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EXHIBIT 10.7
CONFORMED COPY
$250,000,000
CREDIT AGREEMENT
dated as of
December 22, 1993
and amended and
restated as of
May 10, 1996
among
Allergan, Inc.,
as Borrower and Guarantor
The Eligible Subsidiaries
Referred to Herein,
as Borrowers
The Banks Party Hereto
Morgan Guaranty Trust Company of New York,
as Agent
and
Bank of America
National Trust and Savings Association,
as Co-Agent
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TABLE OF CONTENTS*
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ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions................................................ 1
SECTION 1.02. Accounting Terms and
Determinations............................................. 16
SECTION 1.03. Types of Borrowings........................................ 16
SECTION 1.04. Basis for Ratings.......................................... 17
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend........................................ 17
SECTION 2.02. Notice of Committed Borrowings............................. 17
SECTION 2.03. Money Market Borrowings.................................... 18
SECTION 2.04. Notice to Banks; Funding of Loans.......................... 22
SECTION 2.05. Notes...................................................... 23
SECTION 2.06. Maturity of Loans.......................................... 24
SECTION 2.07. Interest Rates............................................. 24
SECTION 2.08. Facility Fees.............................................. 28
SECTION 2.09. Method of Electing Types of
Interest Rates and Interest Periods
for Dollar-Denominated Loans............................... 29
SECTION 2.10. Method of Electing Interest Periods
for Alternative Currency Loans;
Required Prepayments....................................... 31
SECTION 2.11. Termination or Reduction of
Commitments................................................ 32
SECTION 2.12. Optional Prepayments....................................... 32
SECTION 2.13. General Provisions as to Payments.......................... 33
SECTION 2.14. Funding Losses............................................. 34
SECTION 2.15. Computation of Interest and Fees........................... 35
SECTION 2.16. Judgment Currency.......................................... 35
ARTICLE III
CONDITIONS
SECTION 3.01. Effectiveness.............................................. 36
SECTION 3.02. Borrowings................................................. 36
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* The Table of Contents is not a part of this Agreement.
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SECTION 3.03. First Borrowing by Each Eligible
Subsidiary................................................. 37
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Corporate Existence and Power.............................. 38
SECTION 4.02. Corporate and Governmental
Authorization; No Contravention............................ 38
SECTION 4.03. Binding Effect............................................. 38
SECTION 4.04. Financial Information...................................... 38
SECTION 4.05. Litigation................................................. 39
SECTION 4.06. Compliance with ERISA...................................... 39
SECTION 4.07. Environmental Matters...................................... 39
SECTION 4.08. Taxes...................................................... 40
SECTION 4.09. Not an Investment Company.................................. 40
SECTION 4.10. Full Disclosure............................................ 40
SECTION 4.11. Subsidiaries............................................... 41
SECTION 4.12. Good Title to Properties................................... 41
SECTION 4.13. Trademarks, Patents, etc................................... 41
ARTICLE V
COVENANTS
SECTION 5.01. Information................................................ 41
SECTION 5.02. Payment of Obligations..................................... 44
SECTION 5.03. Maintenance of Property; Insurance......................... 44
SECTION 5.04. Conduct of Business and Maintenance
of Existence............................................... 45
SECTION 5.05. Compliance with Laws....................................... 45
SECTION 5.06. Inspection of Property, Books and
Records.................................................... 45
SECTION 5.07. Subsidiary Debt............................................ 46
SECTION 5.08. Debt to Capitalization..................................... 46
SECTION 5.09. Minimum Consolidated Net Worth............................. 46
SECTION 5.10. Negative Pledge............................................ 46
SECTION 5.11. Consolidations, Mergers and Sales
of Assets.................................................. 48
SECTION 5.12. Use of Proceeds............................................ 48
SECTION 5.13. Transactions with Affiliates............................... 48
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default.......................................... 48
SECTION 6.02. Notice of Default.......................................... 51
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ARTICLE VII
THE AGENT
SECTION 7.01. Appointment and Authorization.............................. 51
SECTION 7.02. Agent and Affiliates....................................... 51
SECTION 7.03. Action by Agent............................................ 52
SECTION 7.04. Consultation with Experts.................................. 52
SECTION 7.05. Liability of Agent......................................... 52
SECTION 7.06. Indemnification............................................ 52
SECTION 7.07. Credit Decision............................................ 53
SECTION 7.08. Successor Agent............................................ 53
SECTION 7.09. Agent's Fee................................................ 53
SECTION 7.10. Co-Agent................................................... 53
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate
Inadequate or Unfair....................................... 54
SECTION 8.02. Illegality................................................. 54
SECTION 8.03. Increased Cost and Reduced Return.......................... 55
SECTION 8.04. Taxes...................................................... 57
SECTION 8.05. Base Rate Loans Substituted for
Affected Fixed Rate Loans.................................. 61
SECTION 8.06. Substitution of Bank....................................... 62
ARTICLE IX
REPRESENTATIONS AND WARRANTIES
OF ELIGIBLE SUBSIDIARIES
SECTION 9.01. Corporate Existence and Power.............................. 62
SECTION 9.02. Corporate and Governmental
Authorization; No Contravention............................ 63
SECTION 9.03. Binding Effect............................................. 63
SECTION 9.04. Taxes...................................................... 63
ARTICLE X
GUARANTY
SECTION 10.01. The Guaranty.............................................. 63
SECTION 10.02. Guaranty Unconditional.................................... 64
SECTION 10.03. Discharge Only Upon Payment In
Full; Reinstatement In Certain
Circumstances............................................. 65
SECTION 10.04. Waiver by the Company..................................... 65
SECTION 10.05. Subrogation............................................... 65
SECTION 10.06. Stay of Acceleration...................................... 65
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ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Notices................................................... 66
SECTION 11.02. No Waivers................................................ 66
SECTION 11.03. Expenses; Indemnification................................. 67
SECTION 11.04. Sharing of Set-Offs....................................... 67
SECTION 11.05. Amendments and Waivers.................................... 68
SECTION 11.06. Successors and Assigns.................................... 68
SECTION 11.07. Collateral................................................ 70
SECTION 11.08. Governing Law; Submission to
Jurisdiction.............................................. 70
SECTION 11.09. Counterparts; Integration................................. 71
SECTION 11.10. WAIVER OF JURY TRIAL...................................... 71
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Commitment Schedule
Exhibit A - Note
Exhibit B - Money Market Quote Request
Exhibit C - Invitation for Money Market Quotes
Exhibit D - Money Market Quote
Exhibit E - Opinion of General Counsel for the Company
Exhibit F - Opinion of Special Counsel to the Agent
Exhibit G - Form of Election to Participate
Exhibit H - Form of Election to Terminate
Exhibit I - Assignment and Assumption Agreement
Exhibit J - Intellectual Property
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CREDIT AGREEMENT
AGREEMENT dated as of May 10, 1996 among ALLERGAN, INC., the
ELIGIBLE SUBSIDIARIES referred to herein, the BANKS party hereto, BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Co-Agent and MORGAN GUARANTY
TRUST COMPANY OF NEW YORK, as Agent.
WHEREAS the parties hereto are parties to a Credit Agreement
dated as of December 22, 1993, as heretofore amended, and wish, upon
satisfaction of the conditions set forth in Section 3.01 hereof, to amend and
restate such Credit Agreement as set forth herein (such amendment and
restatement being called this "Amendment"; and such Credit Agreement, as in
effect from time to time prior to the Effective Date, as amended and restated by
this Amendment as of the Effective Date and as it may be further amended from
time to time thereafter being called the "Agreement");
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as used
herein, have the following meanings:
"Absolute Rate Auction" means a solicitation of Money Market
Quotes setting forth Money Market Absolute Rates pursuant to Section 2.03.
"Adjusted CD Rate" has the meaning set forth in Section
2.07(b).
"Adjusted Consolidated Net Worth" means at any date
Consolidated Net Worth less (to the extent reflected in the determination
thereof) all investments in unconsolidated Subsidiaries and all equity
investments in Persons which are not Subsidiaries.
"Adjusted London Interbank Offered Rate" has the meaning set
forth in Section 2.07(c).
"Administrative Questionnaire" means, with respect to each
Bank, an administrative questionnaire in the form prepared by the Agent, duly
completed by such Bank and submitted to the Agent (with a copy to the Company).
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"Affiliate" means (i) any Person (other than the Company and
its Subsidiaries) directly or indirectly controlling, controlled by, or under
common control with the Company or (ii) any Person (other than the Company and
its Subsidiaries) that owns or controls 20% or more of any class of equity
securities of the Company or any of its Subsidiaries or Affiliates. For the
purposes of this definition, "control" (including with correlative meanings, the
terms "controlling", "controlled by," and "under common control with"), as
applied to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of that
Person, whether through the ownership of voting securities or by contract or
otherwise.
"Agent" means Morgan Guaranty Trust Company of New York in its
capacity as agent for the Banks hereunder, and its successors in such capacity.
"Agreement" has the meaning set forth in the WHEREAS clause
hereof.
"Alternative Currencies" means Canadian dollars, French
francs, Japanese yen, British pounds sterling, Italian lira, German deutsche
marks and Irish pounds, provided that any other currency (except Dollars) shall
also be an Alternative Currency if (i) the Company requests, by notice to the
Agent, that such currency be included as an additional Alternative Currency for
purposes of this Agreement, (ii) such currency is freely transferable and freely
convertible into Dollars, (iii) deposits in such currency are customarily
offered to banks in the London interbank market and (iv) each Bank either (x)
approves the inclusion of such currency as an additional Alternative Currency
for purposes hereof or (y) fails to notify the Agent that it objects to such
inclusion within five Domestic Business Days after the Agent notifies it of the
Company's request for such inclusion.
"Alternative Currency Loan" means a Committed Loan that is
made in an Alternative Currency in accordance with the applicable Notice of
Committed Borrowing.
"Amendment" has the meaning set forth in the WHEREAS clause
hereof.
"Applicable Lending Office" means, with respect to any Bank,
(i) in the case of its Domestic Loans, its Domestic Lending Office, (ii) in the
case of its Euro- Currency Loans, its Euro-Currency Lending Office and (iii)
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in the case of its Money Market Loans, its Money Market Lending Office.
"Assessment Rate" has the meaning set forth in Section
2.07(b).
"Assignee" has the meaning set forth in Section 11.06(c).
"Bank" means each bank listed on the signature pages hereof,
each Assignee which becomes a Bank pursuant to Section 11.06(c), and their
respective successors, provided that for purposes of any determination made with
respect to Citicorp USA, Inc. under Section 8.01(b), 8.02 or 8.03, the term
"Bank" shall be deemed to include Citibank, N.A.
"Base Rate" means, for any day, a rate per annum equal to the
higher of (i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the
Federal Funds Rate for such day.
"Base Rate Loan" means (i) a Committed Loan that is
outstanding as a Base Rate Loan in accordance with the applicable Notice of
Committed Borrowing or an applicable Notice of Interest Rate Election or
pursuant to Article VIII or the last sentence of Section 2.09(a) or (ii) an
overdue amount which was a Base Rate Loan immediately before it became overdue.
"Borrower" means the Company or any Eligible Subsidiary, as
the context may require, and their respective successors, and "Borrowers" means
all of the foregoing.
"Borrowing" has the meaning set forth in Section 1.03.
"CD Base Rate" has the meaning set forth in Section 2.07(b).
"CD Loan" means (i) a Committed Loan that is outstanding as a
CD Loan in accordance with the applicable Notice of Committed Borrowing or an
applicable Notice of Interest Rate Election or (ii) an overdue amount which was
a CD Loan immediately before it became overdue.
"CD Margin" has the meaning set forth in Section 2.07(b).
"CD Reference Banks" means Bank of America National Trust and
Savings Association, Citibank, N.A. and Morgan Guaranty Trust Company of New
York.
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"Co-Agent" means Bank of America National Trust and Savings
Association, in its capacity as the Co-Agent hereunder.
"Commitment" means (i) with respect to any Bank listed on the
Commitment Schedule attached hereto, the amount set forth opposite its name on
such Commitment Schedule as its Commitment or (ii) with respect to any Assignee,
the amount of the transferor Bank's Commitment assigned to such Assignee
pursuant to Section 11.06(c), in each case as such amount may be reduced from
time to time pursuant to Section 2.11 or changed as a result of an assignment
pursuant to Section 11.06(c).
"Committed Loan" means a loan made by a Bank pursuant to
Section 2.01; provided that, if any such loan or loans (or portions thereof) are
combined or subdivided pursuant to a Notice of Interest Rate Election, the term
"Committed Loan" shall refer to the combined principal amount resulting from
such combination or to each of the separate principal amounts resulting from
such subdivision, as the case may be.
"Company" means Allergan, Inc., a Delaware corporation, and
its successors.
"Consolidated Debt" means at any date the Debt of the Company
and its Consolidated Subsidiaries, determined on a consolidated basis as of such
date.
"Consolidated Net Income" means consolidated net income of the
Company and its Consolidated Subsidiaries.
"Consolidated Net Worth" means at any date the consolidated
stockholders' equity of the Company and its Consolidated Subsidiaries determined
as of such date less (to the extent reflected in determining such consolidated
stockholders' equity) all write-ups (other than write-ups resulting from foreign
currency translations and write-ups of assets of a going concern business made
within twelve months after the acquisition of such business) subsequent to
December 31, 1995 in the book value of any asset owned by the Company or a
Consolidated Subsidiary.
"Consolidated Subsidiary" means at any date any Subsidiary or
other entity the accounts of which would be consolidated with those of the
Company in its consolidated financial statements if such statements were
prepared as of such date.
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"Debt" of any Person means at any date, without duplication,
(i) all obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable arising in the ordinary
course of business, (iv) all obligations of such Person as lessee which are
capitalized in accordance with generally accepted accounting principles, (v) all
Debt secured by a Lien on any asset of such Person, whether or not such Debt is
otherwise an obligation of such Person and (vi) all Debt of others Guaranteed by
such Person.
"Default" means any condition or event which constitutes an
Event of Default or which with the giving of notice or lapse of time or both
would, unless cured or waived, become an Event of Default.
"Dollar Amount" means:
(i) with respect to any Dollar-Denominated Loan at any time,
the principal amount thereof then outstanding; and
(ii) with respect to any Alternative Currency Loan at any time
during any Interest Period applicable thereto, the principal amount
thereof then outstanding in the relevant Alternative Currency,
converted to Dollars at the Agent's spot buying rate for Dollars
against such Alternative Currency as of approximately 11:00 A.M.
(London time) three Euro-Currency Business Days before the first day of
such Interest Period.
If an Alternative Currency Loan is not paid when due, the Dollar Amount thereof
shall be recalculated as contemplated by clause (ii) above on the due date
thereof and at three-month intervals thereafter until such Loan is paid in full.
"Dollar-Denominated Loan" means a Loan that is made in Dollars
in accordance with the applicable Notice of Borrowing.
"Dollars" and the sign "$" mean lawful money of the United
States.
"Domestic Business Day" means any day except a Saturday,
Sunday or other day on which commercial banks in New York City are authorized by
law to close.
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"Domestic Lending Office" means, as to each Bank, its office
located at its address set forth in its Administrative Questionnaire (or
identified in its Administrative Questionnaire as its Domestic Lending Office)
or such other office as such Bank may hereafter designate as its Domestic
Lending Office by notice to the Company and the Agent; provided that any Bank
may so designate separate Domestic Lending Offices for its Base Rate Loans, on
the one hand, and its CD Loans, on the other hand, in which case all references
herein to the Domestic Lending Office of such Bank shall be deemed to refer to
either or both of such offices, as the context may require.
"Domestic Loans" means CD Loans or Base Rate Loans or both.
"Domestic Reserve Percentage" has the meaning set forth in
Section 2.07(b).
"Effective Date" means the date on which the Agent shall have
received all the payments and documents specified in or pursuant to Section
3.01.
"Election to Participate" means an Election to Participate
substantially in the form of Exhibit G hereto.
"Election to Terminate" means an Election to Terminate
substantially in the form of Exhibit H hereto.
"Eligible Subsidiary" means any wholly owned Consolidated
Subsidiary as to which an Election to Participate shall have been delivered to
the Agent and as to which an Election to Terminate shall not have been delivered
to the Agent. Each such Election to Participate and Election to Terminate shall
be duly executed on behalf of such Subsidiary and the Company in such number of
copies as the Agent may request. The delivery of an Election to Terminate shall
not affect any obligation of an Eligible Subsidiary theretofore incurred. The
Agent shall promptly give notice to the Banks of the receipt of any Election to
Participate or Election to Terminate.
"Environmental Laws" means any and all federal, state, local
and foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
the environment, the effect of the environment on human health or to emissions,
discharges or releases of pollutants, contaminants, Hazardous Substances or
wastes into the environment including, without
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limitation, ambient air, surface water, ground water, or land, or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of pollutants, contaminants, Hazardous
Substances or wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, or any successor statute.
"ERISA Group" means the Company, any Subsidiary and all
members of a controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control which, together with the
Company or any Subsidiary, are treated as a single employer under Section 414 of
the Internal Revenue Code.
"Euro-Currency Business Day" means a Euro-Dollar Business Day,
unless such term is used in connection with an Alternative Currency Borrowing or
Alternative Currency Loan for which funds are to be paid or made available in
such Alternative Currency on such day, in which case such day shall not be a
Euro-Currency Business Day unless commercial banks are open for domestic and
international business (including dealings in deposits in such Alternative
Currency) in both London and the place where such funds are to be paid or made
available.
"Euro-Currency Lending Office" means, as to each Bank, its
office, branch or affiliate located at its address set forth in its
Administrative Questionnaire (or identified in its Administrative Questionnaire
as its Euro-Currency Lending Office) or such other office, branch or affiliate
of such Bank as it may hereafter designate as its Euro-Currency Lending Office
by notice to the Company and the Agent.
"Euro-Currency Loan" means a Euro-Dollar Loan or an
Alternative Currency Loan.
"Euro-Currency Margin" has the meaning set forth in Section
2.07(c).
"Euro-Currency Reference Banks" means the principal London
offices of Bank of America National Trust and Savings Association, Citibank,
N.A. and Morgan Guaranty Trust Company of New York.
"Euro-Currency Reserve Percentage" has the meaning set forth
in Section 2.07(c).
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"Euro-Dollar Business Day" means any Domestic Business Day on
which commercial banks are open for international business (including dealings
in Dollar deposits) in London.
"Euro-Dollar Loan" means (i) a Committed Loan that is
outstanding as a Euro-Dollar Loan in accordance with the applicable Notice of
Committed Borrowing or an applicable Notice of Interest Rate Election or (ii) an
overdue amount which was a Euro-Dollar Loan immediately before it became
overdue.
"Event of Default" has the meaning set forth in Section 6.01.
"Facility Fee Rate" has the meaning set forth in Section
2.08(a).
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward, if necessary, to the nearest 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Domestic
Business Day next succeeding such day, provided that (i) if such day is not a
Domestic Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Domestic Business Day as so published on
the next succeeding Domestic Business Day, and (ii) if no such rate is so
published on such next succeeding Domestic Business Day, the Federal Funds Rate
for such day shall be the average rate quoted to Morgan Guaranty Trust Company
of New York on such day on such transactions as determined by the Agent.
"Fixed Rate Loans" means CD Loans or Euro-Currency Loans or
Money Market Loans (excluding Money Market LIBOR Loans bearing interest at the
Base Rate pursuant to Section 8.01(a)) or any combination of the foregoing.
"Group of Loans" means at any time a group of Loans consisting
of (i) all Committed Loans to the same Borrower which are Base Rate Loans at
such time, (ii) all Euro-Currency Loans to the same Borrower which are in the
same currency and have the same Interest Period at such time or (iii) all CD
Loans to the same Borrower which have the same Interest Period at such time;
provided that, if a Committed Loan of any particular Bank is converted to or
made as a Base Rate Loan pursuant to Section 8.02 or 8.04, such Loan shall be
included in the same Group or Groups of
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Loans from time to time as it would have been in if it had not been so converted
or made.
"Governmental Authority" means any federal, state, local,
foreign or other governmental or administrative body, instrumentality,
department or agency or any court, tribunal, administrative hearing body,
arbitration panel, commission or other similar dispute resolving panel or body.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt of any
other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Debt (whether arising by virtue of partnership arrangements, by agreement to
keep-well, to purchase assets, goods, securities or services, to take-or-pay, or
to maintain financial statement conditions or otherwise) or (ii) entered into
for the purpose of assuring in any other manner the holder of such Debt of the
payment thereof or to protect such holder against loss in respect thereof (in
whole or in part), provided that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business. The
term "Guarantee" used as a verb has a corresponding meaning.
"Guarantor" means the Company in its capacity as guarantor of
the obligations of the Eligible Subsidiaries pursuant to the provisions of
Article X.
"Hazardous Substances" means any toxic, radioactive, caustic
or otherwise hazardous substance, including petroleum, its derivatives,
by-products and other hydrocarbons, or any substance having any constituent
elements displaying any of the foregoing characteristics.
"Indemnitee" has the meaning set forth in Section 11.03(b).
"Interest Period" means: (1) with respect to each
Euro-Currency Loan, a period commencing on the date of borrowing specified in
the applicable Notice of Borrowing or on the date specified in an applicable
Notice of Interest Rate Election and ending one, two, three or six months
thereafter, as the Company may elect in the applicable notice; provided that:
(a) any Interest Period (other than an Interest Period
determined pursuant to clause (c) below) which
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would otherwise end on a day which is not a Euro-Currency Business Day
for the relevant currency shall be extended to the next succeeding
Euro-Currency Business Day for such currency unless such Euro-Currency
Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Euro-Currency Business
Day for such currency;
(b) any Interest Period which begins on the last Euro-Currency
Business Day for the relevant currency in 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, subject to clause (c)
below, end on the last Euro-Currency Business Day for the relevant
currency in a calendar month; and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date (or, if the
Termination Date is not a Euro-Currency Business Day for the relevant
currency, the next preceding Euro-Currency Business Day for such
currency).
(2) with respect to each CD Loan, a period commencing on the
date of borrowing specified in the applicable Notice of Borrowing or on the date
specified in an applicable Notice of Interest Rate Election and ending 30, 60,
90 or 180 days thereafter, as the Company may elect in the applicable notice;
provided that:
(a) any Interest Period (other than an Interest Period
determined pursuant to clause (b) below) which would otherwise end on a
day which is not a Euro-Dollar Business Day shall be extended to the
next succeeding Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(3) with respect to each Money Market LIBOR Loan, the period
commencing on the date of borrowing specified in the applicable Notice of
Borrowing and ending a minimum of one month thereafter, as the Company may elect
in accordance with Section 2.03; provided that:
(a) any Interest Period (other than an Interest Period
determined pursuant to clause (c) below) which would otherwise end on a
day which is not a Euro-Dollar
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Business Day shall be extended to the next succeeding Euro-Dollar
Business Day unless such Euro-Dollar Business Day falls in another
calendar month, in which case such Interest Period shall end on the
next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
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, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month; and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(4) with respect to each Money Market Absolute Rate Loan, the period
commencing on the date of borrowing specified in the applicable Notice of
Borrowing and ending such number of days thereafter (but not less than 15 days)
as the Company may elect in accordance with Section 2.03; provided that:
(a) any Interest Period (other than an Interest Period
determined pursuant to clause (b) below) which would otherwise end on a
day which is not a Euro-Dollar Business Day shall be extended to the
next succeeding Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended, or any successor statute.
"Irish Affiliate Cash" means an amount equal to 70% of the
cash and cash equivalents denominated in Dollars or in any currency which is
readily exchangeable into Dollars and which is not, at such time, subject to any
form of exchange control regulation, and which are payable by their terms at an
address within the United States and by a United States resident or other person
having an address within the United States, such amount of cash and cash
equivalents not to exceed $150,000,000 and such cash and cash equivalents to be
owned by Allergan Pharmaceuticals (Ireland) Ltd., a subsidiary of Allergan
Holdings, Inc., a Delaware corporation.
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"Level I Pricing" applies at any date if, at such date, the
Company's outstanding senior unsecured long-term debt securities are rated AA-
or higher by S&P and Aa3 or higher by Moody's.
"Level II Pricing" applies at any date if, at such date, (i)
the Company's outstanding senior unsecured long-term debt securities are rated A
or higher by S&P and A2 or higher by Moody's and (ii) Level I Pricing does not
apply.
"Level III Pricing" applies at any date if, at such date, (i)
the Company's outstanding senior unsecured long-term debt securities are rated
BBB+ or higher by S&P and Baa1 or higher by Moody's and (ii) neither Level I
Pricing nor Level II Pricing applies.
"Level IV Pricing" applies at any date if, at such date, (i)
the Company's outstanding senior unsecured long-term debt securities are rated
BBB or higher by S&P and Baa2 or higher by Moody's and (ii) none of Level I
Pricing, Level II Pricing or Level III Pricing applies.
"Level V Pricing" applies at any date if, at such date, no
other Pricing Level applies.
"LIBOR Auction" means a solicitation of Money Market Quotes
setting forth Money Market Margins based on the London Interbank Offered Rate
pursuant to Section 2.03.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind, or any other type
of preferential arrangement that has the practical effect of creating a security
interest in respect of such asset. For the purposes of this Agreement, the
Company or any Subsidiary shall be deemed to own subject to a Lien any asset
which it has acquired or holds subject to the interest of a vendor or lessor
under any conditional sale agreement, capital lease or other title retention
agreement relating to such asset.
"Loan" means a Domestic Loan or a Euro-Currency Loan or a
Money Market Loan and "Loans" means Domestic Loans or Euro-Currency Loans or
Money Market Loans or any combination of the foregoing.
"London Interbank Offered Rate" has the meaning set forth in
Section 2.07(c).
"Margin Stock" has the meaning set forth in Regulations U and
G of the Board of Governors of the Federal Reserve System.
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"Material Debt" means Debt (other than the Notes) of the
Company and/or one or more of its Subsidiaries, arising in one or more related
or unrelated transactions, in an aggregate principal amount exceeding
$10,000,000.
"Materially Adverse Effect" means any materially adverse
change in the business, operations, condition (financial or otherwise) or assets
of the Company and its Subsidiaries taken as a whole.
"Material Plan" means at any time a Plan or Plans having
aggregate Unfunded Liabilities in excess of $10,000,000.
"Money Market Absolute Rate" has the meaning set forth in
Section 2.03(d).
"Money Market Absolute Rate Loan" means a loan made by a Bank
pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each Bank, its
Domestic Lending Office or such other office, branch or affiliate of such Bank
as it may hereafter designate as its Money Market Lending Office by notice to
the Company and the Agent; provided that any Bank may from time to time by
notice to the Company and the Agent designate separate Money Market Lending
Offices for its Money Market LIBOR Loans, on the one hand, and its Money Market
Absolute Rate Loans, on the other hand, in which case all references herein to
the Money Market Lending Office of such Bank shall be deemed to refer to either
or both of such offices, as the context may require.
"Money Market LIBOR Loan" means a loan made by a Bank pursuant
to a LIBOR Auction (including such a loan bearing interest at the Base Rate
pursuant to Section 8.01(a)).
"Money Market Loan" means a Money Market LIBOR Loan or a Money
Market Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in Section
2.03(d).
"Money Market Quote" means an offer by a Bank to make a Money
Market Loan in accordance with Section 2.03.
"Moody's" means Moody's Investors Services, Inc.
"Multiemployer Plan" means at any time an employee pension
benefit plan within the meaning of Section
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4001(a)(3) of ERISA to which any member of the ERISA Group is then making or
accruing an obligation to make contributions or has within the preceding five
plan years made contributions, including for these purposes any Person which
ceased to be a member of the ERISA Group during such five year period.
"Notes" means promissory notes of a Borrower, substantially in
the form of Exhibit A hereto, evidencing the obligation of such Borrower to
repay the Loans made to it, and "Note" means any one of such promissory notes
issued hereunder.
"Notice of Borrowing" means a Notice of Committed Borrowing
(as defined in Section 2.02) or a Notice of Money Market Borrowing (as defined
in Section 2.03(f)).
"Notice of Interest Rate Election" means a notice by the
Company electing a type of interest rate and/or the duration of an Interest
Period as provided in Section 2.09(a) or 2.10.
"Parent" means, with respect to any Bank, any Person
controlling such Bank.
"Participant" has the meaning set forth in Section 11.06(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a limited
liability company, a partnership, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Plan" means at any time an employee pension benefit plan
(other than a Multiemployer Plan) which is covered by Title IV of ERISA or
subject to the minimum funding standards under Section 412 of the Internal
Revenue Code and either (i) is maintained, or contributed to, by any member of
the ERISA Group for employees of any member of the ERISA Group or (ii) has at
any time within the preceding five years been maintained, or contributed to, by
any Person which was at such time a member of the ERISA Group for employees of
any Person which was at such time a member of the ERISA Group.
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"Pricing Level" refers to Level I Pricing, Level II Pricing,
Level III Pricing, Level IV Pricing and/or Level V Pricing.
"Prime Rate" means the rate of interest publicly announced by
Morgan Guaranty Trust Company of New York in New York City from time to time as
its Prime Rate.
"Quarterly Payment Date" means each March 15, June 15,
September 15 and December 15.
"Reference Banks" means the CD Reference Banks or the
Euro-Currency Reference Banks, as the context may require, and "Reference Bank"
means any one of such Reference Banks.
"Required Banks" means at any time Banks having at least 66%
of the aggregate amount of the Commitments or, if the Commitments shall have
been terminated, holding Notes evidencing at least 66% of the aggregate unpaid
Dollar Amount of the Loans.
"SEC" means the U.S. Securities and Exchange Commission.
"S&P" means Standard & Poor's Ratings Services.
"Subsidiary" means any corporation or other entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are at the time directly or indirectly owned by the Company.
"Termination Date" means May 10, 2001 or, if such day is not a
Domestic Business Day, the next succeeding Domestic Business Day.
"Unfunded Liabilities" means, with respect to any Plan at any
time, the amount (if any) by which (i) the value of all benefit liabilities
under such Plan, determined on a plan termination basis using the assumptions
prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the
fair market value of all Plan assets allocable to such liabilities under Title
IV of ERISA (excluding any accrued but unpaid contributions), all determined as
of the then most recent valuation date for such Plan, but only to the extent
that such excess represents a potential liability of a member of the ERISA Group
to the PBGC or any other Person under Title IV of ERISA.
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"United States" means the United States of America, including
the States thereof and the District of Columbia, but excluding its territories
and possessions.
"Wholly-Owned Subsidiary" means any Subsidiary all of the
shares of capital stock or other ownership interests of which (except directors'
qualifying shares) are at the time directly or indirectly owned by the Company.
SECTION 1.02. Accounting Terms and Determinations. Unless
otherwise specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with generally accepted accounting principles as in effect from time
to time, applied on a basis consistent (except for changes concurred in by the
Company's independent public accountants) with the most recent audited
consolidated financial statements of the Company and its Consolidated
Subsidiaries delivered to the Banks; provided that, if the Company notifies the
Agent that the Company wishes to amend any covenant in Article V to eliminate
the effect of any change in generally accepted accounting principles on the
operation of such covenant (or if the Agent notifies the Company that the
Required Banks wish to amend Article V for such purpose), then the Company's
compliance with such covenant shall be determined on the basis of generally
accepted accounting principles in effect immediately before the relevant change
in generally accepted accounting principles became effective, until either such
notice is withdrawn or such covenant is amended in a manner satisfactory to the
Company and the Required Banks.
SECTION 1.03. Types of Borrowings. The term "Borrowing"
denotes the aggregation of Loans by one or more Banks to be made to a single
Borrower pursuant to Article II on a single date, all of which Loans (i) are
made in the same currency, (ii) in the case of Loans denominated in Dollars, are
of the same type (subject to Article VIII) and (iii) except in the case of Base
Rate Loans, have the same Interest Period or initial Interest Period. Borrowings
are classified for purposes of this Agreement either by reference to the
currency and/or pricing of Loans comprising such Borrowing (e.g., a "Euro-Dollar
Borrowing" is a Borrowing comprised of Euro-Dollar Loans) or by reference to the
provisions of Article II under which participation therein is determined (i.e.,
a "Committed Borrowing" is a Borrowing under Section 2.01 in which all Banks
participate in proportion to their Commitments, while a "Money Market Borrowing"
is a Borrowing under Section 2.03 in which the
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Bank participants are determined on the basis of their bids in accordance
therewith).
SECTION 1.04. Basis for Ratings. The credit ratings to be
utilized in the determination of a Pricing Level are the ratings assigned to
unsecured obligations of the Company without third party credit support. Such
ratings may be pending or implied ratings assigned by the relevant rating
agencies if ratings for outstanding obligations of the foregoing type are not
available. Ratings assigned to any obligation which is secured or which has the
benefit of third party credit support shall be disregarded.
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend. Each Bank severally agrees,
on the terms and conditions set forth in this Agreement, to make loans to the
Company or any Eligible Subsidiary pursuant to this Section from time to time
prior to the Termination Date in amounts such that the aggregate Dollar Amount
of Committed Loans by such Bank at any one time outstanding to all Borrowers
shall not exceed the amount of its Commitment, provided that any Money Market
Loan made by a Bank shall not reduce such Bank's Commitment with respect to its
pro rata portion of any Loan which is not a Money Market Loan. Each Borrowing of
Dollar- Denominated Loans under this Section shall be in an aggregate principal
amount of at least $5,000,000 (except that any such Borrowing may be in the
aggregate amount available in accordance with Section 3.02(c)). Each Borrowing
in an Alternative Currency shall be in an aggregate Dollar Amount of at least
$10,000,000. Each Borrowing under this Section, in any currency, shall be made
from the several Banks ratably in proportion to their respective Commitments.
Within the foregoing limits, the Borrowers may borrow under this Section, repay,
or to the extent permitted by Section 2.12, prepay Loans and reborrow at any
time prior to the Termination Date under this Section.
SECTION 2.02. Notice of Committed Borrowings. The Company
shall give the Agent notice (a "Notice of Committed Borrowing") not later than
11:00 A.M. (New York City time) on (i) the date of each Base Rate Borrowing,
(ii) the second Domestic Business Day before each CD Borrowing, (iii) the third
Euro-Dollar Business Day before each Euro- Dollar Borrowing and (iv) the fourth
Euro-Currency Business Day before each Alternative Currency Borrowing,
specifying:
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(a) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Domestic Borrowing or a Euro-Currency
Business Day for the relevant currency in the case of a Euro-Currency
Borrowing;
(b) the currency and aggregate amount (in such currency) of
such Borrowing;
(c) if such Borrowing is comprised of Dollar-Denominated
Loans, whether such Loans are to be CD Loans, Base Rate Loans or
Euro-Dollar Loans; and
(d) in the case of a Fixed Rate Borrowing, the duration of the
initial Interest Period applicable thereto, subject to the provisions
of the definition of Interest Period.
SECTION 2.03. Money Market Borrowings.
(a) The Money Market Option. In addition to Committed
Borrowings pursuant to Section 2.01, the Company may, as set forth in this
Section, request the Banks to make offers to make Money Market Loans to any of
the Borrowers. The Banks may, but shall have no obligation to, make such offers
and the Company may, but shall have no obligation to, accept any such offers in
the manner set forth in this Section.
(b) Money Market Quote Request. When the Company wishes to
request offers to make Money Market Loans under this Section, it shall transmit
to the Agent by telex or facsimile transmission a Money Market Quote Request
substantially in the form of Exhibit B hereto so as to be received no later than
10:00 A.M. (New York City time) on (x) the fifth Euro-Dollar Business Day prior
to the date of Borrowing proposed therein, in the case of a LIBOR Auction or (y)
the Domestic Business Day next preceding the date of Borrowing proposed therein,
in the case of an Absolute Rate Auction (or, in either case, such other time or
date as the Company and the Agent shall have mutually agreed and shall have
notified to the Banks not later than the date of the Money Market Quote Request
for the first LIBOR Auction or Absolute Rate Auction for which such change is to
be effective) specifying:
(i) the proposed date of Borrowing, which shall be a
Euro-Dollar Business Day in the case of a LIBOR Auction or a Domestic
Business Day in the case of an Absolute Rate Auction;
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(ii) the aggregate amount of such Borrowing, which shall
be $5,000,000 or a larger multiple of $1,000,000;
(iii) the duration of the Interest Period applicable
thereto, subject to the provisions of the definition of Interest
Period; and
(iv) whether the Money Market Quotes requested are to set
forth a Money Market Margin or a Money Market Absolute Rate.
The Company may request offers to make Money Market Loans for more than one
Interest Period in a single Money Market Quote Request. No Money Market Quote
Request shall be given within five Euro-Dollar Business Days (or such other
number of days as the Company and the Agent may agree) of any other Money Market
Quote Request.
(c) Invitation for Money Market Quotes. Promptly upon receipt
of a Money Market Quote Request, the Agent shall send to the Banks by telex or
facsimile transmission an Invitation for Money Market Quotes substantially in
the form of Exhibit C hereto, which shall constitute an invitation by the
Company to each Bank to submit Money Market Quotes offering to make the Money
Market Loans to which such Money Market Quote Request relates in accordance with
this Section.
(d) Submission and Contents of Money Market Quotes. (i) Each
Bank may submit a Money Market Quote containing an offer or offers to make Money
Market Loans in response to any Invitation for Money Market Quotes. Each Money
Market Quote must comply with the requirements of this subsection (d) and must
be submitted to the Agent by telex or facsimile transmission at its office in
New York City referred to in Section 11.01 not later than (x) 2:00 P.M. (New
York City time) on the fourth Euro-Dollar Business Day prior to the proposed
date of Borrowing, in the case of a LIBOR Auction or (y) 9:45 A.M. (New York
City time) on the proposed date of Borrowing, in the case of an Absolute Rate
Auction (or, in either case, such other time or date as the Company and the
Agent shall have mutually agreed and shall have notified to the Banks not later
than the date of the Money Market Quote Request for the first LIBOR Auction or
Absolute Rate Auction for which such change is to be effective); provided that
Money Market Quotes submitted by the Agent (or any affiliate of the Agent) in
the capacity of a Bank may be submitted, and may only be submitted, if the Agent
or such affiliate notifies the Company of the terms of the offer or offers
contained therein not later than (x) one
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hour prior to the deadline for the other Banks, in the case of a LIBOR Auction,
or (y) 15 minutes prior to the deadline for the other Banks, in the case of an
Absolute Rate Auction. Subject to Articles III and VI, any Money Market Quote so
made shall be irrevocable except with the written consent of the Agent given on
the instructions of the Company.
(ii) Each Money Market Quote shall be in substantially the
form of Exhibit D hereto and shall in any case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market Loan for which
each such offer is being made, which principal amount (w) may be
greater than or less than the Commitment of the quoting Bank, (x) must
be $5,000,000 or a larger multiple of $1,000,000, (y) may not exceed
the principal amount of Money Market Loans for which offers being made
by such quoting Bank may be accepted, and (z) may be subject to an
aggregate limitation as to the principal amount of Money Market Loans
for which offers being made by such quoting Bank may be accepted,
(C) in the case of a LIBOR Auction, the margin above or below
the applicable London Interbank Offered Rate (the "Money Market
Margin") offered for each such Money Market Loan, expressed as a
percentage (specified to the nearest 1/10,000th of 1%) to be added to
or subtracted from such base rate,
(D) in the case of an Absolute Rate Auction, the rate of
interest per annum (specified to the nearest 1/10,000th of 1%) (the
"Money Market Absolute Rate") offered for each such Money Market Loan,
and
(E) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate offers by the quoting
Bank with respect to each Interest Period specified in the related Invitation
for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
(A) is not substantially in conformity with Exhibit D hereto
or does not specify all of the information required by subsection
(d)(ii);
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(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set
forth in the applicable Invitation for Money Market Quotes; or
(D) arrives after the time set forth in subsection (d)(i).
(e) Notice to Borrower. The Agent shall promptly notify the
Company of the terms (x) of any Money Market Quote submitted by a Bank that is
in accordance with subsection (d) and (y) of any Money Market Quote that amends,
modifies or is otherwise inconsistent with a previous Money Market Quote
submitted by such Bank with respect to the same Money Market Quote Request. Any
such subsequent Money Market Quote shall be disregarded by the Agent unless such
subsequent Money Market Quote is submitted solely to correct a manifest error in
such former Money Market Quote. The Agent's notice to the Company shall specify
(A) the aggregate principal amount of Money Market Loans for which offers have
been received for each Interest Period specified in the related Money Market
Quote Request, (B) the respective principal amounts and Money Market Margins or
Money Market Absolute Rates, as the case may be, so offered and (C) if
applicable, limitations on the aggregate principal amount of Money Market Loans
for which offers in any single Money Market Quote may be accepted.
(f) Acceptance and Notice by Borrower. Not later than 10:30
A.M. (New York City time) on (x) the third Euro-Dollar Business Day prior to the
proposed date of Borrowing, in the case of a LIBOR Auction or (y) the proposed
date of Borrowing, in the case of an Absolute Rate Auction (or, in either case,
such other time or date as the Company and the Agent shall have mutually agreed
and shall have notified to the Banks not later than the date of the Money Market
Quote Request for the first LIBOR Auction or Absolute Rate Auction for which
such change is to be effective), the Company shall notify the Agent of the
acceptance or non-acceptance of the offers so notified to it pursuant to
subsection (e). In the case of acceptance, such notice (a "Notice of Money
Market Borrowing") shall specify the aggregate principal amount of offers for
each Interest Period that are accepted. The Company may accept any Money Market
Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Money Market
Borrowing may not exceed the applicable amount set forth in the related
Money Market Quote Request,
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(ii) the principal amount of each Money Market Borrowing must be
$5,000,000 or a larger multiple of $1,000,000,
(iii) acceptance of offers may only be made on the basis of
ascending Money Market Margins or Money Market Absolute Rates, as the
case may be, and
(iv) the Company may not accept any offer that is described in
subsection (d)(iii) or that otherwise fails to comply with the
requirements of this Agreement.
(g) Allocation by Agent. If offers are made by two or more
Banks with the same Money Market Margins or Money Market Absolute Rates, as the
case may be, for a greater aggregate principal amount than the amount in respect
of which such offers are accepted for the related Interest Period, the principal
amount of Money Market Loans in respect of which such offers are accepted shall
be allocated by the Agent among such Banks as nearly as possible (in multiples
of $1,000,000, as the Agent may deem appropriate) in proportion to the aggregate
principal amounts of such offers. Determinations by the Agent of the amounts of
Money Market Loans shall be conclusive in the absence of manifest error.
SECTION 2.04. Notice to Banks; Funding of Loans.
(a) Upon receipt of a Notice of Borrowing, the Agent shall
promptly notify each Bank of the contents thereof (including the name of the
Borrower) and of such Bank's share (if any) of such Borrowing and such Notice of
Borrowing shall not thereafter be revocable by such Borrower.
(b) On the date of each Borrowing, each Bank participating
therein shall:
(i) if such Borrowing is to be made in Dollars, make available
its share of such Borrowing in Dollars, not later than 12:00 Noon (New
York City time), in Federal or other funds immediately available in New
York City, to the Agent at its address in New York City referred to in
Section 11.01; or
(ii) if such Borrowing is to be made in an Alternative
Currency, make available its share of such Borrowing in such
Alternative Currency (in such funds as may then be customary for the
settlement of international transactions in such Alternative
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Currency) to the account of the Agent at such time and place as shall
have been notified by the Agent to the Banks by not less than four
Domestic Business Days' notice.
Unless the Agent determines that any applicable condition specified in Article
III has not been satisfied, the Agent will make the funds so received from the
Banks available to the relevant Borrower at the aforesaid address or place.
(c) Unless the Agent shall have received notice from a Bank
prior to the date of any Borrowing that such Bank will not make available to the
Agent such Bank's share of such Borrowing, the Agent may assume that such Bank
has made such share available to the Agent on the date of such Borrowing in
accordance with subsection (b) of this Section and the Agent may, in reliance
upon such assumption, make available to the relevant Borrower on such date a
corresponding amount. If and to the extent that such Bank shall not have so made
such share available to the Agent, such Bank and such 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 such Borrower until the date such amount is repaid to the Agent, at (i) in
the case of such Borrower, a rate per annum equal to the higher of the Federal
Funds Rate and the interest rate applicable thereto pursuant to Section 2.07 and
(ii) in the case of such Bank, the Federal Funds Rate (if such Borrowing is in
Dollars) or the applicable Adjusted London Interbank Offered Rate (if such
Borrowing is in an Alternative Currency). If such Bank shall repay to the Agent
such corresponding amount, such amount so repaid shall constitute such Bank's
Loan included in such Borrowing for purposes of this Agreement.
SECTION 2.05. Notes. (a) The Loans of each Bank to each
Borrower shall be evidenced by a single Note of such Borrower payable to the
order of such Bank for the account of its Applicable Lending Office in an amount
equal to the aggregate unpaid principal amount of such Bank's Loans to such
Borrower.
(b) Each Bank may, by notice to a Borrower and the Agent,
request that its Loans of a particular type to such Borrower be evidenced by a
separate Note of such Borrower in an amount equal to the aggregate unpaid
principal amount of such Loans. Each such Note shall be in substantially the
form of Exhibit A hereto with appropriate modifications to reflect the fact that
it evidences solely Loans of the relevant type. Each reference in this Agreement
to the "Note" of such Bank shall be deemed to
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refer to and include any or all of such Notes, as the context may require.
(c) Upon receipt of Notes from any Borrower pursuant to
Section 3.01(b) or 3.03(b), the Agent shall forward such Notes to the Banks.
Each Bank shall record the date, currency, amount (in such currency), type and
maturity of each Loan made by it to each Borrower and the date and amount of
each payment of principal made with respect thereto, and may, if such Bank so
elects in connection with any transfer or enforcement of any of its Notes,
endorse on the schedule forming a part thereof appropriate notations to evidence
the foregoing information with respect to each such Loan to the relevant
Borrower then outstanding; provided that the failure of any Bank to make any
such recordation or endorsement shall not affect the obligations of any Borrower
hereunder or under the Notes. Each Bank is hereby irrevocably authorized by each
Borrower so to endorse its Note of such Borrower and to attach to and make a
part of any Note a continuation of any such schedule as and when required.
SECTION 2.06. Maturity of Loans. (a) Each Committed Loan shall
mature, and the principal amount thereof shall be due and payable, on the
Termination Date (or, if the Termination Date is not a Euro-Currency Business
Day for the relevant currency, the next preceding Euro-Currency Business Day
for such currency).
(b) Each Money Market Loan included in any Money Market
Borrowing shall mature, and the principal amount thereof shall be due and
payable, on the last day of the Interest Period applicable to such Borrowing.
SECTION 2.07. Interest Rates. (a) Each Base Rate Loan shall
bear interest on the outstanding principal amount thereof, for each day from the
date such Loan is made until it becomes due or is converted to a different type
of Loan, at a rate per annum equal to the Base Rate for such day. Such interest
shall be payable quarterly in arrears on each Quarterly Payment Date and, with
respect to the principal amount of any Base Rate Loan converted to a different
type of Loan, on the date such principal amount is so converted. Any overdue
principal of or interest on any Base Rate Loan shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to the sum of 2% plus
the Base Rate for such day.
(b) Each CD Loan shall bear interest on the outstanding
principal amount thereof, for each Interest Period applicable thereto, at a rate
per annum equal to the
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sum of the CD Margin plus the applicable Adjusted CD Rate; provided that if any
CD Loan or any portion thereof shall, as a result of clause (2)(b) of the
definition of Interest Period, have an Interest Period of less than 30 days,
such portion shall bear interest during such Interest Period at the rate
applicable to Base Rate Loans during such period. Such interest shall be payable
for each Interest Period on the last day thereof and, if such Interest Period is
longer than 90 days, 90 days after the first day thereof. Any overdue principal
of or interest on any CD Loan shall bear interest, payable on demand, for each
day until paid at a rate per annum equal to the sum of 2% plus the higher of (i)
the sum of the CD Margin plus the Adjusted CD Rate applicable to such Loan
immediately before it became overdue and (ii) the Base Rate for such day.
"CD Margin" means (i) 0.265% for any day on which Level I
Pricing applies, (ii) 0.275% for any day on which Level II Pricing applies,
(iii) 0.325% for any day on which Level III Pricing applies, (iv) 0.350% for any
day on which Level IV Pricing applies and (v) 0.4375% for any day on which Level
V Pricing applies.
The "Adjusted CD Rate" applicable to any Interest Period means
a rate per annum determined pursuant to the following formula:
[ CDBR ]*
ACDR = [----------] + AR
[1.00 - DRP]
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
- ---------------
* The amount in brackets being rounded upward, if necessary,
to the next higher 1/100 of 1%.
The "CD Base Rate" applicable to any Interest Period is the
rate of interest determined by the Agent to be the average (rounded upward, if
necessary, to the next higher 1/100 of 1%) of the prevailing rates per annum bid
at 10:00 A.M. (New York City time) (or as soon thereafter as practicable) on the
first day of such Interest Period by two or more New York certificate of deposit
dealers of recognized standing for the purchase at face value from each CD
Reference Bank of its certificates of deposit in an amount comparable to the
principal amount of the CD Loan of
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such CD Reference Bank to which such Interest Period applies and having a
maturity comparable to such Interest Period.
"Domestic Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement (including without
limitation any basic, supplemental or emergency reserves) for a member bank of
the Federal Reserve System in New York City with deposits exceeding five billion
dollars in respect of new non-personal time deposits in dollars in New York City
having a maturity comparable to the related Interest Period and in an amount of
$100,000 or more. The Adjusted CD Rate shall be adjusted automatically on and as
of the effective date of any change in the Domestic Reserve Percentage.
"Assessment Rate" means for any day the annual assessment rate
in effect on such day which is payable by a member of the Bank Insurance Fund
classified as adequately capitalized and within supervisory subgroup "A" (or a
comparable successor assessment risk classification) within the meaning of 12
C.F.R. Section 327.4(a) (or any successor provision) to the Federal Deposit
Insurance Corporation (or any successor) for such Corporation's (or such
successor's) insuring time deposits at offices of such institution in the United
States. The Adjusted CD Rate shall be adjusted automatically on and as of the
effective date of any change in the Assessment Rate.
(c) Each Euro-Currency Loan shall bear interest on the
outstanding principal amount thereof, for each Interest Period applicable
thereto, at a rate per annum equal to the sum of the Euro-Currency Margin plus
the applicable Adjusted London Interbank Offered Rate. Such interest shall be
payable for each Interest Period on the last day thereof and, if such Interest
Period is longer than three months, three months after the first day thereof.
"Euro-Currency Margin" means (i) 0.140% for any day on which
Level I Pricing applies, (ii) 0.150% for any day on which Level II Pricing
applies, (iii) 0.200% for any day on which Level III Pricing applies, (iv)
0.225% for any day on which Level IV Pricing applies and (v) 0.3125% for any day
on which Level V Pricing applies
The "Adjusted London Interbank Offered Rate" applicable to any
Interest Period means a rate per annum equal to the quotient obtained (rounded
upward if necessary, to the next higher 1/100 of 1%) by dividing (i) the
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applicable London Interbank Offered Rate by (ii) 1.00 minus the Euro-Currency
Reserve Percentage.
The "London Interbank Offered Rate" applicable to any Interest Period
means the average (rounded upward, if necessary, to the next higher 1/16 of 1%)
of the respective rates per annum at which deposits in the relevant currency are
offered to each of the Euro-Currency Reference Banks in the London interbank
market at approximately 11:00 A.M. (London time) two Euro-Currency Business Days
before the first day of such Interest Period in an amount approximately equal to
the principal amount of the Euro-Currency Loan of such Euro-Currency Reference
Bank to which such Interest Period is to apply and for a period of time
comparable to such Interest Period.
"Euro-Currency Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "Eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Currency Loans is determined or any category of extensions of credit or
other assets which includes loans by a non-United States office of any Bank to
United States residents). The Adjusted London Interbank Offered Rate shall be
adjusted automatically on and as of the effective date of any change in the
Euro-Currency Reserve Percentage.
(d) Any overdue principal of or interest on any Euro-Currency Loan
shall bear interest, payable on demand, for each day from and including the date
payment thereof was due to but excluding the date of actual payment, at a rate
per annum equal to the sum of 2% plus the Euro-Currency Margin plus the higher
of (i) the Adjusted London Interbank Offered Rate applicable to such Loan
immediately before it became overdue and (ii) the quotient obtained (rounded
upward if necessary, to the next higher 1/100 of 1%) by dividing (x) the average
(rounded upward, if necessary, to the next higher 1/16 of 1%) of the respective
rates per annum at which one day (or, if such amount due remains unpaid more
than three Euro-Currency Business Days, then for such other period of time not
longer than six months as the Agent may select) deposits in the relevant
currency in an amount approximately equal to such overdue payment due to each of
the Euro-Currency Reference Banks are offered to such Euro-Currency Reference
Bank in the London interbank
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market for the applicable period determined as provided above by (y) 1.00 minus
the Euro-Currency Reserve Percentage (or, if the circumstances described in
clause (a) or (b) of Section 8.01 shall exist, at a rate per annum equal to the
sum of 2% plus the Base Rate for such day).
(e) Subject to Section 8.01(a), each Money Market LIBOR Loan shall
bear interest on the outstanding principal amount thereof, for the Interest
Period applicable thereto, at a rate per annum equal to the sum of the London
Interbank Offered Rate for such Interest Period (determined in accordance with
Section 2.07(c) as if the related Money Market LIBOR Borrowing were a Committed
Euro-Dollar Borrowing) plus (or minus) the Money Market Margin quoted by the
Bank making such Loan in accordance with Section 2.03. Each Money Market
Absolute Rate Loan shall bear interest on the outstanding principal amount
thereof, for the Interest Period applicable thereto, at a rate per annum equal
to the Money Market Absolute Rate quoted by the Bank making such Loan in
accordance with Section 2.03. Such interest shall be payable for each Interest
Period on the last day thereof and, if such Interest Period is longer than three
months, at intervals of three months after the first day thereof. Any overdue
principal of or interest on any Money Market Loan shall bear interest, payable
on demand, for each day until paid at a rate per annum equal to the sum of 2%
plus the Base Rate for such day.
(f) The Agent shall determine each interest rate applicable to
the Loans hereunder. The Agent shall give prompt notice to the Company and the
participating Banks of each rate of interest so determined, and its
determination thereof shall be conclusive in the absence of manifest error.
(g) Each Reference Bank agrees to use its best efforts to
furnish quotations to the Agent as contemplated by this Section. If any
Reference Bank does not furnish a timely quotation, the Agent shall determine
the relevant interest rate on the basis of the quotation or quotations furnished
by the remaining Reference Bank or Banks or, if none of such quotations is
available on a timely basis, the provisions of Section 8.01 shall apply.
SECTION 2.08. Facility Fees. The Company shall pay to the
Agent, for the account of the Banks ratably in proportion to their Commitments,
a facility fee calculated for each day at the Facility Fee Rate for such day.
Such facility fee shall accrue (i) for each day from and including the Effective
Date to but excluding the Termination Date (or earlier date on which the
Commitments
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terminate in their entirety), on the aggregate amount of the Commitments
(whether used or unused) in effect on such day and (ii) for each day from and
including the date on which the Commitments terminate in their entirety to but
excluding the date on which the Loans shall be repaid in their entirety, on the
aggregate Dollar Amount of the Loans outstanding on such day. Such fees shall be
payable quarterly in arrears on each Quarterly Payment Date, and on the date on
which the Commitments terminate in their entirety (and, if later, the date on
which the Loans shall be repaid in their entirety).
"Facility Fee Rate" means (i) 0.060% per annum for any day on
which Level I Pricing applies, (ii) 0.075% per annum for any day on which Level
II Pricing applies, (iii) 0.100% per annum for any day on which Level III
Pricing applies, (iv) 0.125% per annum for any day on which Level IV Pricing
applies and (v) 0.1875% per annum for any day on which Level V Pricing applies.
SECTION 2.09. Method of Electing Types of Interest Rates and
Interest Periods for Dollar-Denominated Loans. (a) The Loans included in each
Committed Dollar-Denominated Borrowing shall bear interest initially at the
type of interest rate specified by the Company in the applicable Notice of
Borrowing. Thereafter, the Company may from time to time elect to change or
continue the type of interest rate borne by each Group of Dollar-Denominated
Loans (subject to the provisions of Article VIII), as follows:
(i) if such Loans are Base Rate Loans, the Company may elect
to convert such Loans to CD Loans as of any Domestic Business Day or to
Euro-Dollar Loans as of any Euro-Dollar Business Day;
(ii) if such Loans are CD Loans, the Company may elect to
convert such Loans to Base Rate Loans or Euro-Dollar Loans or elect to
continue such Loans as CD Loans for an additional Interest Period,
subject to Section 2.14 in the case of any such conversion on any day
other than the last day of the then current Interest Period applicable
to such CD Loans;
(iii) if such Loans are Euro-Dollar Loans, the Company may
elect to convert such Loans to Base Rate Loans or CD Loans or elect to
continue such Loans as Euro-Dollar Loans for an additional Interest
Period, subject to Section 2.14 in the case of any such conversion on
any day other than the last day of the
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then current Interest Period applicable to such Euro-Dollar Loans.
Each such election shall be made by delivering a notice to the Agent not later
than 10:00 A.M. (New York City time) on the third Euro-Dollar Business Day
before the conversion or continuation selected in such notice is to be effective
(unless the relevant Loans are to be converted from Domestic Loans to Domestic
Loans of the other type or continued as CD Loans of the same type for an
additional Interest Period, in which case such notice shall be delivered to the
Agent at least three Domestic Business Days before such conversion or
continuation is to be effective). Such notice may, if it so specifies, apply to
only a portion of the aggregate principal amount of the relevant Group of Loans;
provided that (i) such portion is allocated ratably among the Loans comprising
such Group and (ii) the Dollar Amount of the portion to which such notice
applies, and the remaining portion to which it does not apply, are each at least
$5,000,000. If no such notice is timely received prior to the end of an Interest
Period, the Company shall be deemed to have elected that such Group of Loans be
converted to Base Rate Loans.
(b) Each Notice of Interest Rate Election delivered pursuant
to subsection (a) above shall specify:
(i) the Group of Loans (or portion thereof) to which such
notice applies;
(ii) the date on which the conversion or continuation selected
in such notice is to be effective, which shall comply with the
applicable clause of subsection (a) above;
(iii) if the Loans comprising such Group are to be converted,
the new type of Loans and, if the Loans being converted are to be Fixed
Rate Loans, the duration of the next succeeding Interest Period
applicable thereto; and
(iv) if such Loans are to be continued as CD Loans or
Euro-Dollar Loans for an additional Interest Period, the duration of
such additional Interest Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Upon receipt of a Notice of Interest Rate Election from
the Company pursuant to subsection (a) above,
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the Agent shall promptly notify each Bank of the contents thereof and such
notice shall not thereafter be revocable by the Company.
SECTION 2.10. Method of Electing Interest Periods for
Alternative Currency Loans; Required Prepayments. (a) The initial Interest
Period for each Group of Alternative Currency Loans shall be specified by the
Company in the applicable Notice of Borrowing. The Company may specify the
duration of each subsequent Interest Period applicable to such Group of Loans by
delivering to the Agent, not later that 10:00 A.M. (New York City time) on the
third Euro-Currency Business Day before the end of the immediately preceding
Interest Period, a notice specifying the Group of Loans (or portion thereof) to
which such notice applies and the duration of such subsequent Interest Period
(which shall comply with the provisions of the definition of Interest Period).
If no such Notice of Interest Rate Election is timely received by the Agent
before the end of any applicable Interest Period, the Company shall be deemed to
have elected that the subsequent Interest Period for such Group of Loans shall
have a duration of one month (subject to the provisions of the definition of
Interest Period).
(b) Three Euro-Currency Business Days before the end of each
Interest Period applicable to any Group of Alternative Currency Loans, the Agent
shall notify the Company as to the Agent's spot buying rate for Dollars against
the relevant Alternative Currency as of approximately 9:00 A.M. (New York City
time) on such day and the aggregate Dollar Amount of such Group of Loans as
recalculated on the basis of such spot buying rate. On the last day of such
Interest Period the relevant Borrower shall prepay such Group of Loans ratably
to the extent (if any) required so that, at the beginning of the next Interest
Period applicable thereto (and giving effect to such recalculation of the Dollar
Amount thereof), (i) the aggregate Dollar Amount of Committed Loans by each Bank
then outstanding to all Borrowers does not exceed the amount of such Bank's
Commitment, (ii) the aggregate Dollar Amount of all Loans then outstanding to
all Eligible Subsidiaries does not exceed $100,000,000 and (iii) the aggregate
Dollar Amount of all Loans then outstanding to all Borrowers does not exceed the
aggregate amount of the Commitments.
(c) If on or before the first day of any Interest Period
applicable to any Group of Alternative Currency Loans, there shall occur any
change in national or international financial, political or economic conditions
or currency exchange rates or exchange controls which would in the opinion of
the Agent make it impracticable for such
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Group of Loans to continue to be denominated in the relevant Alternative
Currency, the Agent shall forthwith give notice thereof to the Company and the
Banks, in which event the relevant Borrower shall repay such Group of Loans in
full on the later of (i) the last day of the immediately preceding Interest
Period or (ii) the third Euro-Currency Business Day after the Company receives
such notice from the Agent. Such Group of Loans shall bear interest on and after
the last day of such immediately preceding Interest Period at a rate per annum
determined for each day as provided in Section 2.07(d) (except that if the
repayment due date is determined pursuant to the foregoing clause (ii), the 2%
per annum additional interest applicable to overdue amounts shall not apply
prior to such due date).
SECTION 2.11. Termination or Reduction of Commitments. (a) The
Company may, upon at least three Domestic Business Days' notice to the Agent,
(i) terminate the Commitments at any time, if no Loans are outstanding at such
time or (ii) ratably reduce from time to time by an aggregate amount of
$10,000,000 or any larger multiple thereof, the aggregate amount of the
Commitments in excess of the aggregate outstanding principal amount of the
Loans.
(b) The Commitments shall terminate on the Termination Date,
and any Loans then outstanding (together with accrued interest thereon) shall be
due and payable on such date.
SECTION 2.12. Optional Prepayments. (a) Any Borrower may:
(i) upon at least one Domestic Business Day's notice to the
Agent, prepay its Group of Base Rate Loans (or any Money Market Loans
bearing interest at the Base Rate pursuant to Section 8.01(a)), in
whole at any time, or from time to time in part in amounts aggregating
$5,000,000 or any larger multiple of $1,000,000;
(ii) upon at least three Euro-Dollar Business Days' notice to
the Agent, subject to Section 2.14, prepay any Group of CD Loans or
Group of Euro-Dollar Loans, in whole at any time, or from time to time
in part in amounts aggregating $5,000,000 or any larger multiple of
$1,000,000; or
(iii) upon at least three Euro-Currency Business Days' notice
to the Agent, subject to Section 2.14, prepay any Group of Alternative
Currency Loans, in whole at any time, or from time to time in part;
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provided that the aggregate Dollar Amount of any partial prepayment is
at least $5,000,000;
in each case, by paying the principal amount to be prepaid together with accrued
interest thereon to the date of prepayment. Each such optional prepayment shall
be applied to prepay ratably the Loans of the several Banks included in such
Group of Loans.
(b) Except as provided in Section 8.02, no Borrower may prepay
all or any portion of the principal amount of any Money Market Loan (except a
Money Market Loan bearing interest at the Base Rate pursuant to Section 8.01(a))
prior to the maturity thereof.
(c) Upon receipt of a notice of prepayment pursuant to this
Section, the Agent shall promptly notify each Bank of the contents thereof and
of such Bank's ratable share (if any) of such prepayment and such notice shall
not thereafter be revocable by the Borrower.
SECTION 2.13. General Provisions as to Payments. (a) Each
payment of principal of, and interest on, the Dollar-Denominated Loans and each
payment of fees hereunder, shall be made in Dollars not later than 12:00 Noon
(New York City time) on the date when due, in Federal or other funds immediately
available in New York City, to the Agent at its address in New York City
referred to in Section 11.01.
(b) Each payment of principal of, and interest on, the
Alternative Currency Loans shall be made in the relevant Alternative Currency in
such funds as may then be customary for the settlement of international
transactions in such Alternative Currency, for the account of the Agent at such
time and at such place as shall have been notified by the Agent to the Company
and the Banks by not less than four Euro-Currency Business Days' notice.
(c) Promptly upon receiving any payment for the account of the
Banks, the Agent will distribute to each Bank, in the currency and type of funds
received by the Agent, such Bank's ratable share of such payment.
(d) Whenever any payment of principal of, or interest on, the
Domestic Loans or of fees shall be due on a day which is not a Domestic Business
Day, the date for payment thereof shall be extended to the next succeeding
Domestic Business Day. Whenever any payment of principal of, or interest on, the
Euro-Currency Loans shall be due on a day which is not a Euro-Currency Business
Day for the relevant currency, the date for payment thereof shall be
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extended to the next succeeding Euro-Currency Business Day for such currency,
unless such Euro-Currency Business Day falls in another calendar month, in which
case the date for payment thereof shall be the next preceding Euro-Currency
Business Day for such currency. Whenever any payment of principal of, or
interest on, the Money Market Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case the date for payment thereof
shall be the next preceding Euro-Dollar Business Day. If the date for any
payment of principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
(e) Unless the Agent shall have received notice from the
Company prior to the date on which any payment is due from any Borrower to the
Banks hereunder that such Borrower will not make such payment in full, the Agent
may assume that such Borrower has made such payment in full to the Agent on such
date and the Agent may, in reliance upon such assumption, cause to be
distributed to each Bank on such due date an amount equal to the amount then due
such Bank. If and to the extent that such Borrower shall not have so made such
payment, each Bank shall repay to the Agent forthwith on demand such amount
distributed to such Bank together with interest thereon, for each day from the
date such amount is distributed to such Bank until the date such Bank repays
such amount to the Agent, at (i) the Federal Funds Rate (if such amount was
distributed in Dollars) or (ii) the rate per annum at which one day deposits in
the relevant currency are offered to the Agent in the London interbank market
for such day (if such amount was distributed in an Alternative Currency).
SECTION 2.14. Funding Losses. If a Borrower makes any payment
of principal with respect to any Fixed Rate Loan (pursuant to Section 2.12,
Article VI or VIII or otherwise) on any day other than the last day of an
Interest Period applicable thereto, or the last day of an applicable period
fixed pursuant to Section 2.07(d), or if a Borrower fails to borrow any Fixed
Rate Loans (including a failure to borrow in an Alternative Currency due to the
occurrence of any event described in Section 3.02(f)) after notice has been
given to any Bank in accordance with Section 2.04(a), such Borrower shall
reimburse each Bank within 15 days after demand for any resulting loss or
expense incurred by it (or by an existing or prospective Participant in the
related Loan), including (without limitation) any loss incurred in obtaining,
liquidating or employing deposits from third parties, but excluding loss of
margin for the period after
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any such payment or failure to borrow, provided that such Bank shall have
delivered to such Borrower a certificate as to the amount of such loss or
expense, which certificate shall be conclusive in the absence of manifest error.
SECTION 2.15. Computation of Interest and Fees. Interest based
on the Prime Rate hereunder shall be computed on the basis of a year of 365 days
(or 366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and
fees shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
SECTION 2.16. Judgment Currency. If for the purpose of
obtaining judgment in any court it is necessary to convert a sum due from any
Borrower hereunder or under any Note in the currency expressed to be payable
herein (the "specified currency") into another currency, the parties hereto
agree, to the fullest extent that they may effectively do so, that the rate of
exchange used shall be that at which in accordance with normal banking
procedures the Agent could purchase the specified currency with such other
currency at the Agent's New York office on the Euro-Currency Business Day
preceding that on which final judgment is given. The obligations of each
Borrower in respect of any sum due to any Bank or the Agent hereunder or under
any Note shall, notwithstanding any judgment in a currency other than the
specified currency, be discharged only to the extent that, on the Euro-Currency
Business Day following receipt by such Bank or the Agent (as the case may be) of
any sum adjudged to be so due in such other currency, such Bank or the Agent (as
the case may be) may in accordance with normal banking procedures purchase the
specified currency with such other currency. If the amount of the specified
currency so purchased is less than the sum originally due to such Bank or the
Agent, as the case may be, in the specified currency, the relevant Borrower
agrees, to the fullest extent that it may effectively do so, as a separate
obligation and notwithstanding any such judgment, to indemnify such Bank or the
Agent, as the case may be, against such loss, and if the amount of the specified
currency so purchased exceeds (a) the sum originally due to any Bank or the
Agent, as the case may be, in the specified currency and (b) any amounts shared
with other Banks as a result of allocations of such excess as a disproportionate
payment to such Bank under Section 11.04, such Bank or the Agent, as the case
may be, agrees to remit such excess to the relevant Borrower.
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ARTICLE III
CONDITIONS
SECTION 3.01. Effectiveness. This Amendment shall become
effective, and the Agreement shall be amended and restated to read in full as
set forth herein, when the Agent shall have received:
(a) counterparts of this Amendment signed by each of the
parties listed on the signature pages hereof (or, in the case of any
party as to which an executed counterpart shall not have been received,
by the Agent shall have received, in form satisfactory to it,
facsimile, telex or other written confirmation from such party that it
has executed a counterpart hereof);
(b) a duly executed Note of the Company for the account of
each Bank, dated on or before the Effective Date and complying with the
provisions of Section 2.05;
(c) for the account of each Bank, all unpaid fees accrued
under Section 2.08 of the Agreement to but excluding the Effective
Date;
(d) an opinion of Francis R. Tunney, Jr., Esq., Corporate Vice
President and General Counsel of the Company, substantially in the form
of Exhibit E hereto, each such opinion to cover such additional matters
relating to the transactions contemplated hereby as the Required Banks
may reasonably request;
(e) an opinion of Davis Polk & Wardwell, special counsel for
the Agent, substantially in the form of Exhibit F hereto and covering
such additional matters relating to the transactions contemplated
hereby as the Required Banks may reasonably request; and
(f) all documents the Agent may reasonably request relating to
the existence of the Company, the corporate authority for and the
validity of this Agreement and the Notes of the Company, and any other
matters relevant hereto, all in form and substance satisfactory to the
Agent.
The Agent shall promptly notify the Company and the Banks of the Effective Date,
and such notice shall be conclusive and binding on all parties hereto.
SECTION 3.02. Borrowings. The obligation of any Bank to make a
Loan on the occasion of any Borrowing is subject to the satisfaction of the
following conditions:
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(a) the fact that the Effective Date shall have occurred on or
prior to May 25, 1996;
(b) receipt by the Agent of a Notice of Borrowing as required
by Section 2.02 or 2.03, as the case may be;
(c) the fact that, immediately after such Borrowing, (i) the
aggregate Dollar Amount of all Loans then outstanding to all Borrowers
will not exceed the aggregate amount of the Commitments and (ii) the
aggregate Dollar Amount of all Loans then outstanding to all Eligible
Subsidiaries shall not exceed $100,000,000;
(d) the fact that, immediately before and after such
Borrowing, no Default shall have occurred and be continuing;
(e) the fact that the representations and warranties of the
Borrowers contained in this Agreement shall be true on and as of the
date of such Borrowing; and
(f) in the case of an Alternative Currency Borrowing, there
shall not have occurred any change in national or international
financial, political or economic conditions or currency exchange rates
or exchange controls which would in the opinion of the Agent make it
impracticable for such Borrowing to be denominated in the relevant
Alternative Currency.
Each Borrowing hereunder shall be deemed to be a representation and warranty by
the Company on the date of such Borrowing as to the facts specified in clauses
(c), (d) and (e) of this Section.
SECTION 3.03. First Borrowing by Each Eligible Subsidiary. The
obligation of each Bank to make a Loan on the occasion of the first Borrowing by
each Eligible Subsidiary is subject to the satisfaction of the following further
conditions:
(a) receipt by the Agent of an Election to Participate duly
executed by such Eligible Subsidiary and the Company;
(b) receipt by the Agent for the account of each Bank of a
duly executed Note of such Eligible Subsidiary, dated on or before the
date of such
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Borrowing and complying with the provisions of Section 2.05; and
(c) receipt by the Agent of all documents which it may
reasonably request relating to the existence of such Eligible
Subsidiary, the corporate authority for and the validity of its
Election to Participate (if any), this Agreement and its Notes, and any
other matters relevant thereto, all in form and substance satisfactory
to the Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants that:
SECTION 4.01. Corporate Existence and Power. The Company is a
corporation duly incorporated, validly existing and in good standing under the
laws of Delaware, and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted.
SECTION 4.02. Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by the Company of this
Agreement and its Notes are within the Company's corporate powers, have been
duly authorized by all necessary corporate action, require no action by or in
respect of, or filing with, any governmental body, agency or official under any
provision of law or regulation applicable to the Company, and do not contravene,
or constitute a default under, any provision of law or regulation applicable to
the Company or of the restated certificate of incorporation or by-laws of the
Company or of any agreement, judgment, injunction, order, decree or other
instrument binding upon the Company or any of its Subsidiaries or result in the
creation or imposition of any Lien on any asset of the Company or any of its
Subsidiaries.
SECTION 4.03. Binding Effect. This Agreement constitutes a
valid and binding agreement of the Company and its Notes, when executed and
delivered in accordance with this Agreement, will constitute valid and binding
obligations of the Company.
SECTION 4.04. Financial Information. (a) The consolidated
balance sheet of the Company and its Consolidated Subsidiaries as of December
31, 1995 and the related consolidated statements of earnings and cash flows
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for the fiscal year then ended, reported on by KPMG Peat Marwick LLP, a copy of
which has been delivered to each of the Banks, fairly present, in conformity
with generally accepted accounting principles, the consolidated financial
position of the Company and its Consolidated Subsidiaries as of such date and
their consolidated results of operations and cash flows for such fiscal year.
(b) Since December 31, 1995 there has been no material adverse
change in the business, financial position, assets, liabilities or results of
operations of the Company and its Consolidated Subsidiaries, considered as a
whole.
SECTION 4.05. Litigation. There is no action, suit or
proceeding pending against, or to the knowledge of the Company threatened
against or affecting, the Company or any of its Subsidiaries before any
Governmental Authority in which there is a reasonable possibility of an adverse
decision which could materially adversely affect the business or consolidated
financial position of the Company and its Subsidiaries, taken as a whole, or
which in any manner draws into question the validity of this Agreement or its
Notes.
SECTION 4.06. Compliance with ERISA. Each member of the ERISA
Group has fulfilled its obligations under the minimum funding standards of ERISA
and the Internal Revenue Code with respect to each Plan and is in compliance in
all material respects with the presently applicable provisions of ERISA and the
Internal Revenue Code with respect to each Plan. No member of the ERISA Group
has (i) sought a waiver of the minimum funding standard under Section 412 of the
Internal Revenue Code in respect of any Plan, (ii) failed to make any
contribution or payment to any Plan or Multiemployer Plan, or made any amendment
to any Plan, which has resulted or could result in the imposition of a Lien or
the posting of a bond or other security under ERISA or the Internal Revenue Code
or (iii) incurred any liability under Title IV of ERISA other than a liability
to the PBGC for premiums under Section 4007 of ERISA.
SECTION 4.07. Environmental Matters. In the ordinary course of
its business, the Company conducts an ongoing review of the effect of
Environmental Laws on the business, operations and properties of the Company and
its Subsidiaries, in the course of which it identifies and evaluates associated
liabilities and costs (including, without limitation, any capital or operating
expenditures required for clean-up or closure of properties presently or
previously owned, any capital or operating expenditures required to achieve or
maintain compliance with
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environmental protection standards imposed by law or as a condition of any
license, permit or contract, any related constraints on operating activities,
including any periodic or permanent shutdown of any facility or reduction in the
level of or change in the nature of operations conducted thereat, any costs or
liabilities in connection with off-site disposal of wastes or Hazardous
Substances, and any actual or potential liabilities to third parties, including
employees, and any related costs and expenses). On the basis of this review, the
Company has reasonably concluded that such associated liabilities and costs,
including the costs of compliance with Environmental Laws, are unlikely to have
a Materially Adverse Effect.
SECTION 4.08. Taxes. The Company and its Subsidiaries have
filed all United States Federal income tax returns and all other material tax
returns which are required to be filed by them and have paid all taxes due
pursuant to such returns or pursuant to any assessment received by the Company
or any Subsidiary, except assessments which are being contested in good faith
and as to which adequate reserves have been provided. The charges, accruals and
reserves on the books of the Company and its Subsidiaries in respect of taxes or
other governmental charges are, in the reasonable opinion of the Company,
adequate.
SECTION 4.09. Not an Investment Company. The Company is not an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
SECTION 4.10. Full Disclosure. All Information (as defined
below) heretofore furnished by the Company is, and all Information hereafter
furnished by the Company will be, true and accurate in all material respects on
the date as of which such Information is dated or certified (except for any
projections included therein, which projections shall have provided reasonable
estimations of future performance for the periods covered thereby subject to the
uncertainty and approximation inherent in any projections) and not incomplete by
omitting to state anything necessary to make such Information not misleading at
such time except to the extent later Information could reasonably have been
expected to supersede earlier Information. As used in this Section, the term
"Information" means (i) the information set forth in the Company's report on
Form 10-K for its fiscal year ended December 31, 1995 and in all subsequent
reports on Forms 10-K, 10-Q and 8-K (or their equivalents) and registration
statements (excluding exhibits thereto and any registration statements on Form
S-8 or its equivalent) which the Company shall have filed with the SEC and (ii)
all
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other information furnished by the Company to the Agent or any Bank for purposes
of or in connection with this Agreement, but only if such other information is
(x) financial information, (y) furnished in writing to all the Banks or to the
Agent for distribution to all the Banks or (z) furnished at a meeting to which
all the Banks were invited.
SECTION 4.11. Subsidiaries. Each of the Company's corporate
Subsidiaries is a corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation, and has all
corporate powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted,
except where failures to obtain such licenses, authorizations, consents and
approvals would not, in the aggregate, have a Materially Adverse Effect.
SECTION 4.12. Good Title to Properties. The Company and its
Subsidiaries have good and marketable title to their respective properties and
assets (except properties and assets that, in the aggregate, are not material to
the Company and its Subsidiaries taken as a whole), subject to no Liens of any
kind, except such as would be permitted under Section 5.10.
SECTION 4.13. Trademarks, Patents, etc. Except as disclosed to
the Banks in Exhibit J hereto, the Company and its Subsidiaries possess
trademarks, trade names, copyrights, patents and licenses, or rights in any
thereof, adequate in all material respects for the conduct of their business
(taken as a whole) as now conducted, without material conflict with the rights
or, to the best knowledge of the Company, any claimed rights of others.
ARTICLE V
COVENANTS
The Company agrees that, so long as any Bank has any
Commitment hereunder or any amount payable under any Note remains unpaid:
SECTION 5.01. Information. The Company will deliver to each of
the Banks:
(a) as soon as available and in any event within 105 days
after the end of each fiscal year of the Company, a consolidated
balance sheet of the Company and its Consolidated Subsidiaries as of
the end of such
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fiscal year and the related consolidated statements of earnings and
cash flows for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, all reported
on in a manner acceptable to the SEC by KPMG Peat Marwick LLP or other
independent public accountants of nationally recognized standing;
(b) as soon as available and in any event within 60 days after
the end of each of the first three quarters of each fiscal year of the
Company, an unaudited consolidated balance sheet of the Company and its
Consolidated Subsidiaries as of the end of such quarter and the related
unaudited consolidated statements of earnings and cash flows for such
quarter and for the portion of the Company's fiscal year ended at the
end of such quarter, setting forth in the case of such earnings and
cash flows in comparative form the figures for the corresponding
quarter and the corresponding portion of the Company's previous fiscal
year, all certified (subject to normal year-end adjustments) as to
fairness of presentation, generally accepted accounting principles and
consistency by the chief financial officer or the chief accounting
officer of the Company;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of
the chief financial officer or the chief accounting officer of the
Company (i) setting forth in reasonable detail the calculations
required to establish whether the Company was in compliance with the
requirements of Sections 5.07 to 5.10, inclusive, on the date of such
financial statements (including, without limitation, the amount of
Irish Affiliate Cash) and (ii) stating whether any Default exists on
the date of such certificate and, if any Default then exists, setting
forth the details thereof and the action which the Company is taking or
proposes to take with respect thereto;
(d) simultaneously with the delivery of each set of financial
statements referred to in clause (a) above, a statement of the firm of
independent public accountants which reported on such statements (i)
stating whether anything has come to their attention to cause them to
believe that any Default existed on the date of such statements and
(ii) confirming the calculations set forth in the officer's certificate
delivered simultaneously therewith pursuant to clause (c) above;
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(e) within five days after any officer of the Company obtains
knowledge of any Default, if such Default is then continuing, a
certificate of the chief financial officer or the chief accounting
officer of the Company setting forth the details thereof and the action
which the Company is taking or proposes to take with respect thereto;
(f) promptly upon the mailing thereof to the shareholders of
the Company generally, copies of all financial statements, reports and
proxy statements so mailed;
(g) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and any
registration statements on Form S-8 or its equivalent) and reports on
Forms 10-K, 10-Q and 8-K (or their equivalents) which the Company shall
have filed with the SEC;
(h) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as
defined in Section 4043 of ERISA) with respect to any Plan which might
constitute grounds for a termination of such Plan under Title IV of
ERISA, or knows that the plan administrator of any Plan has given or is
required to give notice of any such reportable event, a copy of the
notice of such reportable event given or required to be given to the
PBGC; (ii) receives notice of complete or partial withdrawal liability
under Title IV of ERISA or notice that any Multiemployer Plan is in
reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of
an intent to terminate, impose liability (other than for premiums under
Section 4007 of ERISA) in respect of, or appoint a trustee to
administer any Plan, a copy of such notice; (iv) applies for a waiver
of the minimum funding standard under Section 412 of the Internal
Revenue Code, a copy of such application; (v) gives notice of intent to
terminate any Plan under Section 4041(c) of ERISA, a copy of such
notice and other information filed with the PBGC; (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of
such notice; or (vii) fails to make any payment or contribution to any
Plan or Multiemployer Plan or makes any amendment to any Plan which has
resulted or could result in the imposition of a Lien or the posting of
a bond or other security, a certificate of the chief financial officer
or the chief accounting officer of the Company setting forth details
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as to such occurrence and action, if any, which the Company or
applicable member of the ERISA Group is required or proposes to take;
(i) promptly upon any officer of the Company obtaining
knowledge thereof, notice of any actual or proposed change in the
rating of the Company's outstanding senior unsecured long term debt
securities by S&P or Moody's; and
(j) from time to time such additional information regarding
the financial position or business of the Company and its Subsidiaries
as the Agent, at the request of any Bank, may reasonably request.
SECTION 5.02. Payment of Obligations. The Company will pay and
discharge, and will cause its Subsidiaries to pay and discharge, at or before
maturity (or the expiration of any applicable grace period, as the case may be),
all Material Debt and all other material obligations and liabilities, including,
without limitation, tax liabilities, except where the same may be contested in
good faith by appropriate proceedings, and will maintain, and will cause each
Subsidiary to maintain, in accordance with generally accepted accounting
principles, appropriate reserves (on a consolidated basis) for the accrual of
any of the same.
SECTION 5.03. Maintenance of Property; Insurance. (a) The
Company will keep, and will cause each Subsidiary to keep, all property useful
and necessary in its business in good working order and condition, ordinary wear
and tear excepted; provided that the Company and its Subsidiaries shall not be
required to maintain any property or properties which are, in the reasonable
opinion of the Company, not material to the business of the Company and its
Consolidated Subsidiaries taken as a whole.
(b) The Company and its Subsidiaries will maintain (i)
physical damage insurance on all their real and personal properties (except
properties that, in aggregate, are not material to the Company and its
Subsidiaries taken as a whole) on an all risks basis (including the perils of
flood and quake), covering the repair and replacement cost of all such property
and consequential loss coverage for business interruption and extra expense, and
(ii) public liability insurance (including products/completed operations
liability coverage) in an amount not less than that which is usually insured
against by companies engaged in the same or a similar business in the same
general area. All such insurance shall be provided by insurers having an A.M.
Best
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policyholders rating of not less than B+ or such other insurers as the Required
Banks may approve in writing. The Company will deliver to the Banks, upon
request of any Bank through the Agent, from time to time full information as to
the insurance carried.
SECTION 5.04. Conduct of Business and Maintenance of
Existence. The Company will continue, and will cause its Subsidiaries to
continue, to engage in business of the same general type as now conducted by the
Company and its Subsidiaries, and will preserve, renew and keep in full force
and effect, and will cause each Subsidiary to preserve, renew and keep in full
force and effect, their respective corporate existences and their respective
rights, privileges and franchises necessary or desirable in the normal conduct
of business; provided that the foregoing shall not prevent any Subsidiary
(except an Eligible Subsidiary that has not paid in full all principal, interest
and other amounts payable by it hereunder) from terminating its corporate
existence or prevent the Company or any Subsidiary from discontinuing any
business or any right, privilege or franchise, if all such terminations and
discontinuances, in the aggregate, would not in the reasonable opinion of the
Company have a Materially Adverse Effect.
SECTION 5.05. Compliance with Laws. The Company will comply,
and cause each Subsidiary to comply, in all material respects with all
applicable laws, ordinances, rules, regulations, and requirements of
Governmental Authorities (including, without limitation, ERISA, environmental,
and food and drug, and the rules and regulations under each of the foregoing)
except where (i) the necessity of compliance therewith is contested in good
faith by appropriate proceedings or (ii) noncompliance therewith would not, in
the aggregate, have a Materially Adverse Effect.
SECTION 5.06. Inspection of Property, Books and Records. The
Company will keep, and will cause each Subsidiary to keep, proper books of
record and account in which full, true and correct entries shall be made of all
dealings and transactions in relation to its business and activities; and will
permit, and will cause each Subsidiary to permit, representatives of any Bank at
such Bank's expense to visit and inspect any of their respective properties, to
examine and make abstracts from any of their respective books and records and to
discuss their respective affairs, finances and accounts with their respective
officers, employees and independent public accountants, all
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at such reasonable times and as often as may reasonably be desired.
SECTION 5.07. Subsidiary Debt. The Company will not permit its
Subsidiaries to incur or suffer to exist any Debt (excluding Debt owed to the
Company or a Wholly-Owned Subsidiary) in excess of 35% of Consolidated Net Worth
at any time in the aggregate for all Subsidiaries.
SECTION 5.08. Debt to Capitalization. The ratio of (i)
Consolidated Debt less Irish Affiliate Cash to (ii) Consolidated Debt less Irish
Affiliate Cash plus Adjusted Consolidated Net Worth will at no time be greater
than 0.45:1.
SECTION 5.09. Minimum Consolidated Net Worth. Consolidated Net
Worth will at no time be less than $523,833,000; provided that the foregoing
amount shall be increased (i) at the end of each of the Company's fiscal years
ending after December 31, 1995, by 50% of Consolidated Net Income (if positive)
for such fiscal year and (ii) by 100% of the amount by which Consolidated Net
Worth is increased from time to time after December 31, 1995 as a result of the
issuance or sale of the Company's capital stock.
SECTION 5.10. Negative Pledge. Neither the Company nor any
Consolidated Subsidiary will create, assume or suffer to exist any Lien on any
asset now owned or hereafter acquired by it, except:
(a) Liens existing on December 22, 1993 securing Debt
outstanding in an aggregate principal amount not exceeding $20,000,000;
(b) any Lien existing on any asset of any corporation at the
time such corporation becomes a Subsidiary and not created in
contemplation of such event;
(c) any Lien on any asset securing Debt incurred or assumed
for the purpose of financing all or any part of the cost of acquiring
such asset, provided that such Lien attaches to such asset concurrently
with or within 90 days after the acquisition thereof;
(d) any Lien on any asset of any corporation existing at the
time such corporation is merged or consolidated with or into the
Company or a Subsidiary and not created in contemplation of such event;
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(e) any Lien existing on any asset prior to the acquisition
thereof by the Company or a Subsidiary and not created in contemplation
of such acquisition;
(f) any Lien arising out of the refinancing, extension,
renewal or refunding of any Debt secured by any Lien permitted by any
of the foregoing clauses of this Section, provided that such Debt is
not increased and is not secured by any additional assets;
(g) Liens for taxes, assessments or governmental charges or
levies on its property if the same shall not at the time be delinquent
or thereafter can be paid without penalty, or are being contested in
good faith by appropriate proceedings and as to which adequate reserves
have been provided for;
(h) Liens imposed by law, such as landlords', carriers',
warehousemen's and mechanics' liens and other similar liens arising in
the ordinary course of business which secure payment of obligations not
more than 60 days past due;
(i) Liens arising out of statutory pledges or deposits under
applicable law relating to worker's compensation, unemployment
insurance, social security or similar obligations;
(j) utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature
generally existing with respect to properties of similar nature and
which do not in any material way adversely affect or interfere with the
use thereof in the business of the Company and its Subsidiaries;
(k) banker's liens in the nature of rights of set-off arising
in the ordinary course of business;
(l) Liens not otherwise permitted by the foregoing clauses of
this Section, arising in the ordinary course of its business, which (i)
do not secure Debt, (ii) do not secure any obligation in an amount
individually or in the aggregate exceeding $50,000,000 and (iii) do not
in the aggregate materially detract from the value of its assets or
materially impair the use thereof in the operation of its business; and
(m) Liens not otherwise permitted by the foregoing clauses of
this Section securing Debt in an
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aggregate principal amount at any time outstanding not to exceed 15% of
Consolidated Net Worth.
SECTION 5.11. Consolidations, Mergers and Sales of Assets. The
Company will not consolidate or merge with or into any other Person; provided
that the Company may merge with a Person if (A) the Company is the corporation
surviving such merger and (B) immediately after giving effect to any such
merger, no Default shall have occurred and be continuing and all the
representations and warranties of the Company contained in this Agreement shall
be true. The Company will not, and will not permit its Subsidiaries to, sell,
lease or otherwise transfer, directly or indirectly, all or any substantial part
of the assets of the Company and its Subsidiaries, taken as a whole, to any
other Person.
SECTION 5.12. Use of Proceeds. The proceeds of the Loans made
under this Agreement will be used by the Borrowers for general corporate
purposes, including the backstop of commercial paper. None of such proceeds will
be used, directly or indirectly, for the purpose, whether immediate, incidental
or ultimate, of buying or carrying any Margin Stock.
SECTION 5.13. Transactions with Affiliates. The Company will
not, and will not permit any Subsidiary to, directly or indirectly, enter into
any material transaction, whether or not in the ordinary course of business,
with any Affiliate other than on terms and conditions at least as favorable to
the Company, or the affected Subsidiary, as those that would be obtained through
an arm's length negotiation with an unaffiliated third party.
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. If one or more of the
following events ("Events of Default") shall have occurred and be continuing:
(a) any Borrower shall fail to pay when due any principal of
or interest on any Loan, any fees or any other amount payable
hereunder, which failure, in the case of interest or fees or amounts
other than principal of any Loan, continues for three Domestic Business
Days;
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(b) the Company shall fail to observe or perform any covenant
contained in Sections 5.07 to 5.13, inclusive;
(c) any Borrower shall fail to observe or perform any covenant
or agreement contained in this Agreement (other than those covered by
clause (a) or (b) above) for 30 days after written notice thereof has
been given to the Company by the Agent at the request of any Bank;
(d) any representation, warranty, certification or statement
made by any Borrower in this Agreement or in any certificate, financial
statement or other document delivered pursuant to this Agreement shall
prove to have been incorrect in any material respect when made (or
deemed made);
(e) the Company or any Subsidiary shall fail to make any
payment in respect of any Material Debt when due or within any
applicable grace period;
(f) any event or condition shall occur which results in the
acceleration of the maturity of any Material Debt or enables (or with
the giving of notice or lapse of time or both, would enable) the holder
of such Debt or any Person acting on such holder's behalf to accelerate
the maturity thereof;
(g) the Company or any Subsidiary shall commence a voluntary
case or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking
the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, or
shall consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other
proceeding commenced against it, or shall make a general assignment for
the benefit of creditors, or shall fail generally to pay its debts as
they become due, or shall take any corporate action to authorize any of
the foregoing;
(h) an involuntary case or other proceeding shall be commenced
against the Company or any Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under
any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee,
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receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of 60
days; or an order for relief shall be entered against the Company or
any Subsidiary under the federal bankruptcy laws as now or hereafter in
effect;
(i) any member of the ERISA Group shall fail to pay when due
an amount or amounts aggregating in excess of $5,000,000 which it shall
have become liable to pay to the PBGC or a Plan under Title IV of
ERISA; or notice of intent to terminate a Material Plan shall be filed
under Title IV of ERISA by any member of the ERISA Group, any plan
administrator or any combination of the foregoing; or the PBGC shall
institute proceedings under Title IV of ERISA to terminate, to impose
liability (other than for premiums under Section 4007 of ERISA) in
respect of, or to cause a trustee to be appointed to administer any
Material Plan; or a condition shall exist by reason of which the PBGC
would be entitled to obtain a decree adjudicating that any Material
Plan must be terminated; or there shall occur a complete or partial
withdrawal from, or a default, within the meaning of Section 4219(c)(5)
of ERISA, with respect to, one or more Multiemployer Plans which could
cause one or more members of the ERISA Group to incur a current payment
obligation in excess of $5,000,000;
(j) a judgment or order for the payment of money in excess of
$25,000,000 shall be rendered against the Company or any Subsidiary and
such judgment or order shall continue unsatisfied and unstayed for a
period of 30 days;
(k) the Guarantee by the Company in Article X shall for any
reason be revoked or invalidated, or otherwise cease to be in full
force and effect, or the Company, or any Person on behalf of the
Company, shall deny or disaffirm its obligations under such Guarantee;
or
(l) any person or group of persons (within the meaning of
Section 13 or 14 of the Securities Exchange Act of 1934, as amended)
shall have acquired beneficial ownership (within the meaning of Rule
13d-3 promulgated by the SEC under said Act) of 25% or more of the
outstanding shares of common stock of the Company; or individuals who,
as of the Effective Date, constitute the board of directors of the
Company (the "Incumbent Directors") cease for any reason to constitute
at least
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a majority of the Company's board of directors, provided that any
person becoming a director after the Effective Date whose election, or
nomination for election by the Company's stockholders, is approved by a
vote of at least a majority of the directors then comprising the
Incumbent Directors (other than an election or nomination of an
individual whose initial assumption of office is in connection with an
actual or threatened election contest relating to the election or
removal of directors of the Company) shall, for the purposes of this
Agreement, be considered as though such person were an Incumbent
Director;
then, and in every such event, the Agent shall (i) if requested by Banks having
more than 50% in aggregate amount of the Commitments, by notice to the Company
terminate the Commitments and they shall thereupon terminate, and (ii) if
requested by Banks holding Notes evidencing more than 50% in aggregate Dollar
Amount of the Loans, by notice to the Company declare the Notes (together with
accrued interest thereon) to be, and the Notes shall thereupon become,
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Borrower; provided that in
the case of any of the Events of Default specified in clause (g) or (h) above
with respect to the any Borrower, without any notice to the Company or any other
act by the Agent or the Banks, the Commitments shall thereupon terminate and the
Notes (together with accrued interest thereon) shall become immediately due and
payable without presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the Borrowers.
SECTION 6.02. Notice of Default. The Agent shall give notice
to the Company under Section 6.01(c) promptly upon being requested to do so by
any Bank and shall thereupon notify all the Banks thereof.
ARTICLE VII
THE AGENT
SECTION 7.01. Appointment and Authorization. Each Bank
irrevocably appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement and the Notes as are
delegated to the Agent by the terms hereof or thereof, together with all such
powers as are reasonably incidental thereto.
SECTION 7.02. Agent and Affiliates. Morgan Guaranty Trust
Company of New York shall have the same
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rights and powers under this Agreement as any other Bank and may exercise or
refrain from exercising the same as though it were not the Agent, and Morgan
Guaranty Trust Company of New York and its affiliates may accept deposits from,
lend money to, and generally engage in any kind of business with the Company or
any Subsidiary or affiliate of the Company as if it were not the Agent
hereunder.
SECTION 7.03. Action by Agent. The obligations of the Agent
hereunder are only those expressly set forth herein. Without limiting the
generality of the foregoing, the Agent shall not be required to take any action
with respect to any Default, except as expressly provided in Article VI.
SECTION 7.04. Consultation with Experts. The Agent may consult
with legal counsel (who may be counsel for any Borrower), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts.
SECTION 7.05. Liability of Agent. Neither the Agent nor any of
its affiliates nor any of their respective directors, officers, agents or
employees shall be liable for any action taken or not taken by it in connection
herewith (i) with the consent or at the request of the Required Banks or (ii) in
the absence of its own gross negligence or willful misconduct. Neither the Agent
nor any of its affiliates nor any of their respective directors, officers,
agents or employees shall be responsible for or have any duty to ascertain,
inquire into or verify (i) any statement, warranty or representation made in
connection with this Agreement or any borrowing hereunder; (ii) the performance
or observance of any of the covenants or agreements of any Borrower; (iii) the
satisfaction of any condition specified in Article III, except receipt of items
required to be delivered to the Agent; or (iv) the validity, effectiveness or
genuineness of this Agreement, the Notes or any other instrument or writing
furnished in connection herewith. The Agent shall not incur any liability by
acting in reliance upon any notice, consent, certificate, statement, or other
writing (which may be a bank wire, telex or similar writing) believed by it to
be genuine or to be signed by the proper party or parties.
SECTION 7.06. Indemnification. Each Bank shall, ratably in
accordance with its Commitment, indemnify the Agent, its affiliates and their
respective directors, officers, agents and employees (to the extent not
reimbursed
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by the Company) against any cost, expense (including counsel fees and
disbursements), claim, demand, action, loss or liability (except such as result
from such indemnitees' gross negligence or willful misconduct) that such
indemnitees may suffer or incur in connection with this Agreement or any action
taken or omitted by such indemnitees hereunder.
SECTION 7.07. Credit Decision. Each Bank acknowledges that it
has, independently and without reliance upon the Agent, the Co-Agent or any
other Bank, and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Bank also acknowledges that it will, independently and without
reliance upon the Agent 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 any action under this Agreement.
SECTION 7.08. Successor Agent. The Agent may resign at any
time by giving notice thereof to the Banks and the Company. Upon any such
resignation, the Required Banks shall have the right to appoint a successor
Agent. If no successor Agent shall have been so appointed by the Required Banks,
and shall have accepted such appointment, within 30 days after the retiring
Agent gives notice of resignation, then the retiring Agent may, on behalf of the
Banks, appoint a successor Agent, which shall be a commercial bank organized or
licensed under the laws of the United States or of any State thereof and having
a combined capital and surplus of at least $50,000,000. Upon the acceptance of
its appointment as Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the rights and duties of
the retiring Agent, and the retiring Agent shall be discharged from its duties
and obligations hereunder. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Article shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent.
SECTION 7.09. Agent's Fee. The Company shall pay to the Agent
for its own account fees in the amounts and at the times previously agreed upon
between the Company and the Agent.
SECTION 7.10. Co-Agent. The Co-Agent shall have no duties or
responsibilities hereunder.
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ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate
or Unfair. If on or prior to the first day of any Interest Period for any Fixed
Rate Loans:
(a) the Agent is advised by the Reference Banks that deposits
in the applicable currency and amounts are not being offered to the
Reference Banks in the relevant market for such Interest Period, or
(b) in the case of CD Loans or Euro-Currency Loans, Banks
having 50% or more of the aggregate amount of the Commitments advise
the Agent that the Adjusted CD Rate or the Adjusted London Interbank
Offered Rate, as the case may be, as determined by the Agent will not
adequately and fairly reflect the cost to such Banks of funding such
Loans for such Interest Period,
the Agent shall forthwith give notice thereof to the Company and the Banks,
whereupon until the Agent notifies the Company that the circumstances giving
rise to such suspension no longer exist, (i) the obligations of the Banks to
make CD Loans or Euro-Currency Loans (in the affected currency), as the case may
be, or to convert outstanding Loans into CD Loans or Euro-Dollar Loans, as the
case may be, shall be suspended and (ii) each outstanding CD Loan or
Euro-Currency Loan, as the case may be, shall be converted into a Base Rate Loan
on the last day of the then current Interest Period applicable thereto. In the
case of an Alternative Currency Loan, such conversion shall be made at the
Agent's spot buying rate for Dollars against the relevant Alternative Currency
as of approximately 11:00 A.M. (London time) on the date of such conversion.
Unless the Company notifies the Agent at least two Domestic Business Days before
the date of any Fixed Rate Borrowing for which a Notice of Borrowing has
previously been given that the relevant Borrower elects not to borrow on such
date, (i) if such Fixed Rate Borrowing is a Committed Borrowing, such Borrowing
shall instead be made as a Base Rate Borrowing in the same Dollar Amount as the
requested Borrowing and (ii) if such Fixed Rate Borrowing is a Money Market
LIBOR Borrowing, the Money Market LIBOR Loans comprising such Borrowing shall
bear interest for each day from and including the first day to but excluding the
last day of the Interest Period applicable thereto at the Base Rate for such
day.
SECTION 8.02. Illegality. If, on or after May 10, 1996, the
adoption of any applicable law, rule or
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regulation, or any change in any applicable law, rule or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Euro-Currency Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency shall make it unlawful
or impossible for any Bank (or its Euro-Currency Lending Office) to make,
maintain or fund its Euro-Currency Loans to any Borrower and such Bank shall so
notify the Agent, the Agent shall forthwith give notice thereof to the other
Banks and the Company, whereupon until such Bank notifies the Company and the
Agent that the circumstances giving rise to such suspension no longer exist, the
obligation of such Bank to make Euro-Currency Loans to such Borrower, or to
convert outstanding Loans to such Borrower into Euro-Dollar Loans, shall be
suspended. Before giving any notice to the Agent pursuant to this Section, such
Bank shall designate a different Euro-Currency Lending Office if such
designation will avoid the need for giving such notice and will not, in the
judgment of such Bank, be otherwise disadvantageous to such Bank. If such notice
is given with respect to Euro-Dollar Loans, each Euro-Dollar Loan of such Bank
then outstanding shall be converted to a Base Rate Loan either (a) on the last
day of the then current Interest Period applicable to such Euro-Dollar Loan if
such Bank may lawfully continue to maintain and fund such Euro-Dollar Loan to
such day or (b) immediately if such Bank shall determine that it may not
lawfully continue to maintain and fund such Euro-Dollar Loan to such day. If
such notice is given with respect to Alternative Currency Loans, the relevant
Borrower shall prepay such Alternative Currency Loans either (a) on the last day
of the then current Interest Period applicable to such Alternative Currency Loan
if such Bank may lawfully continue to maintain and fund such Alternative
Currency Loan to such day or (b) immediately if such Bank shall determine that
it may not lawfully continue to maintain and fund such Alternative Currency Loan
to such day.
SECTION 8.03. Increased Cost and Reduced Return. (a) If on or
after (x) May 10, 1996, in the case of any Committed Loan or any obligation to
make Committed Loans or (y) the date of the related Money Market Quote, in the
case of any Money Market Loan, the adoption of any applicable law, rule or
regulation, or any change in any applicable law, rule or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by
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any Bank (or its Applicable Lending Office) with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency shall impose, modify or deem applicable any reserve
(including, without limitation, any such requirement imposed by the Board of
Governors of the Federal Reserve System, but excluding (i) with respect to any
CD Loan any such requirement included in an applicable Domestic Reserve
Percentage and (ii) with respect to any Euro-Currency Loan any such requirement
included in an applicable Euro-Currency Reserve Percentage), special deposit,
insurance assessment (excluding, with respect to any CD Loan, any such
requirement reflected in an applicable Assessment Rate) or similar requirement
against assets of, deposits with or for the account of, or credit extended by,
any Bank (or its Applicable Lending Office) or shall impose on any Bank (or its
Applicable Lending Office) or on the United States market for certificates of
deposit or the London interbank market any other condition affecting its Fixed
Rate Loans, any of its Notes or its obligation to make Fixed Rate Loans and the
result of any of the foregoing is to increase the cost to such Bank (or its
Applicable Lending Office) of making or maintaining any Fixed Rate Loan, or to
reduce the amount of any sum received or receivable by such Bank (or its
Applicable Lending Office) under this Agreement or under any of its Notes with
respect thereto, by an amount deemed by such Bank to be material, then, within
15 days after demand by such Bank (with a copy to the Agent), the Company shall
pay, or cause the relevant Borrower to pay, to such Bank such additional amount
or amounts as will compensate such Bank for such increased cost or reduction.
(b) If any Bank shall have determined that, after May 10,
1996, the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change in any such law, rule or regulation, or any change in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on capital of such Bank (or its Parent) as a consequence of such Bank's
obligations hereunder to a level below that which such Bank (or its Parent)
could have achieved but for such adoption, change, request or directive (taking
into consideration its policies with respect to capital adequacy) by an amount
deemed by such Bank to be material, then from time to time, within 15 days after
demand by such Bank (with a copy to the Agent), the Company shall pay to such
Bank such additional amount or
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amounts as will compensate such Bank (or its Parent) for such reduction,
provided that no such demand by any Bank shall include any period commencing
earlier than 90 days prior to the date of demand.
(c) Each Bank will promptly notify the Company and the Agent
of any event of which it has knowledge, occurring after May 10, 1996, which will
entitle such Bank to compensation pursuant to this Section and will designate a
different Applicable Lending Office if such designation will avoid the need for,
or reduce the amount of, such compensation and will not, in the judgment of such
Bank, be otherwise disadvantageous to such Bank. A certificate of any Bank
claiming compensation under this Section and setting forth the additional amount
or amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, such Bank may use any reasonable
averaging and attribution methods.
(d) If at any time any Subsidiary that is incorporated in, or
conducts business in, a jurisdiction outside the United States becomes an
Eligible Subsidiary, all applicable laws, rules and regulations then in effect
in such jurisdiction shall be deemed for purposes of Section 8.03(a) to have
been adopted at such time and all applicable requests and directives theretofore
made by any governmental authority, central bank or comparable agency in such
jurisdiction shall be deemed for purposes of Section 8.03(a) to have been made
at such time; provided that no Bank shall be obligated under Section 8.03(c) to
give notice of any such law, rule, regulation, request or directive, or to
designate a different Applicable Lending Office by reason thereof, until an
officer of such Bank responsible for administering this Agreement shall have
become aware of such law, rule, regulation, request or directive and the
relevant consequences thereof.
SECTION 8.04. Taxes. (a) Any and all payments by any Borrower
or the Guarantor to or for the account of any Bank or the Agent hereunder or
under any Note shall be made free and clear of and without deduction for any and
all present or future taxes, duties, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the case
of each Bank and the Agent, taxes imposed on its net income, and franchise taxes
imposed on it, by the jurisdiction under the laws of which such Bank or the
Agent (as the case may be) is organized or any political subdivision thereof
and, in the case of each Bank, taxes imposed on its income, and franchise or
similar taxes imposed on it, by the jurisdiction of such Bank's Applicable
Lending Office or any
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political subdivision thereof. In the case of each Bank or the Agent, all such
non-excluded taxes, duties, levies, imposts, deductions, charges, withholdings
and liabilities are hereinafter referred to as its "Taxes", and all such
excluded taxes are hereinafter referred to as its "Domestic Taxes". If any
Borrower or the Guarantor shall be required by law to deduct any Taxes from or
in respect of any sum payable hereunder or under any Note to any Bank or the
Agent, (i) the sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section) such Bank or the Agent (as the case may be) receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower or the Guarantor, as the case may be, shall make such
deductions, (iii) the Borrower or the Guarantor, as the case may be, shall pay
the full amount deducted to the relevant taxation authority or other authority
in accordance with applicable law and (iv) the Borrower or the Guarantor shall
furnish to the Agent, at its address in New York City referred to in Section
11.01, the original or a certified copy of a receipt evidencing payment thereof,
and, if such receipt relates to Taxes in respect of a sum payable to any Bank,
the Agent shall promptly deliver such original or certified copy to such Bank.
(b) In addition, each Borrower and the Guarantor agrees to pay
any present or future stamp or documentary taxes and any other excise or
property taxes, or charges or similar levies which arise from any payment made
hereunder or under any Note or from the execution or delivery of, or otherwise
with respect to, this Agreement or any Note (hereinafter referred to as "Other
Taxes").
(c) Each Borrower and the Guarantor agrees to indemnify each
Bank and the Agent for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this Section) paid by such Bank or the
Agent (as the case may be) and any liability (including penalties, interest and
expenses to the extent not attributable to the gross negligence or willful
misconduct of such Bank or the Agent, as the case may be) arising therefrom or
with respect thereto. In addition, each Borrower and the Guarantor agrees to
indemnify each Bank and the Agent for all Domestic Taxes of such Bank or the
Agent (calculated based on a hypothetical basis at the maximum marginal rate for
a corporation) and any liability (including penalties, interest and expenses to
the extent not attributable to the gross negligence or willful misconduct of
such Bank or the Agent, as the case may be)
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arising therefrom or with respect thereto, in each case to the extent that such
Domestic Taxes result from any payment or indemnification pursuant to this
Section for (i) Taxes or Other Taxes imposed by any jurisdiction other than the
United States or (ii) Domestic Taxes of such Bank or the Agent, as the case may
be. This indemnification shall be made within 15 days from the date such Bank or
the Agent (as the case may be) makes demand therefor.
(d) Each Bank organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and delivery
of this Amendment in the case of each Bank listed on the signature pages hereof
and on or prior to the date on which it becomes a Bank in the case of each other
Bank, and from time to time thereafter if requested in writing by the Company
(but only so long as such Bank remains lawfully able to do so), shall provide
the Company with Internal Revenue Service form 1001 or 4224, as appropriate, or
any successor form prescribed by the Internal Revenue Service, certifying that
such Bank is entitled to benefits under an income tax treaty to which the United
States is a party which reduces the rate of withholding tax on payments of
interest or certifying that the income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or business in the United
States. If the form provided by a Bank at the time such Bank first becomes a
party to this Agreement indicates a United States interest withholding tax rate
in excess of zero, any United States interest withholding tax at such rate
imposed on payments by the Company under this Agreement or under any Note (other
than pursuant to Article X) shall be excluded from "Taxes" as defined in Section
8.04(a).
(e) For any period with respect to which a Bank has failed to
provide the Company with the appropriate form pursuant to Section 8.04(d)
(unless such failure is due to a change in treaty, law or regulation occurring
subsequent to the date on which a form originally was required to be provided),
such Bank shall not be entitled to indemnification under Section 8.04(a) or
Section 8.04(c) with respect to Taxes imposed by the United States; provided
that should a Bank, which is otherwise exempt from or subject to a reduced rate
of withholding tax, become subject to Taxes because of its failure to deliver a
form required hereunder, the Borrowers shall take such steps as such Bank shall
reasonably request to assist such Bank to recover such Taxes.
(f) If any Borrower or the Guarantor is required to pay
additional amounts to or for the account of any Bank
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pursuant to this Section, then such Bank will change the jurisdiction of its
Applicable Lending Office so as to eliminate or reduce any such additional
payment which may thereafter accrue if such change, in the judgment of such
Bank, is not otherwise disadvantageous to such Bank.
(g) Each Bank and the Agent shall, at the request of the
Company or the Guarantor, use reasonable efforts (consistent with applicable
legal and regulatory restrictions) to file any certificate or document requested
by the Company if the making of such a filing would eliminate or reduce the
amount of any additional amounts payable to or for the account of such Bank or
the Agent (as the case may be) pursuant to this Section in respect of any Taxes
or Other Taxes imposed by any jurisdiction other than the United States which
may thereafter accrue and would not, in the sole judgement of such Bank or the
Agent, require such Bank or the Agent to disclose any confidential or
proprietary information or be otherwise disadvantageous to such Bank or the
Agent.
(h) If any Borrower or the Guarantor makes any payment
pursuant to Section 8.04(a) or (c) with respect to a Bank, such Bank shall, upon
the reasonable request and at the reasonable expense of such Borrower or the
Guarantor, use reasonable efforts to apply for a refund of tax (if such tax is
not lawfully imposed) or a credit against its tax liabilities on account of such
payment; provided that (A) such Bank shall have no obligation under this Section
8.04(h) if it determines, in its sole discretion, that claiming a refund or a
credit would have adverse tax consequences to it and (B) such Bank shall not be
under any obligation to claim a credit or refund in respect of such payment in
priority to any other claims, reliefs, credits or deductions available to it. If
such Bank receives such a refund or actually reduces its tax liabilities by
utilizing such a credit, such Bank shall, to the extent that it can do so
without prejudice to the retention of the amount of such refund or credit, pay
to the relevant Borrower or the Guarantor an amount equal to the amount so
received or utilized (less any out-of-pocket expenses or taxes imposed on the
receipt of such refund or credit); provided that such Bank shall be required to
pay to such Borrower or the Guarantor (i) only such amounts as such Bank
determines, in its sole discretion and by using any reasonable method which the
Bank deems appropriate, are attributable to such payment by such Borrower or the
Guarantor, and (ii) only if no Event of Default exists at the time such Bank
receives the relevant refund or credit. If a Bank is in an excess foreign tax
credit position, such Bank shall be deemed not to have utilized a foreign tax
credit with respect to any
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such payment by the Borrower or the Guarantor. Each Borrower and the Guarantor
agrees to return, upon the request of a Bank, any payment made by such Bank
under this Section 8.04(h) (plus penalties, interest and other charges imposed
by a taxing authority) to such Bank if a taxing authority or such Bank
determines that (x) such Bank is required to repay such refund or (y) such Bank
is unable to utilize such credit. Any calculation or determination made under
this Section 8.04(h) by any Bank shall be conclusive and final.
(i) Nothing contained in Section 8.04 shall (i) entitle any
Borrower or the Guarantor to any information determined by any Bank, in its sole
discretion, to be confidential or proprietary information of such Bank, to any
tax or financial information of any Bank or to inspect or review any books and
records of any Bank, (ii) require any Bank to disclose or detail the basis of
any calculation of the amount of any tax benefit or any other amount or the
basis of any determination made under Section 8.04(h) to any Borrower or any
other party, (iii) be construed to require any Bank to institute any
administrative proceeding (other than the filing of a claim for any refund or
credit) or judicial proceeding to obtain any such refund or credit, or (iv)
interfere with the rights of any Bank to conduct its fiscal or tax affairs
(including, without limitation, its determination as to whether to claim a
deduction or credit in respect of foreign taxes) in such manner as it deems fit.
SECTION 8.05. Base Rate Loans Substituted for Affected Fixed
Rate Loans. If (i) the obligation of any Bank to make, or convert outstanding
Loans to, Euro-Dollar Loans to any Borrower has been suspended pursuant to
Section 8.02 or (ii) any Bank has demanded compensation under Section 8.03 or
8.04 with respect to its CD Loans or Euro-Currency Loans and the Company shall,
by at least five Euro-Currency Business Days' prior notice to such Bank through
the Agent, have elected that the provisions of this Section shall apply to such
Bank, then, unless and until such Bank notifies the Company that the
circumstances giving rise to such suspension or demand for compensation no
longer exist:
(a) all Loans which would otherwise be made by such Bank as
(or continued as or converted into) CD Loans or Euro-Dollar Loans, as
the case may be, shall instead be made as (or continued as converted
into) Base Rate Loans (on which interest and principal shall be payable
contemporaneously with the related Fixed Rate Loans of the other
Banks), and
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(b) after each of its CD Loans or Euro-Currency Loans, as the
case may be, has been repaid (or converted to a Base Rate Loan), all
payments of principal which would otherwise be applied to repay such
Fixed Rate Loans shall be applied to repay its Base Rate Loans instead.
If such Bank notifies the Company that the circumstances giving rise to such
notice no longer apply, the principal amount of each such Base Rate Loan shall
be converted into a CD Loan or Euro-Dollar Loan, as the case may be, on the
first day of the next succeeding Interest Period applicable to the related CD
Loans or Euro-Dollar Loans of the other Banks.
SECTION 8.06. Substitution of Bank. If (i) the obligation of
any Bank to make Euro-Dollar Loans has been suspended pursuant to Section 8.02
or (ii) any Bank has demanded compensation under Section 8.03 or 8.04, the
Company shall have the right, with the assistance of the Agent, to seek a
mutually satisfactory substitute bank or banks ("Substitute Banks") (which may
be one or more of the Banks) to purchase the Committed Loans and assume the
Commitment of such Bank (the "Exiting Bank"). The Exiting Bank shall, upon
reasonable notice and payment to it of the purchase price agreed between it and
the Substitute Bank or Banks (or, failing such agreement, a purchase price equal
to the outstanding principal amount of its Committed Loans and interest accrued
thereon to but excluding the date of payment), assign all of its rights and
obligations under this Agreement and the Notes (including its Commitment but
excluding its Money Market Loans, if any, unless it otherwise agrees) to the
Substitute Bank or Banks, and the Substitute Bank or Banks shall assume such
rights and obligations, in accordance with Section 11.06(c). In connection with
any such sale, the Company shall compensate the Exiting Bank for any funding
losses as provided in Section 2.14 and pay to the Exiting Bank its facility fees
accrued to but excluding the date of such sale.
ARTICLE IX
REPRESENTATIONS AND WARRANTIES
OF ELIGIBLE SUBSIDIARIES
Each Eligible Subsidiary shall be deemed, by executing and
delivering its Election to Participate, to have represented and warranted as of
the date thereof that:
SECTION 9.01. Corporate Existence and Power. It is a
corporation duly incorporated, validly existing and in
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good standing under the laws of its jurisdiction of incorporation and is a
Wholly-Owned Subsidiary of the Company.
SECTION 9.02. Corporate and Governmental Authorization; No
Contravention. The execution and delivery by it of its Election to Participate
and its Notes, and the performance by it of this Agreement and its Notes, are
within its corporate powers, have been duly authorized by all necessary
corporate action, require no action by or in respect of, or filing with, any
governmental body, agency or official and do not contravene, or constitute a
default under, any provision of applicable law or regulation or of its charter
or by-laws or of any agreement, judgment, injunction, order, decree or other
instrument binding upon the Company or such Eligible Subsidiary or result in the
creation or imposition of any Lien on any asset of the Company or any of its
Subsidiaries.
SECTION 9.03. Binding Effect. This Agreement constitutes a
valid and binding agreement of such Eligible Subsidiary and its Notes, when
executed and delivered in accordance with this Agreement, will constitute valid
and binding obligations of such Eligible Subsidiary.
SECTION 9.04. Taxes. Except as disclosed in such Election to
Participate, there is no income, stamp or other tax of any country, or any
taxing authority thereof or therein, imposed by or in the nature of withholding
or otherwise, which is imposed on any payment to be made by such Eligible
Subsidiary pursuant to this Agreement or on its Notes, or is imposed on or by
virtue of the execution, delivery or enforcement of its Election to Participate
or its Notes.
ARTICLE X
GUARANTY
SECTION 10.01. The Guaranty. The Company hereby
unconditionally guarantees the full and punctual payment (whether at stated
maturity, upon acceleration or otherwise) of the principal of and interest on
each Note issued by any Eligible Subsidiary pursuant to this Agreement, and the
full and punctual payment of all other amounts payable by any Eligible
Subsidiary under this Agreement. Upon failure by any Eligible Subsidiary to pay
punctually any such amount, the Company shall forthwith on demand pay the amount
not so paid at the place and in the manner and currency specified in this
Agreement.
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SECTION 10.02. Guaranty Unconditional. The obligations of the
Company under this Article X shall be unconditional and absolute and, without
limiting the generality of the foregoing, shall not be released, discharged or
otherwise affected by:
(i) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of any Eligible Subsidiary under
this Agreement or any of its Notes, by operation of law or otherwise;
(ii) any modification or amendment of or supplement to this
Agreement or any Note of such Eligible Subsidiary (except that the
Company's guarantee under this Article X shall apply to the obligations
of such Eligible Subsidiary as modified, amended or supplemented
thereby);
(iii) any release, impairment, non-perfection or invalidity of
any direct or indirect security for any obligation of any Eligible
Subsidiary under this Agreement or any of its Notes;
(iv) any change in the corporate existence, structure or
ownership of any Eligible Subsidiary, or any insolvency, bankruptcy,
reorganization or other similar proceeding affecting any Eligible
Subsidiary or its assets or any resulting release or discharge of any
obligation of any Eligible Subsidiary contained in this Agreement or
any of its Notes;
(v) the existence of any claim, set-off or other rights which
the Company may have at any time against any Eligible Subsidiary, the
Agent, any Bank or any other Person, whether in connection herewith or
with any unrelated transactions, provided that nothing herein shall
prevent the assertion of any such claim by separate suit or compulsory
counterclaim;
(vi) any invalidity or unenforceability relating to or against
any Eligible Subsidiary for any reason of this Agreement or any of its
Notes, or any provision of applicable law or regulation purporting to
prohibit the payment by any Eligible Subsidiary of the principal of or
interest on any of its Notes or any other amount payable by it under
this Agreement; or
(vii) any other act or omission to act or delay of any kind by
any Eligible Subsidiary, the Agent, any Bank or any other Person or any
other circumstance
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whatsoever which might, but for the provisions of this paragraph,
constitute a legal or equitable discharge of the Company's obligations
hereunder.
SECTION 10.03. Discharge Only Upon Payment In Full;
Reinstatement In Certain Circumstances. The Company's obligations hereunder
shall remain in full force and effect until the Commitments shall have
terminated and the principal of and interest on the Notes of the Eligible
Subsidiaries and all other amounts payable by the Company and each Eligible
Subsidiary under this Agreement shall have been paid in full. If at any time any
payment of the principal of or interest on any Note of any Eligible Subsidiary
or any other amount payable by any Eligible Subsidiary under this Agreement is
rescinded or must be otherwise restored or returned upon the insolvency,
bankruptcy or reorganization of any Eligible Subsidiary or otherwise, the
Company's obligations hereunder with respect to such payment shall be reinstated
at such time as though such payment had been due but not made at such time.
SECTION 10.04. Waiver by the Company. The Company irrevocably
waives acceptance hereof, presentment, demand, protest and any notice not
provided for herein, as well as any requirement that at any time any action be
taken by any Person against any Eligible Subsidiary or any other Person.
SECTION 10.05. Subrogation. Upon making any payment with
respect to the obligations of any Eligible Subsidiary hereunder, the Company
shall be subrogated to the rights of the payee against such Eligible Subsidiary
with respect to such payment; provided that the Company shall not enforce any
payment by way of subrogation against such Eligible Subsidiary so long as (i)
any Bank has any Commitment hereunder (unless such Eligible Subsidiary is no
longer an Eligible Subsidiary for purposes hereof) or (ii) any amount payable by
such Eligible Subsidiary hereunder remains unpaid.
SECTION 10.06. Stay of Acceleration. If acceleration of the
time for payment of any amount payable by any Eligible Subsidiary under this
Agreement or its Notes is stayed upon insolvency, bankruptcy or reorganization
of such Eligible Subsidiary, all such amounts otherwise subject to acceleration
under the terms of this Agreement shall nonetheless be payable by the Company
hereunder forthwith on demand by the Agent made at the request of the Required
Banks.
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ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including bank wire,
telex, facsimile transmission or similar writing) and shall be given to such
party:
(w) in the case of the Company, at its address or
facsimile number set forth on the signature pages hereof;
(x) in the case of the Agent, at its address or telex
or facsimile number in New York City set forth on the signature pages
hereof, unless such communication is expressly required to be given to
the Agent in London, in which case at its address or telex or facsimile
number in London set forth on the signature pages hereof;
(y) in the case of an Eligible Subsidiary, at its
address set forth in its Election to Participate; or
(z) in the case of any Bank, at its address or telex
number set forth in its Administrative Questionnaire or in the case of
any party, such other address or telex or facsimile number as such
party may hereafter specify for the purpose by notice to the Agent and
the Company. Each such notice, request or other communication shall be
effective (i) if given by telex, when such telex is transmitted to the
telex number specified in this Section and the appropriate answerback
is received, (ii) if given by facsimile transmission, when transmitted
to the facsimile number referred to in this Section and confirmation of
receipt is received, (iii) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage
prepaid, addressed as aforesaid or (iv) if given by any other means,
when delivered at the address specified in this Section; provided that
notices to the Agent under Article II or Article VIII shall not be
effective until received.
SECTION 11.02. No Waivers. No failure or delay by the Agent or
any Bank in exercising any right, power or privilege hereunder or under any Note
shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The
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rights and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
SECTION 11.03. Expenses; Indemnification. (a) The Company
shall pay (i) all reasonable out-of-pocket expenses of the Agent, including
reasonable fees and disbursements of special counsel for the Agent, in
connection with the preparation and administration of this Agreement, any waiver
or consent hereunder or any amendment hereof or any Default or alleged Default
hereunder and (ii) if an Event of Default occurs, all out-of-pocket expenses
incurred by the Agent or any Bank, including fees and disbursements of counsel
(including, without limitation, the allocated costs of in-house counsel), in
connection with such Event of Default and collection, bankruptcy, insolvency and
other enforcement proceedings resulting therefrom.
(b) The Company agrees to indemnify the Agent and each Bank,
their respective affiliates and the respective directors, officers, agents and
employees of the foregoing (each an "Indemnitee") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel (including, without limitation, the reasonable
allocated costs of in-house counsel), which may be incurred by such Indemnitee
in connection with any investigative, administrative or judicial proceeding
(whether or not such Indemnitee shall be designated a party thereto) brought or
threatened relating to or arising out of this Agreement or any actual or
proposed use of proceeds of Loans hereunder; provided that no Indemnitee shall
have the right to be indemnified hereunder for such Indemnitee's own gross
negligence or willful misconduct as finally determined by a court of competent
jurisdiction.
SECTION 11.04. Sharing of Set-Offs. Each Bank agrees that if
it shall, by exercising any right of set-off or counterclaim or otherwise,
receive payment of a proportion of the aggregate amount of principal and
interest due with respect to any Note held by it which is greater than the
proportion received by any other Bank in respect of the aggregate amount of
principal and interest due with respect to any Note of the same Borrower held by
such other Bank, the Bank receiving such proportionately greater payment shall
purchase such participations in the Notes of the same Borrower held by the other
Banks, and such other adjustments shall be made, as may be required so that all
such payments of principal and interest with respect to the Notes of the same
Borrower held by the Banks shall be shared by the Banks pro rata; provided that
nothing in this Section
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shall impair the right of any Bank to exercise any right of set-off or
counterclaim it may have and to apply the amount subject to such exercise to the
payment of indebtedness of the relevant Borrower other than its indebtedness
under the Notes. Each Borrower agrees, to the fullest extent it may effectively
do so under applicable law, that any holder of a participation in any of its
Notes, whether or not acquired pursuant to the foregoing arrangements, may
exercise rights of set-off or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were a direct
creditor of such Borrower in the amount of such participation.
SECTION 11.05. Amendments and Waivers. Any provision of this
Agreement or the Notes may be amended or waived if, but only if, such amendment
or waiver is in writing and is signed by the Company and the Required Banks
(and, if the rights or duties of the Agent are affected thereby, by the Agent);
provided that no such amendment or waiver shall, unless signed by all the Banks,
(i) increase or decrease the Commitment of any Bank (except for a ratable
decrease in the Commitments of all the Banks) or subject any Bank to any
additional obligation, (ii) reduce the principal of or rate of interest on any
Loan or any fees hereunder, (iii) postpone the date fixed for any payment of
principal of or interest on any Loan or any fees hereunder or for the
termination of any Commitment, (iv) release the Guarantor from any of its
obligations under Article X, (v) waive any of the conditions to effectiveness
set forth in Section 3.01 or (vi) change the percentage of the Commitments or of
the aggregate Dollar Amount of the Notes, or the number of Banks, which shall be
required for the Banks or any of them to take any action under this Section or
any other provision of this Agreement; and provided further that no such
amendment, waiver or modification shall, unless signed by an Eligible
Subsidiary, (w) subject such Eligible Subsidiary to any additional obligation,
(x) increase the principal of or rate of interest on any outstanding Loan of
such Eligible Subsidiary, (y) accelerate the stated maturity of any outstanding
Loan of such Eligible Subsidiary or (z) change this proviso.
SECTION 11.06. Successors and Assigns. (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, except that no Borrower may
assign or otherwise transfer any of its rights under this Agreement without the
prior written consent of all the Banks.
(b) Any Bank may at any time grant to one or more banks or
other institutions (each a "Participant")
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75
participating interests in its Commitment or any or all of its Loans. In the
event of any such grant by a Bank of a participating interest to a Participant,
whether or not upon notice to the Borrowers and the Agent, such Bank shall
remain responsible for the performance of its obligations hereunder, and the
Borrowers and the Agent shall continue to deal solely and directly with such
Bank in connection with such Bank's rights and obligations under this Agreement.
Any agreement pursuant to which any Bank may grant such a participating interest
shall provide that such Bank shall retain the sole right and responsibility to
enforce the obligations of the Borrowers hereunder including, without
limitation, the right to approve any amendment, modification or waiver of any
provision of this Agreement; provided that such participation agreement may
provide that such Bank will not agree to any modification, amendment or waiver
of this Agreement described in clause (i), (ii) or (iii) of Section 11.05
without the consent of the Participant. The Borrowers agree that each
Participant shall, to the extent provided in its participation agreement, be
entitled to the benefits of Article VIII with respect to its participating
interest. An assignment or other transfer which is not permitted by subsection
(c) or (d) below shall be given effect for purposes of this Agreement only to
the extent of a participating interest granted in accordance with this
subsection (b).
(c) Any Bank may at any time assign to one or more banks or
other institutions (each an "Assignee") all, or a proportionate part of all, of
its rights and obligations under this Agreement and the Notes, and such Assignee
shall assume such rights and obligations, pursuant to an Assignment and
Assumption Agreement in substantially the form of Exhibit I hereto executed by
such Assignee and such transferor Bank, with (and subject to) the subscribed
consent of the Company and the Agent; provided that if an Assignee is an
affiliate of such transferor Bank, no such consent shall be required; and
provided further that such assignment may, but need not, include rights of the
transferor Bank in respect of outstanding Money Market Loans. Upon execution and
delivery of such an instrument and payment by such Assignee to such transferor
Bank of an amount equal to the purchase price agreed between such transferor
Bank and such Assignee, such Assignee shall be a Bank party to this Agreement
and shall have all the rights and obligations of a Bank with a Commitment as set
forth in such instrument of assumption, and the transferor Bank shall be
released from its obligations hereunder to a corresponding extent, and no
further consent or action by any party shall be required. Upon the consummation
of any assignment pursuant to this subsection (c), the transferor
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76
Bank, the Agent and the Borrowers shall make appropriate arrangements so that,
if required, new Notes are issued to the Assignee. In connection with any such
assignment, the transferor Bank shall pay to the Agent an administrative fee for
processing such assignment in the amount of $2,500. If the Assignee is not
incorporated under the laws of the United States or a state thereof, it shall
deliver to the Company and the Agent certification as to exemption from
deduction or withholding of any United States federal income taxes in accordance
with Section 8.04.
(d) Any Bank may at any time assign all or any portion of its
rights under this Agreement and its Notes to a Federal Reserve Bank or to any
affiliate of such transferor Bank. No such assignment shall release the
transferor Bank from its obligations hereunder and the Borrowers and the Agent
shall continue to deal solely and directly with such transferor Bank in
connection with such transferor Bank's rights and obligations under this
Agreement.
(e) No Assignee, Participant or other transferee of any Bank's
rights shall be entitled to receive any greater payment under Section 8.03 or
8.04 than such Bank would have been entitled to receive with respect to the
rights transferred, unless such transfer is made with the Company's prior
written consent or by reason of the provisions of Section 8.02, 8.03 or 8.04
requiring such Bank to designate a different Applicable Lending Office under
certain circumstances or at a time when the circumstances giving rise to such
greater payment did not exist.
SECTION 11.07. Collateral. Each of the Banks represents to the
Agent and each of the other Banks that it in good faith is not relying upon any
Margin Stock as collateral in the extension or maintenance of the credit
provided for in this Agreement.
SECTION 11.08. Governing Law; Submission to Jurisdiction. This
Agreement and each Note shall be governed by and construed in accordance with
the laws of the State of New York. Each Borrower hereby submits to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York and of any New York State court sitting in New York City
for purposes of all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby. Each Borrower irrevocably
waives, to the fullest extent permitted by law, any objection which it may now
or hereafter have to the laying of the venue of any such proceeding brought in
70
77
such a court and any claim that any such proceeding brought in such a court has
been brought in an inconvenient forum.
SECTION 11.09. Counterparts; Integration. This Agreement may
be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement and understanding
among the parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof.
SECTION 11.10. WAIVER OF JURY TRIAL. EACH OF THE BORROWERS,
THE AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
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78
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective authorized officers as of the
day and year first above written.
ALLERGAN, INC.
By /s/ Albert J. Moyer
----------------------------------------
Title: Corporate Vice President
Chief Financial Officer
By /s/ Jeffrey L. Edwards
----------------------------------------
Title: Vice President, Treasurer
2525 Dupont Drive
Irvine, California 92713
Attn: Jeffrey L. Edwards
Telex No.:
Facsimile No.: 714-246-4162
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ Diana H. Imhof
----------------------------------------
Title: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By /s/ Yvonne C. Dennis
----------------------------------------
Title: Vice President
CITICORP USA, INC.
By /s/ Marjorie Futornick
----------------------------------------
Title: Vice President
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79
ABN AMRO BANK N.V.
LOS ANGELES INTERNATIONAL
BRANCH
By /s/ Matthew S. Thomson
----------------------------------------
Title: Group Vice President/
Director
By /s/ Paul K. Stimpfl
----------------------------------------
Title: Vice President
UNION BANK OF SWITZERLAND, NEW
YORK BRANCH
By /s/ Bruce T. Richards
----------------------------------------
Title: Managing Director
By /s/ Donna Derwin
----------------------------------------
Title: Assistant Vice President
WACHOVIA BANK OF GEORGIA, N.A.
By /s/ David K. Alexander
----------------------------------------
Title: Senior Vice President
BANK OF AMERICA
NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Co-Agent
By /s/ Yvonne C. Dennis
----------------------------------------
Title: Vice President
555 S. Flower Street
11th Floor, #5618
Los Angeles, CA 90071
Attention: Yvonne C. Dennis
Telex No.:
Facsimile No.: 213-623-1959
73
80
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By /s/ Diana H. Imhof
----------------------------------------
Title: Vice President
In New York:
60 Wall Street
New York, New York 10260-0060
Attention: Diana H. Imhof
Telex No.: 177615
Facsimile No.: 212-648-5014
In London:
60 Victoria Embankment
London EC4Y OJP
Attention: Raymond Mayers
Telephone No.: 011-44-171-325-1486
Facsimile No.: 011-44-171-325-8114
74
81
COMMITMENT SCHEDULE
Bank Commitments
- ---- -----------
Morgan Guaranty Trust Company of New York $ 53,000,000
Bank of America National Trust and Savings $ 52,000,000
Association
Citicorp USA, Inc. $ 52,000,000
ABN AMRO Bank N.V., Los Angeles $ 31,000,000
International Branch
Union Bank of Switzerland $ 31,000,000
Wachovia Bank of Georgia, N.A. $ 31,000,000
============
Total $250,000,000
82
EXHIBIT A
NOTE
New York, New York
, 19
For value received, [name of relevant Borrower], a [Borrower's
jurisdiction of incorporation] corporation (the "Borrower"), promises to pay to
the order of _______________ (the "Bank"), for the account of its Applicable
Lending Office, the unpaid principal amount of each Loan made by the Bank to the
Borrower pursuant to the Credit Agreement referred to below on the maturity date
provided for in the Credit Agreement. The Borrower promises to pay interest on
the unpaid principal amount of each such Loan on the dates and at the rate or
rates and in the currency provided for in the Credit Agreement. All such
payments of principal and interest shall be made (i) if in Dollars, in lawful
money of the United States in Federal or other immediately available funds at
the office of Morgan Guaranty Trust Company of New York, 60 Wall Street, New
York, New York or (ii) if in an Alternative Currency, in such funds as may then
be customary for the settlement of international transactions in such
Alternative Currency at the place specified for payment thereof pursuant to the
Credit Agreement.
All Loans made by the Bank, the respective types and
maturities thereof, all repayments of the principal thereof and, in the case of
Euro-Currency Loans in an Alternative Currency, the currency thereof shall be
recorded by the Bank and, if the Bank so elects in connection with any transfer
or enforcement hereof, appropriate notations to evidence the foregoing
information with respect to each such Loan then outstanding shall be endorsed by
the Bank on the schedule attached hereto, or on a continuation of such schedule
attached to and made a part hereof; provided that the failure of the Bank to
make any such recordation or endorsement shall not affect the obligations of the
Borrower hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the Credit
Agreement dated as of December 22, 1993 and amended and restated as of May 10,
1996 among Allergan, Inc., the Eligible Subsidiaries referred to therein, the
banks party thereto, Morgan Guaranty Trust Company of New York, as Agent and
Bank of America National Trust and Savings Association,
1
83
as Co-Agent (as the same may be further amended from time to time, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein with the same
meanings. Reference is made to the Credit Agreement for provisions for the
prepayment hereof and the acceleration of the maturity hereof.
[The payment in full of the principal and interest on this
Note has, pursuant to the provisions of the Credit Agreement, been
unconditionally guaranteed by Allergan, Inc.]**
[Name of Borrower]
By
--------------------------------------
Title:
- --------
** Include in Notes of Eligible Subsidiaries only.
2
84
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
- ----------------------------------------------------------------------------------------------------------
Type or Amount of
Currency Principal Amount Maturity Notation
Date of Loan Repaid of Loan Date Made by
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
3
85
EXHIBIT B
Form of Money Market Quote Request
[Date]
To: Morgan Guaranty Trust Company of New York
(the "Agent")
From: [Name of Borrower]
Re: Credit Agreement (the "Credit Agreement") dated as
of December 22, 1993 and amended and restated as
of May 10, 1996 among the Allergan, Inc., the
Eligible Subsidiaries referred to therein, the
Banks party thereto, the Agent and the Co-Agent
We hereby give notice pursuant to Section 2.03 of the Credit
Agreement that we request Money Market Quotes for the following proposed Money
Market Borrowing(s):
Date of Borrowing:
------------------------------
Principal Amount* Interest Period**
$
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate is the London Interbank Offered
Rate].
Terms used herein have the meanings assigned to them in the
Credit Agreement.
[Name of Borrower]
By
--------------------------------------
Title:
- --------
* Amount must be $5,000,000 or a larger multiple of $1,000,000.
** Not less than one month (LIBOR Auction) or not less than 15 days
(Absolute Rate Auction), subject to the provisions of the definition of
Interest Period.
86
EXHIBIT C
Form of Invitation for Money Market Quotes
To: [Name of Bank]
Re: Invitation for Money Market Quotes to [Name of Borrower] (the
"Borrower")
Pursuant to Section 2.03 of the Credit Agreement dated as of
December 22, 1993 and amended and restated as of May 10, 1996 among Allergan,
Inc., the Eligible Subsidiaries referred to therein, the Banks parties thereto
and the undersigned, as Agent, we are pleased on behalf of the Borrower to
invite you to submit Money Market Quotes to the Borrower for the following
proposed Money Market Borrowing(s):
Date of Borrowing:
------------------------------
Principal Amount Interest Period
$
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate for Money Market LIBOR Loan is the
London Interbank Offered Rate].
Please respond to this invitation by no later than [2:00 P.M.]
[9:15 A.M.] (New York City time) on [date].
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By
--------------------------------------
Authorized Officer
87
EXHIBIT D
Form of Money Market Quote
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
23 Wall Street
New York, New York 10015
Attention:
Re: Money Market Quote to
[Name of Borrower] (the "Borrower")
In response to your invitation on behalf of the Borrower dated
_________________, 19__, we hereby make the following Money Market Quote on the
following terms:
1. Quoting Bank:_________________________________________________________
2. Person to contact at Quoting Bank:
______________________________________________________________________
3. Date of Borrowing:__________________________________________________ *
- --------
* As specified in the related Invitation.
88
4. We hereby offer to make Money Market Loan(s) in the
following principal amounts, for the following Interest
Periods and at the following rates:
Principal Interest Money Market
Amount** Period*** [Margin****] [Absolute Rate*****]
- --------- --------- ------------ --------------------
$
$
[Provided that the aggregate principal amount of Money
Market Loans for which the above offers may be accepted
shall not exceed $ .]**
We understand and agree that the offer(s) set forth above,
subject to the satisfaction of the applicable conditions set forth in
the Credit Agreement dated as of December 22, 1993 and amended and
restated as of May 10, 1996 among Allergan, Inc., the Eligible
Subsidiaries referred to therein, the Banks and Co-
- --------
** Principal amount bid for each Interest Period may not exceed principal
amount requested. Specify aggregate limitation if the sum of the
individual offers exceeds the amount the Bank is willing to lend. Bids
must be made for $5,000,000 or a larger multiple of $1,000,000.
*** Not less than one month or not less than 15 days, as specified in the
related Invitation. No more than five bids are permitted for each
Interest Period.
**** Margin over or under the London Interbank Offered Rate determined for
the applicable Interest Period. Specify percentage (to the nearest
1/10,000 of 1%) and specify whether "PLUS" or "MINUS".
***** Specify rate of interest per annum (to the nearest 1/10,000 of 1%).
2
89
Agent party thereto and yourselves, as Agent, irrevocably obligates us
to make the Money Market Loan(s) for which any offer(s) are accepted,
in whole or in part.
Very truly yours,
[NAME OF BANK]
Dated: By:
------------------------------ -------------------------------------
Authorized Officer
3
90
EXHIBIT E
Opinion of General Counsel for the Company
May 10, 1996
To the Banks and the
Agent referred to below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260
Re: Allergan, Inc.
Gentlemen:
This opinion is being furnished to you pursuant to Section
3.01(d) of the Credit Agreement dated as of December 22, 1993 and amended and
restated as of May 10, 1996 among Allergan, Inc., a Delaware corporation (the
"Company"), the Eligible Subsidiaries and Co-Agent referred to therein and you
(the "Credit Agreement"). Capitalized terms used but not defined herein have the
corresponding meanings set forth in the Credit Agreement.
I am the General Counsel of the Company and, in such capacity,
I am generally familiar with the corporate and legal matters concerning the
Company and its Subsidiaries.
I have made such inquiries and examined, among other things,
originals, or copies certified or otherwise identified to my satisfaction as
being true copies, of such records, agreements, certificates, instruments and
other documents as I have considered necessary or appropriate for purposes of
this opinion.
Based on the foregoing and in reliance thereon, I am of the
opinion that:
1. The Company has been duly incorporated and is a validly
existing corporation and in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority to execute, deliver
and perform its obligations under the Credit Agreement and the Notes and to
conduct its business as presently conducted.
91
To the Banks and the
Agent referred to below 2 May 10, 1996
2. The Company is duly qualified to transact business and is
in good standing in each jurisdiction in which the character of its business or
the location of its properties makes such qualification necessary, except where
the failure to be so qualified would not have a Materially Adverse Effect.
3. To the best of my knowledge, the Company and each
Subsidiary have all governmental licenses, authorizations, consents and
approvals required to carry on their respective businesses as presently
conducted, except where the failure to have any of the foregoing would not in
the aggregate have a Materially Adverse Effect.
4. Neither the Company nor any Subsidiary is in violation of
(a) its charter or bylaws or (b) to the best of my knowledge, any law, statute,
rule, regulation, order, writ, injunction or decree of any Governmental
Authority applicable to them or their respective properties or assets, except
(in the case of clause (b)) where any such violation would, singly or in the
aggregate with other such violations, not have a Materially Adverse Effect.
5. There are no pending or, to the best of my knowledge,
threatened actions or proceedings against the Company or any of its Subsidiaries
before any Governmental Authority which purport to affect the legality,
validity, binding effect or enforceability of the Credit Agreement or the Notes,
or which are likely to have a Materially Adverse Effect.
6. The execution and delivery by the Company of the Credit
Agreement and its Notes and the performance of its obligations thereunder have
been duly authorized by all necessary action of the Company.
7. The Credit Agreement and the Notes of the
Company have each been duly executed and delivered by the
Company.
8. The Credit Agreement constitutes a valid and binding
agreement of the Company and each of its Notes constitute a legal, valid and
binding obligation of the Company, in each case enforceable in accordance with
its terms.
2
92
To the Banks and the
Agent referred to below 3 May 10, 1996
9. The execution, delivery and performance by the Company of
the Credit Agreement and its Notes do not and will not (A) violate the restated
certificate of incorporation or bylaws of the Company as in effect on the date
hereof, (B) to the best of my knowledge, violate any material law or regulation
applicable to the Company or any order, judgment or decree of any Governmental
Authority known to me to be binding on the Company, (C) to the best of my
knowledge, conflict with, result in a material breach of or constitute a
material default under any material indenture, mortgage, deed of trust,
agreement or other instrument to which the Company or any Subsidiary is a party
or by which any of their respective properties are bound or result in or require
the creation or imposition of any Lien upon any of their respective assets, or
(D) require any authorization, consent, waiver or approval of any Governmental
Authority.
10. Neither the Company nor any of its Subsidiaries is an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
The foregoing opinions are subject to the following
exceptions, qualifications and limitations:
A. I render no opinion herein as to matters involving the laws
of any jurisdiction other than (i) the Federal laws of the United States of
America, (ii) the laws of the State of California and (iii) the Delaware General
Corporation Law. I am not admitted to practice law in the State of Delaware;
however, I am generally familiar with the Delaware General Corporation Law as
presently in effect and have made such inquiries as I consider necessary to
render the opinions contained in paragraphs 1, 4, 6, 7 and 9. This opinion is
limited to the effect of the present state of the foregoing laws and to the
facts as they presently exist. I assume no obligation to revise or supplement
this opinion in the event of future changes in such laws or the interpretations
thereof or such facts. I call your attention to the fact that the Credit
Agreement provides that it and the Notes shall be construed in accordance with
and governed by the laws of the State of New York as to which I express no
opinion herein. However, in my opinion (i) a Federal or state court sitting in
California would enforce or otherwise give legal effect to the choice of New
York law set forth in Section 11.08 of the Credit Agreement and (ii) even if
such a court applied California law to
3
93
To the Banks and the
Agent referred to below 4 May 10, 1996
determine the rights of the parties under the Credit Agreement, I would give the
opinion set forth in paragraph 8 above.
B. My opinions set forth in paragraph 8 and (with respect to
performance by the Company) clauses (B) and (D) of paragraph 9 are subject to
(i) the effect of any bankruptcy, insolvency, reorganization, moratorium,
arrangement or similar laws affecting the enforcement of creditors' rights
generally (including, without limitation, the effect of statutory or other laws
regarding fraudulent transfers or preferential transfers) and (ii) general
principles of equity, regardless of whether enforceability is considered in a
proceeding in equity or at law.
C. Without limitation, I express no opinion (i) as to the
ability to obtain specific performance, injunctive relief or other equitable
relief (whether sought in a proceeding at law or in equity) as a remedy for
noncompliance with Credit Agreement or the Notes, and (ii) regarding the rights
or remedies available to any party insofar as such party may take discretionary
action that is arbitrary, unreasonable or capricious, or is not taken in good
faith or in a commercially reasonable manner, whether or not such action is
permitted under the Credit Agreement or the Notes.
D. I express no opinion with respect to the legality,
validity, binding nature or enforceability of any provision of the Credit
Agreement or the Notes to the effect that rights or remedies are not exclusive,
that every right or remedy is cumulative and may be exercised in addition to any
other right or remedy, that the election of some particular remedy does not
preclude recourse to one or more others or that failure to exercise or delay in
exercising rights or remedies will not operate as a waiver of any such right or
remedy.
E. I express no opinion with respect to the legality,
validity, binding nature or enforceability of (i) any waiver under the Credit
Agreement or the Notes or any consents thereunder relating to the rights of the
Company or duties owing to it existing as a matter of law, except to the extent
the Company may so waive or consent under applicable law, (ii) provisions in the
Credit Agreement or the Notes imposing an increase in interest rate upon
delinquency in payment or (iii) any rights of setoff.
4
94
To the Banks and the
Agent referred to below 5 May 10, 1996
F. I express no opinion as to any provision of the Credit
Agreement or the Notes requiring written amendments or waivers of such documents
insofar as it suggests that oral or other modifications, amendments or waivers
could not be effectively agreed upon by the parties or that the doctrine of
promissory estoppel might not apply.
G. I express no opinion as to the applicability
or effect of any Bank's compliance with any state or Federal
laws applicable to the transactions contemplated by the
Credit Agreement.
This opinion is rendered to you in connection with the Credit
Agreement and may not be relied upon by any person other than you (or permitted
assignees under the Credit Agreement) or by you (or any such permitted assignee)
in any other context, provided that you may provide this opinion (i) to bank
examiners and other regulatory authorities should they so request or in
connection with their normal examinations, (ii) to your independent auditors and
attorneys, (iii) pursuant to order or legal process of any court or governmental
agency, or (iv) in connection with any legal action to which you are a party
arising out of the transactions contemplated by the Credit Agreement. This
opinion may not be quoted without my prior written consent. I consent to the
delivery of this opinion to the Agent's special counsel, Davis Polk & Wardwell,
and to their reliance on this opinion in connection with closing under the
Credit Agreement.
Very truly yours,
Francis R. Tunney, Jr., Esq.
General Counsel
Allergan, Inc.
5
95
EXHIBIT F
OPINION OF
DAVIS POLK & WARDWELL, SPECIAL COUNSEL
TO THE AGENT
May 10, 1996
To the Banks and the Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
We have participated in the preparation of the Credit
Agreement (the "Credit Agreement") dated as of December 22, 1993 as amended and
restated as of May 10, 1996 among Allergan, Inc., a Delaware corporation (the
"Company"), the Eligible Subsidiaries referred to therein, the banks party
thereto (the "Banks"), Morgan Guaranty Trust Company of New York, as Agent (the
"Agent") and Bank of America National Trust and Savings Association, as Co-Agent
(the "Co-Agent"), and have acted as special counsel to the Agent for the purpose
of rendering this opinion pursuant to Section 3.01(e) of the Credit Agreement.
Terms defined in the Credit Agreement are used herein as therein defined.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that:
1. The execution, delivery and performance by the Company of
the Credit Agreement and its Notes are within the Company's corporate powers and
have been duly authorized by all necessary corporate action.
96
2. The Credit Agreement constitutes a valid and binding
agreement of the Company and each Note of the Company constitutes a valid and
binding obligation of the Company.
We are members of the Bar of the State of New York and the
foregoing opinion is limited to the laws of the State of New York, the federal
laws of the United States and the General Corporation Law of the State of
Delaware. In giving the foregoing opinion, we express no opinion as to the
effect (if any) of any law of any jurisdiction (except the State of New York) in
which any Bank is located which limits the rate of interest that such Bank may
charge or collect.
This opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other purpose
or relied upon by any other person without our prior written consent.
Very truly yours,
2
97
EXHIBIT G
ELECTION TO PARTICIPATE
___________, 19
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent for
the Banks party to the Credit
Agreement dated as of December
22, 1993 and amended and restated
as of May 10, 1996 among
Allergan, Inc., the Eligible
Subsidiaries referred to therein,
such Banks and such Agent (the
"Credit Agreement")
Dear Sirs:
Reference is made to the Credit Agreement described above.
Terms not defined herein which are defined in the Credit Agreement have for the
purposes hereof the meaning provided therein.
The undersigned, [name of Eligible Subsidiary], a
[jurisdiction of incorporation] corporation, hereby elects to be an Eligible
Subsidiary for purposes of the Credit Agreement, effective from the date hereof
until an Election to Terminate shall have been delivered on behalf of the
undersigned in accordance with the Credit Agreement. The undersigned confirms
that the representations and warranties set forth in Article IX of the Credit
Agreement are true and correct as to the undersigned as of the date hereof, and
the undersigned agrees to perform all the obligations of an Eligible Subsidiary
under, and to be bound in all respects by the terms of, the Credit Agreement,
including without limitation Section 11.08 thereof, as if the undersigned were a
signatory party thereto.
[Tax disclosure pursuant to Section 8.04.]
The address to which all notices to the undersigned under the
Credit Agreement should be directed is:
98
This instrument shall be construed in accordance with and governed by the laws
of the State of New York.
Very truly yours,
[NAME OF ELIGIBLE SUBSIDIARY]
By____________________________
Title:
The undersigned confirms that [name of Eligible Subsidiary] is
an Eligible Subsidiary for purposes of the Credit Agreement described above.
ALLERGAN, INC.
By____________________________
Name:
Title:
Receipt of the above Election to Participate is acknowledged
on and as of the date set forth above.
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By____________________________
Name:
Title:
2
99
EXHIBIT H
ELECTION TO TERMINATE
___________, 19
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent for
the Banks party to the Credit
Agreement dated as of
December 22, 1993 and amended
and restated as of May 10,
1996 among Allergan, Inc.,
the Eligible Subsidiaries
referred to therein, such Banks
an such Agent (the "Credit
Agreement")
Dear Sirs:
Reference is made to the Credit Agreement described above.
Terms not defined herein which are defined in the Credit Agreement have for the
purposes hereof the meaning provided therein.
The undersigned, [name of Eligible Subsidiary], a
[jurisdiction of incorporation] corporation, elects to terminate its status as
an Eligible Subsidiary for purposes of the Credit Agreement, effective as of the
date hereof. The undersigned represents and warrants that all principal and
interest on all Notes of the undersigned and all other amounts payable by the
undersigned pursuant to the Credit Agreement have been paid in full on or prior
to the date hereof. Notwithstanding the foregoing, this Election to Terminate
shall not affect any obligation of the undersigned under the Credit Agreement or
under any of its Notes heretofore incurred.
100
This instrument shall be construed in accordance with and
governed by the laws of the State of New York.
Very truly yours,
[NAME OF ELIGIBLE SUBSIDIARY]
By_______________________
Title:
The undersigned confirms that the status of [name of Eligible
Subsidiary] as an Eligible Subsidiary for purposes of the Credit Agreement
described above is terminated as of the date hereof.
ALLERGAN, INC.
By_________________________
Name:
Title:
Receipt of the above Election to Terminate is acknowledged on
and as of the date set forth above.
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By__________________________
Name:
Title:
2
101
EXHIBIT I
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, 19__ among [ASSIGNOR] (the
"Assignor"), [ASSIGNEE] (the "Assignee"), ALLERGAN, INC., a Delaware corporation
(the "Company"), and MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as Agent (the
"Agent").
W I T N E S S E T H
WHEREAS, this Assignment and Assumption Agreement (the
"Agreement") relates to the Credit Agreement dated as of December 22, 1993 and
amended and restated as of May 10, 1996 among the Company, the Eligible
Subsidiaries party thereto, the Assignor and the other Banks party thereto, as
Banks, the Co-Agent party thereto and the Agent (the "Credit Agreement");
WHEREAS, as provided under the Credit Agreement, the Assignor
has a Commitment to make Loans to the Borrowers in an aggregate Dollar Amount at
any time outstanding not to exceed $__________;
WHEREAS, Committed Loans made to the Borrowers by the Assignor
under the Credit Agreement in the aggregate Dollar Amount of $__________ are
outstanding at the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all
of the rights of the Assignor under the Credit Agreement in respect of a portion
of its Commitment thereunder in an amount equal to $__________ (the "Assigned
Amount"), together with a corresponding portion of its outstanding Committed
Loans, and the Assignee proposes to accept assignment of such rights and assume
the corresponding obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements contained herein, the parties hereto agree as follows:
1
102
SECTION 1. Definitions. All capitalized terms not otherwise
defined herein have the respective meanings set forth in the Credit Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells
to the Assignee all of the rights of the Assignor under the Credit Agreement to
the extent of the Assigned Amount, and the Assignee hereby accepts such
assignment from the Assignor and assumes all of the obligations of the Assignor
under the Credit Agreement to the extent of the Assigned Amount, including the
purchase from the Assignor of the corresponding portion of the principal amount
of the Committed Loans made by the Assignor outstanding at the date hereof. Upon
the execution and delivery hereof by the Assignor, the Assignee, the Company and
the Agent and the payment of the amounts specified in Section 3 required to be
paid on the date hereof (i) the Assignee shall, as of the date hereof, succeed
to the rights and be obligated to perform the obligations of a Bank under the
Credit Agreement with a Commitment in an amount equal to the Assigned Amount,
and (ii) the Commitment of the Assignor shall, as of the date hereof, be reduced
by a like amount and the Assignor shall be released from its obligations under
the Credit Agreement to the extent such obligations have been assumed by the
Assignee. The assignment provided for herein shall be without recourse to the
Assignor.
SECTION 3. Payments. As consideration for the assignment and
sale contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on
the date hereof, in Dollars (in Federal funds) and the relevant Alternative
Currencies, the amounts heretofore agreed between them.(1) It is understood that
facility fees accrued to the date hereof are for the account of the Assignor and
such fees accruing from and including the date hereof are for the account of the
Assignee. Each of the Assignor and the Assignee agrees that if it receives any
amount under the Credit Agreement which is for the account of the other party
hereto, it shall receive the same for the account of such other party to the
extent of such other party's interest therein and shall promptly pay the same to
such other party.
SECTION 4. Consent of the Company and the Agent. This
Agreement is conditioned upon the consent of the
- --------
(1) Amount should combine principal together with accrued interest and breakage
compensation, if any, to be paid by the Assignee. It may be preferable in an
appropriate case to specify these amounts generically or by formula rather than
as a fixed sum.
2
103
Company and the Agent pursuant to Section 11.06(c) of the Credit Agreement. The
execution of this Agreement by the Company and the Agent is evidence of this
consent. Pursuant to Section 11.06(c) the Company agrees to execute and deliver
a Note, and cause the Eligible Subsidiaries to execute and deliver Notes,
payable to the order of the Assignee to evidence the assignment and assumption
provided for herein.
SECTION 5. Non-Reliance on Assignor. The Assignor makes no
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition or statements of any
Borrower, or the validity and enforceability of the obligations of any Borrower
in respect of the Credit Agreement or its Note. The Assignee acknowledges that
it has, independently and without reliance on the Assignor, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and will continue to be
responsible for making its own independent appraisal of the business, affairs
and financial condition of the Borrowers.
SECTION 6. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
SECTION 7. Counterparts. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
3
104
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed and delivered by their duly authorized officers as of the date first
above written.
[ASSIGNOR]
By_________________________
Title:
[ASSIGNEE]
By__________________________
Title:
[ALLERGAN,INC.
By__________________________
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By__________________________
Title:]
4
105
EXHIBIT J
INTELLECTUAL PROPERTY
As used in this Exhibit J, references to the Company shall mean Allergan, Inc.
LEGAL PROCEEDINGS
1. In November 1992 the Company's subsidiary Allergan Medical Optics
("AMO") filed suit against Staar Surgical for infringement of a patent covering
certain devices for the insertion of intraocular lenses into the eye. In
December 1992, AMO filed a similar suit against Chiron Ophthalmics, Inc. The two
cases were subsequently consolidated and trial has been divided into two phases.
The court has denied AMO's request for a preliminary injunction against Chiron
and Staar pending the outcome of the Phase I trial. Phase I trial was held and
judgment was entered for AMO. Chiron subsequently entered into a complete
settlement with AMO. Staar appealed and the trial of phase II against Staar is
set for June, 1996.
2. Chiron (phaco cassettes) (Alleged Patent Infringement)
On February 1, 1996, the Company received a cease and desist
letter from Chiron alleging infringement of U.S. Patent Nos. Re 33,250 and
4,493,695. After preliminary review, the Company has concluded there is no merit
to this claim and has so notified Chiron. Chiron is evaluating our reply.
3. Intaglia (M.D. Formulations VIT-A-PLUS) (Alleged Patent
Infringement).
On March 27, 1996 the Company received a claim letter from
counsel for Intaglia alleging that Herald's VIT-A-PLUS infringes a soon to be
issued patent held by claimant. Claimant alleges that they have received a
notice of allowance for a patent which allegedly covers the product. The Company
has requested further information regarding the patent claim and prosecution
history of the patent in issue in order to evaluate the claim.