EXHIBIT 10.1
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U.S. $22,500,000,000
364-DAY BRIDGE TERM LOAN CREDIT AGREEMENT
Dated as of March 12, 2009
Among
PFIZER INC.,
as Borrower,
and
THE INITIAL LENDERS NAMED HEREIN,
as Initial Lenders,
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent,
and
J.P. MORGAN SECURITIES INC., BANC OF AMERICA SECURITIES LLC, BARCLAYS
CAPITAL, CITIGROUP GLOBAL MARKETS INC., AND GOLDMAN SACHS CREDIT PARTNERS
L.P.,
as Joint Lead Arrangers,
and
BANCO SANTANDER, S.A. NEW YORK BRANCH, CREDIT SUISSE, DEUTSCHE BANK SECURITIES
INC., HSBC BANK USA, NATIONAL ASSOCIATION, THE ROYAL BANK OF SCOTLAND PLC, THE
BANK OF TOKYO-MITSUBISHI UFJ, LTD., AND UBS SECURITIES LLC,
as Arrangers,
and
BANC OF AMERICA SECURITIES LLC,
BARCLAYS CAPITAL, CITIBANK, N.A., AND GOLDMAN SACHS CREDIT PARTNERS L.P.
as Joint Syndication Agents
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TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS AND ACCOUNTING MATTERS.............................. 1
1.01 Certain Defined Terms........................................... 1
1.02 Accounting Terms and Determinations............................. 25
1.03 Computation of Time Periods..................................... 26
1.04 Terms Generally................................................. 26
SECTION 2. AMOUNTS AND TERMS OF THE LOANS.................................. 26
2.01 Commitments..................................................... 26
2.02 Making the Loans................................................ 26
2.03 Use of Proceeds................................................. 27
2.04 Changes of Commitments.......................................... 27
2.05 Fees............................................................ 28
2.06 Repayment of Loans.............................................. 28
2.07 Interest on Loans............................................... 28
2.08 Interest Rate Determination..................................... 29
2.09 Optional Conversion of Loans.................................... 29
2.10 Optional Prepayments............................................ 30
2.11 Mandatory Prepayments and Commitment Reductions................. 30
2.12 Payments and Computations....................................... 31
2.13 Sharing of Payments Etc......................................... 32
2.14 Additional Costs................................................ 32
2.15 Illegality...................................................... 34
2.16 Taxes........................................................... 34
2.17 Defaulting Lender............................................... 36
SECTION 3. CONDITIONS TO EFFECTIVE DATE AND FUNDING DATE................... 36
3.01 Conditions Precedent to Effective Date.......................... 36
3.02 Conditions Precedent to the Funding Date........................ 38
SECTION 4. REPRESENTATIONS AND WARRANTIES.................................. 41
4.01 Organization; Powers; Binding Effect............................ 41
4.02 Contravention................................................... 41
4.03 Authorization................................................... 41
4.04 Financial Statements; Material Adverse Change................... 41
4.05 No Omission..................................................... 42
4.06 Status.......................................................... 43
4.07 Federal Reserve Regulations..................................... 43
4.08 Investment Company Status....................................... 43
4.09 Litigation...................................................... 43
4.10 Use of Proceeds................................................. 43
4.11 Solvency........................................................ 43
4.12 Compliance with Laws............................................ 43
4.13 Patriot Act..................................................... 43
SECTION 5. FINANCIAL COVENANTS............................................. 44
SECTION 6. AFFIRMATIVE COVENANTS........................................... 44
6.01 Financial Statements; Ratings Change and Other Information...... 44
6.02 Preservation of Existence....................................... 45
6.03 Payment of Obligations.......................................... 45
6.04 Maintenance of Properties; Insurance............................ 46
6.05 Books and Records; Inspection Rights............................ 46
6.06 Compliance with Laws............................................ 46
6.07 Maintenance of Ratings.......................................... 46
SECTION 7. NEGATIVE COVENANTS.............................................. 47
7.01 Subsidiary Debt................................................. 47
7.02 Secured Debt.................................................... 47
7.03 Restricted Payments............................................. 47
7.04 Restrictions on Subsidiary Distributions; Negative Pledges...... 48
7.05 Mergers and Acquisitions; Fundamental Changes................... 49
7.06 Transactions with Affiliates.................................... 49
SECTION 8. EVENTS OF DEFAULT............................................... 50
SECTION 9. THE ADMINISTRATIVE AGENT........................................ 53
9.01 Authorization and Action........................................ 53
9.02 Administrative Agent's Reliance, Etc............................ 53
9.03 JPMorgan and Affiliates......................................... 54
9.04 Lender Credit Decision.......................................... 54
9.05 Indemnification................................................. 54
9.06 Successor Administrative Agent.................................. 54
SECTION 10. MISCELLANEOUS................................................... 55
10.01 No Waiver; Remedies............................................. 55
10.02 Notices, Etc.................................................... 55
10.03 Amendments, Etc................................................. 57
10.04 Costs and Expenses; Indemnity................................... 58
10.05 Binding Effect.................................................. 60
10.06 Assignments and Participations.................................. 60
10.07 Governing Law................................................... 64
10.08 Execution in Counterparts....................................... 64
10.09 Successors and Assigns.......................................... 64
10.10 Captions........................................................ 64
10.11 Confidentiality................................................. 64
10.12 Jurisdiction, Etc............................................... 65
10.13 Waiver of Jury Trial............................................ 65
10.14 USA Patriot Act................................................. 65
10.15 Release of Guarantors........................................... 66
10.16 No Fiduciary Duty............................................... 66
10.17 Right of Set-off................................................ 67
ANNEXES
Annex A - Applicable Margin
SCHEDULES
Schedule 1.01 - Permitted Existing Debt
Schedule 2.01 - Initial Lenders and Commitments
Schedule 4.05 - Supplemental Information
Schedule 7.02 - Existing Liens
EXHIBITS
Exhibit A - Form of Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D-1 - Effective Date Form of Opinion of In-house Counsel to the
Borrower
Exhibit D-2 - Effective Date Form of Opinion of New York Counsel to the
Loan Parties
Exhibit D-3 - Funding Date Form of Opinion of In-house Counsel to the
Borrower
Exhibit D-4 - Funding Date Form of Opinion of New York Counsel to the
Loan Parties
Exhibit E - Form of Guaranty Agreement
Exhibit F - Form of Solvency Certificate
Exhibit G - Form of Compliance Certificate
CREDIT AGREEMENT dated as of March 12, 2009 among:
PFIZER INC., a corporation duly organized and validly existing under
the laws of the State of Delaware (the "Borrower");
The lenders (the "Initial Lenders") listed on the signature pages
hereof; and
JPMORGAN CHASE BANK, N.A. ("JPMorgan"), as agent (in such capacity,
together with its successors in such capacity, the "Administrative Agent") for
the Lenders (as hereinafter defined).
The parties hereby agree as follows:
Section 1. Definitions and Accounting Matters.
1.01 Certain Defined Terms. As used herein, the following terms
shall have the following meanings (all terms defined in this Section 1 or in
other provisions of this Agreement in the singular to have the same meanings
when in the plural and vice versa):
"Accountants" shall have the meaning assigned to that term in
Section 3.02(j).
"Accounting Change" shall have the meaning assigned to that term in
Section 1.02.
"Acquired Business" shall mean Wyeth and its Subsidiaries.
"Acquisition" shall mean the acquisition by the Borrower of the
Acquired Business by the merger of Wagner Acquisition Corp., a direct
wholly-owned Subsidiary of the Borrower, with and into Wyeth pursuant to the
terms of the Merger Agreement.
"Additional Costs" shall have the meaning assigned to that term in
Section 2.14(a).
"Adjusted LIBO Rate" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" shall have the meaning assigned to that term
in the introduction hereto.
"Administrative Agent's Account" shall mean the account of the
Administrative Agent most recently designated by it as such account by notice to
the Lenders and the Borrower.
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" shall mean, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common control
with such Person. For purposes of this definition, the term "control" (including
the terms "controlling", "controlled by" and "under common control with") of a
Person means the possession, direct or indirect, of the power to vote 20% or
more of the Voting Stock of such Person or to direct or cause the direction of
the management and policies of such Person, whether through the ownership of
Voting Stock, by contract or otherwise.
"Agreement" shall mean this Credit Agreement, as amended,
supplemented, extended or otherwise modified from time to time.
"Applicable Duration Fee Rate" shall mean the rate equal to the rate
set forth below opposite the applicable Duration Fee Payment Date and the
aggregate outstanding principal amount of Loans on such Duration Fee Payment
Date:
- --------------------------------------------------------------------------------
Aggregate Outstanding Principal 90 Days 180 Days 270 days
Amount of Loans after the after the after the
Funding Date Funding Date Funding Date
- --------------------------------------------------------------------------------
Greater than or equal to 1.50% 2.00% 3.00%
$12,500,000,000
- --------------------------------------------------------------------------------
Greater than or equal to 1.00% 1.50% 2.00%
$7,500,000,000 but less than
$12,500,000,000
- --------------------------------------------------------------------------------
Less than $7,500,000,000 0.75% 1.25% 1.75%
- --------------------------------------------------------------------------------
"Applicable Lending Office" shall mean, with respect to each Lender,
such Lender's Domestic Lending Office in the case of a Base Rate Loan and such
Lender's Eurodollar Lending Office in the case of a Eurodollar Loan.
"Applicable Margin" shall have the meaning assigned to that term on
Annex A.
"Approved Fund" shall mean any Person (other than a natural person)
that is engaged in making, purchasing, holding or investing in bank loans and
similar extensions of credit in the ordinary course of its business and that is
administered or managed by (i) a Lender, (ii) an Affiliate of a Lender or (iii)
an entity or an Affiliate of an entity that administers or manages a Lender.
"Assignment and Acceptance" shall mean an instrument in
substantially the form of Exhibit C hereto.
"Bankruptcy Code" shall mean the United States Bankruptcy Code of
1978, as amended from time to time.
"Base Rate" shall mean, for any day, a rate per annum equal to the
greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1.00% and (c) the Adjusted LIBO
Rate for a one month Interest Period beginning on such day (or if such day is
not a Business Day, the immediately preceding Business Day) plus 1.00%, provided
that, for the avoidance of doubt, the Adjusted LIBO Rate for any day shall be
based on the rate appearing on the Reuters BBA Libor Rates Page 3750 (or on any
successor or substitute page of such page) at approximately 11:00 a.m. London
time on such day. Any change in the Base Rate due to a change in the Prime Rate,
the Federal Funds Effective Rate or the Adjusted LIBO Rate shall be effective
from and including the effective date of such change in the Prime Rate, the
Federal Funds Effective Rate or the Adjusted LIBO Rate, respectively.
"Base Rate Loan" shall mean a Loan that bears interest as provided
in Section 2.07(a)(i).
"Board" shall mean the Board of Governors of the Federal Reserve
System of the United States of America.
"Board of Directors" shall mean the board of directors of the
Borrower.
"Borrower" shall have the meaning assigned to that term in the
introduction hereto.
"Borrower's Credit Ratings" shall mean (a) an unsecured long term
obligations rating and commercial paper credit rating of the Borrower from
Moody's and (b) a long term issuer credit rating and a short term issuer credit
rating of the Borrower from S&P.
"Borrowing" shall mean the borrowing of simultaneous Loans of the
same Type made by each of the Lenders pursuant to Section 2.02.
"Business Day" shall mean any day (a)on which commercial banks are
not authorized by Law or required to close in New York City, and (b) if such day
relates to any Eurodollar Loan that is also a day on which dealings in U.S.
Dollar deposits are carried out in the London interbank market.
"Capital Lease" shall mean a lease of (or other agreement conveying
the right to use) real and/or personal property which obligations are required
to be classified and accounted for as a capital lease on a balance sheet of such
Person under generally accepted accounting principles (including Statement of
Financial Accounting Standards No. 13 of the Financial Accounting Standards
Board).
"Capital Lease Obligations" shall mean, as to any Person, the
obligations of such Person to pay rent or other amounts under a Capital Lease
and, for purposes of this Agreement, the amount of such obligations shall be the
capitalized amount thereof, determined in accordance with generally accepted
accounting principles (including such Statement No. 13).
"Certain Significant Items" shall mean those items designated as
"Certain Significant Items" in the Financial Report (or successor report) filed
as an exhibit to the Borrower's Annual Reports on Form 10-K or in the
Management's Discussion and Analysis of Financial Condition and Results of
Operations in the Borrower's Quarterly Reports on Form 10-Q, as applicable.
"Change of Control" shall mean (a) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or group
(within the meaning of the Exchange Act and the rules of the SEC thereunder as
in effect on the date hereof), of Equity Interests representing more than 35% of
the aggregate ordinary voting power represented by the issued and outstanding
Equity Interests of the Borrower; or (b) occupation of a majority of the seats
(other than vacant seats) on the Board of Directors by Persons who were neither
(i) nominated by the Board of Directors nor (ii) appointed by directors so
nominated.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Comfort Letter" shall have the meaning assigned to that term in
Section 3.02(j).
"Commitment" shall have the meaning assigned to that term in Section
2.01.
"Commitment Documents" shall mean (i) the Bridge Term Facility
Commitment Letter, dated as of January 25, 2009, as amended from time to time,
among the Borrower and the Joint Lead Arrangers, (ii) the Bridge Term Facility
Additional Arranger Commitment Letter, dated as of February 18, 2009, as amended
from time to time, among the Borrower and the Joint Lead Arrangers and each
Accession Letter (as defined therein) and (iii) the Bridge Term Facility Fee
Letter, dated as of January 25, 2009, as amended from time to time, including
pursuant to the Amendment to Bridge Term Facility Fee Letter, dated as of March
12, 2009, in each case, among the Borrower and the Joint Lead Arrangers.
"Commitment Termination Date" shall mean the earliest of (a) the
consummation of the Acquisition prior to the Funding Date, (b) the Termination
Date (as defined in, and subject to extension pursuant to the terms of, the
Merger Agreement), (c) December 31, 2009, (d) the abandonment of the Acquisition
or the termination of the Merger Agreement and (e) the date on which the
Commitments are cancelled pursuant to Section 8.
"Communications" shall have the meaning assigned to that term in
Section 10.02(b)(i).
"Company Disclosure Letter" shall mean the Parent Disclosure Letter
(as defined in the Merger Agreement) dated January 25, 2009 and delivered by the
Borrower to Wyeth pursuant to the Merger Agreement.
"Company Material Adverse Effect" shall mean an effect, event,
development, change, state of facts, condition, circumstance or occurrence that
is or would be reasonably expected to be materially adverse to the financial
condition, assets, liabilities, business or results of operations of the
Borrower and its Subsidiaries, taken as a whole; provided, however, that a
Company Material Adverse Effect shall not be deemed to include effects, events,
developments, changes, states of facts, conditions, circumstances or occurrences
arising out of, relating to or resulting from: (A) changes generally affecting
the economy, financial or securities markets or political or regulatory
conditions, to the extent such changes do not adversely affect the Borrower and
its Subsidiaries in a disproportionate manner relative to other participants in
the pharmaceutical or biotechnology industry; (B) changes in the pharmaceutical
or biotechnology industry, to the extent such changes do not adversely affect
the Borrower and its Subsidiaries in a disproportionate manner relative to other
participants in such industry; (C) any change in Law or the interpretation
thereof or GAAP or the interpretation thereof, to the extent such changes do not
adversely affect the Borrower and its Subsidiaries in a disproportionate manner
relative to other participants in such industry; (D) acts of war, armed
hostility or terrorism to the extent such changes do not adversely affect the
Borrower and its Subsidiaries in a disproportionate manner relative to other
participants in the pharmaceutical or biotechnology industry; (E) any change
attributable to the negotiation, execution or announcement of the Acquisition,
including any litigation resulting therefrom, and any adverse change in
customer, distributor, employee, supplier, financing source, licensor, licensee,
sub-licensee, stockholder, co-promotion or joint venture partner or similar
relationships; (F) any failure by the Borrower to meet any internal or published
industry analyst projections or forecasts or estimates of revenues or earnings
for any period (it being understood and agreed that the facts and circumstances
giving rise to such failure that are not otherwise excluded from the definition
of Company Material Adverse Effect may be taken into account in determining
whether there has been, a Company Material Adverse Effect); (G) any change in
the price or trading volume of the common stock of the Borrower on the New York
Stock Exchange (it being understood and agreed that the facts and circumstances
giving rise to such change that are not otherwise excluded from the definition
of Company Material Adverse Effect may be taken into account in determining
whether there has been, a Company Material Adverse Effect); and (H) compliance
with the terms of, or the taking of any action required by, the Merger
Agreement.
"Company SEC Documents" shall mean all registration statements,
prospectuses, forms, reports, definitive proxy statements, schedules, statements
and documents required to be filed by the Borrower under the Securities Act or
the Exchange Act, as the case may be, together with all certifications required
pursuant to the Sarbanes-Oxley Act and any other documents filed by the Borrower
or any of its Subsidiaries with the SEC, including exhibits and other
information incorporated therein, as they have been supplemented, modified or
amended since the time of filing.
"Consolidated" shall mean, with respect to any Person, the
consolidation of accounts of such Person and its Subsidiaries in accordance with
GAAP.
"Consolidated Net Income" shall mean, for any period, the
Consolidated net income (or loss) for such period as reflected in the
Consolidated statements of income, stockholders' equity and cash flows of the
Borrower most recently filed with the SEC; provided, however, that the net
income of any other Person in which the Borrower or a Subsidiary has a joint
interest with a third party (which interest does not cause the net income of
such other Person to be Consolidated into the net income of the Borrower) shall
be included only to the extent of the amount of dividends or distributions paid
to the Borrower or a Subsidiary.
"Constituent Documents" shall mean, with respect to any Person, (a)
the articles of incorporation, certificate of incorporation, constitution or
certificate of formation (or the equivalent organizational documents) of such
Person, (b) the by-laws or operating agreement (or the equivalent governing
documents) of such Person and (c) any document setting forth the manner of
election or duties of the directors or managing members of such Person (if any)
and the designation, amount or relative rights, limitations and preferences of
any class or series of such Person's Equity Interests.
"Convert", "Conversion" and "Converted" shall each refer to a
conversion of Loans of one Type into Loans of the other Type pursuant to Section
2.08, 2.09 or 2.15.
"Covered Subsidiaries" shall mean the Material Subsidiaries and the
Guarantors.
"Debt" of any Person shall mean the sum of the following (without
duplication): (a) all obligations of such Person for borrowed money, under
Repurchase Agreements, Disqualified Stock or evidenced by bonds, debentures,
notes or other similar instruments (other than any such obligations to the
extent that (i) the liability of such Person is limited solely to the property
or asset financed by such obligations or (ii) such obligations result from the
requirement to return collateral posted to such Person by a counterparty
pursuant to a Hedging Contract); (b) all obligations of such Person to pay the
deferred purchase price of property, assets or services, except trade accounts
payable arising in the ordinary course of business; (c) all Capital Lease
Obligations of such Person (other than any such obligations to the extent that
the liability of such Person is limited solely to the property or asset financed
by such obligations); (d) all Debt of others secured by a Lien on any property
or asset of such Person, whether or not such Debt is assumed by such Person; (e)
all Debt of others Guaranteed by such Person; and (f) all reimbursement
obligations or other obligations (other than contingent obligations) with
respect to bankers' acceptances or letters of credit or similar instruments
created or issued at the request of such Person.
"Debt Incurrence" shall mean the issuance or the incurrence of any
Debt of the type set forth in clause (a) of the definition of Debt, in each
case, after the date hereof by the Borrower or any of its Subsidiaries as to
which the Borrower or such Subsidiary receives Net Cash Proceeds.
"Default" shall mean any Event of Default or any event that with
notice or lapse of time or both would become an Event of Default.
"Defaulting Lender" shall mean any Lender, as reasonably determined
by the Administrative Agent on or prior to the Funding Date, that has (a) failed
to comply with its obligation to fund any portion of its Loans on the Funding
Date, (b) notified the Borrower, the Administrative Agent or any Lender in
writing that it does not intend to comply with any of its funding obligations
under this Agreement or has made a public statement to the effect that it does
not intend to comply with its funding obligations under this Agreement or
generally under other agreements in which it has committed to extend credit, (c)
failed, within three Business Days or prior to the Funding Date, if earlier,
after written request by the Administrative Agent, to confirm that it will
comply with the terms of this Agreement relating to its obligations to fund
prospective Loans; provided that any such Lender shall cease to be a Defaulting
Lender under this clause (c) upon receipt of such confirmation by the
Administrative Agent, (d) otherwise failed to pay over to the Administrative
Agent or any other Lender any other amount required to be paid by it hereunder
within three Business Days of the date when due or prior to the Funding Date, if
earlier, unless the subject of a good faith dispute, or (e) (i) become or is
insolvent or has a parent company that has become or is insolvent or (ii) become
the subject of a bankruptcy or insolvency proceeding, or has had a receiver,
conservator, trustee, administrator, assignee for the benefit of creditors or
similar Person charged with reorganization or liquidation of its business or
custodian, appointed for it, or has taken any action in furtherance of, or
indicating its consent to, approval of or acquiescence in any such proceeding or
appointment or has a parent company that has become the subject of a bankruptcy
or insolvency proceeding, or has had a receiver, conservator, trustee,
administrator, assignee for the benefit of creditors or similar Person charged
with reorganization or liquidation of its business or custodian appointed for
it, or has taken any action in furtherance of, or indicating its consent to,
approval of or acquiescence in any such proceeding or appointment; provided that
a Lender shall not be a Defaulting Lender solely by virtue of the ownership or
acquisition of an Equity Interest in such Lender or a parent company thereof by
a Governmental Authority or an instrumentality thereof; provided further that a
Lender may cease to be a Defaulting Lender pursuant to Section 2.17(a).
"Designated Equity Issuances" shall mean any issuance or sale of any
Equity Interests (i) pursuant to employee and other benefit plans, stock option
plans, management equity plans, other benefit plans or compensation arrangements
or accommodations for management, directors or employees of the Borrower and its
Subsidiaries existing on the Effective Date or, if after the Effective Date,
established in the ordinary course of business, (ii) by any Subsidiaries of the
Borrower to the Borrower or any other Subsidiary, (iii) constituting
consideration for the Acquisition, (iv) in connection with the exercise of the
Acquired Business' $2 Convertible Preferred Stock, par value $2.50 per share,
outstanding immediately prior to the Effective Time (as defined in the Merger
Agreement), (v) constituting consideration for Designated Investments and (vi)
pursuant to dividend reinvestment plans established for the benefit of the
common stock holders of the Borrower.
"Designated Financings" shall mean the following Debt of the
Borrower or its Subsidiaries: (a) Sale and Lease-Back Transactions the U.S.
Dollar Equivalent of the Net Cash Proceeds of which (when taken together with
all such Sale and Lease-Back Transactions) do not exceed $100,000,000; (b) Debt
under Securitization Facilities (other than Foreign Securitization Facilities)
the U.S. Dollar Equivalent of the Net Cash Proceeds of which in the aggregate do
not exceed (i) $100,000,000 less (ii) the U.S. Dollar Equivalent of the Net Cash
Proceeds of Dispositions constituting Specified Asset Sales under clause (v) of
that definition, and (c) Debt under Foreign Securitization Facilities the U.S.
Dollar Equivalent of the Net Cash Proceeds of which in the aggregate do not
exceed (i) $750,000,000 less (ii) the U.S. Dollar Equivalent of the Net Cash
Proceeds of Dispositions constituting Specified Asset Sales under clause (vi) of
that definition.
"Designated Investment" shall mean a Domestic Designated Investment
or a Foreign Designated Investment.
"Disposition" or "Dispose" shall mean the sale, transfer, license,
lease or other disposition (including any Sale and Lease-Back Transaction) of
any property or assets by any Person (or the granting of any option or other
right to do any of the foregoing), including any sale, assignment, transfer or
other disposal, with or without recourse, of any notes or accounts receivable or
any rights and claims associated therewith; provided that the term "Disposition"
shall not include any loss of or damage to, or any condemnation or other taking
of, any property or assets.
"Disqualified Stock" shall mean with respect to any Person, any
Equity Interest that, by its terms (or by the terms of any security into which
it is convertible or for which it is exchangeable), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is exchangeable for Debt of such Person, or is
redeemable at the option of the holder thereof, in whole or in part, on or prior
to the date that is five years after the Original Maturity Date.
"Domestic Designated Investment" shall mean a Restricted Investment
in a Person organized and existing under the laws of the United States of
America or any public subdivision thereof by the Borrower or any Subsidiary
organized and existing under the laws of the United States of America or any
public subdivision thereof other than the Acquisition.
"Domestic Lending Office" shall mean, with respect to any Initial
Lender, the office of such Lender specified as its "Domestic Lending Office" in
its Administrative Questionnaire or, with respect to any other Lender, the
office of such Lender specified as its "Domestic Lending Office" in its
Administrative Questionnaire, or such other office of such Lender as such Lender
may from time to time notify the Borrower and the Administrative Agent.
"Domestic Subsidiary" shall mean a Subsidiary that is not a Foreign
Subsidiary.
"Duration Fee Payment Date" shall mean each of (i) the date that is
90 days after the Funding Date, (ii) the date that is 180 days after the Funding
Date and (iii) the date that is 270 days after the Funding Date; provided that
if any such date shall not be a Business Day, then such Duration Fee Payment
Date shall be the immediately preceding Business Day.
"EBITDA" shall mean, with respect to any Person, for any period,
Consolidated Net Income for such Person for such period plus (a) the sum of, in
each case to the extent included in the calculation of such Consolidated Net
Income but without duplication,
(i) federal, state, local or foreign income Taxes;
(ii) depreciation or amortization expenses;
(iii) interest expenses (net of interest income);
(iv) fees and expenses paid related to the closing of the
Acquisition;
(v) extraordinary, non-recurring or unusual losses or expenses
(including costs and expenses related to the cost reduction initiative program
announced January 2009, or a substantially similar cost reduction initiative
program created in conjunction with the Acquisition, including termination
costs, exit costs and other implementation costs not to exceed $3,500,000,000 in
the aggregate during the term of this Agreement);
(vi) costs and expenses related to the integration (both before
acquisition and after) of Wyeth including termination costs, costs to exit
redundant facilities, and other organizational integration costs such as
write-offs of redundant IT systems, accelerated depreciation incurred in
connection with anticipated closures or shortened lives due to acquisition and
costs of integrating data; provided that such costs and expenses do not to
exceed $4,000,000,000 in the aggregate during the term of this Agreement;
(vii) non-cash purchase accounting charges attributable to any
acquisition including future write-offs of in process research and development
capitalized as part of such acquisition;
(viii) discontinued operations to the extent segregated in the
Consolidated statements of income, stockholders' equity and cash flows of the
Borrower; and
(ix) non-cash Certain Significant Items not included above in
clauses (i) through (viii) and cash Certain Significant Items not included above
in clauses (i) through (viii) to the extent such cash items do not exceed
$500,000,000 in the aggregate for any such period,
in each case, for such period, and minus (b) without duplication and to the
extent included in determining such Consolidated Net Income, the sum of all
income or gains attributed to such items for such period; provided that (1) if
the Acquisition or a Material Transaction has occurred during such period,
EBITDA shall be determined for such period on a pro forma basis as if such
Material Transaction or the Acquisition has occurred on the first day of such
period and (2) if the cash consideration for the Acquisition is financed with
proceeds of Permitted Repurchase Debt of the type described in clause (b) of the
definition thereof incurred in the period prior to the consummation of the
Acquisition and the Acquisition has occurred within ten days after the end of
such prior period, EBITDA shall be determined for such prior period on a pro
forma basis as if the Acquisition had occurred on the first day of such prior
period.
"Effective Date" shall have the meaning assigned to that term in
Section 3.01.
"Eligible Assignee" shall mean (i) a Lender; (ii) an Affiliate of a
Lender; (iii) a commercial bank organized under the Laws of the United States,
or any State thereof, and having total assets in excess of $10,000,000,000; (iv)
a commercial bank organized under the Laws of any other country that is a member
of the Organization for Economic Cooperation and Development or has concluded
special lending arrangements with the International Monetary Fund associated
with its assets in excess of $10,000,000,000 or its equivalent in the relevant
foreign currency, so long as such bank is acting through a branch or agency
located in the country in which it is organized or another country that is
described in this clause (iv); (v) the central bank of any country that is a
member of the Organization for Economic Cooperation and Development; (vi) a
finance company, insurance company or other financial institution or fund
(whether a corporation, partnership, trust or other entity) that is engaged in
making, purchasing or otherwise investing in commercial loans for its own
account in the ordinary course of its business and having total assets in excess
of $10,000,000,000 or its equivalent in the relevant foreign currency; (vii) any
Approved Fund and (viii) any other Person approved by the Administrative Agent
and, unless an Event of Default shall have occurred and be continuing, the
Borrower, such approval not to be unreasonably withheld or delayed; provided
that none of the Borrower, any Affiliate of the Borrower or an individual shall
qualify as an Eligible Assignee.
"Equity Interests" shall mean shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person, and any
warrants, options or other rights entitling the holder thereof to purchase or
acquire any such equity interest.
"Equity Issuance" shall mean any issuance or sale by the Borrower or
any of its Subsidiaries after the date hereof of (i) any of its Equity Interests
or (ii) any other security or instrument representing an Equity Interest (or the
right to obtain any Equity Interest) in the Borrower or any of its Subsidiaries,
in each case, other than Disqualified Stock.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" shall mean any Person that for purposes of Title
IV of ERISA is a member of the Borrower's controlled group, or under common
control with the Borrower, within the meaning of Section 414 of the Internal
Revenue Code.
"ERISA Event" shall mean (a) the occurrence with respect to a Plan
of a reportable event, within the meaning of Section 4043 of ERISA, unless the
30-day notice requirement with respect thereto has been waived by the Pension
Benefit Guaranty Corporation (or any successor) ("PBGC"); (b) the application
for a minimum funding waiver with respect to a Plan; (c) the provision by the
administrator of any Plan of a notice of intent to terminate such Plan, pursuant
to Section 4041(a)(2) of ERISA (including any such notice with respect to a plan
amendment referred to in Section 4041(e) of ERISA); (d) the cessation of
operations at a facility of the Borrower or any of its ERISA Affiliates in the
circumstances described in Section 4062(e) of ERISA; (e) the withdrawal by the
Borrower or any of its ERISA Affiliates from a Multiple Employer Plan during a
plan year for which it was a substantial employer, as defined in Section
4001(a)(2) of ERISA; (f) the conditions set forth in Section 302(f)(1)(A) and
(B) of ERISA to the creation of a lien upon property or assets or rights to
property or assets of the Borrower or any of its ERISA Affiliates for failure to
make a required payment to a Plan are satisfied; (g) the adoption of an
amendment to a Plan requiring the provision of security to such Plan, pursuant
to Section 307 of ERISA; or (h) the termination of a Plan by the PBGC pursuant
to Section 4042 of ERISA, or the occurrence of any event or condition described
in Section 4042 of ERISA that constitutes grounds for the termination of, or the
appointment of a trustee to administer, a Plan.
"Eurodollar" when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Eurodollar Lending Office" shall mean, with respect to any Lender,
the office of such Lender specified as its "Eurodollar Lending Office" in its
Administrative Questionnaire (or, if no such office is specified, its Domestic
Lending Office), or such other office of such Lender as such Lender may from
time to time notify the Borrower and the Administrative Agent.
"Events of Default" shall have the meaning assigned to that term in
Section 8.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Excluded Taxes" shall mean, with respect to the Administrative
Agent, any Lender or any other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder or under any other Loan
Document, (a) Taxes imposed on (or measured by) its net income by the United
States of America (including any political subdivision thereof) or by any other
jurisdiction (including any political subdivision of any thereof) under the Laws
of which it is organized, in which its principal office is located or in which
it conducts any business (other than solely on account of the execution and
performance of or the receipt of any payment under, this Agreement or any other
Loan Document) or, in the case of any Lender, in which its Applicable Lending
Office is located, (b) any branch profits taxes imposed by the United States of
America or any comparable Tax imposed by any foreign jurisdiction and (c) in the
case of a Foreign Lender (other than an assignee pursuant to a demand by the
Borrower under Section 10.06(a)), any withholding Tax that is attributable to
such Foreign Lender's failure, inability or ineligibility to furnish
documentation described in Section 2.16(e) establishing that such Foreign Lender
is entitled to complete exemption from withholding Tax, except to the extent the
Administrative Agent's or such Lender's failure is due to a change in Law
occurring after the date on which such Foreign Lender becomes a Lender hereunder
and except to the extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a different Applicable Lending Office,
to receive additional amounts from the Borrower with respect to such withholding
Tax pursuant to Section 2.16(a).
"Federal Funds Effective Rate" shall mean, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Final Extended Maturity Date" shall mean the date that is 90 days
after the First Extended Maturity Date, provided that, if such date shall not be
a Business Day, the Final Extended Maturity Date shall be the immediately
preceding Business Day.
"Final Extension Amount" shall mean an amount selected by the
Borrower and set forth in the Final Extension Notice, which amount shall not
exceed the lesser of (i) 10% of the Initial Balance and the (ii) aggregate
outstanding principal amount of the Loans on the Final Extension Date.
"Final Extension Conditions" shall mean each of the following
conditions: (a) the First Extension Date shall have occurred, (b) the Borrower
shall have given written notice signed by a Financial Officer (the "Final
Extension Notice") to the Administrative Agent not later than 11:00 A.M. (New
York City time) three Business Days before the date of the proposed Final
Extension Date, which notice shall include (i) the Final Extension Amount, (ii)
the proposed Final Extension Date and (iii) a representation and warranty by the
Borrower that on the Final Extension Date, and after giving effect thereto, the
statements in clause (d) below are accurate, (c) the Administrative Agent shall
have received from the Borrower for the account of each Lender an extension fee
equal to 2.00% of the Final Extension Amount and (d) on the Final Extension Date
and after giving effect thereto, the following statements shall be true: (x) the
representations and warranties contained in Section 4 are accurate in all
material respects on and as of such date as if made on and as of such date,
except to the extent such representation and warranties expressly relate to an
earlier date, in which case such representations and warranties shall have been
accurate in all material respects as of such earlier date, (y) since December
31, 2008, a Material Adverse Change has not occurred and (z) no Default has
occurred and is continuing or would result from the occurrence of the Final
Extension Date.
"Final Extension Date" shall mean the date, on or before the close
of banking business on the First Extended Maturity Date, on which each of the
Final Extension Conditions shall have been satisfied.
"Financial Officer" shall mean (a) the Senior Vice
President-Controller of the Borrower, (b) the Chief Financial Officer of the
Borrower, (c) the Senior Vice President-Treasurer of the Borrower or (d) any
officer of the Borrower who succeeds to all or substantially all of the
responsibilities of an officer identified in clause (a), (b) or (c) above.
"First Extended Maturity Date" shall mean the date that is 90 days
after the Original Maturity Date, provided that, if such date shall not be a
Business Day, the First Extended Maturity Date shall be the immediately
preceding Business Day.
"First Extension Amount" shall mean an amount selected by the
Borrower and set forth in the First Extension Notice, which amount shall not
exceed the lesser of (i) 20% of the Initial Balance and the (ii) aggregate
outstanding principal amount of the Loans on the First Extension Date.
"First Extension Conditions" shall mean each of the following
conditions: (a) the Funding Date shall have occurred, (b) the Borrower shall
have given written notice signed by a Financial Officer (the "First Extension
Notice") to the Administrative Agent not later than 11:00 A.M. (New York City
time) three Business Days before the date of the proposed First Extension Date,
which notice shall include (i) the First Extension Amount, (ii) the proposed
First Extension Date and (iii) a representation and warranty by the Borrower
that on the First Extension Date, and after giving effect thereto, the
statements in clause (d) below are accurate, (c) the Administrative Agent shall
have received from the Borrower for the account of each Lender an extension fee
equal to 2.00% of the First Extension Amount and (d) on the First Extension Date
and after giving effect thereto, the following statements shall be true: (x) the
representations and warranties contained in Section 4 are accurate in all
material respects on and as of such date as if made on and as of such date,
except to the extent such representation and warranties expressly relate to an
earlier date, in which case such representations and warranties shall have been
accurate in all material respects as of such earlier date, (y) since December
31, 2008, a Material Adverse Change has not occurred and (z) no Default has
occurred and is continuing or would result from the occurrence of the First
Extension Date.
"First Extension Date" shall mean the date, on or before the close
of banking business on the Original Maturity Date, on which each of the First
Extension Conditions shall have been satisfied.
"Foreign Designated Investment" shall mean any Restricted Investment
other than a Domestic Designated Investment and the Acquisition.
"Foreign Lender" shall mean any Lender that is organized under the
laws of a jurisdiction other than the United States of America. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Securitization Facility" shall mean any Securitization
Facility in which the related property or assets are those of a Foreign
Subsidiary.
"Foreign Subsidiary" shall mean any Subsidiary that is not organized
under the laws of the United States of America or any public subdivision
thereof.
"Funding Date" shall have the meaning assigned to that term in
Section 3.02.
"GAAP" shall mean generally accepted accounting principles in the
United States of America.
"Governmental Authority" shall mean the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" of any Person shall mean any obligation of such Person
directly guaranteeing any Debt of any other Person or otherwise providing for
the payment of any Debt of any Person, provided that the term "Guarantee" shall
not include endorsements for collection or deposits in the ordinary course of
business. The term "Guarantee" used as a verb has a correlative meaning.
"Guarantors" shall mean, as of the funding on the Funding Date and
after the Funding Date, Wyeth, and each other Subsidiary that signs the Guaranty
Agreement or that becomes a party to the Guaranty Agreement on or after the
Funding Date.
"Guaranty Agreement" shall mean the guaranty agreement,
substantially in the form of Exhibit E, executed by the Guarantors.
"Hedging Contracts" shall mean all interest rate contracts, foreign
exchange contracts, currency swap or option agreements, forward contracts,
commodity swap, purchase or option agreements, other commodity price hedging
arrangements and all other similar agreements or arrangements designed to alter
the risks of any Person arising from fluctuations in interest rates, currency
values or commodity prices.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
"Indemnitee" shall have the meaning assigned to that term in Section
10.04(c).
"Information" shall mean all information, documentation or materials
(including the financial statements referred to in Section 3.01(b)) delivered by
the Borrower or at the direction of the Borrower to the Joint Lead Arrangers,
the Administrative Agent or the Lenders (or, in each case, their affiliates or
representatives) in connection with this Agreement.
"Initial Balance" shall mean the initial aggregate principal amount
of the Loans made on the Funding Date.
"Initial Lenders" shall have the meaning assigned to that term in
the introduction hereto.
"Interest Period" shall mean the period commencing on the date of
such Borrowing and ending on the numerically corresponding day in the calendar
month that is one, two, three or six months thereafter, as the Borrower may
elect; provided, that (i) if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless, in the case of a Eurodollar Borrowing only, such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day and (ii) any
Interest Period that commences on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day of
the last calendar month of such Interest Period. For purposes hereof, the date
of a Borrowing initially shall be the Funding Date and thereafter shall be the
effective date of the most recent conversion or continuation of such Borrowing.
"Joint Lead Arrangers" shall mean J.P. Morgan Securities Inc., Banc
of America Securities LLC, Barclays Capital, the investment banking division of
Barclays Bank PLC, Citigroup Global Markets Inc. and Goldman Sachs Credit
Partners L.P.
"Law" shall mean any federal, state, local, national or
supranational or foreign law (including common law), statute, ordinance, rule,
regulation, Order, code ruling, decree, arbitration award, agency requirement,
license or permit of any Governmental Authority.
"Lenders" shall mean (i) the Initial Lenders and (ii) each Eligible
Assignee that shall become a party hereto pursuant to Section 10.06(a), (b) or
(c).
"Leverage Ratio" shall mean, with respect to any Person as of the
last day of any fiscal quarter, the ratio of (a) Specified Debt of such Person
and its Subsidiaries outstanding as of such date to (b) EBITDA for such Person
for the last four fiscal quarter period ending on such date.
"LIBO Rate" shall mean, with respect to any Eurodollar Borrowing for
any Interest Period, the rate appearing on Reuters BBA Libor Rates Page 3750 (or
on any successor or substitute page of such page providing rate quotations
comparable to those currently provided on such page of such page, as determined
by the Administrative Agent from time to time for purposes of providing
quotations of interest rates applicable to dollar deposits in the London
interbank market) at approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest Period. In the event that
such rate is not available at such time for any reason, then the "LIBO Rate"
with respect to such Eurodollar Borrowing for such Interest Period shall be the
rate at which dollar deposits of $5,000,000 and for a maturity comparable to
such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"Lien" shall mean, with respect to any property or asset, any
mortgage, lien, pledge, charge, security interest or encumbrance of any kind in
respect of such property or asset.
"Loan" shall have the meaning assigned to that term in Section 2.01.
"Loan Documents" shall mean, collectively, this Agreement, the
Guaranty Agreement, the Notes and the Commitment Documents.
"Loan Party" shall mean each of the Borrower, each Guarantor and
each other Subsidiary that executes and delivers a Loan Document.
"Material Adverse Change" shall mean any material adverse change in
any of (a) the business, condition (financial or otherwise) or results of
operations of the Borrower and its Subsidiaries taken as a whole, (b) the
ability of the Borrower to perform any of its material obligations under this
Agreement or the other Loan Documents, or (c) the rights of or benefits
available to the Lenders or the Administrative Agent under this Agreement or any
other Loan Document.
"Material Adverse Effect" shall mean an effect that results in or
causes, or could reasonably be expected to result in or cause, a Material
Adverse Change.
"Material Subsidiary" shall mean any Subsidiary (a) for which the
Consolidated gross revenues for the four fiscal quarter periods ending on the
last day of the most recently ended fiscal quarter of the Borrower for which
financial statements have been delivered pursuant to clauses (a) or (b), as
applicable, of Section 6.01 (or prior to such delivery, as of December 31, 2008)
exceed 5% of the Consolidated gross revenues of the Borrower for such period, in
each case determined in accordance with GAAP, or (b) for which the aggregate
total assets (after intercompany eliminations) as of the last day of the most
recently ended fiscal quarter of the Borrower for which financial statements
have been delivered pursuant to clauses (a) or (b), as applicable, of Section
6.01 (or prior to such delivery, as of December 31, 2008) exceed 5% of the
Consolidated total assets of the Borrower as of such date, in each case
determined in accordance with GAAP.
"Material Transaction" shall mean (a) any Disposition or series of
related Dispositions by the Borrower or any of its Subsidiaries after the
Effective Date, in each case, involving consideration (including non-cash
consideration) with a fair market value in excess of $100,000,000 or (b) any
Designated Investment after the Effective Date involving consideration
(including non-cash consideration) with a fair market value in excess of
$100,000,000.
"Merger Agreement" shall mean the Agreement and Plan of Merger,
dated as of January 25, 2009, as amended, supplemented or otherwise modified
from time to time (in each case in accordance with the terms of this Agreement),
among Pfizer Inc., Wagner Acquisition Corp. and Wyeth.
"Moody's" shall mean Moody's Investor Services, Inc. and any
successor thereto.
"Multiemployer Plan" shall mean a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, in respect of which the Borrower or any ERISA
Affiliate could have any obligation or liability, contingent or otherwise.
"Multiple Employer Plan" shall mean a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of
the Borrower or any ERISA Affiliate and at least one Person other than the
Borrower and the ERISA Affiliates or (b) was so maintained and in respect of
which the Borrower or any ERISA Affiliate could have liability under Section
4064 or 4069 of ERISA in the event such plan has been or were to be terminated.
"Net Cash Proceeds" shall mean, (a) with respect to any Disposition
by the Borrower or any of its Subsidiaries, the aggregate amount of all cash
proceeds (including any cash proceeds received by way of deferred payment of
principal pursuant to a note or installment receivable, purchase price
adjustment, or otherwise, but only as and when received) received by the
Borrower or such Subsidiary in respect of such Disposition, net of (i) all
attorneys' fees, accountants' fees, brokerage, consultant and other customary
fees and commissions, title and recording tax expenses and other fees and
expenses incurred by the Borrower or such Subsidiary in connection with such
Disposition, (ii) all Taxes (including Taxes arising out of the distribution of
such cash proceeds by a Foreign Subsidiary directly to the Borrower or
indirectly to the Borrower by one or more intermediate Subsidiaries or another
Subsidiary organized and existing under the laws of the United States of America
or any public subdivision thereof (such Taxes, "Specified Taxes")) paid or
reasonably estimated to be payable as a result thereof, (iii) any liabilities or
obligations associated with the property or assets Disposed of in such
Disposition and retained, indemnified or insured by the Borrower or any of its
Subsidiaries after such Disposition, including without limitation pension and
other post-employment benefit liabilities, liabilities related to environmental
matters, and liabilities relating to any indemnification obligations associated
with such Disposition, (iv) all payments made, and all installment payments
required to be made, with respect to any obligation (x) that is secured by any
property or assets subject to such Disposition, in accordance with the terms of
any Lien upon such property or assets, or (y) that must by its terms, or in
order to obtain a necessary consent to such Disposition, or by applicable law,
be repaid out of the proceeds from such Disposition, (v) all distributions and
other payments required to be made to minority interest holders in Subsidiaries
or joint ventures as a result of such Disposition, or to any other Person (other
than the Borrower or any of its Subsidiaries) owning a beneficial interest in
the property or assets Disposed of in such Disposition, and (vi) the amount of
any purchase price or similar adjustment (x) claimed by any Person to be owed by
the Borrower or any of its Subsidiaries, until such time as such claim shall
have been settled or otherwise finally resolved or (y) paid or payable by the
Borrower or any of its Subsidiaries, in either case in respect of such
Disposition, (b) with respect to any Property Loss Event, the aggregate amount
of all cash proceeds received by the Borrower and its Subsidiaries, net of
amounts applied or committed to be applied, to the restoration or repair of
damaged property or assets or to the purchase price of replacement property or
assets or other similar property or assets useful in the business of the
Borrower within 180 days after the receipt of such proceeds and net of Taxes,
including Specified Taxes, and (c) with respect to any Equity Issuance or Debt
Incurrence, the aggregate amount of all cash proceeds received by the Borrower
and its Subsidiaries in respect of such Equity Issuance or Debt Incurrence, net
of fees, expenses, costs, underwriting discounts and commissions incurred by the
Borrower and its Subsidiaries in connection therewith and net of taxes paid or
estimated to be payable as a result thereof.
"Note" shall mean a promissory note of the Borrower payable to the
order of any Lender, in substantially the form of Exhibit A hereto, evidencing
the aggregate indebtedness of the Borrower to such Lender.
"Notice of Borrowing" shall have the meaning assigned to that term
in Section 2.02(a).
"Obligations" means the Loans and all other amounts, obligations,
covenants and duties owing by the Borrower or any other Loan Party to the
Administrative Agent, any Lender, any Affiliate of any of them or any
Indemnitee, of every type and description (whether by reason of an extension of
credit, payment of any draft drawn or other payment thereunder, loan, guaranty,
indemnification or otherwise), present or future, arising under this Agreement,
any other Loan Document, whether direct or indirect (including those acquired by
assignment), absolute or contingent, due or to become due, now existing or
hereafter arising and however acquired and whether or not evidenced by any note,
guaranty or other instrument or for the payment of money, including all fees,
interest, charges, expenses, attorneys' fees and disbursements and other sums
chargeable to the Borrower or any other Loan Party under this Agreement and any
other Loan Document.
"Order" shall mean any order, judgment or injunction.
"Original Maturity Date" shall mean the date that is 364 days after
the Funding Date, provided that, if such date shall not be a Business Day, the
Original Maturity Date shall be the immediately preceding Business Day.
"Other Taxes" shall mean any and all present or future stamp or
documentary Taxes or any other excise or property Taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, the Loan Documents.
"Patriot Act" shall mean the USA Patriot Act of 2001 (31 U.S.C. 5318
et seq.).
"Permanent Financing" shall mean the issuance or incurrence by any
Loan Party of loans, debt facilities (including any repurchase facility), debt
or equity securities, common or preferred equity contributions or other Equity
Interests, for proceeds of up to $22,500,000,000 for the purpose of reducing the
Commitments, repaying the Obligations and/or financing a portion of the
Acquisition that would otherwise be funded by the Loans.
"Permissible Debt" shall mean Debt for borrowed money or Guarantees
thereof (without duplication) (i) of any Subsidiary that is not a Guarantor in
an aggregate principal amount for all such Subsidiaries for which the U.S.
Dollar Equivalent does not exceed $2,500,000,000, and (ii) of any Foreign
Subsidiary in an aggregate principal amount for all Foreign Subsidiaries for
which the U.S. Dollar Equivalent does not exceed $2,000,000,000.
"Permitted Commercial Paper" shall mean commercial paper, or
refinancings thereof, issued by the Company in the ordinary course of business
for working capital purposes.
"Permitted Debt Issuance" shall mean a Debt Incurrence resulting
from (i) Designated Financings, (ii) borrowings under the Revolving Credit
Facility (to the extent not exceeding $5,000,000,000) or this Agreement, (iii)
Permitted Existing Debt and Permitted Refinancings of Permitted Existing Debt,
(iv) Permitted Commercial Paper, (v) Permissible Debt, (vi) Debt of the Borrower
to any Subsidiary or of any Subsidiary to the Borrower or any other Subsidiary
or (vii) Permitted Repurchase Debt.
"Permitted Existing Debt" shall mean the Debt of the Borrower and
its Subsidiaries set forth on Schedule 1.01 and any Debt of Wyeth or its
Subsidiaries existing on the Funding Date and not incurred in contemplation of
the Acquisition.
"Permitted Liens" shall mean: (a) Liens imposed by Law for Taxes
that are not yet due or are being contested in compliance with Section 6.03; (b)
carriers', warehousemen's, mechanics', materialmen's, repairmen's and other like
Liens imposed by Law, arising in the ordinary course of business and securing
obligations that are not overdue by more than 30 days (or if more than 30 days
overdue, are unfiled and no other action has been taken to enforce such Liens)
or are being contested in compliance with Section 6.03; (c) pledges and deposits
made in the ordinary course of business (i) in compliance with workers'
compensation, unemployment insurance and other social security laws or
regulations and (ii) securing liability for reimbursement or indemnification
obligations of (including obligations in respect of letters of credit or bank
guarantees for the benefit of) insurance carriers providing property, casualty
or liability insurance to the Borrower or any Subsidiary; (d) deposits to secure
the performance of bids, trade contracts, leases, statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like nature
(including those to secure health, safety and environmental obligations), in
each case in the ordinary course of business; (e) judgment Liens in respect of
judgments that do not constitute an Event of Default under clause (f) of Section
8; (f) easements, zoning restrictions, rights-of-way and similar encumbrances on
real property imposed by Law or arising in the ordinary course of business that
do not secure any monetary obligations and do not materially detract from the
value of the affected property or interfere with the ordinary conduct of
business of the Borrower or any Material Subsidiary; (g) Liens (i) of a
collection bank on the items in the course of collection, (ii) attaching to
trading accounts or brokerage accounts incurred in the ordinary course of
business, (iii) in favor of a banking or other financial institution arising as
a matter of Law encumbering deposits or other funds maintained with a financial
institution (including the right of set off) and which are customary in the
banking industry, (iv) attaching to other prepayments, deposits or earnest money
in the ordinary course of business and (v) attaching to cash collateral posted
pursuant to a Hedging Contract entered into in the ordinary course of business;
(h) Liens on insurance policies and the proceeds thereof securing the financing
of the premiums with respect thereto; and (i) Liens on specific items of
inventory or other goods and the proceeds thereof securing such Person's
obligations in respect of documentary letters of credit or banker's acceptances
issued or created for the account of such Person to facilitate the purchase,
shipment or storage of such inventory or goods.
"Permitted Refinancing" shall mean any extension, refinancing,
renewal, replacement or defeasement of any Debt within 6 months of the scheduled
final maturity date of such Debt that (a) does not exceed the principal amount
of such Debt (plus all accrued interest thereon and the amount of all Taxes,
fees, costs, expenses and premiums incurred in connection therewith), (b) is on
the whole on terms no less favorable in all material respects to the Borrower or
any Subsidiary than such Debt or is on terms that are reasonable based on
current market conditions for such Debt, and (c) has a weighted average maturity
and final maturity (measured as of the date of such extension, refinancing,
renewal replacement or defeasance) no shorter than that of such Debt.
"Permitted Repurchase Debt" shall mean Debt incurred under
Repurchase Agreements (a) with a term of not more than 270 days for securities,
money-market funds, loans or instruments that are classified as long or short
term investments on the Consolidated balance sheet of the Borrower and its
Subsidiaries entered into (i) on reasonable terms and not for speculative
purposes and for aggregate amounts equal to not more than the value of such
securities, money-market funds, loans or instruments as determined by the
Borrower pursuant to its financial reporting policies, (ii) for general
corporate purposes and (iii) with any commercial bank, other financial
institution or investment grade corporation which has a combined capital and
surplus and undivided profits the U.S. Dollar Equivalent of which is not less
than $500,000,000; provided that the aggregate outstanding amount of such Debt
shall not exceed $5,000,000,000 at any one time; provided further, that after
the Funding Date, not more than $1,000,000,000 of such Debt shall be incurred by
the Borrower and its Domestic Subsidiaries and (b) with a term beginning no
sooner than 10 days prior to the Funding Date and expiring not more than 30 days
after the Funding Date for securities, money-market funds, loans or instruments
that are classified as long or short term investments on the Consolidated
balance sheet of the Borrower and its Subsidiaries entered into (i) on
reasonable terms and not for speculative purposes and for aggregate amounts
equal to not more than the value of such securities, money-market funds, loans
or instruments as determined by the Borrower pursuant to its financial reporting
policies, (ii) to directly or indirectly finance the cash consideration for the
Acquisition and (iii) with any commercial bank, other financial institution or
investment grade corporation which has a combined capital and surplus and
undivided profits the U.S. Dollar Equivalent of which is not less than
$500,000,000; provided that the aggregate outstanding amount of such Debt
pursuant to this clause (b) shall not exceed $14,500,000,000 at any one time.
"Person" shall mean an individual, a corporation, a company, a
voluntary association, a partnership, a trust, a joint venture, a limited
liability company, an unincorporated organization, or a government or any
agency, instrumentality or political subdivision thereof.
"Plan" shall mean a Single Employer Plan, a Multiple Employer Plan
or a Multiemployer Plan.
"Platform" shall have the meaning assigned to that term in Section
10.02(b)(ii).
"Prime Rate" shall mean the rate of interest per annum publicly
announced from time to time by JPMorgan Chase Bank as its prime rate in effect
at its office located at 270 Park Avenue, New York, New York; each change in the
Prime Rate shall be effective from and including the date such change is
publicly announced as being effective.
"Pro Forma Financials" shall have the meaning assigned to that term
in Section 3.01(b).
"Property Loss Event" shall mean (a) any loss of or damage to
property or assets of the Borrower or any of its Subsidiaries that results in
the receipt by such Person of proceeds of insurance (other than business
interruption insurance) the U.S. Dollar Equivalent of which exceeds $100,000,000
(individually or in the aggregate) or (b) any taking of property or assets of
the Borrower or any of its Subsidiaries that results in the receipt by such
Person of a compensation payment in respect thereof the U.S. Dollar Equivalent
of which exceeds $100,000,000 (individually or in the aggregate).
"Purchase Money Debt" shall mean Debt (including industrial revenue
bonds) incurred to finance the acquisition of property or assets and secured by
a Lien on such property or assets.
"Quarterly Date" shall mean the last day of each March, June,
September and December in each year, the first of which shall be the first such
day after the date hereof; provided that, if any such day is not a Business Day,
then such Quarterly Date shall be the next preceding Business Day.
"Register" shall have the meaning assigned to that term in Section
10.06(e).
"Regulation S-X" shall mean Regulation S-X of the Securities Act.
"Regulations A, D, U and X" shall mean, respectively, Regulations A,
D, U and X of the Board (or any successor), as the same may be amended or
supplemented from time to time.
"Regulatory Change" shall mean any change after the date of this
Agreement in United States Federal, state or foreign Law or regulations
(including, without limitation, Regulation D) or the adoption or making after
such date of any interpretations, directives or requests applying to a class of
banks, including the Administrative Agent or any Lender, of or under any United
States Federal, state or foreign Law or regulations (whether or not having the
force of Law) by any court or governmental or monetary authority charged with
the interpretation or administration thereof.
"Repurchase Agreement" shall mean an agreement by the Borrower or
any Subsidiary to sell securities to another Person coupled with an agreement to
purchase such securities from such Person at a specified price on a later date.
"Required Lenders" shall mean, at any time, Lenders having at least
a 50.1% interest of the Commitments or, if no Commitments are then outstanding,
Lenders owed at least a 50.1% interest of the then aggregate unpaid principal
amount of all outstanding Loans.
"Requisite Amount" shall have the meaning assigned to that term in
Section 8(e).
"Reserve Requirement" shall mean, for any Interest Period for all
Eurodollar Loans, the average maximum rate at which reserves (including any
marginal, supplemental or emergency reserves) are required to be maintained
during such Interest Period under Regulation D by member banks of the Federal
Reserve System in New York City with deposits exceeding one billion U.S. Dollars
against "Eurocurrency Liabilities" (as such term is used in Regulation D).
Without limiting the effect of the foregoing, the Reserve Requirement shall
reflect any other reserves required to be maintained by such member banks by
reason of any Regulatory Change against (a) any category of liabilities that
includes deposits by reference to which the LIBO Rate is to be determined or (b)
any category of extensions of credit or other assets that includes Eurodollar
Loans.
"Restricted Investment" shall have the meaning assigned to that term
in Section 7.05(b).
"Restricted Payment" shall mean any dividend or other distribution
(whether in cash, securities or other property) with respect to any Equity
Interests in any Person, or any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, acquisition, cancellation or termination of
any such Equity Interests in such Person or any option, warrant or other right
to acquire any such Equity Interests in such Person.
"Revolving Credit Facility" shall mean the 364 Day Credit Agreement,
dated as of March 9, 2009, among the Borrower, Citibank, N.A., as administrative
agent, and the lenders party thereto as amended, supplemented, modified or
refinanced from time to time.
"S&P" shall mean Standard & Poor's Ratings Group, a division of The
McGraw Hill Corporation and any successor thereto.
"Sale and Lease-Back Transaction" shall mean any arrangement
providing for the leasing by the Borrower or any of its Subsidiaries of any real
or tangible personal property, which property has been or is to be sold or
transferred by the Borrower or such Subsidiary to a third Person in
contemplation of such leasing.
"Sarbanes-Oxley Act" shall mean the Sarbanes-Oxley Act of 2002.
"SEC" shall mean the United States Securities and Exchange
Commission.
"Secured Debt" shall mean any Debt under any Repurchase Agreement
and any Debt the obligations with respect to which are secured by a Lien.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Securitization Facility" shall mean, with respect to any Person, a
facility or other arrangement or program providing for the sale, transfer or
conveyance to a Securitization SPV of property or assets in exchange for the
advance of funds to such Person and/or one or more of its Subsidiaries.
"Securitization SPV" shall mean, with respect to any Person, a
trust, bankruptcy remote entity or other special purpose entity which is a
Subsidiary of such Person (or, if not a Subsidiary, the common equity of which
is wholly owned, directly or indirectly, by such Person) and which is formed for
the purpose of, and engages in no material business other than, acting as an
issuer or a depositor under a Securitization Facility or as an intermediate
transferee and transferor under a Securitization Facility (and, in connection
therewith, in either case, owning property or assets and pledging or
transferring any interests therein).
"Series A Preferred Stock" shall have the meaning assigned to that
term in Section 7.03.
"Single Employer Plan" shall mean a single employer plan, as defined
in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower or any ERISA Affiliate and no Person other than the Borrower and the
ERISA Affiliates or (b) was so maintained and in respect of which the Borrower
or any ERISA Affiliate could have liability under Section 4069 of ERISA in the
event such plan has been or were to be terminated.
"Solvent" shall mean, with respect to any Person as of any date of
determination, that, as of such date, (a) the value of the assets of such Person
(both at fair value and present fair saleable value) is greater than the total
amount of liabilities (including contingent and unliquidated liabilities) of
such Person, (b) such Person is able to pay all liabilities of such Person as
such liabilities mature and (c) such Person does not have unreasonably small
capital. In computing the amount of contingent or unliquidated liabilities at
any time, such liabilities shall be computed at the amount that, in light of all
the facts and circumstances existing at such time, represents the amount that
can reasonably be expected to become an actual or matured liability.
"Specified Asset Sale" shall mean any Disposition or series of
related Dispositions by the Borrower or any of its Subsidiaries after the
Effective Date not in the ordinary course of business; provided that "Specified
Asset Sale" shall not include (i) a Disposition or series of related permanent
Dispositions the U.S. Dollar Equivalent of the Net Cash Proceeds of which do not
exceed $100,000,000 in the aggregate for such Disposition or series of related
Dispositions, (ii) Dispositions in connection with Sale and Lease-Back
Transactions that are Designated Financings; (iii) Dispositions by Foreign
Subsidiaries to the extent the U.S. Dollar Equivalent of the Net Cash Proceeds
of all such Dispositions does not exceed $500,000,000 in the aggregate, (iv)
Dispositions by the Borrower to a Subsidiary or a Subsidiary to the Borrower or
another Subsidiary, (v) Dispositions (other than those described in clause (iv)
above or clause (vi) below) in connection with Securitization Facilities to the
extent that the U.S. Dollar Equivalent of the Net Cash Proceeds of which in the
aggregate do not exceed (A) $100,000,000 less (B) the aggregate amount of Debt
constituting Designated Financings under clause (b) of the definition thereof,
(vi) Dispositions (other than those described in clause (iv) or clause (v)
above) in connection with Foreign Securitization Facilities to the extent that
the U.S. Dollar Equivalent of the Net Cash Proceeds of which in the aggregate do
not exceed (A) $750,000,000 less (B) the aggregate amount of Debt constituting
Designated Financings under clause (c) of the definition thereof, (vii)
Dispositions of securities, money-market funds, loans and instruments that are
classified as long or short term investments on the Consolidated balance sheet
of the Borrower and its Subsidiaries for the purpose of funding all or a portion
of the cash consideration for the Acquisition and (viii) Dispositions under
transactions for the incurrence of Permitted Repurchase Debt.
"Specified Debt" shall mean, with respect to the Borrower long term
debt and debt maturing within one year on such day (in each case, of the type
reflected in the Consolidated balance sheet of the Borrower on any date of
determination).
"Specified Taxes" shall have the meaning assigned thereto in the
clause (a)(ii) of the definition of Net Cash Proceeds.
"Statutory Reserve Rate" shall mean a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentage
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board to which the Administrative Agent is
subject with respect to the Adjusted LIBO Rate, for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D). Such
reserve percentage shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D or any comparable regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
"Subsidiary" shall mean, with respect to any Person, any
corporation, partnership, limited liability company or other business entity of
which at least a majority of the outstanding shares of Voting Stock is at the
time directly or indirectly owned or controlled by such Person or one or more of
the Subsidiaries of such Person. Unless the context shall otherwise require,
"Subsidiary" refers to a Subsidiary of the Borrower.
"Taxes" shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges , liabilities or withholdings (including
interest, fines, penalties or additions to tax) imposed by any Governmental
Authority.
"Transaction Documents" shall mean this Agreement, the other Loan
Documents and the Merger Agreement.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Base
Rate.
"United States" and "United States Person" shall have the meaning
assigned to that term in Section 7701 of the Code.
"Unused Commitment Fee Rate" shall mean, as of any date of
determination, a per annum rate equal to the rate set forth below opposite the
applicable Borrower's Credit Rating in effect at such time:
- --------------------------------------------------------------------------------
Level I Level II Level III Level IV Level V
- --------------------------------------------------------------------------------
Borrower's Credit AA+/Aa1 or AA/Aa2 AA-/Aa3 A+/A1 A/A2 or
Ratings higher lower
- --------------------------------------------------------------------------------
Unused 0.25% 0.30% 0.375% 0.50% 0.50%
Commitment Fee
- --------------------------------------------------------------------------------
For purposes of determining the Unused Commitment Fee Rate, the applicable
Borrower's Credit Ratings from one of S&P and Moody's will be required to
qualify for the applicable level set forth above; provided that if the higher
applicable Borrower's Credit Rating is more than one Level higher than the other
Borrower's Credit Rating, the Unused Commitment Fee Rate shall be the Level
below the Level corresponding to such higher Borrower's Credit Rating.
"U.S. Dollar Equivalent" shall mean, (a) with respect to any amount
denominated in U.S. Dollars on any date, such amount, (b) with respect to any
amount denominated in any other currency on any date, the amount of U.S. Dollars
that would be required to purchase such amount of such currency at or about
11:00 A.M., New York City time, on such date, for delivery two Business Days
later, as determined by the Administrative Agent on the basis of the spot
selling rate for the offering of such currency for U.S. Dollars in the New York
foreign exchange market, determinations thereof made in good faith by the
Administrative Agent to be conclusive and binding on the parties in the absence
of manifest error.
"U.S. Dollars" and "$" shall mean lawful money of the United States
of America.
"Voting Stock" shall mean Equity Interests of any Person having
ordinary power to vote in the election of members of the board of directors,
managers, trustees or other controlling Persons, of such Person (irrespective of
whether, at the time, Equity Interests of any other class or classes of such
entity shall have or might have voting power by reason of the happening of a
contingency).
"Wyeth" shall mean Wyeth, a Delaware corporation.
"Wyeth Disclosure Letter" shall mean the Company Disclosure Letter
(as defined in the Merger Agreement) dated January 25, 2009 and delivered by
Wyeth to the Borrower pursuant to the Merger Agreement.
"Wyeth Material Adverse Effect" shall mean an effect, event,
development, change, state of facts, condition, circumstance or occurrence that
is or would be reasonably expected to be materially adverse to the financial
condition, assets, liabilities, business or results of operations of Wyeth and
its Subsidiaries, taken as a whole; provided, however, that a Wyeth Material
Adverse Effect shall not be deemed to include effects, events, developments,
changes, states of facts, conditions, circumstances or occurrences arising out
of, relating to or resulting from: (A) changes generally affecting the economy,
financial or securities markets or political or regulatory conditions, to the
extent such changes do not adversely affect Wyeth and its Subsidiaries in a
disproportionate manner relative to other participants in the pharmaceutical or
biotechnology industry; (B) changes in the pharmaceutical or biotechnology
industry, to the extent such changes do not adversely affect Wyeth and its
Subsidiaries in a disproportionate manner relative to other participants in such
industry; (C) any change in Law or the interpretation thereof or GAAP or the
interpretation thereof, to the extent such changes do not adversely affect Wyeth
and its Subsidiaries in a disproportionate manner relative to other participants
in such industry; (D) acts of war, armed hostility or terrorism to the extent
such changes do not adversely affect Wyeth and its Subsidiaries in a
disproportionate manner relative to other participants in the pharmaceutical or
biotechnology industry; (E) any change attributable to the negotiation,
execution or announcement of the Acquisition, including any litigation resulting
therefrom, and any adverse change in customer, distributor, employee, supplier,
financing source, licensor, licensee, sub-licensee, stockholder, co-promotion or
joint venture partner or similar relationships, including as a result of the
identity of the Borrower; (F) any failure by Wyeth to meet any internal or
published industry analyst projections or forecasts or estimates of revenues or
earnings for any period (it being understood and agreed that the facts and
circumstances giving rise to such failure that are not otherwise excluded from
the definition of Wyeth Material Adverse Effect may be taken into account in
determining whether there has been, a Wyeth Material Adverse Effect); (G) any
change in the price or trading volume of the common stock of Wyeth on the New
York Stock Exchange (it being understood and agreed that the facts and
circumstances giving rise to such change that are not otherwise excluded from
the definition of Wyeth Material Adverse Effect may be taken into account in
determining whether there has been, a Wyeth Material Adverse Effect); and (H)
compliance with the terms of, or the taking of any action required by, the
Merger Agreement.
"Wyeth SEC Documents" shall mean all registration statements,
prospectuses, forms, reports, definitive proxy statements, schedules, statements
and documents required to be filed by Wyeth under the Securities Act or the
Exchange Act, as the case may be, together with all certifications required
pursuant to the Sarbanes-Oxley Act and any other documents filed by Wyeth or any
of its Subsidiaries with the SEC, including exhibits and other information
incorporated therein as they have been supplemented, modified or amended since
the time of filing.
1.02 Accounting Terms and Determinations. Unless otherwise specified
herein, all accounting terms used herein shall be interpreted, all
determinations with respect to accounting matters hereunder shall be made, and
all financial statements and certificates and reports as to financial matters
required to be furnished to the Administrative Agent or any Lender hereunder
shall be prepared, in accordance with GAAP as in effect from time to time,
applied on a basis consistent with the audited Consolidated financial statements
of the Borrower for the Borrower's fiscal year ended December 31, 2008 (except
for changes concurred with by the Borrower's independent public accountants
("Accounting Change")); provided, however, that (a) to the extent any Accounting
Change would affect the calculation of the Leverage Ratio pursuant of Section 5
of this Agreement, then the Leverage Ratio shall be calculated without giving
effect to the Accounting Change and (b) following any Accounting Change, the
Borrower shall provide the Administrative Agent a reconciliation with respect to
the calculation of the Leverage Ratio before and after giving effect to such
Accounting Change at the time the Borrower is required by Section 6.01(c)(ii) to
deliver the calculations demonstrating compliance with Section 5. Following any
Accounting Change, upon request by the Borrower or Administrative Agent, the
Borrower, Administrative Agent and Required Lenders agree to negotiate in good
faith to amend Section 5 and related definitions to preserve the original intent
thereof in light of the Accounting Change.
1.03 Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding"
1.04 Terms Generally. The definitions set forth or referred to in
Section 1.01 shall apply equally to both the singular and plural forms of the
terms defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words "include,"
"includes" and "including" shall be deemed to be followed by the phrase "without
limitation." All references herein to Articles, Sections, Exhibits and Schedules
shall be deemed references to Articles and Sections of, and Exhibits and
Schedules to, this Agreement unless the context shall otherwise require.
Section 2. Amounts and Terms of the Loans.
2.01 Commitments. Each Lender severally agrees, on the terms and
conditions hereinafter set forth, to make a loan (each a "Loan") in U.S. Dollars
to the Borrower on the Funding Date, which shall occur during the period from
the Effective Date until the Commitment Termination Date, in an aggregate amount
not to exceed at any time outstanding (a) the amount set forth opposite such
Lender's name on Schedule 2.01 hereto or (b) if such Lender has entered into any
Assignment and Acceptance, the amount set forth for such Lender in the Register
maintained by the Administrative Agent pursuant to Section 10.06(e), in each
case as such amount may be reduced pursuant to Section 2.04(a) or (b) or Section
2.11 (such Lender's "Commitment"). Amounts of Loans prepaid may not be
reborrowed. Any unused Commitment shall terminate on the earlier of (i) the
funding of the Loans on the Funding Date and (ii) close of banking business on
the Commitment Termination Date.
2.02 Making the Loans. (a) The Borrowing shall be made on notice,
given not later than (i) in the case of a Base Rate Loan, 11:00 A.M. (New York
City time) one Business Day before the date of the proposed Borrowing (which
shall be a Business Day) and (ii) in the case of a Eurodollar Loan, 11:00 A.M.
(New York City time) three Business Days before the date of the proposed
Borrowing, in each case by the Borrower to the Administrative Agent, which shall
give to each Lender prompt notice thereof on the same Business Day by facsimile
transmission or electronic messaging system. Such notice of the Borrowing (the
"Notice of Borrowing") shall be in writing in substantially the form of Exhibit
B hereto, specifying therein (A) the requested date of the proposed Borrowing
(which shall be a Business Day), (B) the Type of Loans comprising the Borrowing,
(C) the aggregate amount of the Borrowing, (D) in the case of a Borrowing
consisting of Eurodollar Loans, the initial Interest Period for each such Loan,
and (E) the location and number of the Borrower's account to which funds are to
be disbursed. Each Lender shall, before 12:00 Noon (New York City time) on the
date of the Borrowing, make available to the Administrative Agent at the
Administrative Agent's Account, in same day funds, such Lender's ratable portion
of the Borrowing. After the Administrative Agent's receipt of such funds and
upon fulfillment of the applicable conditions set forth in Section 3, the
Administrative Agent will make such funds available to the Borrower by promptly
crediting the amounts so received, in like funds, to an account of the Borrower
or maintained with the Administrative Agent in New York City and designated by
the Borrower in the Notice of Borrowing.
(b) Anything herein to the contrary notwithstanding, the Borrower
may not select Eurodollar Loans for the Borrowing if the obligation of the
Lenders to make Eurodollar Loans shall then be suspended pursuant to Section
2.08 or 2.15.
(c) Once received by the Administrative Agent the Notice of
Borrowing shall be irrevocable and binding on the Borrower.
(d) Unless the Administrative Agent shall have received notice from
a Lender prior to the date of such Borrowing that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of the
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing in
accordance with Section 2.02(a) and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have so
made such ratable portion available to the Administrative Agent, such Lender and
the Borrower severally agree (but without duplication) to repay to the
Administrative Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made available to
the Borrower until the date such amount is repaid to the Administrative Agent,
at the Federal Funds Effective Rate. If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Lender's Loan as part of such Borrowing for purposes of this
Agreement. If the Borrower shall repay to the Administrative Agent such
corresponding amount, such prepayment shall not limit any claim the relevant
Borrower may have against the Lender that failed to make such amount available.
(e) The failure of any Lender to make the Loan to be made by it as
part of the Borrowing shall not relieve any other Lender of its obligation, if
any, hereunder to make its Loan on the Funding Date, but no Lender shall be
responsible for the failure of any other Lender to make the Loan to be made by
such other Lender on the Funding Date. The Administrative Agent shall have no
obligation to make a Lender's ratable portion of the Borrowing available to the
Borrower if, prior to the Borrowing, such Lender had not made such portion of
the Borrowing available to the Administrative Agent.
2.03 Use of Proceeds. The proceeds of the Loans shall be used by the
Borrower solely to finance (a) the Acquisition, and (b) the payment of fees and
expenses in connection with the Acquisition.
2.04 Changes of Commitments. (a) Termination on the Commitment
Termination Date. Unless theretofore reduced to such amount pursuant to Section
2.04(b) or 2.11, the Commitments of the Lenders shall automatically be reduced
to zero on the earlier of (i) the funding of the Loans on the Funding Date and
(ii) the close of banking business on the Commitment Termination Date.
(b) Ratable Termination or Reduction. The Borrower shall have the
right, at any time or from time to time, upon at least three Business Days'
notice to the Administrative Agent, to terminate in whole or reduce ratably in
part the unused portions of the respective Commitments of the Lenders, provided
that each partial reduction shall be in the minimum amount of $25,000,000 or an
integral multiple of $1,000,000 in excess thereof. The aggregate amount of the
Commitments, once reduced as provided in this Section 2.04(b) or in Section
2.11, may not be reinstated.
2.05 Fees. (a) Unused Commitment Fee. The Borrower agrees to pay to
the Administrative Agent for the account of each Lender an unused commitment fee
on the daily average amount of such Lender's Commitment, for each day during the
period from the Effective Date until the earlier of the Funding Date and the
Commitment Termination Date at a rate per annum equal to the Unused Commitment
Fee Rate. The accrued unused commitment fee shall be payable in arrears on each
Quarterly Date and, without duplication, on the earlier of the Funding Date and
the Commitment Termination Date.
(b) Duration Fee. The Borrower agrees to pay to the Administrative
Agent, for the account of each Lender, a duration fee on each Duration Fee
Payment Date in an amount equal to the Applicable Duration Fee Rate times the
aggregate outstanding principal amount of Loans on such Duration Fee Payment
Date.
(c) Administrative Agent's Fee. The Borrower shall pay to the
Administrative Agent for its own account such fees as may from time to time be
agreed in writing by and between the Borrower and the Administrative Agent.
2.06 Repayment of Loans. The Borrower hereby promises to pay to the
Administrative Agent, for account of each Lender, the aggregate outstanding
principal amount of the Loans, and the Loans shall mature, on the Original
Maturity Date; provided, however, that if the First Extension Conditions have
been satisfied, only the aggregate outstanding principal amount of the Loans in
excess of the First Extension Amount shall mature on the Original Maturity Date
and the Borrower hereby promises to pay to the Administrative Agent, for account
of each Lender, the remaining aggregate outstanding principal amount of the
Loans, and the Loans shall mature, on the First Extended Maturity Date; provided
further, that if the Final Extension Conditions have been satisfied, only the
aggregate outstanding principal amount of the Loans in excess of the Final
Extension Amount shall mature on the First Extended Maturity Date and the
Borrower hereby promises to pay to the Administrative Agent, for account of each
Lender, the remaining aggregate outstanding principal amount of the Loans, and
the Loans shall mature, on the Final Extended Maturity Date.
2.07 Interest on Loans. (a) Scheduled Interest. The Borrower shall
pay interest on the unpaid principal amount of each Loan owing to each Lender by
the Borrower from the date of such Loan until such principal amount shall be
paid in full, at the following rates:
(i) Base Rate Loans. During such periods as such Loan is a
Base Rate Loan, a rate per annum equal at all times to the sum of (x) the
Base Rate in effect from time to time plus (y) the Applicable Margin,
payable in arrears on each Quarterly Date during such periods and, without
duplication, on the date such Base Rate Loan shall be Converted or paid in
full.
(ii) Eurodollar Loans. During such periods as such Loan is a
Eurodollar Loan, a rate per annum equal at all times during each Interest
Period for such Loan to the sum of (x) the Adjusted LIBO Rate for such
Interest Period for such Loan plus (y) the Applicable Margin, payable in
arrears on the last day of such Interest Period and, if such Interest
Period has a duration of more than three months, on each day that occurs
during such Interest Period every three months from the first day of such
Interest Period and, without duplication, on the date such Eurodollar Loan
shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the continuance
of an Event of Default, the Borrower shall pay interest on the aggregate unpaid
principal amount of the Loans and the amount of all other Obligations then due
and payable, from the date such amount shall be due until such amount shall be
paid in full, payable in arrears on the date such aggregate amount shall be paid
in full and on demand, at a rate per annum equal at all times to 2.00% per annum
above the rate per annum required to be paid on Base Rate Loans pursuant to
clause (a)(i) above.
2.08 Interest Rate Determination. (a) Each determination by the
Administrative Agent of an interest rate hereunder shall be conclusive and
binding for all purposes, absent manifest error.
(b) If, with respect to Eurodollar Loans, the Required Lenders
notify the Administrative Agent that the LIBO Rate for any Interest Period for
such Loans will not adequately reflect the cost to such Required Lenders of
making, funding or maintaining their respective Eurodollar Loans for such
Interest Period, the Administrative Agent shall forthwith so notify the Borrower
and the Lenders, whereupon (i) each such Loan will automatically, on the last
day of the then existing Interest Period therefor, Convert into a Base Rate
Loan, and (ii) the obligation of the Lenders to make, or to Convert Loans into,
such Loans shall be suspended until the Administrative Agent shall notify the
Borrower and the Lenders that the circumstances causing such suspension no
longer exist as determined by the Required Lenders, which notice shall be given
promptly after such circumstances cease to exist as determined by the Required
Lenders.
(c) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Loans in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, such Interest
Period shall have a duration of one month.
(d) Upon the occurrence and during the continuance of any Event of
Default under Section 8(a), (i) each Eurodollar Loan will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Base Rate
Loan and (ii) the obligation of the Lenders to make, or to Convert Loans into,
Eurodollar Loans shall be suspended.
2.09 Optional Conversion of Loans. The Borrower may on any Business
Day, upon notice given to the Administrative Agent not later than 11:00 A.M.
(New York City time) on the third Business Day prior to the date of the proposed
Conversion and subject to the provisions of Sections 2.08 and 2.15, Convert all
Loans of one Type or any portion thereof into Loans of the other Type; provided
that any Conversion of Eurodollar Loans into Base Rate Loans shall be made only
on the last day of an Interest Period for such Eurodollar Loans; provided
further that the aggregate amount of Eurodollar Loans for each Interest Period
must be in the amount of at least $25,000,000 or an integral multiple of
$1,000,000 in excess thereof. Each such notice of a Conversion shall, within the
restrictions specified above, specify (i) the date of such Conversion (ii) the
Loans to be Converted and (iii) if such Conversion is into Eurodollar Loans, the
duration of the initial Interest Period for each such Loan. Each notice of
Conversion shall be irrevocable and binding on the Borrower.
2.10 Optional Prepayments. The Borrower may, upon notice to the
Administrative Agent stating the proposed date and aggregate principal amount of
the prepayment, given not later than 10:00 A.M. (New York City time) (a) three
Business Days before such proposed prepayment in the case of Eurodollar Loans
and (b) on the day of such proposed prepayment in the case of Base Rate Loans,
and, if such notice is given, the Borrower shall, prepay without penalty the
outstanding principal amount of the Loans in whole or ratably in part, together
with accrued interest to the date of such prepayment on the principal amount
prepaid, provided that in the event of any such prepayment of a Eurodollar Loan
other than on the last day of the Interest Period therefor, the Borrower shall
be obligated to reimburse the Lenders in respect thereof pursuant to Section
10.04(b). Each prepayment hereunder shall be in a minimum amount of $25,000,000
or any whole multiple of $1,000,000 in excess thereof.
2.11 Mandatory Prepayments and Commitment Reductions.
(a) (i) Subject to the terms of this Section 2.11(a), after the
occurrence of any Specified Asset Sale or Property Loss Event, the Borrower
shall ratably prepay the Loans, and if the Funding Date has not occurred,
permanently reduce the Commitments outstanding as of the date of such Specified
Asset Sale or Property Loss Event, in each case, in an aggregate amount equal to
100% of the Net Cash Proceeds thereof. The Borrower shall effect such prepayment
or reduction within ten Business Days (if such Net Cash Proceeds are received by
the Borrower or a Domestic Subsidiary), or twenty Business Days (if such Net
Cash Proceeds are received by a Foreign Subsidiary), after the consummation of
such Specified Asset Sale or such Property Loss Event; provided that if the
Funding Date occurs prior to such period, such Commitment reduction shall be
effective immediately prior to the Funding Date.
(ii) Upon any Equity Issuance (other than any Designated
Equity Issuance) or Debt Incurrence (other than any Permitted Debt Issuance),
the Borrower shall ratably prepay the Loans, and if the Funding Date has not
occurred the Commitments shall be subject to automatic ratable reduction, in an
aggregate amount equal to 100% of the Net Cash Proceeds thereof, such reduction
to be effective immediately and any such prepayment to be effected within five
Business Days (if such Equity Issuance or Debt Incurrence is by the Borrower or
a Domestic Subsidiary) or ten Business Days (if such Equity Issuance or Debt
Incurrence is by a Foreign Subsidiary) after such Equity Issuance or Debt
Incurrence.
(b) Notices. Prepayments pursuant to this Section 2.11 shall be made
upon notice to the Administrative Agent not later than 10:00 A.M. (New York City
time) on any Business Day for Base Rate Loans, and upon at least three Business
Days' notice for Eurodollar Loans, stating the proposed date and aggregate
principal amount of the applicable prepayment. Upon receipt of a notice of
prepayment pursuant to this clause (b), the Administrative Agent shall promptly
notify each Lender of the contents thereof on the same Business Day and of such
Lender's ratable share of such prepayment and such notice shall not thereafter
be revocable.
(c) Other Amounts. All prepayments pursuant to this Section 2.11
shall be accompanied by interest on the principal amount prepaid accrued to the
date of such prepayment. In the event of any prepayment of Eurodollar Loans
pursuant to this Section 2.11, the Borrower shall be obligated to reimburse the
Lenders in respect thereof pursuant to Section 10.04(b).
2.12 Payments and Computations. (a) The Borrower shall make each
payment hereunder and under the Notes to the Administrative Agent at the
Administrative Agent's Account without set-off or counterclaim, not later than
12:00 noon New York City time on the due date of such payment (each such payment
made after such time on such date to be deemed to have been made on the next
Business Day). The Administrative Agent will promptly thereafter cause to be
distributed funds relating to the payment of principal or interest or fees
ratably (other than amounts payable pursuant to Section 2.14, 2.16 or 10.04(b))
to the Lenders, and like funds relating to the payment of any other amount
payable to any Lender to such Lender, in each case to be applied in accordance
with the terms of this Agreement. Upon its acceptance of an Assignment and
Acceptance and recording of the information contained therein in the Register
pursuant to Section 10.06(e), from and after the effective date specified in
such Assignment and Acceptance, the Administrative Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned thereby to the
Lender assignee thereunder, and the parties to such Assignment and Acceptance
(which shall not include the Borrower) shall make all appropriate adjustments in
such payments for periods prior to such effective date directly between
themselves.
(b) All interest hereunder and the fees payable under Section
2.05(a) shall be computed on the basis of a year of 360 days, except that
interest computed by reference to the Base Rate at times when the Base Rate is
based on the Prime Rate shall be computed on the basis of a year of 365 days (or
366 days in a leap year), and in each case shall be payable for the actual
number of days elapsed (including the first day but excluding the last day). The
applicable Base Rate, Adjusted LIBO Rate or LIBO Rate shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.
(c) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day; provided that, if such extension would
cause payment of interest on or principal of Eurodollar Loans to be made in the
next following calendar month, such payment shall be made on the next preceding
Business Day.
(d) All amounts payable under this Agreement shall be paid in U.S.
Dollars.
(e) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Lenders
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower shall not have so made such payment in full to the
Administrative Agent, each Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Administrative
Agent, at the Federal Funds Effective Rate.
2.13 Sharing of Payments Etc. (a) If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Loans owing to it (other than pursuant
to Section 2.14, 2.16 or 10.04(b)) in excess of its ratable share of payments on
account of the Loans obtained by all the Lenders, such Lender shall forthwith
purchase from the other Lenders such participations in the Loans owing to such
other Lenders as shall be necessary to cause such purchasing Lender to share the
excess payment ratably with each of them; provided that if all or any portion of
such excess payment is thereafter recovered from such purchasing Lender, such
purchase from each Lender shall be rescinded and such Lender shall repay to the
purchasing Lender the purchase price to the extent of such recovery together
with an amount equal to such Lender's ratable share (according to the proportion
of (i) the amount of such Lender's required repayment to (ii) the total amount
so recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered.
The Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 2.13 may, to the fullest extent permitted by
law, exercise all its rights of payment with respect to such participation as
fully as if such Lender were the direct creditor of the Borrower in the amount
of such participation.
(b) Nothing contained herein shall require any Lender to exercise
any such right or shall affect the right of any Lender to exercise, and retain
the benefits of exercising, any such right with respect to any other
indebtedness or obligation of the Borrower.
2.14 Additional Costs. (a) The Borrower shall, within 30 days
following demand by a Lender (with a copy of such demand to the Administrative
Agent), pay to the Administrative Agent for the account of such Lender from time
to time such amounts as such Lender may reasonably determine to be necessary to
compensate it for any costs that such Lender determines are attributable to its
making, funding or maintaining any Eurodollar Loans or its obligation to make
any Eurodollar Loans hereunder, or any reduction in any amount receivable by
such Lender hereunder in respect of any such Loans or such obligation (excluding
amounts attributable to Taxes, which shall be governed solely and exclusively by
Section 2.16) (such increases in costs and reductions in amounts receivable
being herein called "Additional Costs"), resulting from any Regulatory Change:
(i) that imposes or modifies any reserve, special deposit, minimum capital,
capital ratio or similar requirements (other than the Reserve Requirement
utilized in the determination of the LIBO Rate for such Loans) relating to any
extensions of credit or other assets of, or any deposits with or other
liabilities of, such Lender (including any such Loans or any deposits of the
type referred to in the definition of "LIBO Rate" in Section 1.01), or the
Commitment of such Lender; or (ii) imposes any other condition affecting this
Agreement or such Lender's Notes (or any of such extensions of credit or
liabilities) or the Commitment of such Lender; provided that the Borrower shall
not be obligated to pay to such Lender such Additional Costs unless such Lender
at such time shall be generally assessing such amounts on a non discriminatory
basis against borrowers under agreements having provisions similar to this
paragraph; and provided further that any such Additional Costs allocated to any
Loans or the Commitment of such Lender shall not exceed the Borrower's pro rata
share of all costs attributable to all loans or advances or commitments to all
borrowers by such Lender that collectively result in the consequences for which
such Lender is to be compensated by the Borrower. Any Lender seeking
compensation hereunder shall make reasonable efforts to notify the Borrower of
the enactment of any Regulatory Change that would entitle such Lender to
compensation pursuant to this Section 2.14(a) as promptly as practicable after
obtaining knowledge thereof and the date of effectiveness of such Regulatory
Change; provided that failure to provide such notice shall not in any way reduce
the Borrower's liability therefor. As soon thereafter as such Lender shall have
determined to request such compensation, such Lender shall notify the Borrower
thereof and shall use reasonable efforts (consistent with its internal policy
and legal and regulatory restrictions) to designate a different Applicable
Lending Office for the Loans of such Lender affected by such Regulatory Change
if such designation will avoid the need for, or reduce the amount of, such
compensation, and will not, in the opinion of such Lender, be otherwise
disadvantageous to such Lender. Notwithstanding anything in this Section 2.14(a)
to the contrary, the Borrower's obligation to reimburse such Lender for
Additional Costs pursuant to this Section 2.14(a) shall be limited as follows:
(x) In the event of a Regulatory Change with an effective date
occurring on or after its date of enactment, the Borrower
shall be obligated to pay to such Lender only such amounts
attributable to the period commencing on the later of the
effective date of such Regulatory Change or the date of such
Lender's notice of determination to request compensation
hereunder; and
(y) In the event of a Regulatory Change with an effective date
retroactive from its date of enactment, the Borrower shall be
obligated to pay only such amounts attributable to a period
commencing up to 60 days prior to such Lender's notice of
enactment of the Regulatory Change and its request for
compensation hereunder.
(b) Without limiting the effect of the foregoing provisions of this
Section 2.14 (but without duplication), the Borrower shall, within 30 days
following a demand by a Lender (with a copy of such demand to the Administrative
Agent), pay to the Administrative Agent for the account of such Lender from time
to time such amounts as such Lender may reasonably determine to be necessary to
compensate such Lender for any costs (excluding amounts attributable to Taxes,
which shall be governed solely and exclusively by Section 2.16) that it
determines are attributable to the maintenance by such Lender, pursuant to any
law or regulation or any interpretation, directive or request (whether or not
having the force of law) of any court or governmental or monetary authority
following any Regulatory Change, of capital in respect of its Commitment (such
compensation to include, without limitation, an amount equal to any reduction of
the rate of return on assets or equity of such Lender to a level below that
which such Lender could have achieved but for such Law, regulation,
interpretation, directive or request); provided that (i) the Borrower shall not
be obligated to pay to such Lender such additional amounts unless such Lender at
such time shall be generally assessing such amounts on a nondiscriminatory basis
against borrowers under agreements having provisions similar to this paragraph;
and (ii) any such additional amounts allocated to the Commitment of such Lender
shall not exceed the Borrower's pro rata share of all costs attributable to all
commitments to all borrowers by such Lender that collectively result in the
consequences for which such Lender is to be compensated by the Borrower. Each
Lender will notify the Borrower that it is entitled to compensation pursuant to
this Section 2.14(b) as promptly as practicable after it determines to request
such compensation; provided the Borrower shall be obligated to pay such Lender
only such amounts attributable to the period commencing 60 days after the date
of such Lender's notice.
(c) Determinations and allocations by a Lender for purposes of this
Section 2.14 of the effect of any Regulatory Change pursuant to Section 2.14(a),
or of the effect of capital maintained pursuant to Section 2.14(b), on its costs
or rate of return of maintaining Loans or its obligation to make Loans, or on
amounts receivable by it in respect of Loans, and of the amounts required to
compensate such Lender under this Section 2.14, shall be conclusive and binding
for all purposes, provided that such determinations and allocations are made on
a reasonable basis. Any Lender requesting compensation under this Section 2.14
will furnish the Borrower with a certificate setting forth the basis and amount
of such request for compensation.
2.15 Illegality. (a) Notwithstanding any other provision of this
Agreement, if any Lender shall notify the Administrative Agent that the
introduction of or any change in or in the interpretation of any Law or
regulation makes it unlawful, or any central bank or other Governmental
Authority asserts that it is unlawful, for any Lender to perform its obligations
hereunder to make Eurodollar Loans or to fund or maintain Eurodollar Loans
hereunder, (i) each Eurodollar Loan will automatically, upon such demand,
Convert into a Base Rate Loan and (ii) the obligation of the Lenders to make
Eurodollar Loans or to Convert Loans into Eurodollar Loans shall be suspended
until the Administrative Agent shall notify the Borrower and the Lenders that
the circumstances causing such suspension no longer exist, which notice shall be
given promptly after such circumstances cease to exist.
(b) Each Lender agrees that, before making a demand under subsection
(a) above, it shall (i) use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to designate a different Lending
Office for the Eurodollar Loans of such Lender, if such designation will avoid
the need for the Conversion of or for the suspension of the obligation of any
Lender or Lenders to make Eurodollar Loans as described in subsection (a) above
and will not, in the opinion of such Lender, be otherwise disadvantageous to
such Lender and (ii) failing such efforts and if legally permissible, cause such
demand to be made on the last day of the applicable Interest Period for each
Eurodollar Loan, as the case may be, then outstanding.
2.16 Taxes.
(a) Any and all payments by or on account of any Obligation of the
Borrower hereunder or under any other Loan Document shall be made free and clear
of and without deduction for any Indemnified Taxes or Other Taxes; provided that
if the Borrower shall be required by Law to deduct any Indemnified Taxes or
Other Taxes from such payments, then (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 2.16) the
Administrative Agent and each Lender (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 shall make such deductions and (iii) the Borrower shall pay the
full amount deducted to the relevant Governmental Authority in accordance with
applicable Law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable Law.
(c) The Borrower shall indemnify the Administrative Agent and each
Lender, within 10 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes on
or attributable to amounts payable under this Section 2.16) paid by the
Administrative Agent or such Lender, as the case may be, and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by a Governmental Authority. A certificate as to the amount
of such payment or liability delivered to the Borrower by a Lender, or by the
Administrative Agent on its own behalf or on behalf of a Lender, shall be
presumptive evidence of such payment or liability absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to any Governmental Authority, and in any event
within 60 days of such payment, the Borrower shall deliver to the Administrative
Agent the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment
or other evidence of such payment reasonably satisfactory to the Administrative
Agent.
(e) The Administrative Agent and each Lender, including any Foreign
Lender, that is entitled to an exemption from or reduction of withholding Tax
under the Law of the jurisdiction in which the Borrower is located, or any
treaty to which such jurisdiction is a party, with respect to payments under
this Agreement or any other Loan Document shall deliver to the Borrower (with a
copy to the Administrative Agent), such properly completed and executed
documentation (including Internal Revenue Service forms W-8 and W-9) as
reasonably requested by the Borrower or Administrative Agent (as applicable) and
as may be necessary or appropriate to permit the Borrower to make payments under
this Agreement or any Loan Document without withholding Tax or at a reduced
withholding Tax rate unless the Administrative Agent or the Lender is exempt
from backup withholding based on the indicators in Treasury Regulation Section
1.6049-4(c)(1)(ii), in which case no such documentation shall be delivered. The
Administrative Agent and each Lender shall provide the appropriate documentation
described in the preceding sentence at the following times (i) prior to the
first payment date after becoming a party to this Agreement, (ii) Upon a change
in circumstance or, upon reasonable request by the Company, upon a change in
Law, in each case requiring or making appropriate a new or additional form,
certificate or documentation, (iii) upon reasonable request by the Borrower upon
or before the expiration, obsolescence or invalidity of any documentation
previously provided to the Borrower or the Administrative Agent (as applicable)
and (iv) upon reasonable request by the Borrower or the Administrative Agent (as
applicable).
(f) Each Lender agrees that, before making a demand under this
Section 2.16, it shall use reasonable efforts (consistent with its legal and
regulatory restrictions) to designate a different Eurodollar Lending Office if
the making of such a designation will avoid the need for, or reduce the amount
of, any additional amounts that would otherwise thereafter accrue and will not,
in the judgment of such Lender, require such Lender to incur a loss and would
not otherwise be disadvantageous to the Lender. The Borrower hereby agrees to
pay all reasonable costs and expenses incurred by any Lender in connection with
any such designation or assignment. Upon any such change in any Applicable
Lending Office, such Lender shall provide to the Administrative Agent and the
Borrower the appropriate form specified in Section 2.16(e).
2.17 Defaulting Lender.
Notwithstanding any provision of this Agreement to the contrary, if
any Lender becomes a Defaulting Lender, then the following provisions shall
apply for so long as such Lender is a Defaulting Lender:
(a) on the date that such Lender becomes a Defaulting Lender, fees
under Section 2.05(a) shall cease to accrue on the Commitment of such Defaulting
Lender; provided that if such Defaulting Lender complies with its obligation to
make the Loans on the Funding Date as provided in this Agreement, such Lender
shall cease to be a Defaulting Lender and such fees shall be deemed to have
accrued during the period from the date that such Lender became a Defaulting
Lender until the Funding Date and any such unpaid fees under Section 2.05(a)
shall be due and payable on the Funding Date; and
(b) the Commitment of such Defaulting Lender shall not be included
in determining whether all Lenders or the Required Lenders have taken or may
take any action hereunder (including any consent to any amendment or waiver
pursuant to Section 10.03), provided that any waiver, amendment or modification
requiring the consent of all Lenders or each affected Lender which affects such
Defaulting Lender differently than other affected Lenders shall require the
consent of such Defaulting Lender.
Section 3. Conditions to Effective Date and Funding Date.
3.01 Conditions Precedent to Effective Date. This Agreement shall be
effective on the date (the "Effective Date") on which the following conditions
precedent shall have been satisfied:
(a) The Administrative Agent (or its counsel) shall have received
from each applicable party the following, each dated such day (unless otherwise
specified):
(i) A counterpart of this Agreement signed on behalf of each
party thereto.
(ii) A copy of the articles or certificate of incorporation
(or equivalent Constituent Document) of the Borrower, certified as of a
recent date by the Secretary of State of the state of organization of the
Borrower, together with a certificate of such official attesting to the
good standing of the Borrower.
(iii) A certificate of the Secretary or an Assistant Secretary
of the Borrower certifying (A) the names and true signatures of each
officer of the Borrower who is authorized to sign this Agreement and the
other Loan Documents (other than the Commitment Documents) on the
Borrower's behalf, (B) the by-laws (or equivalent Constituent Document) of
the Borrower as in effect on the date of such certification, (C) that
there have been no changes in the certificate of incorporation (or
equivalent Constituent Document) of the Borrower from the certificate of
incorporation (or equivalent Constituent Document) delivered pursuant to
clause (ii) above and (D) the resolutions of the Borrower's Board of
Directors approving and authorizing the execution, delivery and
performance of this Agreement and the other Loan Documents to which it is
a party.
(iv) A certificate of a duly authorized officer of the
Borrower, dated the Effective Date, stating that each of the conditions
precedent listed in Section 3.01(d) have been satisfied.
(v) (A) An opinion of in-house counsel for the Borrower,
substantially in the form of Exhibit D-1 hereto and (B) an opinion of
Cadwalader, Wickersham & Taft LLP, special New York counsel to the Loan
Parties, or other New York counsel to the Loan Parties reasonably
acceptable to the Administrative Agent, in either case, substantially in
the form of Exhibit D-2 hereto.
(b) The Administrative Agent shall have received copies of (i) the
audited Consolidated balance sheet of the Borrower and its Subsidiaries, (ii)
the audited Consolidated balance sheet of the Acquired Business, (iii) the
related audited Consolidated statements of income, stockholders' equity and cash
flows of the Borrower and its Subsidiaries and the Acquired Business, in each
case for the three fiscal years immediately preceding the Effective Date, (iv)
quarterly unaudited financial statements available to the Borrower or Wyeth, as
applicable, for any interim quarterly period or periods of the Borrower and
Wyeth ended after the date of the most recent audited financial statements; (v)
customary additional audited and unaudited financial statements for all recent,
probable or pending acquisitions of the Borrower or the Acquired Business, as
applicable; and (vi) customary pro forma financial statements ("Pro Forma
Financials"), in each case meeting the requirements of Regulation S-X for Form
S-3 registration statements ((i), (ii), (iii), (iv), (v) and (vi) being
collectively referred to as, the "Initial Financial Statements"); provided that
information required to be delivered pursuant to this Section 3.01(b) shall be
deemed to have been delivered if such information, or one or more annual or
quarterly or other reports or proxy statements containing such information shall
have been posted and available on the website of the SEC at http://www.sec.gov
(and a confirming electronic correspondence is delivered or caused to be
delivered by the Borrower to the Administrative Agent providing notice of such
availability).
(c) The Borrower shall have paid such fees as the Borrower shall
have agreed to pay to any Joint Lead Arranger, Lender or the Administrative
Agent in connection herewith, including the reasonable fees and expenses of
Weil, Gotshal & Manges LLP, special New York counsel to the Joint Lead
Arrangers, in connection with the negotiation, preparation, execution and
delivery of the Loan Documents, the extensions of credit hereunder and the
syndication of the credit facility provided hereby (to the extent such fees and
expenses are due and statements for such fees and expenses have been delivered
to the Borrower).
(d) (i) No Default shall have occurred and be continuing as of such
date, (ii) the representations and warranties of the Borrower contained in
Sections 4.01, 4.02, 4.04(b), 4.05, 4.08 and 4.13 shall be accurate on and as of
such date as if made on and as of such date and (iii) no injunction affecting
the execution, delivery or performance of the Loan Documents shall have been
issued and remain in effect on the Effective Date.
3.02 Conditions Precedent to the Funding Date. The obligation of the
Lenders to make Loans hereunder shall not become effective until the time and
date (the "Funding Date"), after the Effective Date but prior to the close of
banking business on the Commitment Termination Date, on which each of the
following conditions precedent shall have occurred:
(a) the Administrative Agent (or its counsel) shall have received
from each applicable party the following, each dated such day (unless otherwise
specified):
(i) A counterpart of each Note (if requested by any Lender)
signed by the Borrower and, concurrently with the funding on the Funding
Date, the Guaranty Agreement signed by Wyeth.
(ii) A copy of the articles or certificate of incorporation
(or equivalent Constituent Document) of each Loan Party except to the
extent delivered pursuant to Section 3.01(a)(ii), certified as of a recent
date by the Secretary of State of the state of organization of such Loan
Party, together with certificates of such official attesting to the good
standing of each Loan Party.
(iii) A certificate of the Secretary or an Assistant Secretary
of each Loan Party certifying (A) with respect to the Borrower, that the
information and certifications contained in the certificate delivered
pursuant to Section 3.01(a)(iii) remain accurate as of the Funding Date
and there have been no changes to such information since the Effective
Date (or if there have been changes to such information since the
Effective Date then certifying the information and documents required of
Section 3.02(a)(iii)(B)) and (B) with respect to each remaining Loan
Party, (1) the names and true signatures of each officer of each Loan
Party who is authorized to sign this Agreement and the other Loan
Documents (other than the Commitment Documents) on the such Loan Party's
behalf, (2) the by-laws (or equivalent Constituent Document) of such Loan
Party as in effect on the date of such certification and (3) that there
have been no changes in the certificate of incorporation (or equivalent
Constituent Document) of such Loan Party from the certificate of
incorporation (or equivalent Constituent Document) delivered pursuant to
clause (ii) above and (C) the resolutions of such Loan Party's Board of
Directors (or equivalent governing body) approving and authorizing the
execution, delivery and performance of each Loan Document to which it is a
party.
(iv) A certificate of a duly authorized officer of the
Borrower, dated the Funding Date, stating that each of the conditions
precedent listed in Section 3.02(d) have been satisfied.
(v) A solvency certificate, substantially in the form of
Exhibit F hereto, signed by the Chief Financial Officer of the Borrower.
(vi) (A) An opinion of in-house counsel for the
Borrower, substantially in the form of Exhibit D-3 hereto and (B) an
opinion of Cadwalader, Wickersham & Taft LLP, special New York counsel to
the Loan Parties, or other New York counsel to the Loan Parties reasonably
acceptable to the Administrative Agent, in either case, substantially in
the form of Exhibit D-4 hereto.
(b) The Borrower shall have paid such fees as the Borrower shall
have agreed to pay to any Joint Lead Arranger, Lender or the Administrative
Agent in connection herewith, including the reasonable fees and expenses of
Weil, Gotshal & Manges LLP, special New York counsel to the Joint Lead
Arrangers, in connection with the negotiation, preparation, execution and
delivery of the Loan Documents, the extensions of credit hereunder and the
syndication of the credit facility provided hereby (to the extent that
statements for such fees and expenses have been delivered to the Borrower).
(c) (i) No Default (other than a Default resulting from an
inaccurate representation or warranty not referenced in clause (ii) below) shall
have occurred and be continuing as of such date, (ii) the representations and
warranties of the Borrower contained in Sections 4.01, 4.02, 4.04 (other than
4.04(a)), 4.05, 4.07, 4.08, 4.11 or 4.13 shall be accurate on and as of such
date as if made on and as of such date, (iii) the representations and warranties
contained in the Merger Agreement with respect to the Acquired Business shall be
accurate on and as of such date (except to the extent such representation and
warranties expressly relate to an earlier date, in which case such
representations and warranties shall have been accurate as of such earlier date)
to the extent that the failure of such representations and warranties to be
accurate would permit the Borrower to exercise termination rights under the
Merger Agreement and (iv) no injunction affecting the execution, delivery or
performance of the Loan Documents shall have been issued and remain in effect on
the Funding Date.
(d) Except (i) as disclosed in the Company SEC Documents filed since
January 1, 2008 but prior to January 25, 2009 (but excluding any risk factor
disclosures contained under the heading "Risk Factors," any disclosure of risks
included in any "forward-looking statements" disclaimer or any other statements
that are similarly non-specific or predictive or forward-looking in nature, but
in each case, other than any specific factual information contained therein) or
(ii) as set forth in the Company Disclosure Letter, there shall not have been,
since December 31, 2007, any event, occurrence, development or state of
circumstances or facts or condition that has had or would reasonably be expected
to have, individually or in the aggregate, a Company Material Adverse Effect.
(e) Except (i) as disclosed in the Wyeth SEC Documents filed since
January 1, 2008 but prior to January 25, 2009 (but excluding any risk factor
disclosures contained under the heading "Risk Factors," any disclosure of risks
included in any "forward-looking statements" disclaimer or any other statements
that are similarly non-specific or predictive or forward-looking in nature, but
in each case, other than any specific factual information contained therein) or
(ii) as set forth in the Wyeth Disclosure Letter, there shall not have been,
since December 31, 2007, any event, occurrence, development or state of
circumstances or facts or condition that has had or would reasonably be expected
to have, individually or in the aggregate, a Wyeth Material Adverse Effect.
(f) The Merger Agreement shall be in full force and effect on the
Funding Date. On or prior to the Funding Date, there shall have been no
amendment, waiver, supplement or other modification to the Merger Agreement
(including the exhibits, schedules and all related documents and agreements)
with respect to: (i) (A) the purchase price consideration (including equity and
cash components thereof) for the Acquisition, (B) the definitions or application
of "Parent Material Adverse Change" and "Company Material Adverse Change" and
(C) Sections 4.2 and 6.13 of the Merger Agreement, in each case, without the
prior written consent of each Joint Lead Arranger; and (ii) any other term of
the Merger Agreement (including the Company Disclosure Letter and the Wyeth
Disclosure Letter) or condition to the consummation of the Acquisition
(including with respect to accuracy and completeness on the Funding Date of the
representations and warranties made by the Borrower and Wyeth) under the Merger
Agreement that would be materially adverse to the Lenders without the prior
written consent of each Joint Lead Arranger.
(g) On the Funding Date, the Acquisition shall have been
concurrently consummated in accordance with the Merger Agreement. The Borrower's
and the Acquired Business' cash on hand together with the proceeds from
Borrowings under this Agreement, any Permanent Financings effected on or prior
to the Funding Date and any Equity Interests constituting consideration for the
Acquisition will be sufficient to consummate the Acquisition and the
transactions contemplated by this Agreement and pay all related fees,
commissions and expenses.
(h) The commitments under the Credit Agreement, dated as of August
2, 2007, among Wyeth, the lenders party thereto, and JPMorgan Chase Bank, N.A.,
as Administrative Agents shall have been terminated in full.
(i) The Borrower shall on the Funding Date, and taking into account
the Funding Date and the consummation of the Acquisition, have (i) an unsecured
long-term obligations rating of at least "A2" (with stable (or better) outlook)
and a commercial paper credit rating of at least "P-1" (which rating shall be
affirmed) from Moody's and (ii) a long-term issuer credit rating of at least "A"
(with stable (or better) outlook) and a short-term issuer credit rating of at
least "A-1" (which rating shall be affirmed) from S&P (for the avoidance of
doubt, it being understood, that an unsecured long-term obligations rating of
higher than "A2" and a long-term issuer credit rating of higher than "A" shall
satisfy the foregoing condition, as applicable, irrespective of whether or not
such rating(s) are subject to "negative watch" or "negative outlook").
(j) Each Joint Lead Arranger shall be satisfied that the Borrower
has (a) before April 24, 2009, completed the preparation of a preliminary
prospectus or preliminary offering memorandum or preliminary private placement
memorandum and suitable for use in a customary "investment grade road show", in
a form that will enable the independent registered public accountants of the
Borrower and the Acquired Business (the "Accountants") to render a customary
"comfort letter", including customary "negative assurances" (a "Comfort
Letter"), (b) used all commercially reasonable efforts to cause the Permanent
Financing to be consummated on or prior to the Funding Date (including, without
limitation, to obtain customary Comfort Letters for use in connection
therewith), and (c) caused the participation of senior management and
representatives of the Borrower and used commercially reasonable efforts to
cause senior management and representatives of the Acquired Business to
participate (but only to the extent the Acquired Business is obligated under the
Merger Agreement to provide such participation), at the reasonable request of
the investment bank engaged to assist in structuring the Permanent Financing, in
one or more road shows during the period beginning on the date that the Pro
Forma Financials are first available and ending on the Funding Date.
Section 4. Representations and Warranties. To induce the Lenders and
the Administrative Agent to enter into this Agreement, (a) on and as of the
Effective Date, the Borrower makes each of the representations and warranties
set forth in Sections 4.01, 4.02, 4.04(b), 4.05, 4.08, and 4.13 below (in each
case, with references to Loan Parties and Loan Documents deemed to refer only to
the applicable Loan Parties and Loan Documents executed on the Effective Date),
and (b) on and as of the Funding Date, the First Extension Date and the Final
Extension Date, the Borrower makes each of the representations and warranties
set forth below (in the case of the Funding Date, after giving effect to the
Acquisition):
4.01 Organization; Powers; Binding Effect. Each Loan Party is duly
incorporated (or organized) and validly existing under the Laws of the state of
its incorporation or organization and has the necessary corporate or other power
and authority to enter into this Agreement and the other Loan Documents, to
borrow hereunder and to perform and observe its obligations hereunder and
thereunder, all corporate or other action required to authorize the execution
and delivery of this Agreement and the other Loan Documents and the performance
by such Loan Party of its obligations hereunder and under the other Loan
Documents has been duly taken, and this Agreement and the other Loan Documents
have been duly executed and delivered and constitute, and, when executed and
delivered, each of the Notes shall have been duly executed and delivered and
shall constitute, valid, legal and binding obligations of each applicable Loan
Party enforceable against such Loan Party in accordance with their terms,
subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws
of general applicability relating to or affecting creditors' rights and to
general equity principles.
4.02 Contravention. Neither (a) the certificate of incorporation,
by-laws or other Constituent Documents of the Loan Parties, (b) any provision of
any existing material mortgage, trust deed, contract, license, franchise,
concession or agreement or any other material contractual obligation by which
the Borrower or any of its Subsidiaries or any of their property or assets is
bound, nor (c) any Law, regulation, judgment, injunction or other Order or award
of any judicial, administrative, governmental or other authority or of any
arbitrator binding on the Borrower or any of its Subsidiaries, conflicts or
would conflict with or be contravened in any respect by the execution and
delivery of the Transaction Documents or which would conflict with or be
contravened by the Borrower's or its Subsidiaries' performance or observance of
any of its obligations under the Transaction Documents, except, in the case of
clause (c) above, for any such conflict or contravention that would not (either
individually or in the aggregate) reasonably be expected to have a Material
Adverse Effect.
4.03 Authorization. There are no authorizations, approvals,
licenses, registrations or consents of any Loan Party's jurisdiction of
incorporation or organization or New York or the United States of America
necessary for the execution and delivery by any Loan Party, as applicable, of
any Loan Document, the performance by any Loan Party of the obligations
expressed to be assumed by it in or pursuant to the applicable Loan Documents
and the payment of any amounts hereunder or under the other Loan Documents in
accordance with their terms or to render this Agreement or any other Loan
Document legal, valid, binding, enforceable and admissible in evidence.
4.04 Financial Statements; Material Adverse Change. (a) (i) On the
Effective Date, the Initial Financial Statements were prepared in accordance
with GAAP, consistently applied, except as otherwise noted therein and such
Initial Financial Statements present fairly, in all material respects, the
Consolidated financial position and results of operations of the Borrower and
its Subsidiaries in accordance with GAAP, consistently applied, as at the end
of, and for, the respective periods covered thereby and (ii) on the Funding
Date, the financial statements delivered on or prior to the Funding Date were
prepared in accordance with GAAP, consistently applied, except as otherwise
noted therein and such financial statements present fairly, in all material
respects, the Consolidated financial position and results of operations of the
Borrower and its Subsidiaries (including the Acquired Business) in accordance
with GAAP, consistently applied, as at the end of, and for, the respective
periods covered thereby.
(b) Except (i) as disclosed in the Company SEC Documents filed since
January 1, 2008 but prior to January 25, 2009 (but excluding any risk factor
disclosures contained under the heading "Risk Factors," any disclosure of risks
included in any "forward-looking statements" disclaimer or any other statements
that are similarly non-specific or predictive or forward-looking in nature, but
in each case, other than any specific factual information contained therein) or
(ii) as set forth in the Company Disclosure Letter, there shall not have been,
since December 31, 2007, any event, occurrence, development or state of
circumstances or facts or condition that has had or would reasonably be expected
to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Except (i) as disclosed in the Wyeth SEC Documents filed since
January 1, 2008 but prior to January 25, 2009 (but excluding any risk factor
disclosures contained under the heading "Risk Factors," any disclosure of risks
included in any "forward-looking statements" disclaimer or any other statements
that are similarly non-specific or predictive or forward-looking in nature, but
in each case, other than any specific factual information contained therein) or
(ii) as set forth in the Wyeth Disclosure Letter, there shall not have been,
since December 31, 2007, any event, occurrence, development or state of
circumstances or facts or condition that has had or would reasonably be expected
to have, individually or in the aggregate, a Wyeth Material Adverse Effect.
4.05 No Omission. (i) All Information (other than financial
projections and information of a general economic nature or general industry
nature) provided directly or indirectly by the Acquired Business or the Borrower
to the Administrative Agent and the Lenders in connection with this Agreement
and the Acquisition (with respect to the Acquired Business, in each case, to the
best of the Borrower's knowledge), is and will be, when taken as a whole,
complete and correct in all material respects and does not and will not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements contained therein not misleading and so far as
the Borrower is aware, nothing has occurred between the date of delivery of such
Information and the date that this representation is made (except as disclosed
in Schedule 4.05) which renders such information untrue or misleading in any
material respect and (ii) the financial projections that have been or will be
made available to the Lenders by the Acquired Business or the Borrower or their
respective representatives have been and will be prepared in good faith based
upon assumptions that are believed by the Borrower to be reasonable at the time
such financial projections are furnished to the Lenders, it being understood and
agreed that financial projections are not a guarantee of financial performance
and actual results may differ from financial projections and such differences
may be material.
4.06 Status. The obligations of the Borrower hereunder and under the
Notes rank at least pari passu in priority of payment with all of its other
unsecured senior Debt.
4.07 Federal Reserve Regulations. (a) None of the Borrower or its
Subsidiaries is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose of buying or carrying margin
stock (as defined in Regulation U).
(b) No part of the proceeds of the Loans will be used, whether
directly or indirectly, and whether immediately, incidentally, or ultimately,
for any purpose which entails a violation of, or which is inconsistent with, the
provisions of Regulations U and X as in effect on the date hereof and all
official rulings and interpretations thereunder or thereof.
4.08 Investment Company Status. The Borrower is not an "investment
company" or "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
4.09 Litigation. Except as disclosed in the Company SEC Documents or
the Wyeth SEC Documents (but, in each case, excluding any risk factor
disclosures contained under the heading "Risk Factors," any disclosure of risks
included in any "forward-looking statements" disclaimer or any other statements
that are similarly non-specific or predictive or forward-looking in nature, but
in each case, other than any specific factual information contained therein)
filed prior to the Effective Date, there is no pending or (to the knowledge of
the Borrower) threatened action, investigation or proceeding affecting the
Borrower, the Acquired Business or any of their Subsidiaries before any court,
governmental agency or arbitrator that is initiated by any Person other than a
Lender in its capacity as a Lender (i) that is reasonably likely to have a
Material Adverse Effect or (ii) that could be reasonably expected to affect the
legality, validity or enforceability of any Loan Document.
4.10 Use of Proceeds. The proceeds of the Loans shall be used by the
Borrower solely to finance (a) the Acquisition, and (b) the payment of fees and
expenses in connection with the Acquisition.
4.11 Solvency. Both before and after giving effect to the Loans and
the application of proceeds thereof in accordance with this Agreement, the
Borrower and each Guarantor is Solvent.
4.12 Compliance with Laws. Each of the Borrower and its Subsidiaries
is in compliance with all Laws, regulations and Orders of any Governmental
Authority applicable to it or its property or assets and all indentures,
agreements and other instruments binding upon it or its property or assets,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
4.13 Patriot Act. The Borrower has provided each Lender with
information that identifies the Borrower, including the name and address of the
Borrower and other information that will allow such Lender to identify the
Borrower, and has been requested from the Borrower pursuant to Section 326 of
the Patriot Act and Section 10.14 of this Agreement, in accordance with the
Patriot Act.
Section 5. Financial Covenants.
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full, the Borrower covenants and agrees with the Lenders that the
Borrower shall maintain as of the last day of each fiscal quarter a Leverage
Ratio of not more than 2.75 to 1.
Section 6. Affirmative Covenants.
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full, the Borrower covenants and agrees with the Lenders that:
6.01 Financial Statements; Ratings Change and Other Information. The
Borrower will furnish to the Administrative Agent and each Lender:
(a) on or before the date on which such financial statements are
required to be filed with the SEC (after giving effect to any permitted
extensions) or, if such financial statements are not required to be filed
with the SEC, on or before the date that is ninety (90) days after the end
of each such fiscal year of the Borrower, its audited Consolidated balance
sheet and related statements of operations, stockholders' equity and cash
flows as of the end of and for such year, setting forth in each case in
comparative form the figures for the previous fiscal year, all reported on
by KPMG LLP or other independent public accountants of recognized national
standing (without a "going concern" or like qualification or exception and
without any qualification or exception as to the scope of such audit) to
the effect that such Consolidated financial statements present fairly in
all material respects the financial condition and results of operations of
the Borrower and its Consolidated Subsidiaries on a Consolidated basis in
accordance with GAAP consistently applied;
(b) on or before the date on which such financial statements are
required to be filed with the SEC (after giving effect to any permitted
extensions) with respect to each of the first three quarterly accounting
periods in each fiscal year of the Borrower or, if such financial
statements are not required to be filed with the SEC, on or before the
date that is forty-five (45) days after the end of each such quarterly
accounting period, its Consolidated balance sheet and related statements
of operations, stockholders' equity and cash flows as of the end of and
for such fiscal quarter and the then elapsed portion of the fiscal year,
setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the balance sheet,
as of the end of) the previous fiscal year, all certified by one of its
Financial Officers as presenting fairly in all material respects the
financial condition and results of operations of the Borrower and its
Consolidated Subsidiaries on a Consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and the
absence of footnotes;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer of the
Borrower substantially in the form of Exhibit G hereto (i) certifying as
to whether a Default has occurred and, if a Default has occurred,
specifying the details thereof and any action taken or proposed to be
taken with respect thereto, (ii) setting forth reasonably detailed
calculations demonstrating compliance with Section 5 and (iii) stating
whether any change in GAAP or in the application thereof has occurred
since the date of the audited financial statements referred to in Section
3.01(b) and, if any such change has occurred, specifying the effect of
such change on the financial statements accompanying such certificate; and
(d) as soon as possible the Borrower will furnish to the
Administrative Agent and each Lender (i) and in any event within five
Business Days after the Borrower first becomes aware of the occurrence of
each Default continuing on the date of such statement, a written statement
of a Financial Officer of the Borrower setting forth details of such
Default and the action that the Borrower has taken and proposes to take
with respect thereto, (ii) prompt written notice of the Borrower having
knowledge of the filing or commencement of any action, suit or proceeding
by or before any arbitrator or Governmental Authority against or affecting
the Borrower or any Subsidiary that could reasonably be expected to have a
Material Adverse Effect and (iii) prior to the Funding Date, prompt
written notice of any amendment, waiver or termination (including notices
of termination) under the Merger Agreement, Company Disclosure Letter or
Wyeth Disclosure Letter.
Information required to be delivered pursuant to subsections (a) and (b) of this
Section 6.01 shall be deemed to have been delivered if such information, or one
or more annual or quarterly or other reports or proxy statements containing such
information shall have been posted and available on the website of the SEC at
http://www.sec.gov (and a confirming electronic correspondence is delivered or
caused to be delivered by the Borrower to the Administrative Agent providing
notice of such availability). The Borrower acknowledges that certain of the
Lenders may be "public side" Lenders (i.e. Lenders that do not wish to receive
material non-public information with respect to the Borrower, the Acquired
Business or their respective Affiliates or securities) (each, a "Public
Lender"). At the request of the Administrative Agent, the Borrower agrees to
prepare additional versions of the documents required by this Section 6.01 to be
used by Public Lenders that do not contain material non-public information
concerning the Borrower, the Acquired Business or their respective Affiliates or
securities. The Borrower will clearly designate as such all Information provided
to the Administrative Agent or the Lenders by or on behalf of the Borrower or
the Acquired Business which is suitable to make available to Public Lenders.
6.02 Preservation of Existence.
The Borrower shall preserve and maintain, and cause each Guarantor
to preserve and maintain, its corporate (including partnership, limited
liability company or other legal organizational) existence; provided, however,
that the Borrower and the Guarantors may consummate any transaction not
prohibited by Section 7.05.
6.03 Payment of Obligations.
Except to the extent the failure to do so could not reasonably be
expected to result in a Material Adverse Effect, the Borrower shall pay and
discharge, and cause each Subsidiary to pay and discharge, before the same shall
become delinquent, (i) all Taxes imposed upon it or upon its property or assets
and (ii) all lawful claims that, if unpaid, might result in a Lien upon its
property or assets; provided, however, that neither the Borrower nor any
Subsidiary shall be required to pay or discharge any such Taxes or claim that is
being contested in good faith and by proper proceedings and as to which adequate
reserves are being maintained in accordance with GAAP.
6.04 Maintenance of Properties; Insurance.
Except where the failure to do so could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect, the
Borrower shall, and shall cause each of its Subsidiaries to, (a) keep and
maintain all property or assets material to the conduct of its business in good
working order and condition, ordinary wear and tear excepted, and (b) maintain
insurance (if not self insured for such risk), with financially sound and
reputable insurance companies, in such amounts and against such risks as are
customarily maintained by companies engaged in the same or similar businesses
operating in the same or similar locations or substantially consistent with past
practices of the Borrower and its Material Subsidiaries.
6.05 Books and Records; Inspection Rights.
The Borrower shall, and shall cause each of its Subsidiaries to,
keep proper books of record and account in which full, accurate entries are made
of all dealings and transactions in relation to its business and activities to
the extent required by GAAP. The Borrower shall, and shall cause each of its
Subsidiaries to, permit any representatives designated by the Administrative
Agent, upon reasonable prior notice, to visit and inspect its properties, to
examine and make extracts from its books and records, and to discuss its
affairs, finances and condition with its officers and independent accountants,
all at such reasonable times and as often as reasonably requested during normal
business hours; provided that, unless an Event of Default shall have occurred
and be continuing, only one (1) visit shall be permitted during any calendar
year. Notwithstanding anything to the contrary in this Section 6.05, none of the
Borrower or any of its Subsidiaries will be required to disclose, permit the
inspection, examination or making copies or abstracts of, or discussion of, any
document, information or other matter that (i) constitutes non-financial trade
secrets or non-financial proprietary information, (ii) in respect of which
disclosure to the Administrative Agent (or its representatives) is prohibited by
Law or (iii) is subject to attorney-client or similar privilege or constitutes
attorney work product.
6.06 Compliance with Laws.
The Borrower shall, and shall cause each of its Subsidiaries to,
comply with all Laws, rules, regulations and Orders of any Governmental
Authority applicable to it or its property or assets, except where (a) the
necessity of compliance therewith is contested in good faith by appropriate
proceedings or (b) noncompliance therewith, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect.
6.07 Maintenance of Ratings.
The Borrower shall use best efforts to secure at all times (a) the
ratings referred to in the definition of Borrower's Credit Ratings, (b) a
commercial paper credit rating from Moody's and (c) a short-term issuer credit
rating from S&P.
Section 7. Negative Covenants. Until the Commitments have expired or
terminated and the principal of and interest on each Loan and all fees payable
hereunder have been paid in full, the Borrower covenants and agrees with the
Lenders that:
7.01 Subsidiary Debt.
The Borrower shall not permit any Subsidiary that is not a Guarantor
to, create, incur, assume or permit to exist any Debt other than (a) Permissible
Debt, (b) Debt of any such Subsidiary owing to any other Subsidiary or to the
Borrower and (c) Permitted Repurchase Debt.
7.02 Secured Debt.
The Borrower shall not, nor shall it permit any of its Subsidiaries
to, create, incur, assume or permit to exist any Secured Debt, provided that
nothing in this Section 7.02 shall be construed to prevent or restrict the
following:
(a) Debt secured by Liens existing on the Effective Date and
described on Schedule 7.02 and any Permitted Refinancing of such Debt, provided
that no Event of Default has occurred and is continuing or would result from any
such Permitted Refinancing;
(b) Secured Debt in an aggregate amount the U.S. Dollar Equivalent
of which does not exceed $2,000,000,000; provided that on the date of the
incurrence thereof no Event of Default has occurred and is continuing or would
result therefrom;
(c) Debt secured by Permitted Liens; or
(d) Permitted Repurchase Debt.
7.03 Restricted Payments.
The Borrower shall not, and shall not permit any of its Subsidiaries
to, declare or make, or agree to pay or make, directly or indirectly, any
Restricted Payment, except (a) any Subsidiary may make any Restricted Payments
with respect to its Equity Interests to the Borrower or any other Subsidiary and
to any other Person owning such Equity Interest on a ratable basis, (b) the
Borrower may declare and pay or make dividends and distributions on its Equity
Interests and payable only in the common stock of the Borrower, (c) the Borrower
may declare and pay cash dividends quarterly with respect to its common stock in
an amount not to exceed the amount of the most recent quarterly dividend
declared prior to the Effective Date, in each case, so long as no Event of
Default of the type specified in Sections 8(a), 8(h) and 8(i) is continuing on
the date of declaration thereof, (d) the Borrower may declare and pay dividends
and distributions on its Series A convertible preferred stock outstanding on the
Effective Date and held by employee stock ownership plans ("Series A Preferred
Stock") and may redeem or convert such Series A Preferred Stock pursuant to the
terms thereof, (e) the Borrower may make Restricted Payments pursuant to and in
accordance with stock option plans, management equity plans, stock subscription
agreements, shareholder agreements, other benefit plans or compensation
arrangements or accommodations for management, directors or employees of the
Borrower and its Subsidiaries, in each case in the ordinary course of business,
(f) any Restricted Payments made pursuant to the Merger Agreement (or on Equity
Interests issued pursuant to the Merger Agreement) as in effect on January 26,
2009 and (g) redemptions or repurchases of common stock of the Borrower for an
aggregate amount of consideration not to exceed $250,000,000.
7.04 Restrictions on Subsidiary Distributions; Negative Pledges.
The Borrower shall not, and shall not permit any of its Subsidiaries
to:
(a) agree to enter into or suffer to exist or become effective any
consensual encumbrance or consensual restriction in any agreement with regard to
Debt for borrowed money of any kind (other than under the Loan Documents or any
Permanent Financing) on the ability of the Borrower or such Subsidiary to pay
dividends or make any other distribution or transfer of funds, property or
assets or make loans or advances to or other investments in, or pay any Debt
owed to, the Borrower or any other Subsidiary; or
(b) enter into or suffer to exist or become effective any agreement
with regard to Debt for borrowed money prohibiting or limiting the ability of
the Borrower or such Subsidiary to create, incur, assume or suffer to exist any
Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, to secure the Obligations;
provided that nothing in this Section 7.04 shall be construed to prevent or
restrict the following:
(i) Loan Documents or "Loan Documents" under and as defined in the
Revolving Credit Facility;
(ii) any agreements governing Permitted Repurchase Debt, Purchase
Money Debt, Capital Lease Obligations or other Secured Debt permitted by Section
7.02 (provided that in the case of agreements permitted by this clause (ii), any
prohibition or limitation shall only be effective against the property or assets
financed thereby);
(iii) any agreements or instruments governing Debt of the Borrower
and its Subsidiaries or the Acquired Business existing on the date hereof;
(iv) with respect to clause (b) only, any such prohibition or
limitation in any agreement or instrument governing a Permanent Financing if
such prohibition or limitation does not apply to any such Lien granted in
respect of the Obligations as long as an "equal and ratable" Lien is granted to
secure the Debt under such Permanent Financing;
(v) any encumbrances or restrictions existing under or by reason of:
(A) applicable Law or any applicable rule, regulation or Order, (B) any
agreement or other instrument of a Person (including the Acquired Business)
acquired by the Borrower or any Subsidiary in existence at the time of such
acquisition (but not created in connection therewith), (C) with respect to
clause (b) only, restrictions on cash or other deposits or net worth imposed
under contracts entered into in the ordinary course of business, (D)
anti-assignment provisions in contracts restricting the assignment thereof
(including any such provision in licenses and leases), and (E) restrictions
created in connection with any leases, Sale and Lease-Back Transactions or
Securitization Facilities to the extent covering assets subject to such
transactions;
(vi) any encumbrances or restrictions of the type referred to in
this Section 7.04 imposed by any Permitted Refinancings of the contracts,
instruments or obligations referred to in the foregoing clauses (iii) and (v)(B)
of this Section 7.04; and
(vii) any agreements governing Permissible Debt of a Foreign
Subsidiary that is not a "Designated Borrower" as defined under the Revolving
Credit Agreement.
7.05 Mergers and Acquisitions; Fundamental Changes.
(a) The Borrower will not merge into or consolidate with any other
Person, or permit any other Person to merge into or consolidate with it, or
sell, transfer, lease or otherwise Dispose of, and will not permit any
Subsidiary to sell, transfer, lease or otherwise Dispose of, (in one transaction
or in a series of transactions) all or substantially all of the property or
assets of the Borrower and its Subsidiaries taken as a whole (in each case,
whether now owned or hereafter acquired), or liquidate or dissolve, except that,
if at the time thereof and immediately after giving effect thereto no Default
shall have occurred and be continuing or would result therefrom (i) any Person
may merge into or consolidate with the Borrower in a transaction in which the
Borrower is the surviving corporation and (ii) any Subsidiary may liquidate or
dissolve if (A) the Borrower determines in good faith that such liquidation or
dissolution is in the best interests of the Borrower, and (B) such liquidation
or dissolution is not materially disadvantageous to the Lenders.
(b) Other than the Acquisition, the Borrower will not, and will not
permit any Subsidiary to, purchase or acquire, directly or indirectly (in one
transaction or a series of transactions and including pursuant to any merger
with any Person that was not a wholly owned Subsidiary prior to such merger),
the majority of the Voting Stock of any other Person (other than a Subsidiary),
all or substantially all of the property or assets of any other Person (other
than a Subsidiary) or any property or assets of any other Person (other than a
Subsidiary) constituting a business unit (all of the foregoing collectively,
"Restricted Investments"), except (i) Domestic Designated Investments with an
aggregate cash purchase price of up to $500,000,000; (ii) Foreign Designated
Investments with an aggregate cash purchase price of up to $2,500,000,000 or the
U.S. Dollar equivalent thereof (exclusive of any such amounts paid in Equity
Interests of the Borrower); provided that, in the case of (i) or (ii), at the
time any agreement governing such Designated Investment is entered into, no
Default has occurred and is continuing or would result therefrom including on a
pro forma basis after giving effect to such Designated Investment ; (iii)
licensing and cross-licensing arrangements in the ordinary course of business;
(iv) any swap of assets in exchange for services or other assets in the ordinary
course of business of comparable or greater value or usefulness to the business
of the Borrower and its Subsidiaries, as a whole, as determined in good faith by
the Borrower and (v) Restricted Investments received substantially
contemporaneously in exchange for Equity Interests of the Borrower.
7.06 Transactions with Affiliates.
The Borrower shall not, and shall not permit any of its Subsidiaries
to, conduct transactions with any of its Affiliates involving aggregate payments
or consideration in excess of $200,000,000 unless each such transaction or
series of related transactions is on terms that, taken as a whole, are fair and
reasonable and no less favorable to the Borrower or such Subsidiary than it
would obtain in a comparable arm's length transaction with a Person not an
Affiliate; provided that the provisions of this Section 7.06 shall not apply to
the following:
(a) transactions between or among the Borrower and any of its
Subsidiaries or transactions between any Subsidiary and any another Subsidiary;
(b) Restricted Payments permitted by Section 7.03 hereof (other than
clause (e) thereof);
(c) payment of, or other consideration in respect of, compensation
to officers, directors, employees or consultants of the Borrower, or any of its
Subsidiaries and payment, or other consideration in respect of, directors' and
officers' indemnities;
(d) transactions pursuant to any agreement to which the Borrower or
any Subsidiary is a party to on the Effective Date;
(e) transactions with joint ventures for the purchase or sale of
property or other assets and services entered into in the ordinary course of
business and in a manner consistent with past practices;
(f) transactions pursuant to the Merger Agreement; and
(g) transactions pursuant to any agreement to which Wyeth or any of
its Subsidiaries is a party on the Funding Date.
Section 8. Events of Default. If one or more of the following events
(herein called "Events of Default") shall occur and be continuing:
(a) (i) the Borrower shall default in the payment of any principal
of any Loan when due; (ii) the Borrower shall default in the payment of
any interest on any Loan hereunder or in the payment of any fee payable
pursuant to Section 2.05(a) or (b) and such default shall continue for 5
Business Days after notice thereof to the Borrower by the Administrative
Agent or any Lender in accordance with Section 10.02(a); or (iii) the
Borrower shall default in the payment of any other amount payable by it
hereunder or under any other Loan Document and such default shall continue
for 15 Business Days after notice thereof to the Borrower by the
Administrative Agent or any Lender in accordance with Section 10.02(a); or
(b) any representation, warranty or certification made or deemed
made herein or in any other Loan Document by or on behalf of the Borrower
or any other Loan Party, or any certificate furnished or deemed furnished
to the Administrative Agent or any Lender pursuant to the provisions
hereof or of any other Loan Document, shall prove to have not been
accurate or to have been false or misleading as of the time made or
furnished in any material respect and, if remediable, shall have not been
remedied within 30 days; or
(c) the Borrower or any Subsidiary shall default in the performance
of (a) any of its obligations contained in Section 5, 6.01(d)(i), 6.02
(with respect to the Loan Parties) or 7 or (b) any of its other
obligations under this Agreement or any other Loan Document and such
default shall continue unremedied for a period of 30 days after notice
thereof to the Borrower by the Administrative Agent or any Lender; or
(d) the Borrower or any Covered Subsidiary shall admit in writing
its inability to, or be generally unable to, pay its debts as such debts
become due; or
(e) the Borrower or any Subsidiary shall fail to pay any principal
of or premium or interest on any Debt that is outstanding in a principal
or, in the case of Hedging Contracts, net amount the U.S. Dollar
Equivalent of which is at least $200,000,000 in the aggregate (but
excluding Debt outstanding hereunder) among the Borrower and all
Subsidiaries, as the case may be (the "Requisite Amount"), when the same
becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in the
agreement or instrument relating to such Debt; or any such Debt
aggregating the Requisite Amount shall be declared due and payable or any
other event shall occur or condition shall exist under any agreement or
instrument relating to any such Debt aggregating the Requisite Amount and
shall continue after the applicable grace period, if any, specified in
such agreement or instrument, if the effect of such event or condition is
to enable or permit the holder or holders of such Debt or any trustee or
agent on its or their behalf to accelerate the maturity of such Debt; or
(f) any final judgment or Order for the payment of money the U.S.
Dollar Equivalent of which is in excess of $200,000,000 shall be rendered
against the Borrower or any Covered Subsidiary and there shall be any
period of 60 consecutive days during which a stay of enforcement of any
such unsatisfied judgment or order, by reason of bonding, a pending appeal
or otherwise, shall not be in effect; provided that such 60-day stay
period shall be extended for a period not to exceed an additional 120 days
if (i) the Borrower or such Covered Subsidiary is contesting such judgment
or enforcement of such judgment in good faith, unless, with respect only
to judgments or orders rendered outside the United States, such action is
not reasonably required to protect its respective property and assets from
levy or garnishment, and (ii) no property or assets with a fair market
value the U.S. Dollar Equivalent of which is in excess of $100,000,000 of
the Borrower or such Covered Subsidiary have been levied upon or garnished
to satisfy such judgment; or
(g) the Borrower or any ERISA Affiliate shall incur liability that
would reasonably be expected to have a Material Adverse Effect as a result
of one or more of the following: (i) the occurrence of any ERISA Event;
(ii) the partial or complete withdrawal of the Borrower, such Covered
Subsidiary or such ERISA Affiliate from a Multiemployer Plan; or (iii) the
reorganization or termination of a Multiemployer Plan; provided, however,
that no Default or Event of Default under this Section 8(g) shall be
deemed to have occurred if the Borrower, such Covered Subsidiary or such
ERISA Affiliate shall have made arrangements satisfactory to the Required
Lenders to discharge or otherwise satisfy such liability (including the
posting of a bond or other security); or
(h) the Borrower or any Material Subsidiary shall (i) apply for or
consent to the appointment of, or the taking of possession by, a receiver,
custodian, trustee or liquidator of itself or of all or a substantial part
of its property or assets, (ii) make a general assignment for the benefit
of its creditors, (iii) commence a voluntary case under the Bankruptcy
Code, (iv) file a petition seeking to take advantage of any other Law
relating to bankruptcy, insolvency, reorganization, winding up, or
composition or readjustment of debts (in each case, relative to its own
creditors or Debts), (v) fail to controvert in a timely and appropriate
manner, or acquiesce in writing to, any petition filed against it in an
involuntary case under the Bankruptcy Code, or (vi) take any corporate
action for the purpose of effecting any of the foregoing; or
(i) A proceeding or case shall be commenced, without the application
or consent of the Borrower or any Material Subsidiary, in any court of
competent jurisdiction, seeking (i) its liquidation, reorganization,
dissolution or winding up, or the composition or readjustment of its
Debts, (ii) the appointment of a trustee, receiver, custodian, liquidator
or the like of the Borrower or such Material Subsidiary or of all or any
substantial part of its property and assets, or (iii) similar relief in
respect of the Borrower or such Material Subsidiary under any Law relating
to bankruptcy, insolvency, reorganization, winding up, or composition or
adjustment of debts, and such proceeding or case shall continue
undismissed, or an Order, judgment or decree approving or ordering any of
the foregoing shall be entered and continue unstayed and in effect, for a
period of 60 days; or an Order for relief against the Borrower or such
Material Subsidiary shall be entered in an involuntary case under the
Bankruptcy Code; or
(j) (i) any material provision of this Agreement, the Guaranty
Agreement or any Note after execution and delivery thereof shall for any
reason fail or cease to be valid and binding on, or enforceable against,
any Loan Party party thereto for 5 Business Days or (ii) any Loan Party
shall state in writing that any material provision of this Agreement, the
Guaranty Agreement or any Note after execution and delivery thereof is not
valid and binding on, or enforceable against, any Loan Party party
thereto; or
(k) a Change of Control shall occur;
THEREUPON: (i) in the case of an Event of Default that has occurred
and is continuing other than one referred to in clause (h) or (i) of this
Section 8, the Administrative Agent (A) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, cancel the
Commitments and (B) shall at the request, or may with the consent, of the
Required Lenders, by notice to the Borrower, declare the principal amount of,
and the accrued interest on, the Loans then outstanding and all other amounts
payable by the Loan Parties hereunder and under the other Loan Documents to be
forthwith due and payable, whereupon such amounts shall be immediately due and
payable without presentment, demand, protest or other formalities of any kind,
all of which are hereby expressly waived by the Loan Parties; and (ii) in the
case of the occurrence of an Event of Default referred to in clause (h) or (i)
of this Section 8 with respect to the Borrower or any Material Subsidiary, the
Commitments shall be automatically cancelled and the principal amount of, and
the accrued interest on, the Loans then outstanding and all other amounts
payable by the Loan Parties hereunder and under the other Loan Documents shall
become automatically due and payable without presentment, demand, protest or
other formalities of any kind, all of which are hereby expressly waived by the
Loan Parties.
Section 9. The Administrative Agent.
9.01 Authorization and Action. Each Lender hereby appoints and
authorizes the Administrative Agent to take such action as administrative agent
on its behalf and to exercise such powers under this Agreement and the other
Loan Documents as are delegated to the Administrative Agent by the terms hereof,
together with such powers as are reasonably incidental thereto. As to any
matters not expressly provided for by this Agreement and the other Loan
Documents (including, without limitation, enforcement or collection of the
Notes), the Administrative Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Required Lenders, and such instructions shall be
binding upon all Lenders and all holders of Notes; provided, however, that the
Administrative Agent shall not be required to take any action that exposes the
Administrative Agent to personal liability or that is contrary to this Agreement
or applicable law. The Administrative Agent agrees to give to each Lender prompt
notice of each notice given to it by the Borrower pursuant to the terms of this
Agreement.
9.02 Administrative Agent's Reliance, Etc. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with this Agreement or any other Loan Document, except for its
or their own gross negligence or willful misconduct. Without limitation of the
generality of the foregoing, the Administrative Agent: (i) may treat the payee
of any Note as the holder thereof until the Administrative Agent receives and
accepts an Assignment and Acceptance entered into by the Lender that is the
payee of such Note, as assignor, and an Eligible Assignee, as assignee, as
provided in Section 10.06; (ii) may consult with legal counsel (including
counsel for the Borrower), independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (iii) makes no warranty or representation to any Lender
and shall not be responsible to any Lender for any statements, warranties or
representations (whether written or oral) made in or in connection with this
Agreement or any other Loan Document; (iv) shall not have any duty to ascertain
or to inquire as to the performance or observance of any of the terms, covenants
or conditions of this Agreement or any other Loan Document on the part of the
Borrower or to inspect the property or assets (including the books and records)
of the Borrower or any of its Subsidiaries; (v) shall not be responsible to any
Lender for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; and (vi) shall incur no liability under or in respect
of this Agreement or any other Loan Document by acting upon any notice, consent,
certificate or other instrument or writing (which may be by facsimile
transmission, telex, telegram or electronic messaging system) believed by it to
be genuine and signed or sent by the proper party or parties.
9.03 JPMorgan and Affiliates. With respect to its Commitment, the
Loans made by it and the Note issued to it, JPMorgan shall have the same rights
and powers under this Agreement as any other Lender and may exercise the same as
though it were not the Administrative Agent; and the term "Lender" or "Lenders"
shall, unless otherwise expressly indicated, include JPMorgan in its individual
capacity. JPMorgan and its Affiliates (including, without limitation, their
respective directors, officers, agents or employees) may accept deposits from,
lend money to, act as trustee under indentures of, and generally engage in any
kind of business with, the Borrower, any Subsidiary, the Acquired Business and
any Person who may do business with or own securities of the Borrower, any
Subsidiary or the Acquired Business, all as if JPMorgan were not the
Administrative Agent and without any duty to account therefor to the Lenders.
9.04 Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other
Lender and based on the financial statements referred to in Section 3.01(b) and
such other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement.
9.05 Indemnification. The Lenders agree to indemnify the
Administrative Agent (to the extent not reimbursed by the Borrower), ratably
according to the respective amounts of their Commitments, from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against the
Administrative Agent in any way relating to or arising out of this Agreement or
any action taken or omitted by the Administrative Agent under this Agreement,
provided that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Administrative Agent's gross
negligence or willful misconduct. Without limitation of the foregoing, each
Lender agrees to reimburse the Administrative Agent promptly upon demand for its
ratable share of any out of pocket expenses (including counsel fees) incurred by
the Administrative Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement and the other Loan
Documents, to the extent that the Administrative Agent is not reimbursed for
such expenses by the Borrower. The parties agree than no party identified on the
cover page as a Joint Lead Arranger or as Joint Syndication Agent shall, in such
capacity, have any liability or responsibility hereunder or in connection
herewith.
9.06 Successor Administrative Agent. The Administrative Agent may
resign at any time by giving ten days' advance written notice thereof to the
Lenders and the Borrower and may be removed at any time with or without cause by
the Required Lenders and, if no Default shall have occurred and be continuing,
the Borrower (acting together with the Required Lenders). Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Administrative Agent, subject to, if no Default shall have occurred
and be continuing, the approval of the Borrower (which approval shall not be
unreasonably withheld). If no successor Administrative Agent shall have been so
appointed by the Required Lenders, and shall have accepted such appointment,
within 30 days after the retiring Administrative Agent's giving of notice of
resignation or the Required Lenders' removal of the retiring Administrative
Agent, then the retiring Administrative Agent may, on behalf of the Lenders,
appoint a successor Administrative Agent, which shall be a commercial bank
organized or licensed under the laws of the United States of America or of any
State thereof and having a combined capital and surplus of at least
$500,000,000, subject to, if no Default shall have occurred and be continuing,
the approval of the Borrower (which approval shall not be unreasonably
withheld). Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
discretion, privileges and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Administrative Agent's
resignation or removal hereunder as Administrative Agent, the provisions of this
Section 9 shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent under this Agreement.
Section 10. Miscellaneous.
10.01 No Waiver; Remedies. No failure to exercise or delay in
exercising any right, power or privilege in respect of this Agreement or any
other Loan Document will be presumed to operate as a waiver, and no single or
partial exercise of any right, power or privilege in respect of this Agreement
or any other Loan Document will be presumed to preclude any subsequent or
further exercise, of that right, power or privilege or the exercise of any other
right, power or privilege. The making of the Loans on the Funding Date shall not
be presumed to operate as a waiver of any Default resulting from inaccurate
representations and warranties made on the Funding Date unless expressly so
waived by the Administrative Agent acting on behalf of the Required Lenders or
all Lenders as the case may require. The remedies provided herein are cumulative
and not exclusive of any remedies provided by Law.
10.02 Notices, Etc.
(a) Notices Generally. All notices and other communications provided
for hereunder shall be in writing (including by facsimile transmission) and
mailed, transmitted or delivered, if to the Borrower, at its address at Pfizer
Inc., 235 East 42nd Street, New York, New York 10017-5755, Attention: Treasurer,
Treasury Planning; if to any Lender, at its address for notices recorded by the
Administrative Agent in the Register; and if to the Administrative Agent, at its
address at JPMorgan, 1111 Fannin Street, Houston, TX 77002; or, as to the
Borrower or the Administrative Agent, at such other address as shall be
designated by such party in a written notice to the other parties and, as to
each other party, at such other address as shall be designated by such party in
a written notice to the Borrower and the Administrative Agent. Without prejudice
to clause (b)(iv) below, each such notice or communication will be deemed
effective: (i) if in writing and delivered in person or by courier, on the date
it is delivered; (ii) if sent by telex, on the date the recipient's answerback
is received; (iii) if sent by facsimile transmission or electronic mail, on the
date that transmission is received by a responsible employee of the recipient in
legible form (it being agreed that the burden of proving receipt will be on the
sender and will not be met by a transmission report generated by the sender's
facsimile machine); or (iv) if sent by certified or registered mail (airmail, if
overseas) or the equivalent (return receipt requested), on the date that mail is
delivered or its delivery is attempted, except that notices and communications
to the Administrative Agent pursuant to Section 2, 3 or 9 shall not be effective
until received by the Administrative Agent. Delivery by telecopier or electronic
mail of an executed counterpart of any amendment or waiver of any provision of
this Agreement or any of the other Loan Documents or of any Exhibit hereto to be
executed and delivered hereunder shall be effective as delivery of a manually
executed counterpart thereof.
(b) Electronic Communications.
(i) Delivery of Communications by the Borrower. The Borrower
agrees that, unless otherwise requested by the Administrative Agent, it will
provide to the Administrative Agent all information, documents and other
materials that it is obligated to furnish to the Administrative Agent pursuant
to this Agreement and the other Loan Documents, including, without limitation,
all notices, requests, financial statements, financial and other reports,
certificates and other information materials, but excluding any such
communication that (A) relates to a request for a new, or a Conversion of an
existing, Borrowing (including any election of an interest rate or Interest
Period relating thereto), (B) relates to the payment of any principal or other
amount due under this Agreement prior to the scheduled date therefor, (C)
provides notice of any Default or Event of Default under this Agreement, (D) is
required to be delivered to satisfy any condition precedent in Section 3
relating to the effectiveness of this Agreement and/or any Borrowing or (E)
initiates or responds to legal process (all such non excluded information being
referred to herein collectively as the "Communications"), by transmitting the
Communications in an electronic/soft medium (provided such Communications
contain any required signatures) in a format acceptable to the Administrative
Agent to Maria.A.Saez@jpmchase.com or such other e-mail address designated by
the Administrative Agent from time to time.
(ii) Use of Web Platforms. Each party hereto agrees that the
Administrative Agent may make the Communications available to the Lenders by
posting the Communications on IntraLinks or another similar website, if any, to
which each Lender and the Administrative Agent have access (whether a
commercial, third party website or whether sponsored by the Administrative
Agent) (the "Platform"). Nothing in this Section 10.02 shall prejudice the right
of the Administrative Agent to make the Communications available to the Lenders
in any other manner specified in this Agreement.
(iii) E-mail Notification to Lenders. Each Lender agrees
(unless separate arrangements have been made with the Administrative Agent) that
e-mail notice to it (at the address provided pursuant to the next sentence and
deemed delivered as provided in the next paragraph) specifying that
Communications have been posted to the Platform shall constitute effective
delivery of such Communications to such Lender for purposes of this Agreement.
Each Lender agrees (i) to notify the Administrative Agent in writing (including
by electronic communication) from time to time to ensure that the Administrative
Agent has on record an effective e mail address for such Lender to which the
foregoing notice may be sent by electronic transmission, and (ii) that the
foregoing notice may be sent to such e mail address.
(iv) Presumption as to Delivery of E-Mail. Each party agrees
that any electronic communication referred to in this Section 10.02 shall be
deemed delivered upon the posting of a record of such communication as
"received" in the e mail system of the recipient; provided that if such
communication is not so received during normal business hours, such
communication shall be deemed delivered at the opening of business on the next
Business Day.
(v) Waiver of Responsibility. Each party acknowledges that (A)
the distribution of material through an electronic medium is not necessarily
secure and that there are confidentiality and other risks associated with such
distribution, (B) the Communications and the Platform are provided "as is" and
"as available," (C) none of the Administrative Agent, its Affiliates nor any of
their respective officers, directors, employees, members, trustees, agents,
sub-agents, advisors or representatives (collectively, the "JPM Parties")
warrants the adequacy, accuracy or completeness of the Communications or the
Platform, and each JPM Party expressly disclaims liability for errors or
omissions in any Communications or the Platform, and (D) no warranty of any
kind, express, implied or statutory, including, without limitation, any warranty
of merchantability, fitness for a particular purpose, non infringement of third
party rights or freedom from viruses or other code defects, is made by any JPM
Party in connection with any Communications or the Platform.
10.03 Amendments, Etc. No amendment or waiver of any provision of
this Agreement (except Section 3.02(j)) or the other Loan Documents (except the
Commitment Documents), nor consent to any departure by the Borrower therefrom,
shall in any event be effective unless the same shall be in writing and signed
by the Required Lenders, and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given; provided
that no amendment, waiver or consent shall, unless in writing and signed by all
the Lenders affected thereby, do any of the following: (a) waive or amend any of
the conditions specified in Section 3, (b) increase the Commitments of any
Lender or subject any Lender to any additional obligations, (c) reduce the
principal of, or interest on, the Loans or any fees or other amounts payable
hereunder, (d) amend Section 2.11(a) or the definitions of Equity Issuance, Debt
Incurrence, Specified Asset Sale, Property Loss Event or Net Cash Proceeds, (e)
release all or substantially all of the Guarantors from the Guaranty Agreement,
except as provided in Section 10.15, (f) alter the manner in which Commitment
reductions or payments or prepayments of principal, interest or other amounts
hereunder shall be applied as among the Lenders, (g) postpone any date fixed for
any payment of principal of, or interest on, the Loans or any fees or other
amounts payable hereunder, (h) change the percentage of the Commitments or of
the aggregate unpaid principal amount of the Loans, or the number of Lenders,
that shall be required for the Lenders or any of them to take any action
hereunder, (i) amend this Section 10.03 or (j) extend the commitment period of
any Lender or amend the definition of "Commitment Termination Date"; and
provided further that no amendment, waiver or consent shall, unless in writing
and signed by the Administrative Agent in addition to the Lenders required above
to take such action, affect the rights or duties of the Administrative Agent
under this Agreement or any other Loan Document; and provided further, that the
Administrative Agent may, with the written consent of the Borrower, amend,
modify or supplement this Agreement to cure any ambiguity, omission, defect or
inconsistency, so long as such amendment, modification or supplement does not
adversely affect the rights of any Lender. No amendment or waiver of Section
3.02(j), nor consent to any departure by the Borrower therefrom, shall in any
event be effective unless the same shall be in writing and signed by the Joint
Lead Arrangers, and notwithstanding any terms herein to the contrary no such
waiver or consent shall require the consent or approval of the other Lenders.
Notwithstanding the foregoing, the Joint Lead Arrangers may, in consultation
with the Borrower, amend this Agreement and the other Loan Documents (other than
the Commitment Documents) to the extent permitted pursuant to the provisions of
the Commitment Documents without consent of the Borrower or any Lender (and to
the extent requested by the Joint Lead Arrangers, the Borrower and each Lender
agree to execute all such amendments and any other documents reasonably
requested in connection therewith); provided that no such amendment shall
materially and adversely affect any Lender, unless consented to in writing and
signed by all such Lenders affected thereby.
10.04 Costs and Expenses; Indemnity. (a) The Borrower agrees to pay,
promptly following demand thereof, all reasonable costs and expenses of the
Joint Lead Arrangers in connection with the syndication of the credit facility
provided for herein and the preparation, execution, delivery, administration,
modification and amendment of this Agreement, the other Loan Documents and the
other documents to be delivered hereunder and thereunder, including, without
limitation, the reasonable fees and expenses of counsel for the Administrative
Agent with respect thereto and with respect to advising the Administrative Agent
as to its rights and responsibilities under this Agreement with respect to
issues arising after the date hereof and that relate specifically to this
Agreement. The Borrower further agrees to periodically pay, promptly following
demand thereof, all reasonable costs and expenses of the Administrative Agent
and the Lenders, if any (including, without limitation, reasonable counsel fees
and expenses), in connection with the enforcement (whether through negotiations,
legal proceedings or otherwise) of this Agreement, the other Loan Documents and
the other documents to be delivered hereunder, including, without limitation,
reasonable fees and expenses of counsel for the Administrative Agent and each
Lender in connection with the enforcement of rights under this Section 10.04(a).
(b) If any payment or prepayment of principal of, or Conversion of,
any Eurodollar Loan is made by the Borrower to or for the account of a Lender
other than on the last day of the Interest Period for such Loan, as a result of
(i) a payment or Conversion pursuant to Section 2.10 or 2.15, (ii) a payment by
an Eligible Assignee to a Lender other than on the last day of the Interest
Period for such Loan upon an assignment of rights and obligations under this
Agreement pursuant to Section 10.06 as a result of a demand by the Borrower
pursuant to Sections 10.06(a) and (c), (iii) acceleration of the maturity of the
Loans pursuant to Section 8 or (iv) any other reason, or if the Borrower shall
fail to effect the Borrowing of the Loans (other than a Base Rate Loan) on the
date specified for such Borrowing in the related Notice of Borrowing (including
by reason of the failure of any applicable condition set forth in Section 3 to
be satisfied), then the Borrower shall, within 30 days following demand by such
Lender (with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender any amounts required to
compensate such Lender for any additional losses, costs or expenses that it may
reasonably incur as a result of such payment, prepayment or Conversion,
including, without limitation, any loss (including loss of anticipated margin),
cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by any Lender to fund or maintain such Loan.
Determinations by a Lender for purposes of this Section 10.04(b) of any loss,
cost or expense shall be conclusive and binding for all purposes, provided that
such determinations are made on a reasonable basis. Any Lender requesting
compensation under this Section 10.04(b) will furnish the Borrower with a
certificate setting forth the basis and amount of such request for compensation.
(c) The Borrower shall indemnify the Administrative Agent, each
Joint Lead Arranger, and each Lender, and each Related Party of any of the
foregoing Persons (each such Person being called an "Indemnitee") on demand
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the reasonable fees,
charges and disbursements of any counsel for any Indemnitee, incurred by or
asserted against any Indemnitee arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement or any agreement or
instrument contemplated hereby, the performance by the parties hereto of their
respective obligations hereunder or the consummation of the transactions
contemplated hereby including the Acquisition, (ii) any Loan or the use of the
proceeds therefrom, or (iii) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing (including any such
action proceeding or investigation brought by or against any person, including
stockholders, partners or other equity holders of the Borrower or the Acquired
Business), whether based on contract, tort or any other theory and in any
capacity regardless of whether any Indemnitee is a party thereto, in each case,
whether or not such investigation, litigation, claim or proceeding is brought by
the Borrower, the Acquired Business, any equity holders or creditors of the
Borrower or the Acquired Business or an Indemnitee and whether or not any such
Indemnitee is otherwise a party thereto; provided that such indemnity shall not,
as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment of a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
such Indemnitee in the performance of its obligations under the Loan Documents;
provided, however, that in no event will such Indemnitee or such other parties
have any liability for any indirect, consequential, special or punitive damages
in connection with or as a result of such Indemnitee's or such other parties'
activities related to the Loan Documents and the Borrower hereby waives,
releases and agrees not to sue upon such claim or any such damages whether or
not accrued or not known or suspected to exist in its favor. If for any reason
the foregoing indemnification is unavailable to any Indemnitee or insufficient
to hold it harmless, then the Borrower will contribute to the amount paid or
payable by such Indemnitee, as the case may be, as a result of such loss, claim,
damage, liability and related expenses in such proportion as is appropriate to
reflect the relative economic interests of (i) the Borrower and the Acquired
Business and their respective Affiliates, stockholders, partners or other equity
holders on the one hand and (ii) such Indemnitee on the other hand in the
matters contemplated by the Loan Documents (including the Acquisition) as well
as the relative fault of (i) the Borrower and the Acquired Business and their
respective Affiliates, stockholders, partners or other equity holders and (ii)
such Indemnitee with respect to such loss, claim, damage or liability and any
other relevant equitable considerations.
(d) Without prejudice to the survival of any other agreement of the
Borrower or the Lenders hereunder, the agreements and obligations of the
Borrower contained in Sections 2.14, 2.16 and this Section, and the agreements
and obligations of each Lender under Section 10.11, shall survive the payment in
full of principal, interest and all other amounts payable hereunder and under
the Notes.
10.05 Binding Effect. This Agreement shall become effective (other
than Sections 2.01, 2.04 and 2.05, which shall only become effective upon
satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by the Borrower and the Administrative Agent and when
the Administrative Agent shall have been notified by each Initial Lender that
such Initial Lender has executed it and thereafter shall be binding upon and
inure to the benefit of the Borrower, the Guarantors, the Administrative Agent
and each Lender and their respective successors and assigns, except that the
Borrower shall not have the right to assign its rights hereunder or any interest
herein without the prior written consent of all Lenders (except Defaulting
Lenders).
10.06 Assignments and Participations. (a) Each Lender may assign to
one or more Lenders or Affiliates of Lenders all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment, the Loans owing to it and any Notes held by it) and
may, with the consent of the Borrower (unless an Event of Default shall have
occurred and be continuing, in which case the consent of the Borrower shall not
be required) and the Administrative Agent, in each case, which consent shall not
be unreasonably withheld or delayed, and, if demanded by the Borrower (pursuant
to clause (c) below), upon at least five Business Days' notice to such Lender
and the Administrative Agent, shall, assign to one or more Persons all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Loans owing to it and any
Notes held by it); provided that (i) each such assignment shall be of a
constant, and not a varying, percentage of all rights and obligations under this
Agreement, (ii) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender or in the case of an
assignment of all of a Lender's rights and obligations under this Agreement, the
amount of the Commitment or Loan, as applicable, of the assigning Lender being
assigned pursuant to each such assignment (determined as of the date of the
Assignment and Acceptance with respect to such assignment) shall in no event be
less than $10,000,000 or any whole multiple of $1,000,000 in excess thereof,
(iii) each such assignment shall be to an Eligible Assignee, (iv) each such
assignment made as a result of a demand by the Borrower shall comply with clause
(c) below, (v) the parties to each such assignment (which shall not include the
Borrower) shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance, together
with any Note subject to such assignment and, if the Eligible Assignee was not a
Lender or an Affiliate of a Lender immediately prior to such assignment, a
processing and recordation fee of $3,500 and (vi) the assignee, if not already a
Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire; provided that the Borrower shall pay such fee if such assignment
occurs as a result of a demand by the Borrower pursuant to Section 10.06(c)(i)
or (iii); provided further that neither the Borrower's nor the Administrative
Agent's consent shall be required (x) in the case of an assignment of the type
described in subsection (h) below, (y) in the case of an assignment of a
Commitment by a Lender to an Affiliate of such Lender if the long term deposit
rating of such Affiliate is no less than the long term deposit rating of such
Lender at the time of the assignment, subject to reassignment by such Affiliate
to such Lender if at any time it ceases to be an Affiliate of such Lender and
prior notification of any such assignment to the Borrower, or (z) in the case of
an assignment by a Lender to an Approved Fund subject to prior notification of
such an assignment to the Borrower and the Administrative Agent. Notwithstanding
the foregoing, until the earlier of (1) the date that the syndication of the
Commitments and Loans is terminated (as determined by the Joint Lead Arrangers)
and (2) the date that is 90 days after the Funding Date, no assignments or other
transfers will be permitted (other than by the Joint Lead Arrangers or their
Affiliates) without the prior written consent of the Joint Lead Arrangers
(provided that during such period the consent of the Borrower shall not be
required), except that any Lender may assign its Loans or Commitments to any
Affiliate of such Lender with written consent of the Administrative Agent. Upon
such execution, delivery, acceptance and recording, from and after the effective
date specified in each Assignment and Acceptance, (x) the assignee thereunder
shall be a party hereto and, to the extent that rights and obligations hereunder
have been assigned to it pursuant to such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder and (y) the Lender assignor
thereunder shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights
and be released from its obligations under this Agreement (and, in the case of
an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto) but shall continue to be entitled to the
benefits of Sections 2.14, 2.16 and 10.04 with respect to facts and
circumstances occurring prior to the effective date of such assignment.
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or any Guarantor or the performance or observance by the Borrower or
any Guarantor of any of its obligations under this Agreement or any other
instrument or document furnished pursuant hereto; (iii) such assignee confirms
that it has received a copy of this Agreement, together with copies of the
financial statements referred to in Section 4.04 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Administrative Agent, such assigning
Lender or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) such assignee confirms
that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement as are delegated to the
Administrative Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations that
by the terms of this Agreement are required to be performed by it as a Lender.
Anything herein to the contrary notwithstanding, the Borrower shall
not be obligated to pay to any assignee any amounts under Sections 2.14 or 2.16
in excess of the amount the Borrower would have been obligated to pay thereunder
to the assigning Lender in the absence of such assignment, unless such
assignment is made at a time when the circumstances giving rise to such greater
payments did not exist.
(c) Following (i) a demand by any Lender pursuant to, or the
incurrence by the Borrower of an obligation to make a payment pursuant to,
Section 2.14, 2.15 or 2.16, (ii) any Lender becoming a Defaulting Lender or
(iii) in connection with any proposed amendment, modification, waiver or
termination requiring the consent of all the Lenders or all affected Lenders,
for which the consent of the Required Lenders has been obtained, the failure of
any Lender whose consent is required but not obtained to vote in favor of such
amendment, modification, waiver or termination, then the Borrower may, at its
sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in Section 10.06(a)),
all its interests, rights and obligations under this Agreement to an assignee
that shall assume such obligations (which assignee may be another Lender, if a
Lender accepts such assignment); provided that (w) the Borrower shall have
received the prior written consent of the Administrative Agent, which consent
shall not unreasonably be withheld, (x) such Lender shall have received payment
of an amount equal to the outstanding principal of its Loans, accrued interest
thereon, accrued fees (other than fees accrued pursuant to Section 2.05(a) in
the event such Lender is a Defaulting Lender) and all other amounts payable to
it hereunder, from the assignee (to the extent of such outstanding principal and
accrued interest and fees) or the Borrower (in the case of all other amounts),
(y) in the case of any such assignment resulting from a claim or obligations
under Sections 2.14, 2.15 or 2.16, such assignment will result in a reduction in
such compensation or payments and (z) no Default shall have occurred and be
continuing. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require such assignment
and delegation cease to apply.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Notes subject to such assignment, the Administrative Agent
shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower. Within five Business Days
after its receipt of such notice, the Borrower at its own expense, shall execute
and deliver to the Administrative Agent in exchange for the surrendered Note
(which shall be marked "cancelled" by the assigning Lender) a new Note to the
order of such Eligible Assignee in an amount equal to the Commitment or Loan, as
applicable, assumed by it pursuant to such Assignment and Acceptance and, if the
assigning Lender has retained a Commitment or Loan, as applicable, hereunder, a
new Note to the order of the assigning Lender in an amount equal to the
Commitment or Loan, as applicable, retained by it hereunder. Such new Notes
shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Notes, shall be dated the effective date of such
Assignment and Acceptance and shall otherwise be in substantially the form of
Exhibit A hereto.
(e) The Administrative Agent, acting solely for this purpose as the
agent of the Borrower, shall maintain at its address referred to in Section
10.02 a copy of each Assignment and Acceptance delivered to and accepted by it
and a register for the recordation of the names and addresses of the Lenders and
the Commitment of, and principal amount and interest of the Loans owing to, each
Lender from time to time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(f) Each Lender may sell participations to one or more banks or
other entities (other than the Borrower or any of its Affiliates) in or to all
or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment, the Loans owing to it
and the Notes held by it); provided that (i) such Lender's obligations under
this Agreement (including, without limitation, its Commitment to the Borrower
hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender shall remain the holder of any such Note for all purposes of
this Agreement, (iv) the Borrower, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement and
(v) no participant under any such participation shall have any right to approve
any amendment or waiver of any provision of this Agreement or any Note, or any
consent to any departure by the Borrower therefrom, except to the extent that
such amendment, waiver or consent would reduce the principal of, or interest on,
the Notes or any fees or other amounts payable hereunder, in each case to the
extent subject to such participation, or postpone any date fixed for any payment
of principal of, or interest on, the Notes or any fees or other amounts payable
hereunder, in each case to the extent subject to such participation.
Notwithstanding the foregoing, until the earlier of (1) the date that the
syndication of the Commitments and Loans is terminated (as determined by the
Joint Lead Arrangers) and (2) the date that is 90 days after the Funding Date,
no participations or other transfers will be permitted (other than by the Joint
Lead Arrangers) without the prior written consent of the Joint Lead Arrangers,
except that any Lender may sell participations in or to its Loans or Commitments
to any Affiliate of such Lender with written consent of the Administrative
Agent.
(g) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
10.06, disclose to the assignee or participant or proposed assignee or
participant the existence of (and facts and information related to) an Event of
Default or any publicly available information concerning the Borrower, any
Subsidiary or the Acquired Business in the possession of such Lender from time
to time; provided that, prior to any such disclosure of the existence of (and
facts and information related to) an Event of Default, the assignee or
participant or proposed assignee or participant shall agree to preserve the
confidentiality of the existence of (and facts and information related to) such
Event of Default, which agreement shall be on the same terms as those set forth
in Section 10.11. The disclosure permitted by this Section 10.06(g) shall be in
addition to any disclosure permitted by Section 10.11.
(h) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time create a security interest in all or any portion of
its rights under this Agreement (including, without limitation, the Loans owing
to it and the Notes held by it) in favor of any Federal Reserve Bank or other
Governmental Authority in accordance with any regulation of the Federal Reserve
or other Governmental Authority. No such assignment shall release any Lender
from its obligations hereunder.
10.07 Governing Law. This Agreement and the other Loan Documents
shall be governed by, and construed in accordance with, the law of the State of
New York without regard to conflict of laws principles thereof.
10.08 Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Agreement by
telecopier or electronic mail shall be effective as delivery of a manually
executed counterpart of this Agreement.
10.09 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assignees.
10.10 Captions. Captions and section headings appearing herein are
included solely for convenience of reference and are not intended to affect the
interpretation of any provision of this Agreement.
10.11 Confidentiality. The Administrative Agent, each Joint Lead
Arranger and each Lender shall hold all non-public information regarding the
Borrower and its Subsidiaries and their business identified as such by the
Borrower and obtained by the Administrative Agent or such Joint Lead Arranger or
Lender, as the case may be, pursuant to the requirements hereof in accordance
with such Person's customary procedures for handling confidential information of
such nature, provided that nothing herein contained shall be construed to
prevent the Administrative Agent or such Lender or Joint Lead Arranger from
disclosing such information (i) to any Affiliate of the Administrative Agent or
such Lender or Joint Lead Arranger or any officer, director, employee or agent
or any attorney or accountant for the Administrative Agent or such Lender or
Joint Lead Arranger that agrees to be similarly bound, (ii) to any bona fide or
potential assignee, transferee or participant in connection with the
contemplated assignment, transfer or participation of any Commitments or Loans
or any participations therein or by any direct or indirect contractual
counterparties (or the professional advisors thereto) to any swap or derivative
transaction relating to the Borrower and its obligations that agrees to be bound
by the provisions of this Section 10.11, (iii) pursuant to any subpoena or upon
the Order of any court or administrative agency or upon the request or demand
of, or in connection with any investigation, examination or audit by, any
governmental agency or authority, whether or not such request or demand shall
have the force of Law, upon notice to the Administrative Agent and the Lenders
of such subpoena, Order, request or demand (unless such notice is not legally
permissible), provided that, except with respect to any audit or examination
conducted in the ordinary course by bank accountants or by any governmental bank
regulatory authority exercising examination or supervisory authority, the
Administrative Agent or such Lender or Joint Lead Arranger (as the case may be)
shall have used its best efforts to provide prompt notice to the Borrower
(unless such notice is not legally permissible) of such subpoena, Order, request
or demand or such investigation, examination or audit so as to enable the
Borrower to seek a protective Order or other appropriate remedy and thereafter
discloses only the minimum information required to be disclosed in order to
comply with such subpoena, order, request or demand of, or in connection with
such investigation, examination or audit, (iv) that has been obtained from any
Person that is not a party to this Agreement or an Affiliate of any such party
and who was not similarly bound so far as such Person was aware, (v) to any
rating agency when required by it, provided that, prior to any disclosure, such
rating agency shall undertake in writing to preserve the confidentiality of any
confidential information relating to Borrower received by it from the
Administrative Agent, any Joint Lead Arranger or any Lender, and (vi) in
connection with the exercise of any remedy hereunder. Said authorization to
disclose is subject to any federal or state securities laws that reasonably
require the parties to keep some or all aspects of the transaction contemplated
herein confidential. Furthermore, nothing in this Section 10.11 shall be
construed as a waiver of any applicable attorney client privilege or any
privilege arising under section 7525 of the Internal Revenue Code of 1986, as
amended, or any duty of confidentiality on the part of any attorney or
accountant under any code of professional conduct that, in each case, relates to
communications with respect to the transactions contemplated herein or the
execution thereof.
10.12 Jurisdiction, Etc. (a) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property and assets,
to the exclusive jurisdiction of any New York State court or Federal court of
the United States of America, in each case sitting in New York County, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or any of the other Loan Documents, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such New York State
court or, to the extent permitted by Law, in such Federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by Law.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any action
or proceeding arising out of or relating to this Agreement or any of the other
Loan Documents in any New York State or Federal court. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by Law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
10.13 Waiver of Jury Trial. EACH OF THE BORROWER, THE GUARANTORS,
THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OF THE OTHER LOAN DOCUMENTS OR THE ACTIONS OF THE ADMINISTRATIVE AGENT OR ANY
LENDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
10.14 USA Patriot Act. Each Lender hereby notifies the Borrower that
pursuant to the requirements of the Patriot Act, it is required to obtain,
verify and record information that identifies the Borrower, which information
includes the names and addresses of the Borrower and other information that will
allow such Lender to identify the Borrower in accordance with said Act.
10.15 Release of Guarantors. (a) Notwithstanding anything to the
contrary contained herein or in any other Loan Document, upon request of the
Borrower in connection with any Disposition of a Subsidiary that is a Guarantor
as permitted by the Loan Documents and immediately following such Disposition
such Subsidiary will no longer be a Subsidiary of the Borrower, the
Administrative Agent shall (without notice to, or vote or consent of, any
Lender) take such actions as shall be required to release any Guarantee under
any Loan Document of any Guarantor (including releasing such Guarantor from the
Guaranty Agreement) being disposed of in such Disposition, to the extent
necessary to permit consummation of such Disposition in accordance with the Loan
Documents, provided that no Default would result from such release.
(b) Notwithstanding anything to the contrary contained herein or any
other Loan Document, when the principal and interest with respect to all Loans
and all other monetary payment Obligations which are then due and payable have
been paid in full and all Commitments have terminated or expired, upon request
of the Borrower, the Administrative Agent shall (without notice to, or vote or
consent of, any Lender) take such actions as shall be required to release all
Guarantees under any Loan Document of any Guarantor. Any such release of
guarantee obligations shall be deemed subject to the provision that such
Guarantees shall be reinstated if within 90 days after such release (or such
longer period under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar Law now or hereafter in effect during which any payment
in respect of the Obligations guaranteed thereby can be annulled, avoided, set
aside, rescinded, invalidated, declared to be fraudulent or preferential or
otherwise required to be refunded or repaid) any portion of any payment in
respect of the Obligations guaranteed thereby shall be rescinded or must
otherwise be restored or returned upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of any Loan Party, or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, any Loan Party or any substantial part of its property or assets,
or otherwise, all as though such payment had not been made.
10.16 No Fiduciary Duty. The Administrative Agent, each Joint Lead
Arranger, each Arranger referred to on the cover page of this Agreement, each
Lender and their Affiliates (collectively, solely for purposes of this
paragraph, the "Lenders"), may have economic interests that conflict with those
of Borrower. Borrower agrees that nothing in the Loan Documents or otherwise
will be deemed to create an advisory, fiduciary or agency relationship or
fiduciary or other implied duty between the Lenders and Borrower, its
stockholders or its affiliates. The Borrower acknowledges and agrees that (i)
the transactions contemplated by the Loan Documents are arm's-length commercial
transactions between the Lenders, on the one hand, and Borrower, on the other,
(ii) in connection therewith and with the process leading to such transaction
each of the Lenders is acting solely as a principal and not the agent or
fiduciary of Borrower, its management, stockholders, creditors or any other
person, (iii) no Lender has assumed an advisory or fiduciary responsibility in
favor of Borrower with respect to the transactions contemplated hereby or the
process leading thereto (irrespective of whether any Lender or any of its
affiliates has advised or is currently advising Borrower on other matters) or
any other obligation to Borrower except the obligations expressly set forth in
the Loan Documents and (iv) Borrower has consulted its own legal and financial
advisors to the extent it deemed appropriate. Borrower further acknowledges and
agrees that it is responsible for making its own independent judgment with
respect to such transactions and the process leading thereto. Borrower agrees
that it will not claim that any Lender has rendered advisory services of any
nature or respect, or owes a fiduciary or similar duty to Borrower, in
connection with such transaction or the process leading thereto.
10.17 Right of Set-off. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified in Section 8 by the Required Lenders to
authorize the Administrative Agent to declare the Loans due and payable pursuant
to the provisions of Section 8 and notice to the Borrower as required under
Section 8, each Lender and each Affiliate of a Lender is hereby authorized at
any time and from time to time, to the fullest extent permitted by law, to set
off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other Debt at any time owing by such
Lender or its Affiliates to or for the credit or the account of the Borrower or
any Guarantor against any and all of the Obligations now or hereafter existing
whether or not such Lender shall have made any demand under this Agreement or
any other Loan Document and even though such Obligations may be unmatured. Each
Lender agrees promptly to notify the Borrower after any such set-off and
application made by such Lender or its Affiliates; provided, however, that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender under this Section 10.17 are in addition
to the other rights and remedies (including other rights of set-off) that such
Lender may have.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
PFIZER INC.
By /s/ Richard A. Passov
------------------------------------------
Name: Richard A. Passov
Title: Senior Vice President and Treasurer
JPMORGAN CHASE BANK, N.A.
as Administrative Agent
By /s/ Barbara R. Marks
------------------------------------------
Name: Barbara R. Marks
Title: Executive Director
LENDERS
JPMORGAN CHASE BANK, N.A.
By /s/ Barbara R. Marks
------------------------------------------
Name: Barbara R. Marks
Title: Executive Director
BANK OF AMERICA, N.A.
By /s/ Alysa Trakas
------------------------------------------
Name: Alysa Trakas
Title: Vice President
BARCLAYS BANK PLC
By /s/ David Barton
------------------------------------------
Name: David Barton
Title: Director
CITIBANK, N.A.
By /s/ Kevin A. Ege
------------------------------------------
Name: Kevin A. Ege
Title: Vice President
GOLDMAN SACHS CREDIT PARTNERS L.P.
By /s/ Alexis Maged
------------------------------------------
Name: Alexis Maged
Title: Authorized Signatory
BANCO SANTANDER, S.A., New York Branch
By: /s/ Harry Moreno
----------------------------------------
Name: Harry Moreno
Title: Vice President
By: /s/ Ramon E. Colon Navarro
----------------------------------------
Name: Ramon E. Colon Navarro
Title: Vice President
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.
By: /s/ George Stoecklein
----------------------------------------
Name: George Stoecklein
Title: Authorized Signatory
CREDIT SUISSE, Cayman Islands Branch
By: /s/ Karim Blasetti
----------------------------------------
Name: Karim Blasetti
Title: Vice President
By: /s/ Mikhail Faybusovich
----------------------------------------
Name: Mikhail Faybusovich
Title: Vice President
DEUTSCHE BANK AG, New York Branch
By: /s/ Ming K. Chu
----------------------------------------
Name: Ming K. Chu
Title: Vice President
By: /s/ Heidi Sandquist
----------------------------------------
Name: Heidi Sandquist
Title: Director
HSBC BANK USA, NATIONAL ASSOCIATION
By: /s/ James P. Kelly
----------------------------------------
Name: James P. Kelly
Title: Managing Director
THE ROYAL BANK OF SCOTLAND plc
By: /s/ Iain Stewart
----------------------------------------
Name: Iain Stewart
Title: Managing Director
UBS AG, Stamford Branch
By: /s/ Irja R. Otsa
----------------------------------------
Name: Irja R. Otsa
Title: Associate Director
By: /s/ Mary E. Evans
----------------------------------------
Name: Mary E. Evans
Title: Associate Director
INTESA SANPAOLO SpA
By: /s/ John J. Michalisin
----------------------------------------
Name: John J. Michalisin
Title: First Vice President
By: /s/ Francesco Di Mario
----------------------------------------
Name: Francesco Di Mario
Title: First Vice President & Credit
Manager
MEDIOBANCA SpA
By: /s/ Greg Lomas
----------------------------------------
Name: Greg Lomas
Title: Managing Director
By: /s/ Alastair Brown
----------------------------------------
Name: Alastair Brown
Title: Executive Director
MIZUHO CORPORATE BANK, LTD.
By: /s/ Raymond Ventura
----------------------------------------
Name: Raymond Ventura
Title: Deputy General Manager
ROYAL BANK OF CANADA
By: /s/ Gordon MacArthur
----------------------------------------
Name: Gordon MacArthur
Title: Authorized Signatory
SOCIETE GENERALE
By: /s/ Andrew Green
----------------------------------------
Name: Andrew Green
Title: Director
SUMITOMO MITSUI BANKING CORPORATION
By: /s/ Yoshihiro Hyakutome
----------------------------------------
Name: Yoshihiro Hyakutome
Title: General Manager
THE BANK OF NOVA SCOTIA
By: /s/ Paula Czach
----------------------------------------
Name: Paula Czach
Title: Director
IVY Funds VIP Asset Strategy
By: /S/ Michael L. Avery
----------------------------------------
Name: Michael L. Avery
Title: Executive Vice President
IVY Funds, Inc Asset Strategy
Fund
By: /S/ Michael L. Avery
----------------------------------------
Name: Michael L. Avery
Title: Executive Vice President
IVY Funds VIP High Income Fund
By: /s/ William M. Nelson
----------------------------------------
Name: William M. Nelson
Title: Senior Vice President
IVY Funds, Inc High Income Fund
By: /s/ Bryan C. Krug
----------------------------------------
Name: Bryan C. Krug
Title: Vice President
WADDELL & REED ADVISORS ASSET STRATEGY
FUND, INC.
By: /s/ Michael L. Avery
----------------------------------------
Name: Michael L. Avery
Title: Executive Vice President
WADDELL & REED ADVISORS HIGH INCOME
FUND, INC.
By: /s/ William M. Nelson
----------------------------------------
Name: William M. Nelson
Title: Senior Vice President
BANCO BILBAO VIZCAYA ARGENTARIA S.A.
By: /s/ Miguel Lara
----------------------------------------
Name: Miguel Lara
Title: Managing Director
By: /s/ Alex Mayral
----------------------------------------
Name: Alex Mayral
Title: Vice President
INDUSTRIAL AND COMMERCIAL BANK OF CHINA
LIMITED, New York Branch
By: /s/ Mr. Bin Wu
----------------------------------------
Name: Mr. Bin Wu
Title: General Manager
US BANK, N.A.
By: /s/ Christopher T. Kordes
----------------------------------------
Name: Christopher T. Kordes
Title: Senior Vice President
Hartford Life and Accident Insurance
Company
By: Hartford Investment Management
Company, Its Agent and
Attorney-in-Fact
By: /s/ Francesco Ossino
----------------------------------------
Name: Francesco Ossino
Title: Senior Vice President
Hartford Accident and Indemnity Company
By: Hartford Investment Management
Company, Its Agent and
Attorney-in-Fact
By: /s/ Francesco Ossino
----------------------------------------
Name: Francesco Ossino
Title: Senior Vice President
Hartford Life Insurance Company
By: Hartford Investment Management
Company, Its Agent and
Attorney-in-Fact
By: /s/ Francesco Ossino
----------------------------------------
Name: Francesco Ossino
Title: Senior Vice President
State Board of Administration of Florida
By: Hartford Investment Management
Company, Its Investment Manager
By: /s/ Francesco Ossino
----------------------------------------
Name: Francesco Ossino
Title: Senior Vice President
The Investment and Administrative
Committee of The Walt Disney
Company Sponsored Qualified Benefit
Plans and Key Employees Deferred
Compensation and Retirement Plan
By: Hartford Investment Management
Company, Its Investment Manager
By: /s/ Francesco Ossino
----------------------------------------
Name: Francesco Ossino
Title: Senior Vice President
The Hartford Mutual Funds, Inc., on
behalf of The Hartford Total Return
Bond Fund
By: Hartford Investment Management
Company, Its Subadvisor
By: /s/ Francesco Ossino
----------------------------------------
Name: Francesco Ossino
Title: Senior Vice President
Hartford Series Fund, Inc., on behalf
of Hartford Total Return Bond HLS
Fund
By Hartford Investment Management
Company, Its Subadvisor
By: /s/ Francesco Ossino
----------------------------------------
Name: Francesco Ossino
Title: Senior Vice President
The Hartford Mutual Funds, Inc., on
behalf of The Hartford Income Fund
By Hartford Investment Management
Company, Its Subadvisor
By: /s/ Francesco Ossino
----------------------------------------
Name: Francesco Ossino
Title: Senior Vice President
The Hartford Mutual Funds, Inc., on
behalf of The Hartford Strategic
Income Fund
By: Hartford Investment Management
Company, Its Investment Manager
By: /s/ Francesco Ossino
----------------------------------------
Name: Francesco Ossino
Title: Senior Vice President
AUSTRALIA & NEW ZEALAND BANKING GROUP
LIMITED
By: /s/ John W. Wade
----------------------------------------
Name: John W. Wade
Title: Deputy General Manager/Head of
Operations and Infrastructure
BANK OF CHINA, LOS ANGELES BRANCH
By: /s/ Feng Chang
----------------------------------------
Name: Feng Chang
Title: Branch Manager & Vice President
By: /s/ Jason Fu
----------------------------------------
Name: Jason Fu
Title: Vice President
BANK OF CHINA (LUXEMBOURG) S.A.
By: /s/ Mr. Huang Hong
----------------------------------------
Name: Mr. Huang Hong
Title: General Manager
By: /s/ Mr. Zhang Wei
----------------------------------------
Name: Mr. Zhang Wei
Title: Deputy General Manager
BANK OF CHINA, NEW YORK BRANCH
By: /s/ Richard Bradspies
----------------------------------------
Name: Richard Bradspies
Title: Deputy General Manager
THE GOVERNOR AND COMPANY OF THE BANK OF
IRELAND
By: /s/ Padraig Rushe
----------------------------------------
Name: Padraig Rushe
Title: Director
By: /s/ Kevin Healy
----------------------------------------
Name: Kevin Healy
Title: Relationship Manager
BANK OF NEW YORK MELLON
By: /s/ Richard K. Fronapfel, Jr.
----------------------------------------
Name: Richard K. Fronapfel, Jr.
Title: Vice President
CAJA DE AHORROS Y MONTE DE PIEDAD DE
MADRID
By: /s/ Jose Cueto
----------------------------------------
Name: Jose Cueto
Title: Senior Vice President
By: /s/ Juan Pablo Hernandez
----------------------------------------
Name: Juan Pablo Hernandez
Title: Head of Capital Markets
LLOYDS TSB BANK PLC
By: /s/ Deborah Carlson
----------------------------------------
Name: Deborah Carlson
Title: Director
By: /s/ Candice Obrentz
----------------------------------------
Name: Candice Obrentz
Title: Associate Director
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Edward M. Tessalone
----------------------------------------
Name: Edward M. Tessalone
Title: Senior Vice President
STANDARD CHARTERED BANK
By: /s/ James P. Hughes
----------------------------------------
Name: James P. Hughes
Title: Vice President
By: /s/ Robert K. Reddington
----------------------------------------
Name : Robert K. Reddington
Title: AVP/Credit Documentation
Credit Risk Control
Standard Chartered Bank N.Y.
THE NORTHERN TRUST COMPANY
By: /s/ Ashish S. Bhagwat
----------------------------------------
Name: Ashish S. Bhagwat
Title: Vice President
TORONTO DOMINION (NEW YORK) LLC
By: /s/ Debbi L. Brito
----------------------------------------
Name: Debbi L. Brito
Title: Authorized Signatory
ANNEX A
APPLICABLE MARGIN
"Applicable Margin" shall mean, as of any date of determination
during any period set forth below, a per annum rate equal to the rate set forth
below opposite the applicable Type of Loan and the Borrower's Credit Rating in
effect at such time:
- ------------------------------------------------------------------------------------------------------------------------------------
Level I Level II Level III Level IV Level V
- ------------------------------------------------------------------------------------------------------------------------------------
Borrower's Credit AA+/Aa1 or higher AA/Aa2 AA-/Aa3 A+/A1 A/A2 or lower
Ratings
- ------------------------------------------------------------------------------------------------------------------------------------
Eurodollar Base Rate Eurodollar Base Rate Eurodollar Base Rate Eurodollar Base Rate Eurodollar Base Rate
Rate Rate Rate Rate Rate
- ------------------------------------------------------------------------------------------------------------------------------------
Funding Date until
3-month 2.50% 1.50% 2.75% 1.75% 3.00% 2.00% 3.25% 2.25% 3.50% 2.50%
anniversary
thereof
- ------------------------------------------------------------------------------------------------------------------------------------
3-month
anniversary of
Funding Date 3.00% 2.00% 3.25% 2.25% 3.50% 2.50% 3.75% 2.75% 4.00% 3.00%
until 6-month
anniversary
thereof
- ------------------------------------------------------------------------------------------------------------------------------------
6-month
anniversary of
Funding Date 3.50% 2.50% 3.75% 2.75% 4.00% 3.00% 4.25% 3.25% 4.50% 3.50%
until 9-month
anniversary
thereof
- ------------------------------------------------------------------------------------------------------------------------------------
9-month
anniversary of
Funding Date 4.00% 3.00% 4.25% 3.25% 4.50% 3.50% 4.75% 3.75% 5.00% 4.00%
until 12-month
anniversary
thereof
- ------------------------------------------------------------------------------------------------------------------------------------
12-month
anniversary of
Funding Date 4.50% 3.50% 4.75% 3.75% 5.00% 4.00% 5.25% 4.25% 5.50% 4.50%
until 15-month
anniversary
thereof
- ------------------------------------------------------------------------------------------------------------------------------------
15-month
anniversary of
Funding Date 5.00% 4.00% 5.25% 4.25% 5.50% 4.50% 5.75% 4.75% 6.00% 5.00%
until 18-month
anniversary
thereof
- ------------------------------------------------------------------------------------------------------------------------------------
For purposes of determining the Applicable Margin, the applicable Borrower's
Credit Ratings from one of S&P and Moody's will be required to qualify for the
applicable level set forth above; provided that if the higher applicable
Borrower's Credit Rating is more than one Level higher than the other Borrower's
Credit Rating, the Applicable Margin shall be the Level below the Level
corresponding to such higher Borrower's Credit Rating.