Exhibit R
LUXCO GUARANTEE
GUARANTEE AGREEMENT
GUARANTEE AGREEMENT dated as of July 30, 2004 made
BETWEEN: P.P. LUXCO HOLDINGS II S.A.R.L., a corporation
constituted under the laws of Luxembourg and having its
registered office at 20 avenue Monterey, X.X. 000-X,
0000 Xxxxxxxxxx,
(the "Guarantor")
AND: NATIONAL BANK OF CANADA, a Canadian chartered bank
having its main branch at 000 xx xx Xxxxxxxxxxx Xxxxxx
West, Ground Floor, Montreal, Province of Quebec,
H3B 4L2,
(the "Lender")
WHEREAS Picchio Pharma Inc. (the "Borrower"), and the Lender have entered into a
credit agreement dated as of July 30, 2004 (as same may be amended, supplemented
or restated from time to time, the "Credit Agreement") pursuant to which the
Lender has agreed to extend credit to the Borrower in an aggregate principal
amount of $25,000,000;
WHEREAS the Credit Agreement also contemplates that the Borrower may be liable
to the Lender under Hedging Agreements and the other facilities referred in
Section 9.4 of the Credit Agreement;
WHEREAS the Guarantor is a direct subsidiary of the Borrower and benefits from
the extension of credit to the Borrower pursuant to the Credit Agreement;
WHEREAS the execution and delivery of this Guarantee by the Guarantor is a
condition to the extension of credit to the Borrower under the Credit Agreement;
NOW, THEREFORE, the parties agree as follows:
1. DEFINITIONS
1.1 Capitalized terms used herein and not otherwise defined herein shall have
the meanings assigned to such terms in the Credit Agreement;
- 2 -
1.2 The term "LENDER" herein shall mean National Bank of Canada in its
capacity as Lender under the Credit Agreement and also as counterparty
under Hedging Agreements and its successors and assigns;
1.3 The term "OBLIGATIONS" herein shall mean all present and future
indebtedness, liabilities and obligations of the Borrower to the Lender
under or arising from the Credit Agreement, the Hedging Agreements, the
other facilities referred to in Section 9.4 of the Credit Agreement and
any document evidencing any of the foregoing;
1.4 The term "SECURITY" herein shall mean any security, guarantee,
subordination and undertaking in favour of the Lender and any document
evidencing any of the foregoing.
2. GUARANTEE
The Guarantor hereby, solidarily, unconditionally and irrevocably,
guarantees to the Lender the payment and the performance in full of all of
the Obligations in accordance with their respective terms and when and as
due (whether at maturity, by reason of acceleration or otherwise). The
liability of the Guarantor shall continue until the payment and
performance in full of the Obligations, provided that the Guarantor shall
have no obligation to make any payment in excess of the Obligations.
3. LIMITATION ON GUARANTEE
Notwithstanding anything contrary in this agreement, the liability of the
Guarantor under this Guarantee shall be limited to an amount not exceeding
forty million Dollars ($40,000,000), plus interest at Prime Rate plus 2%
from the date at which a demand for payment is made under Article 4.
4. PAYMENT
4.1 The Guarantor shall be liable for the payment of any amount owed on
account of the Obligations upon receipt of a written demand from the
Lender.
4.2 All payments due under this Guarantee shall be made to the Lender in such
manner and at such place as the Lender may specify by written notice to
the Guarantor.
4.3 Any amount payable by the Guarantor hereunder shall be paid in the
currency of the Obligation to which such amount relates.
4.4 The records of the Lender shall be, absent manifest error, prima facie
evidence of the Obligations owing to the Lender and of all payments and
performances in respect thereof.
5. CHANGES IN CIRCUMSTANCES AND WAIVERS
5.1 This Guarantee shall remain in effect notwithstanding any change in the
corporate status, the constitution, the business, the objects or the
shareholders of the Guarantor or the Borrower
- 3 -
and notwithstanding any termination of or change in the relationships that
exist between the Borrower and the Guarantor.
5.2 The liability of the Guarantor under this Guarantee shall not be released,
reduced or affected
a) by reason of any amendment, waiver, release, or extension
granted in respect of the Obligations or any Security by the
Lender without the consent of or notification to the
Guarantor, or
b) by reason of any failure to obtain, preserve or perfect any
Security or of any release or subordination of any Security,
or
c) by reason of any release of or any stay of proceedings against
the Borrower pursuant to any law relating to bankruptcy,
insolvency, restructuring or affecting creditors' rights
generally, or
d) by reason of any payment made on account of the Obligations by
any person other than the Guarantor.
5.3 This Guarantee shall oblige the Guarantor to pay on demand any sum owed
hereunder and the Lender shall not be bound to exercise their recourses
against the Borrower or any person liable with or for the Borrower, to
realize on any Security whatsoever nor to await the results of any
liquidation of any property. The Guarantor waives any benefit of division
and discussion and shall not be entitled to exercise any subrogation
resulting from any payment made under the Lender shall have been paid in
full of all moneys owed to it under the Obligations.
5.4 The Guarantor waives any right to assert against the Lender as a defence,
counterclaim, set-off or cross claim, or any other claim which the
Guarantor may now or at any time hereafter have against the Borrower or
Lender and the Guarantor also waives any defence based on or arising from
the invalidity or the unenforceability of any of the Obligations or any
part thereof.
6. JUDGMENT CURRENCY
If a judgment is rendered against the Guarantor for an amount owed
hereunder and if the judgment is rendered in a currency ("Other Currency")
other than that in which such amount is owed under this Guarantee
("Currency of the Agreement"), the Guarantor shall pay, if applicable, at
the date of payment of the judgment, an additional amount equal to the
excess (i) of the said amount owed under this Guarantee, expressed into
the Other Currency as at the date of payment of the judgment, over (ii)
the amount of the judgment. For the purposes of obtaining the judgment and
making the calculation referred to in (i), the exchange rate shall be the
spot rate at which the Lender, on the relevant date, may in Montreal, sell
the Currency of the Agreement to obtain the Other Currency. Any additional
amount owed under this Section 6 shall constitute a cause of action
distinct from the cause of action which gave rise to the judgment, and
said judgment shall not constitute res judicata in that respect.
- 4 -
7. TAXES
If, due to the existence of any tax or levy, the Guarantor is compelled by
law to make any withholding or deduction in respect of any payment due or
made by a Guarantor, the Guarantor must pay to the Lender such additional
amount as may be necessary in order that the payment actually received be
equal to the payment which otherwise would have been received in the
absence of such withholding or deduction (including in the absence of any
additional withholding or deduction in respect of any additional amount
payable pursuant to this Section 7). However, this Section 7 will not
apply in respect of a tax on the overall net income or the capital of the
Lender or of any tax or levy arising by reason of the Lender assigning its
rights to a non-resident of Canada.
8. RELIANCE
8.1 The Guarantor represents and warrants to the Lender that:
8.1.1 the Guarantor has the capacity and power to execute this Guarantee
and all necessary actions or consents to authorize the execution and
performance of same have been taken or obtained; this Guarantee
constitutes a valid and binding obligation of the Guarantor;
8.1.2 the Guarantor has had adequate means to obtain from the Borrower
information concerning the Borrower and the Borrower's financial
condition and affairs;
8.1.3 the Guarantor is executing this Guarantee freely and deliberately,
and understands the obligations and financial risk undertaken by
providing this Guarantee;
8.1.4 the Guarantor has not depended or relied on the Lender and its
representatives for any information whatsoever concerning the
Borrower or the Borrower's financial condition and affairs or other
matters material to the Guarantor's decision to provide this
Guarantee or for any counselling or guidance therefor with respect
to such decision; and
8.1.5 the Guarantor has the financial ability to meet its obligations
under this Guarantee.
8.2 The Guarantor agrees that the Lender has no duty or responsibility
whatsoever, now or in the future, to provide to the Guarantor any
information concerning the Borrower or the Borrower's financial condition
and affairs and that, if the Guarantor receives any such information from
the Lender, the Guarantor will independently verify the information and
will not rely on the Lender, with respect to the accuracy of such
information.
9. INTERPRETATION
9.1 This Guarantee shall be governed by and construed in accordance with the
laws in effect in the Province of Quebec.
- 5 -
9.2 This Guarantee is in addition to and not in substitution of or in
replacement for any other hypothec, pledge, security, guarantee or other
right held by or benefiting to the Lender.
10. JURISDICTION; CONSENT TO SERVICE OF PROCESS
10.1 Each of the parties hereto hereby irrevocably and unconditionally submits,
to the nonexclusive jurisdiction of the courts of the Province of Quebec
sitting in the judicial district of Montreal and any appellate court from
such courts in any action or proceeding arising out of or relating to this
Guarantee, 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 such courts. 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 in any manner provided by law. Nothing in
this Guarantee shall affect any right that the Lender may otherwise have
to bring any action or proceeding relating to this Guarantee against the
Guarantor or its properties in the courts of any other jurisdiction.
10.2 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 the courts of the Province of
Quebec.
10.3 Each party to this Guarantee irrevocably consents to service of any such
action or proceeding in the manner provided for notices in Section 11.
Nothing in this Agreement will affect the right of any party to this
Guarantee to serve any action or proceeding in any other manner permitted
by law.
11. NOTICES
All notices, requests and demands to or upon the Guarantor or the Lender
to be effective shall be in writing (including by telecopy) and shall be
deemed to have been duly given or made, when delivered by hand or courier,
on the day of actual delivery thereof, when delivered by mail five
Business Days after being deposited in the mail, postage prepaid, or in
the case of telecopy notice, on the Business Day following the date of
transmission, addressed as follows:
11.1 If to the Guarantor, at its address or transmission number for notices
provided below:
P.P. LUXCO HOLDINGS II S.A.R.L.
c/o Mr. Stephane Hadet
Oostvogels & Xxxxxxx
00, xxxxxx Xxxxxxxx
X.X. 000 / X00000
Xxxxxxxxxx
Fax: (000) 000.000000
- 6 -
11.2 If to the Lender, at its address or transmission number for notices
provided below:
NATIONAL BANK OF CANADA
000 xx Xx Xxxxxxxxxxx Xxxx
National Accounts
Xxxxxx Xxxxx
Xxxxxxxx (Xxxxxx) X0X 0X0
Attention: Director
Fax: (000) 000-0000
The Guarantor or the Lender may change their addresses and transmission
numbers for notices by notice in the manner provided in this Section.
12. COUNTERPARTS
This Guarantee may be executed in any number of counterparts, each of
which shall be deemed to be an original as against any party whose
signature appears thereon, and all of which shall constitute one and the
same instrument. Any manually executed counterpart hereto delivered by
facsimile transmission shall be deemed delivery of an original counterpart
hereto.
[THE SIGNATURES OF THE PARTIES APPEAR ON THE FOLLOWING PAGE]
- 7 -
IN WITNESS WHEREOF, the parties have duly executed this Guarantee as of
the day and year first written above.
P.P. LUXCO HOLDINGS II S.A.R.L., as Guarantor
Per: /s/ Xxxxxxxxx Xxxxxx
----------------------------------------
NATIONAL BANK OF CANADA, as Lender
Per: /s/ Xxxx Xxxxxxx
----------------------------------------
Per: /s/ Xxxxxxx Xxxxxx
----------------------------------------
