SECOND AMENDMENT TO CREDIT AGREEMENT
Exhibit 2.23
EXECUTION COPY
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated as of October 27, 2008, is by and among XXXX LABORATORIES, INC., a Delaware corporation (the “Company”), certain Foreign Subsidiaries of the Company party hereto pursuant to Section 2.14 of the hereinafter defined Existing Credit Agreement (each a “Designated Foreign Borrower”; and together with the Company, the “Borrowers” and, each a “Borrower”), Xxxx Pharmaceuticals, Inc., a Delaware corporation (the “Parent”) as a guarantor along with certain Subsidiaries of the Parent (individually a “Guarantor” and collectively the “Guarantors”), the Lenders party hereto (collectively, the “Lenders” and individually, a “Lender”), and BANK OF AMERICA, NA., as Administrative Agent for the Lenders (the “Administrative Agent”) and as Swing Line Lender and L/C Issuer. Terms used but not otherwise defined herein shall have the meanings provided in the Existing Credit Agreement described below.
W I T N E S S E T H
WHEREAS, the Borrowers, the Guarantors, the Lenders, the Administrative Agent, the Swing Line Lender and the L/C Issuer have entered into that certain Credit Agreement dated as of July 21, 2006 (as amended by that certain First Amendment dated as of October 24, 2006, and as further amended, modified, extended, renewed, restated, replaced or increased from time to time, prior to the date hereof, the “Existing Credit Agreement”);
WHEREAS, Teva Pharmaceutical Industries Ltd. (“Teva”), the Parent and a wholly-owned subsidiary of Teva have signed an agreement and plan of merger under which Teva would, subject to the terms and conditions thereof, acquire by merger the Parent (such acquisition the “Teva Acquisition”); and
WHEREAS, the consummation of the Teva Acquisition would result in a Change of Control and thus an Event of Default under Section 8.01(k) of the Existing Credit Agreement, the Parent and the Borrowers have requested, and the Lenders have agreed, to amend the Existing Credit Agreement as provided herein to permit the Teva Acquisition pursuant to the terms and conditions of this Amendment.
NOW, THEREFORE, in consideration of the agreements hereinafter set forth, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
PART 1
DEFINITIONS
SUBPART 1.1 Certain Definitions. Unless otherwise defined herein or the context otherwise requires, the following terms used in this Amendment, including its preamble and recitals, have the following meanings:
“Second Amendment Effective Date” is defined in Subpart 3.1.
SUBPART 1.2 Other Definitions. Unless otherwise defined herein or the context otherwise requires, terms used in this Amendment, including its preamble and recitals, have the meanings provided in the Existing Credit Agreement.
PART 2
AMENDMENTS TO EXISTING CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Second Amendment Effective Date, the Existing Credit Agreement is hereby amended in accordance with this Part 2.
SUBPART 2.1 Definition of Alternative Currency Sublimit. The definition of “Alternative Currency Sublimit” contained in Section 1.01 of the Existing Credit Agreement is hereby amended and restated in its entirety to read as follows:
“Alternative Currency Sublimit” means (a) prior to the Teva Acquisition Effective Date, an amount equal to the lesser of the Aggregate Revolving Commitments and $200,000,000 and (b) on and after the Teva Acquisition Effective Date, an amount equal to $0. The Alternative Currency Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.
SUBPART 2.2 Definition of Applicable Rate. The definition of “Applicable Rate” contained in Section 1.01 of the Existing Credit Agreement is hereby amended and restated in its entirety to read as follows:
“Applicable Rate” means, from time to time, the following percentages per annum, based upon the Corporate Ratings as set forth below:
(a) prior to the Teva Acquisition Effective Date, the following percentages per annum, based upon the Corporate Ratings as set forth below:
| Level |
Corporate Ratings |
Revolving Credit Facility Applicable Margin for LIBOR Loans |
Revolving Credit Facility Applicable Margin for Alternate Base Rate Loans |
Revolving Credit Facility Letter of Credit Fee |
Facility Fee |
Acquisition Facility Applicable Margin for LIBOR Loans/Acquisition Facility Letter of Credit Fee |
Acquisition Facility Applicable Margin for Alternate Base Rate Loans | |||||||
| I |
Greater than or equal to BBB+/Baa1 | 40.0 bps | 0 bps | 40.0 bps | 10.0 bps | 50.0 bps | 0 bps | |||||||
| II |
BBB/Baa2 | 50.0 bps | 0 bps | 50.0 bps | 12.5 bps | 62.5 bps | 0 bps | |||||||
| III |
BBB-/Baa3 | 60.0 bps | 0 bps | 60.0 bps | 15.0 bps | 75.0 bps | 0 bps | |||||||
| IV |
BB+/Ba1 | 70.0 bps | 0 bps | 70.0 bps | 17.5 bps | 87.5 bps | 0 bps | |||||||
| V |
BB/Ba2 | 87.5 bps | 0 bps | 87.5 bps | 25.0 bps | 112.5 bps | 12.5 bps | |||||||
| VI |
Less than BB/Ba2 | 100.0 bps | 0 bps | 100.0 bps | 37.5 bps | 137.5 bps | 37.5 bps |
“Corporate Rating” means, as of any date of determination, the rating as determined by the Ratings Agencies as the Parent’s corporate credit (family) rating (collectively, the “Corporate Ratings”); provided that if a Corporate Rating is issued by the Ratings Agencies and there is a split rating, then the highest of such Corporate Ratings shall apply (with the Corporate Rating for Pricing Level I being the highest and the Corporate Rating for Pricing Level VI being the lowest) in determining the Pricing Level. If there is a multiple split in Corporate Ratings, then the Corporate Rating that is one level lower than the highest rating shall apply in determining the Pricing Level; provided, further, however, that the Applicable Rate shall be at pricing Level VI if no Corporate Rating is available from each of the Rating Agencies or such Corporate Ratings do not give pro forma effect to the Acquisition of the Acquired Company (to the extent applicable).
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Initially, the Applicable Rate shall be at Level III until the earlier of (x) ninety (90) days following the Closing Date and (y) the date on which the Parent has obtained its Corporate Ratings. Thereafter, each change in the Applicable Rate resulting from a publicly announced change in the Corporate Rating shall be effective during the period commencing on the date of the public announcement thereof and ending on the date immediately preceding the effective date of the next such change.
(b) on and after the Teva Acquisition Effective Date, the following percentages per annum, based upon the Corporate Ratings as set forth below:
| Level |
Corporate Ratings |
Revolving Credit Facility Applicable Margin for LIBOR Loans |
Revolving Credit Facility Applicable Margin for Alternate Base Rate Loans |
Revolving Credit Facility Letter of Credit Fee |
Facility Fee |
Acquisition Facility Applicable Margin for LIBOR Loans/Acquisition Facility Letter of Credit Fee |
Acquisition Facility Applicable Margin for Alternate Base Rate Loans | |||||||
| I |
Greater than or equal to A-/A3 | 105 bps | 5 bps | 105 bps | 20.0 bps | 125.0 bps | 25.0 bps | |||||||
| II |
BBB+/Baa1 | 125 bps | 25 bps | 125 bps | 25.0 bps | 150.0 bps | 50.0 bps | |||||||
| III |
BBB/Baa2 | 137.5 bps | 37.5 bps | 137.5 bps | 37.5 bps | 175.0 bps | 75.0 bps | |||||||
| IV |
Less than or equal to BBB-/Baa3 | 175.0 bps | 75.0 bps | 175.0 bps | 50.0 bps | 225.0 bps | 125.0 bps |
“Corporate Rating” means, as of any date of determination, the rating as determined by the Ratings Agencies as Teva’s corporate credit rating (collectively, the “Corporate Ratings”); provided that if a Corporate Rating is issued by the Ratings Agencies and there is a split rating, then the highest of such Corporate Ratings shall apply (with the Corporate Rating for Pricing Level I being the highest and the Corporate Rating for Pricing Level IV being the lowest) in determining the Pricing Level. If there is a multiple split in Corporate Ratings, then the Corporate Rating that is one level lower than the highest rating shall apply in determining the Pricing Level; provided, further, however, that the Applicable Rate shall be at pricing Level IV if no Corporate Rating is available from each of the Rating Agencies.
The Applicable Rate shall be at Level II for the first ninety (90) days immediately following the Teva Acquisition Effective Date. Thereafter, each change in the Applicable Rate resulting from a publicly announced change in the Corporate Rating shall be effective, during the period commencing on the date of the public announcement thereof and ending on the date immediately preceding the effective date of the next such change.
SUBPART 2.3 Definition of Base Rate. The definition of “Base Rate” contained in Section 1.01 of the Existing Credit Agreement is hereby amended and restated in its entirety to read as follows:
“Base Rate” means (a) prior to the Teva Acquisition Effective Date, for any day a fluctuating rate per annum equal to the higher of (i) the Federal Funds Rate plus 1/2 of 1% and (ii) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate” and (b) on and after the Teva Acquisition Effective Date, for any day, a rate per annum equal to the highest of (i) the Federal Funds Rate plus 1/2 of 1%, (ii) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its
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“prime rate” and (iii) the Eurocurrency Rate for Dollar deposits being delivered in the London interbank market for a term of one month commencing on such day plus 1%. The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.
SUBPART 2.4 Definition of Change of Control. Clauses (b) and (c) of the definition of “Change of Control” contained in Section 1.01 of the Existing Credit Agreement are hereby amended in their entireties to read as follows:
(b) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan and excluding Teva and its Affiliates as part of or in connection with the Teva Acquisition) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire (such right, an “option right”), whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of 35% or more of the equity securities of the Parent entitled to vote for members of the board of directors or equivalent governing body of the Parent on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right);
(c) during any period of 12 consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Parent cease to be individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body (it being understood that changes in the members of the board of the Parent on the Teva Acquisition Effective Date and for a period of three months thereafter shall not constitute a “Change of Control” pursuant to this clause (c)).
SUBPART 2.5 Definition of Consolidated EBITDA. Clause (a) of the definition of “Consolidated EBITDA” contained in Section 1.01 of the Existing Credit Agreement is hereby amended by adding new clauses (viii) and (ix) to the end of such clause (a) to read as follows, and making the appropriate grammatical changes thereto:
(viii) in the event that the Teva Acquisition Effective Date has occurred, one-time non-cash expenses incurred in connection with the Teva Acquisition and (ix) in the event that the Teva Acquisition Effective Date has occurred, one-time cash expenses incurred in connection with the Teva Acquisition in an aggregate amount not to exceed $75,000,000
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SUBPART 2.6 Definition of Designated Foreign Borrower Sublimit. The definition of “Designated Foreign Borrower Sublimit” contained in Section 1.01 of the Existing Credit Agreement is hereby amended and restated in its entirety to read as follows:
“Designated Foreign Borrower Sublimit” means (a) prior to the Teva Acquisition Effective Date, an amount equal to the lesser of the Aggregate Revolving Commitments and $200,000,000 and (b) on and after the Teva Acquisition Effective Date, $0. The Designated Foreign Borrower Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.
SUBPART 2.7 Definition of Loan Documents. The definition of “Loan Documents” contained in Section 1.01 of the Existing Credit Agreement is hereby amended and restated in its entirety to read as follows:
“Loan Documents” means this Agreement, each Designated Foreign Borrower Request and Assumption Agreement, each Note, each Issuer Document, each Guarantor Joinder Agreement, the Fee Letter and, in the event that the Teva Acquisition Effective Date has occurred, the Teva Guaranty.
SUBPART 2.8 Definition of Loan Parties. The definition of “Loan Parties” contained in Section 1.01 of the Existing Credit Agreement is hereby amended and restated in its entirety to read as follows:
“Loan Parties” means, collectively, the Company, each Designated Foreign Borrower and each Guarantor (provided that, notwithstanding the Teva Guaranty, Teva shall not be deemed a “Loan Party”).
SUBPART 2.9 Definition of Parent. The definition of “Parent” contained in Section 1.01 of the Existing Credit Agreement is hereby amended and restated in its entirety to read as follows:
“Parent” means (a) prior to the Teva Acquisition Effective Date, Xxxx Pharmaceuticals, Inc., a Delaware corporation and (b) on and after the Teva Acquisition Effective Date, New Xxxx Parent.
SUBPART 2.10 New Definitions. The following new definitions are added to Section 1.01 of the Existing Credit Agreement in appropriate alphabetical order:
“Approving Lenders” means each Lender who executed and delivered its signature page to the Second Amendment on or before 5:00 P.M. (New York Time) on Monday, October 27, 2008.
“Second Amendment” means that certain Second Amendment to Credit Agreement dated as of October 27, 2008, by and among the Company, the Parent, the Guarantors, the Lenders and the Administrative Agent.
“Second Amendment Effective Date” means October 27, 2008.
“New Xxxx Parent” means that certain newly formed, wholly-owned subsidiary of Teva USA, Inc. organized under the laws of the State of Delaware which is the ultimate surviving entity in the Teva Acquisition.
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“Pliva Corporate Reorganization” means, that certain corporate reorganization pursuant to which the capital stock of one or more of Xxxx Laboratories Europe BV and its Subsidiaries shall be transferred to one or more Subsidiaries of Teva in exchange for the Teva Notes.
“Teva” means Teva Pharmaceutical Industries Ltd., an Israeli company.
“Teva Acquisition” means the acquisition by merger of Xxxx Pharmaceuticals, Inc. by Teva.
“Teva Acquisition Effective Date” means the date on which the Teva Acquisition shall have been consummated.
“Teva Guaranty” means the guaranty by Teva of the Obligations pursuant to a guaranty agreement substantially in the form attached hereto as Exhibit A to the Second Amendment.
“Teva Notes” means the promissory notes from one or more Subsidiaries of Teva to Xxxx Laboratories, Inc. in connection with the Pliva Corporate Reorganization.
SUBPART 2.11 Teva Acquisition. A new Section 6.12 is hereby added to Article VI of the Existing Credit Agreement to read as follows:
6.12 Teva Acquisition. To the extent the Teva Acquisition Effective Date has occurred, on or prior to the Teva Acquisition Effective Date, the Administrative Agent shall have received the following items:
(a) Counterparts of (i) the Teva Guaranty, duly executed on behalf of Teva and the Administrative Agent (on behalf of the Lenders); provided that the Teva Guaranty may be received by the Administrative Agent in escrow to be effective on, and not prior to, the Teva Acquisition Effective Date, (ii) an incumbency certificate of Teva certified by a secretary or assistant secretary to be true and correct as of the Teva Acquisition Effective Date and (iii) a favorable opinion or opinions of counsel to Teva, addressed to the Administrative Agent and each of the Lenders, with respect to the Teva Guaranty addressing due authorization, execution, delivery, enforceability, non-contravention and such other customary matters reasonably requested by the Administrative Agent; provided that the legal opinion or opinions may be received by the Administrative Agent in escrow to be effective on, and not prior to, the Teva Acquisition Effective Date; and
(b) An amendment fee for the benefit of the Approving Lenders equal to 10 basis points on the outstanding Revolving Commitment and/or outstanding Acquisition Facility Loans of each such Approving Lender as of the Second Amendment Effective Date (it being understood that such fee shall be in addition to the amendment fee received by the Approving Lenders on the Second Amendment Effective Date).
SUBPART 2.12 Investments. Clause (d) contained in Section 7.02 of the Existing Credit Agreement is hereby amended and restated to read as follows:
(d) investments in any Foreign Subsidiary; provided, that if such Investment is by a Loan Party in a Foreign Subsidiary that is not a Loan Party, prior to and after giving effect to any such Investment, (i) no Default shall have occurred and be continuing before and after giving effect to such Investment on a Pro Forma Basis and (ii) (A) in the event that the Teva Acquisition Effective Date shall not have occurred, to the extent that the Consolidated Leverage Ratio after
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giving effect to such Investment on a Pro Forma Basis shall be greater than 3.50 to 1.00, the aggregate amount of such Investments permitted pursuant to this clause (d) shall not exceed $100,000,000 during the period when the consolidated Leverage Ratio is greater than 3.50 to 1.00 and (B) in the event that the Teva Acquisition Effective Date shall have occurred, the aggregate amount of such Investments permitted pursuant to this clause (d) shall not exceed $0.
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SUBPART 2.13 Investments. Section 7.02 of the Existing Credit Agreement is hereby amended by adding a new clause (r) thereto to read as follows, and renumbering existing clause (r) to read clause (s):
(r) Investments in the form of the Teva Notes; and
SUBPART 2.14 Fundamental Changes. Clause (a) contained in Section 7.04 of the Existing Credit Agreement is hereby amended and restated to read as follows:
(a)(i) any Subsidiary of the Parent (other than the Company) may merge with (A) the Parent or the Company, provided that the Parent or the Company, as the case may be, shall be the continuing or surviving Person or (B) any one or more Persons, provided that when any Guarantor is merging with another Person which is not a Guarantor hereunder, the Guarantor shall be the continuing or surviving Person or the surviving Person shall become a Guarantor, (ii) the Company and the Parent may merge provided that (A) the Company shall be the continuing or surviving Person or (B) if the Parent shall be the continuing or surviving Person, (x) the Borrower shall provide written notice to the Administrative Agent prior to such merger or consolidation and (y) the Parent shall assume contemporaneously with such merger or consolidation all of the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to documentation reasonably satisfactory to the Administrative Agent and (iii) to the extent the Teva Acquisition Effective Date shall have occurred, the Parent (Xxxx Pharmaceuticals, Inc.) may merge with and into New Xxxx Parent, with New Xxxx Parent being the surviving “Parent” hereunder to the extent that New Xxxx Parent shall assume contemporaneously with such merger by operation of law or otherwise all of the obligations of the Parent (Xxxx Pharmaceuticals, Inc.) under this Agreement and the other Loan Documents, it being understood and agreed that execution and delivery of the Agreement and Plan of Merger by and among the Parent, Teva Pharmaceutical Industries Ltd. and Xxxx Acquisition Corp., dated as of July 17, 2008, as amended, modified, extended, renewed, restated or replaced from time to time, satisfies the requirements of this clause (a). Following any merger pursuant to this Section 7.04(a)(ii), all references to “Parent” and to the “Borrower” shall be read as references to the Person surviving the merger;
SUBPART 2.15 Transactions With Affiliates. Section 7.07 of the Existing Credit Agreement is hereby amended by adding a new clause (i) to the end thereof, and making the appropriate punctuation and grammatical changes thereto:
and (i) in the event that the Teva Acquisition Effective Date shall have occurred, the Pliva Corporate Reorganization.
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SUBPART 2.16 Financial Covenants. Section 7.10 of the Existing Credit Agreement is hereby amended and restated in its entirety to read as follows:
7.10 Financial Covenants.
| (a) | Prior to the Teva Acquisition Effective Date: |
(i) Until the Corporate Ratings as determined by the Ratings Agencies shall each be BBB+ or higher and Baal or higher, respectively, as of the end of any fiscal quarter of the Parent, then:
(A) Consolidated Interest Coverage Ratio. Permit the Consolidated Interest Coverage Ratio as of the end of any fiscal quarter of the Parent to be less than 3.00 to 1.00.
(B) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio as of the end of any fiscal quarter of the Parent;
(1) ending after the Closing Date, but prior to the earlier of the Acquisition Facility Letter of Credit Issuance Date and the Initial Acquisition Facility Loan Funding Date, to be greater than 3.00 to 1.00.
(2) ending after the Acquisition Facility Letter of Credit Issuance Date, if any, but prior to the Initial Acquisition Facility Loan Funding Date, to be greater than 4.50 to 1.00.
(3) ending after the Initial Acquisition Facility Loan Funding Date, but on or prior to the earlier of the Consolidated Leverage Ratio Stepdown Date and September 30, 2007, to be greater than 4.00 to 1.00.
(4) ending on or after October 1, 2007, but on or prior to the earlier of the Consolidated Leverage Ratio Stepdown Date and September 30, 2008, to be greater than 3.50 to 1.00.
(5) at all other times, to be greater than 3.00 to 1.00.
(ii) Once the Corporate Ratings as determined by the Ratings Agencies shall each be BBB+ or higher and Baal or higher, respectively, as of the end of any fiscal quarter of the Parent, and thereafter:
Consolidated Funded Indebtedness to Total Capitalization. Permit the Consolidated Funded Indebtedness to Total Capitalization Ratio, at any time, to be greater than 0.50 to 1.00.
| (b) | On and after the Teva Acquisition Effective Date: |
(i) Consolidated Interest Coverage Ratio. Permit the Consolidated Interest Coverage Ratio as of the end of any fiscal quarter of the Parent to be less than 3.00 to 1.00.
(ii) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio as of the end of any fiscal quarter of the Parent;
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(A) from the Teva Acquisition Effective Date to and including the fiscal quarter ending December 31, 2009, to be greater than 3.50 to 1.00.
(B) at all other times, to be greater than 3.00 to 1.00.
PART 3
CONDITIONS TO EFFECTIVENESS
SUBPART 3.1 Second Amendment Effective Date. This Amendment shall be and become effective as of the date hereof (the “Second Amendment Effective Date”) when all of the conditions set forth in this Part 3 shall have been satisfied, and thereafter this Amendment shall be known, and may be referred to, as the “Amendment”.
SUBPART 3.2 Execution of Counterparts of Amendment. The Administrative Agent shall have received counterparts of this Amendment, which collectively shall have been duly executed on behalf of the Borrower, the Guarantors, the Lenders (pursuant to the authorization of the Required Lenders) and the Administrative Agent.
SUBPART 3.3 Amendment Fee. The Administrative Agent shall have received from the Borrower, for the account of each Lender who executes and approves this Amendment on or before 5:00 P.M. (New York Time) on Monday, October 27, 2008 (the “Approving Lenders”), an amendment fee equal to 10 basis points on the outstanding Revolving Commitment and/or outstanding Acquisition Facility Loans of each such Approving Lender (it being understood that in addition to the foregoing amendment fee, in the event that the Teva Acquisition Effective Date (as defined in Section 1.01 to the Existing Credit Agreement, as amended hereby) occurs, the Approving Lenders shall also receive the fee set forth in Section 6.12 to the Existing Credit Agreement, as amended hereby).
SUBPART 3.4 Fees and Expenses. The Administrative Agent shall have received from the Borrower (a) the aggregate amount of all fees and expenses identified in that certain Engagement Letter dated October 6, 2008 among the Borrower, the Administrative Agent and Banc of America Securities LLC and (b) all reasonable out-of-pocket costs and expenses of the Administrative Agent in connection with the preparation, execution and delivery of this Amendment, including without limitation the reasonable fees and expenses of Xxxxx & Xxx Xxxxx PLLC, special counsel to the Administrative Agent.
PART 4
MISCELLANEOUS
SUBPART 4.1 Cross-Reference. References in this Amendment to any Part or Subpart are, unless otherwise specified, to such Part or Subpart of this Amendment.
SUBPART 4.2 Representations and Warranties. Each Loan Party hereby represents and warrants that it: (a) has the requisite corporate power and authority to execute, deliver and perform this Amendment, as applicable, (b) is duly authorized to, and has been authorized by all necessary corporate action, to execute, deliver and perform this Amendment, (c) the representations and warranties contained in Article 5 of the Existing Credit Agreement are true and correct in all material respects on and as of the date hereof and upon giving effect to this Amendment as though made on and as of such date (except for those which expressly relate to an earlier date) and (d) no Default or Event of Default exists under the Existing Credit Agreement on and as of the date hereof and upon giving effect to this Amendment.
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SUBPART 4.3 Instrument Pursuant to Existing Credit Agreement. This Amendment is executed pursuant to the Existing Credit Agreement and shall (unless otherwise expressly indicated therein) be construed, administered and applied in accordance with the terms and provisions of the Existing Credit Agreement.
SUBPART 4.4 References in Other Loan Documents. At such time as this Amendment shall become effective pursuant to the terms of Subpart 3.1, all references to the “Credit Agreement” shall be deemed to refer to the Credit Agreement as amended by this Amendment.
SUBPART 4.5 Counterparts/Telecopy. This Amendment may be executed by the parties hereto in several counterparts, each of which shall be deemed to be an original and all of which shall constitute together but one and the same agreement. Delivery of executed counterparts of the Amendment by telecopy, facsimile or electronic mail shall be effective as an original and shall constitute a representation that an original shall be delivered.
SUBPART 4.6 Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, BUT EXCLUDING ALL OTHER CHOICE OF LAW AND CONFLICTS OF LAW RULES).
SUBPART 4.7 Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
SUBPART 4.8 General. Except as amended hereby, the Existing Credit Agreement and all other Loan Documents shall continue in full force and effect.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first above written.
| BORROWER: | XXXX LABORATORIES, INC., | |||||
| a Delaware corporation | ||||||
| By: | /s/ Xxxxxxxxx X. Xxxxxxx | |||||
| Name: | Xxxxxxxxx X. Xxxxxxx | |||||
| Title: | Chief Executive Officer | |||||
| DOMESTIC GUARANTORS: | XXXX PHARMACEUTICALS, INC., | |||||
| a Delaware corporation | ||||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||||
| Name: | Xxxxxxx X. Xxxxx | |||||
| Title: | EVP and Chief Financial Officer | |||||
| XXXX DISTRIBUTION COMPANY, | ||||||
| a Delaware corporation | ||||||
| By: | /s/ Xxxxxxx Xxxxxx | |||||
| Name: | Xxxxxxx Xxxxxx | |||||
| Title: | President | |||||
| DURAMED PHARMACEUTICALS, INC., a Delaware corporation | ||||||
| By: | /s/ Xxxxxx Xxxx | |||||
| Name: | Xxxxxx Xxxx | |||||
| Title: | Sr. VP - Controller | |||||
Xxxx Laboratories, Inc.
Second Amendment
| ADMINISTRATIVE AGENT AND LENDERS: |
BANK OF AMERICA, N.A., | |||||
| as Administrative Agent | ||||||
| By: | /s/ Xxxxxx Xxx | |||||
| Name: | Xxxxxx Xxx | |||||
| Title: | Assistant Vice President | |||||
| BANK OF AMERICA, N.A., | ||||||
| as a Lender, L/C Issuer and Swing Line Lender | ||||||
| By: | /s/ Xxxxxx XxXxxxx | |||||
| Name: | Xxxxxx XxXxxxx | |||||
| Title: | Vice President | |||||
Xxxx Laboratories, Inc.
Second Amendment
| JPMORGAN CHASE BANK, N.A., | ||
| as a Lender | ||
| By: | /s/ D. Xxxxx Xxxxxxxx | |
| Name: | D. Xxxxx Xxxxxxxx | |
| Title: | Vice President | |
Xxxx Laboratories, Inc.
Second Amendment
| BAYERISCHE LANDESBANK, New York Branch as a Lender | ||
| By: | /s/ Xxxxxxx xxx Xxxxxxx | |
| Name: | Xxxxxxx xxx Xxxxxxx | |
| Title: | Senior Vice President | |
| By: | /s/ Xxxxxxx XxXxxxx | |
| Name: | Xxxxxxx XxXxxxx | |
| Title: | Vice President | |
Xxxx Laboratories, Inc.
Second Amendment
| MIZUHO CORPORATE BANK LTD., | ||
| as a Lender | ||
| By: | /s/ Xxxxxxx Xxxxxxx | |
| Name: | Xxxxxxx Xxxxxxx | |
| Title: | Deputy General Manager | |
Xxxx Laboratories, Inc.
Second Amendment
| TAIPEI FUBON COMMERCIAL BANK LOS ANGELES BRANCH, as a Lender | ||
| By: | /s/ Xxxxxx Xxxx | |
| Name: | Xxxxxx Xxxx | |
| Title: | FVP & General Manager | |
Xxxx Laboratories, Inc.
Second Amendment
| XXXXX XXX COMMERICAL BANK, LTD, NEW YORK BRANCH as a Lender | ||
| By: | /s/ XXX X.X. XXXX | |
| Name: | XXX X.X. XXXX | |
| Title: | VP & GENERAL MANAGER | |
Xxxx Laboratories, Inc.
Second Amendment
| Union Bank of California, N.A. | ||
| as a Lender | ||
| By: | /s/ Xxxxxxx X. Lopatt | |
| Name: | Xxxxxxx X. Lopatt | |
| Title: | Vice President | |
Xxxx Laboratories, Inc.
Second Amendment
| SUMITOMO MITSUI BANKING CORPORATION, NEW YORK BRANCH | ||
| as a Lender | ||
| By: | /s/ Xxxxx X. Xxxx | |
| Name: | Xxxxx X. Xxxx | |
| Title: | Senior Vice President | |
Xxxx Laboratories, Inc.
Second Amendment
| THE NORTHERN TRUST COMPANY | ||
| as a Lender | ||
| By: | /s/ Xxxxx X. Hailan | |
| Name: | Xxxxx X. Hailan | |
| Title: | Vice President | |
Xxxx Laboratories, Inc.
Second Amendment
| E.SUN COMMERCIAL BANK, LTD., LOS ANGELES BRANCH | ||
| as a Lender | ||
| By: | /s/ Xxxxxxxx Xxx | |
| Name: | Xxxxxxxx Xxx | |
| Title: | EVP & General Manager | |
Xxxx Laboratories, Inc.
Second Amendment
| UNICREDIT BANK AUSTRIA AG, | ||
| as a Lender | ||
| By: | /s/ Xxxxx XXXXXXX | |
| Name: | Xxxxx XXXXXXX | |
| Managing Director Int. Corporates | ||
| By: | /s/ Xxxxxx XXXXX | |
| Name: | Xxxxxx XXXXX | |
| Relationship Manager Int. Corporates | ||
Xxxx Laboratories, Inc.
Second Amendment
| Company Name: UniCredit Bank Austria AG |
Company location: Xxxxxxxxxxxxx 0-0, 0000 Xxxx, Register of companies: Xxxxxxxxxxxxxx Xxxx, XX 000000x, XXX-Xx. nr.: ATU51507409, DVR 0030066, BLZ: 12000, BIC: XXXXXXXX. xxx.xxxxxxxxxxx.xx |
| CITIBANK, N.A. | ||
| as a Lender | ||
| By: | /s/ Xxxxx Xxxxxx | |
| Name: | Xxxxx Xxxxxx | |
| Title: | Vice President | |
Xxxx Laboratories, Inc.
Second Amendment
| XXX XXX COMMERCIAL BANK, LTD. NEW YORK AGENCY, | ||
| as a Lender | ||
| By: | /s/ Xxxxx Xxxxx | |
| Name: | Xxxxx Xxxxx | |
| Title: | Assistant Vice President | |
Xxxx Laboratories, Inc.
Second Amendment
| Xxx Xxx Commercial Bank, Ltd. Los Angeles Branch, as a Lender | ||
| By: | /s/ Xxxxxx X.X. Xxx | |
| Name: | Xxxxxx X.X. Xxx | |
| Title: | VP & General Manager | |
Xxxx Laboratories, Inc.
Second Amendment
| CREDIT SUISSE, CAYMAN ISLANDS BRANCH, | ||
| as a Lender | ||
| By: | /s/ XXXXX XXXXXXXX | |
| Name: | XXXXX XXXXXXXX | |
| Title: | VICE PRESIDENT | |
| By: | /s/ XXXXXXX XXXXXXXXXXX | |
| Name: | XXXXXXX XXXXXXXXXXX | |
| Title: | VICE PRESIDENT | |
Xxxx Laboratories, Inc.
Second Amendment
| THE BANK OF EAST ASIA, LIMITED NEW YORK BRANCH | ||
| as a Lender | ||
| By: | /s/ Xxxxxxx Xxxxxx | |
| Name: | Xxxxxxx Xxxxxx | |
| Title: | SVP Head of Corporate Syndications | |
| By: | /s/ Kitty Sin | |
| Name: | Kitty Sin | |
| Title: | SVP, Head of Credit | |
Xxxx Laboratories, Inc.
Second Amendment
| Bank of Ireland | ||
| [LENDER] as a Lender | ||
| By: | /s/ Xxxxx Xxxxx | |
| Name: | Xxxxx Xxxxx | |
| Title: | Manager | |
Xxxx Laboratories, Inc.
Second Amendment
| BANK OF COMMUNICATIONS CO., LTD., NEW YORK BRANCH, | ||
| as a Lender | ||
| By: | /s/ Xxxxxxx He | |
| Name: | Xxxxxxx He | |
| Title: | Deputy General Manager | |
Xxxx Laboratories, Inc.
Second Amendment
| LANDESBANK BADEN-WUERTTEMBERG NEW YORK AND/ OR CAYMAN ISLANDS BRANCH | ||
| as a Lender | ||
| By: | /s/ Xxxxx Xxxxxxx | |
| Name: | Xxxxx Xxxxxxx | |
| Title: | VP & Head of Corporate Desk | |
| By: | /s/ Xxxxxxx Xxxxxxx | |
| Name: | Xxxxxxx Xxxxxxx | |
| Title: | Vice President | |
Xxxx Laboratories, Inc.
Second Amendment
| Soclété Générale, as a Lender | ||
| By: | /s/ Xxx Xxxx | |
| Name: | Xxx Xxxx | |
| Title: | Vice President | |
Xxxx Laboratories, Inc.
Second Amendment
| SUNTRUST BANK, as a Lender | ||
| By: |
/s/ Xxx Xxxxxxxxx | |
| Name: |
Xxx Xxxxxxxxx | |
| Title: |
Vice President | |
Xxxx Laboratories, Inc.
Second Amendment
| [THE BANK OF NOVA SCOTIA], | ||
| as a Lender | ||
| By: | /s/ Xxxxx Xxxxx | |
| Name: | Xxxxx Xxxxx | |
| Title: | Director, Head of Execution | |
Xxxx Laboratories, Inc.
Second Amendment
| (SCOTIABANC INC), | ||
| as a Lender | ||
| By: | /s/ Xxxxxxx X. Xxxxx | |
| Name: | Xxxxxxx X. Xxxxx | |
| Title: | Managing Director | |
Xxxx Laboratories, Inc.
Second Amendment
| PNC BANK, NATIONAL ASSOCIATION | ||
| as a Lender | ||
| By: | /s/ Xxxxxx X. Xxxxxx | |
| Name: | Xxxxxx X. Xxxxxx | |
| Title: | Senior Vice President | |
Xxxx Laboratories, Inc.
Second Amendment
| ABN AMRO Bank NY. | ||
| as a Lender | ||
| By: | /s/ Xxxxxxx Xxxxxxxx | |
| Name: | Xxxxxxx Xxxxxxxx | |
| Title: | Director | |
| By: | /s/ Xxxx Xxxxxxxx | |
| Name: | Xxxx Xxxxxxxx | |
| Title: | Associate | |
Xxxx Laboratories, Inc.
Second Amendment
| Bank of Tokyo – | ||
| Mitsubishi Trust Company | ||
| [LENDER], | ||
| as a Lender | ||
| By: | /s/ Xxxxxxx X. Xxxxx | |
| Name: | Xxxxxxx X. Xxxxx | |
| Title: | Authorized Signatory | |
Xxxx Laboratories, Inc.
Second Amendment
| TAIWAN COOPERATIVE BANK SEATTLE BRANCH | ||
| as a Lender | ||
| By: | /s/ Xxxx Xxx | |
| Name: | Xxxx Xxx | |
| Title: | VP & General Manager | |
Xxxx Laboratories, Inc.
Second Amendment
| THE BANK OF NEW YORK MELLON, | ||
| as a Lender | ||
| By: | /s/ Xxxxxxx Xxxxxxxxx, Xx. | |
| Name: | Xxxxxxx Xxxxxxxxx, Xx. | |
| Title: | Vice President | |
Xxxx Laboratories, Inc.
Second Amendment
| LAND BANK OF TAIWAN, | ||
| as a Lender | ||
| By: | /s/ Xxxxx Xxx | |
| Name: | Xxxxx Xxx | |
| Title: | VP & General Manager | |
Xxxx Laboratories, Inc.
Second Amendment
| U.S. BANK, N.A. | ||
| as a Lender | ||
| By: | /s/ Xxxxxxxxxxx X. Xxxxxx | |
| Name: | Xxxxxxxxxxx X. Xxxxxx | |
| Title: | Senior Vice President | |
Xxxx Laboratories, Inc.
Second Amendment
| COMERICA BANK, | ||
| as a Lender | ||
| By: | /s/ Xxxxx Xxxxxxxx | |
| Name: | Xxxxx Xxxxxxxx | |
| Title: | Assistant Vice President | |
Xxxx Laboratories, Inc.
Second Amendment
| BANK HAPAOLIM B.M., as a Lender | ||
| By: | /s/ XXXXX X. XXXXXXX | |
| Name: | XXXXX X. XXXXXXX | |
| Title: | VICE PRESIDENT | |
| By: | /s/ Xxxxxxxx X. Xxxxxx | |
| Name: | Xxxxxxxx X. Xxxxxx | |
| Title: | Senior Vice President | |
9
| MALAYAN BANKING BERHAD, NEW YORK BRANCH | ||
| as a Lender | ||
| By: | /s/ Fauzi Zulkifli | |
| Name: | Fauzi Zulkifli | |
| Title: | General Manager | |
Xxxx Laboratories, Inc.
Second Amendment
| Bank of China, New York Branch, | ||
| as a Lender | ||
| By: | /s/ Xxxxxxx X. Xxxxx | |
| Name: | Xxxxxxx X. Xxxxx | |
| Title: | Deputy General Manager | |
Xxxx Laboratories, Inc.
Second Amendment
| UNICREDIT BANCA DI ROMA, SPA, NEW YORK BRANCH, as a Lender | ||
| By: | /s/ XXXXX XXX | |
| Name: | XXXXX XXX | |
| Title: | ASSISTANT TREASURER | |
| By: | /s/ XXXXXXXXXX XXXXX | |
| Name: | XXXXXXXXXX XXXXX | |
| Title: | SENIOR VICE PRESIDENT | |
Xxxx Laboratories, Inc.
Second Amendment
| KBC Bank, N.V., as a Lender | ||
| By: | /s/ Xxxxxxx Xxxxxxxxx | |
| Name: | Xxxxxxx Xxxxxxxxx | |
| Title: | Director | |
| By: | /s/ Xxxxxx X. Xxxxxxx | |
| Name: | Xxxxxx X. Xxxxxxx | |
| Title: | First Vice President | |
10
| THE KOREA DEVELOPMENT BANK | ||
| NEW YORK BRANCH as a Lender | ||
| By: | /s/ Xxx Xxxx Xxx | |
| Name: | Xxx Xxxx Xxx | |
| Title: | General Manager | |
Xxxx Laboratories, Inc.
Second Amendment
| FORTIS CAPITAL CORP. | ||
| as a Lender | ||
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Director & Group Head | |
| By: | /s/ Xxxx Xxxxxxxx | |
| Name: | Xxxx Xxxxxxxx | |
| Title: | Vice President | |
Xxxx Laboratories, Inc.
Second Amendment
| BANCO BILBAO VIZCAYA ARGENTARIA, S.A. | ||
| as a Lender | ||
| By: | /s/ Xxxxxx Xxxx | |
| Name: | Xxxxxx Xxxx | |
| Title: | Managing Director | |
| By: | /s/ Xxxx Xxxxxxxxx | |
| Name: | Xxxx Xxxxxxxxx | |
| Title: | Director - Export & Agency Finance Global Trade Finance | |
Xxxx Laboratories, Inc.
Second Amendment
| DNB NOR BANK ASA | ||
| as a Lender | ||
| By: | /s/ Xxxxxx Xxxxxx | |
| Name: | Xxxxxx Xxxxxx | |
| Title: | First Vice President | |
| DNB NOR BANK ASA as a Lender | ||
| By: | /s/ Xxxx Xxxxxxxxxx | |
| Name: | Xxxx Xxxxxxxxxx | |
| Title: | Senior Vice President | |
Xxxx Laboratories, Inc.
Second Amendment
| KEYBANK NATIONAL ASSOCIATION | ||
| as a Lender | ||
| By: | /s/ Xxxxxxx X. Xxx | |
| Name: | Xxxxxxx X. Xxx | |
| Title: | Vice President & Portfolio manager | |
Xxxx Laboratories, Inc.
Second Amendment
| BANK OF TAIWAN, NEW YORK AGENCY | ||
| as a Lender | ||
| By: | /s/ Xxxx Xxxxx | |
| Name: | Xxxx Xxxxx | |
| Title: | AVP & Deputy General Manager | |
Xxxx Laboratories, Inc.
Second Amendment
| K&H BANK ZRT., | ||
| as a Lender | ||
| By: | /s/ Orsolyo Xxxxx | |
| Name: | Orsolyo Xxxxx | |
| Title: | Director | |
| By: | /s/ Xxxxx Xxx | |
| Name: | Xxxxx Xxx | |
| Title: | Project Finance Manger | |
 | ||
Date: 27 October 2008
Xxxx Laboratories, Inc.
Second Amendment
| INTESA SANPAOLO SPA, New York Branch | ||
| as a Lender | ||
| By: | /s/ Xxxx X. Xxxxxxxxxx | |
| Name: | Xxxx X. Xxxxxxxxxx | |
| Title: | First Vice President | |
| By: | /s/ Francesco Di Mario | |
| Name: | Francesco Di Mario | |
| Title: | First Vice President & Credit Manager | |
Xxxx Laboratories, Inc.
Second Amendment
| NATIONAL CITY BANK, | ||
| as a Lender | ||
| By: | /s/ Xxxxx X. Xxxx | |
| Name: | Xxxxx X. Xxxx | |
| Title: | Vice President | |
Xxxx Laboratories, Inc.
Second Amendment
| UNITED OVERSEAS BANK LIMITED, NEW YORK AGENCY | ||
| as a Lender | ||
| By: | /s/ Xxxxxx Xxx | |
| Name: | Xxxxxx Xxx | |
| Title: | SVP & GM | |
| By: | /s/ Xxxxx Xxxxx | |
| Name: | Xxxxx Xxxxx | |
| Title: | AVP | |
Xxxx Laboratories, Inc.
Second Amendment
| TD BANK, N.A., (FKA TD BANKNORTH) | ||
| as a Lender | ||
| By: | /s/ Xxxxx X. Xxxxx | |
| Name: | Xxxxx X. Xxxxx | |
| Title: | Managing Director | |
Xxxx Laboratories, Inc.
Second Amendment
| TD BANK, N.A. (formerly known as Commerce Bank, N.A.), | ||
| as a Lender | ||
| By: | /s/ Xxxxxx X. Xxxxxx | |
| Name: | Xxxxxx X. Xxxxxx | |
| Title: | Vice President | |
Xxxx Laboratories, Inc.
Second Amendment
