Exhibit 10.1
EXECUTION COPY
$1,100,000,000
CREDIT AGREEMENT
dated as of
March 20, 2006
among
BANNER ACQUISITION, INC.,
AS BORROWER
ALLERGAN, INC.,
AS GUARANTOR
THE LENDERS PARTY HERETO
BANK OF AMERICA, N.A.,
AS ADMINISTRATIVE AGENT
----------
XXXXXX XXXXXXX SENIOR FUNDING, INC. AND
BANC OF AMERICA SECURITIES LLC,
AS JOINT LEAD ARRANGERS AND JOINT BOOKRUNNERS
AND AS SYNDICATION AGENTS
CITICORP NORTH AMERICA, INC. AND
XXXXXXX SACHS CREDIT PARTNERS L.P.,
AS DOCUMENTATION AGENTS
TABLE OF CONTENTS
PAGE
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ARTICLE 1
DEFINITIONS
Section 1.01. Definitions .............................................. 1
Section 1.02. Accounting Terms and Determinations ...................... 12
Section 1.03. Types of Borrowings ...................................... 13
ARTICLE 2
THE CREDITS
Section 2.01. Commitments to Lend ...................................... 13
Section 2.02. Notice of Borrowings ..................................... 13
Section 2.03. Notice to Lenders; Funding of Loans ...................... 14
Section 2.04. Notes .................................................... 14
Section 2.05. Maturity of Loans ........................................ 15
Section 2.06. Interest Rates ........................................... 15
Section 2.07. Fees ..................................................... 16
Section 2.08. Method of Electing Types of Interest Rates and Interest
Periods .................................................. 17
Section 2.09. Termination or Reduction of Commitments .................. 18
Section 2.10. Optional Prepayments ..................................... 18
Section 2.11. Mandatory Prepayments .................................... 19
Section 2.12. Notice of Reduction Events ............................... 19
Section 2.13. General Provisions as to Payments ........................ 19
Section 2.14. Funding Losses ........................................... 20
Section 2.15. Computation of Interest and Fees ......................... 20
Section 2.16. Reserve Costs ............................................ 21
ARTICLE 3
CONDITIONS
Section 3.01. Effective Date and Initial Borrowing ..................... 21
Section 3.02. All Borrowings ........................................... 24
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Section 4.01. Corporate Existence and Power ............................ 24
Section 4.02. Corporate and Governmental Authorization; No
Contravention ............................................ 24
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Section 4.03. Binding Effect ........................................... 25
Section 4.04. Financial Information .................................... 25
Section 4.05. Litigation ............................................... 25
Section 4.06. Compliance with ERISA .................................... 26
Section 4.07. Environmental Matters .................................... 26
Section 4.08. Taxes .................................................... 26
Section 4.09. Not an Investment Company ................................ 26
Section 4.10. Full Disclosure .......................................... 26
Section 4.11. Subsidiaries ............................................. 27
Section 4.12. Good Title to Properties ................................. 27
Section 4.13. Trademarks, Patents, Etc ................................. 27
ARTICLE 5
COVENANTS
Section 5.01. Information .............................................. 28
Section 5.02. Payment of Obligations ................................... 30
Section 5.03. Maintenance of Property; Insurance ....................... 30
Section 5.04. Conduct of Business and Maintenance of Existence ......... 31
Section 5.05. Compliance with Laws ..................................... 31
Section 5.06. Inspection of Property, Books and Records ................ 31
Section 5.07. Subsidiary Debt .......................................... 31
Section 5.08. Debt to Capitalization ................................... 31
Section 5.09. Minimum Consolidated Net Worth ........................... 32
Section 5.10. Negative Pledge .......................................... 32
Section 5.11. Consolidations, Mergers and Sales of Assets .............. 33
Section 5.12. Use of Proceeds .......................................... 33
Section 5.13. Transactions with Affiliates ............................. 33
Section 5.14. Limitation on Acquisitions ............................... 34
Section 5.15. The Exchange Offer ....................................... 34
ARTICLE 6
DEFAULTS
Section 6.01. Events of Default ........................................ 35
Section 6.02. Notice of Default ........................................ 37
ARTICLE 7
THE AGENTS
Section 7.01. Appointment and Authorization ............................ 38
Section 7.02. Agents and Affiliates .................................... 38
Section 7.03. Action by the Agents ..................................... 38
Section 7.04. Consultation with Experts ................................ 38
Section 7.05. Liability of the Agents .................................. 38
Section 7.06. Indemnification .......................................... 39
Section 7.07. Credit Decision .......................................... 39
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Section 7.08. Successor Administrative Agent ........................... 39
Section 7.09. Syndication and Documentation Agents ..................... 40
ARTICLE 8
CHANGE IN CIRCUMSTANCES
Section 8.01. Basis for Determining Interest Rate Inadequate or
Unfair ................................................... 40
Section 8.02. Illegality ............................................... 41
Section 8.03. Increased Cost and Reduced Return ........................ 41
Section 8.04. Taxes .................................................... 42
Section 8.05. Base Rate Loans Substituted for Affected Euro-Dollar
Loans .................................................... 45
Section 8.06. Substitution of Lender ................................... 46
ARTICLE 9
GUARANTY
Section 9.01. The Guaranty ............................................. 46
Section 9.02. Guaranty Unconditional ................................... 47
Section 9.03. Discharge only upon Payment in Full; Reinstatement in
Certain Circumstances .................................... 48
Section 9.04. Waiver by the Company .................................... 48
Section 9.05. Subrogation .............................................. 48
Section 9.06. Stay of Acceleration ..................................... 48
ARTICLE 10
MISCELLANEOUS
Section 10.01. Notices .................................................. 48
Section 10.02. No Waivers ............................................... 51
Section 10.03. Expenses; Indemnification ................................ 51
Section 10.04. Set-offs; Sharing ........................................ 52
Section 10.05. Amendments and Waivers ................................... 52
Section 10.06. Successors and Assigns ................................... 53
Section 10.07. Collateral ............................................... 55
Section 10.08. Governing Law; Submission to Jurisdiction ................ 55
Section 10.09. Counterparts; Integration ................................ 55
Section 10.10. Waiver of Jury Trial ..................................... 55
Section 10.11. Treatment Of Certain Information; Confidentiality ........ 55
Section 10.12. USA Patriot Act Notice ................................... 56
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Commitment Schedule
Pricing Schedule
Exhibit A - Form of Note
Exhibit B - Form of Opinion of General Counsel for the Company
Exhibit C - Form of Opinion of Xxxxx Xxxx & Xxxxxxxx, Special Counsel to the
Agents
Exhibit D - Form of Assignment and Assumption Agreement
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CREDIT AGREEMENT
AGREEMENT (this "AGREEMENT") dated as of March 20, 2006 among BANNER
ACQUISITION, INC., ALLERGAN, INC., the LENDERS party hereto, XXXXXX XXXXXXX
SENIOR FUNDING, INC. and BANC OF AMERICA SECURITIES LLC, as Arrangers, and BANK
OF AMERICA, N.A., as Administrative Agent.
WHEREAS, Banner Acquisition, Inc., a Delaware corporation (together with
its successors, "BANNER") is a wholly owned subsidiary of Allergan, Inc., a
Delaware corporation (together with its successors, the "COMPANY");
WHEREAS, the Company intends to acquire (the "ACQUISITION") all or
substantially all of the issued and outstanding shares of common stock of Inamed
Corporation, a Delaware corporation (the "TARGET") by causing Banner to commence
an exchange offer therefor (the "EXCHANGE OFFER") for cash and other
consideration pursuant to the terms of the Exchange Offer Documents (defined
below);
WHEREAS, Banner desires to borrow funds under this Agreement to finance the
Acquisition and for the other purposes set forth herein;
WHEREAS, the Company is willing to guarantee the foregoing obligations of
Banner as provided herein;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions. The following terms, as used herein, have the
following meanings:
"ACQUISITION" has the meaning given in the second recital hereto.
"ACQUISITION DOCUMENTS" means the Merger Agreement and the Exchange Offer
Documents.
"ADJUSTED CASH" means an amount equal to 70% of the cash and cash
equivalents denominated in Dollars or in any currency which is readily
exchangeable into Dollars and which is not, at such time, subject to any form of
exchange control regulation and which is not held in escrow as contemplated by
clause (ii) of the definition of Consolidated Debt, and which are payable by
either their terms at an address within the United States and by a United States
resident or other person having an address within the United States, owned by
Allergan
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Pharmaceuticals Holdings (Ireland) Limited ("APHIL"), a subsidiary of Allergan
Holdings, Inc., a Delaware corporation, or by the Company, such amount not to
exceed $150,000,000 in respect of cash and cash equivalents owned by APHIL and
$150,000,000 in respect of cash and cash equivalents owned by the Company;
provided that if the Company gives written notice to the Administrative Agent
that it will prefinance the redemption of its Zero Coupon Convertible Senior
Notes Due 2022 then for the period from the date of such notice to the earlier
of (x) November 30, 2007 and (y) the date that all of the Zero Coupon
Convertible Notes Due 2022 have been paid in full or converted, (a) the
percentage of cash and cash equivalents of the Company included in calculating
Adjusted Cash shall be increased from 70% to 100% and (b) the limitation on the
amount of Adjusted Cash with respect to cash and cash equivalents owned by the
Company shall be increased from $150,000,000 to $500,000,000.
"ADJUSTED CONSOLIDATED NET WORTH" means, at any date, Consolidated Net
Worth less (to the extent reflected in the determination thereof) all
investments in unconsolidated Subsidiaries and all equity investments in Persons
which are not Subsidiaries.
"ADMINISTRATIVE AGENT" means Bank of America, N.A., in its capacity as
administrative agent for the Lenders hereunder, and its successors in such
capacity.
"ADMINISTRATIVE QUESTIONNAIRE" means, with respect to each Lender, an
administrative questionnaire in the form prepared by the Administrative Agent,
duly completed by such Lender and submitted to the Administrative Agent (with a
copy to the Company).
"AFFILIATE" means (i) any Person (other than the Company and its
Subsidiaries) directly or indirectly controlling, controlled by, or under common
control with the Company or (ii) any Person (other than the Company and its
Subsidiaries) that owns or controls 20% or more of any class of equity
securities of the Company or any of its Subsidiaries or Affiliates. For the
purposes of this definition, "CONTROL" (including with correlative meanings, the
terms "CONTROLLING", "CONTROLLED BY," and "UNDER COMMON CONTROL WITH"), as
applied to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of that
Person, whether through the ownership of voting securities or by contract or
otherwise.
"AGENTS" means the Administrative Agent and the Arrangers, and "AGENT"
means any of them.
"AGREEMENT" has the meaning given in the preamble hereto.
"APPLICABLE LENDING OFFICE" means, with respect to any Lender, (i) in the
case of its Base Rate Loans, its Domestic Lending Office, and (ii) in the case
of its Euro-Dollar Loans, its Euro-Dollar Lending Office.
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"APPROVED FUND" means any Fund 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.
"ARRANGER" means each of Xxxxxx Xxxxxxx Senior Funding, Inc. and Banc of
America Securities LLC, as a joint lead arranger and joint book runner
hereunder, and "ARRANGERS" means both of them.
"ASSIGNEE" has the meaning set forth in Section 10.06(c).
"BANNER" has the meaning given in the first recital hereto.
"BASE RATE" means, for any day, a rate per annum equal to the higher of (i)
the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the Federal Funds
Rate for such day.
"BASE RATE LOAN" means (i) a Loan that is outstanding as a Base Rate Loan
in accordance with the applicable Notice of Borrowing or an applicable Notice of
Interest Rate Election or pursuant to Article 8 or the last sentence of Section
2.08(a) or (ii) an overdue amount which was a Base Rate Loan immediately before
it became overdue.
"BASE RATE MARGIN" means the applicable rate per annum determined in
accordance with the Pricing Schedule.
"BORROWER" means Banner and its successors.
"BORROWING" has the meaning set forth in Section 1.03.
"COMMITMENT" means (i) with respect to any Lender listed on the Commitment
Schedule attached hereto, the amount set forth opposite its name on such
Commitment Schedule as its Commitment or (ii) with respect to any Assignee, the
amount of the transferor Lender's Commitment assigned to such Assignee pursuant
to Section 10.06(c), in each case as such amount may be reduced from time to
time pursuant to Section 2.09 or changed as a result of an assignment pursuant
to Section 10.06(c). The initial aggregate amount of the Commitments is
$1,100,000,000.
"COMMITMENT FEE RATE" means the applicable rate per annum determined in
accordance with the Pricing Schedule.
"COMMITMENT TERMINATION DATE" means the earliest of (i) April 20, 2006,
(ii) the date on which the Exchange Offer lapses or terminates, and (iii) the
day on which the Commitments are terminated pursuant to Section 6.01.
"COMPANY" has the meaning given in the first recital hereto.
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"CONSOLIDATED DEBT" means at any date, the Debt of the Company and its
Consolidated Subsidiaries, determined on a consolidated basis as of such date.
"CONSOLIDATED NET INCOME" means consolidated net income of the Company and
its Consolidated Subsidiaries.
"CONSOLIDATED NET WORTH" means at any date (i) the consolidated
stockholders' equity of the Company and its Consolidated Subsidiaries determined
as of such date minus (ii) (to the extent reflected in determining such
consolidated stockholders' equity) all write-ups (other than write-ups resulting
from foreign currency translations and write-ups of assets of a going concern
business made within twelve months after the acquisition of such business)
subsequent to December 31, 2004 in the book value of any asset owned by the
Company or a Consolidated Subsidiary plus (iii) $446,871,000.
"CONSOLIDATED SUBSIDIARY" means at any date any Subsidiary or other entity
the accounts of which would be consolidated with those of the Company in its
consolidated financial statements if such statements were prepared as of such
date.
"CREDIT EXPOSURE" means, with respect to any Lender at any time, without
duplication, (i) the amount of the unused portion of its outstanding Commitment
at such time plus (ii) the aggregate outstanding principal amount of its Loans.
"DEBT" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, (iv) all obligations of such Person as lessee which are capitalized in
accordance with generally accepted accounting principles, (v) all Debt secured
by a Lien on any asset of such Person, whether or not such Debt is otherwise an
obligation of such Person and (vi) all Debt of others Guaranteed by such Person.
"DEFAULT" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"DOLLARS" and the sign "$" mean lawful money of the United States.
"DOMESTIC BUSINESS DAY" means any day except a Saturday, Sunday or other
day on which commercial banks are authorized by law to close in the state in
which the Administrative Agent's office is located, as such location is set
forth in Section 10.01 or from time to time notified by the Administrative Agent
to the Loan Parties and the Lenders.
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"DOMESTIC LENDING OFFICE" means, as to each Lender, its office located at
its address set forth in its Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Lender may hereafter designate as its Domestic Lending Office by
notice to the Company and the Administrative Agent.
"EFFECTIVE DATE" means the first date on which each condition specified in
Section 3.01 is satisfied in accordance with its terms.
"ENVIRONMENTAL LAWS" means any and all federal, state, local and foreign
statutes, laws, judicial decisions, regulations, ordinances, rules, judgments,
orders, decrees, plans, injunctions, permits, concessions, grants, franchises,
licenses, agreements and other governmental restrictions relating to the
environment, the effect of the environment on human health or to emissions,
discharges or releases of pollutants, contaminants, Hazardous Substances or
wastes into the environment including, without limitation, ambient air, surface
water, ground water, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, Hazardous Substances or wastes or the
clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA GROUP" means the Company, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Company or any
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
"EURO-DOLLAR BUSINESS DAY" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
Dollar deposits) in London.
"EURO-DOLLAR LENDING OFFICE" means, as to each Lender, its office, branch
or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office, branch or affiliate of such
Lender as it may hereafter designate as its Euro-Dollar Lending Office by notice
to the Company and the Administrative Agent.
"EURO-DOLLAR LOAN" means (i) a Loan that is outstanding as a Euro-Dollar
Loan in accordance with the applicable Notice of Borrowing or an applicable
Notice of Interest Rate Election or (ii) an overdue amount which was a
Euro-Dollar Loan immediately before it became overdue.
"EURO-DOLLAR MARGIN" means the applicable rate per annum determined in
accordance with the Pricing Schedule.
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"EURO-DOLLAR RESERVE PERCENTAGE" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "Eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Lender to
United States residents).
"EVENT OF DEFAULT" has the meaning set forth in Section 6.01.
"EXCHANGE OFFER" has the meaning given in the recitals hereto.
"EXCHANGE OFFER DOCUMENTS" means the registration statement on Form S-4
under the U.S. Securities Act of 1933 filed with the SEC on December 22, 2005
relating to the Exchange Offer for the Target Shares by Banner, as amended or
modified thereafter from time to time; provided that no amendment or other
modification of a material term therein shall be effective for purposes of this
Agreement unless consented to by the Required Lenders pursuant to Section 5.15.
"EXISTING CREDIT FACILITY" means the $400,000,000 Credit Agreement dated as
of October 11, 2002 as amended from time to time, among the Company, the
eligible subsidiaries party thereto, the lenders parties thereto, and the agents
parties thereto.
"FAS 87" means United States Financial Accounting Standard No. 87.
"FEDERAL FUNDS RATE" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, provided that (i) if such day is not a Domestic
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so published on the
next succeeding Domestic Business Day, and (ii) if no such rate is so published
on such next succeeding Domestic Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to Bank of America, N.A., on such day on
such transactions, as determined by the Administrative Agent.
"FUND" means any Person (other than a natural Person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
6
"GROUP OF LOANS" means at any time a group of Loans consisting of (i) all
outstanding Base Rate Loans at such time or (ii) all outstanding Euro-Dollar
Loans having the same Interest Period at such time; provided that, if a
Euro-Dollar Loan of any particular Lender is converted to or made as a Base Rate
Loan pursuant to Section 8.02 or Section 8.05, such Loan shall be included in
the same Group of Loans from time to time as it would have been in if it had not
been so converted or made.
"GOVERNMENTAL AUTHORITY" means any federal, state, local, foreign or other
governmental or administrative body, instrumentality, department or agency or
any court, tribunal, administrative hearing body, arbitration panel, commission
or other similar dispute resolving panel or body.
"GUARANTEE" by any Person means any obligation, contingent or otherwise, of
such Person directly or indirectly guaranteeing any Debt of any other Person
and, without limiting the generality of the foregoing, any obligation, direct or
indirect, contingent or otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Debt (whether
arising by virtue of partnership arrangements, by agreement to keep-well, to
purchase assets, goods, securities or services, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into for the
purpose of assuring in any other manner the holder of such Debt of the payment
thereof or to protect such holder against loss in respect thereof (in whole or
in part), provided that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business. The term "GUARANTEE"
used as a verb has a corresponding meaning.
"GUARANTOR" means the Company in its capacity as guarantor of the
obligations of the Borrower pursuant to the provisions of Article 9.
"HAZARDOUS SUBSTANCES" means any toxic, radioactive, caustic or otherwise
hazardous substance, including petroleum, its derivatives, by-products and other
hydrocarbons, or any substance having any constituent elements displaying any of
the foregoing characteristics.
"INDEMNITEE" has the meaning set forth in Section 10.03(b).
"INTEREST PERIOD" means, with respect to each Euro-Dollar Loan, a period
commencing on the date of borrowing specified in the applicable Notice of
Borrowing or on the date specified in an applicable Notice of Interest Rate
Election and ending one, two, three or six months thereafter, as the Company may
elect in the applicable notice; provided that:
(a) any Interest Period (other than an Interest Period determined
pursuant to clause (c) below) which would otherwise end on a day which
is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day unless
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such Euro-Dollar Business Day falls in another calendar month, in
which case such Interest Period shall end on the next preceding
Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day in a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (c) below, end on the last
Euro-Dollar Business Day in a calendar month; and
(c) no Interest Period shall extend beyond the Maturity Date (or,
if the Maturity Date is not a Euro-Dollar Business Day, the next
preceding Euro-Dollar Business Day).
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"LENDER" means each bank or financial institution listed on the signature
pages hereof, each Assignee which becomes a Lender pursuant to Section 10.06(c),
and their respective successors.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind, or any other type of
preferential arrangement that has the practical effect of creating a security
interest in respect of such asset. For the purposes of this Agreement, the
Company or any Subsidiary shall be deemed to own subject to a Lien any asset
which it has acquired or holds subject to the interest of a vendor or lessor
under any conditional sale agreement, capital lease or other title retention
agreement relating to such asset.
"LOAN" means a Base Rate Loan or a Euro-Dollar Loan made by a Lender
pursuant to Section 2.01; provided that, if any such loan or loans (or portions
thereof) are combined or subdivided pursuant to a Notice of Interest Rate
Election, the term "LOAN" shall refer to the combined principal amount resulting
from such combination or to each of the separate principal amounts resulting
from such subdivision, as the case may be, and "LOANS" means any combination of
the foregoing.
"LOAN PARTIES" means Banner as Borrower hereunder and the Company as
Guarantor hereunder, and "LOAN PARTY" means either of the foregoing.
"LONDON INTERBANK OFFERED RATE" has the meaning set forth in Section
2.06(b).
"MARGIN STOCK" has the meaning set forth in Regulation U of the Board of
Governors of the Federal Reserve System.
8
"MATERIAL DEBT" means Debt (other than the Loans) of the Company and/or one
or more of its Subsidiaries, arising in one or more related or unrelated
transactions, in an aggregate principal amount exceeding $40,000,000.
"MATERIALLY ADVERSE EFFECT" means any materially adverse change in the
business, operations, condition (financial or otherwise) or assets of the
Company and its Subsidiaries taken as a whole.
"MATERIAL PLAN" means at any time a Plan or Plans having aggregate Unfunded
Liabilities in excess of $20,000,000.
"MATURITY DATE" means March 19, 2007.
"MERGER" means the merger of Banner with and into the Target, with the
Target as the surviving Person, on the terms set forth in the Merger Agreement.
"MERGER AGREEMENT" means the Agreement and Plan of Merger dated as of
December 20, 2005 among the Company, Banner and the Target.
"MOODY'S" means Xxxxx'x Investors Services, Inc., or any successor to such
corporation's business of rating debt securities.
"MULTIEMPLOYER PLAN" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA Group during such
five year period.
"NET PROCEEDS" means, with respect to any Reduction Event, (a) the cash
proceeds received in respect thereof (including any cash received in respect of
any non-cash proceeds, but only when and as received), in each case net of (b)
the sum of (i) all reasonable fees and out-of-pocket expenses paid by the
Company and its Subsidiaries paid to third parties (other than Affiliates) in
connection with such Reduction Event, (ii) in the case of a sale, transfer or
other disposition of an asset (including pursuant to a sale and leaseback
transaction), the amount of all payments required to be made by the Company and
its Subsidiaries as a result of such Reduction Event to repay or redeem (x) Debt
(other than the Loans hereunder) secured by such asset or otherwise subject to
mandatory prepayment as a result of such Reduction Event, and (y) minority
interests in such asset, and (iii) the amount of all taxes paid (or reasonably
estimated to be payable) by the Company and its Subsidiaries, and the amount of
any reserves established by the Company and its Subsidiaries to fund contingent
liabilities (including liabilities in respect of indemnities, warranties and
similar claims) reasonably estimated to be payable, in each case during the year
that such event occurred and the next succeeding year, that are directly
attributable to such Reduction Event (as
9
determined reasonably and in good faith and certified by the principal financial
officer or principal accounting officer of the Company).
"NOTES" means promissory notes of the Borrower, substantially in the form
of Exhibit A hereto, evidencing the obligation of the Borrower to repay the
Loans made to it, and "NOTE" means any one of such promissory notes issued
hereunder.
"NOTICE OF BORROWING" has the meaning set forth in Section 2.02.
"NOTICE OF INTEREST RATE ELECTION" means a notice by the Company electing a
type of interest rate and/or the duration of an Interest Period as provided in
Section 2.08(a) or 2.10.
"OVERNIGHT LIBO RATE" has the meaning set forth in Section 2.06(c).
"PARENT" means, with respect to any Lender, any Person controlling such
Lender.
"PARTICIPANT" has the meaning set forth in Section 10.06(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"PERCENTAGE" means, with respect to any Lender at any time, the percentage
(carried out to the ninth decimal place) which the amount of its Credit Exposure
at such time represents of the aggregate amount of all Credit Exposures of all
Lenders at such time.
"PERSON" means an individual, a corporation, a limited liability company, a
partnership, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"PLAN" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"PRICING SCHEDULE" means the Pricing Schedule attached hereto.
"PRIME RATE" means the rate of interest publicly announced by Bank of
America, N.A. from time to time as its "prime rate".
10
"QUARTERLY PAYMENT DATE" means last Domestic Business Day of each March,
June, September and December.
"REDUCTION EVENT" means any of the following occurring on or after the date
hereof:
(i) any sale, transfer of other disposition (including pursuant to a
sale and leaseback transaction) of any property of the Company or any
Subsidiary, except (A) any sales, transfers or other dispositions in the
ordinary course and (B) other sales, transfers or dispositions resulting in
aggregate Net Proceeds not exceeding $25,000,000 for any disposition
transaction or $50,000,000 for all such qualifying disposition
transactions;
(ii) the incurrence by the Company or any Subsidiary of any Debt,
including without limitation pursuant to a public offering, private
placement or a syndicated bank financing, except (A) Debt incurred under
this Agreement, (B) Debt incurred in the ordinary course under the Existing
Credit Facility or under bilateral lines of credit available to the Company
or any Subsidiary on the Effective Date, or refinancings thereof on terms
not materially less favorable to the Company or such Subsidiary than the
terms thereof, and in amounts not in excess of the amounts available
thereunder, on the Effective Date, provided that such Debt is not used
directly or indirectly to finance the Acquisition and (C) refinancings of
the Company's Zero Coupon Convertible Senior Notes due 2022 (the
"CONVERTS") and medium term notes outstanding on the Effective Date in
amounts not in excess of the amounts thereof outstanding on the Effective
Date plus, in the case of the Converts, $250,000,000 (the "STOCK REPURCHASE
AMOUNT"); provided that (x) the Stock Repurchase Amount shall be used
solely to purchase common stock of the Company and to pay associated fees
and expenses and (y) such purchases shall be consummated within 60 days of
the refinancing of the Converts; and
(iii) the issuance by the Company or any Subsidiary of any equity
security, including without limitation any equity-linked security (other
than refinancings of the Company's Zero Coupon Convertible Notes due 2022
described in clause (ii)(C) of this definition), or the receipt by the
Company or any Subsidiary of any capital contribution, except (A) any such
issuance of any equity security to, or receipt of any such capital
contribution from, the Company or any Subsidiary, (B) any such issuance in
connection with the exercise of employee stock options or any such issuance
in the ordinary course to officers, employees, consultants and directors
and (C) any such issuance to consummate the Acquisition.
"REGISTER" has the meaning specified in Section 2.04(a).
"REQUIRED LENDERS" means at any time Lenders having more than 50% of the
aggregate amount of the Credit Exposures.
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"SEC" means the U.S. Securities and Exchange Commission.
"S&P" means Standard & Poor's Ratings Services, or any successor to such
corporation's business of rating debt securities.
"SUBSIDIARY" means any corporation or other entity of which securities or
other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at the
time directly or indirectly owned by the Company. On and after the date of (and
after giving effect to) the consummation of the Acquisition, each of the Target
and its subsidiaries shall be a "Subsidiary" for all purposes hereunder.
"TARGET" has the meaning given in the second recital hereto.
"TARGET SHARES" means the common stock of the Target, par value $0.01 per
share, and (unless the context otherwise requires) the associated preferred
stock purchase rights issued pursuant to the Amended and Restated Rights
Agreement dated as of November 16, 1999 by and between the Target and U.S. Stock
Transfer Corporation, as Rights Agent, as in effect from time to time.
"TOTAL OUTSTANDING AMOUNT" means, at any time, the aggregate outstanding
principal amount of the Loans determined at such time.
"UNFUNDED LIABILITIES" means, with respect to any Plan at any time, the
amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
FAS 87, exceeds (ii) the fair market value of all Plan assets allocable to such
liabilities under Title IV of ERISA (excluding any accrued but unpaid
contributions), all determined as of the then most recent valuation date for
such Plan, but only to the extent that such excess represents a potential
liability of a member of the ERISA Group to the PBGC or any other Person under
Title IV of ERISA.
"UNITED STATES" means the United States of America, including the States
thereof and the District of Columbia, but excluding its territories and
possessions.
"WHOLLY-OWNED SUBSIDIARY" means any Subsidiary all of the shares of capital
stock or other ownership interests of which (except directors' qualifying
shares) are at the time directly or indirectly owned by the Company.
Section 1.02. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with
generally accepted accounting principles as in effect from time to time, applied
on a basis consistent (except for changes concurred in by the Company's
independent public accountants) with the most recent audited consolidated
financial statements of the Company and its Consolidated Subsidiaries delivered
to the Lenders; provided
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that, if the Company notifies the Administrative Agent that the Company wishes
to amend any covenant in Article 5 to eliminate the effect of any change in
generally accepted accounting principles on the operation of such covenant (or
if the Administrative Agent notifies the Company that the Required Lenders wish
to amend Article 5 for such purpose), then the Company's compliance with such
covenant shall be determined on the basis of generally accepted accounting
principles in effect immediately before the relevant change in generally
accepted accounting principles became effective, until either such notice is
withdrawn or such covenant is amended in a manner satisfactory to the Company
and the Required Lenders.
Section 1.03. Types of Borrowings. The term "BORROWING" denotes the
aggregation of Loans by one or more Lenders to be made to a single Borrower
pursuant to Article 2 on a single date, all of which Loans are of the same type
(subject to Article 8) and except in the case of Base Rate Loans, have the same
Interest Period or initial Interest Period. Borrowings are classified for
purposes of this Agreement by reference to the pricing of Loans comprising such
Borrowing (e.g., a "EURO-DOLLAR BORROWING" is a Borrowing comprised of
Euro-Dollar Loans).
ARTICLE 2
THE CREDITS
Section 2.01. Commitments to Lend. Each Lender severally agrees, on the
terms and conditions set forth in this Agreement, to make loans to the Borrower
pursuant to this Section from time to time prior to the Commitment Termination
Date; provided that, immediately after each such loan is made: (i) the sum of
the aggregate principal amount of Loans by such Lender shall not exceed the
amount of its Commitment and (ii) the Total Outstanding Amount shall not exceed
the aggregate amount of the Commitments. Each Borrowing of Loans under this
Section shall be in an aggregate principal amount of at least $5,000,000 or any
larger multiple of $1,000,000 (except that any such Borrowing may be in the
aggregate amount available in accordance with Section 3.02(b)). Each Borrowing
under this Section shall be made from the several Lenders ratably in proportion
to their respective Commitments. The Commitments are not revolving in nature,
and Loans that are prepaid or repaid may not be reborrowed.
Section 2.02. Notice of Borrowings. The Company shall give the
Administrative Agent notice (a "NOTICE OF BORROWING") not later than 11:00 A.M.
(New York City time) on (i) the date of each Base Rate Borrowing, and (ii) the
third Euro-Dollar Business Day before each Euro-Dollar Borrowing, specifying:
(a) the date of such Borrowing, which shall be a Domestic Business Day in
the case of a Base Rate Borrowing or a Euro-Dollar Business Day in the case of a
Euro-Dollar Borrowing;
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(b) the aggregate amount of such Borrowing;
(c) whether the Loans comprising such Borrowing are to be Base Rate Loans
or Euro-Dollar Loans; and
(d) in the case of a Euro-Dollar Borrowing, the duration of the initial
Interest Period applicable thereto, subject to the provisions of the definition
of Interest Period.
Section 2.03. Notice to Lenders; Funding of Loans.
(a) Upon receipt of a Notice of Borrowing, the Administrative Agent shall
promptly notify each Lender of the contents thereof and of such Lender's share
of such Borrowing and such Notice of Borrowing shall not thereafter be revocable
by the Borrower.
(b) On the date of each Borrowing, each Lender shall make available its
share of such Borrowing, not later than 12:00 Noon (New York City time), in
Federal or other funds immediately available, to the Administrative Agent at its
address referred to in Section 10.01.
Unless the Administrative Agent determines that any applicable condition
specified in Article 3 has not been satisfied, the Administrative Agent will
make the funds so received from the Lenders available to the Borrower at the
aforesaid address or place.
(c) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's share of such Borrowing, the
Administrative Agent may assume that such Lender has made such share available
to the Administrative Agent on the date of such Borrowing in accordance with
subsection (b) of this Section 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 share available to the Administrative Agent, such Lender and the
Borrower severally agree 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 (i) in the case of the
Borrower, a rate per annum equal to the higher of the Federal Funds Rate and the
interest rate applicable thereto pursuant to Section 2.06 and (ii) in the case
of such Lender, the Federal Funds Rate. If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Lender's Loan included in such Borrowing for purposes of this
Agreement.
Section 2.04. Notes. (a) The Administrative Agent shall maintain a register
(the "REGISTER") on which it will record the Commitment of each Lender,
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each Loan made by such Lender and each repayment of any Loan made by such
Lender. Any such recordation by the Administrative Agent on the Register shall
be presumptively correct, absent manifest error. Failure to make any such
recordation, or any error in such recordation, shall not affect the Borrower's
obligations hereunder.
(b) The Borrower hereby agrees that, promptly upon the request of any
Lender at any time, the Borrower shall deliver to such Lender a single Note, in
substantially the form of Exhibit A hereto, duly executed by the Borrower and
payable to the order of such Lender and representing the obligation of the
Borrower to pay the unpaid principal amount of Loans made by such Lender, with
interest as provided herein on the unpaid principal amount from time to time
outstanding.
(c) Each Lender shall record the date, amount, type and maturity of each
Loan made by it and the date and amount of each payment of principal made by the
Borrower with respect thereto, and may, if such Lender so elects in connection
with any transfer or enforcement of its Note, endorse on the schedule forming a
part thereof appropriate notations to evidence the foregoing information with
respect to each such Loan then outstanding; provided that the failure of such
Lender to make any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Notes. Such Lender is hereby
irrevocably authorized by the Borrower so to endorse any Note and to attach to
and make a part of any Note a continuation of any such schedule as and when
required.
Section 2.05. Maturity of Loans. Each Loan shall mature, and the principal
amount thereof shall be due and payable, on the Maturity Date (or, if the
Maturity Date is not a Euro-Dollar Business Day, the next preceding Euro-Dollar
Business Day).
Section 2.06. Interest Rates. (a) Each Base Rate Loan shall bear interest
on the outstanding principal amount thereof, for each day from the date such
Loan is made until it becomes due or is converted to a different type of Loan,
at a rate per annum equal to the Base Rate plus the Base Rate Margin for such
day. Such interest shall be payable quarterly in arrears on each Quarterly
Payment Date, on the Maturity Date and, with respect to the principal amount of
any Base Rate Loan converted to a different type of Loan, on the date such
principal amount is so converted. Any overdue principal of or interest on any
Base Rate Loan shall bear interest, payable on demand, for each day until paid
at a rate per annum equal to the sum of 2% plus the Base Rate Margin plus the
Base Rate for such day.
(b) Each Euro-Dollar Loan shall bear interest on the outstanding principal
amount thereof, for each Interest Period applicable thereto, at a rate per annum
equal to the sum of the Euro-Dollar Margin for such day plus the London
Interbank Offered Rate applicable for such Interest Period. Such interest shall
be
15
payable for each Interest Period on the last day thereof and, if such Interest
Period is longer than three months, three months after the first day thereof.
The "LONDON INTERBANK OFFERED RATE" applicable to any Interest Period means
the rate per annum equal to the British Bankers Association LIBOR Rate ("BBA
LIBOR"), as published by Reuters (or another commercially available source
providing quotations of BBA LIBOR as designated by the Administrative Agent from
time to time) at approximately 11:00 A.M., London time, two Euro-Dollar Business
Days prior to the commencement of such Interest Period, for Dollar deposits (for
delivery on the first day of such Interest Period) with a term equivalent to
such Interest Period. If such rate is not available at such time for any reason,
then the "LONDON INTERBANK OFFERED RATE" for such Interest Period shall be the
rate per annum determined by the Administrative Agent to be the rate at which
deposits in Dollars for delivery on the first day of such Interest Period in
same day funds in the approximate amount of the Euro-Dollar Loan being made,
continued or converted by Bank of America, N.A. and with a term equivalent to
such Interest Period would be offered by Bank of America, N.A.'s London Branch
to major banks in the London interbank eurodollar market at their request at
approximately 11:00 A.M. (London time) two Euro-Dollar Business Days prior to
the commencement of such Interest Period.
(c) Any overdue principal of or interest on any Euro-Dollar Loan shall bear
interest, payable on demand, for each day from and including the date payment
thereof was due to but excluding the date of actual payment, at a rate per annum
equal to the sum of 2% plus the Euro-Dollar Margin plus the higher of (i) the
London Interbank Offered Rate applicable to such Loan immediately before it
became overdue and (ii) a rate (the "OVERNIGHT LIBO RATE") equal to the quotient
obtained (rounded upward if necessary, to the next higher 1/100 of 1%) by
dividing (x) the average (rounded upward, if necessary, to the next higher 1/16
of 1%) of the respective rates per annum at which one day (or, if such amount
due remains unpaid more than three Euro-Dollar Business Days, then for such
other period of time not longer than six months as the Administrative Agent may
select) deposits in Dollars in an amount approximately equal to such overdue
payment due to Bank of America, N.A. are offered to in the London interbank
market for the applicable period determined as provided above by (y) 1.00 minus
the Euro-Dollar Reserve Percentage (or, if the circumstances described in clause
(a) or (b) of Section 8.01 shall exist, at a rate per annum equal to the sum of
2% plus the Base Rate for such day).
(d) The Administrative Agent shall determine each interest rate applicable
to the Loans hereunder. The Administrative Agent shall give prompt notice to the
Company and the Lenders of each rate of interest so determined, and its
determination thereof shall be conclusive in the absence of manifest error.
Section 2.07. Fees. (a) The Company shall pay to the Administrative Agent,
for the account of the Lenders ratably in proportion to their Commitments, a
commitment fee calculated for each day from and including the Effective Date
16
to but excluding the Commitment Termination Date at the Commitment Fee Rate for
such day on the aggregate unused amount of the Commitments. Accrued commitment
fees shall be payable on the Commitment Termination Date.
(b) The Company shall pay to each of the Agents for its own account fees in
the amounts and at the times previously agreed between the Company and them.
Section 2.08. Method of Electing Types of Interest Rates and Interest
Periods. (a) The Loans included in each Borrowing shall bear interest initially
at the type of interest rate specified by the Company in the applicable Notice
of Borrowing. Thereafter, the Company may from time to time elect to change or
continue the type of interest rate borne by each Group of Loans (subject to the
provisions of Article 8), as follows:
(i) if such Loans are Base Rate Loans, the Company may elect to
convert such Loans to Euro-Dollar Loans as of any Euro-Dollar Business Day;
and
(ii) if such Loans are Euro-Dollar Loans, the Company may elect to
convert such Loans to Base Rate Loans or elect to continue such Loans as
Euro-Dollar Loans for an additional Interest Period, subject to Section
2.14 in the case of any such conversion on any day other than the last day
of the then current Interest Period applicable to such Euro-Dollar Loans.
Each such election shall be made by delivering a notice to the
Administrative Agent not later than 10:00 A.M. (New York City time) on the third
Euro-Dollar Business Day before the conversion or continuation selected in such
notice is to be effective. Such notice may, if it so specifies, apply to only a
portion of the aggregate principal amount of the relevant Group of Loans;
provided that (i) such portion is allocated ratably among the Loans comprising
such Group of Loans and (ii) the portion to which such notice applies, and the
remaining portion to which it does not apply, are each at least $5,000,000. If
no such notice is timely received prior to the end of an Interest Period, the
Company shall be deemed to have elected that such Group of Loans be converted to
Base Rate Loans.
(b) Each Notice of Interest Rate Election delivered pursuant to subsection
(a) above shall specify:
(i) the Group of Loans (or portion thereof) to which such notice
applies;
(ii) the date on which the conversion or continuation selected in such
notice is to be effective, which shall comply with the applicable clause of
subsection (a) above;
17
(iii) if the Loans comprising such Group of Loans are to be converted,
the new type of Loans and, if the Loans are being converted to Euro-Dollar
Loans, the duration of the next succeeding Interest Period applicable
thereto; and
(iv) if such Loans are to be continued as Euro-Dollar Loans for an
additional Interest Period, the duration of such additional Interest
Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Upon receipt of a Notice of Interest Rate Election from the Company
pursuant to subsection (a) above, the Administrative Agent shall promptly notify
each Lender of the contents thereof and such notice shall not thereafter be
revocable by the Company.
Section 2.09. Termination or Reduction of Commitments. (a) The Company may,
upon at least three Domestic Business Days' notice to the Administrative Agent,
(i) terminate the unused Commitments at any time, or (ii) ratably reduce from
time to time by an aggregate amount of $10,000,000 or any larger multiple of
$1,000,000 in excess thereof, the aggregate amount of the unused Commitments.
(b) On any date prior to the Commitment Termination Date on which any Net
Proceeds are received by the Company or any of its Subsidiaries in respect of
any Reduction Event, the unused Commitments shall be automatically and
permanently reduced by an amount equal to the amount of such Net Proceeds.
(c) Commitments reduced or terminated pursuant to clause (a) or (b) may not
be reinstated. The Commitments shall terminate on the Commitment Termination
Date.
Section 2.10. Optional Prepayments. (a) The Borrower may:
(i) upon at least one Domestic Business Day's notice to the
Administrative Agent, prepay its Group of Base Rate Loans, in whole at any
time, or from time to time in part in amounts aggregating $10,000,000 or
any larger multiple of $1,000,000 (or the remaining principal balance of
such Loans); or
(ii) upon at least three Euro-Dollar Business Days' notice to the
Administrative Agent, subject to Section 2.14, prepay any Group of
Euro-Dollar Loans, in whole at any time, or from time to time in part in
amounts aggregating $5,000,000 or any larger multiple of $1,000,000 (or the
remaining principal balance of such Loans);
18
in each case, by paying the principal amount to be prepaid together with accrued
interest thereon to the date of prepayment. Each such optional prepayment shall
be applied to prepay ratably the Loans of the several Lenders included in such
Group of Loans.
(b) Upon receipt of a notice of prepayment pursuant to this Section, the
Administrative Agent shall promptly notify each Lender of the contents thereof
and of such Lender's ratable share of such prepayment and such notice shall not
thereafter be revocable by the Borrower.
Section 2.11. Mandatory Prepayments. (a) On any date on or after the
Effective Date on which any Net Proceeds are received by or on behalf of the
Company or any of its Subsidiaries in respect of a Reduction Event, the Borrower
shall prepay Loans in an aggregate principal amount equal to the amount of such
Net Proceeds (or, if applicable, the portion of such amount remaining after
application in accordance with Section 2.09(b)).
(b) Each prepayment pursuant to this Section 2.11 shall be made in
accordance with the provisions of Section 2.10 relating to optional prepayments
(and shall be applied to prepay such Groups of Loans as the Borrower shall
designate or, absent such designation, as are selected by the Administrative
Agent).
Section 2.12. Notice of Reduction Events. The Company shall notify the
Administrative Agent of the proposed consummation of any Reduction Event (and
the corresponding reduction of the Commitments pursuant to Section 2.09(b) or
prepayment of the Loans pursuant to Section 2.11, as the case may be) (x) no
later than 11:00 A.M. (New York City time) on the fifth Euro-Dollar Business Day
prior to the date of the proposed consummation thereof if the amount of Net
Proceeds thereof exceeds $25,000,000 and (y) as soon as reasonably practicable
if the amount of Net Proceeds thereof is $25,000,000 or less. Such notice shall
specify (i) the date of the proposed consummation of such Reduction Event, (ii)
a reasonably detailed calculation of the Net Proceeds thereof, and (iii) the
anticipated amount of the reduction of the Commitments and prepayment of the
Loans as a result thereof.
Section 2.13. General Provisions as to Payments. (a) Each payment of
principal of, and interest on, the Loans and each payment of fees hereunder
shall be made in Dollars not later than 12:00 Noon (New York City time) on the
date when due, in Federal or other funds immediately available to the
Administrative Agent at its address referred to in Section 10.01.
(b) Promptly upon receiving any payment for the account of the Lenders, the
Administrative Agent will distribute to each Lender, such Lender's ratable share
of such payment.
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(c) Except as otherwise set forth in Section 2.05, whenever any payment of
principal of, or interest on, the Base Rate Loans or of fees shall be due on a
day which is not a Domestic Business Day, the date for payment thereof shall be
extended to the next succeeding Domestic Business Day. Except as otherwise set
forth in Section 2.05, whenever any payment of principal of, or interest on, the
Euro-Dollar Loans shall be due on a day which is not a Euro-Dollar Business Day,
the date for payment thereof shall be extended to the next succeeding
Euro-Dollar Business Day, unless such Euro-Dollar Business Day falls in another
calendar month, in which case the date for payment thereof shall be the next
preceding Euro-Dollar Business Day. If the date for any payment of principal is
extended by operation of law or otherwise, interest thereon shall be payable for
such extended time.
(d) Unless the Administrative Agent shall have received notice from the
Company prior to the date on which any payment is due from the Borrower 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 that the Borrower shall not have so made such payment, 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 Rate.
Section 2.14. Funding Losses. If the Borrower makes any payment of
principal with respect to any Euro-Dollar Loan or any Euro-Dollar Loan is
converted to a different type of Loan (pursuant to Section 2.10, Article 6 or 8
or otherwise) on any day other than the last day of an Interest Period
applicable thereto, or the last day of an applicable period fixed pursuant to
Section 2.06(c), or if the Borrower fails to borrow, prepay, convert or continue
any Euro-Dollar Loans after notice has been given to any Lender in accordance
with Section 2.03(a), 2.08(c) or 2.10(b), the Borrower shall reimburse each
Lender within 15 days after demand for any resulting loss or expense incurred by
it (or by an existing or prospective Participant in the related Loan), including
(without limitation) any loss incurred in obtaining, liquidating or employing
deposits from third parties, but excluding loss of margin for the period after
any such payment or failure to borrow, prepay, convert or continue, provided
that such Lender shall have delivered to the Borrower a certificate as to the
amount of such loss or expense, which certificate shall be conclusive in the
absence of manifest error.
Section 2.15. Computation of Interest and Fees. Interest based on the Prime
Rate hereunder shall be computed on the basis of a year of 365 days (or 366 days
in a leap year) and paid for the actual number of days elapsed (including the
first day but excluding the last day). All other interest and fees shall be
20
computed on the basis of a year of 360 days and paid for the actual number of
days elapsed (including the first day but excluding the last day).
Section 2.16. Reserve Costs. (a) If and so long as a reserve requirement of
the type described in the definition of "Euro-Currency Reserve Percentage" is
prescribed by the Board of Governors of the Federal Reserve System (or any
successor), each Lender subject to such requirement may require the Borrower to
pay, contemporaneously with each payment of interest on each of such Lender's
Euro-Dollar Loans, additional interest on such Euro-Dollar Loan at a rate per
annum determined by such Lender up to but not exceeding the excess of (i) (A)
the applicable London Interbank Offered Rate divided by (B) one minus the
Euro-Currency Reserve Percentage over (ii) the applicable London Interbank
Offered Rate. Any Lender wishing to require payment of such additional interest
(x) shall so notify the Company and the Administrative Agent, in which case such
additional interest on the Euro-Dollar Loans of such Lender shall be payable to
such Lender at the place indicated in such notice with respect to each Interest
Period commencing at least three Euro-Dollar Business Days after such Lender
gives such notice and (y) shall notify the Borrower, at least five Euro-Dollar
Business Days before each date on which interest is payable on its Euro-Dollar
Loans, of the amount then due to such Lender under this Section.
(b) If and so long as any Lender is required to comply with reserve assets,
liquidity, cash margin or other requirements of any monetary or other authority
(excluding requirements referred to in subsection (a) above) in respect of any
of such Lender's Euro-Dollar Loans, such Lender may require the Borrower to pay,
contemporaneously with each payment of interest on each of such Lender's
Euro-Dollar Loans subject to such requirements, additional interest on such Loan
at a rate per annum specified by such Lender to be the cost to such Lender of
complying with such requirements in relation to such Loan.
(c) Any additional interest owed pursuant to subsection (a) or (b) above
shall be determined by the relevant Lender, which determination shall be
conclusive and binding for all purposes except in the case of manifest error,
and notified to the Borrower (with a copy to the Administrative Agent) at least
five Euro-Dollar Business Days before each date on which interest is payable for
the relevant Loan, and such additional interest so notified to the Borrower by
such Lender shall be payable to the Administrative Agent for the account of such
Lender on each date on which interest is payable for such Loan.
ARTICLE 3
CONDITIONS
Section 3.01. Effective Date and Initial Borrowing. The Effective Date
shall occur on the first date on which each of the following conditions shall
have been satisfied (and the obligation of any Lender to make a Loan on the
occasion
21
of the initial Borrowing hereunder is subject to the satisfaction of each such
condition prior to or concurrently with the making of such Loan):
(a) the Administrative Agent shall have received counterparts of this
Agreement signed by each of the parties listed on the signature pages hereof
(or, in the case of any party as to which an executed counterpart shall not have
been received, by the Administrative Agent shall have received, in form
satisfactory to it, facsimile or other written confirmation from such party that
it has executed a counterpart hereof);
(b) the Administrative Agent shall have received an opinion of Xxxxxxx X.
Xxxxxx, Esq., Executive Vice President, General Counsel and Secretary of the
Company, substantially in the form of Exhibit B hereto and covering such
additional matters relating to the transactions contemplated hereby as the
Required Lenders may reasonably request;
(c) the Administrative Agent shall have received an opinion of Xxxxx Xxxx &
Xxxxxxxx, special counsel for the Agents, substantially in the form of Exhibit C
hereto and covering such additional matters relating to the transactions
contemplated hereby as the Required Lenders may reasonably request;
(d) the Administrative Agent shall have received, for the account of each
Lender requesting a Note, a duly executed Note for the account of such Lender,
dated on or before the Effective Date and complying with the provisions of
Section 2.04;
(e) the structure of the Acquisition (including, without limitation, the
corporate, capital, organizational and tax structure thereof, and the plans and
sources of funds therefor), and all of the definitive documentation related
thereto, including the Exchange Offer Documents shall be in form and substance
satisfactory to the Arrangers, and the Exchange Offer Documents shall be
substantially in the form provided to the Lenders prior to the Effective Date;
(f) there shall not have occurred or become known to the Lenders any
material adverse condition or material adverse change in or affecting the
business, financial position, assets, liabilities or results of operations of
the Company and its Subsidiaries, or of the Target and its Subsidiaries, in each
case taken as a whole, since December 31, 2004;
(g) there shall be no threatened or pending litigation, proceeding or
investigation which (i) could reasonably be expected to have a material adverse
effect on the business, financial position, assets, liabilities or results of
operations of the Company and its Subsidiaries, or of the Target and its
subsidiaries, in each case taken as a whole, or (ii) in any manner calls into
question the validity of this Agreement or the making of Loans hereunder;
22
(h) the Company shall have paid (or made arrangements satisfactory to the
Agents to pay, for value on the Effective Date) in full all fees and expenses of
the Agents payable on or prior to the Effective Date;
(i) the Company shall have obtained evidence satisfactory to the Arrangers
that (i) neither the U.S. Department of Justice nor the U.S. Federal Trade
Commission has initiated an investigation of the Acquisition within the relevant
time period specified by the Xxxx-Xxxxx-Xxxxxx Act or any such investigation (if
initiated) has been terminated, and (ii) all antitrust and other governmental or
regulatory approvals required to be obtained from competition authorities within
the European Union have been obtained, or otherwise all applicable waiting
periods have expired without any action affecting the Acquisition, and the terms
of any divestitures or other conditions imposed by such agencies or other
antitrust regulators are acceptable to the Required Lenders; provided that (x)
it is understood that the Reloxin divestiture is acceptable to the Required
Lenders, and (y) any other divestitures or conditions shall be deemed to be
acceptable to the Required Lenders unless, upon receiving prompt notice of the
proposed imposition of any such divestiture or condition from the Company, the
Administrative Agent (acting on the instruction of the Required Lenders) notify
the Company of its objection thereto within ten Domestic Business Days;
(j) all of the conditions to the Acquisition (including, with respect to
the Exchange Offer, the minimum condition of the tender of Target Shares
representing more than 50% of the total share capital and voting rights in the
Target, calculated on a fully-diluted basis) shall have been satisfied, and the
Exchange Offer and the Merger shall have been consummated, concurrently with the
making of the initial Loans hereunder, in accordance with the terms of the
Exchange Offer Documents and the other terms of the Acquisition, without any
amendment, modification or waiver of any material terms thereof not consented to
by the Required Lenders (such consent not to be unreasonably withheld or
delayed);
(k) the Administrative Agent shall have received such other certificates,
agreements and documents as the Agents may have reasonably requested relating to
matters relevant to the Acquisition and the transactions contemplated hereby,
including without limitation (x) the existence of the Borrower and the Company,
the corporate authority for and the validity of this Agreement and the Notes,
all in form and substance satisfactory to the Agents and (y) each legal opinion
(other than any 10b-5 or similar disclosure opinion or portion of an opinion)
delivered by a Loan Party, or a representative or agent of or counsel to a Loan
Party, pursuant to the Exchange Offer Documents (or any dealer manager agreement
relating to the Exchange Offer) with a letter from each Person delivering such
opinion authorizing reliance thereon by the Agents and the Lenders, such
reliance letter to be in form and substance reasonably satisfactory to the
Agents; and
23
(l) the Administrative Agent shall have received evidence satisfactory to
it that the Existing Credit Facility has been amended pursuant to an amendment
in form and substance reasonably satisfactory to the Agents.
The Administrative Agent shall promptly notify the Company and the Lenders
of the Effective Date, and such notice shall be conclusive and binding on all
parties hereto.
Section 3.02. All Borrowings. The obligation of any Lender to make a Loan
on the occasion of any Borrowing (including, without limitation, the initial
Borrowing) is subject to the satisfaction of the following conditions:
(a) receipt by the Administrative Agent of a Notice of Borrowing as
required by Section 2.02;
(b) the fact that, immediately after such Borrowing, the Total Outstanding
Amount will not exceed the aggregate amount of the Commitments;
(c) the fact that, immediately before and after such Borrowing, no Default
shall have occurred and be continuing; and
(d) the fact that the representations and warranties of the Company
contained in this Agreement shall be true on and as of the date of such
Borrowing (except to the extent that any such representation and warranty in
Section 4.10 relate to an earlier date, in which case such representation and
warranty shall be true on and as of such earlier date).
Each Borrowing hereunder shall be deemed to be a representation and
warranty by the Company on the date of such Borrowing as to the facts specified
in clauses (b), (c)and (d) of this Section.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants that:
Section 4.01. Corporate Existence and Power. The Company is a corporation
duly incorporated, validly existing and in good standing under the laws of
Delaware, and has all corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted.
Section 4.02. Corporate and Governmental Authorization; No Contravention.
The execution, delivery and performance by each of the Loan Parties of this
Agreement and by the Borrower of its Notes are within such Loan Party's
corporate powers, have been duly authorized by all necessary corporate
24
action, require no action by or in respect of, or filing with, any governmental
body, agency or official under any provision of law or regulation applicable to
such Loan Party, and do not contravene, or constitute a default under, any
provision of law or regulation applicable to such Loan Party or of such Loan
Party's certificate of incorporation or by-laws or of any agreement, judgment,
injunction, order, decree or other instrument binding upon the Company or any of
its Subsidiaries or result in the creation or imposition of any Lien on any
asset of the Company or any of its Subsidiaries.
Section 4.03. Binding Effect. This Agreement constitutes a valid and
binding agreement of each Loan Party, and the Notes, when executed and delivered
in accordance with this Agreement, will constitute valid and binding obligations
of the Borrower.
Section 4.04. Financial Information. (a) The consolidated balance sheet of
the Company and its Consolidated Subsidiaries as of December 31, 2004 and the
related consolidated statements of earnings and cash flows for the fiscal year
then ended, a copy of which has been delivered to each of the Lenders, fairly
present, in conformity with generally accepted accounting principles, the
consolidated financial position of the Company and its Consolidated Subsidiaries
as of such date and their consolidated results of operations and cash flows for
such fiscal year.
(b) The unaudited interim consolidated balance sheet of the Company and its
Consolidated Subsidiaries as of September 30, 2005 and the related unaudited
interim consolidated statements of income, retained earnings and cash flows for
the nine months then ended, set forth in the Company's quarterly report for the
fiscal quarter ended September 30, 2005 as filed with the SEC on Form 10-Q, a
copy of which has been delivered to each of the Lenders, present fairly, in all
material respects, the consolidated financial position of the Company and its
Consolidated Subsidiaries as of such date and their consolidated results of
operations and cash flows for such nine-month period (subject to normal year-end
adjustments), all on a basis substantially consistent with the financial
statements referred to in subsection (a) of this Section.
(c) There has been no material adverse change since December 31, 2004 in
the business, financial position, assets, liabilities or results of operations
of the Company and its Consolidated Subsidiaries, considered as a whole.
Section 4.05. Litigation. There is no action, suit, formal investigation or
other proceeding pending against, or to the knowledge of the Company threatened
against or affecting, the Company or any of its Subsidiaries before any
Governmental Authority in which there is a reasonable possibility of an adverse
decision which could materially adversely affect the business or consolidated
financial position of the Company and its Subsidiaries, taken as a whole, or
which in any manner draws into question the validity of this Agreement or any of
the Notes.
25
Section 4.06. Compliance with ERISA. Each member of the ERISA Group has
fulfilled its obligations under the minimum funding standards of ERISA and the
Internal Revenue Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions of ERISA and the
Internal Revenue Code with respect to each Plan. No member of the ERISA Group
has (i) sought a waiver of the minimum funding standard under Section 412 of the
Internal Revenue Code in respect of any Plan, (ii) failed to make any
contribution or payment to any Plan or Multiemployer Plan, or made any amendment
to any Plan, which has resulted or could result in the imposition of a Lien or
the posting of a bond or other security under ERISA or the Internal Revenue Code
or (iii) incurred any liability under Title IV of ERISA other than a liability
to the PBGC for premiums under Section 4007 of ERISA.
Section 4.07. Environmental Matters. In the ordinary course of its
business, the Company conducts an ongoing review of the effect of Environmental
Laws on the business, operations and properties of the Company and its
Subsidiaries, in the course of which it identifies and evaluates associated
liabilities and costs (including, without limitation, any capital or operating
expenditures required for clean-up or closure of properties presently or
previously owned, any capital or operating expenditures required to achieve or
maintain compliance with environmental protection standards imposed by law or as
a condition of any license, permit or contract, any related constraints on
operating activities, including any periodic or permanent shutdown of any
facility or reduction in the level of or change in the nature of operations
conducted thereat, any costs or liabilities in connection with off-site disposal
of wastes or Hazardous Substances, and any actual or potential liabilities to
third parties, including employees, and any related costs and expenses). On the
basis of this review, the Company has reasonably concluded that such associated
liabilities and costs, including the costs of compliance with Environmental
Laws, are unlikely to have a Materially Adverse Effect.
Section 4.08. Taxes. The Company and its Subsidiaries have filed all United
States Federal income tax returns and all other material tax returns which are
required to be filed by them and have paid all taxes due pursuant to such
returns or pursuant to any assessment received by the Company or any Subsidiary,
except assessments which are being contested in good faith and as to which
adequate reserves have been provided. The charges, accruals and reserves on the
books of the Company and its Subsidiaries in respect of taxes or other
governmental charges are, in the reasonable opinion of the Company, adequate.
Section 4.09. Not an Investment Company. Neither Loan Party is an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
Section 4.10. Full Disclosure. All Information (as defined below)
heretofore furnished by the Loan Parties is, and all Information hereafter so
furnished will be, true and accurate in all material respects on the date as of
which
26
such Information is dated or certified (except for any projections included
therein, which projections shall have provided reasonable estimations of future
performance for the periods covered thereby subject to the uncertainty and
approximation inherent in any projections) and not incomplete by omitting to
state anything necessary to make such Information not misleading at such time
except to the extent later Information could reasonably have been expected to
supersede earlier Information. As used in this Section, the term "INFORMATION"
means (i) the information set forth in the Company's report on Form 10-K for its
fiscal year ended December 31, 2004 and in all subsequent reports on Forms 10-K,
10-Q and 8-K (or their equivalents) and registration statements (excluding
exhibits thereto and any registration statements on Form S-8 or its equivalent)
which the Company shall have filed with the SEC and (ii) all other information
furnished by the Loan Parties to the Administrative Agent or any Lender for
purposes of or in connection with this Agreement, but only if such other
information is (x) financial information, (y) furnished in writing to all the
Lenders or to an Agent for distribution to all the Lenders or (z) furnished at a
meeting to which all the Lenders were invited.
Section 4.11. Subsidiaries. Each of the Company's Subsidiaries (including
Banner) is a corporation or other entity duly incorporated or organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation or organization, as applicable, and has all corporate or other
organizational powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted,
except where failures to obtain such licenses, authorizations, consents and
approvals would not, in the aggregate, have a Materially Adverse Effect.
Section 4.12. Good Title to Properties. The Company and its Subsidiaries
have good and marketable title to their respective properties and assets (except
properties and assets that, in the aggregate, are not material to the Company
and its Subsidiaries taken as a whole), subject to no Liens of any kind, except
such as would be permitted under Section 5.10.
Section 4.13. Trademarks, Patents, Etc. The Company and its Subsidiaries
possess all trademarks, trade names, copyrights, patents and licenses, or rights
in any thereof, which are adequate in all material respects for the conduct of
their business (taken as a whole) as now conducted, without pending litigation
regarding the rights or, to the best knowledge of the Company, any claimed
rights of others except for (i) those which could not reasonably be expected to
have a Materially Adverse Effect and (ii) those disclosed in filings made with
the SEC.
27
ARTICLE 5
COVENANTS
The Company agrees that, so long as any Lender has any Credit Exposure
hereunder:
Section 5.01. Information. The Company will deliver to each of the Lenders:
(a) promptly after the same is required to be filed with the SEC pursuant
to the Securities Exchange Act of 1934, and in any event within 105 days after
the end of each fiscal year of the Company, a consolidated balance sheet of the
Company and its Consolidated Subsidiaries as of the end of such fiscal year and
the related consolidated statements of earnings and cash flows for such fiscal
year, setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on in a manner acceptable to the SEC by KPMG
LLP or other independent registered public accounting firm of nationally
recognized standing;
(b) promptly after the same is required to be filed with the SEC pursuant
to the Securities Exchange Act of 1934, and in any event within 60 days after
the end of each of the first three quarters of each fiscal year of the Company,
an unaudited consolidated balance sheet of the Company and its Consolidated
Subsidiaries as of the end of such quarter and the related unaudited
consolidated statements of earnings and cash flows for such quarter and for the
portion of the Company's fiscal year ended at the end of such quarter, setting
forth in the case of such earnings and cash flows in comparative form the
figures for the corresponding quarter and the corresponding portion of the
Company's previous fiscal year, all certified (subject to normal year-end
adjustments) as to fairness of presentation, generally accepted accounting
principles and consistency by the principal financial officer or the principal
accounting officer of the Company;
(c) simultaneously with the delivery of each set of financial statements
referred to in clauses (a) and (b) above, a certificate of the principal
financial officer or the principal accounting officer of the Company (i) setting
forth in reasonable detail the calculations required to establish whether the
Company was in compliance with the requirements of Sections 5.07 to 5.10,
inclusive, on the date of such financial statements (including, without
limitation, the amount of Adjusted Cash) and (ii) stating whether any Default
exists on the date of such certificate and, if any Default then exists, setting
forth the details thereof and the action which the Company is taking or proposes
to take with respect thereto;
(d) simultaneously with the delivery of each set of financial statements
referred to in clause (a) above for each fiscal year ending after December 31,
2005, a statement of the firm of independent registered public accountants which
reported on such statements (i) stating whether anything has come to their
attention to cause them to believe that any Default under Sections 5.07 to 5.10,
28
inclusive, existed on the date of such statements and (ii) confirming the
calculations set forth in the officer's certificate delivered simultaneously
therewith pursuant to clause (c) above;
(e) within five days after the principal financial officer, principal
accounting officer or treasurer of the Company obtains knowledge of any Default,
if such Default is then continuing, a certificate of the principal financial
officer or the principal accounting officer of the Company setting forth the
details thereof and the action which the Company is taking or proposes to take
with respect thereto;
(f) promptly upon the mailing thereof to the shareholders of the Company
generally, copies of all financial statements, reports and proxy statements so
mailed;
(g) promptly upon the filing thereof, copies of all registration statements
(other than the exhibits thereto and any registration statements on Form S-8 or
its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or their equivalents)
which the Company shall have filed with the SEC;
(h) if and when any member of the ERISA Group (i) gives or is required to
give notice to the PBGC of any "reportable event" (as defined in Section 4043 of
ERISA) with respect to any Plan which might constitute grounds for a termination
of such Plan under Title IV of ERISA, or knows that the plan administrator of
any Plan has given or is required to give notice of any such reportable event, a
copy of the notice of such reportable event given or required to be given to the
PBGC; (ii) receives notice of complete or partial withdrawal liability under
Title IV of ERISA or notice that any Multiemployer Plan is in reorganization, is
insolvent or has been terminated, a copy of such notice; (iii) receives notice
from the PBGC under Title IV of ERISA of an intent to terminate, impose
liability (other than for premiums under Section 4007 of ERISA) in respect of,
or appoint a trustee to administer any Plan, a copy of such notice; (iv) applies
for a waiver of the minimum funding standard under Section 412 of the Internal
Revenue Code, a copy of such application; (v) gives notice of intent to
terminate any Plan under Section 4041(c) of ERISA, a copy of such notice and
other information filed with the PBGC; (vi) gives notice of withdrawal from any
Plan pursuant to Section 4063 of ERISA, a copy of such notice; or (vii) fails to
make any payment or contribution to any Plan or Multiemployer Plan or makes any
amendment to any Plan which has resulted or could result in the imposition of a
Lien or the posting of a bond or other security, a certificate of the principal
financial officer or the principal accounting officer of the Company setting
forth details as to such occurrence and action, if any, which the Company or
applicable member of the ERISA Group is required or proposes to take;
(i) promptly upon the principal financial officer, principal accounting
officer or treasurer of the Company obtaining knowledge thereof, notice of any
29
actual or proposed change in the rating of the Company's outstanding senior
unsecured long term debt securities by S&P or Xxxxx'x; and
(j) from time to time such additional information regarding the financial
position or business of the Company and its Subsidiaries as the Administrative
Agent, at the request of any Lender, may reasonably request.
Information required to be delivered pursuant to clauses 5.01(a), 5.01(b),
5.01(f) or 5.01(g) above shall be deemed to have been delivered on the date on
which the Company provides notice to the Lenders that such information has been
posted on the Company's website on the Internet at xxx.xxxxxxxx.xxx, at
xxx.xxx/xxxxx/xxxxxxxx.xxx, at xxxxxxxxxx.xxx or at another website identified
in such notice and accessible by the Lenders without charge; provided that (i)
such notice may be included in a certificate delivered pursuant to Section
5.01(c) and (ii) the Borrower shall deliver paper copies of the information
referred to in clauses 5.01(a), 5.01(b), 5.01(f) or 5.01(g) to any Lender which
requests such delivery.
Section 5.02. Payment of Obligations. The Company will pay and discharge,
and will cause its Subsidiaries to pay and discharge, at or before maturity (or
the expiration of any applicable grace period, as the case may be), all Material
Debt and all other material obligations and liabilities, including, without
limitation, tax liabilities, except where the same may be contested in good
faith by appropriate proceedings, and will maintain, and will cause each
Subsidiary to maintain, in accordance with generally accepted accounting
principles, appropriate reserves (on a consolidated basis) for the accrual of
any of the same.
Section 5.03. Maintenance of Property; Insurance. (a) The Company will
keep, and will cause each Subsidiary to keep, all property useful and necessary
in its business in good working order and condition, ordinary wear and tear
excepted; provided that the Company and its Subsidiaries shall not be required
to maintain any property or properties which are, in the reasonable opinion of
the Company, not material to the business of the Company and its Consolidated
Subsidiaries taken as a whole.
(b) The Company and its Subsidiaries will maintain (i) physical damage
insurance on all their real and personal properties (except properties that, in
aggregate, are not material to the Company and its Subsidiaries taken as a
whole) on an all risks basis (including the perils of flood and quake), covering
the repair and replacement cost of all such property and consequential loss
coverage for business interruption and extra expense, and (ii) public liability
insurance (including products/completed operations liability coverage) in an
amount not less than that which is usually insured against by companies engaged
in the same or a similar business in the same general area. All such insurance
shall be provided by insurers having an A.M. Best policyholders rating of not
less than B+ or such other insurers as the Required Lenders may approve in
writing. The Company will deliver to the Lenders, upon request of any Lender
through the
30
Administrative Agent, from time to time full information as to the insurance
carried.
Section 5.04. Conduct of Business and Maintenance of Existence. The Company
will continue, and will cause its Subsidiaries to continue, to engage in
business of the same general type as now conducted by the Company and its
Subsidiaries after giving effect to the Acquisition, and will preserve, renew
and keep in full force and effect, and will cause each Subsidiary to preserve,
renew and keep in full force and effect, its respective legal existence and its
respective rights, privileges and franchises necessary or desirable in the
normal conduct of business; provided that the foregoing shall not prevent any
Subsidiary other than the Borrower from terminating its corporate existence or
prevent the Company or any Subsidiary from discontinuing any business or any
right, privilege or franchise, if all such terminations and discontinuances, in
the aggregate, would not in the reasonable opinion of the Company have a
Materially Adverse Effect.
Section 5.05. Compliance with Laws. The Company will comply, and cause each
Subsidiary to comply, in all material respects with all applicable laws,
ordinances, rules, regulations, and requirements of Governmental Authorities
(including, without limitation, ERISA, environmental, and food and drug, and the
rules and regulations under each of the foregoing) except where (i) the
necessity of compliance therewith is contested in good faith by appropriate
proceedings or (ii) noncompliance therewith would not, in the aggregate, have a
Materially Adverse Effect.
Section 5.06. Inspection of Property, Books and Records. The Company will
keep, and will cause each Subsidiary to keep, proper books of record and account
in which full, true and correct entries shall be made of all dealings and
transactions in relation to its business and activities; and will permit, and
will cause each Subsidiary to permit, representatives of any Lender at such
Lender's expense to visit and inspect any of their respective properties, to
examine and make abstracts from any of their respective books and records and to
discuss their respective affairs, finances and accounts with their respective
officers, employees and independent public accountants, all at such reasonable
times and as often as may reasonably be desired.
Section 5.07. Subsidiary Debt. The Company will not permit its Subsidiaries
to incur or suffer to exist any Debt (excluding Debt under this Agreement and
Debt owed to the Company or a Wholly-Owned Subsidiary) in excess of 35% of
Consolidated Net Worth at any time in the aggregate for all Subsidiaries.
Section 5.08. Debt to Capitalization. The ratio of (i) Consolidated Debt
less Adjusted Cash to (ii) Consolidated Debt less Adjusted Cash plus Adjusted
Consolidated Net Worth will at no time be greater than 0.45:1.
31
Section 5.09. Minimum Consolidated Net Worth. Consolidated Net Worth will
at no time be less than: (i) $837,351,000(1); (ii) increased at the end of each
of the Company's fiscal years ending on or after December 31, 2005, by 50% of
Consolidated Net Income (if positive) for such fiscal year; and (iii) increased
by 100% of the amount by which Consolidated Net Worth is increased from time to
time after the Effective Date as a result of the issuance or sale of the
Company's capital stock.
Section 5.10. Negative Pledge. Neither the Company nor any Consolidated
Subsidiary will create, assume or suffer to exist any Lien on any asset now
owned or hereafter acquired by it, except:
(a) Liens existing on Effective Date securing Debt outstanding in an
aggregate principal amount not exceeding $20,000,000;
(b) any Lien existing on any asset of any corporation at the time such
corporation becomes a Subsidiary and not created in contemplation of such event;
(c) any Lien on any asset securing Debt incurred or assumed for the purpose
of financing all or any part of the cost of acquiring such asset, provided that
such Lien attaches to such asset concurrently with or within 90 days after the
acquisition thereof;
(d) any Lien on any asset of any corporation existing at the time such
corporation is merged or consolidated with or into the Company or a Subsidiary
and not created in contemplation of such event;
(e) any Lien existing on any asset prior to the acquisition thereof by the
Company or a Subsidiary and not created in contemplation of such acquisition;
(f) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the foregoing
clauses of this Section, provided that such Debt is not increased and is not
secured by any additional assets;
(g) Liens for taxes, assessments or governmental charges or levies on its
property if the same shall not at the time be delinquent or thereafter can be
paid without penalty, or are being contested in good faith by appropriate
proceedings and as to which adequate reserves have been provided for;
(h) Liens imposed by law, such as landlords', carriers', warehousemen's and
mechanics' liens and other similar liens arising in the ordinary course of
business which secure payment of obligations not more than 60 days past due;
----------
(1) To confirm this is the 12/31/04 number.
32
(i) Liens arising out of statutory pledges or deposits under applicable law
relating to worker's compensation, unemployment insurance, social security or
similar obligations;
(j) utility easements, building restrictions and such other encumbrances or
charges against real property as are of a nature generally existing with respect
to properties of similar nature and which do not in any material way adversely
affect or interfere with the use thereof in the business of the Company and its
Subsidiaries;
(k) banker's liens in the nature of rights of set-off arising in the
ordinary course of business;
(l) Liens not otherwise permitted by the foregoing clauses of this Section,
arising in the ordinary course of its business, which (i) do not secure Debt,
(ii) do not secure any obligation in an amount individually or in the aggregate
exceeding $100,000,000 and (iii) do not in the aggregate materially detract from
the value of its assets or materially impair the use thereof in the operation of
its business; and
(m) Liens not otherwise permitted by the foregoing clauses of this Section
securing Debt in an aggregate principal amount at any time outstanding not to
exceed 15% of Consolidated Net Worth.
Section 5.11. Consolidations, Mergers and Sales of Assets. Neither Loan
Party will consolidate or merge with or into any other Person; provided that in
connection with the Acquisition, the Borrower may consummate the Merger and each
other merger or consolidation contemplated by the terms of the Merger Agreement;
and provided further that the Company may merge with a Person if (A) the Company
is the corporation surviving such merger and (B) immediately after giving effect
to any such merger, no Default shall have occurred and be continuing and all the
representations and warranties of the Company contained in this Agreement shall
be true. The Company will not, and will not permit its Subsidiaries to, sell,
lease or otherwise transfer, directly or indirectly, all or substantially all of
the assets of the Company and its Subsidiaries, taken as a whole, to any other
Person.
Section 5.12. Use of Proceeds. The proceeds of the Loans made under this
Agreement will be used by the Borrower to acquire the Target Shares pursuant to
the Exchange Offer and to pay fees and expenses relating to the Acquisition.
None of such proceeds shall be used in violation of Regulation U of the Board of
Governors of the Federal Reserve System.
Section 5.13. Transactions with Affiliates. The Company will not, and will
not permit any Subsidiary to, directly or indirectly, enter into any material
transaction, whether or not in the ordinary course of business, with any
Affiliate other than on terms and conditions at least as favorable to the
Company, or the
33
affected Subsidiary, as those that would be obtained through an arm's length
negotiation with an unaffiliated third party.
Section 5.14. Limitation on Acquisitions. The Company will not, and will
not permit any Subsidiary to, purchase, hold or acquire (including pursuant to
any merger with any Person that was not a wholly owned Subsidiary prior to such
merger) any capital stock or other securities (including any option, warrant or
other right to acquire any of the foregoing) of, or purchase or otherwise
acquire (in one transaction or series of transactions) any assets of any Person
constituting a business unit, except (i) in connection with the Acquisition, in
accordance with the terms of the Acquisition Documents and (ii) for
acquisitions, the purchase price of which does not (in the aggregate) exceed
$300,000,000.
Section 5.15. The Exchange Offer. (a) The Company shall not, without the
consent (not to be unreasonably withheld or delayed) of the Agents (acting on
the instructions of the Required Lenders) (not to be unreasonably withheld or
delayed):
(i) increase (and shall ensure that nothing is done or omitted by or
on behalf of it or any of its Subsidiaries that would require an increase
in) the total cash consideration payable for the Target Securities above
the level set forth in the Exchange Offer Documents as in effect on the
Effective Date; or
(ii) amend, revise or agree or decide not to enforce, in whole or in
part, any material term of the Acquisition Documents or the Exchange Offer
Documents.
(b) Except for the description thereof contained in the Exchange Offer
Documents on the Effective Date and subsequent discussions in periodic reports
pursuant to the Securities Exchange Act of 1934 (and inclusion of this Agreement
as an exhibit thereto), the Company shall not (and shall ensure that none of its
Subsidiaries shall) issue or allow to be issued on its behalf any press release
or other publicity which refers to this Agreement, the Commitments, the Loans,
the Agents or any Lender, in each case without the consent of the Agents, unless
the publicity is required by law or any stock exchange, in which case the
Company shall, to the extent possible in the circumstances, notify the Agents as
soon as practicable upon becoming aware of the requirement, shall consult with
the Agents on the terms of the reference and shall have regard to any timely
comments of the Agents.
(c) The Company shall keep the Agents and the Lenders reasonably informed
as to the status and progress of the Exchange Offer and of all material
communications with the SEC and any other regulatory authority relating to the
Exchange Offer.
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(d) The Company shall promptly inform the Agents and the Lenders of any
material request for information from, or opening of any investigation by, or
the U.S. Department of Justice or Federal Trade Commission or any European
competition authorities in connection with the Exchange Offer or the acquisition
of Target Shares by the Borrower.
(e) The Company shall promptly inform the Agents if in connection with the
Exchange Offer or the acquisition of Target Shares by the Borrower:
(i) any material antitrust authorization: (A) is granted or refused;
or (B) could reasonably be expected not to be granted before the Exchange
Offer closing date; or (C) is or could reasonably be expected to be subject
to any conditions and/or legally binding assurances and/or undertakings
which, if satisfied could reasonably be expected to have a Materially
Adverse Effect; or
(ii) any material legally binding assurances and/or undertakings by or
on behalf of the Company or any of its Subsidiaries or the Target or any of
its subsidiaries are proposed, offered or given by or on behalf of any such
member in connection with any antitrust authorization;
and shall promptly disclose to the Agents such information as the Agents may
from time to time reasonably request in connection with, and the course of
action (if any) proposed to be taken by the Company as a result of, any such
event or circumstance.
ARTICLE 6
DEFAULTS
Section 6.01. Events of Default. If one or more of the following events
("EVENTS OF DEFAULT") shall have occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal of or interest on
any Loan, any fees or any other amount payable hereunder, which failure, in the
case of interest or fees or amounts other than principal of any Loan, continues
for three Domestic Business Days;
(b) the Company shall fail to observe or perform any covenant contained in
Sections 5.07 to 5.15, inclusive;
(c) the Company shall fail to observe or perform any covenant or agreement
contained in this Agreement (other than those covered by clause (a) or (b)
above) for 30 days after written notice thereof has been given to the Company by
the Administrative Agent at the request of any Lender;
35
(d) any representation, warranty, certification or statement made by a Loan
Party in this Agreement or in any certificate, financial statement or other
document delivered pursuant to this Agreement shall prove to have been incorrect
in any material respect when made (or deemed made);
(e) the Company or any Subsidiary shall fail to make any payment in respect
of any Material Debt when due or within any applicable grace period;
(f) any event or condition shall occur which results in the acceleration of
the maturity of any Material Debt or enables (or with the giving of notice or
lapse of time or both, would enable) the holder of such Debt or any Person
acting on such holder's behalf to accelerate the maturity thereof;
(g) the Company or any Subsidiary shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with respect to
itself or its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part of
its property, or shall consent to any such relief or to the appointment of or
taking possession by any such official in an involuntary case or other
proceeding commenced against it, or shall make a general assignment for the
benefit of creditors, or shall admit in writing its inability to, or fail
generally to, pay its debts as they become due, or shall take any corporate
action to authorize any of the foregoing;
(h) an involuntary case or other proceeding shall be commenced against the
Company or any Subsidiary seeking liquidation, reorganization or other relief
with respect to it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 60 days; or an order for
relief shall be entered against the Company or any Subsidiary under the federal
bankruptcy laws as now or hereafter in effect;
(i) any member of the ERISA Group shall fail to pay when due an amount or
amounts aggregating in excess of $10,000,000 which it shall have become liable
to pay to the PBGC or a Plan under Title IV of ERISA; or notice of intent to
terminate a Material Plan shall be filed under Title IV of ERISA by any member
of the ERISA Group, any plan administrator or any combination of the foregoing;
or the PBGC shall institute proceedings under Title IV of ERISA to terminate, to
impose liability (other than for premiums under Section 4007 of ERISA) in
respect of, or to cause a trustee to be appointed to administer any Material
Plan; or a condition shall exist by reason of which the PBGC would be entitled
to obtain a decree adjudicating that any Material Plan must be terminated; or
there shall occur a complete or partial withdrawal from, or a default, within
the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more
36
Multiemployer Plans which could cause one or more members of the ERISA Group to
incur a current payment obligation in excess of $10,000,000;
(j) a judgment or order for the payment of money in excess of $75,000,000
shall be rendered against the Company or any Subsidiary and such judgment or
order shall continue unsatisfied and unstayed for a period of 30 days;
(k) the Guarantee by the Company in Article 9 shall for any reason be
revoked or invalidated, or otherwise cease to be in full force and effect, or
the Company, or any Person on behalf of the Company, shall deny or disaffirm its
obligations under such Guarantee; or
(l) any person or group of persons (within the meaning of Section 13 or 14
of the Securities Exchange Act of 1934, as amended) shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 promulgated by the SEC
under said Act) of 25% or more of the outstanding shares of common stock of the
Company; or individuals who, as of the Effective Date, constitute the board of
directors of the Company (the "INCUMBENT DIRECTORS") cease for any reason to
constitute at least a majority of the Company's board of directors; provided
that any person becoming a director after the Effective Date whose election, or
nomination for election by the Company's stockholders, is approved by a vote of
at least a majority of the directors then comprising the Incumbent Directors
(other than an election or nomination of an individual whose initial assumption
of office is in connection with an actual or threatened election contest
relating to the election or removal of directors of the Company) shall, for the
purposes of this Agreement, be considered as though such person were an
Incumbent Director;
then, and in every such event, the Administrative Agent shall (i) if requested
by the Required Lenders, by notice to the Company terminate the Commitments and
they shall thereupon terminate, and (ii) if requested by the Required Lenders,
by notice to the Company declare the Loans (together with accrued interest
thereon) to be, and the Loans shall thereupon become, immediately due and
payable without presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the Borrower; provided that in the case of any of the
Events of Default specified in clause (g) or (h) above with respect to the
Borrower, without any notice to the Company or any other act by the
Administrative Agent or the Lenders, the Commitments (if any) shall thereupon
terminate and the Loans (together with accrued interest thereon) shall become
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Borrower.
Section 6.02. Notice of Default. The Administrative Agent shall give notice
to the Company under Section 6.01(c) promptly upon being requested to do so by
any Lender and shall thereupon notify all the Lenders thereof.
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ARTICLE 7
THE AGENTS
Section 7.01. Appointment and Authorization. Each Lender irrevocably
appoints and authorizes each Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement as are delegated to such Agent
by the terms hereof or thereof, together with all such powers as are reasonably
incidental thereto. The provisions of this Article are solely for the benefit of
the Agents and the Lenders and, except as expressly provided in Section 7.08, no
Loan Party shall have rights as a third party beneficiary of any of such
provisions.
Section 7.02. Agents and Affiliates. Each Agent shall have the same rights
and powers under this Agreement as any other Lender and may exercise or refrain
from exercising the same as though it were not an Agent. Each Agent and its
affiliates may accept deposits from, lend money to, and generally engage in any
kind of business with the Company or any Subsidiary or affiliate of the Company
as if it were not an Agent hereunder and without any duty to account therefor to
the Lenders.
Section 7.03. Action by the Agents. The obligations of each Agent hereunder
are only those expressly set forth herein. Without limiting the generality of
the foregoing, no Agent shall (a) be subject to any fiduciary or other implied
duties, regardless of whether a Default has occurred and is continuing, (b) have
any duty to take any discretionary action or exercise any discretionary powers,
except discretionary rights and powers expressly contemplated hereby that the
Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be
expressly provided for herein), provided that the Administrative Agent shall not
be required to take any action that, in its opinion or the opinion of its
counsel, may expose the Administrative Agent to liability or that is contrary to
this Agreement or applicable law; and (c) except as expressly set forth herein,
have any duty to disclose, and shall not be liable for the failure to disclose,
any information relating to the Borrower or any of its Affiliates that is
communicated to or obtained by a Person serving as an Agent or any of its
Affiliates in any capacity. Each Agent shall be deemed not to have knowledge of
any Default unless and until notice describing such Default is given to it by a
Loan Party or a Lender.
Section 7.04. Consultation with Experts. Each Agent may consult with legal
counsel (who may be 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 by it in good faith in accordance with the advice of such
counsel, accountants or experts.
Section 7.05. Liability of the Agents. Neither any Agent nor any of such
Agent's affiliates, directors, officers, agents or employees shall be liable for
any action taken or not taken by it in connection herewith (i) with the consent
or at the
38
request of the Required Lenders or (ii) in the absence of its own gross
negligence or willful misconduct. Neither any Agent nor such Agent's affiliates,
directors, officers, agents or employees shall be responsible for or have any
duty to ascertain, inquire into or verify (i) any statement, warranty or
representation made in connection with this Agreement or any borrowing
hereunder; (ii) the performance or observance of any of the covenants or
agreements of any Loan Party; (iii) the satisfaction of any condition specified
in Article 3, except receipt of items required to be delivered to it; or (iv)
the validity, effectiveness or genuineness of this Agreement, the Notes or any
other instrument or writing furnished in connection herewith. No Agent shall
incur any liability by acting in reliance upon any notice, consent, certificate,
statement, or other writing (including any electronic message, Internet or
intranet website posting or other distribution) believed by it to be genuine or
to be signed by the proper party or parties. Each Agent also may rely upon any
statement made to it orally or by telephone and believed by it to have been made
by the proper Person, and shall not incur any liability for relying thereon. In
determining compliance with any condition hereunder to the making of a Loan that
by its terms must be fulfilled to the satisfaction of a Lender, the
Administrative Agent may presume that such condition is satisfactory to such
Lender unless the Administrative Agent shall have received notice to the
contrary from such Lender prior to the making of such Loan.
Section 7.06. Indemnification. Each Lender shall, ratably in accordance
with its Credit Exposure, indemnify each Agent and its affiliates and the
respective directors, officers, agents and employees of the foregoing (to the
extent not reimbursed by the Company) against any cost, expense (including
counsel fees and disbursements), claim, demand, action, loss or liability
(except such as result from such indemnitees' gross negligence or willful
misconduct) that such indemnitees may suffer or incur in connection with this
Agreement or any action taken or omitted by such indemnitees hereunder.
Section 7.07. Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon any Agent or any other Lender, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon any 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 any action under this Agreement.
Section 7.08. Successor Administrative Agent. The Administrative Agent may
resign at any time by giving notice thereof to the Lenders and the Company. Upon
any such resignation, the Required Lenders shall have the right, in consultation
with the Company, to appoint a successor Administrative Agent. 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 gives notice of resignation, then the retiring Agent
39
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 or of any State thereof and having a combined capital and surplus of at
least $50,000,000, provided that if the Administrative Agent shall notify the
Company and the Lenders that no qualifying Person has accepted such appointment,
then such resignation shall nonetheless become effective in accordance with such
notice and (1) the retiring Administrative Agent shall be discharged from its
duties and obligations hereunder and under the Notes and (2) all payments,
communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender directly, until
such time as the Required Lenders appoint a successor Administrative Agent as
provided for above in this Section. Upon the acceptance of its 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 and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder (if not already discharged therefrom as provided above in this
Section). After any retiring Administrative Agent's resignation hereunder as an
Administrative Agent, the provisions of this Article shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was such
Administrative Agent.
Section 7.09. Syndication and Documentation Agents. No syndication agent or
documentation agent, in its capacity as such, shall have any duties or
obligations of any kind under this Agreement.
ARTICLE 8
CHANGE IN CIRCUMSTANCES
Section 8.01. Basis for Determining Interest Rate Inadequate or Unfair. If
on or prior to the first day of any Interest Period for any Euro-Dollar Loans.
Lenders having 50% or more of the aggregate amount of the Credit Exposures
advise the Administrative Agent that the London Interbank Offered Rate as
determined by the Administrative Agent will not adequately and fairly reflect
the cost to such Lenders of funding such Loans for such Interest Period, the
Administrative Agent shall forthwith give notice thereof to the Company and the
Lenders, whereupon until the Administrative Agent notifies the Company that the
circumstances giving rise to such suspension no longer exist, (i) the
obligations of the Lenders to make Euro-Dollar Loans or to convert outstanding
Base Rate Loans into Euro-Dollar Loans shall be suspended and (ii) each
outstanding Euro-Dollar Loan shall be converted into a Base Rate Loan on the
last day of the then current Interest Period applicable thereto. Unless the
Company notifies the Administrative Agent at least two Domestic Business Days
before the date of any Euro-Dollar Borrowing for which a Notice of Borrowing has
previously been given that the Borrower elects not to borrow on such date, such
Borrowing shall
40
instead be made as a Base Rate Borrowing in the same amount as the requested
Borrowing.
Section 8.02. Illegality. If, on or after Effective Date, the adoption of
any applicable law, rule or regulation, or any change in any applicable law,
rule or regulation, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Lender
(or its Euro-Dollar Lending Office) with any request or directive (whether or
not having the force of law) of any such authority, central bank or comparable
agency shall make it unlawful or impossible for any Lender (or its Euro-Dollar
Lending Office) to make, maintain or fund its Euro-Dollar Loans and such Lender
shall so notify the Administrative Agent, the Administrative Agent shall
forthwith give notice thereof to the other Lenders and the Company, whereupon
until such Lender notifies the Company and the Administrative Agent that the
circumstances giving rise to such suspension no longer exist, the obligation of
such Lender to make Euro-Dollar Loans, or to convert outstanding Base Rate Loans
into Euro-Dollar Loans, shall be suspended. Before giving any notice to the
Administrative Agent pursuant to this Section, such Lender shall designate a
different Euro-Dollar Lending Office if such designation will avoid the need for
giving such notice and will not, in the judgment of such Lender, be otherwise
disadvantageous to such Lender. If such notice is given, each Euro-Dollar Loan
of such Lender then outstanding shall be converted to a Base Rate Loan either
(a) on the last day of the then current Interest Period applicable to such
Euro-Dollar Loan if such Lender may lawfully continue to maintain and fund such
Euro-Dollar Loan to such day or (b) immediately if such Lender shall determine
that it may not lawfully continue to maintain and fund such Euro-Dollar Loan to
such day.
Section 8.03. Increased Cost and Reduced Return. (a) If on or after
Effective Date, the adoption of any applicable law, rule or regulation, or any
change in any applicable law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or its Applicable Lending Office) with any
request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency shall impose, modify or deem
applicable any reserve (including, without limitation, any such requirement
imposed by the Board of Governors of the Federal Reserve System, but excluding
with respect to any Euro-Dollar Loan any such requirement included in an
applicable Euro-Currency Reserve Percentage), special deposit, insurance
assessment or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender (or its Applicable Lending Office)
or shall impose on any Lender (or its Applicable Lending Office) or on the
United States market for certificates of deposit or the London interbank market
any other condition affecting its Euro-Dollar Loans, any of its Notes or its
obligation to make Euro-Dollar Loans and the result of any of the foregoing is
to increase the cost to such
41
Lender (or its Applicable Lending Office) of making or maintaining any
Euro-Dollar Loan, or to reduce the amount of any sum received or receivable by
such Lender (or its Applicable Lending Office) under this Agreement or under any
of its Notes with respect thereto, by an amount deemed by such Lender to be
material, then, within 15 days after demand by such Lender (with a copy to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amount or amounts as will compensate such Lender for such increased cost or
reduction.
(b) If any Lender shall have determined that, after Effective Date, the
adoption of any applicable law, rule or regulation regarding capital adequacy,
or any change in any such law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or any request or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on capital
of such Lender (or its Parent) as a consequence of such Lender's obligations
hereunder to a level below that which such Lender (or its Parent) could have
achieved but for such adoption, change, request or directive (taking into
consideration its policies with respect to capital adequacy) by an amount deemed
by such Lender to be material, then from time to time, within 15 days after
demand by such Lender (with a copy to the Administrative Agent), the Borrower
shall pay to such Lender such additional amount or amounts as will compensate
such Lender (or its Parent) for such reduction, provided that no such demand by
any Lender shall include any period commencing earlier than 90 days prior to the
date of demand.
(c) Each Lender will promptly notify the Company and the Administrative
Agent of any event of which it has knowledge, occurring after Effective Date,
which will entitle such Lender to compensation pursuant to this Section and will
designate a different Applicable Lending Office if such designation will avoid
the need for, or reduce the amount of, such compensation and will not, in the
judgment of such Lender, be otherwise disadvantageous to such Lender. A
certificate of any Lender claiming compensation under this Section and setting
forth the additional amount or amounts to be paid to it hereunder shall be
conclusive in the absence of manifest error. In determining such amount, such
Lender may use any reasonable averaging and attribution methods.
Section 8.04. Taxes. (a) Any and all payments by any Loan Party to or for
the account of any Lender or any Agent hereunder or under any Note shall be made
free and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Lender and
Agent, taxes imposed on its net income, and franchise taxes imposed on it, by
the jurisdiction under the laws of which such Lender or Agent (as the case may
be) is organized or any political subdivision thereof and, in the case of each
Lender,
42
taxes imposed on its income, and franchise or similar taxes imposed on it, by
the jurisdiction of such Lender's Applicable Lending Office or any political
subdivision thereof. In the case of each Lender or Agent, all such non-excluded
taxes, duties, levies, imposts, deductions, charges, withholdings and
liabilities are hereinafter referred to as its "TAXES", and all such excluded
taxes are hereinafter referred to as its "DOMESTIC TAXES". If any Loan Party
shall be required by law to deduct any Taxes from or in respect of any sum
payable hereunder or under any Note to any Lender or any Agent, (i) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section) such Lender or Agent (as the case may be) receives an amount equal
to the sum it would have received had no such deductions been made, (ii) such
Loan Party shall make such deductions, (iii) such Loan Party shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable law and (iv) such Loan Party shall furnish to the
Administrative Agent, at its address referred to in Section 10.01, the original
or a certified copy of a receipt evidencing payment thereof, and, if such
receipt relates to Taxes in respect of a sum payable to any Lender, the
Administrative Agent shall promptly deliver such original or certified copy to
such Lender.
(b) In addition, each Loan Party agrees to pay any present or future stamp
or documentary taxes and any other excise or property taxes, or charges or
similar levies which arise from any payment made hereunder or under any Note or
from the execution or delivery of, or otherwise with respect to, this Agreement
or any Note (hereinafter referred to as "OTHER TAXES").
(c) Each Loan Party agrees to indemnify each Lender and each Agent for the
full amount of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section) paid by such Lender or Agent (as the case may be) and any
liability (including penalties, interest and expenses to the extent not
attributable to the gross negligence or willful misconduct of such Lender or
Agent, as the case may be) arising therefrom or with respect thereto. In
addition, each Loan Party agrees to indemnify each Lender and Agent for all
Domestic Taxes of such Lender or Agent (calculated based on a hypothetical basis
at the maximum marginal rate for a corporation) and any liability (including
penalties, interest and expenses to the extent not attributable to the gross
negligence or willful misconduct of such Lender or Agent, as the case may be)
arising therefrom or with respect thereto, in each case to the extent that such
Domestic Taxes result from any payment or indemnification pursuant to this
Section for (i) Taxes or Other Taxes imposed by any jurisdiction other than the
United States or (ii) Domestic Taxes of such Lender or Agent, as the case may
be. This indemnification shall be made within 15 days from the date such Lender
or Agent (as the case may be) makes demand therefor.
(d) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
43
Agreement in the case of each Lender listed on the signature pages hereof and on
or prior to the date on which it becomes a Lender in the case of each other
Lender, and from time to time thereafter if requested in writing by the Company
(but only so long as such Lender remains lawfully able to do so), shall provide
the Company with Internal Revenue Service form W-8ECI or W-8BEN, as appropriate,
or any successor form prescribed by the Internal Revenue Service, certifying
that such Lender is entitled to benefits under an income tax treaty to which the
United States is a party which reduces the rate of withholding tax on payments
of interest or certifying that the income receivable pursuant to this Agreement
is effectively connected with the conduct of a trade or business in the United
States. If the form provided by a Lender at the time such Lender first becomes a
party to this Agreement indicates a United States interest withholding tax rate
in excess of zero, any United States interest withholding tax at such rate
imposed on payments by the Company under this Agreement or under any Note (other
than pursuant to Article 9) shall be excluded from "TAXES" as defined in Section
8.04(a).
(e) For any period with respect to which a Lender has failed to provide the
Company with the appropriate form pursuant to Section 8.04(d) (unless such
failure is due to a change in treaty, law or regulation occurring subsequent to
the date on which a form originally was required to be provided), such Lender
shall not be entitled to indemnification under Section 8.04(a) or Section
8.04(c) with respect to Taxes imposed by the United States; provided that should
a Lender, which is otherwise exempt from or subject to a reduced rate of
withholding tax, become subject to Taxes because of its failure to deliver a
form required hereunder, the Loan Parties shall take such steps as such Lender
shall reasonably request to assist such Lender to recover such Taxes.
(f) If any Loan Party is required to pay additional amounts to or for the
account of any Lender pursuant to this Section, then such Lender will change the
jurisdiction of its Applicable Lending Office so as to eliminate or reduce any
such additional payment which may thereafter accrue if such change, in the
judgment of such Lender, is not otherwise disadvantageous to such Lender.
(g) Each Lender and Agent shall, at the request of either Loan Party, use
reasonable efforts (consistent with applicable legal and regulatory
restrictions) to file any certificate or document requested by such Loan Party
if the making of such a filing would eliminate or reduce the amount of any
additional amounts payable to or for the account of such Lender or Agent (as the
case may be) pursuant to this Section in respect of any Taxes or Other Taxes
imposed by any jurisdiction other than the United States which may thereafter
accrue and would not, in the sole judgment of such Lender or Agent, require such
Lender or Agent to disclose any confidential or proprietary information or be
otherwise disadvantageous to such Lender or Agent.
(h) If any Loan Party makes any payment pursuant to Section 8.04(a) or (c)
with respect to a Lender, such Lender shall, upon the reasonable request and at
44
the reasonable expense of such Loan Party, use reasonable efforts to apply for a
refund of tax (if such tax is not lawfully imposed) or a credit against its tax
liabilities on account of such payment; provided that (A) such Lender shall have
no obligation under this Section 8.04(h) if it determines, in its sole
discretion, that claiming a refund or a credit would have adverse tax
consequences to it and (B) such Lender shall not be under any obligation to
claim a credit or refund in respect of such payment in priority to any other
claims, reliefs, credits or deductions available to it. If such Lender receives
such a refund or actually reduces its tax liabilities by utilizing such a
credit, such Lender shall, to the extent that it can do so without prejudice to
the retention of the amount of such refund or credit, pay to the relevant Loan
Party an amount equal to the amount so received or utilized (less any
out-of-pocket expenses or taxes imposed on the receipt of such refund or
credit); provided that such Lender shall be required to pay to such Loan Party
(i) only such amounts as such Lender determines, in its sole discretion and by
using any reasonable method which the Lender deems appropriate, are attributable
to such payment by such Loan Party, and (ii) only if no Event of Default exists
at the time such Lender receives the relevant refund or credit. If a Lender is
in an excess foreign tax credit position, such Lender shall be deemed not to
have utilized a foreign tax credit with respect to any such payment by a Loan
Party. Each Loan Party agrees to return, upon the request of a Lender, any
payment made by such Lender under this Section 8.04(h) (plus penalties, interest
and other charges imposed by a taxing authority) to such Lender if a taxing
authority or such Lender determines that (x) such Lender is required to repay
such refund or (y) such Lender is unable to utilize such credit. Any calculation
or determination made under this Section 8.04(h) by any Lender shall be
conclusive and final.
(i) Nothing contained in Section 8.04 shall (i) entitle any Loan Party to
any information determined by any Lender, in its sole discretion, to be
confidential or proprietary information of such Lender, to any tax or financial
information of any Lender or to inspect or review any books and records of any
Lender, (ii) require any Lender to disclose or detail the basis of any
calculation of the amount of any tax benefit or any other amount or the basis of
any determination made under Section 8.04(h) to the Borrower or any other party,
(iii) be construed to require any Lender to institute any administrative
proceeding (other than the filing of a claim for any refund or credit) or
judicial proceeding to obtain any such refund or credit, or (iv) interfere with
the rights of any Lender to conduct its fiscal or tax affairs (including,
without limitation, its determination as to whether to claim a deduction or
credit in respect of foreign taxes) in such manner as it deems fit.
Section 8.05. Base Rate Loans Substituted for Affected Euro-Dollar Loans.
If (i) the obligation of any Lender to make, or convert outstanding Loans to,
Euro-Dollar Loans has been suspended pursuant to Section 8.02 or (ii) any Lender
has demanded compensation under Section 8.03 or 8.04 with respect to its
Euro-Dollar Loans and the Company shall, by at least five Euro-Dollar Business
45
Days' prior notice to such Lender through the Administrative Agent, have elected
that the provisions of this Section shall apply to such Lender, then, unless and
until such Lender notifies the Company that the circumstances giving rise to
such suspension or demand for compensation no longer exist:
(a) all Loans which would otherwise be made by such Lender as (or continued
as or converted into) Euro-Dollar Loans shall instead be made as (or continued
as converted into) Base Rate Loans (on which interest and principal shall be
payable contemporaneously with the related Euro-Dollar Loans of the other
Lenders), and
(b) after each of its Euro-Dollar Loans has been repaid (or converted to a
Base Rate Loan), all payments of principal which would otherwise be applied to
repay such Euro-Dollar Loans shall be applied to repay its Base Rate Loans
instead.
If such Lender notifies the Company that the circumstances giving rise to such
notice no longer apply, the principal amount of each such Base Rate Loan shall
be converted into a Euro-Dollar Loan on the first day of the next succeeding
Interest Period applicable to the related Euro-Dollar Loans of the other
Lenders.
Section 8.06. Substitution of Lender. If (i) the obligation of any Lender
to make Euro-Dollar Loans has been suspended pursuant to Section 8.02 or (ii)
any Lender has demanded compensation under Section 8.03 or 8.04, the Company
shall have the right, with the assistance of the Administrative Agent, to seek a
mutually satisfactory substitute lender or lenders ("SUBSTITUTE LENDERS") (which
may be one or more of the Lenders) to purchase the Loans and assume the
Commitment of such Lender (the "EXITING LENDER"). The Exiting Lender shall, upon
reasonable notice and payment to it of the purchase price agreed between it and
the Substitute Lender or Lenders (or, failing such agreement, a purchase price
equal to the outstanding principal amount of its Loans and interest accrued
thereon to but excluding the date of payment), assign all of its rights and
obligations under this Agreement and the Notes (including its unused and
outstanding Commitment) to the Substitute Lender or Lenders, and the Substitute
Lender or Lenders shall assume such rights and obligations, in accordance with
Section 10.06(c). In connection with any such sale, the Company shall compensate
the Exiting Lender for any funding losses as provided in Section 2.14 and pay to
the Exiting Lender its commitment fees accrued to but excluding the date of such
sale.
ARTICLE 9
GUARANTY
Section 9.01. The Guaranty. The Company hereby unconditionally guarantees
the full and punctual payment (whether at stated maturity, upon acceleration or
otherwise) of the principal of and interest on all Loans incurred by
46
the Borrower pursuant to this Agreement, and the full and punctual payment of
all other amounts payable by the Borrower under this Agreement. Upon failure by
the Borrower to pay punctually any such amount, the Company shall forthwith on
demand pay the amount not so paid at the place and in the manner and currency
specified in this Agreement.
Section 9.02. Guaranty Unconditional. The obligations of the Company under
this Article 9 shall be unconditional and absolute and, without limiting the
generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(i) any extension, renewal, settlement, compromise, waiver or release
in respect of any obligation of the Borrower under this Agreement or any of
its Notes, by operation of law or otherwise;
(ii) any modification or amendment of or supplement to this Agreement
or any Note of the Borrower (except that the Company's guarantee under this
Article 9 shall apply to the obligations of the Borrower as modified,
amended or supplemented thereby);
(iii) any release, impairment, non-perfection or invalidity of any
direct or indirect security for any obligation of the Borrower under this
Agreement or any of its Notes;
(iv) any change in the corporate existence, structure or ownership of
the Borrower, or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting the Borrower or its assets or any resulting
release or discharge of any obligation of the Borrower contained in this
Agreement or any of its Notes;
(v) the existence of any claim, set-off or other rights which the
Company may have at any time against the Borrower, any Agent, any Lender or
any other Person, whether in connection herewith or with any unrelated
transactions, provided that nothing herein shall prevent the assertion of
any such claim by separate suit or compulsory counterclaim;
(vi) any invalidity or unenforceability relating to or against the
Borrower for any reason of this Agreement or any of its Notes, or any
provision of applicable law or regulation purporting to prohibit the
payment by the Borrower of the principal of or interest on any of its Loans
or any other amount payable by it under this Agreement; or
(vii) any other act or omission to act or delay of any kind by the
Borrower, any Agent, any Lender or any other Person or any other
circumstance whatsoever which might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of the Company's
obligations hereunder.
47
Section 9.03. Discharge only upon Payment in Full; Reinstatement in Certain
Circumstances. The Company's obligations hereunder shall remain in full force
and effect until the Commitments shall have terminated and the principal of and
interest on the Loans of the Borrower and all other amounts payable by the
Company and the Borrower under this Agreement shall have been paid in full. If
at any time any payment of the principal of or interest on any Loan of the
Borrower or any other amount payable by the Borrower under this Agreement is
rescinded or must be otherwise restored or returned upon the insolvency,
bankruptcy or reorganization of the Borrower or otherwise, the Company's
obligations hereunder with respect to such payment shall be reinstated at such
time as though such payment had been due but not made at such time.
Section 9.04. Waiver by the Company. The Company irrevocably waives
acceptance hereof, presentment, demand, protest and any notice not provided for
herein, as well as any requirement that at any time any action be taken by any
Person against the Borrower or any other Person.
Section 9.05. Subrogation. Upon making any payment with respect to the
obligations of the Borrower hereunder, the Company shall be subrogated to the
rights of the payee against the Borrower with respect to such payment; provided
that the Company shall not enforce any payment by way of subrogation against the
Borrower so long as (i) any Lender has any Commitment hereunder or (ii) any
amount payable by the Borrower hereunder remains unpaid.
Section 9.06. Stay of Acceleration. If acceleration of the time for payment
of any amount payable by the Borrower under this Agreement or its Notes is
stayed upon insolvency, bankruptcy or reorganization of the Borrower, all such
amounts otherwise subject to acceleration under the terms of this Agreement
shall nonetheless be payable by the Company hereunder forthwith on demand by the
Administrative Agent made at the request of the Required Lenders.
ARTICLE 10
MISCELLANEOUS
Section 10.01. Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including bank wire, facsimile
transmission or similar writing) and shall be given to such party:
(a) in the case of either Loan Party:
0000 Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
48
with a copy to:
0000 Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: General Counsel
Facsimile: (000) 000-0000
(b) in the case of the Administrative Agent:
Administrative Agent's Office (for payments, Notices of Borrowing and
Notices of Interest Rate Elections):
Bank of America, N.A.
0000 Xxxxxxx Xxxx
Mail Code: CA4-702-02-25
Xxxxxxx, XX 00000
Attention: Xxxxxxx (Xxxxx) Xxxxxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Electronic Mail: xxxxxxx.x.xxxxxxxxxxx@xxxxxxxxxxxxx.xxx
Bank of America, N.A.
Dallas, TX
ABA # 000000000
Acct # 3750836479
Acct Name: Credit Services
Ref: Banner Acquisition, Inc.
Other Notices as Administrative Agent:
Bank of America, N.A.
Agency Management
0000 Xxxxxx Xxxxxx
Mail Code: CA5-701-05-19
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Electronic Mail: xxxxx.xxxxx@xxxxxxxxxxxxx.xxx
49
with a copy to:
Xxxxxx Xxxxxxx Senior Funding, Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxx/Jaap Tonckens
Telephone: 000-000-0000/000-000-0000
Facsimile: 000-000-0000/000-000-0000
Electronic Mail: Xxxxx.Xxx@xxxxxxxxxxxxx.xxx
Xxxx.Xxxxxxxx@xxxxxxxxxxxxx.xxx
(c) in the case of any Lender, at its address set forth in its
Administrative Questionnaire, or
(d) in the case of any party, at such other address or facsimile number as
such party may hereafter specify for the purpose by notice to the Administrative
Agent and the Company.
Each such notice, request or other communication shall be effective (i) if
given by facsimile transmission, when transmitted to the facsimile number
referred to in this Section and confirmation of receipt is received, (ii) if
given by electronic communication, as provided below, or (iii) if given by any
other means, when delivered at the address specified pursuant to this Section;
provided that notices to the Administrative Agent under Article 2 or Article 8
shall not be effective until received.
Notices and other communications to the Lenders hereunder may be delivered
or furnished by electronic communication (including e-mail and Internet or
intranet websites) pursuant to procedures approved by the Administrative Agent,
provided that the foregoing shall not apply to notices to any Lender pursuant to
Article II if such Lender has notified the Administrative Agent that it is
incapable of receiving notices under such Article by electronic communication.
Each of the Administrative Agent and the Loan Parties may, in its discretion,
agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it, provided that approval of
such procedures may be limited to particular notices or communications. Unless
the Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such as by
the "return receipt requested" function, as available, return e-mail or other
written acknowledgement), provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing
50
clause (i) of notification that such notice or communication is available and
identifying the website address therefor.
In no event shall the Administrative Agent or any of its affiliates have
any liability to any Loan Party, any Lender or any other Person for losses,
claims, damages, liabilities or expenses of any kind (whether in tort, contract
or otherwise) arising out of a Loan Party's or the Administrative Agent's
transmission of materials through the Internet, except to the extent that such
losses, claims, damages, liabilities or expenses are determined by a court of
competent jurisdiction by a final and nonappealable judgment to have resulted
from the gross negligence or willful misconduct of such Person; provided,
however, that in no event shall any such Person have any liability to any Loan
Party, any Lender, or any other Person for indirect, special, incidental,
consequential or punitive damages (as opposed to direct or actual damages)
Section 10.02. No Waivers. No failure or delay by the Administrative Agent
or any Lender in exercising any right, power or privilege hereunder or under any
Note shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein provided shall
be cumulative and not exclusive of any rights or remedies provided by law.
Section 10.03. Expenses; Indemnification. (a) The Company shall pay (i) all
reasonable out-of-pocket expenses of the Agents, including reasonable fees and
disbursements of special counsel for the Agents, in connection with the
preparation and administration of this Agreement, any waiver or consent
hereunder or any amendment hereof or any Default or alleged Default hereunder
and (ii) if an Event of Default occurs, all out-of-pocket expenses incurred by
any Agent or any Lender, including fees and disbursements of counsel (including,
without limitation, the allocated costs of in-house counsel), in connection with
such Event of Default and collection, bankruptcy, insolvency and other
enforcement proceedings resulting therefrom.
(b) The Company agrees to indemnify each Agent and each Lender, their
respective affiliates and the respective directors, officers, agents and
employees of the foregoing (each an "INDEMNITEE") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel (including, without limitation, the reasonable
allocated costs of in-house counsel), which may be incurred by such Indemnitee
in connection with any investigative, administrative or judicial proceeding
(whether or not such Indemnitee shall be designated a party thereto) brought or
threatened relating to or arising out of this Agreement or any actual or
proposed use of proceeds of Loans hereunder; provided that no Indemnitee shall
have the right to be indemnified hereunder for such Indemnitee's own gross
negligence or willful misconduct as finally determined by a court of competent
jurisdiction.
51
Section 10.04. Set-offs; Sharing. (a) If (i) an Event of Default has
occurred and is continuing and (ii) the Required Lenders have requested the
Administrative Agent to declare the Loans to be immediately due and payable
pursuant to Section 6.01, or the Loans have become immediately due and payable
without notice as provided in Section 6.01, then each Lender and any of its
affiliates are hereby authorized by each Loan Party at any time and from time to
time, to the extent permitted by applicable law, without notice to any Loan
Parties (any such notice being expressly waived by the Loan Parties), to set off
and apply all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such Lender
or any of its affiliates to or for the account of such Loan Party against any
obligations of such Loan Party to such Lender now or hereafter existing under
this Agreement, regardless of whether any such deposit or other obligation is
then due and payable or is in the same currency or is booked or otherwise
payable at the same office as the obligation against which it is set off and
regardless of whether such Lender shall have made any demand for payment under
this Agreement. Each Lender agrees promptly to notify such Loan Party after any
such set-off and application made by such Lender or its affiliates; provided
that any failure to give such notice shall not affect the validity of such
setoff and application. The rights of the Lenders under this subsection are in
addition to any other rights and remedies which the Lenders may have.
(b) Each Lender agrees that if it shall, by exercising any right of set-off
or counterclaim or otherwise, receive payment of a proportion of the aggregate
amount of principal and interest due with respect to any Loan held by it which
is greater than the proportion received by any other Lender in respect of the
aggregate amount of principal and interest due with respect to any Loan held by
such other Lender, the Lender receiving such proportionately greater payment
shall purchase such participations in the Loans held by the other Lenders, and
such other adjustments shall be made, as may be required so that all such
payments of principal and interest with respect to the Loans held by the Lenders
shall be shared by the Lenders pro rata; provided that nothing in this Section
shall impair the right of any Lender to exercise any right of set-off or
counterclaim it may have and to apply the amount subject to such exercise to the
payment of indebtedness of the Borrower other than its indebtedness under the
Agreement. The Borrower agrees, to the fullest extent it may effectively do so
under applicable law, that any holder of a participation in any of its Loans,
whether or not acquired pursuant to the foregoing arrangements, may exercise
rights of set-off or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were a direct
creditor of the Borrower in the amount of such participation.
Section 10.05. Amendments and Waivers. Any provision of this Agreement or
the Notes may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed by the Company and the Required Lenders (and, if the
rights or duties of any Agent are affected thereby,
52
by such Agent); provided that no such amendment or waiver shall, unless signed
by all the Lenders, (i) increase or decrease the Commitment of any Lender
(except for a ratable decrease in the Commitments of all the Lenders) or subject
any Lender to any additional obligation, (ii) reduce the principal of or rate of
interest on any Loan or any fees hereunder, (iii) postpone the date fixed for
any payment of principal of or interest on any Loan or any fees hereunder or for
the termination of any Commitment, (iv) release the Guarantor from any of its
obligations under Article 9, (v) waive any of the conditions to effectiveness
set forth in Section 3.01 or (vi) change the percentage of the Commitments or of
the aggregate amount of the Loans, or the number of Lenders which shall be
required for the Lenders or any of them to take any action under this Section or
any other provision of this Agreement.
Section 10.06. Successors and Assigns. (a) The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that no Loan Party may assign or
otherwise transfer any of its rights under this Agreement without the prior
written consent of all the Lenders.
(b) Any Lender may at any time grant to one or more banks or other
institutions (each a "PARTICIPANT") participating interests in its Commitment or
any or all of its Loans. In the event of any such grant by a Lender of a
participating interest to a Participant, whether or not upon notice to the
Borrower and the Administrative Agent, such Lender shall remain responsible for
the performance of its obligations hereunder, and the Borrower and the
Administrative Agent shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under this Agreement.
Any agreement pursuant to which any Lender may grant such a participating
interest shall provide that such Lender shall retain the sole right and
responsibility to enforce the obligations of the Loan Parties hereunder
including, without limitation, the right to approve any amendment, modification
or waiver of any provision of this Agreement; provided that such participation
agreement may provide that such Lender will not agree to any modification,
amendment or waiver of this Agreement described in clause (i), (ii) or (iii) of
Section 10.05 without the consent of the Participant. The Borrower agrees that
each Participant shall, to the extent provided in its participation agreement,
be entitled to the benefits of Article 8 with respect to its participating
interest. An assignment or other transfer which is not permitted by subsection
(c) or (d) below shall be given effect for purposes of this Agreement only to
the extent of a participating interest granted in accordance with this
subsection (b).
(c) Any Lender may at any time assign to one or more banks or other
institutions (but under no circumstances to the Borrower or any Affiliate) (each
an "ASSIGNEE") all, or a proportionate part of all, of its rights and
obligations under this Agreement and its Notes (including all or a portion of
its Commitment and the Loans at the time owing to it); provided that (i) except
in the case of an assignment of the entire remaining amount of the assigning
Lender's
53
Commitment and the Loans at the time owing to it or in the case of an assignment
to a Lender or an affiliate of a Lender or an Approved Fund with respect to a
Lender, the aggregate amount of the Commitment (which for this purpose includes
Loans outstanding thereunder) subject to each such assignment (determined as of
the date the Assignment and Assumption Agreement, hereinafter defined, with
respect to such assignment is delivered to the Administrative Agent) shall not
be less than $5,000,000, (ii) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender's rights and
obligations under this Agreement with respect to the Loans or the Commitment
assigned, (iii) the parties to each assignment shall execute and deliver to the
Administrative Agent an agreement, substantially in the form of Exhibit D hereto
(an "ASSIGNMENT AND ASSUMPTION AGREEMENT"), together with a processing and
recordation fee of $3,500, and such Assignee, if it shall not be a Lender, shall
deliver to the Administrative Agent an Administrative Questionnaire, and (iv)
the Administrative Agent and (so long as no Default has occurred and is
continuing) the Company shall have consented to such assignment (each such
consent not to be unreasonably withheld or delayed). From and after the
effective date specified in each Assumption Agreement, such Assignee shall be a
party hereto and, to the extent of the interest assigned by such Assignment and
Assumption Agreement, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption Agreement, be released from
its obligations under this Agreement (and, in the case of an Assignment and
Assumption Agreement covering all of the 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 8.03, 8.04 and
10.03). Any assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with this paragraph shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with paragraph (b) of this Section.
(d) Any Lender may at any time assign all or any portion of its rights
under this Agreement and its Notes to a Federal Reserve Bank or to any affiliate
of such transferor Lender. No such assignment shall release the transferor
Lender from its obligations hereunder and the Borrower and the Administrative
Agent shall continue to deal solely and directly with such transferor Lender in
connection with such transferor Lender's rights and obligations under this
Agreement.
(e) No Assignee, Participant or other transferee of any Lender's rights
shall be entitled to receive any greater payment under Section 8.03 or 8.04 than
such Lender would have been entitled to receive with respect to the rights
transferred, unless such transfer is made with the Company's prior written
consent or by reason of the provisions of Section 8.02, 8.03 or 8.04 requiring
such Lender to designate a different Applicable Lending Office under certain
circumstances or
54
at a time when the circumstances giving rise to such greater payment did not
exist.
Section 10.07. Collateral. Each of the Lenders represents to each Agent and
each of the other Lenders that it in good faith is not relying upon any Margin
Stock as collateral in the extension or maintenance of the credit provided for
in this Agreement.
Section 10.08. Governing Law; Submission to Jurisdiction. This Agreement
and each Note shall be governed by and construed in accordance with the laws of
the State of New York. Each Loan Party hereby submits to the nonexclusive
jurisdiction of the United States District Court for the Southern District of
New York and of any New York State court sitting in New York City for purposes
of all legal proceedings arising out of or relating to this Agreement or the
transactions contemplated hereby. Each Loan Party irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of the venue of any such proceeding brought in such a court
and any claim that any such proceeding brought in such a court has been brought
in an inconvenient forum.
Section 10.09. Counterparts; Integration. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement constitutes the entire agreement and understanding among the
parties hereto and supersedes any and all prior agreements and understandings
(other than any agreement referred to in Section 2.07(b)), oral or written,
relating to the subject matter hereof.
Section 10.10. Waiver of Jury Trial. EACH OF THE LOAN PARTIES, THE AGENTS
AND THE LENDERS HEREBY IRREVOCABLY WAIVES, ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Section 10.11. Treatment Of Certain Information; Confidentiality. Each of
the Administrative Agent and the Lenders agrees to maintain the confidentiality
of the Information (as defined below), except that Information may be disclosed
(a) to its affiliates and to its and its affiliates' respective partners,
directors, officers, employees, agents, advisors and representatives (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any regulatory
authority purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any Note or any action or proceeding
relating to this
55
Agreement or any Note or the enforcement of rights hereunder or thereunder, (f)
subject to an agreement containing provisions substantially the same as those of
this Section, to (i) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Agreement or (ii) any actual or prospective counterparty (or its advisors) to
any swap or derivative transaction relating to the Borrower and its obligations,
(g) with the consent of the Borrower or the Company or (h) to the extent such
Information (x) becomes publicly available other than as a result of a breach of
this Section or (y) becomes available to the Administrative Agent, any Lender,
or any of their respective affiliates on a nonconfidential basis from a source
other than a Loan Party.
For purposes of this Section, "INFORMATION" means all information received
from the Company or any Subsidiary relating to the Company or any Subsidiary or
any of their respective businesses, other than any such information that is
available to the Administrative Agent or any Lender on a nonconfidential basis
prior to disclosure by the Company or any Subsidiary, provided that, in the case
of information received from the Company or any Subsidiary after the date
hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information
as provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
Each of the Administrative Agent and the Lenders acknowledges that (a) the
Information may include material non-public information concerning the Company
or a Subsidiary, as the case may be, (b) it has developed compliance procedures
regarding the use of material non-public information and (c) it will handle such
material non-public information in accordance with applicable law, including
federal and state securities laws.
Section 10.12. USA Patriot Act Notice. Each Lender that is subject to the
Act (as hereinafter defined) and the Administrative Agent (for itself and not on
behalf of any Lender) hereby notifies the Loan Parties that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the "ACT"), it is required to obtain, verify and record
information that identifies the Loan Parties, which information includes the
name and address of the Loan Parties and other information that will allow such
Lender or the Administrative Agent, as applicable, to identify the Loan Parties
in accordance with the Act.
56
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
BANNER ACQUISITION, INC.,
as Borrower
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
----------------------------------
Title: President
---------------------------------
ALLERGAN, INC.,
as Guarantor
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
----------------------------------
Title: Executive Vice President,
Finance and Business Development,
Chief Financial Officer
---------------------------------
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
----------------------------------
Title: Senior Vice President,
Treasury, Risk and Investor
Relations
---------------------------------
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as Lender and as Arranger
By: /s/ Jaap L. Tonckens
------------------------------------
Name: Jaap L. Tonckens
----------------------------------
Title: Vice President
---------------------------------
BANC OF AMERICA SECURITIES LLC,
as Arranger
By: /s/ Xxxxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxxxx Xxxxxxx
----------------------------------
Title: Managing Director
---------------------------------
BANK OF AMERICA, N.A.,
as Lender and as Administrative Agent
By: /s/ B. Xxxxxxx Xxxxxx, Xx.
------------------------------------
Name: B. Xxxxxxx Xxxxxx, Xx.
----------------------------------
Title: Vice President
---------------------------------
CITICORP NORTH AMERICA, INC.,
as Lender
By: /s/ J. Xxxxxxx Xxxxx
------------------------------------
Name: J. Xxxxxxx Xxxxx
----------------------------------
Title: Attorney-In-Fact
---------------------------------
XXXXXXX SACHS CREDIT PARTNERS, L.P.,
as Lender
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
----------------------------------
Title: Managing Director
---------------------------------
COMMITMENT SCHEDULE
LENDER COMMITMENT
------ ------------
Xxxxxx Xxxxxxx Senior Funding, Inc. $330,000,000
Bank of America, N.A. $286,000,000
Citicorp North America, Inc. $253,000,000
Xxxxxxx Sachs Credit Partners, L.P. $231,000,000
Commitment Schedule
PRICING SCHEDULE
Each of the"COMMITMENT FEE RATE", "BASE RATE MARGIN" and "EURO-DOLLAR
MARGIN" means, on any date, the rate per annum set forth below in the row
opposite such term and in the column corresponding to the "STATUS" that exists
on such date:
STATUS
--------------------------------------------------------------
LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V LEVEL VI
------- -------- --------- -------- ------- --------
Commitment Fee Rate .085% .10% .125% .15% .20% .25%
Base Rate Margin 0% 0% 0% 0% 0% .25%
Euro-Dollar Margin .40% .45% .50% .625% .875% 1.50%
For purposes of this Schedule, the following terms have the following
meanings, subject to the concluding paragraph of this Schedule:
"LEVEL I STATUS" exists at any date if, at such date, the Company's Credit
Rating is A or higher by S&P or A2 or higher by Xxxxx'x.
"LEVEL II STATUS" exists at any date if, at such date, (i) the Company's
Credit Rating is A- or higher by S&P or A3 or higher by Xxxxx'x and (ii) Level I
Status does not exist.
"LEVEL III STATUS" exists at any date if, at such date, (i) the Company's
Credit Rating is BBB+ or higher by S&P or Baa1 or higher by Xxxxx'x and (ii)
neither Level I Status nor Level II Status exists.
"LEVEL IV STATUS" exists at any date if, at such date, (i) the Company's
Credit Rating is BBB or higher by S&P or Baa2 or higher by Xxxxx'x and (ii) none
of Level I Status, Level II Status and Level III Status exists.
"LEVEL V STATUS" exists at any date if, at such date, (i) the Company's
Credit Rating is BBB- or higher by S&P or Baa3 or higher by Xxxxx'x and (ii)
none of Level I Status, Level II Status, Level III Status or Level IV Status
exists.
"LEVEL VI STATUS" exists at any date if, at such date, no other Status
exists or the Company does not have Credit Ratings from both S&P and Xxxxx'x.
"STATUS" refers to the determination of which of Level I Status, Level II
Status, Level III Status, Level IV Status, Level V Status or Level VI Status
exists at any date.
The "CREDIT RATINGS" to be utilized for purposes of this Pricing Schedule
are those assigned to the senior unsecured long-term debt securities of the
Pricing Schedule - p.1
Company without third-party credit enhancement, and any rating assigned to any
other debt security of the Company shall be disregarded. The rating in effect at
any date is that in effect at the close of business on such date. In the case of
split ratings from S&P and Xxxxx'x, the rating to be used to determine which
Status applies is the higher of the two; provided that if the split is more than
one full category, one rating above the lower rating shall be used (e.g. A+/A3
results in Level II Status and A+/Baa1 in Level III Status).
Pricing Schedule - p.2
EXHIBIT A
NOTE
New York, New York
____________, 200_
For value received, Banner Acquisition, Inc., a Delaware corporation (the
"BORROWER"), promises to pay to the order of _______________ (the "LENDER"), for
the account of its Applicable Lending Office, the unpaid principal amount of
each Loan made by the Lender to the Borrower pursuant to the Credit Agreement
referred to below on the maturity date provided for in the Credit Agreement. The
Borrower promises to pay interest on the unpaid principal amount of each such
Loan on the dates and at the rate provided for in the Credit Agreement. All such
payments of principal and interest shall be made in Dollars, in Federal or other
immediately available funds at the office of Bank of America, N.A., 000 X. Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx.
All Loans made by the Lender, the respective types and maturities thereof
and all repayments of the principal thereof shall be recorded by the Lender and,
if the Lender so elects in connection with any transfer or enforcement hereof,
appropriate notations to evidence the foregoing information with respect to each
such Loan then outstanding shall be endorsed by the Lender on the schedule
attached hereto, or on a continuation of such schedule attached to and made a
part hereof; provided that the failure of the Lender to make any such
recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the Credit Agreement dated as
of March 20, 2006 among the Borrower, Allergan, Inc., the Lenders party thereto,
Xxxxxx Xxxxxxx Senior Funding, Inc. and Banc of America Securities LLC, as
Arrangers, and Bank of America, N.A., as Administrative Agent (as the same may
be further amended from time to time, the "CREDIT AGREEMENT"). Terms defined in
the Credit Agreement are used herein with the same meanings. Reference is made
to the Credit Agreement for provisions for the prepayment hereof and the
acceleration of the maturity hereof.
Exhibit A - p.1
The payment in full of the principal and interest on this Note has,
pursuant to the provisions of the Credit Agreement, been unconditionally
guaranteed by Allergan, Inc.
BANNER ACQUISITION, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Exhibit A - p.2
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
Type Amount of
Date of Loan Principal Repaid Amount of Loan Maturity Date Notation Made by
---- ------- ---------------- -------------- ------------- ----------------
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
Exhibit A - p.3
EXHIBIT B
FORM OF OPINION OF GENERAL COUNSEL FOR THE COMPANY
March __, 2006
To the Lenders and the Agents
referred to below
c/o Bank of America, N.A., as Administrative Agent
0000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Gentlemen:
This opinion is being furnished to you pursuant to Section 3.01(b) of the
Credit Agreement dated as of March 20, 2006 (the "CREDIT AGREEMENT") among
Banner Acquisition, Inc., a Delaware corporation (the "BORROWER"), Allergan,
Inc., a Delaware corporation (the "COMPANY"), the lenders party thereto (the
"LENDERS"), Xxxxxx Xxxxxxx Senior Funding, Inc. and Banc of America Securities
LLC, as Arrangers (the "ARRANGERS"), and Bank of America, N.A., as
Administrative Agent (the "ADMINISTRATIVE AGENT" and, together with the
Arrangers, the "AGENTS"). Capitalized terms used but not defined herein have the
corresponding meanings set forth in the Credit Agreement.
I am the General Counsel of the Company and, in such capacity, I am
generally familiar with the corporate and legal matters concerning the Company
and its Subsidiaries.
I have made such inquiries and examined, among other things, originals, or
copies certified or otherwise identified to my satisfaction as being true
copies, of such records, agreements, certificates, instruments and other
documents as I have considered necessary or appropriate for purposes of this
opinion.
Based on the foregoing and in reliance thereon, I am of the opinion that:
1. Each of the Borrower and the Company has been duly incorporated and is a
validly existing corporation and in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority to execute, deliver
and perform its obligations under the Credit Agreement and its Notes and to
conduct its business as presently conducted.
2. Each of the Borrower and the Company is duly qualified to transact
business and is in good standing in each jurisdiction in which the character of
its business or the location of its properties makes such qualification
necessary, except where the failure to be so qualified would not have a
Materially Adverse Effect.
Exhibit B - p.1
To the Lenders and the Agents
referred to below 2 March __, 2006
3. To the best of my knowledge, the Company and each Subsidiary have all
governmental licenses, authorizations, consents and approvals required to carry
on their respective businesses as presently conducted, except where the failure
to have any of the foregoing would not in the aggregate have a Materially
Adverse Effect.
4. Neither the Company nor any Subsidiary is in violation of (a) its
charter or bylaws or (b) to the best of my knowledge, any law, statute, rule,
regulation, order, writ, injunction or decree of any Governmental Authority
applicable to them or their respective properties or assets, except, in the case
of clause (b), where any such violation would, singly or in the aggregate with
other such violations, not have a Materially Adverse Effect.
5. There are no pending or, to the best of my knowledge, threatened actions
or proceedings against the Company or any of its Subsidiaries before any
Governmental Authority which purport to affect the legality, validity, binding
effect or enforceability of the Credit Agreement or the Notes, or which are
likely to have a Materially Adverse Effect, except for those actions or
proceedings previously disclosed in the Company's periodic filings made with the
Securities and Exchange Commission.
6. The execution and delivery by each Loan Party of the Credit Agreement
and by the Borrower of its Notes and the performance by each Loan Party of its
obligations thereunder have been duly authorized by all necessary action of such
Loan Party.
7. The Credit Agreement and the Notes of each Loan Party have each been
duly executed and delivered by such Loan Party.
8. The Credit Agreement constitutes a valid and binding agreement of each
Loan Party and each of its Notes constitute a legal, valid and binding
obligation of the Borrower, in each case enforceable in accordance with its
terms.
9. The execution, delivery and performance by each Loan Party of the Credit
Agreement and by the Borrower of its Notes do not and will not (A) violate the
restated certificate of incorporation or bylaws of such Loan Party as in effect
on the date hereof, (B) to the best of my knowledge, violate any material law or
regulation applicable to such Loan Party or any order, judgment or decree of any
Governmental Authority known to me to be binding on such Loan Party, (C) to the
best of my knowledge, conflict with, result in a material breach of or
constitute a material default under any material indenture, mortgage, deed of
trust, agreement or other instrument to which the Company or any Subsidiary is a
party or by which any of their respective properties are bound or result in or
require the creation or imposition of any Lien upon any of their respective
assets, or (D)
Exhibit B - p.2
To the Lenders and the Agents
referred to below 3 March __, 2006
require any authorization, consent, waiver or approval of any Governmental
Authority.
10. Neither the Company nor any of its Subsidiaries is an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
The foregoing opinions are subject to the following exceptions,
qualifications and limitations:
A. I render no opinion herein as to matters involving the laws of any
jurisdiction other than (i) the Federal laws of the United States of America,
(ii) the laws of the State of California and (iii) the Delaware General
Corporation Law. I am not admitted to practice law in the State of Delaware;
however, I am generally familiar with the Delaware General Corporation Law as
presently in effect and have made such inquiries as I consider necessary to
render the opinions contained in paragraphs 1, 4, 6, 7 and 9. This opinion is
limited to the effect of the present state of the foregoing laws and to the
facts as they presently exist. I assume no obligation to revise or supplement
this opinion in the event of future changes in such laws or the interpretations
thereof or such facts. I express no opinion regarding the Securities Act of
1933, as amended, or any other federal and state securities laws or regulations.
I call your attention to the fact that the Credit Agreement provides that it and
the Notes shall be construed in accordance with and governed by the laws of the
State of New York as to which I express no opinion herein. However, in my
opinion (i) a Federal or state court sitting in California would enforce or
otherwise give legal effect to the choice of New York law set forth in Section
10.08 of the Credit Agreement and (ii) even if such a court applied California
law to determine the rights of the parties under the Credit Agreement, I would
give the opinion set forth in paragraph 8 above.
B. My opinions set forth in paragraph 8 and (with respect to performance by
a Loan Party) clauses (B) and (D) of paragraph 9 are subject to (i) the effect
of any bankruptcy, insolvency, reorganization, moratorium, arrangement or
similar laws affecting the enforcement of creditors' rights generally
(including, without limitation, the effect of statutory or other laws regarding
fraudulent transfers or preferential transfers) and (ii) general principles of
equity, regardless of whether enforceability is considered in a proceeding in
equity or at law.
C. Without limitation, I express no opinion (i) as to the ability to obtain
specific performance, injunctive relief or other equitable relief (whether
sought in a proceeding at law or in equity) as a remedy for noncompliance with
Credit Agreement or the Notes, and (ii) regarding the rights or remedies
available to any party insofar as such party may take discretionary action that
is arbitrary, unreasonable or capricious, or is not taken in good faith or in a
commercially
Exhibit B - p.3
To the Lenders and the Agents
referred to below 4 March __, 2006
reasonable manner, whether or not such action is permitted under the Credit
Agreement or the Notes.
D. I express no opinion with respect to the legality, validity, binding
nature or enforceability of any provision of the Credit Agreement or the Notes
to the effect that rights or remedies are not exclusive, that every right or
remedy is cumulative and may be exercised in addition to any other right or
remedy, that the election of some particular remedy does not preclude recourse
to one or more others or that failure to exercise or delay in exercising rights
or remedies will not operate as a waiver of any such right or remedy.
E. I express no opinion with respect to the legality, validity, binding
nature or enforceability of (i) any waiver under the Credit Agreement or the
Notes or any consents thereunder relating to the rights of a Loan Party or
duties owing to it existing as a matter of law, except to the extent such Loan
Party may so waive or consent under applicable law, (ii) provisions in the
Credit Agreement or the Notes imposing an increase in interest rate upon
delinquency in payment or (iii) any rights of setoff.
F. I express no opinion as to any provision of the Credit Agreement or the
Notes requiring written amendments or waivers of such documents insofar as it
suggests that oral or other modifications, amendments or waivers could not be
effectively agreed upon by the parties or that the doctrine of promissory
estoppel might not apply.
G. I express no opinion as to the applicability or effect of any Lender's
compliance with any state or Federal laws applicable to the transactions
contemplated by the Credit Agreement.
Exhibit B - p.4
To the Lenders and the Agents
referred to below 5 March __, 2006
This opinion is rendered to you in connection with the Credit Agreement and
may not be relied upon by any person other than you (or permitted assignees
under the Credit Agreement) or by you (or any such permitted assignee) in any
other context, provided that you may provide this opinion (i) to bank examiners
and other regulatory authorities should they so request or in connection with
their normal examinations, (ii) to your independent auditors and attorneys,
(iii) pursuant to order or legal process of any court or governmental agency, or
(iv) in connection with any legal action to which you are a party arising out of
the transactions contemplated by the Credit Agreement. In addition, this opinion
may be delivered to and relied upon by Xxxxx Xxxx & Xxxxxxxx, special counsel to
the Agents, in connection with closing under the Credit Agreement. This opinion
may not otherwise be quoted without my prior written consent.
Very truly yours,
----------------------------------------
Xxxxxxx X. Xxxxxx, Esq.
General Counsel
Exhibit B - p.5
EXHIBIT C
FORM OF OPINION OF XXXXX XXXX & XXXXXXXX
March __, 2006
To the Lenders and the Agents
referred to below
c/o Bank of America, N.A., as Administrative Agent
0000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Dear Sirs:
We have participated in the preparation of the Credit Agreement (the
"CREDIT AGREEMENT") dated as of March 20, 2006 among Banner Acquisition, Inc., a
Delaware corporation, Allergan, Inc., a Delaware corporation (the "COMPANY"),
the lenders party thereto (the "LENDERS"), Xxxxxx Xxxxxxx Senior Funding, Inc.
and Banc of America Securities LLC as Arrangers (the "ARRANGERS"), and Bank of
America, N.A., as Administrative Agent (the "ADMINISTRATIVE AGENT" and, together
with the Arrangers, the "AGENTS"), and have acted as special counsel to the
Agents for the purpose of rendering this opinion pursuant to Section 3.01(c) of
the Credit Agreement. Terms defined in the Credit Agreement are used herein as
therein defined.
We have examined originals or copies, certified or otherwise identified to
our satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as we have deemed necessary or advisable for purposes of this
opinion.
Upon the basis of the foregoing, we are of the opinion that:
1. The execution, delivery and performance by each Loan Party of the Credit
Agreement and by the Borrower of its Notes are within such Loan Party's
corporate powers and have been duly authorized by all necessary corporate
action.
2. The Credit Agreement constitutes a valid and binding agreement of each
Loan Party and each Note of the Borrower constitutes a valid and binding
obligation of the Borrower, in each case enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization or other
similar laws affecting creditors' rights generally and general principles of
equity.
Exhibit C - p.1
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York and the General
Corporation Law of the State of Delaware. In giving the foregoing opinion, we
express no opinion as to the effect (if any) of any law of any jurisdiction
(except the State of New York) in which any Lender is located which limits the
rate of interest that such Lender may charge or collect.
This opinion is rendered solely to you in connection with the above matter.
This opinion may not be relied upon by you for any other purpose or relied upon
by any other person without our prior written consent, except that this opinion
may be relied upon by each Assignee which becomes a Lender after the date hereof
in accordance with the terms of Section 10.06(c), as though addressed to such
Assignee on and as of the date hereof.
Very truly yours,
Exhibit C - p.2
EXHIBIT D
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, 200_ among [ASSIGNOR] (the "ASSIGNOR"),
[ASSIGNEE] (the "ASSIGNEE"), Banner Acquisition, Inc., a Delaware corporation
(the "BORROWER"), Allergan, Inc., a Delaware corporation (the "COMPANY"), Xxxxxx
Xxxxxxx Senior Funding, Inc., and Banc of America Securities LLC, as Arrangers
(the "ARRANGERS"), and Bank of America, N.A., as Administrative Agent (the
"ADMINISTRATIVE AGENT").
WITNESSETH
WHEREAS, this Assignment and Assumption Agreement (this "AGREEMENT")
relates to the Credit Agreement dated as of March 20, 2006 among the Borrower,
the Company, the Assignor and the other lenders party thereto, as Lenders, the
Arrangers, and the Administrative Agent (the "CREDIT AGREEMENT");
[WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Loans to the Borrower in an aggregate amount at any time
outstanding not to exceed $__________;]
WHEREAS, Loans made to the Borrower by the Assignor under the Credit
Agreement in the aggregate amount of $__________ are outstanding at the date
hereof;
WHEREAS, the Assignor proposes to assign to the Assignee all of the rights
of the Assignor under the Credit Agreement in respect of a portion of [its
outstanding Commitment thereunder in an amount equal to $__________, together
with a corresponding portion of] its outstanding Loans (the "ASSIGNED AMOUNT"),
and the Assignee proposes to accept assignment of such rights and assume the
corresponding obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise defined herein
have the respective meanings set forth in the Credit Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells to the
Assignee all of the rights of the Assignor under the Credit Agreement to the
extent of the Assigned Amount, and the Assignee hereby accepts such assignment
from the Assignor and assumes all of the obligations of the Assignor under the
Credit Agreement to the extent of the Assigned Amount. Upon the execution and
Exhibit D - p.1
delivery hereof by the Assignor and the Assignee and the execution of the
consent attached hereto by [the Company and](2) the Administrative Agent and the
payment of the amounts specified in Section 3 hereof required to be paid on the
date hereof, (i) the Assignee shall, as of the date hereof, succeed to the
rights and be obligated to perform the obligations of a Lender under the Credit
Agreement with a Commitment in an amount equal to the Assigned Amount, and (ii)
the Commitment of the Assignor shall, as of the date hereof, be reduced by a
like amount and the Assignor shall be released from its obligations under the
Credit Agreement to the extent such obligations have been assumed by the
Assignee. The assignment provided for herein shall be without recourse to the
Assignor.
SECTION 3. Payments. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof, in Dollars (in Federal funds), the amounts heretofore agreed
between them.(3) [It is understood that commitment fees accrued to the date
hereof are for the account of the Assignor and such fees accruing from and
including the date hereof are for the account of the Assignee.] Each of the
Assignor and the Assignee agrees that if it receives any amount under the Credit
Agreement which is for the account of the other party hereto, it shall receive
the same for the account of such other party to the extent of such other party's
interest therein and shall promptly pay the same to such other party.
SECTION 4. Consent of [the Company and](4) the Administrative Agent. This
Agreement is conditioned upon the consent of [the Company and](5) the
Administrative Agent pursuant to Section 10.06(c) of the Credit Agreement.
SECTION 5. Non-Reliance on Assignor. The Assignor makes no representation
or warranty in connection with, and shall have no responsibility with respect
to, the solvency, financial condition or statements of any Loan Party, or the
validity and enforceability of the obligations of any Loan Party in respect of
the Credit Agreement or its Note. The Assignee acknowledges that it has,
independently and without reliance on the Assignor, and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and will continue to be
----------
(2) Delete if consent is not required.
(3) Amount should combine principal together with accrued interest and breakage
compensation, if any, to be paid by the Assignee. It may be preferable in
an appropriate case to specify these amounts generically or by formula
rather than as a fixed sum.
(4) Delete if consent is not required.
(5) Delete if consent is not required.
Exhibit D - p.2
responsible for making its own independent appraisal of the business, affairs
and financial condition of the Loan Parties.
SECTION 6. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
SECTION 7. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered by their duly authorized officers as of the date first above
written.
[ASSIGNOR]
By:
------------------------------------
Title:
---------------------------------
The undersigned consent to the foregoing assignment.
[ASSIGNEE]
By:
------------------------------------
Title:
---------------------------------
[ALLERGAN, INC.]
By:
------------------------------------
Title:
---------------------------------
[BANK OF AMERICA, N.A.]
By:
------------------------------------
Title:
---------------------------------
Exhibit D - p.3
