with Annex A hereto.
"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 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, any of the Subsidiary
Guarantors or the Acquisition Related Guarantors under this
Agreement or any other Loan Document.
"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.
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.
"New Permitted Indebtedness" has the meaning specified in
the Parent Guaranty.
"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 Term Notes, the Revolving Credit Notes and
the Working Capital Notes.
"Notice of Assignment and Acceptance" has the meaning
specified in Section 12.7(a).
"Notice of Borrowing" means a notice of the Borrower
substantially in the form of Exhibit D hereto specifying therein
(i) the date of the proposed Borrowing, (ii) the aggregate amount
of such proposed Borrowing, (iii) the initial Interest Period or
Interest Periods for such Loans and (iv) whether such Borrowing
is to be a Term Loan Borrowing, a Revolving Loan Borrowing or a
Working Capital Loan Borrowing.
"Notice of Interest Period" has the meaning specified in
Section 5.1.
"Original Banks" means each financial institution that is a
"Bank" as of the Agreement Date.
"Other Lenders" shall mean (i) as of the Agreement Date,
First Union National Bank, and (ii) at any time thereafter, the
banks and financial institutions party to the Intercreditor
Agreement at such time (other than the Banks and the Agent).
"Outstanding Revolving Extensions of Credit" means, as to
any Bank at any time, the aggregate principal amount of all
Revolving Loans, Working Capital Loans and Letter of Credit
Liabilities made by such Bank then outstanding.
"Parent Guarantor" means Alpharma, Inc., a Delaware
corporation.
"Parent Guaranty" means the Guaranty dated as of January 20,
1999 made by the Parent Guarantor in respect of the obligations
of the Borrower pursuant to the Loan Documents, as the same may
be further amended or modified from time to time.
"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.
"Permit" means any permit, approval, authorization, license,
variance or permission required from a Governmental Authority
under an applicable requirement of law.
"Permitted Indebtedness" has the meaning specified in the
Parent Guaranty.
"Permitted Liens" has the meaning specified in the Parent
Guaranty.
"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" means each pledge made by the
Shareholders of a Pledge Subsidiary in favor of the Agent on
behalf of the Banks in respect of 65% of the total combined
voting power of all classes of stock entitled to vote (within the
meaning of Section 956 of the Code and the regulations
thereunder) of such Pledge Subsidiary, in form and substance
satisfactory to the Agent.
"Pledge Subsidiary" means A.L.-Pharma A/S, Alpharma AS and
each Principal Subsidiary that is a Non-U.S. Subsidiary.
"Pricing Grid" shall mean the pricing grid attached hereto
as Annex A.
"Principal Subsidiary" means (a) at all times, the
Scandinavian Principal Companies, and (b) at any time (except as
otherwise provided for in this Agreement or any other Loan
Document), any Subsidiary of the Parent Guarantor that (i) owns
more than 5% of the total assets of the Parent Guarantor and its
Subsidiaries on a consolidated basis, or (ii) is responsible for
more than 5% of the total revenues of the Parent Guarantor and
its Subsidiaries, on a consolidated basis; provided, however,
that on and as of the Agreement Date, Principal Subsidiary shall
mean each of the entities listed on Schedule 5(n) to the Parent
Guaranty and at any time thereafter, shall mean (except as
otherwise provided for in this Agreement or any other Loan
Document) the entities listed as "Principal Subsidiaries" (as
determined in accordance with this definition) on the certificate
of the Responsible Financial Officer of the Parent Guarantor most
recently delivered pursuant to Section 6(g)(v) of the Parent
Guaranty.
"Prior UBN Facility" means the Credit Agreement dated as of
September 28, 1994 as amended by (i) a Consent and Agreement
dated as of December 19, 1994, (ii) an Amendment No. 2 to Credit
Agreement dated as of December 1, 1995, (iii) an Amendment No. 3
dated as of February 26, 1997 and (iv) an Amendment No. 4 dated
as of April 10, 1997 among the Borrower, the banks and financial
institutions set forth therein, Union Bank of Norway, as agent
and arranger, and Den norske Bank ASA, as Co-Arranger.
"Property" means any interest in any kind of property or
asset, whether real, personal or mixed, and whether tangible or
intangible.
"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 at any time of
determination, (i) with respect to Term Loans and Working Capital
Loans, respectively, the percentage obtained by dividing the
amount of such Bank's Term Loan Commitment or Working Capital
Loan Commitment, as the case may be, at such time by the
aggregate amount of all of the Banks' Term Loan Commitments or
Working Capital Loan Commitments, as the case may be at such
time, (ii) with respect to a Revolving Loan Borrowing, the
percentage obtained by dividing the amount of such Bank's
Available Revolving Credit Commitment at such time by the
aggregate amount of all of the Banks' Available Revolving Credit
Commitments at such time, (iii) with respect to a Bank's
outstanding Revolving Loans, the percentage obtained by dividing
the aggregate principal amount of all Revolving Loans made by
such Bank then outstanding by the aggregate principal amount of
all Revolving Loans made by all the Banks then outstanding, (iv)
with respect to Letters of Credit and any Working Capital Bank's
liability thereunder, the percentage obtained by dividing the
amount of such Working Capital Bank's Working Capital Loan
Commitment by the aggregate amount of all of the Working Capital
Banks' Working Capital Loan Commitments and (v) with respect to
the aggregate amount of all Commitments, the percentage obtained
by dividing the aggregate Commitment of such Bank by the
aggregate amount of all Commitments of all the Banks.
"Register" has the meaning specified in Section 12.7(g)
hereof.
"Regulation D", "Regulation T", "Regulation U" and
"Regulation X" means 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.
"Reimbursement Obligations" means, at any time, the
obligations of the Borrower then outstanding, or that may
thereafter arise, in respect of all Letters of Credit then
outstanding, to reimburse amounts paid by the Issuing Bank in
respect of any drawings under a Letter of Credit.
"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 preremedial 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 Agent
pursuant to Section 6.1(a)(iii) or otherwise notified to the
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 Agent pursuant to Section 6.1(a)(iii) or otherwise notified
to the 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.
"Revolving Credit Availability Period" means the period
beginning (x) on the Agreement Date, for purposes of Section
4.1(a) hereof, and (y) February 5, 1999, for purposes of Section
3.1(a) hereof, and in each case ending on the Revolving Credit
Commitment Termination Date.
"Revolving Credit Commitment" means, as to any Bank, the
obligation of such Bank, if any, to make Revolving Loans, Working
Capital Loans and to automatically acquire a participation in the
Issuing Bank's liability under any Letters of Credit in an
aggregate principal and/or face amount not to exceed the amount
set forth under the heading "Revolving Credit Commitment"
opposite such Lender's name on Schedule II, as the same may be
changed from time to time pursuant to the terms hereof.
"Revolving Credit Commitment Termination Date" means the
earlier of (i) the day that is five (5) years after the Agreement
Date or such other day to which the Revolving Credit Commitment
Termination Date shall have been extended in accordance with
Section 3.4 hereof and (ii) the date of the earlier termination
or cancellation in full of the Revolving Credit Commitment
pursuant to the terms hereof, including pursuant to Section 10.1.
"Revolving Note" means any promissory note in the form of
Exhibit A-2.
"Revolving Loan" means a Loan made to the Borrower pursuant
to Section 3.1.
"Revolving Loan Borrowing" means a borrowing by the Borrower
consisting of Revolving Loans made on the same day by the Banks
ratably according to their respective Revolving Credit
Commitments.
"Scandinavian Principal Companies" means Alpharma AS and
Dumex-Alpharma A/S.
"Shareholder" means, with respect to any corporation, the
holder of any of the Equity of such Person.
"Single-Employer Plan" shall mean a single employer plan as
defined in section 4001(a)(15) of ERISA which is subject to the
provisions of Title IV of ERISA.
"Subordinated Indebtedness" has the meaning specified in the
Parent Guaranty.
"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 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 Principal Subsidiary that
is incorporated or organized under the laws of a jurisdiction
located in the United States of America.
"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 G hereto.
"Summit Bank Facility" means the $65,000,000 loan facility
made available to the Borrower pursuant to a Credit Agreement
dated as of September 11, 1997 among the Borrower, the banks
named therein, Summit Bank, as agent, and Summit Bank, as
arranger (as amended from time to time).
"Swap Agreement" means, with respect to any Person, any
obligation with respect to an interest rate or currency swap or
similar obligation 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.
"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.
"Term Loan Availability Period" means the period beginning
on February 5, 1999 and ending on the Term Loan Commitment
Termination Date.
"Term Loan Borrowing" means a borrowing by the Borrower
consisting of Term Loans made on the same day by the Banks
ratably according to their respective Term Loan Commitments.
" Term Loan Commitment" has the meaning specified in Section
2.1(a).
"Term Loan Commitment Termination Date" means the earlier of
(i) the date that is sixty (60) days after the Agreement Date,
(ii) the date on which a fourth Term Loan Borrowing is made
pursuant to the terms of this Agreement, and (iii) the date of
the earlier termination or cancellation in full of the Term Loan
Commitment pursuant to the terms hereof, including pursuant to
Section 10.1.
"Term Loan" means a Loan made to the Borrower pursuant to
Section 2.1.
"Term Loan Maturity Date" means the sixth anniversary of the
Initial Funding Date with respect to Term Loans.
"Term Note" means any promissory note in the form of Exhibit
A-1.
"Title IV Plan" means a Pension Plan, other than a
Multiemployer Plan, which is covered by Title IV of ERISA.
"Total Indebtedness" means, for any period, all Indebtedness
of the Parent Guarantor and its Subsidiaries (on a consolidated
basis) (including Indebtedness under the Loan Documents) for such
period.
"U.S." means the United States of America.
"Vancomycin Facility" means the $9,000,000 loan facility
made available to Dumex-Alpharma A/S pursuant to a Guarantee
Facility Agreement dated December 20, 1995 among Dumex-Alpharma
A/S, Sparekassen Bikuben A/S and Union Bank of Norway, as
guarantors, the lenders named therein, Union Bank of Norway, as
arranger, and Sparekassen Bikuben A/S, as agent (as amended from
time to time).
"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.
"Working Capital Agent" means Summit Bank, in its capacity
as the Working Capital Agent, or any successor in such capacity.
"Working Capital Banks" means Summit Bank and First Union
National Bank, N.A.
"Working Capital Extensions of Credit" means as to any
Working Capital Bank at any time, an amount equal to the sum of
(a) the aggregate principal amount of all Working Capital Loans
made by such Working Capital Bank then outstanding and (b) the
aggregate principal amount of such Working Capital Bank's Ratable
Portion of the Letter of Credit Liability at such time.
"Working Capital Loan Borrowing" means a borrowing by the
Borrower consisting of Working Capital Loans made on the same day
by the Working Capital Banks ratably according to the respective
Working Capital Loan Commitments.
"Working Capital Loan" means a Loan made to the Borrower
pursuant to Section 4.1.
"Working Capital Loan Commitment" means, as to any Working
Capital Bank, the obligation of such Working Capital Bank, if
any, to make Working Capital Loans and to automatically acquire a
participation in the Issuing Bank's liability under any Letters
of Credit in an aggregate principal amount not to exceed the
amount set forth under the heading "Working Capital Loan
Commitment" opposite such Working Capital Banks' name on Schedule
II, as the same may be changed from time to time pursuant to the
terms hereof.
"Working Capital Note" means any promissory note in the form
of Exhibit A-3.
"Year 2000 Issue" means the failure of computer software,
hardware and firmware systems and equipment containing embedded
computer chips to properly receive, transmit, process,
manipulate, store, retrieve, re-transmit or in any other way
utilize data and information due to the occurrence of the year
2000 or the inclusion of dates on or after January 1, 2000.
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.
ARTICLE II
AMOUNT AND TERMS OF THE TERM LOANS
2.1. The Term Loans.
(a) Commitment to Lend. On the terms and subject to the
conditions contained in this Agreement, each Bank severally
agrees to make up to four (4) Term Loans to the Borrower from
time to time on any Business Day during the Term Loan
Availability Period, each such Loan being part of a Term Loan
Borrowing, in an aggregate amount not to exceed at any time
outstanding the amount set forth opposite such Bank's name on
Schedule II as its "Term Loan Commitment" (as adjusted from time
to time by reason of assignments in accordance with the
provisions of Section 12.7 and as such amount may be reduced
pursuant to Section 2.3, such Bank's "Term Loan Commitment");
provided, however, that following the making of each such
proposed Term Loan, (i) the aggregate principal amount of all
Term Loans outstanding shall not exceed the aggregate amount of
the Term Commitments and (ii) the aggregate principal amount of
all Loans outstanding shall not exceed the aggregate amount of
the Commitments, in each case at such time.
(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 (through the Agent) a single Term
Note payable to the order of such Bank, both evidencing the
Indebtedness to such Bank resulting from each Term 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.
(ii) The Register maintained by the Agent pursuant
to Section 12.7(g) shall include a "Term Loan control
account" for each Bank, in which account shall be recorded
(A) the date and amount of each Term Loan Borrowing
hereunder, (B) the amount of each Bank's Term Loan
comprising such Borrowing and 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 Term Loan hereunder and
(D) the amount of any sum received by the Agent from the
Borrower with respect to such Term Loans hereunder and each
Bank's Ratable Portion thereof.
(iii) The entries made in the Register in respect
of Term Loans shall be conclusive and binding for all
purposes, absent manifest error.
2.2. Making the Term Loans. (a) Each Term Loan
Borrowing shall be made upon receipt of a Notice of Borrowing
given by the Borrower to the Agent not later than 11:00 A.M. (New
York City time) on the fifth Business Day prior to the date of
the proposed Term Loan Borrowing.
(b) The Agent shall give to each Bank prompt notice of
its receipt of a Notice of Borrowing in respect of Term Loans
and, upon its determination thereof, notice of the applicable
interest rate under Section 5.3(b). Each Bank shall, before 11:00
A.M. (New York City time) on the date of the proposed Term Loan
Borrowing, make available for the account of its Lending Office
to the Agent at its address referred to in Section 12.2, in
immediately available funds, such Bank's Ratable Portion of such
proposed Term Loan Borrowing. After the Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth
in Article VI, the Agent will make such funds available to the
Borrower at the Agent's above-referenced address.
(c) Each Term Loan Borrowing pursuant to this Section
2.2 shall be in an aggregate amount of not less than $10,000,000
or an integral multiple of $5,000,000 in excess thereof. The
maximum number of Term Loan Borrowings permitted under this
Agreement shall be four (4).
(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 VI, 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 any Term Loan Borrowing when such Term 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 Agent by such Bank
shall be conclusive and binding absent manifest error.
(e) Unless the Agent shall have received notice from a
Bank prior to the date of any proposed Term Loan Borrowing
pursuant to this Section 2.2 that such Bank will not make
available to the Agent such Bank's Ratable Portion of such Term
Loan Borrowing, the Agent may assume that such Bank has made such
Ratable Portion available to the Agent on the date of such Term
Loan Borrowing in accordance with this Section 2.2 and the 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 Agent and the Agent has so made available such
amount, such Bank and the Borrower severally agree to repay to
the 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 Agent, at (i) in the case of the Borrower, the
interest rate applicable at the time to the Term Loans comprising
the Term Loan Borrowing and (ii) in the case of such Bank, the
Federal Funds Rate. If such Bank shall repay to the Agent such
corresponding amount, such amount so repaid shall constitute such
Bank's Term Loan as part of such Borrowing for purposes of this
Agreement. If the Borrower shall repay to the 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 Term Loan to
be made by it as part of any Term Loan Borrowing pursuant to this
Section 2.2 shall not relieve any other Bank of its obligation,
if any, hereunder to make its Term Loan on the date of such
Borrowing, but no Bank shall be responsible for the failure of
any other Bank to make the Term Loan to be made by such other
Bank on the date of any such Term Loan Borrowing.
2.3. Termination/Reduction of the Term Loan
Commitments.
(a) Optional Reductions. The Borrower shall have the
right, upon at least five Business Day's prior notice (which
shall be irrevocable) to the Agent, to terminate in whole or
permanently reduce ratably in part the unused portions of the
respective Term Loan Commitments of the Banks; provided, however,
that each partial reduction shall be in the aggregate amount of
not less than $10,000,000 or an integral multiple of $5,000,000
(or such lesser amount as may be necessary to reduce to zero the
amount of the Term Loan Commitments) in excess thereof; provided,
further, that no such termination or reduction of the Term Loan
Commitments shall be permitted if, after giving effect thereto
and to any prepayments of the Term Loans made on the effective
date thereof, the aggregate outstanding principal amount of Term
Loans of all Banks would exceed the aggregate amount of the Term
Loan Commitments. Once canceled pursuant hereto, no such
canceled portion of the Term Loan Commitments may be reinstated.
(b) Cancellation of Unused Portion. On the Term Loan
Commitment Termination Date, the unused portion of each Bank's
Term Loan Commitment shall be canceled and will no longer be
available for any Term Loan Borrowings thereafter.
(c) Payment of Cancellation and Commitment Fees.
Simultaneously with any termination, reduction or cancellation of
the Term Loan Commitments pursuant to this Section 2.3, the
Borrower shall pay to the Agent for the account of each relevant
Bank the applicable Commitment Fee, if any, on the amount of the
Term Loan Commitments so terminated, reduced or canceled and owed
to such Bank through the date of such termination or reduction.
If any such termination, reduction or cancellation of the Term
Loan Commitments occurs during the period from the Agreement Date
through the second anniversary thereof, then the Borrower shall
also pay to the Agent for the account of each Bank a cancellation
fee equal to .25% of the amount of the Term Loan Commitments so
terminated or reduced.
2.4. Consolidation and Repayment of Term Loans.
(a) Consolidation. If more than one Term Loan
Borrowing is made, then on the Consolidation Date, the Interest
Periods for the Term Loans shall be adjusted by the Agent so that
on and after the Consolidation Date, there will be no more than
one (1) Interest Period outstanding with respect to the Term
Loans. The Agent shall give the Banks 30 days' prior notice of
the proposed Consolidation Date (which shall be no later than six
months after the Initial Funding Date with respect to Term
Loans). The Borrower shall indemnify the Banks in accordance
with Section 12.4(c) for any costs resulting from such
Consolidation.
(b) Repayment. The Borrower shall repay the
outstanding principal amount of the Term Loans in eleven (11)
consecutive semi-annual installments in the amounts set forth in
the table below (subject to (x) proportional adjustment in the
event that less than the full amount of the Term Loan Commitment
is advanced and (y) adjustment to reflect any prepayments
pursuant to Section 5.4); provided that, in any event, on the
Term Loan Maturity Date, the Borrower shall pay the full
principal amount of all Term Loans then outstanding (together
with all accrued and unpaid interest thereon):
The day that is the following
number of months
after the Initial Funding Date
with respect to Term Loans Installment Amount
12 months $2,500,000
18 months $2,500,000
24 months $7,500,000
30 months $7,500,000
36 months $7,500,000
42 months $7,500,000
48 months $7,500,000
54 months $7,500,000
60 months $7,500,000
66 months $7,500,000
72 months $35,000,000
ARTICLE III
AMOUNT AND TERMS OF THE REVOLVING LOANS
3.1. The Revolving Loans.
(a) Commitment to Lend. On the terms and subject to the
conditions contained in this Agreement, each Bank severally
agrees to make Revolving Loans to the Borrower from time to time
on any Business Day during the Revolving Credit Availability
Period, each such Loan being part of a Revolving Loan Borrowing,
in an aggregate amount not to exceed at any time outstanding such
Bank's Available Revolving Credit Commitment (as adjusted from
time to time by reason of assignments in accordance with the
provisions of Section 12.7 and as such amount may be reduced
pursuant to Section 3.3); provided, however, that, following the
making of each such proposed Revolving Loan, (i) the Outstanding
Revolving Extensions of Credit of all the Banks shall not exceed
the aggregate amount of the Revolving Credit Commitments of the
Banks and (ii) the Outstanding Revolving Extensions of Credit
made by any Bank shall not exceed such Bank's Revolving Credit
Commitment, in each case at such time.
(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 Revolving Credit Note
payable to the order of such Bank, and both shall evidence the
Indebtedness to such Bank resulting from each Revolving 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.
(ii) The Register maintained by the Agent pursuant to
Section 12.7(g)(i) shall include a "Revolving Loan control
account" for each Bank, in which account shall be recorded (A)
the date and amount of each Revolving Loan Borrowing hereunder,
(B) the amount of each Bank's Revolving Loan comprising such
Borrowing and 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 Revolving Loan hereunder and (D) the amount of any sum
received by the Agent from the Borrower with respect to such
Revolving Loans hereunder and each Bank's Ratable Portion
thereof.
(iii) The entries made in the Register in respect of the
Revolving Loans shall be conclusive and binding for all purposes,
absent manifest error.
(c) Repayment of Revolving Loans. (i) The Borrower shall
repay the outstanding principal amount of the Revolving Loans
(together with all accrued but unpaid interest thereon) in full
on the Revolving Credit Commitment Termination Date. Within the
limits of each Bank's Available Revolving Credit Commitment,
prior to the Revolving Credit Commitment Termination Date,
amounts borrowed under Section 3.1(a) and repaid may be
reborrowed under Section 3.1(a), subject to Section 3.2(c) below.
(ii) The Borrower shall indemnify the Banks pursuant to
Section 12.4(c) in the event that any repayment shall be made on
a day other than the last day of an Interest Period for the Loan
or Loans being prepaid.
3.2. Making the Revolving Loans. (a) Each Revolving Loan
Borrowing shall be made upon receipt of a Notice of Borrowing,
given by the Borrower to the Agent not later than 11:00 A.M. (New
York City time) on the fifth Business Day prior to the date of
the proposed Revolving Loan Borrowing.
(b) The Agent shall give to each Bank prompt notice of
its receipt of a Notice of Borrowing in respect of Revolving
Loans and, upon its determination thereof, notice of the
applicable interest rate under Section 5.3(b). Each Bank shall,
before 11:00 A.M. (New York City time) on the date of the
proposed Revolving Loan Borrowing, make available for the account
of its Lending Office to the Agent at its address referred to in
Section 12.2, in immediately available funds, such Bank's Ratable
Portion of such proposed Revolving Loan Borrowing. After the
Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article VI, the Agent will
make such funds available to the Borrower at the Agent's
aforesaid address.
(c) Each Revolving Loan Borrowing pursuant to this
Section 3.2 shall be in an aggregate amount of not less than
$10,000,000 or an integral multiple of $5,000,000 in excess
thereof (or such lesser amount as may be necessary to draw down
the full amount of the Available Revolving Credit Commitments).
The maximum aggregate number of Interest Periods that may be
outstanding in respect of Revolving Loans at any one time is six
(6). The maximum aggregate number of Revolving Loan Borrowings
comprised of Loans having an Interest Period of one (1) month
duration that may be made during any 12 month period (commencing
with the Agreement Date) is four (4).
(d) Each Notice of Borrowing pursuant to this Section 3.2
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
VI, 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 any Revolving Loan
to be made by such Bank as part of such proposed Revolving Loan
Borrowing when such Revolving 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 Agent by such Bank shall be
conclusive and binding, absent manifest error.
(e) Unless the Agent shall have received notice from a
Bank prior to the date of any proposed Revolving Loan Borrowing
pursuant to this Section 3.2 that such Bank will not make
available to the Agent such Bank's Ratable Portion of such
Revolving Loan Borrowing, the Agent may assume that such Bank has
made such Ratable Portion available to the Agent on the date of
such Revolving Loan Borrowing in accordance with this Section 3.2
and the 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 Agent and the Agent has so made
available such amount, such Bank and the Borrower severally agree
to repay to the 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 Agent, at (i) in the case of the
Borrower, the interest rate applicable at the time to the
Revolving Loan comprising such Revolving Loan Borrowing and (ii)
in the case of such Bank, the Federal Funds Rate. If such Bank
shall repay to the Agent such corresponding amount, such amount
so repaid shall constitute such Bank's Revolving Loan as part of
such Borrowing for purposes of this Agreement. If the Borrower
shall repay to the 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 Revolving Loan to
be made by it as part of any Revolving Loan Borrowing pursuant to
this Section 3.2 shall not relieve any other Bank of its
obligation, if any, hereunder to make its Revolving Loan on the
date of such Borrowing, but no Bank shall be responsible for the
failure of any other Bank to make the Revolving Loan to be made
by such other Bank on the date of any such Revolving Loan
Borrowing.
3.3. Termination/Reduction of the Revolving Credit
Commitments.
(a) Optional Reductions. The Borrower shall have the
right, upon at least fifteen Business Days' prior notice to the
Agent, to terminate in whole or permanently reduce ratably in
part the unused portions of the respective Revolving Credit
Commitments of the Banks; provided, however, that each partial
reduction shall be in the aggregate amount of not less than
$10,000,000 or an integral multiple of $2,000,000 (or such other
lesser amount as may be necessary to reduce to zero the amount of
the Revolving Credit Commitments) in excess thereof; provided,
further, that no such termination or reduction of the Revolving
Credit Commitments shall be permitted if, after giving effect
thereto and to any prepayments of the Loans made on the effective
date thereof, the Outstanding Revolving Extensions of Credit of
all the Bank's would exceed the aggregate amount of the Revolving
Credit Commitments or the Outstanding Revolving Extensions of
Credit of any Bank would exceed such Bank's Revolving Credit
Commitment. Once canceled pursuant hereto, no such canceled
portion of the Revolving Credit Commitments may be reinstated.
(b) Payment of Cancellation and Commitment Fees. (i)
Simultaneously with any termination, reduction or cancellation of
the Revolving Credit Commitment pursuant to this Section 3.3, the
Borrower shall pay to the Agent for the account of each Bank the
applicable Commitment Fee, if any, on the amount of the Revolving
Credit Commitments so terminated, reduced or cancelled and owed
to such Bank through the date of such termination or reduction.
(ii) If any such termination or reduction of the
Revolving Credit Commitments occurs during the period from
the Agreement Date through the second anniversary thereof,
then the Borrower shall also pay to the Agent for the
account of each Bank a cancellation fee equal to 1/4 of 1% on
the amount of the Revolving Credit Commitments so terminated
or reduced.
3.4. Extension of Revolving Credit Commitment Termination
Date. (a) On or before the third anniversary of the Agreement
Date, the Borrower may request that the Revolving Credit
Commitment Termination Date be extended for an additional one
year period by submitting a request in writing to the Agent;
provided, however, that the Borrower may not submit in total more
than two (2) such requests for an extension of the Revolving
Credit Commitment Termination Date. The Agent shall promptly
inform the Banks of such request. Each Bank shall then
determine, in its sole discretion, whether the Revolving Credit
Commitment Termination Date will be extended as to its Revolving
Loans and/or Working Capital Loans, as the case may be, and such
Bank shall inform the Agent of its decision within 20 days of
being informed of the Borrower's request. Failure by any Bank to
so inform the Agent shall be deemed to constitute non-approval by
such Bank of the request for extension. The Agent shall inform
the Borrower within three months of the time when the Borrower's
request was received whether its request for an extension of the
Revolving Credit Commitment Termination Date has been approved
and by which Banks. If all the Banks consent in writing, the
then applicable Revolving Loan Commitment Termination Date shall
be extended for one year effective as of the first day that all
of the Banks have so consented in writing.
(b) Extension Fee. Upon approval of each extension of
the Revolving Credit Commitment Termination Date in accordance
with the terms hereof, the Borrower shall pay to the Agent for
the account of each Bank that has approved the extension of the
Revolving Credit Commitment Termination Date a fee equal to 1/8%
of each such Bank's Outstanding Revolving Extensions of Credit.
(c) Non-Extending Banks. If not all the Banks consent
to such an extension pursuant to this Section 3.4 (the Banks so
consenting in writing being the "Consenting Banks" and any Bank
not so consenting being a "Non-Consenting Bank"), the Borrower
may require such Non-Consenting Bank to assign, to one or more
Consenting Banks or to any other assignee which meets the
requirements of clauses (A) or (B) of Section 12.7(a), all of
such Non-Consenting Bank's Revolving Credit Commitment and, if
applicable, Working Capital Loan Commitment and obligations in
respect thereof under this Agreement by delivering to the Agent a
Notice of Assignment and Acceptance, which shall have effect as
provided in Section 12.7(c), and the Revolving Credit Notes
and/or Working Capital Notes held by such Non-Consenting Bank;
provided, however, that (A) any assignee of the Commitments and
obligations of such Non-Consenting Bank shall have consented and
shall have paid to such Non-Consenting Bank the aggregate
principal amount of, and any interest accrued and unpaid to the
date of the assignment on, the Note or Notes of such Non-
Consenting Bank being assigned , (B) the Borrower shall have paid
all accrued and unpaid fees owing to such Non-Consenting Bank in
respect of Revolving Loans, Working Capital Loans and/or Letter
of Credit Liabilities, as the case may be, under this Agreement
and the recording fee due pursuant to Section 12.7(a) and (C) the
Borrower shall have, at its own expense, executed and delivered
to the Agent new Revolving Credit Notes and/or Working Capital
Notes payable to the order of each assignee of such Non-
Consenting Bank, in the amount of each such assignee's Revolving
Credit Commitment and/or Working Capital Commitment, and dated
the date the assignment is effective.
ARTICLE IV
AMOUNT AND TERMS OF THE WORKING CAPITAL LOANS
4.1. The Working Capital Loans
(a) Commitment to Lend. On the terms and subject to
the conditions contained in this Agreement, each Working Capital
Bank severally agrees to make a portion of the credit otherwise
available to the Borrower under the Revolving Credit Commitments
(and in addition to the issuance of Letters of Credit provided by
Section 4.4) to make Working Capital Loans to the Borrower from
time to time on any Business Day during the Revolving Credit
Availability Period, each such Loan being part of a Working
Capital Loan Borrowing; provided, however, that in no event may
Working Capital Loans be borrowed hereunder if, after giving
effect thereto (x) the aggregate Outstanding Revolving Extensions
of Credit of any Bank at such time would exceed such Bank's
Revolving Credit Commitment or (y) the aggregate principal amount
of Working Capital Extensions of Credit made by any Working
Capital Bank then outstanding would exceed the Working Capital
Loan Commitment of such Working Capital Bank.
(b) Evidence of Debt. (i) Each Working Capital Bank
shall maintain in accordance with its usual practice an account
or accounts and shall receive from the Borrower a single Working
Capital Note payable to the order of such Working Capital Bank,
evidencing the Indebtedness to such Working Capital Bank
resulting from each Working Capital Loan made by such Working
Capital Bank to the Borrower from time to time, including the
amounts of principal and interest payable and paid to such
Working Capital Bank from time to time hereunder.
(ii) The Register maintained by the Working Capital Agent
pursuant to Section 12.7(g)(ii) shall include a "Working Capital
Loan control account" for each Working Capital Bank, in which
account shall be recorded (A) the date and amount of each Working
Capital Loan Borrowing hereunder, (B) the amount of each Working
Capital Bank's Working Capital Loan comprising such Borrowing and
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 Working Capital Bank with
respect to each such Working Capital Loan hereunder and (D) the
amount of any sum received by the Working Capital Agent from the
Borrower with respect to such Working Capital Loans hereunder and
each Working Capital Bank's Ratable Portion thereof.
(iii) The entries made in the Register in respect of the
Working Capital Loans shall be conclusive and binding for all
purposes, absent manifest error.
(c) Repayment of Working Capital Loans. (i) The Borrower
shall repay the outstanding principal amount of the Working
Capital Loans (together with all accrued but unpaid interest
thereon) in full on the Revolving Credit Commitment Termination
Date. Within the limits of each Working Capital Bank's Working
Capital Loan Commitment and Available Revolving Extensions of
Credit, prior to the Revolving Credit Commitment Termination
Date, amounts borrowed under Section 4.1(a) and repaid may be
reborrowed under Section 4.1(a), subject to Section 4.2(c) below.
(ii) The Borrower shall indemnify the Working Capital
Banks pursuant to Section 12.4(c) in the event that any repayment
shall be made on a day other than the last day of an Interest
Period for the Loan or Loans being prepaid.
4.2. Making the Working Capital Loans. (a) Each Working
Capital Loan Borrowing shall be made upon receipt of a Notice of
Borrowing, given by the Borrower to the Working Capital Agent not
later than 11:00 A.M. (New York City time) on the (i) third
Business Day prior to the date of the proposed Working Capital
Loan Borrowing in the case of Eurodollar Working Capital Loans or
(ii) the same Business Day of the proposed Working Capital Loan
Borrowing in the case of Alternate Base Rate Working Capital
Loans.
(b) The Working Capital Agent shall give to each Working
Capital Bank prompt notice of its receipt of a Notice of
Borrowing in respect of Working Capital Loans, the amount thereof
requested as Eurodollar Working Capital Loans and as Alternate
Base Rate Working Capital Loans, and, in the case of a requested
Eurodollar Working Capital Loan and upon the Working Capital
Agent's determination thereof, notice of the applicable interest
rate under Section 5.3(b). Each Working Capital Bank shall,
before 11:00 A.M. (New York City time) on the date of the
proposed Working Capital Loan Borrowing, make available for the
account of its Lending Office to the Working Capital Agent at its
address referred to in Section 12.2, in immediately available
funds, such Working Capital Bank's Ratable Portion of such
proposed Working Capital Loan Borrowing. After the Working
Capital Agent's receipt of such funds and upon fulfillment of the
applicable conditions set-forth in Article VI, the Agent will
make such funds available to the Borrower at the Working Capital
Agent's aforesaid address.
(c) Each Working Capital Loan Borrowing pursuant to this
Section 4.2 shall be in an aggregate amount of not less than (i)
$1,000,000 or an integral multiple of $1,000,000 in excess
thereof, in the case of Eurodollar Working Capital Loans, and
(ii) $100,000 or an integral multiple of $100,000 in excess
thereof, in the case of Alternate Base Rate Working Capital Loans
(or, in either case, such lesser amount as may be necessary to
draw down the full amount of the Working Capital Loan
Commitment). The maximum number of Interest Periods that may be
outstanding in respect of Eurodollar Working Capital Loans at any
one time is ten (10).
(d) Each Notice of Borrowing pursuant to this Section 4.2
shall be irrevocable and binding on the Borrower. The Borrower
shall indemnify each Working Capital Bank against any loss, cost
or expense incurred by such Working Capital 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 VI, including, without
limitation, any loss, cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired
by such Working Capital Bank to fund any Working Capital Loan to
be made by such Working Capital Bank as part of such proposed
Working Capital Loan Borrowing when such Working Capital 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
Working Capital Agent by such Working Capital Bank shall be
conclusive and binding, absent manifest error.
(e) Unless the Working Capital Agent shall have received
notice from a Working Capital Bank prior to the date of any
proposed Working Capital Loan Borrowing pursuant to this Section
4.2 that such Working Capital Bank will not make available to the
Working Capital Agent such Working Capital Bank's Ratable Portion
of such Working Capital Loan Borrowing, the Working Capital Agent
may assume that such Working Capital Bank has made such Ratable
Portion available to the Working Capital Agent on the date of
such Working Capital Loan Borrowing in accordance with this
Section 4.2 and the Working Capital 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 Working
Capital Bank shall not have so made such Ratable Portion
available to the Working Capital Agent and the Working Capital
Agent has so made available such amount, such Working Capital
Bank and the Borrower severally agree to repay to the Working
Capital 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 Working Capital Agent, at (i) in the case
of the Borrower, the interest rate applicable at the time to the
Working Capital Loan comprising such Working Capital Loan
Borrowing and (ii) in the case of such Working Capital Bank, the
Federal Funds Rate. If such Working Capital Bank shall repay to
the Working Capital Agent such corresponding amount, such amount
so repaid shall constitute such Working Capital Bank's Working
Capital Loan as part of such Borrowing for purposes of this
Agreement. If the Borrower shall repay to the Working Capital
Agent such corresponding amount, such payment shall not relieve
such Working Capital Bank of any obligation it may have to the
Borrower hereunder.
(f) The failure of any Working Capital Bank to make the
Working Capital Loan to be made by it as part of any Working
Capital Loan Borrowing pursuant to this Section 4.2 shall not
relieve any other Working Capital Bank of its obligation, if any,
hereunder to make its Working Capital Loan on the date of such
Borrowing, but no Working Capital Bank shall be responsible for
the failure of any other Working Capital Bank to make the Working
Capital Loan to be made by such other Working Capital Bank on the
date of any such Working Capital Loan Borrowing.
4.3. Termination/Reduction of the Working Capital Loan
Commitments. The Borrower shall have the right, upon at least
thirty days' prior notice to the Working Capital Agent, to
terminate in whole or permanently reduce ratably in part the
unused portions of the respective Working Capital Loan
Commitments of the Working Capital Banks; provided, however, that
(i) each partial reduction shall be in the aggregate amount of
not less than $5,000,000 or an integral multiple of $1,000,000
(or such other lesser amount as may be necessary to reduce to
zero the amount of the Working Capital Loan Commitments) in
excess thereof; (ii) the reduction or termination of the Working
Capital Loan Commitment pursuant hereto shall have no effect on
the Revolving Credit Commitments of the Working Capital Banks or
on the obligation of the Working Capital Banks to make Revolving
Loans; and (iii) no such termination or reduction of the Working
Capital Loan Commitments shall be permitted if, after giving
effect thereto and to any prepayments of the Loans made on the
effective date thereof, (x) the aggregate Outstanding Revolving
Extensions of Credit of any Bank would exceed such Bank's
Revolving Credit Commitment or (y) the Working Capital Extensions
of Credit of any Working Capital Bank then outstanding would
exceed such Working Capital Bank's Working Capital Loan
Commitment.
4.4. Letters of Credit. Subject to the terms and
conditions of this Agreement, the Revolving Credit Commitments of
the Working Capital Banks may be utilized, upon the request of
the Borrower, in addition to the Revolving Loans provided for by
Section 3.1 and the Working Capital Loans provided for by Section
4.1 hereof, by the issuance by an Issuing Bank of Letters of
Credit (collectively, the "Letters of Credit") for the account of
the Borrower or any of the Principal Subsidiaries (as specified
by the Borrower), provided that in no event shall (i) the
aggregate amount of the Working Capital Extensions of Credit
exceed the aggregate amount of the Working Capital Loan
Commitments as in effect from time to time, (ii) the principal
amount of any Letter of Credit to be issued exceed the aggregate
amount of the Available Revolving Credit Commitment of all
Working Capital Banks immediately prior to the issuance of such
Letter of Credit, (iii) any Letter of Credit be issued if, after
giving effect thereto, the aggregate Outstanding Revolving
Extensions of Credit of any Working Capital Bank at such time
would exceed such Working Capital Bank's Revolving Credit
Commitment, (iv) the outstanding aggregate amount of all Letter
of Credit Liabilities exceed $15,000,000 or (v) the expiration
date of any Letter of Credit extend beyond the earlier of six
months after the Revolving Credit Commitment Termination Date and
the date 12 months following the issuance of such Letter of
Credit (provided that if the expiration date of any Letter of
Credit extends beyond the Revolving Credit Commitment Termination
Date, the Borrower shall provide to the Working Capital Agent
cash collateral as security for the Letter of Credit Liabilities
in an amount of at least equal to the Letter of Credit
Liabilities under such Letter of Credit). The following
additional provisions shall apply to Letters of Credit:
(a) The Borrower shall give the Working Capital Agent
at least three Business Days' irrevocable prior notice (effective
upon receipt) specifying the Business Day (which shall be no
later than 30 days preceding the Revolving Credit Commitment
Termination Date) each Letter of Credit is to be issued, the
Issuing Bank in respect thereof and the account party or parties
therefor describing in reasonable detail the proposed terms of
such Letter of Credit (including the beneficiary thereof) and the
nature of the transactions or obligations proposed to be
supported thereby (including whether such Letter of Credit is to
be a commercial Letter of Credit or a standby Letter of Credit).
Upon receipt of any such notice, the Working Capital Agent shall
advise the Issuing Bank of the contents thereof.
(b) On each day during the period commencing with the
issuance by the Issuing Bank of any Letter of Credit and until
such Letter of Credit shall have expired or been terminated, the
Working Capital Loan Commitment of each Working Capital Bank
shall be deemed to be utilized for all purposes of this Agreement
in an amount equal to such Working Capital Bank's Ratable Portion
of the then undrawn face amount of such Letter of Credit. Each
Working Capital Bank (other than the Issuing Bank) agrees that,
upon the issuance of any Letter of Credit hereunder, it shall
automatically acquire a participation in the Issuing Bank's
liability under such Letter of Credit in an amount equal to such
Working Capital Bank's Ratable Portion of such liability, and
each Working Capital Bank (other than the Issuing Bank) thereby
shall absolutely, unconditionally and irrevocably assume, as
primary obligor and not as surety and shall be unconditionally
obligated to the Issuing Bank to pay and discharge when due, its
Ratable Portion of the Issuing Bank's liability under such Letter
of Credit.
(c) Upon receipt from the beneficiary of any Letter of
Credit of any demand for payment under such Letter of Credit, the
Issuing Bank shall promptly notify the Borrower (through the
Working Capital Agent) of the amount to be paid by the Issuing
Bank as a result of such demand and the date on which payment is
to be made by the Issuing Bank to such beneficiary in respect of
such demand. Notwithstanding the identity of the account party
of any Letter of Credit, the Borrower hereby unconditionally
agrees, as primary obligor and not merely as surety, to pay and
reimburse the Working Capital Agent for the account of the
Issuing Bank for the amount of each demand for payment under such
Letter of Credit that is in substantial compliance with the
provisions of such Letter of Credit at or prior to the date on
which payment is to be made by the Issuing Bank to the
beneficiary thereunder, without presentment, demand, protest or
other formalities of any kind.
(d) Forthwith upon its receipt of a notice referred to
in paragraph (c) of this Section, the Borrower shall advise the
Working Capital Agent whether or not the Borrower intends to
borrow hereunder to finance its obligation to reimburse the
Issuing Bank for the amount of the related demand for payment
and, if it does, submit a Notice of Borrowing as provided herein.
(e) Each Working Capital Bank (other than the Issuing
Bank) shall pay to the Working Capital Agent of the account for
the Issuing Bank in Dollars and in immediately available funds,
the amount of such Working Capital Bank's Ratable Portion of any
payment under a Letter of Credit upon notice by the Issuing Bank
(through the Working Capital Agent) to such Working Capital Bank
requesting such payment and specifying such amount. Each such
Working Capital Bank's obligation to make such payment to the
Working Capital Agent for account of the Issuing Bank under this
paragraph (e), and the Issuing Bank's right to receive the same,
shall be absolute and unconditional and shall not be affected by
any circumstance whatsoever, including, without limitation, the
failure of any other Working Capital Bank to make its payment
under this paragraph (e), the financial condition of the Borrower
(or any other account party), the existence of any Default or the
termination of the Working Capital Loan Commitments. Each such
payment to the Issuing Bank shall be made without any offset,
abatement, withholding or reduction whatsoever. If any Working
Capital Bank shall default in its obligation to make any such
payment to the Working Capital Agent or the Issuing Bank, for so
long as such default shall continue the Working Capital Agent may
at the request of the Issuing Bank withhold from any payments
received by the Working Capital Agent under this Agreement or any
Note for the account of such Working Capital Bank the amount so
in default and, to the extent so withheld, pay the same to the
Issuing Bank in satisfaction of such defaulted obligation.
(f) Upon the making of each payment by a Working
Capital Bank to the Issuing Bank pursuant to paragraph (e) above
in respect of any Letter of Credit, such Working Capital Bank
shall, automatically and without any further action on the part
of the Working Capital Agent, the Issuing Bank or such Working
Capital Bank, acquire (i) a participation in an amount equal to
such payment in the Reimbursement Obligation owing to the Issuing
Bank by the Borrower hereunder and under the Letter of Credit
Documents relating to such Letter of Credit and (ii) a
participation equal to such Bank's Ratable Portion in any
interest or other amounts payable by the Borrower hereunder and
under such Letter of Credit Documents in respect of such
Reimbursement Obligation (other than the commissions, charges,
costs and expenses payable to the Issuing Bank pursuant to
paragraph (g) of this Section). Upon receipt by the Issuing Bank
from or for the account of the Borrower of any payment in respect
of any Reimbursement Obligation or any such interest or other
amount (including by way of setoff or application of proceeds of
any collateral security), the Issuing Bank shall promptly pay to
the Working Capital Agent for the account of each Working Capital
Bank entitled thereto such Working Capital Bank's Ratable Portion
of such payment, each such payment by the Issuing Bank to be made
in the same money and funds in which received by the Issuing
Bank. In the event any payment received by the Issuing Bank and
so paid to the Working Capital Banks hereunder is rescinded or
must otherwise be returned by the Issuing Bank, each Working
Capital Bank shall, upon the request of the Issuing Bank (through
the Working Capital Agent), repay to the Issuing Bank (through
the Working Capital Agent) the amount of such payment paid to
such Working Capital Bank, with interest at the rate specified in
paragraph (j) of this Section.
(g) The Borrower shall pay to the Working Capital
Agent for account of each Working Capital Bank (ratably in
accordance with their respective Ratable Portions of the Working
Capital Loan Commitments) a Letter of Credit fee in respect of
each Letter of Credit in an amount equal to a percentage (which
shall be equal to the Applicable Margin in effect at that time)
of the daily average undrawn face amount of such Letter of Credit
for the period from and including the date of issuance of such
Letter of Credit (x) in the case of the Letter of Credit that
expires in accordance with its terms, to and including such
expiration date and (y) in the case of a Letter of Credit that is
drawn in full or is otherwise terminated other than on the stated
expiration date of such Letter of Credit, to but excluding the
date such Letter of Credit is drawn in full or is terminated
(such fee to be non-refundable, to be paid in arrears on the
first Business Day of each calendar quarter and on the Revolving
Credit Commitment Termination Date and to be calculated for any
day after giving effect to any payments made under such Letter of
Credit on such day). In addition, the Borrower shall pay to the
Working Capital Agent for account of the Issuing Bank a fronting
fee in respect of each Letter of Credit in an amount equal to 1/4
of 1% per annum of the daily average undrawn face amount of such
Letter of Credit for the period from and including the date of
issuance of such Letter of Credit (i) in the case of a Letter of
Credit that expires in accordance with its terms, to and
including such expiration date and (ii) in the case of a Letter
of Credit that is drawn in full or is otherwise terminated other
than on the stated expiration date of such Letter of Credit, to
but excluding the date such Letter of Credit is drawn in full or
is terminated (such fee to be non-refundable, to be paid in
arrears on the first Business Day of each calendar quarter and on
the Revolving Credit Commitment Termination Date and to be
calculated for any day after giving effect to any payments made
under such Letter of Credit on such day) plus all commissions,
charges, costs and expenses in the amounts customarily charged by
the Issuing Bank from time to time in like circumstances with
respect to the issuance of each Letter of Credit and drawings and
other transactions.
(h) Promptly following the end of each calendar
quarter, the Issuing Bank shall deliver (through the Working
Capital Agent) to each Working Capital Bank and the Borrower a
notice describing the aggregate amount of all Letters of Credit
outstanding at the end of such quarter. Upon the request of any
Working Capital Bank from time to time, the Issuing Bank shall
deliver any other information reasonably requested by such
Working Capital Bank with respect to each Letter of Credit then
outstanding.
(i) The issuance by the Issuing Bank of each Letter of
Credit shall, in addition to the conditions precedent set forth
herein, be subject to the conditions precedent that (i) such
Letter of Credit shall be in such form, contain such terms and
support such transactions as shall be satisfactory to the Issuing
Bank consistent with its then current practices and procedures
with respect to the Letters of Credit of the same type and (ii)
the Borrower shall have executed and delivered such applications,
agreements and other instruments relating to such Letter of
Credit as the Issuing Bank shall have reasonably requested
consistent with its then current practices and procedures with
respect to Letters of Credit of the same type, provided that in
the event of any conflict between any such application agreement
or other instrument and the provisions of this Agreement, the
provisions of this Agreement shall control.
(j) To the extent that any Working Capital Bank shall
fail to pay any amount required to be paid pursuant to paragraph
(e) or (f) of this Section on the due date therefor, such Working
Capital Bank shall pay interest to the Issuing Bank (through the
Working Capital Agent) on such amount from and including such due
date to but excluding the date such payment is made at a rate per
annum equal to the Federal Funds Rate.
(k) The issuance by the Issuing Bank of any
modification or supplement to any Letter of Credit hereunder
shall be subject to the same conditions applicable under this
Section to the issuance of new Letters of Credit, and no such
modification or supplement shall be issued hereunder unless
either (i) the respective Letter of Credit affected thereby would
have complied with such conditions had it originally been issued
hereunder in such modified or supplemented form or (ii) each
Working Capital Bank shall have consented thereto.
The Borrower hereby indemnifies and holds harmless the Issuing
Bank, each Working Capital Bank and the Working Capital Agent
from and against any and all claims and damages, losses,
liabilities, costs or expenses that such Working Capital Bank or
the Working Capital Agent may incur (or that may be claimed
against such Working Capital Bank or the Working Capital Agent by
any Person whatsoever) by reason of or in connection with the
execution and deliver or transfer of or payment or refusal to pay
by the Issuing Bank under any Letter of Credit.
4.5. Obligations Absolute. The Borrower's obligations
under Section 4.4 shall be absolute and unconditional under any
and all circumstances and irrespective of any set-off,
counterclaim or defense to payment which the Borrower may have or
have had against the Issuing Lender or any beneficiary of a
Letter of Credit. The Borrower also agrees with the Issuing
Lender that the Issuing Lender shall not be responsible for, and
the Borrower's Reimbursement Obligations under Section 4.4 shall
not be affected by, among other things, the validity or
genuineness of documents or of any endorsements thereon, even
though such documents shall in fact prove to be invalid,
fraudulent or forged, or any dispute between or among the
Borrower and any beneficiary of any Letter Credit or any other
party to which such Letter of Credit may be transferred or any
claims whatsoever of the Borrower against any beneficiary of such
Letter of Credit or any such transferee. The Issuing Lender
shall not be liable for any error, omission, interruption or
delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Letter of
Credit issued by it, except for errors or omissions caused by the
Issuing Lender's gross negligence or willful misconduct. The
Borrower agrees that any action taken or omitted by the Issuing
Lender under or in connection with any Letter of Credit issued by
the Issuing Lender or the relate drafts or documents, if done in
the absence of gross negligence or willful misconduct and in
accordance with the standards of care specified in the Uniform
Commercial Code of the State of New York, shall be binding on the
Borrower and shall not result in any liability of the Issuing
Lender to the Borrower.
ARTICLE V
INTEREST, FEES, ETC.
5.1. Interest Period Election. (a) Subject to the
adjustment of any Interest Periods in connection with a
Consolidation, the applicable Interest Period for all Term Loans
shall at all times be six months. With respect to any other
Eurodollar Loans, after the election of an initial Interest
Period pursuant to a Notice of Borrowing, the Borrower shall
elect the Interest Period that shall apply to each such
Eurodollar Loan after the end of the then current Interest Period
with respect to such Loan; provided that all Loans related to the
same Borrowing shall have the same Interest Period. Each such
election shall be in substantially the form of Exhibit I hereto
(a "Notice of Interest Period") and shall be made by giving (x)
in the case of Revolving Loans, the Agent and (y) in the case of
Eurodollar Working Capital Loans, the Working Capital Agent, at
least five (5) Business Days' prior written notice thereof
specifying the Interest Period being elected. The Agent or the
Working Capital Agent, as the case may be, shall promptly notify
each Bank or Working Capital Bank, as the case may be, 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 5.1, the Agent or the Working Capital Agent, as the
case may be, does not receive a Notice of Interest Period from
the Borrower, or a Default shall then exist and be continuing,
then the Agent or the Working Capital Agent, as the case may be,
shall inform the Banks or the Working Capital Banks, as the case
may be, of the same and, upon the expiration of the Interest
Period therefor, the Interest Period applicable to such 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 Agent or the Working Capital Agent, as the case
may be, may determine, in the event a 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.
(b) Notwithstanding anything else herein contained, if
requested by the Borrower in its Notice of Borrowing or in its
Notice of Interest Period, the Banks or the Working Capital
Banks, as the case may be, may, in their sole discretion, make
Revolving Loans or Eurodollar Working Capital Loans with an
applicable Interest Period of 12 months; provided that no such
request shall be granted unless all of the Banks or the Working
Capital Banks, as the case may be, so agree.
5.2. Interest Rate. (a) The Borrower shall pay interest
on the unpaid principal amount of each Loan from the date of the
making thereof until the principal amount thereof shall be paid
in full at a rate per annum equal at all times to (i) in respect
of Eurodollar Loans, and during the applicable Interest Period
for each such Loan, the sum of the Eurodollar Rate for such
Interest Period plus the Applicable Margin (subject to clause (b)
below), payable in arrears (A) on the last day of such Interest
Period or (B) in the case of an Interest Period having a duration
of 12 months, (x) on the day that is 6 months after the day such
Borrowing is made and (y) on the last day of such Interest Period
and (ii) in respect of Alternate Base Rate Working Capital Loans,
the Alternate Base Rate as in effect from time to time plus the
Applicable Margin (subject to clause (b) below) payable quarterly
in arrears on the first Business Day of each October, January,
April and July.
(b) 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 (i) the Eurodollar Rate or Alternate Base
Rate, as the case may be, applicable to such Loan (as determined
in accordance with this Agreement) plus (ii) the Applicable
Margin plus (iii) 1% per annum, payable on demand, and 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 in the case of any interest, fee or other amount
payable in respect of (A) Eurodollar Loans, to the Eurodollar
Rate in effect at such time, for a period and for a Dollar amount
determined by the Agent or the Working Capital Agent, as the case
may be, plus 2% per annum, payable on demand, and (B) Alternate
Base Rate Working Capital Loans, the Alternate Base Rate in
effect at such time plus 2% per annum, payable on demand.
5.3. Interest Rate Determination and Protection. (a) If
the 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 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 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) 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 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 Borrower shall
have the right to prepay any such Loans (without premium or
penalty) and with respect to any such Loans that are not so
prepaid, the Agent shall (after consultation with the 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 and the cost to each of
the Banks of funding their Ratable Portion of the Loans. In the
event that the condition referred to in this Section 5.3(a) 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.
(b) The Agent shall give prompt notice to the Borrower
and the Banks of the applicable interest rate determined by the
Agent for purposes of Section 5.2(a) or (b).
(c) If the Majority Banks notify the 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 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 Loans hereunder from the Banks shall be suspended during the
continuation of such circumstances. In any event, during the
thirty (30) days following the giving of such notice, the
Borrower, the 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 Loans during such
Interest Period. If within such thirty (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 Agent and the Banks fail to agree on such an alternative
interest rate or (as the case may be) alternative basis within
such thirty (30) day period and such circumstances are continuing
at the end of such thirty (30) day period, then the Agent, with
the agreement of each Bank shall set an interest period and
interest rate representing the cost of funding of the Banks in
Dollars of their Ratable Portion of such Loans plus the
Applicable Margin. If the circumstance shall continue at the end
of such interest period, the procedure in this Section 5.3(c)
shall be repeated. If the Borrower shall not agree with such
rate then the Borrower may give not less than fifteen (15)
Business Days' irrevocable notice of prepayment to the Agent, in
which case the aggregate Commitments of the Banks shall thereupon
be canceled and, if the Loans are outstanding, the Borrower shall
prepay (without premium or penalty) Loans on the first Business
Day after such period together with accrued interest thereon at
the applicable rate plus the Applicable Margin.
5.4. Prepayments. (a) Optional Prepayments.
(i) Eurodollar Loans. Subject to the provisions of this
Section 5.4, the Borrower may prepay Eurodollar Loans on the last
day of any Interest Period with respect to such Loans (or, with
respect to a Loan as to which the applicable Interest Period is
12 months, on any day on which an interest payment is due
pursuant to Section 5.2(a); provided that if such day is not the
last day of the Interest Period in respect of such Loan, the
Borrower shall continue to be liable for any costs or expenses
pursuant to Section 12.4(c)) as follows:
(A) Subject to clause (B) below, the Borrower
may, upon at least (1) fifteen Business Days' prior notice
to the Agent, in the case of a prepayment of Term Loans or
Revolving Loans, and (2) three Business Days' prior notice
to the Working Capital Agent, in the case of a prepayment of
Eurodollar Working Capital Loans, in each case (which shall
be irrevocable) stating the proposed date and aggregate
principal amount of the prepayment, prepay without premium
or penalty the outstanding principal amount of any Term
Loans or Revolving Loans, in whole or in part, together with
accrued interest to the date of such prepayment on the
principal amount prepaid.
(B) The Borrower may, upon at least three
Business Days' prior notice to the Working Capital Agent
(which shall be irrevocable) stating the proposed date and
aggregate principal amount of the prepayment, prepay without
premium or penalty the outstanding principal amount of any
Eurodollar Working Capital Loans in whole or in part,
together with accrued interest to the date of such
prepayment on the principal amount prepaid.
(C) Notwithstanding the foregoing, if any
principal amount of any Term Loan is prepaid by the Borrower
during the period from the Agreement Date through the second
anniversary thereof, then such prepayment of the Term Loans
made during such period shall be subject to a fee of 1/4 of
1% on the amount being prepaid.
(D) Term Loans prepaid pursuant to this Agreement
may not be reborrowed.
(ii) Allocation of Prepayments. Prepayments of any
type of Loan made at the Borrower's option may be allocated (A)
towards payment of the next payment due, (B) pro-rata among all
remaining maturities or (C) towards the final payment due, in any
case with respect to such Loans at the option of the Borrower.
(b) Mandatory Prepayment. The Borrower shall prepay Term
Loans, Revolving Loans, Working Capital Loans and/or Letter of
Credit Liabilities to the extent necessary to ensure that the
aggregate principal amount of all (i) Term Loans outstanding will
not at any time exceed the aggregate of the Term Loan Commitments
of the Banks, (ii) Revolving Loans, Working Capital Loans and
Letter of Credit Liabilities outstanding will not at any time
exceed the Revolving Credit Commitments of the Banks and (iii)
Working Capital Loans and Letter of Credit Liabilities
outstanding will not at any time exceed the Working Capital Loan
Commitments of the Working Capital Banks. Partial prepayments
pursuant to this subsection (b) shall be applied pro rata to all
Term Loans, Revolving Loans, Working Capital Loans or Letter of
Credit Liabilities, as the case may be, then outstanding.
(c) Indemnification of Banks. The Borrower shall
indemnify the Banks pursuant to Section 12.4(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. In
addition to any amounts due by the Borrower to the Banks pursuant
to Section 12.4(c), the Borrower shall pay to the Agent and/or
the Working Capital Agent, as the case may be, for the account of
the Banks or the Working Capital Banks, as the case may be, an
additional fee of 1/4% per annum on the amount so prepaid for the
remainder of the Interest Period.
(d) Amount and Allocation of Prepayment. (i) Each
partial prepayment of Term Loans and Revolving Loans permitted
under this Section 5.4 shall be in an aggregate amount of not
less than $10,000,000 or integral multiples of $5,000,000 in
excess thereof. (ii) Each partial prepayment of Working Capital
Loans permitted under this Section 5.4 shall be in an aggregate
amount of not less than $5,000,0000 or integral multiples of
$1,000,000 in excess thereof.
5.5. Fees. (a) Commitment Fees. (i) Term Loan
Commitment. The Borrower will pay on the Term Loan Commitment
Termination Date to the Agent for the account of each Bank in
arrears a fee accruing from the Agreement Date until the Term
Loan Commitment Termination Date, on such Bank's aggregate daily
unused and uncancelled Term Loan Commitment as in effect from
time to time at the rate of 1/8% per annum.
(ii) Revolving Credit Commitment. The Borrower will
pay to the Agent for the account of each Bank quarterly in
arrears a fee accruing from the Agreement Date until the
Revolving Credit Commitment Termination Date on such Bank's
aggregate daily unused and uncancelled Revolving Credit
Commitment, as in effect from time to time, at the rate of 50% of
the Applicable Margin for each such quarter (such rate to be re-
determined on the occasion of each change in the Applicable
Margin).
(b) Arrangement Fee. The Borrower will pay to the
Arranger a fee (the "Arrangement Fee"), in an amount separately
agreed. Such fee shall be payable with five (5) Business Days of
the Agreement Date.
(c) Agency Fee. The Borrower will pay to the Agent an
annual fee (the "Agency Fee") in an amount separately agreed.
Such fee shall be paid (i) within seven days of the Agreement
Date, (ii) each year thereafter on the anniversary of the
Agreement Date, and (iii) on termination of this Agreement in an
amount equal to the accrued and unpaid portion of such fee.
(d) Working Capital Agency Fee. The Borrower will pay
to the Working Capital Agent, for its own account, an annual fee
(the "Working Capital Agency Fee") in accordance with a separate
undertaking between the Working Capital Agent and the Borrower.
such fee shall be paid (i) within seven days of the Agreement
Date, (ii) each year thereafter on the anniversary of the
Agreement Date, and (iii) on termination of this Agreement in an
amount equal to the accrued and unpaid portion of such fee.
5.6. 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 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 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 Agent pursuant to the
provisions of this Section 5.6(a) shall be conclusive and binding
for all purposes, absent manifest error.
(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 Loan during which such Bank was so
required to maintain such reserves, deliver to the Borrower and
the 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 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 5.6(b), and (ii) the Borrower shall promptly upon
receipt of any such notice, pay to the Agent for the account of
such Bank, additional interest on the unpaid principal amount of
each 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 Agent pursuant to
the provisions of this Section 5.6(b) shall be conclusive and
binding for all purposes, absent manifest error.
(c) The payments required under Sections 5.6(a) and
(b) are in addition to any other payments and indemnities
required under this Agreement.
5.7. 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 Agent, (i) the
obligation of such Bank to make Loans shall be suspended until
such Bank through the 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 5.7.
5.8. 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 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 Agent a notice stating the
reduction in the rate of return such Bank will in the future
suffer as a result of its 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 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 5.8
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 5.8 are in addition to any other
payments and indemnities required hereunder.
5.9. 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 (i)
in respect of Term Loans, Revolving Loans and Letter of Credit
Liabilities, the Agent at its address referred to in Section 12.2
and (ii) in respect of Working Capital Loans, the Working Capital
Agent, at its address referred to in Section 12.2, in each case
in immediately available funds without set-off or counterclaim.
The Agent or the Working Capital Agent, as the case may be, 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 5.6, 5.7 or 5.8) to the
Banks or Working Capital Banks, as the case may be, 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 Agent or Working Capital Agent, as the
case may be, 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 5.9(b)(ii) and
(iii), payments due to the Agent, the Working Capital Agent, the
Documentation Agent, the Arranger 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 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 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 Agent or Working Capital
Agent, as the case may be, an official receipt or other
documentation satisfactory to the Agent or Working Capital
Agent, as the case may be, evidencing such payment to such
authority; and
(C) pay to the Agent or Working Capital Agent, as the
case may be, for the account of the Banks or Working Capital
Banks, as the case may be, 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, the Agent and the
Working Capital Agent for the full amount of Taxes or Other Taxes
paid by such Bank, the Agent or Working Capital 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, the Agent or the Working Capital 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
Agent or the Working Capital Agent, for the account of the
respective Banks, the required receipts or other required
documentary evidence, the Borrower shall indemnify the Agent, the
Working Capital Agent and the Banks for any incremental Taxes or
Other Taxes, penalties, interest or expenses that may become
payable by the Agent, the Working Capital 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 Agent, the Working Capital Agent or any Bank or franchise
Taxes imposed on the Agent, the Working Capital Agent or any
Bank, but in each case only to the extent imposed by the
jurisdiction under the laws of which the Agent, the Working
Capital Agent or such Bank is organized or doing business (other
than as a result of the transactions contemplated by the Loan
Documents or the Agent's, the Working Capital 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 Agent's, the Working Capital
Agent's 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 5.9(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 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 5.9(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 5.9(b) shall include an amount necessary
to hold the Agent, the Working Capital 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 12.7, on or before the date
that the Agent records the Notice of the Assignment and
Acceptance by which it becomes a Bank), deliver to the Borrower
and the 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 Agent an IRS Form 1001 or 4224 under the preceding sentence
further undertakes to deliver to the 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 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 (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 (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 of the Commitment Fee. All computations of
the Commitment Fee and all computations of interest based on the
Eurodollar Rate shall be made by the Agent or the Working Capital
Agent (as the case may be) on the basis of a year of 360 days,
and all computations of other fees shall be made by the Agent or
the Working Capital Agent (as the case may be) 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. All computations of the Commitment Fee in
respect of any type of Loan shall be based on the aggregate daily
unused Term Loan Commitment or Revolving Credit Commitment (as
the case may be) of each Bank. Each determination by the Agent
or Working Capital Agent (as the case may be) 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 of Non-Payment; Presumption of Payment. Unless
the Agent or Working Capital Agent (as the case may be) shall
have received notice from the Borrower prior to the date on which
any payment is due to the Banks or the Working Capital Banks
hereunder that the Borrower will not make such payment in full,
the Agent or Working Capital Agent (as the case may be) may
assume that the Borrower has made such payment in full to the
Agent or Working Capital Agent (as the case may be) on such date
and the Agent or Working Capital Agent (as the case may be) may,
in reliance upon such assumption, cause to be distributed to each
Bank or Working Capital Bank (as the case may be) 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 Agent or Working Capital Agent (as the case may
be), each Bank or Working Capital Bank (as the case may be) shall
repay to the Agent or Working Capital Agent (as the case may be)
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 Agent or Working Capital Agent (as the case may
be), at the Federal Funds Rate.
5.10. Sharing of Payments, Etc. If any Bank shall obtain
any payment (whether voluntary, involuntary, through the exercise
of any right of set-off, or otherwise) on account of the Loans of
a certain type (i.e. Term Loans, Revolving Loans or Working
Capital Loans) made by it (other than pursuant to Section 5.6,
5.7, 5.8 or 5.9) 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 5.10 may, to the fullest extent
permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such participation as fully
as if such Bank were the direct creditor of the Borrower in the
amount of such participation.
ARTICLE VI
CONDITIONS OF LENDING
6.1. Conditions Precedent to the Making of the Initial Loans
and/or Initial Issuance of Letters of Credit. The making of the
initial Loans hereunder is subject to satisfaction of the
conditions precedent that:
(a) the Agent shall have received the following, in form and
substance satisfactory to the Agent, and in sufficient copies for
each Bank:
(i) Certified copies of (A) the resolutions of the
Board of Directors of each Loan Party approving each Loan
Document to which it is a party, and (B) 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 By-Laws 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 (A) Kirkland & Ellis,
special New York counsel to the Loan Parties, in
substantially the form of Exhibit J-1 hereto, (B) Robert
Wrobel, Vice President and Chief Legal Officer to the Loan
Parties, in substantially the form of Exhibit J-2 hereto,
(C) Watson, Farley & Williams, special New York counsel to
the Agent, in substantially the form of Exhibit J-3 hereto,
(D) Wikborg & Rein, special Norwegian counsel to the Agent,
in substantially the form of Exhibit J-4 hereto, (E)
Gorrissen & Federspiel, special Danish counsel to the Agent,
in substantially the form of Exhibit J-5 hereto, (F) Bird &
Bird, special English counsel to the Borrower in
substantially the form of Exhibit J-7, and (G) McCarter &
English, special New Jersey counsel to the Borrower, in
substantially the form of Exhibit J-6.
(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 duly executed Pledge Agreement in respect of
each Pledge Subsidiary (other than Dumex - Alpharma A/S a
Danish company), each of which shall be substantially in the
form of the pertinent exhibit attached hereto and duly
executed by the Shareholders of each such Pledge Subsidiary.
(ix) The Intercreditor Agreement, duly executed and
delivered by the Other Banks and the Credit Agreement
Parties (as defined in the Intercreditor Agreement) and all
parties thereto.
(b) On the date of such Loans, all Indebtedness (other
than Permitted Indebtedness) of the Parent Guarantor and its
Subsidiaries (including the Borrower) shall have been (or
shall simultaneously be) repaid and all commitments
thereunder canceled (including, without limitation, all
Indebtedness under the Summit Bank Facility, the Vanomycin
Facility and the Prior UBN Facility).
6.2. Conditions Precedent to the Making of Each Loan
and Issuance of Each Letter of Credit. The obligation of each
Bank to make any Loan, including the initial Loans, and to issue
any Letters of Credit, including the initial Letter of Credit,
shall be subject to the further conditions precedent that the
following statements shall be true on the date of the making of
such Loan or issuance of such Letter of Credit, 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 VII hereof and in Section 5 of the Parent Guaranty
(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.
(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 VII
REPRESENTATIONS AND WARRANTIES
To induce the Agent, the Working Capital Agent and Banks to
enter into this Agreement, the Borrower represents and warrants
to the Agent, the Working Capital Agent and the Banks as follows:
7.1. 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.
7.2. 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, in the case of any such required under
Applicable Law as in effect on the Agreement Date, are
listed on Schedule 7.2(a)(iv), (B) notices, filings or
registrations 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.
(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.
7.3. 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, 1993, which has not been
reflected in the financial statements delivered pursuant to
Section 8.8 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.
7.4. Financial Information. (a) The reports of the
Parent Guarantor on Form 10-K for the Fiscal Year ended December
31, 1997 and on Form 10-Q for the Fiscal Quarters ended March 31,
1998, June 30, 1998 and September 30, 1998, which have been
furnished to the 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 (subject,
in the case of such reports on Form 10-Q, to changes resulting
from normal year-end adjustments).
(b) Since December 31, 1997 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 September 30, 1998 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.
7.5. 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.
7.6. 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.
7.7. 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.
7.8. 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.
7.9. 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.
7.10. Insurance. All policies of insurance of any kind
or nature owned by the Borrower and its Subsidiaries are
maintained with reputable insurers which to the Borrower's best
knowledge are financially sound. The Borrower currently maintains
insurance with respect to its Properties and business and causes
its Subsidiaries 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.
7.11. 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.
7.12. Regulatory Matters. Except as disclosed in the
Parent Guarantor's Form 10-K for the fiscal year ending December
31, 1997 or its Report on Form 10-Q for the fiscal quarter ending
September 30, 1998, 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.
7.13. 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.
7.14. 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.
7.15. Trademarks, Copyrights, Etc. The Borrower and
each of its Subsidiaries own or have the rights to use such
trademarks, service marks, trade names, copyrights, 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.
7.16. 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 Agent, the Working Capital Agent or the Banks in
connection with the Loan Documents and all financial and other
information furnished to the Agent or the Working Capital 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.
7.17. [Intentionally omitted.]
7.18. 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 or another
Subsidiary of the Parent Guarantor, (b) 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 and dividends on,
all capital stock indicated on such Schedule as owned by the
Parent Guarantor or such Subsidiary and (c) such capital stock
has been duly authorized and issued and is fully paid and
nonassessable.
7.19. Principal Subsidiaries. Schedule 5(l) to the
Parent Guaranty sets forth all of the Principal Subsidiaries in
existence as of the Agreement Date.
7.20. Year 2000 Issue. The Borrower and its
Subsidiaries have reviewed, and are continuing to review, the
effect of the Year 2000 Issue on the computer software, hardware
and firmware systems and equipment containing embedded microchips
owned or operated by or for the Borrower and its Subsidiaries or
used or relied upon in the conduct of their business (including
systems and equipment supplied by others or with which such
computer systems of the Borrower and its Subsidiaries interface).
The information contained in the Parent Guarantor's Form 10-Q for
the Fiscal Quarter ended September 30, 1998 as to the costs to
the Borrower and its Subsidiaries of any reprogramming required
as a result of the Year 2000 Issue to permit the proper
functioning of such systems and equipment and the proper
processing of data, and the testing of such reprogramming, and of
the reasonably foreseeable consequences of the Year 2000 Issue to
the Borrower or any of its Subsidiaries (including reprogramming
errors and the failure of systems or equipment supplied by
others) is complete and correct in all material respects as of
such date and such costs are not reasonably expected to result in
a Default or Event of Default or to have a material adverse
effect on the business, assets, operations, prospects or
condition (financial or otherwise) of the Borrower or any of its
Subsidiaries.
7.21. Pari Passu Obligations. The obligations of the
Borrower under this Agreement and the Notes do rank at least pari
passu in priority of payment with all other present unsecured
Indebtedness of the Borrower.
7.22. Corporate Headquarters. The Borrower maintains
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.
ARTICLE VIII
AFFIRMATIVE COVENANTS
As long as any of the Loans or any other amounts shall
remain unpaid or any Bank shall have any Commitment hereunder,
unless otherwise agreed by the written consent of the Majority
Banks:
8.1. Compliance with Laws, Etc. The Borrower shall
comply, and cause each of its Subsidiaries to comply, in all
material respects with all Applicable Law except such
non-compliance as would not have a Material Adverse Effect or
result in a Material Credit Agreement Change.
8.2. Payment of Taxes, Etc. The Borrower and any
consolidated, combined or unitary group which includes the
Borrower or any of its Subsidiaries shall pay and discharge, and
cause each Subsidiary of the Borrower to pay and discharge,
before the same shall become delinquent, all lawful claims,
Taxes, assessments and governmental charges or levies except
where contested in good faith, by proper proceedings, and where
adequate reserves therefor have been established on the books of
the Borrower or such Subsidiary in accordance with GAAP.
8.3. Maintenance of Insurance. The Borrower shall
maintain, and cause each of its Subsidiaries to maintain,
insurance with responsible and reputable insurance companies or
associations in such amounts and covering such risks as is
usually carried by companies engaged in similar businesses and
owning similar properties in the same general areas in which the
Borrower or such Subsidiary operates. The Borrower will furnish
to the Agent from time to time such information as may be
requested as to such insurance.
8.4. Preservation of Corporate Existence, Etc. The
Borrower shall preserve and maintain, and cause each of its
Subsidiaries to preserve and maintain, their respective corporate
existences; provided, that this Section 8.4 shall not apply at
any time with respect to the corporate existence of a Subsidiary
of the Borrower in any case where the Parent Guarantor's Board of
Directors determines in good faith that such termination of
corporate existence is in the best interests of the Parent
Guarantor, the Borrower and their respective Subsidiaries taken
as a whole and where noncompliance will not have a Materially
Adverse Effect on the Borrower and its Subsidiaries or any Loan
Document (other than a Loan Document delivered by a Subsidiary
that at such time is no longer a Principal Subsidiary, as
determined at such time); provided, further, that this Section
8.4 shall be without prejudice to the other provisions of this
Agreement and the Parent Guaranty.
8.5. Books and Access. The Borrower shall, and shall
cause each of its Subsidiaries to, keep proper books of record
and accounts in conformity with GAAP, and upon reasonable notice
and at such reasonable times during the usual business hours as
often as may be reasonably requested, permit representatives of
the Agent, at its own initiative or at the request of any Bank,
to make inspections of its Properties, to examine its books,
accounts and records and make copies and memoranda thereof and to
discuss its affairs and finances with its officers or directors
and independent public accountants.
8.6. Maintenance of Properties, Etc. The Borrower
shall maintain and preserve, and cause each of its Subsidiaries
to maintain and preserve, all of their respective Properties
which are used or useful in the conduct of its business in good
working order and condition and, from time to time make or cause
to be made all appropriate repairs, renewals and replacements,
except where the failure to do so would not have a Material
Adverse Effect.
8.7. Application of Proceeds. The Borrower shall use
the proceeds of the Loans (i) to refinance Indebtedness existing
at the date hereof of the Borrower under the Summit Bank
Facility, the Prior UBN Facility and the Vancomycin Facility
Agreements, and (ii) general corporate purposes.
8.8. Financial Statements. The Borrower shall furnish,
or shall cause to be furnished, to the Agent (with sufficient
copies to the Banks):
(a) the financial statements and reports required by
Sections 6(g) and (h) of the Parent Guaranty.
(b) together with each delivery of financial statements of
the Parent Guarantor and its Subsidiaries pursuant to clauses (a)
above, and commencing with the Fiscal Quarter ending September
30, 1998, a certificate signed by a Responsible Financial Officer
of the Borrower stating that (i) such officer is familiar with
both this Agreement and the business and financial condition of
the Borrower, (ii) that the representations and warranties set
forth in Article VII hereof are true and correct in all material
respects as though such representations and warranties had been
made by the Borrower on and as of the date thereof; and (iii) no
Event of Default or Default has occurred and is continuing or if
an Event of Default or Default has occurred and is continuing a
statement as to the nature thereof, and whether or not the same
shall have been cured.
8.9. Reporting Requirements. The Borrower shall
furnish to the Agent for distribution to the Banks:
(a) from time to time as the Agent may reasonably request,
copies of such statements, lists of Property, accounts, reports
or information prepared by or for the Borrower or within the
Borrower's control. In addition, the Borrower shall furnish to
the Agent for distribution to the Banks, within five (5) days
after delivery thereof to the Borrower's Board of Directors,
copies of budgets and forecasts prepared by or for the Borrower
or within the Borrower's control;
(b) promptly and in any event within thirty (30) days after
the Borrower, any of its Subsidiaries or any ERISA Affiliate
knows that any ERISA Event has occurred (other than a Reportable
Event for which notice to the PBGC is waived), a written
statement of the chief financial officer or other appropriate
officer of the Borrower describing such ERISA Event and the
action, if any, which the Borrower, any of its Subsidiaries or
any ERISA Affiliate proposes to take with respect thereto, and a
copy of any notice filed with the PBGC or the IRS pertaining
thereto;
(c) promptly and in any event within thirty (30) days after
notice or knowledge thereof, notice that the Borrower or any of
its Subsidiaries becomes subject to the tax on prohibited
transactions imposed by Section 4975 of the Code, together with a
copy of Form 5330;
(d) promptly after the commencement thereof, notice of all
actions, suits and proceedings before any court or governmental
department, commission, board, bureau, agency or instrumentality,
domestic or foreign, against or affecting the Borrower or any of
its Subsidiaries, in which there is a reasonable probability of
an adverse decision which would have a Material Adverse Effect;
(e) promptly upon the Borrower or any of its Subsidiaries
learning of (i) any Event of Default or any Default, or (ii) any
Material Credit Agreement Change, telephonic or telegraphic
notice specifying the nature of such Event of Default, Default or
Material Credit Agreement Change, including the anticipated
effect thereof, which notice shall be promptly confirmed in
writing within five days;
(f) promptly after the sending or filing thereof, copies of
all reports which the Borrower sends to its security holders
generally, and copies of all reports and registration statements
which the Borrower or any of its Subsidiaries files with the
Securities and Exchange Commission or any national securities
exchange;
(g) promptly upon, and in any event within 30 days of, the
Borrower or any of its Subsidiaries learning of any of the
following:
(i) notice that any Property of the Borrower or any of
its Subsidiaries is subject to any Environmental Liens
individually or in the aggregate which would have a Material
Adverse Effect;
(ii) any proposed acquisition of stock, assets or real
estate, or any proposed leasing of Property, or any other
action by the Borrower or any of its Subsidiaries in which
there is a reasonable probability that the Borrower or any
of its Subsidiaries would be subject to any material
Environmental Liabilities and Costs, provided, that, in the
event of any such proposed acquisition or lease, the
Borrower must furnish to the Banks evidence in a form
acceptable to the Banks that the proposed acquisition will
not have a Material Adverse Effect;
(h) prior to the effectiveness thereof, information
relating to any proposed change in the accounting treatment or
reporting practices of the Borrower and its Subsidiaries the
nature or scope of which materially affects the calculation of
any component of any financial covenant, standard or term
contained in this Agreement;
(i) prior to the Borrower, or any of its Subsidiaries, (i)
entering into any agreement relating to the sale of, or the
granting of a Lien on, assets having a fair market value of
$10,000,000 or more, or (ii) incurring Indebtedness (other than
under the Loan Documents) pursuant to a single transaction the
aggregate principal amount of which is $10,000,000 or more, the
Borrower shall give the Agent 15 days' notice of its intention to
enter into such an agreement; and
(j) from time to time, such other information and materials
as the Agent (or the Banks through the Agent) may reasonably
request.
8.10. Acquisition Related Loan. Where the proceeds of a
Loan, including the initial Loans, are to be made available,
either directly or indirectly, to an Affiliate of the Borrower in
connection with an acquisition of Equity or assets, the Borrower
shall, within 15 Business Days of the making of such Loan,
deliver to the Agent (a) an Acquisition Related Guaranty duly
executed by such Affiliate (an "Acquisition Related Guarantor")
(which shall be in addition to, and not in substitution of, any
Credit Support Document previously delivered by such Affiliate)
or (b) if such Affiliate is incorporated outside the United
States of America and so long as such Affiliate is not itself a
Subsidiary of an Affiliate of the Borrower incorporated outside
the United States, a Pledge Agreement duly executed by the
Shareholders of such Affiliate; provided that Clause (b) shall
not apply to any Affiliate the stock of which is at that time
already subject to a valid and binding Pledge Agreement.
8.11. Additional Credit Support Documents. The Borrower
shall deliver, or shall cause to be delivered, within five (5)
Business Days of delivery to the Agent of a certificate pursuant
to Section 6(g)(v) of the Parent Guaranty, in respect of each
Principal Subsidiary disclosed on the schedule attached to such
certificate (a) a Subsidiary Guaranty duly executed by each such
Principal Subsidiary or (b) if any such Principal Subsidiary is a
Non-U.S. Subsidiary, either (i) a Pledge Agreement duly executed
by the Shareholders of such Non-U.S. Subsidiary or (ii) if such
Principal Subsidiary is a Subsidiary of a Non-U.S. Affiliate of
the Borrower, a Pledge Agreement duly executed by the
Shareholders of the Person that (x) directly or indirectly, owns
all of the stock of such Principal Subsidiary and (y) is not a
Subsidiary of a Non-U.S. Affiliate of the Borrower; provided,
that this Section 8.11 shall not apply to any Principal
Subsidiary as to which there already is at such time a valid and
binding Subsidiary Guaranty or Pledge Agreement (as the case may
be).
8.12. Delivery of Opinions. Concurrently with the
execution and delivery of any additional Credit Support Documents
pursuant to Sections 8.10 or 8.11 hereof, the Borrower shall
deliver, or shall cause to be delivered, to the Agent an opinion
of counsel relating to such additional Credit Support Document in
form and substance substantially similar to the opinions rendered
in connection with comparable agreements on the Effective Date.
8.13. Year 2000 Compliance. The Borrower shall take,
and shall cause each of its Subsidiaries to take, all necessary
action to complete in all material respects by the end of the
time periods set forth in the Parent Guarantor's Form 10-Q for
the Fiscal Quarter ended September 30, 1998, the reprogramming of
computer software, hardware and firmware systems and equipment
containing embedded microchips owned or operated by or for the
Borrower and its Subsidiaries or used or relied upon in the
conduct of their business (including systems and equipment
supplied by others or with which such systems of the Borrower or
any of its Subsidiaries interface) as described in such Form 10-Q
and required as a result of the Year 2000 Issue to permit the
proper functioning of such computer systems and other equipment
and the testing of such systems and equipment, as so reprogrammed
except to the extent that failure to so comply would not have a
Material Adverse Effect. At the request of the Bank, the
Borrower shall provide, and shall cause each of its Subsidiaries
to provide, to the Bank reasonable assurance of its compliance
with the preceding sentence.
8.14 Pari Passu Obligations. The Borrower will ensure
that its obligations under this Agreement and the Notes will at
all time rank at least pari passu in priority of payment with
all other present and future unsecured Indebtedness of the
Borrower.
8.15 Corporate Headquarters. The Borrower shall
continue to 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.
8.16 Indebtedness Under Other Facilities. The Borrower
shall ensure that (i) on and as of the Agreement Date, neither
the Borrower nor any of the Parent's Guarantors Subsidiaries
shall incur any additional Indebtedness under the Summit Bank
Facility, the Vanomycin Facility and the Prior UBN Facility and
(ii) on and as of February 5, 1999, all amounts outstanding under
the Summit Bank Facility, the Vanomycin Facility and the Prior
UBN Facility shall have been repaid and all commitments
thereunder canceled.
ARTICLE IX
NEGATIVE COVENANTS
So long as any of the Loans or any other amounts shall
remain unpaid or any Bank shall have any Commitment hereunder,
unless otherwise agreed by the written consent of the Majority
Banks:
9.1. Liens, Etc. The Borrower shall not, directly or
indirectly, create or suffer to exist, or permit any of its
Subsidiaries to create or suffer to exist, any Lien upon or with
respect to any of its Properties, whether now owned or hereafter
acquired, or assign, or permit any of its Subsidiaries to assign,
any right to receive income, in each case to secure or provide
for the payment of any Indebtedness of any Person, except
Permitted Liens.
9.2. Mergers. The Borrower shall not merge or
consolidate in any transaction in which it is not the surviving
Person. The Borrower shall not, without the consent of the
Majority Banks, permit any of its Subsidiaries to merge or
consolidate in any transaction in which such Subsidiary is not
the surviving Person other than in mergers of any Subsidiary into
the Borrower, the Parent Guarantor or any other wholly owned
Subsidiary of the Borrower or the Parent Guarantor that is
incorporated in the U.S.; provided, that with respect to mergers
in which the surviving entity is not the Borrower or the Parent
Guarantor, then the Borrower shall cause such surviving entity to
deliver a Subsidiary Guaranty if immediately after the merger the
surviving entity is a Principal Subsidiary (as determined at such
time) in respect of which there is not, at such time, a valid,
legal and binding Subsidiary Guaranty or Pledge Agreement.
9.3. Substantial Asset Sale. The Borrower shall not, and
shall not permit any of its Subsidiaries to, sell, lease,
transfer or otherwise dispose of all or any substantial part of
its or their assets (including any of the stock of the
Scandinavian Principal Companies owned by it or them), except
that this Section 9.3 shall not apply to:
(a) any disposition of assets in the ordinary course of
business;
(b) any disposition of assets (other than assets consisting
of the stock of the Scandinavian Principal Companies or assets
owned by the Scandinavian Principal Companies) (A) to the
Borrower, the Parent Guarantor or any Principal Subsidiary (in
respect of which there is in existence a legal, valid and binding
Subsidiary Guaranty or Pledge Agreement) or (B) where the
proceeds of such disposition (I) consist solely of cash or Cash
Equivalents and (II) the Net Cash Proceeds of such disposition
are first applied towards the prepayment of any Loans then
outstanding in accordance with Section 5.4(a); provided, that for
purposes of this Section 9.3, any such prepayment shall be
effected on the next succeeding day on which an interest payment
is due in respect of the Loan being prepaid after consummation of
the asset sale, and if such day is not the last day of the
Interest Period in respect of the Loan or Loans being prepaid,
the Borrower shall continue to be liable for any costs or
expenses pursuant to Section 12.4(c); or
(c) the contribution by Wade Jones Company, Inc., a Texas
corporation, an indirect wholly-owned Subsidiary of the Parent
Guarantor ("Wade Jones"), of assets relating to the distribution
activities of Wade Jones in connection with the formation of
Wynco, LLC, a limited liability company, among Wade Jones, G&M
Animal Health Distributors, Inc., a corporation duly organised
under the State of Arkansas, and T&H Distributors, LLC, a
Delaware limited liability company.
9.4. Transactions with Affiliates. The Borrower shall not
engage in, and will not permit any of its Subsidiaries to engage
in, any transaction with an Affiliate of the Borrower or of such
Subsidiary other than transactions in the ordinary course of
business between a Subsidiary and its parent or among
Subsidiaries of the Borrower that are on terms no less favorable
to the Borrower or such Subsidiaries than as would be obtained in
a comparable arms-length transaction.
9.5. Restrictions on Indebtedness. (a) The Borrower
shall not incur, and shall not permit its Subsidiaries to incur,
Indebtedness except (subject to clause (b) below) Permitted
Indebtedness.
(b) No Permitted Indebtedness may be incurred unless the
Parent Guarantor or the Borrower shall have complied with the
provisions of Section 7(f) of the Parent Guaranty.
(c) The Borrower shall not, and shall not permit any of its
Subsidiaries to, make any voluntary prepayments of principal in
respect of Subordinated Indebtedness so long as there are any
amounts outstanding under this Agreement or the Notes. For the
avoidance of doubt, the parties agree that this clause (c) shall
not restrict payments of principal in respect of Subordinated
Indebtedness so long as (i) such Subordinated Indebtedness is
evidenced by convertible bonds, notes or debentures, (ii) such
payment is being made in connection with the exercise by the
issuer thereof of the conversion option applicable to such
Indebtedness at a time when the conversion option applicable to
such Indebtedness is at a price lower than the then present
market price of the security issuable upon conversion, (iii) such
payment is not being made any earlier than three years of the
date of issuance of such Indebtedness and (iv) the Majority Banks
have consented to such payment (which consent shall not be
unreasonably withheld).
ARTICLE X
EVENTS OF DEFAULT
10.1. 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) The Borrower or any other Loan Party shall default in
the performance or observance of any term, covenant condition or
agreement contained in Section 8.9(e) of the Credit Agreement or
Section 6(h)(v) of the Parent Guaranty, respectively; or
(d) Any Loan Party shall fail to perform or observe any
term, covenant or agreement contained in this Agreement or any
other Loan Document, which failure or change shall remain
unremedied for (i) forty-five (45) days, in the case of the terms
and covenants contained in Section 8 of the Parent Guaranty, and
(ii) thirty (30) days, in the case of all other terms, covenants
or agreements not otherwise specifically dealt with in this
Section 10.1, and in either case after the earlier of the date on
which (x) telephonic, telefaxed or telegraphic notice thereof
shall have been given to the Agent by the Borrower pursuant to
Section 8.9(e), (y) written notice thereof shall have been given
to the Borrower by the Agent or (z) the Borrower or any other
Loan Party knows, or should have known, of such failure; or
(e) 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
(f) Each 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 (f); or
(g) 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
(h) (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
that, in each case in clause (i) through (iv) above, such event
or condition, together will all other such events or conditions,
if any, would be reasonably likely to have a Material Adverse
Effect; or
(i) 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 Agent;
(j) A Material Adverse Change shall occur; or
(k) The Borrower, the Parent Guarantor or any of their
Subsidiaries (i) shall incur Indebtedness other than Permitted
Indebtedness the aggregate amount of which at any time
outstanding exceeds $1,000,000, (ii) shall become liable to any
Person in respect of Permitted Indebtedness and such Person shall
not have (within 30 days of the incurrence thereof) become a
party to the Intercreditor Agreement or (iii) any party to the
Intercreditor Agreement (other than a Bank) shall have materially
breached any term or provision of the Intercreditor Agreement;
then, (A) and in any such event, the 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 (including, without
limitation, all amounts of Letter of Credit Liabilities, whether
or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder)
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
Guarantor or any of its Principal Subsidiaries under the federal
Bankruptcy Code, (x) the obligation of each Bank to make Loans
shall automatically be terminated and (y) 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 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; and
(B) with respect to all Letters of Credit with respect to which
presentment for honor shall not have occurred at the time of an
acceleration pursuant to the preceding paragraph, the Borrower
shall at such time deposit in a cash collateral account opened by
the Working Capital Agent an amount equal to the aggregate then
undrawn and unexpired amount of such Letters of Credit. Amounts
held in such cash collateral account shall be applied by the
Working Capital Agent to the payment of drafts drawn under such
Letters of Credit, and the unused portion thereof after all such
Letters of Credit shall have expired or been fully drawn upon, if
any, shall be applied to repay other obligations of the Borrower
hereunder and under the Notes. After all such Letters of Credit
shall have expired or been fully drawn upon, all Reimbursement
Obligations shall have been satisfied and all other obligations
of the Borrower hereunder and under the Notes then due and
payable shall have been paid in full, the balance, if any, in
such cash collateral account shall be returned to the Borrower.
The Borrower hereby grants to the Agent, for the ratable benefit
of the Lenders, as collateral security for the payment in full of
the obligations of the Borrower under the Loan Documents, a
security interest in all amounts from time to time held in the
cash collateral account maintained pursuant to this paragraph.
ARTICLE XI
THE AGENT AND WORKING CAPITAL AGENT
11.1. Authorization and Action. (a) Each Bank hereby
appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement as
are delegated to such 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 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 Agent shall not be required to take any action that
exposes the Agent to personal liability or that is contrary to
this Agreement or applicable law. The Agent agrees to give to
each Bank prompt notice of each notice given to it by the
Borrower pursuant to the terms of this Agreement.
(b) Each Working Capital Bank hereby appoints and authorizes
the Working Capital Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement as are
delegated to such Working Capital 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 Working Capital 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
Working Capital Banks (or when expressly required hereunder, all
the Working Capital Banks), and such instructions shall be
binding upon all Working Capital Banks; provided, however, that
the Working Capital Agent shall not be required to take any
action that exposes the Working Capital Agent to personal
liability or that is contrary to this Agreement or applicable
law. The Working Capital Agent agrees to give to each Working
Capital Bank prompt notice of each notice
11.2. The Agent's Reliance, Etc. Neither the Agent or
the Working Capital Agent, their respective 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. Without limitation of
the generality of the foregoing, (i) the Agent and the Working
Capital 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)
neither the Agent nor the Working Capital Agent make any warranty
or representation to any Bank or Working Capital Bank (as the
case may be) 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 Agent and the Working
Capital 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 Agent and the Working Capital 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; and (v) the Agent and the Working Capital 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, cable or telex)
believed by it to be genuine and signed or sent by the proper
party or parties.
11.3. Union Bank of Norway and Den norske Bank ASA.
With respect to the Commitments of Union Bank of Norway, Den
norske Bank ASA and Summit Bank, respectively, and the Loans made
by each of them, each of Union Bank of Norway, Den norske Bank
ASA and Summit 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 Agent, Working Capital Agent, Documentation
Agent, Arranger or Co-Arranger, as the case may be; and the term
"Bank" or "Banks" shall, unless otherwise expressly indicated,
include each of Union Bank of Norway, Den norske Bank ASA and
Summit Bank in their individual capacities. Each of Union Bank of
Norway, Den norske Bank ASA and Summit Bank and their respective
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 Union Bank of Norway, Den
norske Bank ASA and Summit Bank as the case may be, were not an
Agent, Working Capital Agent, Documentation Agent, Arranger or Co-
Arranger, as the case may be, and without any duty to account
therefor to the Banks.
11.4. Bank Credit Decision. Each Bank acknowledges that
it has, independently and without reliance upon the Agent, the
Working Capital Agent, the Documentation Agent, the Arranger or
the Co-Arranger or any other Bank, and based on the financial
statements referred to in Article VII 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 Agent, the Working Capital Agent, the Arranger,
the Co-Arranger 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.
11.5. Determinations Under Sections 6.1. and 6.2. For
purposes of determining compliance with the conditions specified
in Sections 6.1 and 6.2, 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 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 Agent to that effect or such Bank
shall have made available to the Agent or Working Capital Agent
(as the case may be) such Bank's ratable portion of such
Borrowing).
11.6. Indemnification. Each (a) Bank agrees to
indemnify the Agent and its respective Affiliates, and its
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 Term Loan Commitments and
the Revolving Credit Commitments, and (b) Working Capital Bank
agrees to indemnify the Working Capital Agent and its respective
Affiliates, and its 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 Working Capital Loan Commitments, in each case 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 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 or from any violation or alleged violation
by any such Person or any other Bank of any law, rule or
regulation or any guideline or request from any central bank or
other Governmental Authority (whether or not having the force of
law) or, with respect to the Agent or the Working Capital Agent,
any conflict or alleged conflict between its rights and duties in
its capacity as such or as a Bank under this Agreement and any
other rights or duties it may have in any other capacity in which
it may act in connection with the consummation of the
transactions contemplated by this Agreement, whether or not such
Bank is a party to such transactions. 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.
11.7. Successor Agents/Working Capital Agents. Any
Agent or the Working Capital Agent may resign at any time by
giving written notice thereof to the Banks and the Borrower and
may be removed at any time with cause by the Majority Banks. Upon
any such resignation or removal, the Majority Banks shall have
the right to appoint a successor to such Agent or Working Capital
Agent, as the case may be. If no successor to such Agent or
Working Capital Agent, as the case may be, shall have been so
appointed by the Majority Banks, and shall have accepted such
appointment, within 30 days after the retiring Agent's or Working
Capital Agent's, as the case may be, giving of notice of
resignation or the Majority Banks removal of such retiring Agent
or Working Capital Agent, as the case may be, then such
(retiring) Agent on behalf of the Banks, shall appoint a
successor Agent or Working Capital Agent, as the case may be,
(which successor Agent or Working Capital Agent, as the case may
be, shall be a Bank or another commercial bank organized under
the laws of a member nation of the Organization for Economic
Cooperation and Development and having a combined capital and
surplus of at least $100,000,000). Upon the acceptance of any
appointment as an Agent or Working Capital agent, as the case may
be, hereunder by any successor Agent or Working Capital agent, as
the case may be, such successor Agent or Working Capital Agent,
as the case may be, shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the
retiring Agent or Working Capital Agent, as the case may be, and
such retiring Agent or Working Capital Agent, as the case may
be, shall be discharged from its duties and obligations under
this Agreement. After any retiring Agent's or Working Capital
Agent's resignation or removal hereunder, the provisions of this
Article XI shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Agent or Working Capital
Agent, as the case may be.
11.8. Notices and Forwarding of Documents to Banks.
Promptly upon receipt of the same, the Agent and the Working
Capital Agent (as the case may be) shall furnish to the Banks and
the Working Capital Banks (as the case may be) copies of all
notices received from the Borrower or any other Loan Party.
ARTICLE XII
MISCELLANEOUS
12.1. 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:
(a) 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: (i) waive any of the conditions specified
in Section 6.1 or 6.2; (ii) increase the Commitments of the Banks
or subject the Banks to any additional obligations; (iii) change
the principal of, or decrease the interest on, any amounts
payable hereunder or reduce the amount of any Commitment Fee
payable to the Banks hereunder; (iv) postpone any date fixed for
any scheduled payment of any Commitment Fee, or scheduled payment
of principal of, or interest on, any amounts, payable hereunder;
(v) change the definition of Majority Banks; (vi) terminate, or
release the Parent Guarantor from its obligations under, the
Parent Guaranty or (vii) amend this Section 12.1; and
(b) no amendment, waiver or consent shall, unless in writing
and signed by the Agent or the Working Capital Agent in addition
to the Persons required above to take such action, affect the
rights or duties of the Agent or the Working Capital Agent,
respectively, under this Agreement.
12.2. 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.
c/o Alpharma Inc.
One Executive Drive
Fort Lee, NJ 07024
Attn: Albert Marchio
Treasurer
Telephone: (201) 947-7774
Telefax: (201) 947-0795
and to:
Robert Wrobel, Esq.
Vice President and
Chief Legal Officer
Telephone: (201) 947-7774
Telecopy: (201) 592-1481
(ii) if to the Agent, at:
Union Bank of Norway
Loan Administration
P.O. Box 1172 Sentrum
N-0107 Oslo
Telephone: 011-47-22-31-90-50
Telecopy: 011-47-22-31-85-58
Attn: Loan Administration
(iii) if to the Working Capital Agent, at:
Summit Bank
750 Walnut Avenue
Cranford, New Jersey 07016
Telephone: (908) 709-5458
Telecopy: (908) 931-0399
Attn: Syndications/Loan Operations
(iv) if to any Bank, at its Lending Office specified on
the signature pages hereof, and if to any other lender
that becomes a "Bank", at its Lending Office specified
in the Notice of Assignment and Acceptance by which it
became a Bank;
or, as to the Borrower, any Bank, the Agent or the Working
Capital 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 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 agent, respectively, except that notices and
communications to the Agent or the Working Capital Agent pursuant
to Articles II, III, IV or XI shall not be effective until
received by the Agent or the Working Capital Agent (as the case
may be).
12.3. No Waiver; Remedies. No failure on the part of
any Bank, the Agent or the Working Capital 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.
12.4. 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
specified reasonable fees and out-of-pocket expenses of counsel
to the Agent with respect thereto (such fees and expenses to be
payable on the Effective Date) and with respect to advising the
Agent as to their rights and responsibilities under this
Agreement, and all costs and expenses of the 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 Agent, the Arranger, the Co-Arranger, the
Working Capital Agent, the Documentation Agent 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 Agent, the Working
Capital Agent, the Documentation Agent, the Arranger, the Co-
Arranger 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 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 Agent, the
Arranger, the Co-Arranger, the Working Capital Agent, the
Documentation Agent, and each Bank, but also the relative fault
of the Borrower and the Agent, the Arranger, the Co-Arranger, the
Working Capital Agent, the Documentation Agent 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 Eurodollar Loans are Consolidated or if any Bank
receives any payment of principal of any Eurodollar 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 11.1 or for any other reason, the Borrower shall, upon
demand by such Bank (with a copy of such demand to the Agent (or,
in the event such demand relates to a Eurodollar Working Capital
Loan, the Working Capital Agent), pay to the Agent of the Working
Capital Agent (as the case may be) 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 or Consolidation, 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 12.4, and the obligations of the Borrower
contained in Sections 5.6(b), 5.8 and 5.9, shall survive the
payment of the Loans.
12.5. Right of Set-off. 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 10.1 to authorize the Agent to declare all amounts under
this Agreement due and payable pursuant to the provisions of
Section 10.1 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 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 12.5 are in addition to any other rights and remedies
(including, without limitation, any other rights of set-off)
which such Bank may have.
12.6. Binding Effect. This Agreement shall become
effective when it shall have been executed by the Borrower, the
Agent, the Arranger, the Co-Arranger, the Documentation Agent and
the Working Capital Agent and when the 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 Agent, the Arranger, the Co-Arranger, the Working
Capital Agent, the Documentation Agent 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 12.7 or
as expressly required hereunder.
12.7. Assignments and Participation; Additional Banks.
(a) Any Bank may, at any time, by notice substantially in the
form of Exhibit K hereto (each, a "Notice of Assignment and
Acceptance") delivered to the Agent for its acceptance and
recording, together with a recording fee in the amount of $1,500,
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 Borrower (provided that if all
amounts due under this Agreement have been declared immediately
due and payable no such consent shall be required), 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 Term Loan Commitment and
Revolving Credit Commitment); provided, however, that no Bank may
make any such assignment or delegation of any of its rights or
duties under this Agreement until the one hundredth day after the
Effective Date (or such other date as may be agreed by the Agent
and the Banks), except to any affiliate of such Bank which
actually controls, is controlled by, or is under common control
with such Bank or to any Federal Reserve Bank; and provided,
further, that after any such assignment, the assigning Bank's
aggregate Commitments hereunder shall not be less than
$10,000,000.
(b) Any Bank may at any time sell or grant participations in
its Commitment, 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
Agent, the Working Capital Agent (if applicable) 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 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 Agent, and approval by the Borrower, where
applicable, of each Notice of Assignment and Acceptance, (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 Notice of Assignment and Acceptance 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 12.11.
(e) Any Bank which sells or grants participations in any
Loans or its 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 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 5.6, 5.8
or 5.9 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 5.7 have occurred on or before the date of participation.
(g) (i) The Agent shall maintain at its address referred
to in Section 12.2 a copy of each Notice of Assignment and
Acceptance received by it and a register, containing the terms of
each Notice of Assignment and Acceptance, 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 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.
(ii) The Working Capital Agent shall maintain at its
address referred to in Section 12.2 a register for the
recordation of the names and addresses of each Working Capital
Bank and the Working Capital Loan Commitment of, and principal
amount of the Working Capital Loans owing to, each Working
Capital Bank from time to time (the "Working Capital Register").
The entries in the Working Capital Register shall be conclusive
and binding for all purposes, absent manifest error, and the
Borrower, the Working Capital Banks, and the Working Capital
Agent may treat each Person whose name is recorded in the Working
Capital Register as a Working Capital Bank hereunder for all
purposes of this Agreement. The Working Capital Register shall be
available for inspection by the Borrower, or any Working Capital
Bank, at any reasonable time and from time to time upon
reasonable prior notice.
12.8. 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.
12.9. 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 AGENT,
THE WORKING CAPITAL 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 Agent, the Working Capital
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 at its address
specified for notices in or pursuant to Section 12.2 hereof, to
the Agent at Watson, Farley & Williams, 380 Madison Avenue, New
York, NY 10017; to the Working Capital Agent at 750 Walnut
Avenue, Cranford, New Jersey 07016; and to the Banks as set forth
on Schedule I, such service to become effective 30 days after
such mailing.
(c) Nothing contained in this Section 12.9 shall affect the
right of the Agent, the Working Capital 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.
12.10. Confidentiality. Each Bank, the Working Capital
Agent and the 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 Commitments or
potential assignees or participants of the Loans or 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 12.10.
12.11. 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.
12.12. 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.
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:
UNION BANK OF NORWAY, as Agent
By
________________________
Name:
Title:
UNION BANK OF NORWAY, as Arranger
By
_________________________
Name:
Title:
UNION BANK OF NORWAY, as Bank
By
_________________________
Name:
Title:
FIRST UNION NATIONAL BANK
By
___________________________
Name:
Title:
DEN NORSKE BANK ASA, as Co-Arranger
By
__________________________
Name:
Title:
DEN NORSKE BANK ASA, as Bank
By
__________________________
Name:
Title:
BANQUE NATIONALE DE PARIS OSLO BRANCH
By ______________________
Name:
Title:
LANDESBANK SCHLESWIG-HOLSTEIN
GIROZENTRALE COPENHAGEN BRANCH
By ______________________
Name: Nils E.
Emilsson
Title: Deputy General
Manager
SUMMIT BANK, as Bank
By ______________________
Name:
Title:
SUMMIT BANK, as Working Capital Agent
By ______________________
Name:
Title:
SUMMIT BANK, as Documentation Agent
By ______________________
Name:
Title:
Agreement Date: January 20, 1999
ANNEX A
PRICING GRID
A. The Applicable Margin shall be determined quarterly by
reference to the Margin Ratio (as determined for the period of
four consecutive Fiscal Quarters of the Parent Guarantor ending
at the end of the period covered by the most recently delivered
financial statements of the Parent Guarantor delivered pursuant
to Section 6(g) of the Parent Guaranty, subject to paragraph (B)
below) and certain other conditions all as set forth below;
provided, however, that in no event shall the Applicable Margin
be less than 1.50% during the period from the Agreement Date
through the Adjustment Date (as defined below) immediately
succeeding June 30, 1999; and provided, further, that if at any
time the Parent Guarantor, in order to comply with Section 8(a)
of the Parent Guaranty, relies on proviso (A) or (B) of such
Section 8(a), then the Applicable Margin as determined hereunder
shall be increased by (a) .125% per annum, in the case of proviso
(A), or (b) .75% per annum, in the case of proviso (B), and in
each case such increase shall remain effective until such time as
the Parent Guarantor no longer relies on proviso (A) or (B) to
comply with Section 8(a) of the Parent Guaranty:
Applicable Margin
Margin Ratio Eurodollar Loans Alternate Base Rate
Working Capital Loans
less than 2.5 and .875% -0.75%
the Equity Ratio at
such time is at
least 0.35:1*
less than 3.5 1.125% -0.5%
3.5 or greater but 1.375% -0.25%
less than 4.25
4.25 or greater but 1.50% 0%
less than 5.25
5.25 or greater 1.625% .25%
* This pricing not effective until the Adjustment Date following
April 1, 2001.
B. Changes in the Applicable Margin resulting from changes
in the Margin Ratio shall become effective on the date (the
"Adjustment Date") that is five (5) Business Days after the date
on which financial statements are delivered to the Agent pursuant
to Sections 6(g) (i) and (ii) of the Parent Guaranty (but in any
event (x) not later than the 50th day after the end of each of
the first three Fiscal Quarters and (y) not later than the 95th
day after the end of each Fiscal Year (but not earlier than March
31)) and shall remain in effect until the next change to be
effected pursuant to this paragraph. If any financial statements
referred to above are not delivered within the time periods
specified above, then, until such financial statements are
delivered, the Margin Ratio as at the end of the fiscal period
that would have been covered thereby shall for the purposes of
this Pricing Grid be deemed to be 5.25 or greater.
C. For the avoidance of doubt, to the extent that
financial information for periods prior to the Agreement Date is
necessary in order to determine the Margin Ratio in effect on the
Initial Funding Date and thereafter, the Agent shall refer to the
financial statements of the Parent Guarantor most recently
delivered pursuant to the Prior UBN Facility.
Schedule I
FIRST UNION NATIONAL BANK Lending Office:
First Union National Bank
1345 Chestnut Street
P.O. Box 7618
F.C. 1-8-3-18
Philadelphia, PA 19101
Attn: Foreign Corporate Department
Stephen E. Stambaugh, V.P.
Telephone: 215-973-3791
Telecopier: 215-973-6894
Address for Notice Purposes:
1345 Chestnut Street
P.O. Box 7618
F.C. 1-8-3-18
Philadelphia, PA 19101
Attn: International Corporate
Department
Stephen E. Stambaugh, V.P.
Telephone: 215-973-3791
Telecopier: 215-973-6894
Address for Service of Process:
First Union National Bank
Legal Department
F. C. 1-1-17-1
Broad & Chestnut Streets
P.O. Box 7618
Philadelphia, PA 19101
DEN NORSKE BANK ASA Lending Office:
Stranden 21
0107 Oslo
Norway
Attn: Credit Administration
Telecopier: +47-22-48-10-46
Address for Notice Purposes:
Stranden 21
0107 Oslo
Norway
Attn: Credit Administration
Telecopier: +47-22-48-10-46
Address for Service of Process:
Den norske Bank ASA, New York Branch
200 Park Avenue
New York, NY 10166-0396
SUMMIT BANK Lending Office:
Summit Bank
750 Walnut Avenue
Cranford, NJ 07016
Attn: Syndications/Loan Operations
Telephone: (908) 709-5458
Telecopier: (908) 931-0399
Address for Notice Purposes:
Summit Bank
750 Walnut Avenue
Cranford, NJ 07016
Attn: Wayne Trotman, Sr. Vice President
Telephone: 908-709-5339
Telecopier: 908-709-6433
Address for Service of Process:
Summit Bank
Deposit Services - Elizabeth
288 North Broad Street
Elizabeth, NJ 07207
UNION BANK OF NORWAY Lending Office:
Union Bank of Norway
Kirkegaten 18
P.O. Box 1172 Sentrum
0107 Oslo
Norway
Attn: Loan Administration
Telephone: 011-47-22-31-90-50
Telecopier: 011-47-22-31-85-58
Address for Notice Purposes:
Union Bank of Norway
Kirkegaten 18
P.O. Box 1172 Sentrum
0107 Oslo
Norway
Attn: Loan Administration
Telephone: +011-47-22-31-90-50
Telecopier: +011-47-22-31-85-58
Address for Service of Process:
Watson, Farley & Williams
380 Madison Avenue, 19th Floor
New York, NY 10017
Attn: John S. Osborne, Jr.
LANDESBANK SCHLESWIG-HOLSTEIN
GIROZENTRALE COPENHAGEN
BRANCH Lending Office:
LB Kiel, Copenhagen Branch
Holmeus Kanal 7
Postbox 1600
1020 Copenhagen
Denmark
Attn.: Loan Administrator
Telephone: +45 33 95 01 00
Telecopier: +45 33 95 01 95
Address for Notice Purporses:
LB Kiel, Copenhagen Branch
Holmeus Kanal 7
Postbox 1600
1020 Copenhagen
Denmark
Attn.: Loan Administrator
Telephone: +45 33 95 01 00
Telecopier: +45 33 95 01 95
Address for Service of Process:
LB Kiel, Copenhagen Branch
Holmeus Kanal 7
Postbox 1600
1020 Copenhagen
Denmark
Attn.: Loan Administrator
Telephone: +45 33 95 01 00
Telecopier: +45 33 95 01 95
BANQUE NATIONALE DE PARIS
OSLO BRANCH Lending Office:
Banque Nationale de Paris Oslo Branch
Biskop Gunnerus' gt. 2
Postboks 106 Sentrum
0102 OSLO
Norway
Attn: Irene Stoback Johansen,
Corporate & International
Telephone: +47 22 82 95 00, (direct
line: +47 22 82 96 21)
Telecopies: +47 22 41 08 44
Email: irene.johansen@bnpgroup.com
Address for Notice Purposes:
Banque Nationale de Paris Oslo Branch
Biskop Gunnerus' gt. 2
Postboks 106 Sentrum
0102 OSLO
Norway
Attn: Ivar Stautland, Loan
Administration
Telephone: +47 22 82 95 00, (direct
line: 47 22 82 95 61)
Address for Service of Process:
Banque Nationale de Paris New York
Branch
499 Park Avenue
P.O. Box 127 Church Street Station
New York, NY 10008
Schedule II
Commitments
The Banks listed below will participate in the Credit Agreement
in the following manner:
Term Loan Revolving
Commitment Credit Sum
Bank Commitment
Union Bank of 30,000,000 60,000,000 90,000,000
Norway
Den norske Bank 28,000,000 57,000,000 85,000,000
ASA
Summit Bank 18,000,000 37,000,000 55,000,000
First Union 8,000,000 17,000,000 25,000,000
National Bank
Banque Nationale 7,000,000 13,000,000 20,000,000
de Paris Oslo
Branch
Landesbank Kiel 8,000,000 17,000,000 25,000,000
Sum 100,000,000 200,000,000 300,000,000
Portion of Revolving Credit Commitment
Available as Working Capital Loan Commitment
Working Capital Loan Commitment
First Union National Bank, N.A. 15,000,000
Summit Bank 15,000,000
30,000,000
Schedule 7.2(a)(iv)
Required Consents and Approvals
None