Exhibit 99.1
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CREDIT AGREEMENT
dated as of
October 7, 2005
between
CAMBREX CORPORATION
The SUBSIDIARY BORROWERS Party Hereto
The SUBSIDIARY GUARANTORS Party Hereto
The LENDERS Party Hereto
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
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$277,500,000
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X.X. XXXXXX SECURITIES INC.,
as Sole Lead Arranger and Sole Bookrunner
CITIBANK, N.A.
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Co-Syndication Agents
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS.......................................................... 1
SECTION 1.01. Defined Terms................................................. 1
SECTION 1.02. Classification of Loans and Borrowings........................ 23
SECTION 1.03. Terms Generally............................................... 23
SECTION 1.04. Accounting Terms; GAAP........................................ 24
SECTION 1.05. Currencies; Currency Equivalents; Provisions Relating to
European Monetary Union.................................... 24
ARTICLE II THE CREDITS......................................................... 25
SECTION 2.01. The Commitments............................................... 25
SECTION 2.02. Loans and Borrowings.......................................... 26
SECTION 2.03. Requests for Syndicated Borrowings............................ 26
SECTION 2.04. Swingline Loans............................................... 27
SECTION 2.05. Letters of Credit............................................. 29
SECTION 2.06. Funding of Borrowings......................................... 34
SECTION 2.07. Interest Elections............................................ 35
SECTION 2.08. Termination, Reduction and Increase of the Commitments........ 36
SECTION 2.09. Repayment of Loans; Evidence of Debt.......................... 39
SECTION 2.10. Prepayment of Loans........................................... 40
SECTION 2.11. Fees ......................................................... 41
SECTION 2.12. Interest...................................................... 42
SECTION 2.13. Alternate Rate of Interest.................................... 43
SECTION 2.14. Increased Costs............................................... 43
SECTION 2.15. Break Funding Payments........................................ 45
SECTION 2.16. Taxes......................................................... 45
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Set-offs... 48
SECTION 2.18. Mitigation Obligations; Replacement of Lenders................ 51
SECTION 2.19. Designation of Subsidiary Borrowers........................... 51
ARTICLE III GUARANTEE.......................................................... 53
SECTION 3.01. The Guarantee................................................. 53
SECTION 3.02. Obligations Unconditional..................................... 54
SECTION 3.03. Reinstatement................................................. 55
SECTION 3.04. Subrogation................................................... 55
SECTION 3.05. Remedies...................................................... 55
SECTION 3.06. Instrument for the Payment of Money........................... 56
SECTION 3.07. Continuing Guarantee.......................................... 56
SECTION 3.08. Rights of Contribution........................................ 56
SECTION 3.09. General Limitation on Guarantee Obligations................... 57
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ARTICLE IV REPRESENTATIONS AND WARRANTIES...................................... 57
SECTION 4.01. Organization; Powers.......................................... 57
SECTION 4.02. Authorization; Enforceability................................. 57
SECTION 4.03. Governmental Approvals; No Conflicts.......................... 58
SECTION 4.04. Financial Condition; No Material Adverse Change............... 58
SECTION 4.05. Properties.................................................... 58
SECTION 4.06. Litigation and Environmental Matters.......................... 59
SECTION 4.07. Compliance with Laws and Agreements........................... 59
SECTION 4.08. Investment and Holding Company Status......................... 59
SECTION 4.09. Taxes ........................................................ 59
SECTION 4.10. ERISA ........................................................ 60
SECTION 4.11. Disclosure.................................................... 60
SECTION 4.12. Use of Credit................................................. 60
SECTION 4.13. Subsidiaries.................................................. 60
SECTION 4.14. Labor Matters................................................. 61
SECTION 4.15. Representations and Warranties Affecting Certain
Subsidiary Borrowers....................................... 61
ARTICLE V CONDITIONS........................................................... 62
SECTION 5.01. Effective Date................................................ 62
SECTION 5.02. Each Credit Event............................................. 64
ARTICLE VI AFFIRMATIVE COVENANTS............................................... 64
SECTION 6.01. Financial Statements and Other Information.................... 65
SECTION 6.02. Notices of Material Events.................................... 66
SECTION 6.03. Existence; Conduct of Business................................ 67
SECTION 6.04. Payment of Obligations........................................ 67
SECTION 6.05. Maintenance of Properties; Insurance.......................... 67
SECTION 6.06. Books and Records; Inspection Rights.......................... 67
SECTION 6.07. Compliance with Laws.......................................... 67
SECTION 6.08. Use of Proceeds and Letters of Credit......................... 67
SECTION 6.09. Certain Obligations Respecting Subsidiaries;
Further Assurances......................................... 68
ARTICLE VII NEGATIVE COVENANTS................................................. 69
SECTION 7.01. Subsidiary Indebtedness....................................... 69
SECTION 7.02. Liens ........................................................ 70
SECTION 7.03. Mergers, Consolidations, etc.; Changes in Lines of Business... 71
SECTION 7.04. Disposition of Assets......................................... 72
SECTION 7.05. Investments and Acquisitions.................................. 73
SECTION 7.06. Restricted Payments........................................... 74
SECTION 7.07. Transactions with Affiliates.................................. 74
SECTION 7.08. Restrictive Agreements........................................ 75
SECTION 7.09. Certain Financial Covenants................................... 75
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SECTION 7.10. Sale and Leaseback Transactions............................... 75
ARTICLE VIII EVENTS OF DEFAULT................................................. 76
ARTICLE IX THE ADMINISTRATIVE AGENT............................................ 78
ARTICLE X MISCELLANEOUS........................................................ 81
SECTION 10.01. Notices....................................................... 81
SECTION 10.02. Waivers; Amendments........................................... 82
SECTION 10.03. Expenses; Indemnity; Damage Waiver............................ 84
SECTION 10.04. Successors and Assigns........................................ 85
SECTION 10.05. Survival...................................................... 88
SECTION 10.06. Counterparts; Integration; Effectiveness...................... 89
SECTION 10.07. Severability.................................................. 89
SECTION 10.08. Right of Setoff............................................... 89
SECTION 10.09. Governing Law; Jurisdiction; Etc.............................. 90
SECTION 10.10. WAIVER OF JURY TRIAL.......................................... 91
SECTION 10.11. Judgment Currency............................................. 91
SECTION 10.12. Headings...................................................... 92
SECTION 10.13. Treatment of Certain Information; Confidentiality............. 92
SECTION 10.14. USA PATRIOT Act............................................... 93
SECTION 10.15. Waiver of Immunity............................................ 93
SECTION 10.16. Appointment of Company as Agent............................... 93
SECTION 10.17. Termination of Commitments under Existing Credit Agreement.... 94
SECTION 10.18. Lender Representation - Professional Market Party............. 94
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SCHEDULE 1.01 - Commitments
SCHEDULE 2.05(l) - Existing Letters of Credit
SCHEDULE 4.06(a) - Litigation
SCHEDULE 4.13 - Subsidiaries
SCHEDULE 7.01 - Indebtedness
SCHEDULE 7.02 - Liens
SCHEDULE 7.05 - Investments
SCHEDULE 7.08 - Restrictive Agreements
EXHIBIT A - Form of Assignment and Acceptance
EXHIBIT B - Form of Pledge Agreement
EXHIBIT C - Intercreditor and Collateral Agency Agreement
EXHIBIT D - Sharing Agreement
EXHIBIT E - Form of Guarantee Assumption Agreement
EXHIBIT F-1 - Form of Opinion of General Counsel of the Obligors
EXHIBIT F-2 - Form of Opinion of Special New York Counsel to the Obligors
EXHIBIT G - Form of Opinion of Special New York Counsel to JPMCB
EXHIBIT H - Form of Subsidiary Borrower Designation Letter
EXHIBIT I - Form of Subsidiary Borrower Termination Letter
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CREDIT AGREEMENT dated as of October 7, 2005, between CAMBREX
CORPORATION, the SUBSIDIARY BORROWERS party hereto, the SUBSIDIARY GUARANTORS
party hereto, the LENDERS party hereto, and JPMORGAN CHASE BANK, N.A., as
Administrative Agent.
The Company (as hereinafter defined) has requested that the Lenders
(as so defined) extend credit to it, under the guarantee of the Subsidiary
Guarantors (as so defined), in an aggregate principal or face amount not
exceeding $277,500,000, for the purposes specified herein. The Lenders are
prepared to extend such credit upon the terms and conditions hereof, and,
accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans constituting such Borrowing, are denominated in
Dollars and bearing interest at a rate determined by reference to the Alternate
Base Rate.
"Acquired Entity" means any business, assets or Person subject to an
Acquisition.
"Acquisition" means any transaction, or any series of related
transactions, consummated after the date hereof, by which the Company and/or any
of its Subsidiaries (a) acquires any going business or all or substantially all
of the assets of any corporation, limited liability company, partnership, joint
venture or other entity or any division of any corporation, limited liability
company, partnership, joint venture or other entity or the right to use or
manage or otherwise exploit any such business or assets, whether through
purchase or lease of assets, merger or otherwise or (b) directly or indirectly
acquires ownership or Control of at least a majority (in number of votes) of
Capital Stock which has ordinary voting power for the election of directors or
other managers of any corporation, limited liability company, partnership, joint
venture or other entity.
"Adjusted LIBO Rate" means, for the Interest Period for any
Eurocurrency Borrowing, an interest rate per annum (rounded upwards, if
necessary, to the next 1/100 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate for such Interest Period.
"Administrative Agent" means JPMCB, in its capacity as administrative
agent for the Lenders hereunder.
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"Administrative Agent's Account" means, for each currency, an account
in respect of such currency designated by the Administrative Agent in a notice
to the Company and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Agreed Foreign Currency" means, at any time, any of Pounds Sterling,
euro, Japanese Yen and, with the agreement of each Lender, any other Foreign
Currency, so long as, in respect of any such specified currency or other Foreign
Currency, at such time (a) such currency is dealt with in the London interbank
deposit market, (b) such currency is freely transferable and convertible into
Dollars in the London foreign exchange market and (c) no central bank or other
governmental authorization in the country of issue of such currency (including,
in the case of the euro, any authorization by the European Central Bank) is
required to permit use of such currency by any Lender for making any Loan
hereunder and/or to permit the relevant Borrower to borrow and repay the
principal thereof and to pay the interest thereon, unless such authorization has
been obtained and is in full force and effect.
"Alternate Base Rate" means, for any day, a rate per annum equal to
the greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate for such day plus 0.50%. Any change in the Alternate Base
Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall
be effective from and including the effective date of such change in the Prime
Rate or the Federal Funds Effective Rate, as the case may be.
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Applicable Rate" means, for any day, with respect to any ABR Loan
(including any Swingline Loan that bears interest based upon the Alternate Base
Rate) or Eurocurrency Loan, or with respect to the facility fees payable
hereunder, as the case may be, the applicable rate per annum set forth below
under the caption "ABR Spread", "Eurocurrency Spread" or "Facility Fee Rate",
respectively, based upon the Leverage Ratio as of the most recent determination
date; provided that until the delivery of the financial statements for the
fiscal quarter ending September 30, 2005 the "Applicable Rate" shall be the
applicable rate per annum set forth below in Category 2:
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ABR Eurodollar Facility
Leverage Ratio Spread Spread Fee Rate
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Category 1 <1.75x 0 0.475% 0.15%
Category 2 > or = 1.75x 0 0.575% 0.175%
<2.50x
Category 3 > or = 2.50x 0 0.65% 0.225%
<3.00x
Category 4 > or = 3.00x 0 0.85% 0.275%
For purposes of the foregoing, (i) the Leverage Ratio shall be determined as of
the end of each fiscal quarter of the Company's fiscal year based upon the
Company's consolidated financial statements delivered pursuant to Section
6.01(a) or (b) and (ii) each change in the Applicable Rate resulting from a
change in the Leverage Ratio shall be effective during the period commencing on
and including the date three Business Days after delivery to the Administrative
Agent of such consolidated financial statements (and the related compliance
certificate required under Section 6.01(c)) indicating such change and ending on
the date immediately preceding the effective date of the next such change;
provided that (A) the Leverage Ratio shall be deemed to be in Category 4 at any
time that an Event of Default has occurred and is continuing and (B) if the
Company fails to deliver the consolidated financial statements required to be
delivered by it pursuant to Section 6.01(a) or (b) (and/or the related
compliance certificate required to be delivered by it pursuant to Section
6.01(c)), any adjustment in the Applicable Rate shall be delayed until the
delivery thereof and shall be retroactively applied for the period from the
expiration of the time for delivery thereof until the date of such delivery.
"Approved Fund" means any Person (other than a natural person) that is
engaged in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course of its business and that is
administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers or manages a Lender.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 10.04), and accepted by the Administrative Agent, in the
form of Exhibit A or any other form approved by the Administrative Agent.
"Assuming Lender" has the meaning set forth in Section 2.08(e).
"Availability Period" means the period from and including the
Effective Date to but excluding the earlier of the Commitment Termination Date
and the date of termination of the Commitments.
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"Board" means the Board of Governors of the Federal Reserve System of
the United States of America.
"Borrowers" means the Company and the Subsidiary Borrowers.
"Borrowing" means (a) all Syndicated ABR Loans made, converted or
continued on the same date, (b) all Eurocurrency Loans denominated in the same
currency that have the same Interest Period or (c) a Swingline Loan.
"Borrowing Request" means a request by a Borrower for a Syndicated
Borrowing in accordance with Section 2.03.
"Business Day" means any day (a) that is not a Saturday, Sunday or
(other than with respect to determining any Interest Period) other day on which
commercial banks in New York City are authorized or required by law to remain
closed, (b) if such day relates to a borrowing of, a payment or prepayment of
principal of or interest on, a continuation or conversion of or into, or the
Interest Period for, a Eurocurrency Borrowing, or to a notice by the relevant
Borrower with respect to any such borrowing, payment, prepayment, continuation,
conversion, or Interest Period, that is also a day on which dealings in deposits
denominated in the currency of such Borrowing are carried out in the London
interbank market and (c) (i) if such day relates to a borrowing or continuation
of, a payment or prepayment of principal of or interest on, or the Interest
Period for, any Eurocurrency Borrowing denominated in any Foreign Currency
(other than euros), or to a notice by the relevant Borrower with respect to any
such borrowing, continuation, payment, prepayment or Interest Period, that is
also a day on which commercial banks and the London foreign exchange market
settle payments in the Principal Financial Center for such Foreign Currency or
(ii) if such day relates to a borrowing or continuation of, a payment or
prepayment of principal of or interest on, or the Interest Period for, any
Eurocurrency Borrowing denominated in euros, or to a notice by the relevant
Borrower with respect to any such borrowing, continuation, payment, prepayment
or Interest Period, that is also a TARGET Day.
"Capital Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase any of the foregoing.
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"Change in Control" means (a) the acquisition of ownership, directly
or indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934, as amended, and the rules of the
Securities and Exchange Commission thereunder as in effect on the date hereof),
of shares representing more than 35% of the aggregate ordinary voting power
represented by the issued and outstanding common stock of the Company or (b)
occupation of a majority of the seats (other than vacant seats) on the board of
directors of the Company by Persons who were neither (i) nominated by the board
of directors of the Company nor (ii) appointed by directors so nominated.
"Change in Law" means (a) the adoption of any law, rule or regulation
after the date hereof, (b) any change in any law, rule or regulation or in the
interpretation or application thereof by any Governmental Authority after the
date hereof or (c) compliance by any Lender or the Issuing Lender (or, for
purposes of Section 2.14(b), by any lending office of such Lender or by such
Lender's or the Issuing Lender's holding company, if any) with any request,
guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date hereof.
"Change in Tax Law" means, with respect to any Person, a change in or
amendment to the Code or a change in, or amendment to, or the entering into of,
an income tax treaty between the United States of America and the jurisdiction
where such Person is a tax resident, or a change in or amendment to the treasury
regulations, in each case that occurred after such Person became a party to this
Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans constituting such Borrowing, are Syndicated
Loans or Swingline Loans.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral Agent" means JPMCB, in its capacity as Collateral Agent
under the Intercreditor and Collateral Agency Agreement.
"Commitment" means, with respect to each Lender, the commitment of
such Lender to make Syndicated Loans and to acquire participations in Letters of
Credit and Swingline Loans hereunder, expressed as an amount representing the
maximum aggregate amount of such Lender's Revolving Credit Exposure hereunder,
as such commitment may be (a) reduced from time to time pursuant to Section
2.08(b), (b) increased from time to time pursuant to Section 2.08(e), and (c)
reduced or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 10.04. The initial amount of each Lender's Commitment
is set forth on Schedule 1.01, or in the Assignment and Acceptance (or in any
confirmation or agreement of a Lender under Section 2.08(e)) pursuant to which
such Lender shall have assumed its Commitment, as applicable. The aggregate
amount of the Lenders' Commitments is $277,500,000 as of the Effective Date.
"Commitment Increase" has the meaning set forth in Section 2.08(e).
Credit Agreement
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"Commitment Increase Date" has the meaning set forth in Section
2.08(e).
"Commitment Termination Date" means October 7, 2010.
"Company" means Cambrex Corporation, a Delaware corporation.
"Consolidated EBITDA" means, for any period, the sum, for the Company
and its Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following: (a) Consolidated Net Income for such
period plus (b) without duplication and to the extent deducted in determining
such Consolidated Net Income, the sum of (i) Consolidated Interest Expense for
such period, (ii) income tax expense for such period, (iii) all amounts
attributable to depreciation and amortization for such period, (iv) all
extraordinary losses, (v) all non-cash amounts attributable to the impairment of
goodwill or other intangibles or to the expensing of in-process research and
development in connection with any acquisition, (vi) all non-cash losses
associated with the sale or write-down of assets not in the ordinary course of
business, (vii) all non-cash losses associated with foreign currency
translations (including as a result of marking to market any investment or any
hedging arrangement relating thereto) (viii) all non-cash expenses in connection
with or as a result of any equity, equity-like or equity-linked grants or awards
by the Company or any of its Subsidiaries to its directors, officers, employees
or consultants, (ix) all non-cash expenses, losses or write-downs attributable
to restructuring charges, plant shut-downs or in connection with discontinued
operations, in each case, that are non-recurring, unusual or extraordinary and
(x) all cash expenses or losses attributable to restructuring charges, plant
shut-downs, impairments of goodwill or other intangibles or in connection with
discontinued operations, in each case, that are non-recurring, unusual or
extraordinary not exceeding (I) $25,000,000 in the aggregate (for any period of
four consecutive fiscal quarters of the Company) and (II) $50,000,000 in the
aggregate during the period commencing with the fiscal quarter beginning on July
1, 2005 and ending on the termination of this Agreement, and minus (c) without
duplication and to the extent included in determining such Consolidated Net
Income, (i) all non-cash gains associated with the sale or write-down of assets
not in the ordinary course of business, (ii) all extraordinary gains for such
period and (iii) all non-cash gains associated with foreign currency
translations (including as a result of marking to market any investment or any
hedging arrangement relating thereto); provided that, without duplication, if
during any period for which Consolidated EBITDA is being determined, the Company
or any of its Subsidiaries shall have made any Disposition or Acquisition (in
one or a series of related transactions) or shall have acquired one or more
income producing assets as part of a single transaction, in each case, in excess
of $25,000,000 in fair market value, Consolidated EBITDA shall be determined for
purposes of this Agreement by (x) with respect to any such Disposition,
excluding the Consolidated EBITDA of the Disposed Entity (to the extent not
already reflected in the relevant financial statements of the Company) or (y) in
the case of any such Acquisition or acquisition of income producing assets,
including the Consolidated EBITDA of the Acquired Entity or the earnings
associated with such assets, as applicable, for such period, in each case, as if
the relevant transaction had been made or consummated on the first day of such
period.
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"Consolidated Funded Indebtedness" means, as of any date, all
interest-bearing Indebtedness (including Capital Lease Obligations) of the
Company and its Subsidiaries classified as indebtedness in accordance with GAAP
on the Company's consolidated balance sheet minus an amount equal to (i) the
excess (if any) of (x) the aggregate amount of all cash deposits (regardless of
currency or location) held in accounts owned by and under the control of the
Company or any of its Subsidiaries for a period of at least 30 consecutive days
ending on such date over (y) $5,000,000, minus (ii) an amount equal to the
United States federal income tax liability (if any) that would be imposed on
such amount in the event such amount was transferred to the United States, as
reasonably estimated by the Company.
"Consolidated Interest Expense" means, for any period, the sum, for
the Company and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following: (a) all interest in
respect of Indebtedness (including the interest component of any payments in
respect of Capital Lease Obligations) accrued or capitalized during such period
(whether or not actually paid during such period) plus (b) the net amount
payable (or minus the net amount receivable) under Hedging Agreements relating
to interest during such period (whether or not actually paid or received during
such period).
"Consolidated Net Income" means, for any period, the net income or
loss of the Company and its Subsidiaries (determined on a consolidated basis in
accordance with GAAP) for such period; provided that there shall be excluded the
income (or deficit) of any Person (other than a Subsidiary of the Company or any
other Person Controlled by the Company) in which the Company or any of its
Subsidiaries has an ownership interest, except to the extent that any such
income is actually received by the Company or such Subsidiary in the form of
dividends or similar distributions.
"Consolidated Net Worth" means, as of any date, all amounts that
would, in accordance with GAAP, be included on a consolidated balance sheet of
the Company under stockholders' equity at such date.
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Currency Valuation Date" means the first Business Day of each
calendar month.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Disposed Entity" means any business, assets or Person subject to a
Disposition.
"Disposition" means any sale, lease, license, transfer, assignment or
other disposition of all or a material portion of the business, assets, rights,
revenues or property, real,
Credit Agreement
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personal or mixed, tangible or intangible, of the Company or any of its
Subsidiaries, whether in one or a series of transactions.
"Dollar Equivalent" means, with respect to any Borrowing denominated
in any Foreign Currency, the amount of Dollars that would be required to
purchase the amount of the Foreign Currency of such Borrowing on the date two
Business Days prior to the date of such Borrowing (or, in the case of any
determination made under Section 2.10(b) or redenomination under the last
sentence of Section 2.17(a), on the date of determination or redenomination
therein referred to), based upon the spot selling rate at which the Person
serving as Administrative Agent offers to sell such Foreign Currency for Dollars
in the London foreign exchange market at approximately 11:00 a.m., London time,
for delivery two Business Days later.
"Dollars" or "$" refers to lawful money of the United States of
America.
"Domestic Subsidiary" means a Subsidiary (other than a Receivables
Subsidiary) that is not a Foreign Subsidiary.
"Effective Date" means the date on which the conditions specified in
Section 5.01 are satisfied (or waived in accordance with Section 10.02).
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Company or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Equity Rights" means, with respect to any Person, any subscriptions,
options, warrants, commitments, preemptive rights or agreements of any kind
(including any shareholders' or voting trust agreements) for the issuance, sale,
registration or voting of, or securities convertible into, any additional shares
of Capital Stock of any class, or partnership or other ownership interests of
any type in, such Person.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
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"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Company, is treated as a single employer
under Section 414(b) or (c) of the Code, or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Company or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Company or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Company or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Company or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Company or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"euro" means the single currency of Participating Member States of the
European Union, which shall be an Agreed Foreign Currency and a Foreign Currency
under this Agreement.
"Eurocurrency", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans constituting such Borrowing, are
bearing interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article
VIII.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, the Issuing Lender or any other recipient of any payment to be made (a)
by or on account of any obligation of the Company or any Subsidiary Borrower,
(i) income or franchise taxes imposed on (or measured by) its net income, net
profit, net worth (however denominated), and franchise or capital taxes imposed,
in each case, by the United States of America, or by the jurisdiction under the
laws of which such recipient is organized or in which its principal office is
located or, in the case of any Lender, in which its applicable lending office is
located and (ii) any branch profits taxes imposed by the United States of
America or any similar tax imposed by any other jurisdiction in which the
Company or any such Subsidiary Borrower that is a Domestic Subsidiary is
located, (b) by or on account of the Company, a Domestic Subsidiary or a
Subsidiary Borrower organized in the Netherlands, income or franchise taxes
imposed on (or measured by) its net income, net profit, net worth (however
denominated), and franchise or capital taxes imposed, in each case, by a
jurisdiction in which such Person is doing business
Credit Agreement
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(unless such Person would not have been subject to such Tax in such jurisdiction
but for (i) the transactions contemplated hereunder or under any other Loan
Document or (ii) such Person performing any obligations, receiving any payments
or enforcing any rights hereunder or thereunder);(c) by or on account of any
obligation of the Company or any Domestic Subsidiary that is a Subsidiary
Borrower, in the case of a Foreign Lender (other than an assignee pursuant to a
request by the Company under Section 2.18(b)), any withholding tax that (i) is
in effect and would apply to amounts payable to such Foreign Lender by the
Company or any such Domestic Subsidiary at the time such Foreign Lender becomes
a party to this Agreement (or designates a new lending office for purposes
hereof), other than any withholding tax imposed on any payment by the Company or
any such Domestic Subsidiary to the extent that such Foreign Lender, in the case
of a designation of a new lending office (or its assignor, in the case of an
assignment) was entitled as a result of a Change in Tax Law, at the time of such
designation (or assignment, as the case may be), to receive additional amounts
from the Company or any such Domestic Subsidiary with respect to any withholding
tax pursuant to Section 2.16(a), or (ii) is attributable to such Foreign
Lender's failure or inability (other than as a result of a Change in Law) to
comply with Section 2.16(e); and (d) by or on account of any obligation of any
Subsidiary Borrower that is organized under the laws of the Netherlands, in the
case of any Lender that first becomes a party to this Agreement after a change
in withholding tax law imposed by the Netherlands (other than an assignee
pursuant to a request by the Company under Section 2.18(b)), any withholding tax
imposed by the Netherlands to the extent that such tax exceeds the Netherlands
withholding tax to which such Lender's assignor would have been subject or that
is imposed by the Netherlands solely by reason of such Lender's failure or
inability (other than as a result of a Change in Law) to comply with Section
2.16(f).
"Existing Credit Agreement" has the meaning set forth in Section
5.01(h).
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer, treasurer, vice
president-finance or corporate controller of the Company.
"First-Tier Foreign Subsidiary" mean any Foreign Subsidiary that is
owned directly by the Company or any Domestic Subsidiary.
"Foreign Currency" means at any time any currency other than Dollars.
"Foreign Currency Equivalent" means, with respect to any amount in
Dollars, the amount of any Foreign Currency that could be purchased with such
amount of Dollars using the
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reciprocal of the foreign exchange rate(s) specified in the definition of the
term "Dollar Equivalent", as determined by the Administrative Agent.
"Foreign Lender" means any Lender that is organized under the laws of
a jurisdiction other than that in which the Company is located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" means any Subsidiary that is organized under the
laws of a jurisdiction other than the United States of America, a State thereof
or the District of Columbia.
"GAAP" means generally accepted accounting principles in the United
States of America.
"Governmental Authority" means the government of the United States of
America, or of any other nation, or any political subdivision thereof, whether
state or local, and any agency, authority, instrumentality, regulatory body,
court, central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
or applicant in respect of any letter of credit or letter of guaranty issued to
support such Indebtedness or obligation; provided that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary course of
business.
"Guarantee Assumption Agreement" means a Guarantee Assumption
Agreement substantially in the form of Exhibit E by an entity that, pursuant to
Section 6.09, is required to become a "Subsidiary Guarantor" hereunder in favor
of the Administrative Agent and for the benefit of the Lenders.
"Guarantors" means the Company (with respect to its obligations as a
guarantor under Article III) and the Subsidiary Guarantors.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or
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petroleum distillates, asbestos or asbestos containing materials,
polychlorinated biphenyls, radon gas, infectious or medical wastes and all other
substances or wastes of any nature regulated pursuant to any Environmental Law.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"Immaterial Domestic Subsidiary" means any Domestic Subsidiary that
has less than $5,000,000 of assets and revenues, determined (in the case of
assets) as of the end of and (in the case of revenues) for the most recently
completed fiscal quarter of the Company.
"Immaterial Foreign Subsidiary" means any Foreign Subsidiary that has
less than $5,000,000 of assets and revenues, determined (in the case of assets)
as of the end of and (in the case of revenues) for the most recently completed
fiscal quarter of the Company.
"Immaterial Subsidiary" means any Subsidiary that has less than
$500,000 of assets and revenues, determined (in the case of assets) as of the
end of and (in the case of revenues) for the most recently completed fiscal
quarter for which consolidated financial statements of the Company are
available.
"Increasing Lender" has the meaning set forth in Section 2.08(e).
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (d) all obligations of
such Person in respect of the deferred purchase price of property or services
(excluding current accounts payable incurred in the ordinary course of
business), (e) all Indebtedness of others secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be secured
by) any Lien on property owned or acquired by such Person, whether or not the
Indebtedness secured thereby has been assumed, (f) all Guarantees by such Person
of Indebtedness of others of the type included within this definition (other
than this clause (f)), (g) all Capital Lease Obligations of such Person, (h) all
obligations, contingent or otherwise, of such Person as an account party or
applicant in respect of letters of credit, letters of guaranty and similar
instruments, (i) all obligations, contingent or otherwise, of such Person in
respect of bankers' acceptances and (j) the liquidation value of any mandatorily
redeemable preferred Capital Stock of such Person or any of its Subsidiaries
held by any Person (other than such Person or any of its Subsidiaries) that is
redeemable in whole or in part at any time prior to December 31, 2010, but only
if such liquidation value exceeds $10,000,000; provided that the amount of
Indebtedness under clauses (e) and (f) above shall be the lesser of (i) the
amount of such Indebtedness of such other Person and (ii)(x) in the case of
clause (e), the fair market value of the property subject to such Lien and (y)
in the case of clause (f), the actual obligation of such other Person. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is
Credit Agreement
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liable therefor as a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Intercreditor and Collateral Agency Agreement" means the Amended and
Restated Intercreditor and Collateral Agency Agreement, dated as of June 23,
2003, among the Company, the Administrative Agent, certain holders of Other Debt
(as defined therein) from time to time, and the Collateral Agent, a copy of
which (as in effect on the date hereof) is attached as Exhibit C.
"Interest Coverage Ratio" means, as at any date, the ratio of (a)
Consolidated EBITDA for the period of four fiscal quarters ending on or most
recently ended prior to such date to (b) Consolidated Interest Expense for such
period.
"Interest Election Request" means a request by the relevant Borrower
to convert or continue a Syndicated Borrowing in accordance with Section 2.07.
"Interest Payment Date" means (a) with respect to any Syndicated ABR
Loan, each Quarterly Date, (b) with respect to any Eurocurrency Loan, the last
day of each Interest Period therefor and, in the case of any Interest Period of
more than three months' duration, each day prior to the last day of such
Interest Period that occurs at three-month intervals after the first day of such
Interest Period and (c) with respect to any Swingline Loan, the last Business
Day of each month.
"Interest Period" means, for any Eurocurrency Loan or Borrowing, the
period commencing on the date of such Loan or Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter or, with respect to such portion of any Eurocurrency Loan
or Borrowing denominated in a Foreign Currency that is scheduled to be repaid on
the Commitment Termination Date, a period of less than one month's duration
commencing on the date of such Loan or Borrowing and ending on the Commitment
Termination Date, as specified in the applicable Borrowing Request or Interest
Election Request; provided that (i) if any Interest Period would end on a day
other than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless such next succeeding Business Day would fall in
the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day, and (ii) any Interest Period (other than an
Interest Period pertaining to a Eurocurrency Borrowing denominated in a Foreign
Currency that ends on the Commitment Termination Date that is permitted to be of
less than one month's duration as provided in this definition) that commences on
the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such
Interest Period. For purposes hereof, the date of a Loan initially shall be the
date on which such Loan is made and thereafter shall be the effective date of
the most recent conversion or continuation of such Loan, and the date of a
Syndicated Borrowing comprising
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Loans that have been converted or continued shall be the effective date of the
most recent conversion or continuation of such Loans.
"Investment" means, for any Person: (a) the acquisition (whether for
cash, property, services or securities or otherwise) of Capital Stock, bonds,
notes, debentures, partnership or other ownership interests or other securities
of any other Person or any agreement to make any such acquisition (including any
"short sale" or any sale of any securities at a time when such securities are
not owned by the Person entering into such sale); (b) the making of any deposit
with, or advance, loan or other extension of credit to, any other Person
(including the purchase of property from another Person subject to an
understanding or agreement, contingent or otherwise, to resell such property to
such Person), but excluding any such advance, loan or extension of credit having
a term not exceeding 180 days arising in connection with the sale of inventory
or supplies by such Person in the ordinary course of business; (c) the entering
into of any Guarantee of, or other contingent obligation with respect to,
Indebtedness or any other liability of any other Person and (without
duplication) any amount committed to be advanced, lent or extended to such
Person; or (d) the entering into of any Hedging Agreement.
"Issuing Lender" means JPMCB, in its capacity as the issuer of Letters
of Credit hereunder, and its successors in such capacity as provided in Section
2.05(j).
"JPMCB" means JPMorgan Chase Bank, N.A.
"LC Disbursement" means a payment made by the Issuing Lender pursuant
to a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the relevant Borrower at such time. The LC Exposure of any Lender at any time
shall be its Applicable Percentage of the total LC Exposure at such time.
"Lender Affiliate" means, with respect to any Lender, (i) an Affiliate
of such Lender or (ii) any entity (whether a corporation, partnership, trust or
otherwise) that is engaged in making, purchasing, holding or otherwise investing
in bank loans and similar extensions of credit in the ordinary course of its
business and is administered or managed by such Lender or an Affiliate of such
Lender.
"Lenders" means the Persons listed on Schedule 1.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance or as an Assuming Lender pursuant to Section 2.08(e), other than any
such Person that ceases to be a party hereto pursuant to an Assignment and
Acceptance. Unless the context otherwise requires, the term "Lenders" includes
the Swingline Lender.
"Letter of Credit" means any letter of credit issued pursuant to this
Agreement.
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"Letter of Credit Documents" means, with respect to any Letter of
Credit, collectively, any application therefor and any other agreements,
instruments, guarantees or other documents (whether general in application or
applicable only to such Letter of Credit) governing or providing for (a) the
rights and obligations of the parties concerned or at risk with respect to such
Letter of Credit or (b) any collateral security for any of such obligations,
each as the same may be modified and supplemented and in effect from time to
time.
"Leverage Ratio" means, as at any date, the ratio of (a) Consolidated
Funded Indebtedness as of such date to (b) Consolidated EBITDA for the period of
four fiscal quarters ending on or most recently ended prior to such date.
"LIBO Rate" means, for the Interest Period for any Eurocurrency
Borrowing denominated in any currency, the rate appearing on the Screen at
approximately 11:00 a.m., London time, on the Quotation Date prior to the
commencement of such Interest Period, as LIBOR for deposits denominated in such
currency with a maturity comparable to such Interest Period. In the event that
such rate is not available on the Screen at such time for any reason, then the
LIBO Rate for such Interest Period shall be the rate at which deposits in such
currency in the amount of $5,000,000 (or the Foreign Currency Equivalent) and
for a maturity comparable to such Interest Period are offered by the principal
London office of the Person serving as Administrative Agent in immediately
available funds to leading banks in the London interbank market at approximately
11:00 a.m., London time, on the Quotation Date prior to the commencement of such
Interest Period.
"LIBOR" means, for any currency, the rate at which deposits
denominated in such currency are offered to leading banks in the London
interbank market.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset and (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset.
"Loan Documents" means, collectively, this Agreement, the Letter of
Credit Documents and the Security Documents.
"Loans" means the loans made by the Lenders to the Borrowers pursuant
to this Agreement.
"Local Time" means (a) with respect to any Loan denominated in or any
payment to be made in Dollars, local time in New York, New York, (b) with
respect to any Loan denominated in or any payment to be made in any Foreign
Currency (other than euro), the local time in the Principal Financial Center for
the currency in which such Loan is denominated or such payment is to be made and
(c) with respect to any Loan denominated in or any payment to be made in euro,
the local time in London, England.
Credit Agreement
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"Margin Stock" means "margin stock" within the meaning of Regulations
T, U and X of the Board.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations or condition, financial or otherwise, of the
Company and its Subsidiaries taken as a whole, (b) the ability of any Obligor to
perform any of its obligations under this Agreement or any of the other Loan
Documents to which it is a party or (c) the rights of or benefits available to
the Lenders under this Agreement or any of the other Loan Documents.
"Material Indebtedness" means Indebtedness (other than the Loans and
Letters of Credit), or obligations in respect of one or more Hedging Agreements,
of any one or more of the Company and its Subsidiaries in an aggregate principal
amount exceeding $15,000,000. For purposes of determining Material Indebtedness,
the "principal amount" of the obligations of the Company or any Subsidiary in
respect of any Hedging Agreement at any time shall be the maximum aggregate
amount (giving effect to any netting agreements) that the Company or such
Subsidiary, as the case may be, would be required to pay if such Hedging
Agreement were terminated at such time.
"Money Market Rate" means such rate of interest per annum (if any) as
the Swingline Lender may quote from time to time on any single commercial
borrowing for a period of up to 90 days.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"National Currency" means the currency, other than the euro, of a
Participating Member State.
"Obligors" means the Borrowers and the Guarantors.
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made under any Loan Document or from the execution, delivery or
enforcement of, or otherwise with respect to, any Loan Document.
"Participating Member State" means any member state of the European
Community that adopts or has adopted the euro as its lawful currency in
accordance with the legislation of the European Union relating to the European
Monetary Union.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Permitted Encumbrances" means:
Credit Agreement
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(a) Liens imposed by law for taxes, assessments and governmental
charges or levies that are not yet due or are being contested in compliance
with Section 6.04;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's,
landlords' and other like Liens imposed by law, arising in the ordinary
course of business and securing obligations that are not overdue by more
than 45 days or are being contested in compliance with Section 6.04;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) Liens to secure the performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature, in each
case in the ordinary course of business;
(e) judgment liens in respect of judgments that do not constitute an
Event of Default under clause (k) of Article VIII;
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or interfere
with the ordinary conduct of business of the Company or any Subsidiary;
(g) any interest or title of a lessor under any lease entered into by
the Company or any Subsidiary in the ordinary course of its business and
covering only the assets so leased;
(h) licenses, sublicenses, leases and subleases granted to third
parties in the ordinary course that do not materially interfere with the
ordinary conduct of business by the Company or any Subsidiary;
(i) Liens arising from the filing of precautionary UCC financing
statements regarding operating leases;
(j) Liens arising out of the consignment or similar arrangement for
the sale of goods entered into in the ordinary course of business;
(k) set-off, charge-back and other statutory or common law rights of
depository and collection banks and other regulated financial institutions
with respect to money or instruments of the Company or its Subsidiaries on
deposit with or in the possession of such institutions; and
Credit Agreement
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(l) Liens arising under any indenture governing Indebtedness solely in
favor of the trustee named therein for its own benefit (and not for the
benefit of the holders of any such Indebtedness);
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed
by the full faith and credit of the United States of America) or any member
state of the European Union and rated at least investment grade, in each
case maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the
date of acquisition thereof and rated, at such date of acquisition, A-2 or
better by Standard & Poor's Ratings Services or P-2 or better by Xxxxx'x
Investors Service, Inc.;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, any domestic office of any commercial bank organized
under the laws of the United States of America or any State thereof which
has a combined capital and surplus and undivided profits of not less than
$250,000,000; and
(d) fully collateralized repurchase agreements with a term of not more
than 30 days for securities described in clause (a) of this definition and
entered into with a financial institution satisfying the criteria described
in clause (c) of this definition.
"Permitted Securitization" means any transaction or series of
transactions that may be entered into by the Company or any of its Subsidiaries
pursuant to which the Company or such Subsidiary, as the case may be, may sell,
convey or otherwise transfer to (a) a Receivables Subsidiary (in the case of a
transfer by the Company or any of its Subsidiaries) intended to be a true sale
transaction and (b) any other Person (in the case of a transfer by a Receivables
Subsidiary), and any Receivables Subsidiary may transfer, or grant a security
interest in, any receivables (whether now existing or arising in the future) of
the Company or any of its Subsidiaries and any assets related thereto, including
all collateral securing such receivables, all contracts and all guarantees or
other obligations in respect of such receivables and the proceeds of such
receivables; provided that (i) the aggregate outstanding principal amount of
Indebtedness of the Receivables Subsidiaries incurred in connection with such
transactions shall not exceed $25,000,000 at any time outstanding, (ii) there
shall be no recourse under such securitization to the Company or any of its
other Subsidiaries other than pursuant to Standard Securitization Undertakings
and (iii) the Administrative Agent shall be reasonably satisfied that the terms
of such securitization are in compliance with the terms of this Agreement.
Credit Agreement
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"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Company or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledge Agreement" means a Pledge Agreement substantially in the form
of Exhibit B between the Company and the Collateral Agent (or such other pledge
or similar agreement between the Company or a Domestic Subsidiary, as
applicable, and the Collateral Agent (or a sub-agent of the Collateral Agent)
providing for the pledge of certain Capital Stock of a Foreign Subsidiary and
entered into pursuant to Section 5.01(f) or Section 6.09(b), in form and
substance satisfactory to the Administrative Agent).
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by JPMCB as its prime rate in effect at its principal office
in New York City; each change in the Prime Rate shall be effective from and
including the date such change is publicly announced as being effective.
"Principal Financial Center" means, in the case of any Foreign
Currency, the principal financial center where such currency is cleared and
settled, as reasonably determined by the Administrative Agent and notified to
the Company prior to any relevant payment date.
"Priority Indebtedness" means, without duplication, (a) all
Indebtedness of the Subsidiaries secured by a Lien on property owned by the
Company or any of its Subsidiaries (other than any such Indebtedness permitted
under clauses (e), (f) and (h) of Section 7.01); (b) all Indebtedness of any
Subsidiary that is not an Obligor (other than Indebtedness permitted under
clause (g) of Section 7.01, unless the relevant standby letter of credit
supports Indebtedness); and (c) all rental payments or other scheduled amounts
required to be paid (valued at their present value, discounted at an applicable
market rate, as of the later of the date such transaction is entered into or the
end of the most recently completed fiscal year of the Company) by any Subsidiary
in connection with any sale-and-leaseback transaction or Synthetic Lease
referred to in Section 7.10.
"Purchase Price" means, with respect to any Acquisition, the aggregate
consideration, whether cash, property or securities (including, without
limitation, any Indebtedness incurred pursuant to Section 7.01), paid or
delivered by the Company and its Subsidiaries (but excluding any fees or
expenses payable) in connection with such Acquisition.
"Quarterly Dates" means the last Business Day of January, April, July
and October in each year, the first of which shall be the first such day after
the date hereof.
Credit Agreement
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"Quotation Date" means, for any Eurocurrency Interest Period, (a) for
Dollars or any Agreed Foreign Currency other than Pounds Sterling, the date two
Business Days prior to the commencement of such Eurocurrency Interest Period and
(b) for Pounds Sterling, the first day of such Eurocurrency Interest Period,
provided that if market practice differs in the relevant interbank market for
any currency, the "Quotation Date" for such currency shall be determined by the
Administrative Agent in accordance with market practice in the relevant
interbank market (and if quotations would normally be given by leading banks in
the relevant interbank market on more than one date, the "Quotation Date" shall
be the last of such days).
"Receivables Subsidiary" means a wholly owned Subsidiary of the
Company which engages in no activities other than in connection with the
financing of receivables and which is designated by the Board of Directors of
the Company as a Receivables Subsidiary, (a) no portion of the Indebtedness or
any other obligations (contingent or otherwise) of which (i) is guaranteed by
the Company or any other Subsidiary (excluding guarantees of obligations, other
than the principal of, and interest on, Indebtedness, under Standard
Securitization Undertakings), (ii) is recourse to or obligates the Company or
any other Subsidiary in any way other than pursuant to Standard Securitization
Undertakings or (iii) subjects any property or asset of the Company or any other
Subsidiary, directly or indirectly, contingently or otherwise, to the
satisfaction thereof, other than the receivables and related rights sold into
the applicable Permitted Securitization and other than pursuant to Standard
Securitization Undertakings and (b) to which neither the Company nor any other
Subsidiary has any obligation to maintain or preserve such entity's financial
condition or cause such entity to achieve certain levels of operating results.
Any such designation by the Board of Directors of the Company shall be evidenced
to the Administrative Agent by filing with the Administrative Agent a certified
copy of the resolution of such Board of Directors giving effect to such
designation and an officers' certificate of the Company certifying that such
designation complied with the foregoing conditions.
"Register" has the meaning set forth in Section 10.04.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Revolving Credit
Exposures and unused Commitments representing more than 50% of the sum of the
total Revolving Credit Exposures and unused Commitments at such time.
"Requirement of Law" means, as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
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"Restricted Payment" means any dividend or other distribution (whether
in cash, securities or other property) with respect to any shares of any class
of Capital Stock of the Company or any Subsidiary, or any payment (whether in
cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such shares of Capital Stock of the Company
or any Subsidiary or any option, warrant or other right to acquire any such
shares of Capital Stock of the Company or any Subsidiary.
"Revolving Credit Exposure" means, with respect to any Lender at any
time, the sum of the outstanding principal amount of such Lender's Syndicated
Loans and its LC Exposure and Swingline Exposure at such time.
"Screen" means, for any currency, the relevant display page for LIBOR
for such currency (as determined by the Administrative Agent) on the Telerate
Service; provided that, if the Administrative Agent determines that there is no
such relevant display page for LIBOR for such currency, "Screen" means the
relevant display page for LIBOR for such currency (as determined by the
Administrative Agent) on the Reuters Monitor Money Rates Service.
"Security Documents" means, collectively, the Pledge Agreements, the
Intercreditor and Collateral Agency Agreement, the Sharing Agreement, any other
pledge, security or similar agreement entered into pursuant hereto in favor of
the Collateral Agent, and all Uniform Commercial Code financing statements
and/or other filings, registrations or the like required by the terms of any
such agreement to be made with respect to the security interests in personal
property created pursuant thereto.
"Sharing Agreement" means the Sharing Agreement, dated as of June 23,
2003, among the Company, the Subsidiary Guarantors, the Lenders, the
Administrative Agent and certain holders of other Indebtedness of the Company
from time to time, a copy of which (as in effect on the date hereof) is attached
as Exhibit D.
"Standard Securitization Undertakings" means representations,
warranties, covenants and indemnities entered into by the Company or any
Subsidiary that are reasonably customary in the non-recourse securitization of
receivables transactions.
"Statutory Reserve Rate" means, for the Interest Period for any
Eurocurrency Borrowing, a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the
arithmetic mean, taken over each day in such Interest Period, of the aggregate
of the maximum reserve percentages (including any marginal, special, emergency
or supplemental reserves) expressed as a decimal established by the Board to
which the Person serving as Administrative Agent is subject for eurocurrency
funding (currently referred to as "Eurocurrency liabilities" in Regulation D of
the Board). Such reserve percentages shall include those imposed pursuant to
such Regulation D. Eurocurrency Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under such Regulation D or any comparable
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regulation. The Statutory Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.
"Subsidiary" means, with respect to any Person (the "parent") at any
date, (a) any corporation, limited liability company, partnership, association
or other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date and (b) any
other corporation, limited liability company, partnership, association or other
entity of which Capital Stock having ordinary voting power (other than Capital
Stock having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, limited liability company, association or other entity are, as of
such date, owned or Controlled, directly or indirectly through one or more
intermediaries, or both, by such Person. Unless otherwise specified,
"Subsidiary" means a Subsidiary of the Company.
"Subsidiary Borrower" means each of the Subsidiaries of the Company
identified under the caption "SUBSIDIARY BORROWERS" on the signature pages
hereto and each Subsidiary of the Company that becomes a "Subsidiary Borrower"
after the date hereof pursuant to Section 2.19, in each case so long as such
entity shall remain a Subsidiary Borrower hereunder.
"Subsidiary Borrower Designation Letter" means a Subsidiary Borrower
Designation Letter entered into by the Company and a wholly-owned Subsidiary of
the Company pursuant to Section 2.19(a), pursuant to which such Subsidiary shall
(subject to the terms and conditions of Section 2.19) be designated as a
Borrower, substantially in the form of Exhibit H or any other form approved by
the Administrative Agent.
"Subsidiary Borrower Termination Letter" has the meaning set forth in
Section 2.19(c).
"Subsidiary Guarantor" means each of the Subsidiaries of the Company
identified under the caption "SUBSIDIARY GUARANTORS" on the signature pages
hereto and each Subsidiary of the Company that becomes a "Subsidiary Guarantor"
after the date hereof pursuant to Section 6.09.
"Swingline Exposure" means, at any time, the aggregate principal
amount of all Swingline Loans outstanding at such time. The Swingline Exposure
of any Lender at any time shall be its Applicable Percentage of the total
Swingline Exposure at such time.
"Swingline Lender" means JPMCB, in its capacity as lender of Swingline
Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.04.
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"Syndicated", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans constituting such Borrowing, are made
pursuant to Section 2.01.
"Synthetic Lease" means a lease of property or assets by the Company
or any Subsidiary with any Person (other than the Company or any Subsidiary)
designed to permit the lessee (a) to claim depreciation and amortization on such
property or assets under U.S. tax law and (b) to treat such lease as an
operating lease or not to reflect the leased property or assets on the lessee's
balance sheet under GAAP.
"TARGET Day" means any day on which the Trans-European Automated
Real-time Gross Settlement Express Transfer payment system (or any successor
settlement system as determined by the Administrative Agent) is open for the
settlement of payments in euro.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Transactions" means the execution, delivery and performance by each
Obligor of this Agreement and the other Loan Documents to which such Obligor is
intended to be a party, the borrowing of Loans, the use of the proceeds thereof
and the issuance of Letters of Credit hereunder.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans constituting such
Borrowing, is determined by reference to the Adjusted LIBO Rate, the Alternate
Base Rate or (in the case of Swingline Loans only) a Money Market Rate.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g., a
"Syndicated Loan"), by Type (e.g., an "ABR Loan") or by Class and Type (e.g., a
"Syndicated ABR Loan"). Borrowings also may be classified and referred to by
Class (e.g., a "Syndicated Borrowing"), by Type (e.g., an "ABR Borrowing") or by
Class and Type (e.g., a "Syndicated ABR Borrowing"). Loans and Borrowings may
also be identified by currency.
SECTION 1.03. Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such
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agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP consistently applied, as in effect from time
to time; provided that, if the Company notifies the Administrative Agent that
the Company requests an amendment to any provision hereof to eliminate the
effect of any change occurring after the date hereof in GAAP or in the
application thereof on the operation of such provision (or if the Administrative
Agent notifies the Company that the Required Lenders request an amendment to any
provision hereof for such purpose), regardless of whether any such notice is
given before or after such change in GAAP or in the application thereof, then
such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such
notice shall have been withdrawn or such provision amended in accordance
herewith. To enable the ready and consistent determination of compliance with
the covenants set forth in Article VII, the Company will not change the last day
of its fiscal year from December 31, or the last days of the first three fiscal
quarters in each of its fiscal years from March 31, June 30 and September 30,
respectively.
SECTION 1.05. Currencies; Currency Equivalents; Provisions Relating to
European Monetary Union. (a) At any time, any reference in the definition of the
term "Agreed Foreign Currency" or in any other provision of this Agreement to
the currency of any particular nation means the lawful currency of such nation
at such time whether or not the name of such currency is the same as it was on
the date hereof. Except as provided in Section 2.10(b) and the last sentence of
Section 2.17(a), for purposes of determining (i) whether the amount of any
Borrowing, together with all other Borrowings then outstanding or to be borrowed
at the same time as such Borrowing, would exceed the aggregate amount of the
Commitments, (ii) the aggregate unutilized amount of the Commitments and (iii)
the aggregate outstanding principal amount of Borrowings, the outstanding
principal amount of any Borrowing that is denominated in any Foreign Currency
shall be deemed to be the Dollar Equivalent of the amount of the Foreign
Currency of such Borrowing determined as of the date of such Borrowing
(determined in accordance with the last sentence of the definition of the term
"Interest Period").
(b) Wherever in this Agreement in connection with a Borrowing or Loan
an amount, such as a required minimum or multiple amount, is expressed in
Dollars, but such Borrowing or Loan is denominated in a Foreign Currency, such
amount shall be the relevant
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Foreign Currency Equivalent of such Dollar amount (rounded to the nearest 1,000
units of such Foreign Currency), as determined by the Administrative Agent.
(c) Each obligation hereunder of any party hereto that is denominated
in the National Currency of a state that is not a Participating Member State on
the date hereof shall, effective from the date on which such state becomes a
Participating Member State, be redenominated in euro in accordance with the
legislation of the European Union applicable to the European Monetary Union;
provided that, if and to the extent that any such legislation provides that any
such obligation of any such party payable within such Participating Member State
by crediting an account of the creditor can be paid by the debtor either in
euros or such National Currency, such party shall be entitled to pay or repay
such amount either in euros or in such National Currency. If the basis of
accrual of interest or fees expressed in this Agreement with respect to an
Agreed Foreign Currency of any country that becomes a Participating Member State
after the date on which such currency becomes an Agreed Foreign Currency shall
be inconsistent with any convention or practice in the interbank market for the
basis of accrual of interest or fees in respect of the euro, such convention or
practice shall replace such expressed basis effective as of and from the date on
which such state becomes a Participating Member State; provided that, with
respect to any Borrowing denominated in such currency that is outstanding
immediately prior to such date, such replacement shall take effect at the end of
the Interest Period therefor. Without prejudice to the respective liabilities of
the Company to the Lenders and the Lenders to the Company under or pursuant to
this Agreement, each provision of this Agreement shall be subject to such
reasonable changes of construction as the Administrative Agent may from time to
time reasonably specify to be necessary or appropriate to reflect the
introduction or changeover to the euro in any country that becomes a
Participating Member State after the date hereof; provided that the
Administrative Agent shall provide the Company and the Lenders with prior notice
of the proposed change with an explanation of such change in sufficient time to
permit the Company and the Lenders an opportunity to respond to such proposed
change.
ARTICLE II
THE CREDITS
SECTION 2.01. The Commitments. Subject to the terms and conditions set
forth herein, each Lender agrees to make Syndicated Loans in Dollars or in any
Agreed Foreign Currency to the Company and/or any Subsidiary Borrower from time
to time during the Availability Period in an aggregate principal amount that
will not result in (a) such Lender's Revolving Credit Exposure exceeding such
Lender's Commitment, (b) the total Revolving Credit Exposures exceeding the
total Commitments or (c) the total Revolving Credit Exposures in respect of
extensions of credit hereunder to the Subsidiary Borrowers exceeding
$75,000,000. Within the foregoing limits and subject to the terms and conditions
set forth herein, the Borrowers may borrow, prepay and reborrow Syndicated
Loans.
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SECTION 2.02. Loans and Borrowings.
(a) Obligations of Lenders. Each Syndicated Loan shall be made to any
Borrower as part of a Borrowing by such Borrower consisting of Loans of the same
currency and Type made by the Lenders ratably in accordance with their
respective Commitments. The failure of any Lender to make any Loan required to
be made by it shall not relieve any other Lender of its obligations hereunder;
provided that the Commitments of the Lenders are several and no Lender shall be
responsible for any other Lender's failure to make Loans as required.
(b) Type of Loans. Subject to Section 2.13, each Syndicated Borrowing
shall be constituted entirely of ABR Loans or of Eurocurrency Loans denominated
in a single currency as the relevant Borrower may request in accordance
herewith. Each Swingline Loan shall be an ABR Loan or a Money Market Rate
Borrowing, as applicable. Each ABR Loan (whether a Syndicated Loan or a
Swingline Loan) shall be denominated in Dollars. Each Lender at its option may
make any Eurocurrency Loan by causing any domestic or foreign branch or
Affiliate of such Lender to make such Loan; provided that any exercise of such
option shall not affect the obligation of any Borrower to repay such Loan in
accordance with the terms of this Agreement.
(c) Minimum Amounts; Limitation on Number of Borrowings. Each
Eurocurrency Borrowing shall be in an aggregate amount of $2,000,000 or a larger
multiple of $500,000. Each Syndicated ABR Borrowing shall be in an aggregate
amount equal to $250,000 or a larger multiple of $100,000; provided that a
Syndicated ABR Borrowing may be in an aggregate amount that is equal to the
entire unused balance of the total Commitments or that is required to finance
the reimbursement of an LC Disbursement as contemplated by Section 2.05(f). Each
Swingline Loan shall be in an amount equal to $100,000 or a larger multiple
thereof. Borrowings of more than one Class, currency and Type may be outstanding
at the same time; provided that there shall not at any time be more than a total
of twenty Eurocurrency Borrowings outstanding.
(d) Limitations on Interest Periods. Notwithstanding any other
provision of this Agreement, the Borrowers shall not be entitled to request (or
to elect to convert to or continue as a Eurocurrency Borrowing) any Borrowing if
the Interest Period requested therefor would end after the Commitment
Termination Date.
SECTION 2.03. Requests for Syndicated Borrowings.
(a) Notice by the Borrowers. To request a Syndicated Borrowing, any
Borrower shall notify the Administrative Agent of such request by telephone (i)
in the case of a Eurocurrency Borrowing denominated in Dollars, not later than
12:00 noon, New York City time, three Business Days before the date of the
proposed Borrowing, (ii) in the case of a Eurocurrency Borrowing denominated in
a Foreign Currency, not later than 12:00 noon, London time, four Business Days
before the date of the proposed Borrowing or (iii) in the case of a Syndicated
ABR Borrowing, not later than 12:00 noon, New York City time, on the date of the
proposed Borrowing. Each such telephonic Borrowing Request shall be irrevocable
and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written
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Borrowing Request in a form approved by the Administrative Agent and signed by
the Company.
(b) Content of Borrowing Requests. Each telephonic and written
Borrowing Request shall specify the following information in compliance with
Section 2.02:
(i) the name of the relevant Borrower;
(ii) the aggregate amount and currency of the requested Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) in the case of a Syndicated Borrowing denominated in Dollars,
whether such Borrowing is to be an ABR Borrowing or a Eurocurrency
Borrowing;
(v) in the case of a Eurocurrency Borrowing, the Interest Period
therefor, which shall be a period contemplated by the definition of the
term "Interest Period" and permitted under Section 2.02(d); and
(vi) the location and number of such Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.06.
(c) Notice by the Administrative Agent to the Lenders. Promptly
following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing.
(d) Failure to Elect. If no election as to the currency of a
Syndicated Borrowing is specified, then the requested Syndicated Borrowing shall
be denominated in Dollars. If no election as to the Type of a Syndicated
Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing
unless an Agreed Foreign Currency has been specified, in which case the
requested Syndicated Borrowing shall be a Eurocurrency Borrowing denominated in
such Agreed Foreign Currency. If no Interest Period is specified with respect to
any requested Eurocurrency Borrowing, (i) if the currency specified for such
Borrowing is Dollars (or if no currency has been so specified), the requested
Borrowing shall be made instead as a Syndicated ABR Borrowing, and (ii) if the
currency specified for such Borrowing is an Agreed Foreign Currency, the
relevant Borrower shall be deemed to have selected an Interest Period of one
month's duration.
SECTION 2.04. Swingline Loans.
(a) Agreement to Make Swingline Loans. Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline Loans
to the Company from time to time during the Availability Period, in Dollars, in
an aggregate principal amount at any time outstanding that will not result in
(i) the aggregate principal amount of outstanding Swingline
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Loans exceeding $20,000,000 or (ii) the total Revolving Credit Exposures
exceeding the total Commitments; provided that the Swingline Lender shall not be
required to make a Swingline Loan to refinance an outstanding Swingline Loan.
Within the foregoing limits and subject to the terms and conditions set forth
herein, the Company may borrow, prepay and reborrow Swingline Loans. Each
Swingline Loan shall be an ABR Borrowing unless, prior to requesting a Swingline
Loan, the Company shall have requested a Money Market Rate Borrowing and the
Swingline Lender shall have quoted a Money Market Rate therefor which the
Company shall select in its notice delivered pursuant to paragraph (b) below,
provided that the Swingline Lender shall be required to provide interest rate
quotes for a Money Market Rate Borrowing only subject to the availability of
Money Market Rates by the Swingline Lender.
(b) Notice of Swingline Loans by the Company. To request a Swingline
Loan, the Company shall notify the Administrative Agent of such request by
telephone (confirmed by telecopy), not later than 12:00 noon, New York City
time, on the date of a proposed Swingline Loan. Each such notice shall be
irrevocable and shall specify the requested date (which shall be a Business Day)
and the amount and Type of the requested Swingline Loan. The Administrative
Agent will promptly advise the Swingline Lender of any such notice received from
the Company. The Swingline Lender shall make each Swingline Loan available to
the Company by means of a credit to the general deposit account of the Company
with the Swingline Lender (or, in the case of a Swingline Loan made to finance
the reimbursement by the Company of an LC Disbursement as provided in Section
2.05(f), by remittance to the Issuing Lender) by 3:00 p.m., New York City time,
on the requested date of such Swingline Loan.
(c) Participations by Lenders in Swingline Loans. The Swingline Lender
may by written notice given to the Administrative Agent not later than 10:00
a.m., New York City time, on any Business Day require the Lenders to acquire
participations on such Business Day in all or a portion of the Swingline Loans
outstanding. Such notice to the Administrative Agent shall specify the aggregate
amount of Swingline Loans in which Lenders will participate. Promptly upon
receipt of such notice, the Administrative Agent will give notice thereof to
each Lender, specifying in such notice such Lender's Applicable Percentage of
such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally
agrees, upon receipt of notice as provided above in this paragraph, to pay to
the Administrative Agent, for account of the Swingline Lender, such Lender's
Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges
and agrees that its obligation to acquire participations in Swingline Loans
pursuant to this paragraph is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including the occurrence and
continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever. Each Lender shall comply with its obligation under this
paragraph by wire transfer of immediately available funds, in the same manner as
provided in Section 2.06 with respect to Loans made by such Lender (and Section
2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders),
and the Administrative Agent shall promptly pay to the Swingline Lender the
amounts so received by it from the Lenders. The Administrative Agent shall
notify the Company of any participations in any Swingline Loan acquired pursuant
to this paragraph, and thereafter payments in respect of such Swingline Loan
shall be made to the Administrative Agent and not to the Swingline Lender.
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Any amounts received by the Swingline Lender from the Company (or other party on
behalf of the Company) in respect of a Swingline Loan after receipt by the
Swingline Lender of the proceeds of a sale of participations therein shall be
promptly remitted to the Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative Agent to
the Lenders that shall have made their payments pursuant to this paragraph and
to the Swingline Lender, as their interests may appear. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve
the Company of any default in the payment thereof.
SECTION 2.05. Letters of Credit.
(a) General. Subject to the terms and conditions set forth herein, in
addition to the Loans provided for in Section 2.01, any Borrower may request the
Issuing Lender to issue, at any time and from time to time during the
Availability Period, Letters of Credit denominated in Dollars or in any Agreed
Foreign Currency for its own account in such form as is acceptable to the
Issuing Lender in its reasonable determination. Letters of Credit issued
hereunder shall constitute utilization of the Commitments.
(b) Notice of Issuance, Amendment, Renewal or Extension. To request
the issuance of a Letter of Credit (or the amendment, renewal or extension of an
outstanding Letter of Credit), any Borrower shall hand deliver or telecopy (or
transmit by electronic communication, if arrangements for doing so have been
approved by the Issuing Lender) to the Issuing Lender and the Administrative
Agent (reasonably in advance of the requested date of issuance, amendment,
renewal or extension) a notice requesting the issuance of a Letter of Credit, or
identifying the Letter of Credit to be amended, renewed or extended, and
specifying the date of issuance, amendment, renewal or extension (which shall be
a Business Day), the date on which such Letter of Credit is to expire (which
shall comply with paragraph (d) of this Section), the amount and currency of
such Letter of Credit, the name and address of the beneficiary thereof and such
other information as shall be necessary to prepare, amend, renew or extend such
Letter of Credit. If requested by the Issuing Lender, the relevant Borrower also
shall submit a letter of credit application on the Issuing Lender's standard
form in connection with any request for a Letter of Credit. In the event of any
inconsistency between the terms and conditions of this Agreement and the terms
and conditions of any form of letter of credit application or other agreement
submitted by the relevant Borrower to, or entered into by such Borrower and/or
the Company with, the Issuing Lender relating to any Letter of Credit, the terms
and conditions of this Agreement shall control.
(c) Limitations on Amounts. A Letter of Credit shall be issued,
amended, renewed or extended only if (and upon issuance, amendment, renewal or
extension of each Letter of Credit the Company shall be deemed to represent and
warrant that), after giving effect to such issuance, amendment, renewal or
extension (i) the aggregate LC Exposure of the Issuing Lender (determined for
these purposes without giving effect to the participations therein of the
Lenders pursuant to paragraph (e) of this Section) shall not exceed
$100,000,000, (ii) the aggregate Revolving Credit Exposures shall not exceed the
total Commitments and (iii) the aggregate
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Revolving Credit Exposures in respect of extensions of credit hereunder to the
Subsidiary Borrowers shall not exceed $75,000,000.
(d) Expiration Date. Each Letter of Credit shall expire at or prior to
the close of business on the earlier of (i) the date two years after the date of
the issuance of such Letter of Credit (or, in the case of any renewal or
extension of a Letter of Credit which had an original expiration date twelve
months after the date of the issuance thereof and which has been renewed or
extended for one or more for additional twelve-month periods, the date twelve
months after the then-current expiration date of such Letter of Credit, so long
as such renewal or extension occurs within three months of such then-current
expiration date) and (ii) the date that is five Business Days prior to the
Commitment Termination Date.
(e) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) by the Issuing
Lender, and without any further action on the part of the Issuing Lender or the
Lenders, the Issuing Lender hereby grants to each Lender, and each Lender hereby
acquires from the Issuing Lender, a participation in such Letter of Credit equal
to such Lender's Applicable Percentage of the aggregate amount available to be
drawn under such Letter of Credit. Each Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments.
In consideration and in furtherance of the foregoing, each Lender
hereby absolutely and unconditionally agrees to pay to the Administrative Agent,
for account of the Issuing Lender, such Lender's Applicable Percentage of each
LC Disbursement made by the Issuing Lender promptly upon the request of the
Issuing Lender at any time from the time of such LC Disbursement until such LC
Disbursement is reimbursed by the relevant Borrower or at any time after any
reimbursement payment is required to be refunded to the relevant Borrower for
any reason. Such payment shall be made without any offset, abatement,
withholding or reduction whatsoever. Each such payment shall be made in the same
manner as provided in Section 2.06 with respect to Loans made by such Lender
(and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of
the Lenders), and the Administrative Agent shall promptly pay to the Issuing
Lender the amounts so received by it from the Lenders. Promptly following
receipt by the Administrative Agent of any payment from the relevant Borrower
pursuant to the next following paragraph, the Administrative Agent shall
distribute such payment to the Issuing Lender or, to the extent that the Lenders
have made payments pursuant to this paragraph to reimburse the Issuing Lender,
then to such Lenders and the Issuing Lender as their interests may appear. Any
payment made by a Lender pursuant to this paragraph to reimburse the Issuing
Lender for any LC Disbursement shall not constitute a Loan and shall not relieve
any Borrower of its obligation to reimburse such LC Disbursement.
(f) Reimbursement. If the Issuing Lender shall make any LC
Disbursement in respect of a Letter of Credit denominated in Dollars issued by
it for account of the Company or any Borrower that is a Domestic Subsidiary, the
relevant Borrower shall reimburse the Issuing
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Lender in respect of such LC Disbursement by paying to the Administrative Agent
an amount equal to such LC Disbursement not later than 12:00 noon, New York City
time, on (i) the Business Day that the relevant Borrower receives notice that
such LC Disbursement has been made, if such notice is received prior to 10:00
a.m., New York City time, or (ii) the Business Day immediately following the day
that the relevant Borrower receives such notice, if such notice is not received
prior to such time; provided that, if such LC Disbursement is made in respect of
such a Letter of Credit, then the Company or the relevant Borrower, as the case
may be, may, subject to the conditions to borrowing set forth herein, request in
accordance with Section 2.03 or 2.05 that such payment be financed with all or
any portion of a Syndicated ABR Borrowing or a Swingline Loan, as applicable, in
an amount permitted under Section 2.02(c) and, to the extent so financed, such
Borrower's obligation to make such payment in respect of such reimbursement
obligation shall be discharged and replaced by the resulting Syndicated ABR
Borrowing or Swingline Loan (or the applicable portion thereof).
If the Issuing Lender shall make any LC Disbursement in respect of a
Letter of Credit issued by it for account of any Borrower denominated in an
Agreed Foreign Currency, the Company or the relevant Borrower, as the case may
be, shall reimburse the Issuing Lender in respect of such LC Disbursement by
paying to the Issuing Lender in the Currency in which such Letter of Credit is
denominated an amount equal to such LC Disbursement not later than 12:00 noon,
Local Time of the Issuing Lender, on the Business Day immediately following the
day that the relevant Borrower receives notice of such LC Disbursement, if such
notice is received prior to 5:00 p.m., Local Time of the Issuing Lender or (ii)
the Business Day two Business Dates after the day that the relevant Borrower and
the Company receive such notice, if such notice is not received prior to such
time. The Issuing Lender shall promptly notify the Administrative Agent of the
amount and date of each such reimbursement.
If the relevant Borrower fails to make such payment when due, the
Administrative Agent shall notify each Lender of the applicable LC Disbursement,
the payment then due from such Borrower in respect thereof and such Lender's
Applicable Percentage thereof.
Without limiting any other obligations of any Borrower hereunder, the
relevant Borrower hereby agrees to indemnify the Issuing Lender of each Letter
of Credit denominated in a Foreign Currency and issued for the account of such
Borrower for any and all costs, expenses and losses incurred by it as a result
of receiving payment or reimbursement for any LC Disbursement thereunder from
any Person in a currency other than the currency in which such Letter of Credit
was originally denominated. Any such amount payable to any Issuing Lender shall
be payable within 10 days after demand by such Issuing Lender.
(g) Obligations Absolute. Each Borrower's obligation to reimburse LC
Disbursements as provided in paragraph (f) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit, or any term or provision therein, (ii) any draft or other document
presented under a Letter of Credit proving to be forged, fraudulent or invalid
in any respect or any statement therein being untrue or inaccurate in any
respect, (iii) payment by the
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Issuing Lender under a Letter of Credit against presentation of a draft or other
document that does not comply strictly with the terms of such Letter of Credit,
and (iv) any other event or circumstance whatsoever, whether or not similar to
any of the foregoing, that might, but for the provisions of this Section,
constitute a legal or equitable discharge of such Borrower's obligations
hereunder.
Neither the Administrative Agent, the Lenders nor the Issuing Lender,
nor any of their Related Parties, shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of Credit
by the Issuing Lender or any payment or failure to make any payment thereunder
(irrespective of any of the circumstances referred to in the preceding
sentence), or any error, omission, interruption, loss or delay in transmission
or delivery of any draft, notice or other communication under or relating to any
Letter of Credit (including any document required to make a drawing thereunder),
any error in interpretation of technical terms or any consequence arising from
causes beyond the control of the Issuing Lender; provided that the foregoing
shall not be construed to excuse the Issuing Lender from liability to the
relevant Borrower to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived by such
Borrower to the extent permitted by applicable law) suffered by such Borrower
that are caused by the Issuing Lender's gross negligence or willful misconduct
when determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that:
(i) the Issuing Lender may accept documents that appear on their face
to be in substantial compliance with the terms of a Letter of Credit
without responsibility for further investigation, regardless of any notice
or information to the contrary, and may make payment upon presentation of
documents that appear on their face to be in substantial compliance with
the terms of such Letter of Credit;
(ii) the Issuing Lender shall have the right, in its sole discretion,
to decline to accept such documents and to make such payment if such
documents are not in strict compliance with the terms of such Letter of
Credit; and
(iii) this sentence shall establish the standard of care to be
exercised by the Issuing Lender when determining whether drafts and other
documents presented under a Letter of Credit comply with the terms thereof
(and the parties hereto hereby waive, to the extent permitted by applicable
law, any standard of care inconsistent with the foregoing).
(h) Disbursement Procedures. The Issuing Lender shall, within a
reasonable time following its receipt thereof, examine all documents purporting
to represent a demand for payment under a Letter of Credit. The Issuing Lender
shall promptly after such examination notify the Administrative Agent and the
Company by telephone (confirmed by telecopy) of such demand for payment and
whether the Issuing Lender has made or will make an LC Disbursement thereunder;
provided that any failure to give or delay in giving such notice shall not
relieve any
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Borrower of its obligation to reimburse the Issuing Lender and the Lenders with
respect to any such LC Disbursement.
(i) Interim Interest. If the Issuing Lender shall make any LC
Disbursement, then, unless the Company or the relevant Borrower shall reimburse
such LC Disbursement in full on the date such LC Disbursement is made, the
unpaid amount thereof shall bear interest, for each day from and including the
date such LC Disbursement is made to but excluding the date that the Company or
the relevant Borrower reimburses such LC Disbursement, at the rate per annum
then applicable to Syndicated ABR Loans (if such amount is denominated in
Dollars) or at the overnight London interbank offered rate for the relevant
Agreed Foreign Currency determined by the Administrative Agent in good faith (if
such amount is denominated in such currency); provided that, if the Company
fails to reimburse such LC Disbursement when due pursuant to paragraph (f) of
this Section, then Section 2.12(c) shall apply. Interest accrued pursuant to
this paragraph shall be for account of the Issuing Lender, except that interest
accrued on and after the date of payment by any Lender pursuant to paragraph (e)
of this Section to reimburse the Issuing Lender shall be for account of such
Lender to the extent of such payment.
(j) Replacement of the Issuing Lender. The Issuing Lender may be
replaced at any time by written agreement between the Company, the
Administrative Agent, the replaced Issuing Lender and the successor Issuing
Lender. The Administrative Agent shall notify the Lenders of any such
replacement of the Issuing Lender. At the time any such replacement shall become
effective, the Company shall pay all unpaid fees accrued for account of the
replaced Issuing Lender pursuant to Section 2.11(b). From and after the
effective date of any such replacement, (i) the successor Issuing Lender shall
have all the rights and obligations of the replaced Issuing Lender under this
Agreement with respect to Letters of Credit to be issued thereafter and (ii)
references herein to the term "Issuing Lender" shall be deemed to refer to such
successor or to any previous Issuing Lender, or to such successor and all
previous Issuing Lenders, as the context shall require. After the replacement of
an Issuing Lender hereunder, the replaced Issuing Lender shall remain a party
hereto and shall continue to have all the rights and obligations of an Issuing
Lender under this Agreement with respect to Letters of Credit issued by it prior
to such replacement, but shall not be required to issue additional Letters of
Credit.
(k) Cash Collateralization. If either (i) an Event of Default shall
occur and be continuing and the Company receives notice from the Administrative
Agent or the Required Lenders (or, if the maturity of the Loans has been
accelerated, Lenders with LC Exposure representing more than 50% of the total LC
Exposure) demanding the deposit of cash collateral pursuant to this paragraph,
or (ii) the Company shall, or shall cause the Subsidiary Borrowers to, provide
cover for LC Exposure pursuant to Section 2.10, the Company shall immediately
deposit into an account established and maintained on the books and records of
the Administrative Agent, which account may be a "securities account" (within
the meaning of Section 8-501 of the Uniform Commercial Code as in effect in the
State of New York), in the name of the Administrative Agent and for the benefit
of the Lenders, an amount in cash equal to, in the case of an Event of Default,
the LC Exposure as of such date plus any accrued and unpaid interest thereon
and, in the case of cover pursuant to Section 2.10, the amount required under
Section 2.10; provided that the obligation to deposit such cash collateral shall
become effective
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immediately, and such deposit shall become immediately due and payable, without
demand or other notice of any kind, upon the occurrence of any Event of Default
with respect to any Obligor described in clause (h) or (i) of Article VIII. Such
deposit shall be held by the Collateral Agent as collateral for the LC Exposure
under this Agreement and thereafter for the payment of the "Secured Obligations"
under and as defined in the Pledge Agreements, and for these purposes the
Borrowers hereby grants a security interest to the Collateral Agent for the
benefit of the Lenders in such collateral account and in any financial assets
(as defined in the Uniform Commercial Code) or other property held therein.
(l) Letters of Credit under Existing Credit Agreement. To the extent
that, pursuant to Section 2.05 of the Existing Credit Agreement, JPMCB (formerly
known as JPMorgan Chase Bank), as the "Issuing Bank" thereunder, has issued
"Letters of Credit" thereunder and as defined therein, on the Effective Date,
subject to the satisfaction of the conditions to effectiveness of the
obligations of the Lenders hereunder set forth in Article V, each of such
"Letters of Credit" thereunder listed in Schedule 2.05(l) shall automatically,
and without any action on the part of any Person, become Letters of Credit
hereunder.
SECTION 2.06. Funding of Borrowings.
(a) Funding by Lenders. Each Lender shall make each Loan to be made by
it hereunder on the proposed date thereof by wire transfer of immediately
available funds by 3:00 p.m., Local Time, to the account of the Administrative
Agent most recently designated by it for such purpose by notice to the Lenders;
provided that Swingline Loans shall be made as provided in Section 2.04. The
Administrative Agent will make such Loans available to the relevant Borrower by
promptly crediting the amounts so received, in like funds, to an account of such
Borrower designated in the applicable Borrowing Request; provided that
Syndicated ABR Borrowings made to finance the reimbursement of an LC
Disbursement as provided in Section 2.05(f) shall be remitted by the
Administrative Agent to the Issuing Lender.
(b) Presumption by the Administrative Agent. Unless the Administrative
Agent shall have received notice from a Lender prior to 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 on such date in accordance with paragraph (a) of this
Section and may, in reliance upon such assumption, make available to the
relevant Borrower a corresponding amount. In such event, if a Lender has not in
fact made its share of the applicable Borrowing available to the Administrative
Agent, then the applicable Lender and the Company severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest
thereon, for each day from and including the date such amount is made available
to the relevant Borrower to but excluding the date of payment to the
Administrative Agent, at (i) in the case of such Lender, the Federal Funds
Effective Rate or (ii) in the case of the Company, the interest rate applicable
to ABR Loans. If such Lender pays such amount to the Administrative Agent, then
such amount shall constitute such Lender's Loan included in such Borrowing.
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SECTION 2.07. Interest Elections.
(a) Elections by the Borrowers for Syndicated Borrowings. The Loans
constituting each Syndicated Borrowing initially shall be of the Type specified
in the applicable Borrowing Request and, in the case of a Eurocurrency
Borrowing, shall have the Interest Period specified in such Borrowing Request.
Thereafter, the relevant Borrower may elect to convert such Borrowing to a
Borrowing of a different Type or to continue such Borrowing as a Borrowing of
the same Type and, in the case of a Eurocurrency Borrowing, may elect the
Interest Period therefor, all as provided in this Section; provided that (i) a
Syndicated Borrowing denominated in one currency may not be continued as, or
converted to, a Syndicated Borrowing in a different currency, (ii) no
Eurocurrency Borrowing denominated in a Foreign Currency may be continued if,
after giving effect thereto, the aggregate Revolving Credit Exposures would
exceed the aggregate Commitments, and (iii) a Eurocurrency Borrowing denominated
in a Foreign Currency may not be converted to a Borrowing of a different Type.
The relevant Borrower may elect different options with respect to different
portions of the affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding the Loans constituting such
Borrowing, and the Loans constituting each such portion shall be considered a
separate Borrowing. This Section shall not apply to Swingline Borrowings, which
may not be converted or continued.
(b) Notice of Elections. To make an election pursuant to this Section,
the relevant Borrower shall notify the Administrative Agent of such election by
telephone by the time that a Borrowing Request would be required under Section
2.03 if such Borrower were requesting a Syndicated Borrowing of the Type
resulting from such election to be made on the effective date of such election.
Each such telephonic Interest Election Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent of a
written Interest Election Request in a format approved by the Administrative
Agent and signed by the Company.
(c) Content of Interest Election Requests. Each telephonic and written
Interest Election Request shall specify the following information in compliance
with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies and,
if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing
(in which case the information to be specified pursuant to clauses (iii)
and (iv) of this paragraph shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii) whether, in the case of a Borrowing denominated in Dollars, the
resulting Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing;
and
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(iv) if the resulting Borrowing is a Eurocurrency Borrowing, the
Interest Period therefor after giving effect to such election, which shall
be a period contemplated by the definition of the term "Interest Period"
and permitted under Section 2.02(d).
(d) Notice by the Administrative Agent to the Lenders. Promptly
following receipt of an Interest Election Request, the Administrative Agent
shall advise each Lender of the details thereof and of such Lender's portion of
each resulting Borrowing.
(e) Failure to Elect; Events of Default. If any Borrower fails to
deliver a timely and complete Interest Election Request with respect to a
Eurocurrency Borrowing prior to the end of the Interest Period therefor, then,
unless such Borrowing is repaid as provided herein, (i) if such Borrowing is
denominated in Dollars, at the end of such Interest Period such Borrowing shall
be converted to a Syndicated ABR Borrowing, and (ii) if such Borrowing is
denominated in a Foreign Currency, such Borrower shall be deemed to have
selected an Interest Period of one month's duration. Notwithstanding any
contrary provision hereof, if an Event of Default has occurred and is continuing
and the Administrative Agent, at the request of the Required Lenders, so
notifies the Company, then, so long as an Event of Default is continuing (A) no
outstanding Syndicated Borrowing denominated in Dollars may be converted to or
continued as a Eurocurrency Borrowing, (B) unless repaid, each Eurocurrency
Borrowing denominated in Dollars shall be converted to a Syndicated ABR
Borrowing at the end of the Interest Period therefor and (C) no outstanding
Eurocurrency Borrowing denominated in a Foreign Currency may have an Interest
Period of more than one month's duration.
SECTION 2.08. Termination, Reduction and Increase of the Commitments.
(a) Scheduled Termination. Unless previously terminated, the
Commitments shall terminate on the Commitment Termination Date.
(b) Voluntary Termination or Reduction. The Company may at any time
terminate, or from time to time reduce, the Commitments; provided that (i) each
reduction of the Commitments shall be in an amount that is $2,000,000 or a
larger multiple of $1,000,000 and (ii) the Company shall not terminate or reduce
the Commitments if, after giving effect to any concurrent prepayment of the
Syndicated Loans in accordance with Section 2.10, the total Revolving Credit
Exposures would exceed the total Commitments.
(c) Notice of Voluntary Termination or Reduction. The Company shall
notify the Administrative Agent of any election to terminate or reduce the
Commitments under paragraph (b) of this Section at least three Business Days
prior to the effective date of such termination or reduction, specifying such
election and the effective date thereof. Promptly following receipt of any
notice, the Administrative Agent shall advise the Lenders of the contents
thereof. Each notice delivered by the Company pursuant to this Section shall be
irrevocable; provided that a notice of termination of the Commitments delivered
by the Company may state that such notice is conditioned upon the effectiveness
of other credit facilities, in which case such notice may be revoked by the
Company (by notice to the Administrative Agent on or prior to the specified
effective date) if such condition is not satisfied.
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(d) Effect of Termination or Reduction. Any termination or reduction
of the Commitments shall be permanent. Each reduction of the Commitments shall
be made ratably among the Lenders in accordance with their respective
Commitments.
(e) Increase of the Commitments.
(i) Requests for Increase. The Company may, at any time, propose that
the total Commitments hereunder be increased (each such proposed increase being
a "Commitment Increase") by notice to the Administrative Agent, specifying each
existing Lender (each an "Increasing Lender") and/or each additional lender
(each an "Assuming Lender") that shall have agreed to an additional Commitment
and the date on which such increase is to be effective (the "Commitment Increase
Date"), which shall be a Business Day at least three Business Days after
delivery of such notice and 30 days prior to the Commitment Termination Date;
provided that no Lender shall have any obligation hereunder to become an
Increasing Lender and any election to do so shall be in the sole discretion of
each Lender; provided further that:
(A) that the minimum amount of the Commitment of any Assuming
Lender, and the minimum amount of the increase of the Commitment of
any Increasing Lender, as part of such Commitment Increase shall be
$5,000,000 or a larger multiple of $1,000,000;
(B) immediately after giving effect to such Commitment Increase,
the total Commitments hereunder shall not exceed $400,000,000;
(C) no Default shall have occurred and be continuing on such
Commitment Increase Date or shall result from the proposed Commitment
Increase; and
(D) the representations and warranties contained in this
Agreement shall be true and correct on and as of the Commitment
Increase Date as if made on and as of such date (or, if any such
representation or warranty is expressly stated to have been made as of
a specific date, as of such specific date).
(ii) Effectiveness of Commitment Increase. The Assuming Lender, if
any, shall become a Lender hereunder as of such Commitment Increase Date and the
Commitment of any Increasing Lender and such Assuming Lender shall be increased
as of such Commitment Increase Date; provided that:
(x) the Administrative Agent shall have received on or prior to
9:00 a.m., New York City time, on such Commitment Increase Date a
certificate of a duly authorized officer of the Company stating that
each of the applicable conditions to such Commitment Increase set
forth in this paragraph (e) has been satisfied;
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(y) with respect to each Assuming Lender, the Administrative
Agent shall have received, on or prior to 9:00 a.m., New York City
time, on such Commitment Increase Date, an agreement, in form and
substance satisfactory to the Company and the Administrative Agent,
pursuant to which such Assuming Lender shall, effective as of such
Commitment Increase Date, undertake a Commitment, duly executed by
such Assuming Lender and the Company and acknowledged by the
Administrative Agent; and
(z) each Increasing Lender shall have delivered to the
Administrative Agent, on or prior to 9:00 a.m., New York City time, on
such Commitment Increase Date, confirmation in writing satisfactory to
the Administrative Agent as to its increased Commitment, with a copy
of such confirmation to the Company.
(iii) Recordation into Register. Upon its receipt of confirmation from
a Lender that it is increasing its Commitment hereunder, together with the
certificate referred to in clause (ii)(x) above, the Administrative Agent shall
(A) record the information contained therein in the Register and (B) give prompt
notice thereof to the Company. Upon its receipt of an agreement referred to in
clause (ii)(y) above executed by an Assuming Lender, together with the
certificate referred to in clause (ii)(x) above, the Administrative Agent shall,
if such agreement has been completed, accept such agreement, record the
information contained therein in the Register and give prompt notice thereof to
the Company.
(iv) Adjustments of Borrowings upon Effectiveness of Increase. In the
event that the Administrative Agent shall have received notice from the Company
as to any agreement with respect to a Commitment Increase on or prior to the
relevant Commitment Increase Date and the actions provided for in clauses
(ii)(x) through (ii)(z) above shall have occurred by 9:00 a.m., New York City
time, on such Commitment Increase Date, the Administrative Agent shall notify
the Lenders (including any Assuming Lenders) of the occurrence of such
Commitment Increase Date promptly on such date by facsimile transmission or
electronic messaging system. On the date of such Commitment Increase, the
Borrowers shall simultaneously (A) prepay the then outstanding Syndicated Loans
(if any) in full held by the Lenders immediately prior to giving effect to such
Commitment Increase, (B) if any Borrower shall so request in accordance with the
terms hereof, borrow new Syndicated Loans from all Lenders (including any
Assuming Lenders) in an aggregate amount at least equal to such prepayment, so
that, after giving effect thereto, the Syndicated Loans are held ratably by the
Lenders in accordance with their respective Commitments (after giving effect to
such Commitment Increase) and (C) pay to the Lenders the amounts, if any,
payable under Section 2.15. To the extent that on the date of such Commitment
Increase any participations in Swingline Loans are outstanding under Section
2.04(c) or any Letters of Credit are outstanding under Section 2.05, the
participations of the Lenders in such Swingline Loans and/or Letters of Credit
shall be deemed re-allocated among the Lenders in accordance with their
respective Commitments (after giving effect to such Commitment Increase).
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SECTION 2.09. Repayment of Loans; Evidence of Debt.
(a) Repayment. Each Borrower hereby unconditionally promises to pay
the Loans made to such Borrower as follows:
(i) to the Administrative Agent for account of the Lenders the
outstanding principal amount of the Syndicated Loans made to such Borrower
on the Commitment Termination Date, and
(ii) (in the case of the Company) to the Swingline Lender the then
unpaid principal amount of each Swingline Loan on the earlier of the
Commitment Termination Date and the first date after such Swingline Loan is
made that is the 15th or last day of a calendar month and is at least two
Business Days after such Swingline Loan is made.
(b) Maintenance of Records by Lenders. Each Lender shall maintain in
accordance with its usual practice records evidencing the indebtedness of the
Borrowers to such Lender resulting from each Loan made by such Lender, including
the amounts and currency of principal and interest payable and paid to such
Lender from time to time hereunder.
(c) Maintenance of Records by the Administrative Agent. The
Administrative Agent shall maintain records in which it shall record (i) the
amount and currency of each Loan made hereunder, the Class and Type thereof and
each Interest Period therefor, (ii) the amount and currency of any principal or
interest due and payable or to become due and payable from each Borrower to each
Lender hereunder and (iii) the amount and currency of any sum received by the
Administrative Agent hereunder for account of the Lenders and each Lender's
share thereof.
(d) Effect of Entries. The entries made in the records maintained
pursuant to paragraph (b) or (c) of this Section shall be prima facie evidence
of the existence and amounts of the obligations recorded therein; provided that
the failure of any Lender or the Administrative Agent to maintain such records
or any error therein shall not in any manner affect the obligation of any
Borrower to repay the Loans in accordance with the terms of this Agreement.
(e) Promissory Notes. Any Lender may request that Loans made by it to
any Borrower be evidenced by a promissory note. In such event, such Borrower
shall prepare, execute and deliver to such Lender a promissory note payable to
such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent. Thereafter, the
Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 10.04) be represented by one or
more promissory notes in such form payable to the payee named therein (or, if
such promissory note is a registered note, to such payee and its registered
assigns).
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SECTION 2.10. Prepayment of Loans.
(a) Optional Prepayments. Each Borrower shall have the right at any
time and from time to time to prepay any Borrowing by such Borrower in whole or
in part, subject to the requirements of this Section.
(b) Mandatory Prepayments in respect of Currency Fluctuation.
(i) Determination of Amount Outstanding. On each Currency Valuation
Date, the Administrative Agent shall determine the aggregate Revolving
Credit Exposure (including the Dollar Equivalent of any portion thereof
that is denominated in Foreign Currencies). For the purpose of this
determination, the outstanding principal amount of any Loan that is
denominated in any Foreign Currency shall be deemed to be the Dollar
Equivalent of the amount in the Foreign Currency of such Loan, determined
as of the relevant Currency Valuation Date. Upon making such determination,
the Administrative Agent shall promptly notify the Lenders and the Company
thereof.
(ii) Prepayment. If on the date of such determination the aggregate
Revolving Credit Exposure exceeds 105% of the aggregate amount of the
Commitments as then in effect, the Company shall, and shall cause the
Subsidiary Borrowers to, if requested by the Required Lenders (through the
Administrative Agent), prepay the Syndicated Loans and Swingline Loans
(and/or provide cover for LC Exposure as specified in Section 2.05(k)) in
such amounts as shall be necessary so that after giving effect thereto the
aggregate Revolving Credit Exposure does not exceed the Commitments.
Any prepayment pursuant to this paragraph shall be applied, first, to Swingline
Loans outstanding, second, to Syndicated Loans outstanding and third, as cover
for LC Exposure.
(c) Notices, Etc. The Company shall notify the Administrative Agent
(and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurocurrency Borrowing in Dollars, not later than 12:00 noon,
New York City time, two Business Days before the date of prepayment, (ii) in the
case of prepayment of a Eurocurrency Borrowing in a Foreign Currency, not later
than 12:00 noon, London time, three Business Days before the date of prepayment,
(iii) in the case of prepayment of a Syndicated ABR Borrowing, not later than
12:00 noon, New York City time, on the date of prepayment or (iv) in the case of
prepayment of a Swingline Loan, not later than 12:00 noon, New York City time,
on the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date, the principal amount of each Borrowing or portion
thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably
detailed calculation of the amount of such prepayment; provided that, if a
notice of prepayment is given in connection with a conditional notice of
termination of the Commitments as contemplated by Section 2.08, then such notice
of prepayment may be revoked if such notice of termination is revoked in
accordance with Section 2.08. Promptly following receipt of any such notice
relating to a Syndicated Borrowing, the Administrative Agent shall advise the
Lenders of the contents thereof. Each partial prepayment of any Borrowing shall
be in an
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amount that would be permitted in the case of a Borrowing of the same Type as
provided in Section 2.02, except as necessary to apply fully the required amount
of a mandatory prepayment. Each prepayment of a Syndicated Borrowing shall be
applied ratably to the Loans included in the prepaid Borrowing. Prepayments
shall be accompanied by accrued interest to the extent required by Section 2.12.
If the relevant Borrower fails to make a timely selection of the Borrowing or
Borrowings to be prepaid, such prepayment shall be applied, first, to pay any
outstanding ABR Borrowings of such Borrower and, second, to other Borrowings of
such Borrower in the order of the remaining duration of their respective
Interest Periods (the Borrowing with the shortest remaining Interest Period to
be repaid first).
SECTION 2.11. Fees.
(a) Facility Fee. The Company agrees to pay to the Administrative
Agent for account of each Lender a facility fee, which shall accrue at the
Applicable Rate on the daily amount of the Commitment of such Lender (whether
used or unused) during the period from and including the Effective Date to but
excluding the earlier of the date such Commitment terminates and the Commitment
Termination Date. Accrued facility fees shall be payable on each Quarterly Date
and on the earlier of the date the Commitments terminate and the Commitment
Termination Date, commencing on the first such date to occur after the date
hereof. All facility fees shall be computed on the basis of a year of 360 days
and shall be payable for the actual number of days elapsed (including the first
day but excluding the last day).
(b) Letter of Credit Fees. Each Borrower that is an account party in
respect of any Letter of Credit agrees to pay (i) to the Administrative Agent
for account of each Lender a participation fee with respect to such Lender's
participations in each such Letter of Credit, which shall accrue at a rate per
annum equal to the Applicable Rate applicable to interest on Eurocurrency Loans
on the average daily amount of such Lender's LC Exposure (excluding any portion
thereof attributable to unreimbursed LC Disbursements) during the period from
and including the Effective Date to but excluding the later of the date on which
such Lender's Commitment terminates and the date on which such Lender ceases to
have any LC Exposure, and (ii) to the Issuing Lender a fronting fee, which shall
accrue at the rate of 0.125% per annum on the average daily amount of the LC
Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Effective Date to but
excluding the later of the date of termination of the Commitments and the date
on which there ceases to be any LC Exposure, as well as the Issuing Lender's
standard fees with respect to the issuance, amendment, renewal or extension of
any Letter of Credit or processing of drawings thereunder. Participation fees
and fronting fees accrued through and including each Quarterly Date shall be
payable on the third Business Day following such Quarterly Date, commencing on
the first such date to occur after the Effective Date; provided that all such
fees shall be payable on the date on which the Commitments terminate and any
such fees accruing after the date on which the Commitments terminate shall be
payable on demand. Any other fees payable to the Issuing Lender pursuant to this
paragraph shall be payable within 10 days after demand. All participation fees
and fronting fees shall be computed on the basis of a year of 360 days and shall
be payable for the actual number of days elapsed (including the first day but
excluding the last day).
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(c) Administrative Agent Fees. The Company agrees to pay to the
Administrative Agent, for its own account, fees payable in the amounts and at
the times separately agreed upon between the Company and the Administrative
Agent.
(d) Payment of Fees. All fees payable hereunder shall be paid on the
dates due, in Dollars and immediately available funds, to the Administrative
Agent (or to the Issuing Lender, in the case of fees payable to it) for
distribution, in the case of facility fees and participation fees, to the
Lenders entitled thereto. Fees paid shall not be refundable under any
circumstances.
SECTION 2.12. Interest.
(a) ABR Loans. The Loans constituting each ABR Borrowing (other than
any Swingline Loan) shall bear interest at a rate per annum equal to the
Alternate Base Rate plus the Applicable Rate. The Swingline Loans shall bear
interest at a rate per annum equal to (i) the Alternate Base Rate plus the
Applicable Rate or (ii) the Money Market Rate, as applicable.
(b) Eurocurrency Loans. The Loans constituting each Eurocurrency
Borrowing shall bear interest at a rate per annum equal to the Adjusted LIBO
Rate for the Interest Period for such Borrowing plus the Applicable Rate.
(c) Default Interest. Notwithstanding the foregoing, if any principal
of or interest on any Loan or any fee or other amount payable by any Borrower
hereunder is not paid when due, whether at stated maturity, upon acceleration,
by mandatory prepayment or otherwise, such overdue amount shall bear interest,
after as well as before judgment, at a rate per annum equal to (i) in the case
of overdue principal of any Loan, 2% plus the rate otherwise applicable to such
Loan as provided above or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Loans as provided in paragraph (a) of this Section.
(d) Payment of Interest. Accrued interest on each Loan shall be
payable in arrears on each Interest Payment Date for such Loan and, in the case
of Syndicated Loans, upon termination of the Commitments; provided that (i)
interest accrued pursuant to paragraph (c) of this Section shall be payable on
demand, (ii) in the event of any repayment or prepayment of any Loan (other than
a prepayment of a Syndicated ABR Loan prior to the Commitment Termination Date),
accrued interest on the principal amount repaid or prepaid shall be payable on
the date of such repayment or prepayment and (iii) in the event of any
conversion of any Eurocurrency Borrowing denominated in Dollars prior to the end
of the Interest Period therefor, accrued interest on such Borrowing shall be
payable on the effective date of such conversion.
(e) Computation. All interest hereunder shall be computed on the basis
of a year of 360 days, except that interest computed by reference to the
Alternate Base Rate at times when the Alternate Base Rate is based on the Prime
Rate and interest on all Loans denominated in Pounds Sterling shall be computed
on the basis of a year of 365 days (or 366 days in a leap year), and in each
case shall be payable for the actual number of days elapsed (including the first
day
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but excluding the last day). The applicable Alternate Base Rate or Adjusted LIBO
Rate shall be determined by the Administrative Agent, and such determination
shall be conclusive absent manifest error.
SECTION 2.13. Alternate Rate of Interest. If prior to the commencement
of the Interest Period for any Eurocurrency Borrowing (the currency of such
Borrowing herein called the "Affected Currency"):
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate for the Affected Currency for
such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that
the Adjusted LIBO Rate for the Affected Currency for such Interest Period
will not adequately and fairly reflect the cost to such Lenders of making
or maintaining their respective Loans included in such Borrowing for such
Interest Period;
then the Administrative Agent shall give notice thereof to the Company and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Company and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Syndicated Borrowing to, or
the continuation of any Syndicated Borrowing as, a Eurocurrency Borrowing
denominated in the Affected Currency shall be ineffective and (A) if the
Affected Currency is Dollars, such Syndicated Borrowing (unless prepaid) shall
be continued as, or converted to, a Syndicated ABR Borrowing and (B) if the
Affected Currency is a Foreign Currency, such Syndicated Borrowing shall be
prepaid, (ii) if the Affected Currency is Dollars and any Borrowing Request
requests a Eurocurrency Borrowing denominated in Dollars, such Borrowing shall
be made as a Syndicated ABR Borrowing and (iii) if the Affected Currency is a
Foreign Currency, any Borrowing Request that requests a Eurocurrency Borrowing
denominated in the Affected Currency shall be ineffective.
SECTION 2.14. Increased Costs.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for account of, or
credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate) or the Issuing Lender; or
(ii) impose on any Lender or the Issuing Lender or the London
interbank market any other condition affecting this Agreement or
Eurocurrency Loans made by such Lender or any Letter of Credit or
participation therein;
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and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
Issuing Lender of participating in, issuing or maintaining any Letter of Credit
or to reduce the amount of any sum received or receivable by such Lender or the
Issuing Lender hereunder (whether of principal, interest or otherwise) other
than any such increase relating to Taxes (which shall be governed exclusively by
Section 2.16), by an amount which such Lender or the Issuing Lender, as the case
may be, deems in its sole discretion to be material, then, subject to the
delivery of a certificate contemplated by paragraph (c) below, the Company will
pay to such Lender or the Issuing Lender, as the case may be, in Dollars, such
additional amount or amounts as will compensate such Lender or the Issuing
Lender, as the case may be, for such additional costs incurred or reduction
suffered.
(b) Capital Requirements. If any Lender or the Issuing Lender
determines that any Change in Law regarding capital requirements has or would
have the effect of reducing the rate of return on such Lender's or the Issuing
Lender's capital or on the capital of such Lender's or the Issuing Lender's
holding company, if any, as a consequence of this Agreement or the Loans made
by, or participations in Letters of Credit held by, such Lender, or the Letters
of Credit issued by the Issuing Lender, to a level below that which such Lender
or the Issuing Lender or such Lender's or the Issuing Lender's holding company
could have achieved but for such Change in Law (taking into consideration such
Lender's or the Issuing Lender's policies and the policies of such Lender's or
the Issuing Lender's holding company with respect to capital adequacy), then,
subject to the delivery of a certificate contemplated by paragraph (c) below,
from time to time the Company will pay to such Lender or the Issuing Lender, as
the case may be, in Dollars, such additional amount or amounts as will
compensate such Lender or the Issuing Lender or such Lender's or the Issuing
Lender's holding company for any such reduction suffered.
(c) Certificates from Lenders. A certificate of a Lender or the
Issuing Lender setting forth in reasonable detail the amount or amounts, in
Dollars, necessary to compensate such Lender or the Issuing Lender or its
holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the Company and shall be conclusive absent
manifest error. The Company shall pay such Lender or the Issuing Lender, as the
case may be, the amount shown as due on any such certificate within 20 days
after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender or
the Issuing Lender to demand compensation pursuant to this Section shall not
constitute a waiver of such Lender's or the Issuing Lender's right to demand
such compensation; provided that the Company shall not be required to compensate
a Lender or the Issuing Lender pursuant to this Section for any increased costs
or reductions incurred more than 120 days prior to the date that such Lender or
the Issuing Lender, as the case may be, notifies the Company of the Change in
Law giving rise to such increased costs or reductions and of such Lender's or
the Issuing Lender's intention to claim compensation therefor; provided further
that, if the Change in Law giving rise to such increased costs or reductions is
retroactive, then the 120-day period referred to above shall be extended to
include the period of retroactive effect thereof.
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SECTION 2.15. Break Funding Payments. In the event of (a) the payment
of any principal of any Eurocurrency Loan other than on the last day of an
Interest Period therefor (including as a result of an Event of Default), (b) the
conversion of any Eurocurrency Loan other than on the last day of an Interest
Period therefor, (c) the failure to borrow, convert, continue or prepay any
Syndicated Loan on the date specified in any notice delivered pursuant hereto
(regardless of whether such notice is permitted to be revocable under Section
2.10(c) and is revoked in accordance herewith) (other than as a result of
Section 2.13), or (d) the assignment as a result of a request by the Company
pursuant to Section 2.18(b) of any Eurocurrency Loan other than on the last day
of an Interest Period therefor, then, in any such event, the Company shall
compensate each Lender for the loss, cost and expense attributable to such
event. In the case of a Eurocurrency Loan, the loss to any Lender attributable
to any such event shall be deemed to include an amount determined by such Lender
to be equal to the excess, if any, of (i) the amount of interest that such
Lender would pay for a deposit equal to the principal amount of such Loan
denominated in the currency of such Loan for the period from the date of such
payment, conversion, failure or assignment to the last day of the then current
Interest Period for such Loan (or, in the case of a failure to borrow, convert
or continue, the duration of the Interest Period that would have resulted from
such borrowing, conversion or continuation) if the interest rate payable on such
deposit were equal to the Adjusted LIBO Rate for such currency for such Interest
Period, over (ii) the amount of interest that such Lender would earn on such
principal amount for such period if such Lender were to invest such principal
amount for such period at the interest rate that would be bid by such Lender (or
an affiliate of such Lender) for deposits denominated in such currency from
other banks in the eurocurrency market at the commencement of such period. A
certificate of any Lender setting forth in reasonable detail the basis for and
calculation of any amount or amounts that such Lender is entitled to receive
pursuant to this Section shall be delivered to the Company and shall be
conclusive absent manifest error. The Company shall pay such Lender the amount
shown as due on any such certificate within 20 days after receipt thereof.
SECTION 2.16. Taxes.
(a) Payments Free of Taxes. Any and all payments by or on account of
any obligation of any Borrower hereunder or under any other Loan Document shall
be made free and clear of and without deduction for any Indemnified Taxes or
Other Taxes; provided that if any Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable
shall be increased as necessary so that after making all such required
deductions (including deductions applicable to additional sums payable under
this Section) the Administrative Agent, each Lender or the Issuing Lender (as
the case may be) receives an amount equal to the sum it would have received had
no such deductions been made, (ii) such Borrower shall make such deductions and
(iii) such Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) Payment of Other Taxes. In addition, each Borrower shall pay any
Other Taxes to the relevant Governmental Authority in accordance with applicable
law.
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(c) Indemnification by the Borrowers. Each Borrower shall indemnify
the Administrative Agent, each Lender and the Issuing Lender, within 20 days
after written demand therefor, for the full amount of any Indemnified Taxes or
Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on
or attributable to amounts payable under this Section) paid by the
Administrative Agent, such Lender or the Issuing Lender, as the case may be, and
any penalties, interest and reasonable expenses arising therefrom or with
respect thereto ; provided that upon the request, and at the sole expense of,
any Borrower, the Administrative Agent, such Lender or the Issuing Lender, as
the case may be, shall reasonably afford such Borrower the opportunity to
contest (at such Borrower's expense), and reasonably cooperate with such
Borrower in contesting, the imposition of any Taxes giving rise to such amount;
provided further, however, that (i) to the extent that any such Taxes are
required by applicable law to be paid prior to commencing any such contest, the
Borrower shall pay or reimburse such Taxes whether or not such Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority,
(ii) such Borrower shall have confirmed in writing to such Person its obligation
to pay such indemnity amounts pursuant to this Agreement, (iii) such Person
shall have received at such Borrower's sole expense an opinion, in a form
reasonably satisfactory to such Person, of independent tax counsel selected by
such Borrower and reasonably acceptable to such Person to the effect that there
exists a reasonable basis for such contest, (iv) such Borrower shall reimburse
such Person for its reasonable attorneys' and accountants' fees and
disbursements incurred in so cooperating with such Borrower in so contesting and
(v) nothing in this paragraph (e) shall be construed to require such Person to
rearrange its tax affairs other than as it sees fit in its sole discretion or to
disclose or provide its tax returns or other information it reasonably considers
confidential or proprietary to any Person. A certificate setting forth in
reasonable detail the amount of such payment or liability delivered to the
Company by a Lender or the Issuing Lender, or by the Administrative Agent on its
own behalf or on behalf of a Lender or the Issuing Lender, shall be conclusive
absent manifest error.
(d) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by any Borrower to a Governmental Authority,
such Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
(e) U.S. Law Exemptions; Required Certificates. Any Foreign Lender
that is entitled to an exemption from or reduction of withholding tax under the
law of the jurisdiction in which the Company or any Subsidiary Borrower that is
a Domestic Subsidiary is located, or any treaty to which such jurisdiction is a
party, with respect to payments under this Agreement shall deliver to the
Company (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law or reasonably requested by the Company, such
properly completed and executed documentation prescribed by applicable law as
will permit such payments to be made without withholding or at a reduced rate.
Without limiting the foregoing, each Foreign Lender, with respect to
Loans made to the Company or any Subsidiary Borrower that is a Domestic
Subsidiary, or Letters of Credit
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issued for the account of the Company or any such Subsidiary Borrower, shall
deliver to the Company and each such Subsidiary Borrower, with copies to the
Administrative Agent, two copies of either U.S. Internal Revenue Service Form
W-8BEN or Form W-8ECI, or, in the case of a Foreign Lender claiming exemption
from the withholding of U.S. federal income tax under Section 871(h) or 881(c)
of the Code with respect to payments of "portfolio interest," a certificate
representing that such Foreign. Lender is not (i) a "bank" for purposes of
Section 881(c) of the Code, (ii) a ten-percent shareholder of the Company
(within the meaning of Section 871(h)(3)(B) of the Code) or (iii) a controlled
foreign corporation related to the Company (within the meaning of Section
864(d)(4) of the Code), and a Form W-8BEN, or any subsequent versions thereof or
successors thereto, in all cases properly completed and duly executed by such
Foreign Lender claiming complete exemption from, or a reduced rate of,
withholding of U.S. federal income tax on all payments by or on account of any
obligation of the Company or (if applicable) such Subsidiary Borrower under this
Agreement or under any other Loan Document. Such forms shall be delivered by
each such Foreign Lender on or before the date it becomes a party to this
Agreement. In addition, each such Foreign Lender shall deliver such forms
immediately prior to the obsolescence or invalidity of any form previously
delivered by such Foreign Lender. Each such Foreign Lender shall promptly notify
the Company and (if applicable) such Subsidiary Borrower at any time it
determines that it is no longer in a position to provide any previously
delivered certificate to the Person(s) to whom such certificate was previously
delivered (or any other form of certification adopted by the U.S. taxing
authorities for such purpose).
(f) Foreign Subsidiary Borrower Exemptions; Required Certificates. If
the Administrative Agent or any Lender is entitled to an exemption from or
reduction in the rate of the imposition, deduction or withholding of any
Indemnified Tax or Other Tax under the laws of the jurisdiction in which any
Subsidiary Borrower that is a Foreign Subsidiary is organized or engaged in
business, or any treaty to which such jurisdiction is a party, with respect to
payments by such Subsidiary Borrower under this Agreement or any other Loan
Document, then the Administrative Agent or such Lender (as the case may be)
shall deliver to such Subsidiary Borrower or the relevant Governmental
Authority, in the manner and at the time or times prescribed by applicable law
or as reasonably requested by the Company (at least 60 days prior to the due
date required for submission thereof), such properly completed and executed
documentation prescribed by applicable law or reasonably requested by the
Company as will permit such payments to be made without the imposition,
deduction or withholding of such Indemnified Tax or Other Tax or at a reduced
rate, provided that the Administrative Agent or such Lender is legally entitled
to complete, execute and deliver such documentation and in its reasonable
judgment such completion, execution or submission would not materially prejudice
its commercial or legal position or require disclosure of information it
considers confidential or proprietary.
(g) Refunds. If the Administrative Agent, a Lender or the Issuing
Lender determines, in its reasonable discretion, that it has received a refund
of any Taxes or Other Taxes as to which it has been indemnified by any Borrower
or with respect to which any Borrower has paid additional amounts pursuant to
this Section, it shall pay over such refund to such Borrower (but only to the
extent of indemnity payments made, or additional amounts paid, by such
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Borrower under this Section with respect to the Taxes or Other Taxes giving rise
to such refund), net of all out-of-pocket expenses of the Administrative Agent,
such Lender or the Issuing Lender, as the case may be, and without interest
(other than any interest paid by the relevant Governmental Authority with
respect to such refund); provided that such Borrower, upon the request of the
Administrative Agent, such Lender or the Issuing Lender, agrees to repay the
amount paid over to such Borrower (plus any penalties, interest or other charges
imposed by the relevant Governmental Authority, other than any such penalties,
interest or other charges attributable to the gross negligence or willful
misconduct of the Administrative Agent, such Lender or the Issuing Lender, as
applicable) to the Administrative Agent, such Lender or the Issuing Lender in
the event the Administrative Agent, such Lender or the Issuing Lender is
required to repay such refund to such Governmental Authority. This Section shall
not be construed to require the Administrative Agent, any Lender or the Issuing
Lender to make available its tax returns (or any other information relating to
its taxes which it deems confidential or proprietary) to any Borrower or any
other Person.
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs.
(a) Payments by the Obligors. Each Obligor shall make each payment
required to be made by it hereunder (whether of principal, interest, fees or
reimbursement of LC Disbursements, or under Section 2.14, 2.15 or 2.16, or
otherwise) or under any other Loan Document (except to the extent otherwise
provided therein) prior to 12:00 noon, Local Time, on the date when due, in
immediately available funds, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at the Administrative Agent's Account,
except as otherwise expressly provided in the relevant Loan Document and except
payments to be made directly to the Issuing Lender or the Swingline Lender as
expressly provided herein and payments pursuant to Sections 2.14, 2.15, 2.16 and
10.03, which shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day and, in the case of any payment accruing interest, interest thereon
shall be payable for the period of such extension. All amounts owing under this
Agreement (including facility fees, payments required under Section 2.14, and
payments required under Section 2.15 relating to any Loan denominated in
Dollars, but not including principal of, and interest on, any Loan denominated
in any Foreign Currency or payments relating to any such Loan required under
Section 2.15, which are payable in such Foreign Currency) or under any other
Loan Document (except to the extent otherwise provided therein) are payable in
Dollars. Notwithstanding the foregoing, if any Borrower shall fail to pay any
principal of any Loan when due (whether at stated maturity, by acceleration, by
mandatory prepayment or otherwise) or shall fail to pay any reimbursement
obligation in respect of any LC Disbursement when due, the unpaid portion of
such Loan or reimbursement obligation shall, if such Loan or reimbursement
obligation is not denominated in Dollars, automatically be redenominated in
Dollars on the due date thereof (or, if such due date is a day other than
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the last day of the Interest Period therefor, on the last day of such Interest
Period) in an amount equal to the Dollar Equivalent thereof on the date of such
redenomination and such principal or reimbursement obligation shall be payable
on demand; and if any Borrower shall fail to pay any interest on any Loan that
is not denominated in Dollars or on any LC Disbursement made pursuant to a
Letter of Credit that is not denominated in Dollars, such interest shall
automatically be redenominated in Dollars on the due date therefor (or, if such
due date is a day other than the last day of the Interest Period therefor, on
the last day of such Interest Period) in an amount equal to the Dollar
Equivalent thereof on the date of such redenomination and such interest shall be
payable on demand.
(b) Application of Insufficient Payments. If at any time insufficient
funds are received by and available to the Administrative Agent to pay fully all
amounts of principal, unreimbursed LC Disbursements, interest and fees then due
hereunder, such funds shall be applied (i) first, to pay interest and fees then
due hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (ii) second, to pay
principal and unreimbursed LC Disbursements then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of principal and
unreimbursed LC Disbursements then due to such parties.
(c) Pro Rata Treatment. Except to the extent otherwise provided
herein: (i) each Syndicated Borrowing shall be made from the Lenders, each
payment of facility fee under Section 2.11 shall be made for account of the
Lenders, and each termination or reduction of the amount of the Commitments
under Section 2.08 shall be applied to the respective Commitments of the
Lenders, pro rata according to the amounts of their respective Commitments; (ii)
each Syndicated Borrowing shall be allocated pro rata among the Lenders
according to the amounts of their respective Commitments (in the case of the
making of Syndicated Loans) or their respective Loans that are to be included in
such Borrowing (in the case of conversions and continuations of Loans); (iii)
each payment or prepayment of principal of Syndicated Loans by any Borrower
shall be made for account of the Lenders pro rata in accordance with the
respective unpaid principal amounts of the Syndicated Loans held by them; and
(iv) each payment of interest on Syndicated Loans by any Borrower shall be made
for account of the Lenders pro rata in accordance with the amounts of interest
on such Loans then due and payable to the respective Lenders.
(d) Sharing of Payments by Lenders. If any Lender shall, by exercising
any right of set-off or counterclaim or otherwise, obtain payment in respect of
any principal of or interest on any of its Syndicated Loans or participations in
LC Disbursements or Swingline Loans resulting in such Lender receiving payment
of a greater proportion of the aggregate amount of its Syndicated Loans and
participations in LC Disbursements and Swingline Loans and accrued interest
thereon then due than the proportion received by any other Lender, then the
Lender receiving such greater proportion shall purchase (for cash at face value)
participations in the Syndicated Loans and participations in LC Disbursements
and Swingline Loans of other Lenders to the extent necessary so that the benefit
of all such payments shall be shared by the Lenders ratably in accordance with
the aggregate amount of principal of and accrued interest on their respective
Syndicated Loans and participations in LC Disbursements and Swingline Loans;
provided that (i) if any such participations are purchased and all or any
portion of the payment
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giving rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by any Obligor pursuant to and in accordance with the express terms
of this Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations
in LC Disbursements to any assignee or participant, other than to the Company or
any Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph shall apply). Each Obligor consents to the foregoing and agrees, to
the extent it may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements may exercise
against such Obligor rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of such Obligor
in the amount of such participation.
(e) Presumptions of Payment. Unless the Administrative Agent shall
have received notice from the Company prior to the date on which any payment is
due to the Administrative Agent for account of the Lenders or the Issuing Lender
hereunder that the relevant Borrower will not make such payment, the
Administrative Agent may assume that such Borrower has made such payment on such
date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders or the Issuing Lender, as the case may be, the amount
due. In such event, if such Borrower or the Company has not in fact made such
payment, then each of the Lenders or the Issuing Lender, as the case may be,
severally agrees to repay to the Administrative Agent forthwith on demand the
amount so distributed to such Lender or the Issuing Lender with interest
thereon, for each day from and including the date such amount is distributed to
it to but excluding the date of payment to the Administrative Agent, at the
Federal Funds Effective Rate.
(f) Certain Deductions by the Administrative Agent. If any Lender
shall fail to make any payment required to be made by it pursuant to Section
2.04(c), 2.05(e), 2.06(b) or 2.17(e), then the Administrative Agent may, in its
discretion (notwithstanding any contrary provision hereof), apply any amounts
thereafter received by the Administrative Agent for account of such Lender to
satisfy such Lender's obligations under such Sections until all such unsatisfied
obligations are fully paid.
(g) Payments in Foreign Currencies by the Administrative Agent
Generally. With respect to the payment of any amount denominated in euros or in
a National Currency, the Administrative Agent shall not be liable to the
Borrowers or any of the Lenders in any way whatsoever for any delay, or the
consequences of any delay, in the crediting to any account of any amount
required by this Agreement to be paid by the Administrative Agent if the
Administrative Agent shall have taken all relevant steps to achieve, on the date
required by this Agreement, the payment of such amount in immediately available,
freely transferable, cleared funds (in euros or in such National Currency, as
the case may be) to the account of any Lender in the Principal Financial Center
in the Participating Member State which the relevant Borrower or such Lender, as
the case may be, shall have specified for such purpose. For the purposes of this
paragraph, "all relevant steps" means all such steps as may be prescribed from
time to time by the regulations or operating procedures of such clearing or
settlement system as the
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Administrative Agent may from time to time determine for the purpose of clearing
or settling payments in euros or such National Currency.
SECTION 2.18. Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender requests
compensation under Section 2.14, or if the Company is required to pay any
additional amount to any Lender or any Governmental Authority for account of any
Lender pursuant to Section 2.16, then such Lender shall use reasonable efforts
to designate a different lending office for funding or booking its Loans
hereunder or to assign its rights and obligations hereunder to another of its
offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant
to Section 2.14 or 2.16, as the case may be, in the future and (ii) would not
subject such Lender to any unreimbursed cost or expense and would not otherwise
be disadvantageous to such Lender. The Company hereby agrees to pay, within 20
days after written demand therefor, all reasonable costs and expenses incurred
by any Lender in connection with any such designation or assignment; provided
that such Lender shall use reasonable efforts to notify the Company in advance
before incurring such cost or expense which such Lender deems to be material.
(b) Replacement of Lenders. If (i) any Lender requests compensation
under Section 2.14, (ii) the Company is required to pay any additional amount to
any Lender or any Governmental Authority for account of any Lender pursuant to
Section 2.16, (iii) any Lender defaults in its obligation to fund Loans
hereunder or (iv) any Lender refuses to consent to any amendment, modification
or waiver of this Agreement or any other Loan Documents that pursuant hereto or
thereto requires the consent of all of the Lenders (or all of the Lenders
affected thereby), then the Company may, at its sole expense and effort, upon
notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 10.04), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the Company shall have received the prior written
consent of the Administrative Agent (and, if a Commitment is being assigned, the
Issuing Lender and the Swingline Lender), which consent shall not unreasonably
be withheld, (ii) such Lender shall have received payment of an amount equal to
the outstanding principal of its Loans and participations in LC Disbursements
and Swingline Loans, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder, from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the Company (in the case
of all other amounts) and (iii) in the case of any such assignment resulting
from a claim for compensation under Section 2.14 or payments required to be made
pursuant to Section 2.16, such assignment will result in a reduction in such
compensation or payments. A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Company to require such
assignment and delegation cease to apply.
SECTION 2.19. Designation of Subsidiary Borrowers.
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(a) Designation of Subsidiary Borrowers. Subject to the terms and
conditions of this Section (including paragraph (b) of this Section), the
Company may, at any time or from time to time upon not less than 10 Business
Days' notice to the Administrative Agent (or such other period which is
acceptable to the Administrative Agent), request that a wholly-owned Subsidiary
specified in such notice become a party to this Agreement as a Borrower;
provided that each such designation shall be subject to the prior approval of
the Administrative Agent (which approval shall not be unreasonably withheld).
The Administrative Agent shall upon receipt of such notice from the Company
promptly notify each Lender of the Company's designation. Upon such approval and
the satisfaction of the conditions specified in paragraph (b) of this Section,
such Subsidiary shall become a party to this Agreement as a Borrower hereunder
and shall be entitled to borrow Loans or request the issuance of Letters of
Credit on and subject to the terms and conditions of this Agreement, and the
Administrative Agent shall promptly notify the Lenders of such designation.
(b) Conditions Precedent to Designation Effectiveness. The designation
by the Company of any wholly-owned Subsidiary as a Subsidiary Borrower hereunder
shall not become effective until the date on which the Administrative Agent
shall have received each of the following documents (each of which shall be
satisfactory to the Administrative Agent in form and substance):
(i) Designation Letter. A Subsidiary Borrower Designation Letter, duly
completed and executed by the Company and the relevant Subsidiary,
delivered to the Administrative Agent at least 5 Business Days before the
date on which such Subsidiary is proposed to become a Subsidiary Borrower;
(ii) Opinion of Counsel. If requested by the Administrative Agent, a
favorable written opinion (addressed to the Administrative Agent and the
Lenders and appropriately dated) of counsel to such Subsidiary satisfactory
to the Administrative Agent in the jurisdiction in which such Subsidiary is
organized (the "Relevant Jurisdiction"), (and the Company and such
Subsidiary Borrower hereby and by delivery of such Subsidiary Borrower
Designation Letter instruct such counsel to deliver such opinion to the
Lenders and the Administrative Agent, if such opinion is so requested), as
to such other matters as the Administrative Agent may reasonably request
(which may include the due incorporation of such Subsidiary under the laws
of the Relevant Jurisdiction, the due authorization, execution and delivery
by such Subsidiary of such Subsidiary Borrower Designation Letter and of
any extensions of credit to made by it hereunder, the obtaining of all
licenses, approvals and consents of, and the making of all filings and
registrations with, any applicable Governmental Authority required in
connection therewith (or the absence of any thereof), the legality,
validity and binding effect and enforceability thereof and the absence of
any withholding or similar tax under the laws of the Relevant Jurisdiction
in respect of payments by such Subsidiary Borrower hereunder);
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(iii) Corporate Documents. Such documents and certificates as the
Administrative Agent may reasonably request (including certified copies of
the organizational documents of such Subsidiary and of resolutions of its
board of directors authorizing such Subsidiary becoming a Borrower
hereunder, and of all documents evidencing all other necessary corporate or
other action required with respect to such Subsidiary Borrower becoming
party to this Agreement); and
(iv) Other Documents. Receipt of such other documents relating thereto
as the Administrative Agent or its counsel may reasonably request, which
may include other documents that are consistent with conditions for
Subsidiary Borrowers set forth in Section 4.01.
(c) Termination of Subsidiary Borrowers. The Company may, at any time
at which a Subsidiary Borrower shall not be an account party with respect to an
outstanding Letter of Credit and which shall have no unpaid LC Disbursements or
unpaid interest on any LC Disbursements and no Loans or any other amounts
hereunder or under any other Loan Documents shall be outstanding to such
Subsidiary Borrower, terminate such Subsidiary Borrower as a Borrower hereunder
by delivering to the Administrative Agent an executed notice thereof (each a
"Subsidiary Borrower Termination Letter"), substantially in the form of Exhibit
I. Any Subsidiary Borrower Termination Letter furnished hereunder shall be
effective upon receipt thereof by the Administrative Agent (which shall promptly
so notify the Lenders and the Issuing Lender), whereupon all commitments of the
Issuing Lender to issue Letters of Credit for account of such Subsidiary
Borrower and all commitments of the Lenders to make Loans to such Subsidiary
Borrower and all of rights of such Subsidiary Borrower hereunder shall terminate
and such Subsidiary Borrower shall immediately cease to be a Borrower hereunder.
Notwithstanding anything herein to the contrary, the delivery of a Subsidiary
Borrower Termination Letter with respect to any Subsidiary Borrower shall not
terminate (i) any obligation of such Subsidiary Borrower that remains unpaid at
the time of such delivery (including any obligation arising thereafter in
respect of such Subsidiary Borrower under Section 2.16) or (ii) the obligations
of the Company under Article III with respect to any such unpaid obligations.
ARTICLE III
GUARANTEE
SECTION 3.01. The Guarantee.
(a) The Company hereby guarantees to each Lender and the
Administrative Agent and their respective successors and assigns the prompt
payment in full when due (whether at stated maturity, by acceleration or
otherwise) of the principal of and interest on the Loans made by the Lenders to
each Subsidiary Borrower, all reimbursement obligations in respect of LC
Disbursements and all interest thereon payable by each Subsidiary Borrower, and
all other amounts from time to time owing to the Lenders or the Administrative
Agent by the Company under this Agreement and by each Subsidiary Borrower under
any of the other Loan Documents,
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in each case strictly in accordance with the terms thereof (such obligations
being herein collectively called the "Company Guaranteed Obligations"). The
Company hereby further agrees that if any Subsidiary Borrower shall fail to pay
in full when due (whether at stated maturity, by acceleration or otherwise) any
of the Company Guaranteed Obligations owing by such Subsidiary, the Company will
promptly pay the same, without any demand or notice whatsoever, and that in the
case of any extension of time of payment or renewal of any of the Company
Guaranteed Obligations, the same will be promptly paid in full when due (whether
at extended maturity, by acceleration or otherwise) in accordance with the terms
of such extension or renewal.
(b) The Subsidiary Guarantors hereby jointly and severally guarantee
to each Lender and the Administrative Agent and their respective successors and
assigns the prompt payment in full when due (whether at stated maturity, by
acceleration or otherwise) of the principal of and interest on the Loans made by
the Lenders to each Borrower (other than such Subsidiary Guarantor), all
reimbursement obligations in respect of LC Disbursements and all interest
thereon payable by each such Borrower and all other amounts from time to time
owing to the Lenders or the Administrative Agent by each such Borrower under
this Agreement and by any Obligor under any of the other Loan Documents, in each
case strictly in accordance with the terms thereof (such obligations being
herein collectively called the "Subsidiary Borrower Guaranteed Obligations" and,
together with the Company Guaranteed Obligations, the "Guaranteed Obligations").
The Subsidiary Guarantors hereby further jointly and severally agree that if any
Borrower shall fail to pay in full when due (whether at stated maturity, by
acceleration or otherwise) any of the Subsidiary Borrower Guaranteed
Obligations, the Subsidiary Guarantors will promptly pay the same, without any
demand or notice whatsoever, and that in the case of any extension of time of
payment or renewal of any of the Subsidiary Borrower Guaranteed Obligations, the
same will be promptly paid in full when due (whether at extended maturity, by
acceleration or otherwise) in accordance with the terms of such extension or
renewal.
SECTION 3.02. Obligations Unconditional. The obligations of the
Guarantors under Section 3.01 are absolute and unconditional, joint and several,
irrespective of the value, genuineness, validity, regularity or enforceability
of the obligations of any Borrower under this Agreement or any other agreement
or instrument referred to herein, or any substitution, release or exchange of
any other guarantee of or security for any of the Guaranteed Obligations, and,
also to the fullest extent permitted by applicable law, irrespective of any
other circumstance whatsoever that might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor, it being the intent of
this Section that the obligations of the Guarantors hereunder shall be absolute
and unconditional, joint and several, under any and all circumstances. Without
limiting the generality of the foregoing, it is agreed that, to the fullest
extent permitted by applicable law, the occurrence of any one or more of the
following shall not alter or impair the liability of the Guarantors hereunder,
which shall remain absolute and unconditional as described above:
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(i) at any time or from time to time, without notice to the
Guarantors, the time for any performance of or compliance with any of the
Guaranteed Obligations shall be extended, or such performance or compliance
shall be waived;
(ii) any of the acts mentioned in any of the provisions of this
Agreement or any other agreement or instrument referred to herein shall be
done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under this Agreement
or any other agreement or instrument referred to herein shall be waived or
any other guarantee of any of the Guaranteed Obligations or any security
therefor shall be released or exchanged in whole or in part or otherwise
dealt with; or
(iv) any lien or security interest granted to, or in favor of, the
Administrative Agent or any Lender or Lenders as security for any of the
Guaranteed Obligations shall fail to be perfected.
The Guarantors hereby expressly waive diligence, presentment, demand of payment,
protest and all notices whatsoever, and any requirement that the Administrative
Agent or any Lender exhaust any right, power or remedy or proceed against any
Borrower under this Agreement or any other agreement or instrument referred to
herein, or against any other Person under any other guarantee of, or security
for, any of the Guaranteed Obligations.
SECTION 3.03. Reinstatement. The obligations of the Guarantors under
this Article shall be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of any Borrower in respect of the Guaranteed
Obligations is rescinded or must be otherwise restored by any holder of any of
the Guaranteed Obligations, whether as a result of any proceedings in bankruptcy
or reorganization or otherwise, and the Guarantors jointly and severally agree
that they will indemnify the Administrative Agent and each Lender on demand for
all reasonable costs and expenses (including reasonable fees of counsel)
incurred by the Administrative Agent or such Lender in connection with such
rescission or restoration, including any such costs and expenses incurred in
defending against any claim alleging that such payment constituted a preference,
fraudulent transfer or similar payment under any bankruptcy, insolvency or
similar law.
SECTION 3.04. Subrogation. The Guarantors hereby jointly and severally
agree that until the payment and satisfaction in full of all Guaranteed
Obligations and the expiration and termination of the Commitments of the Lenders
under this Agreement they shall not exercise any right or remedy arising by
reason of any performance by them of their guarantee in Section 3.01, whether by
subrogation or otherwise, against any Borrower or any other guarantor of any of
the Guaranteed Obligations or any security for any of the Guaranteed
Obligations.
SECTION 3.05. Remedies. The Guarantors jointly and severally agree
that, as between the Guarantors and the Lenders, the obligations of the Company
under this Agreement
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may be declared to be forthwith due and payable as provided in Article VIII (and
shall be deemed to have become automatically due and payable in the
circumstances provided in Article VIII) for purposes of Section 3.01
notwithstanding any stay, injunction or other prohibition preventing such
declaration (or such obligations from becoming automatically due and payable) as
against any Borrower and that, in the event of such declaration (or such
obligations being deemed to have become automatically due and payable), such
obligations (whether or not due and payable by such Borrower) shall forthwith
become due and payable by the Guarantors for purposes of Section 3.01.
SECTION 3.06. Instrument for the Payment of Money. Each Guarantor
hereby acknowledges that the guarantee in this Article constitutes an instrument
for the payment of money, and consents and agrees that any Lender or the
Administrative Agent, at its sole option, in the event of a dispute by such
Guarantor in the payment of any moneys due hereunder, shall have the right to
bring motion-action under New York CPLR Section 3213.
SECTION 3.07. Continuing Guarantee. The guarantee in this Article is a
continuing guarantee, and shall apply to all Guaranteed Obligations whenever
arising.
SECTION 3.08. Rights of Contribution. The Subsidiary Guarantors hereby
agree, as between themselves, that if any Subsidiary Guarantor shall become an
Excess Funding Guarantor (as defined below) by reason of the payment by such
Subsidiary Guarantor of any Guaranteed Obligations, each other Subsidiary
Guarantor shall, on demand of such Excess Funding Guarantor (but subject to the
next sentence), pay to such Excess Funding Guarantor an amount equal to such
Subsidiary Guarantor's Pro Rata Share (as defined below and determined, for this
purpose, without reference to the properties, debts and liabilities of such
Excess Funding Guarantor) of the Excess Payment (as defined below) in respect of
such Guaranteed Obligations. The payment obligation of a Subsidiary Guarantor to
any Excess Funding Guarantor under this Section shall be subordinate and subject
in right of payment to the prior payment in full of the obligations of such
Subsidiary Guarantor under the other provisions of this Article and such Excess
Funding Guarantor shall not exercise any right or remedy with respect to such
excess until payment and satisfaction in full of all of such obligations.
For purposes of this Section, (i) "Excess Funding Guarantor" means, in
respect of any Guaranteed Obligations, a Subsidiary Guarantor that has paid an
amount in excess of its Pro Rata Share of such Guaranteed Obligations, (ii)
"Excess Payment" means, in respect of any Guaranteed Obligations, the amount
paid by an Excess Funding Guarantor in excess of its Pro Rata Share of such
Guaranteed Obligations and (iii) "Pro Rata Share" means, for any Subsidiary
Guarantor, the ratio (expressed as a percentage) of (x) the amount by which the
aggregate present fair saleable value of all properties of such Subsidiary
Guarantor (excluding any shares of stock of any other Subsidiary Guarantor)
exceeds the amount of all the debts and liabilities of such Subsidiary Guarantor
(including contingent, subordinated, unmatured and unliquidated liabilities, but
excluding the obligations of such Subsidiary Guarantor hereunder and any
obligations of any other Subsidiary Guarantor that have been guaranteed by such
Subsidiary Guarantor) to (y) the amount by which the aggregate fair saleable
value of all properties of all of the Subsidiary Guarantors exceeds the amount
of all the debts and liabilities (including
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contingent, subordinated, unmatured and unliquidated liabilities, but excluding
the obligations of the Company and the Subsidiary Guarantors hereunder and under
the other Loan Documents) of all of the Subsidiary Guarantors, determined (A)
with respect to any Subsidiary Guarantor that is a party hereto on the Effective
Date, as of the Effective Date, and (B) with respect to any other Subsidiary
Guarantor, as of the date such Subsidiary Guarantor becomes a Subsidiary
Guarantor hereunder.
SECTION 3.09. General Limitation on Guarantee Obligations. In any
action or proceeding involving any state corporate law, or any state or Federal
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of any Subsidiary Guarantor under
Section 3.01 would otherwise, taking into account the provisions of Section
3.08, be held or determined to be void, invalid or unenforceable, or
subordinated to the claims of any other creditors, on account of the amount of
its liability under Section 3.01, then, notwithstanding any other provision
hereof to the contrary, the amount of such liability shall, without any further
action by such Subsidiary Guarantor, any Lender, the Administrative Agent or any
other Person, be automatically limited and reduced to the highest amount that is
valid and enforceable and not subordinated to the claims of other creditors as
determined in such action or proceeding.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Lenders that:
SECTION 4.01. Organization; Powers. Each of the Company and its
Subsidiaries (other than any Immaterial Subsidiary) (a) is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, (b) has all requisite power and authority to carry on its business
as now conducted and (c) is qualified to do business in, and is in good standing
in, every jurisdiction where such qualification is required, except, in the case
of clause (b) or (c) above, where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 4.02. Authorization; Enforceability. The Transactions are
within each Obligor's corporate powers and have been duly authorized by all
necessary corporate and, if required, by all necessary shareholder action. This
Agreement has been duly executed and delivered by each Obligor and constitutes,
and each of the other Loan Documents to which it is a party when executed and
delivered by such Obligor will constitute, a legal, valid and binding obligation
of such Obligor, enforceable against each Obligor in accordance with its terms,
except as such enforceability may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium or similar laws of general applicability affecting
the enforcement of creditors' rights and (b) the application of general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
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SECTION 4.03. Governmental Approvals; No Conflicts. The Transactions
(a) do not require any consent or approval of, registration or filing with, or
any other action by, any Governmental Authority, except for (i) such as have
been obtained or made and are in full force and effect and (ii) filings and
recordings in respect of the Liens created pursuant to the Security Documents,
(b) will not violate any Requirement of Law applicable to the Company or any of
its Subsidiaries (other than any Immaterial Subsidiaries), (c) will not violate
or result in a default under any indenture, agreement or other instrument
binding upon the Company or any of its Subsidiaries or assets, or give rise to a
right thereunder to require any payment to be made by any such Person, and (d)
except for the Liens created pursuant to the Security Documents, will not result
in the creation or imposition of any Lien on any asset of the Company or any of
its Subsidiaries.
SECTION 4.04. Financial Condition; No Material Adverse Change.
(a) Financial Condition. The Company has heretofore furnished to the
Lenders its consolidated balance sheet and statements of income, stockholders'
equity and cash flows (i) as of and for the fiscal year ended December 31, 2004,
reported on by PricewaterhouseCoopers LLP, independent public accountants, and
(ii) as of and for the fiscal quarter and the portion of the fiscal year ended
June 30, 2005, certified by the chief financial officer of the Company. Such
financial statements present fairly, in all material respects, the financial
condition and results of operations and cash flows of the Company and its
Subsidiaries as of such dates and for such periods in accordance with GAAP,
subject to year-end audit adjustments and the absence of footnotes in the case
of the statements referred to in clause (ii) of the first sentence of this
paragraph.
(b) No Material Adverse Change. Since December 31, 2004, there has
been no material adverse change in the business, assets, operations or
condition, financial or otherwise, of the Company and its Subsidiaries, taken as
a whole.
SECTION 4.05. Properties.
(a) Property Generally. Each of the Company and its Subsidiaries
(other than any Immaterial Subsidiary) has good title to, or valid leasehold
interests in, all its real and personal property material to its business,
subject only to Liens permitted by Section 7.02 and except for minor defects in
title that do not interfere with its ability to conduct its business as
currently conducted or to utilize such properties for their intended purposes.
(b) Intellectual Property. Each of the Company and its Subsidiaries
(other than any Immaterial Subsidiary) owns, or is licensed to use, all
trademarks, tradenames, copyrights, patents and other intellectual property
material to its business, and the use thereof by the Company and its
Subsidiaries does not infringe upon the rights of any other Person, except for
any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
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SECTION 4.06. Litigation and Environmental Matters.
(a) Actions, Suits and Proceedings. There are no actions, suits or
proceedings by or before any arbitrator or Governmental Authority now pending
against or, to the knowledge of the Company, threatened against or affecting the
Company or any of its Subsidiaries (i) as to which there is a reasonable
possibility of an adverse determination and that, if adversely determined, could
reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect (other than the actions, suits and proceedings disclosed
in Schedule 4.06(a)) or (ii) that involve this Agreement, any other Loan
Document or the Transactions.
(b) Environmental Matters. Each of the Company and its Subsidiaries
has obtained all environmental, health and safety permits, licenses and other
authorizations required under all Environmental Laws to carry on its business as
now being or as proposed to be conducted, except to the extent failure to have
any such permit, license or authorization, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect. Each of
such permits, licenses and authorizations is in full force and effect and each
of the Company and its Subsidiaries is in compliance with the terms and
conditions thereof, and is also in compliance with all other limitations,
restrictions, conditions, standards, prohibitions, requirements, obligations,
schedules and timetables contained in any applicable Environmental Law or in any
regulation, code, plan, order, decree, judgment, injunction, notice or demand
letter issued, entered, promulgated or approved thereunder, except to the extent
failure to comply therewith, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
(c) Disclosed Matters. Since the date hereof, there has been no change
in the status of the actions, suits and proceedings disclosed in Schedule
4.06(a) that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect.
SECTION 4.07. Compliance with Laws and Agreements. Each of the Company
and its Subsidiaries is in compliance with all laws, regulations and orders of
any Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where
the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. No Default has occurred and is
continuing.
SECTION 4.08. Investment and Holding Company Status. Neither the
Company nor any of its Subsidiaries is (a) an "investment company" as defined
in, or subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
SECTION 4.09. Taxes. Each of the Company and its Subsidiaries has
timely filed or caused to be filed all Tax returns and reports required to have
been filed and has paid or caused to be paid all Taxes required to have been
paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which such Person has set aside on its
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books adequate reserves in accordance with GAAP or (b) to the extent that the
failure to do so could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 4.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the date
of the most recent financial statements reflecting such amounts, exceed by more
than $40,000,000 the fair market value of the assets of such Plan, and the
present value of all accumulated benefit obligations of all underfunded Plans
(based on the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed by more than $40,000,000 the fair
market value of the assets of all such underfunded Plans.
SECTION 4.11. Disclosure. The Company has disclosed to the Lenders all
agreements, instruments and corporate or other restrictions to which it or any
of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. None of the reports, financial statements, certificates
or other information furnished in writing by or on behalf of the Obligors to the
Administrative Agent or the Lenders in connection with the negotiation of this
Agreement and the other Loan Documents or delivered hereunder or thereunder (as
modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that, with respect to projected financial
information, the Company represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time.
SECTION 4.12. Use of Credit. Neither the Company nor any of its
Subsidiaries is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose, whether immediate, incidental
or ultimate, of buying or carrying Margin Stock, and no part of the proceeds of
any extension of credit hereunder will be used to buy or carry any Margin Stock.
SECTION 4.13. Subsidiaries. Set forth in Schedule 4.13 is a complete
and correct list of all of the Subsidiaries of the Company as of the date
hereof, together with, for each Subsidiary, (i) the jurisdiction of organization
of such Subsidiary, (ii) each Person holding ownership interests in such
Subsidiary and (iii) the nature of the ownership interests held by each such
Person and the percentage of ownership of such Subsidiary represented by such
ownership interests. Except as disclosed in Schedule 4.13, (x) each of the
Company and its Subsidiaries owns, free and clear of Liens (other than Liens
created pursuant to the Security Documents and Permitted Encumbrances), and has
the unencumbered right to vote, all outstanding ownership interests in each
Subsidiary shown to be held by it in Schedule 4.13, (y) all of the issued and
outstanding Capital Stock of each Subsidiary organized as a corporation is
validly issued, fully
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paid and nonassessable and (z) there are no outstanding Equity Rights with
respect to each such Subsidiary.
SECTION 4.14. Labor Matters. There are no strikes or other labor
disputes against the Company or any of its Subsidiaries pending or, to the
knowledge of the Company, threatened, other than any thereof that (individually
or in the aggregate) could not reasonably be expected to result in a Material
Adverse Effect. Hours worked by and payment made to employees of the Company and
its Subsidiaries have not been in violation of the Fair Labor Standards Act or
any other applicable law, regulation or order of any Governmental Authority
dealing with such matters that (individually or in the aggregate) could
reasonably be expected to result in a Material Adverse Effect. All payments due
from the Company or any of its Subsidiaries on account of employee health and
welfare insurance that (individually or in the aggregate) could reasonably be
expected to result in a Material Adverse Effect if not paid have been paid or
accrued as a liability on the books of the Company or the relevant Subsidiary.
SECTION 4.15. Representations and Warranties Affecting Certain
Subsidiary Borrowers. In the case of each Subsidiary Borrower that is a Foreign
Subsidiary: (a) no authorizations, approvals or consents of, and no filings or
registrations with, any Governmental Authority are necessary for the execution,
delivery or performance by such Subsidiary Borrower of the Subsidiary Borrower
Designation Letter to which it is a party (if applicable), this Agreement or any
other Loan Documents or for the validity or enforceability of any thereof or for
the Borrowings (if any) by or other extensions of credit to such Subsidiary
Borrower hereunder; (b) to ensure the legality, validity, enforceability or
admissibility in evidence of this Agreement against such Subsidiary Borrower, it
is not necessary that this Agreement or any other document be filed or recorded
with any Governmental Authority or that any stamp or similar tax be paid on or
in respect of this Agreement, or any other document other than such filings and
recordations that have already been made and such stamp or similar taxes that
have already been paid; (c) each of this Agreement and the other Loan Documents
to which such Subsidiary Borrower is a party is in proper legal form under the
law of the jurisdiction of organization of each Subsidiary Borrower for the
enforcement thereof against each Subsidiary Borrower, and all formalities
required in the jurisdiction of organization of such Subsidiary Borrower for the
validity and enforceability of this Agreement and such other Loans Documents
(including any necessary registration, recording or filing with any court or
other authority in such jurisdiction) have been accomplished, and no Indemnified
Taxes or Other Taxes are required to be paid to such jurisdiction, or any
political subdivision thereof or therein, and no notarization is required, for
the validity and enforceability thereof; (d) such Subsidiary Borrower is subject
to administrative civil and commercial law with respect to its obligations under
the Loan Documents, and the execution, delivery and performance of the Loan
Documents by such Subsidiary Borrower constitute private and commercial acts
rather than public or governmental acts (to the extent that these concepts are
applicable under the law of its jurisdiction of organization); and (e) under the
laws of the jurisdiction in which such Subsidiary Borrower is located, such
Subsidiary Borrower is not entitled to immunity on the ground of sovereignty or
the like from the jurisdiction of any court or from any action, suit or
proceeding, or the service of process in connection therewith, arising under the
Loan Documents.
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ARTICLE V
CONDITIONS
SECTION 5.01. Effective Date. The obligations of the Lenders to make
Loans and of the Issuing Lender to issue Letters of Credit hereunder shall not
become effective until the date on which the Administrative Agent shall have
received each of the following documents, each of which shall be satisfactory to
the Administrative Agent (and to the extent specified below, to each Lender) in
form and substance (or such condition shall have been waived in accordance with
Section 10.02):
(a) Executed Counterparts. From each party hereto either (i) a
counterpart of this Agreement signed on behalf of such party or (ii)
written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page to this Agreement)
that such party has signed a counterpart of this Agreement.
(b) Opinion of Counsel to the Obligors. An opinion, addressed to the
Administrative Agent and the Lenders and dated the Effective Date, of (i)
Xxxxx Xxxxxx, Esq., General Counsel of the Company, substantially in the
form of Exhibit F-1, (ii) Debevoise & Xxxxxxxx LLP, special New York
counsel to the Obligors, substantially in the form of Exhibit F-2, (iii)
Xxxxxx, Xxxxxxxx & Co., Bahamas counsel to the Company, in form and
substance satisfactory to the Administrative Agent and (iv) Freshfields
Bruckhaus Xxxxxxxx, Dutch counsel to Cambrex Netherlands B.V., in form and
substance satisfactory to the Administrative Agent and, in each case
covering such other matters relating to the Company, the other Obligors,
this Agreement or the Transactions as the Required Lenders shall reasonably
request (and the Company hereby instructs such counsel to deliver such
opinion to the Lenders and the Administrative Agent).
(c) Opinion of Special New York Counsel to JPMCB. An opinion, dated
the Effective Date, of Milbank, Tweed, Xxxxxx & XxXxxx LLP, special New
York counsel to JPMCB, substantially in the form of Exhibit G (and JPMCB
hereby instructs such counsel to deliver such opinion to the Lenders).
(d) Corporate Documents. Such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the
organization, existence and good standing of each Obligor, the
authorization of the Transactions and any other legal matters relating to
the Obligors, this Agreement or the Transactions, all in form and substance
satisfactory to the Administrative Agent and its counsel.
(e) Officer's Certificate. A certificate, dated the Effective Date and
signed by the President, a Vice President or a Financial Officer of the
Company, confirming
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compliance with the conditions set forth in the lettered clauses of the
first sentence of Section 5.02.
(f) Pledge Agreements. A Pledge Agreement in respect of 66% of the
capital stock of Cambrex Bahamas, Inc., in substantially the form of
Exhibit B, duly executed and delivered by the Company and the Collateral
Agent and a Pledge Agreement in the form of a share charge in respect of
66% of the capital stock of Lumitech (UK) Limited, in form and substance
satisfactory to the Administrative Agent, duly executed and delivered by
Cambrex Bio Science Walkersville, Inc. and the Collateral Agent, together
with, in each case, the certificates in respect of such capital stock
accompanied by undated stock powers executed in blank. In addition, the
Company shall have taken such other action as the Collateral Agent shall
have requested in order to perfect the security interests created pursuant
to each such Pledge Agreement.
(g) Sharing Agreement; Intercreditor and Collateral Agency Agreement.
Such acknowledgements, joinder agreements, notifications and/or other
documents or actions pursuant to each of the Sharing Agreement and the
Intercreditor and Collateral Agency Agreement, as shall be necessary
pursuant to the terms of the Sharing Agreement and the Intercreditor and
Collateral Agency Agreement in order that this Agreement shall be subject
thereto and as reasonably requested by the Administrative Agent to give
effect to the purposes of this Agreement, in each case duly executed and
delivered by the relevant parties required for such purpose.
(h) Repayment of Existing Indebtedness. Evidence that the principal of
and interest on, and all other amounts owing in respect of, the Five-Year
Credit Agreement dated as of November 28, 2001 among the Company, the banks
party thereto, and JPMCB, as administrative agent, as heretofore amended
and in effect on the date hereof (the "Existing Credit Agreement")
(including any contingent or other amounts payable in respect of letters of
credit other than such letters of credit that are being continued hereunder
pursuant to Section 2.05(l)), shall have been (or shall be simultaneously)
paid in full, that any commitments to extend credit thereunder shall have
been canceled or terminated and that all guarantees in respect of any
amounts thereunder shall have been released (or arrangements for such
release satisfactory to the Administrative Agent shall have been made).
(i) Borrowing Request. A Borrowing Request by the relevant Borrower(s)
delivered to the Administrative Agent in accordance with Section 2.03 in
respect of the Borrowing(s) to be made as of the Effective Date.
(j) Documentation for Each Subsidiary Borrower. For each Subsidiary
Borrower designated as a Subsidiary Borrower or a Subsidiary Account Party
as of the Effective Date, such documents and certificates required to be
delivered under Section 2.19 to the extent such other documents and
certificates are not already being delivered hereunder.
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(k) Other Documents. Such other documents as the Administrative Agent
or special New York counsel to JPMCB may reasonably request.
The obligation of each Lender to make its initial extension of credit
hereunder is also subject to the payment by the Company of such fees as the
Company shall have agreed to pay to any Lender or the Administrative Agent in
connection herewith, including the reasonable fees and expenses of Milbank,
Tweed, Xxxxxx & XxXxxx LLP, special New York counsel to JPMCB, in connection
with the negotiation, preparation, execution and delivery of this Agreement and
the other Loan Documents and the extensions of credit hereunder (to the extent
that statements for such fees and expenses have been delivered to the Company).
The Administrative Agent shall notify the Company and the Lenders of the
Effective Date, and such notice shall be conclusive and binding.
SECTION 5.02. Each Credit Event. The obligation of each Lender to make
any Loan, and of the Issuing Lender to issue, amend, renew or extend any Letter
of Credit, is additionally subject to the satisfaction of the following
conditions:
(a) each of the representations and warranties made by the Company in
this Agreement, and by each Obligor in each of the other Loan Documents to
which it is a party, shall be true and complete on and as of the date of
such Loan or the date of issuance, amendment, renewal or extension of such
Letter of Credit, as applicable, with the same force and effect as if made
on and as of such date (or, if any such representation or warranty is
expressly stated to have been made as of a specific date, as of such
specific date); and
(b) at the time of and immediately after giving effect to such Loan or
the issuance, amendment, renewal or extension of such Letter of Credit, as
applicable, no Default shall have occurred and be continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Company on the date thereof as to the matters specified in the preceding
sentence.
ARTICLE VI
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all other amounts owing hereunder
shall have been paid in full and all Letters of Credit shall have expired or
terminated and all LC Disbursements shall have been reimbursed, the Company
covenants and agrees with the Lenders that:
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SECTION 6.01. Financial Statements and Other Information. The Company
will furnish to the Administrative Agent (and upon receipt thereof the
Administrative Agent will promptly furnish to each Lender):
(a) within 100 days after the end of each fiscal year of the Company,
the audited consolidated balance sheet and related statements of
operations, stockholders' equity and cash flows of the Company and its
Subsidiaries as of the end of and for such fiscal year, setting forth in
each case in comparative form the figures for (or, in the case of the
balance sheet, as of the end of) the previous fiscal year, all reported on
by PricewaterhouseCoopers LLP or other independent public accountants of
recognized national standing (without a "going concern" or like
qualification or exception and without any qualification or exception as to
the scope of such audit) to the effect that such consolidated financial
statements present fairly in all material respects the financial condition
and results of operations of the Company and its Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied;
(b) within 60 days after the end of each of the first three fiscal
quarters of each fiscal year of the Company, the consolidated balance sheet
and related statements of operations, stockholders' equity and cash flows
of the Company and its Subsidiaries as of the end of and for such fiscal
quarter and the then elapsed portion of such fiscal year, setting forth in
each case in comparative form the figures for (or, in the case of the
balance sheet, as of the end of) the corresponding period or periods of the
previous fiscal year, all certified by a Financial Officer of the Company
as presenting fairly in all material respects the financial condition and
results of operations of the Company and its Subsidiaries on a consolidated
basis or of each of the Borrowers and its Subsidiaries, as the case may be,
in accordance with GAAP consistently applied, subject to normal year-end
audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) of this Section, a certificate of a Financial Officer (i)
certifying as to whether a Default has occurred and, if a Default has
occurred, specifying the details thereof and any action taken or proposed
to be taken with respect thereto, (ii) setting forth reasonably detailed
calculations demonstrating compliance with Sections 7.01, 7.02, 7.05, 7.09
and 7.10, (iii) stating whether any change in GAAP or in the application
thereof has occurred since the date of the audited financial statements
referred to in Section 4.04 and, if any such change has occurred,
specifying the effect of such change on the financial statements
accompanying such certificate and (iv) setting forth the name of any
Subsidiary formed or acquired during the three-month period ending on the
last day of the relevant fiscal quarter or fiscal year and its jurisdiction
of organization;
(d) concurrently with any delivery of financial statements under
clause (a) of this Section, a certificate of the accounting firm that
reported on such financial statements stating whether they obtained
knowledge during the course of their examination of such financial
statements of any Default (which certificate may be limited to the extent
required by accounting rules or guidelines);
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(e) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
the Company or any of its Subsidiaries with the Securities and Exchange
Commission, or any Governmental Authority succeeding to any or all of the
functions of said Commission, or with any national securities exchange, or
distributed by the Company to its shareholders generally; and
(f) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Company or any of its Subsidiaries, or compliance with the terms of this
Agreement and the other Loan Documents, as the Administrative Agent or any
Lender (through the Administrative Agent) may reasonably request.
SECTION 6.02. Notices of Material Events. The Company will furnish to
the Administrative Agent (and upon receipt thereof the Administrative Agent will
promptly furnish to each Lender) prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting the
Company or any of its Affiliates that, if adversely determined, could
reasonably be expected to result in liability of the Company and its
Subsidiaries in an aggregate amount exceeding $20,000,000;
(c) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Company and its Subsidiaries in an aggregate
amount exceeding $20,000,000;
(d) the assertion of any environmental matter by any Person against,
or with respect to the activities of, the Company or any of its
Subsidiaries and any violation of or non-compliance with any Environmental
Laws or any permits, licenses or authorizations, other than any
environmental matter or alleged violation that could not (either
individually or in the aggregate) result in liability of the Company and
its Subsidiaries in an aggregate amount exceeding $20,000,000; and
(e) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Company setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
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SECTION 6.03. Existence; Conduct of Business. The Company will, and
will cause each of its Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of its business; provided that the foregoing shall not prohibit
any merger, consolidation, liquidation or dissolution permitted under Section
7.03.
SECTION 6.04. Payment of Obligations. The Company will, and will cause
each of its Subsidiaries to, pay its obligations, including tax liabilities,
before the same shall become delinquent or in default, except where (a) the
validity or amount thereof is being contested in good faith by appropriate
proceedings, (b) the Company or such Subsidiary has set aside on its books
adequate reserves with respect thereto in accordance with GAAP and (c) the
failure to make payment pending such contest could not reasonably be expected to
result in a Material Adverse Effect.
SECTION 6.05. Maintenance of Properties; Insurance. The Company will,
and will cause each of its Subsidiaries to, (a) keep and maintain all property
material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted, and (b) maintain, with financially sound and
reputable insurance companies, insurance in such amounts and against such risks
as are customarily maintained by companies engaged in the same or similar
businesses operating in the same or similar locations.
SECTION 6.06. Books and Records; Inspection Rights. The Company will,
and will cause each of its Subsidiaries to, keep proper books of record and
account in which full, true and correct entries in accordance with GAAP and all
Requirements of Law are made of all dealings and transactions in relation to its
business and activities. The Company will, and will cause each of its
Subsidiaries to (i) not more than once per any fiscal quarter for any Lender or
the Administrative Agent (unless any Event of Default shall have occurred and be
continuing), permit any representatives designated by the Administrative Agent
or any Lender, upon reasonable prior notice, to visit and inspect its
properties, to examine and (if doing so shall be reasonably related to this
Agreement) make extracts from its books and records, and to discuss its affairs,
finances and condition with its officers and independent accountants, all at
such reasonable times and as often as reasonably requested and (ii) not more
than once per any fiscal quarter (unless any Event of Default shall have
occurred and be continuing), permit the Administrative Agent or any
representatives designated by the Administrative Agent to conduct a
comprehensive field audit of its books, records, properties and assets.
SECTION 6.07. Compliance with Laws. The Company will, and will cause
each of its Subsidiaries to, comply with all laws, rules, regulations and orders
of any Governmental Authority (including, without limitation, Environmental
Laws) applicable to it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
SECTION 6.08. Use of Proceeds and Letters of Credit. The proceeds of
the Loans will be used only for general corporate purposes of the Company and
its Subsidiaries. No part of the proceeds of any Loan and no Letters of Credit
will be used, whether directly or
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indirectly, for any purpose that entails a violation of any of the regulations
of the Board, including, without limitation, Regulations T, U and X. Letters of
Credit will be issued only for general corporate purposes of the Company and its
Subsidiaries.
SECTION 6.09. Certain Obligations Respecting Subsidiaries; Further
Assurances.
(a) Domestic Subsidiary Guarantors. The Company will take such action,
and will cause each of its Subsidiaries to take such action, from time to time
as shall be necessary to ensure that all Domestic Subsidiaries of the Company
(other than an Immaterial Domestic Subsidiary) are "Subsidiary Guarantors"
hereunder. Without limiting the generality of the foregoing, in the event that
the Company or any of its Subsidiaries shall form or acquire any new Domestic
Subsidiary (other than an Immaterial Domestic Subsidiary) after the Effective
Date, the Company and its Subsidiaries will cause such new Domestic Subsidiary,
promptly but in no event later than 45 days following the formation or
acquisition of such new Domestic Subsidiary, to
(i) become a "Subsidiary Guarantor" hereunder, pursuant to a Guarantee
Assumption Agreement, and
(ii) deliver such proof of corporate action, incumbency of officers,
opinions of counsel and other documents as is consistent with those
delivered by each Obligor pursuant to Section 5.01 on the Effective Date or
as the Administrative Agent shall have requested.
Notwithstanding anything herein to the contrary; (A) if at any time the
aggregate assets or revenues of Domestic Subsidiaries that are not Subsidiary
Guarantors hereunder exceed $20,000,000 (as determined (in the case of assets)
as of the end of and (in the case of revenues) for the most recently completed
fiscal quarter or fiscal year of the Company), the Company will cause one or
more Domestic Subsidiaries that are not then Subsidiary Guarantors to become a
Subsidiary Guarantor hereunder pursuant to this Section 6.09(a) so that such
condition no longer exists, promptly but in no event later than 45 days
following the delivery of the financial statements of the Company for such
fiscal quarter or fiscal year and (B) if at any time any Domestic Subsidiary
that is not a Subsidiary Guarantor hereunder shall no longer be an Immaterial
Domestic Subsidiary (as determined (in the case of assets) as of the end of and
(in the case of revenues) for the most recently completed fiscal quarter or
fiscal year of the Company), the Company will cause such Domestic Subsidiary to
become a Subsidiary Guarantor pursuant to this Section 6.09(a), promptly but in
no event later than 45 days following the delivery of the financial statements
of the Company for such fiscal quarter or fiscal year.
(b) Foreign Subsidiaries. The Company will take such action, and will
cause each of its Domestic Subsidiaries to take such action, from time to time
as shall be necessary to ensure that (i) 66% of the voting Capital Stock of any
First-Tier Foreign Subsidiary (other than an Immaterial Foreign Subsidiary) and
(ii) so long as the pledge thereof could not have any adverse tax consequences
for the Company, 100% of all other Capital Stock of such Foreign
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Subsidiary shall be pledged in favor of the Collateral Agent (or a sub-agent
thereof) for the benefit of the Lenders, pursuant to a Pledge Agreement. Without
limiting the generality of the foregoing, in the event that the Company or any
of its Domestic Subsidiaries shall form or acquire any new First-Tier Foreign
Subsidiary (other than an Immaterial Foreign Subsidiary) after the Effective
Date, the Company will or cause such Domestic Subsidiary to, comply with the
requirements of this Section 6.09(b) promptly but in no event later than 45 days
following the formation or acquisition of such Foreign Subsidiary, and in that
connection the Company or such Domestic Subsidiary, as the case may be, shall
deliver such proof of corporate action, incumbency of officers, opinions of
counsel and other documents as is consistent with those delivered by each
Obligor pursuant to Section 5.01 on the Effective Date or as the Administrative
Agent shall have requested. Notwithstanding anything herein to the contrary; (A)
if at any time the aggregate assets or revenues of First-Tier Foreign
Subsidiaries the shares of Capital Stock of which have not been pledged pursuant
to this Agreement exceed $20,000,000 (as determined (in the case of assets) as
of the end of and (in the case of revenues) for the most recently completed
fiscal quarter or fiscal year of the Company), the Company will, or cause the
relevant Domestic Subsidiary to, pledge the Capital Stock of one or more such
First-Tier Foreign Subsidiaries pursuant to this Section 6.09(b) so that such
condition no longer exists, promptly but in no event later than 45 days
following the delivery of the financial statements of the Company for such
fiscal quarter or fiscal year and (B) if at any time any First-Tier Foreign
Subsidiary (the capital stock of which has not been pledged pursuant to this
Agreement) shall no longer be an Immaterial Foreign Subsidiary (as determined
(in the case of assets) as of the end of and (in the case of revenues) for the
most recently completed fiscal quarter or fiscal year of the Company), the
Company will, or cause the relevant Domestic Subsidiary to, comply with the
requirements of this Section 6.09(b) with respect to the Capital Stock of such
First-Tier Foreign Subsidiary, promptly but in no event later than 45 days
following the delivery of the financial statements of the Company for such
fiscal quarter or fiscal year.
(c) Further Assurances. The Company will, and will cause each of its
Subsidiaries to, take such action from time to time as shall reasonably be
requested by the Administrative Agent to effectuate the purposes and objectives
of this Agreement.
ARTICLE VII
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all other amounts owing hereunder have been paid
in full and all Letters of Credit have expired or terminated and all LC
Disbursements shall have been reimbursed, the Company covenants and agrees with
the Lenders that:
SECTION 7.01. Subsidiary Indebtedness. The Company will not permit any
of its Subsidiaries to create, incur, assume or permit to exist any
Indebtedness, except:
(a) Indebtedness created hereunder and under the other Loan Documents;
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(b) Indebtedness existing on the date hereof and listed in Schedule
7.01 and extensions, renewals and replacements of any such Indebtedness
that do not increase the outstanding principal amount thereof;
(c) Indebtedness of any Subsidiary owing to the Company or another
Subsidiary;
(d) Guarantees by any Subsidiary of Indebtedness of the Company or any
other Subsidiary;
(e) Indebtedness of any Subsidiary incurred to finance the
acquisition, construction or improvement of any fixed or capital assets,
including Capital Lease Obligations and any Indebtedness assumed in
connection with the acquisition of any such assets or secured by a Lien on
any such assets prior to the acquisition thereof, and extensions, renewals
and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof; provided that (i) such Indebtedness
is incurred prior to or within 90 days after such acquisition or the
completion of such construction or improvement and (ii) the aggregate
principal amount of Indebtedness permitted by this clause (e) shall not
exceed $35,000,000 at any time outstanding;
(f) Indebtedness of any Person that becomes a Subsidiary after the
date hereof and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount thereof;
provided that such Indebtedness exists at the time such Person becomes a
Subsidiary and is not created in contemplation of or in connection with
such Person becoming a Subsidiary;
(g) Indebtedness of any Subsidiary as an account party or applicant in
respect of letters of credit in an aggregate face amount not exceeding
$20,000,000 (or its equivalent in other currencies) at any time
outstanding;
(h) Indebtedness of any Subsidiary arising in respect of Permitted
Securitizations;
(i) Priority Indebtedness not exceeding $20,000,000 in the aggregate
at any time outstanding; and
(j) other unsecured Indebtedness not exceeding $10,000,000 in the
aggregate at any time outstanding.
SECTION 7.02. Liens. The Company will not, nor will it permit any of
its Subsidiaries to, create, incur, assume or permit to exist any Lien on any
property or asset now owned or hereafter acquired by it, or assign or sell any
income or revenues (including accounts receivable) or rights in respect of any
thereof, except:
(a) Liens created hereunder or under any of the other Loan Documents;
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(b) Permitted Encumbrances;
(c) Liens existing on the date hereof and listed in Schedule 7.02, and
extensions, renewals and replacements thereof that do not increase the
outstanding principal amount secured thereby, provided that (i) no such
Lien shall extend to any other property or asset of the Company or any of
its Subsidiaries and (ii) any such Lien shall secure only those obligations
which it secures on the date hereof;
(d) any Lien existing on any property or asset prior to the
acquisition thereof by the Company or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the date
hereof prior to the time such Person becomes a Subsidiary; provided that
(i) such Lien is not created in contemplation of or in connection with such
acquisition or such Person becoming a Subsidiary, as the case may be, (ii)
such Lien shall not apply to any other property or assets of the Company or
any Subsidiary and (iii) such Lien shall secure only those obligations
which it secures on the date of such acquisition or the date such Person
becomes a Subsidiary, as the case may be, and extensions, renewals and
replacements thereof that do not increase the outstanding principal amount
thereof;
(e) Liens on fixed or capital assets acquired, constructed or improved
by the Company or any Subsidiary; provided that (i) such security interests
secure (x) Indebtedness of the Company permitted by Section 7.09(b) and (y)
Indebtedness of the Subsidiaries permitted by clause (e) of Section 7.01,
(ii) such security interests and the Indebtedness secured thereby are
incurred prior to or within 90 days after such acquisition or the
completion of such construction or improvement, (iii) the Indebtedness
secured thereby does not exceed 100% of the cost of acquiring, constructing
or improving such fixed or capital assets and (iv) such security interests
shall not apply to any other property or assets of the Company or any
Subsidiary;
(f) Liens arising in connection with Permitted Securitizations;
(g) Liens securing Priority Indebtedness permitted under Section
7.01(i); and
(h) Liens incurred by the Company or any of its Subsidiaries, in
addition to Liens incurred under the foregoing clauses (a) through (f) of
this Section, provided that neither (i) the aggregate outstanding principal
amount of the obligations secured thereby nor (ii) the aggregate fair
market value (determined as of the date such Lien is incurred) of the
property subject thereto shall exceed (as to the Company and all
Subsidiaries) $10,000,000 at any time outstanding.
SECTION 7.03. Mergers, Consolidations, etc.; Changes in Lines of
Business.
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(a) The Company will not, nor will it permit any of its Subsidiaries
to, merge or consolidate or amalgamate with any other Person, or liquidate, wind
up or dissolve itself (or suffer any liquidation or dissolution) or take any
other action having a similar effect, except:
(i) any Subsidiary may merge into the Company in a transaction in
which the Company is the surviving corporation;
(ii) any Subsidiary may merge into another Subsidiary;
(iii) any Subsidiary may liquidate or dissolve if the Company
determines in good faith that such liquidation or dissolution is in the
best interests of the Company and not materially disadvantageous to the
Lenders; and
(iv) the Company may merge with any Person (other than a Subsidiary)
in a transaction in which the Company is the surviving corporation;
provided that (A) prior to the consummation of any such merger, the Company
has provided the Administrative Agent with pro forma financial statements
demonstrating compliance by the Company with Section 7.09 together with a
certificate of the chief financial officer of the Company certifying
compliance by the Company therewith after giving effect to such merger, and
the requirements of this Section and (B) both immediately prior to such
merger and after giving effect thereto, no Default shall have occurred and
be continuing.
(b) The Company will not, and will not permit any of its Subsidiaries
to, engage in any business if, as a result, the general nature of the business
in which the Company and its Subsidiaries taken as a whole would then be engaged
would be substantially changed from the general nature of the business in which
the Company and its Subsidiaries taken as a whole are engaged as of the date
hereof including the business of research and development, manufacturing, sales
or marketing of drugs or medical devices (including the conduct of clinical
trials and the application for, and the processing of, governmental approvals
related thereto).
SECTION 7.04. Disposition of Assets. The Company will not, nor will it
permit any of its Subsidiaries to, make any Disposition, except:
(a) sales of inventory in the ordinary course of business upon
customary credit terms;
(b) any Disposition of scrap or obsolete property, materials or
equipment;
(c) any Disposition of property of any Subsidiary to the Company or
any other Subsidiary; and
(d) Dispositions of property having an aggregate book value
(disregarding any write-downs of such book value other than ordinary
depreciation and amortization) of less than 12.5% of Consolidated Net Worth
for any fiscal year, provided that, both
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immediately before such transaction and after giving effect thereto, no
Default shall have occurred and be continuing.
SECTION 7.05. Investments and Acquisitions. (a) The Company will not,
nor will it permit any of its Subsidiaries to, make any Investments, except:
(i) extensions of trade credit made in the ordinary course of business
on customary credit terms and commission, travel and similar advances
(having a tenor not exceeding 365 days) made to its officers and employees
in the ordinary course of business;
(ii) Investments outstanding on the date hereof and listed in Schedule
7.05;
(iii) operating deposit account with banks;
(iv) Investments in cash and Permitted Investments;
(v) Investments by the Company and its Subsidiaries (other than any
Receivables Subsidiary) in the Company and its Subsidiaries or in respect
of Indebtedness or other obligations of the Company or any Subsidiary
(including, without limitation, Subsidiaries formed or organized after the
date hereof);
(vi) Investments consisting of Indebtedness permitted under Section
7.01(c) or (d) or Indebtedness related to Letters of Credit;
(vii) Hedging Agreements entered into in the ordinary course of
business to hedge or mitigate risks to which the Company or any of its
Subsidiaries is exposed in the conduct of its business or the management of
its liabilities;
(viii) Investments in Capital Stock of the Company which is held by
the Company as treasury stock and is restored to unissued status or is
eliminated from authorized shares, or options in respect thereof;
(ix) Investments constituting capital expenditures;
(x) Investments consisting of security deposits with utilities and
other like Persons, and Investments in respect of Guarantees of, or
contingent obligations with respect to, indemnification and contribution
agreements, "take or pay" or similar agreements, surety and appeal bonds,
performance bonds and other obligations of a like nature and contracts for
the purchase or use of equipment, inventory and supplies required by the
Company and its Subsidiaries, in each case made in the ordinary course of
business or in connection with other transactions permitted hereunder;
(xi) accommodation guarantees for the benefit of trade creditors of
the Company or any of its Subsidiaries in the ordinary course of business;
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(xii) Guarantees of collectibility in respect of accounts receivable
or notes receivable up to face value;
(xiii) Investments in connection with any Acquisition (subject to
compliance with the requirements of Section 7.05(b)) or any Disposition
(subject to compliance with the requirements of Section 7.04);
(xiv) Indebtedness of any Person which is the purchaser in connection
with any Disposition permitted hereunder that is issued to the Company or
any Subsidiary as consideration in whole or in part in respect of the
purchase price thereof; and
(xv) Investments in any Person (including Capital Stock or any debt
securities convertible into Capital Stock) that is not, and as a result of
such Investment does not become, a Subsidiary in an aggregate amount not
exceeding $25,000,000 (or the equivalent thereof in any other currency),
provided that such Person is engaged in a line of business permitted under
Section 7.03(b).
(b) The Company will not, nor will it permit any of its Subsidiaries
to, make any Acquisition with respect to which the Purchase Price paid by the
Company and its Subsidiaries exceeds $25,000,000 (or the equivalent thereof in
any other currency), except for any such Acquisition if (i) such Acquisition, if
the Acquired Entity is a publicly held corporation, shall have been approved by
the board of directors of such Acquired Entity, (ii) after giving effect to any
such Acquisition of Capital Stock, the Acquired Entity becomes a direct or
indirect Subsidiary of the Company; (iii) the Acquired Entity is engaged in a
line of business permitted under Section 7.03(b), or (y) otherwise acceptable to
the Required Lenders; (iv) both immediately prior to such Acquisition and after
giving effect thereto, no Default shall have occurred and be continuing; and (v)
not less than three Business Days prior to the consummation of such Acquisition,
the Company has furnished to the Administrative Agent (x) pro forma financial
statements demonstrating compliance with Section 7.09 after giving effect to
such Acquisition and (y) a certificate of the chief financial officer of the
Company certifying compliance with Section 7.05, after giving effect to such
Acquisition, and the requirements of this paragraph (b).
SECTION 7.06. Restricted Payments. The Company will not, nor will it
permit any of its Subsidiaries to, declare or make, or agree to pay or make,
directly or indirectly, any Restricted Payment; provided that (a) the Company
may declare and pay dividends with respect to its Capital Stock payable solely
in additional shares of its Capital Stock and (b) the Company may make, pay,
declare or authorize any Restricted Payment if, both immediately before and
after giving effect to such Restricted Payment, no Default shall have occurred
and be continuing. Nothing herein shall be deemed to prohibit the making of any
Restricted Payment by any Subsidiary to the Company or to any of its
shareholders.
SECTION 7.07. Transactions with Affiliates. The Company will not, nor
will it permit any of its Subsidiaries to, sell, lease or otherwise transfer any
property or assets to, or
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purchase, lease or otherwise acquire any property or assets from, or otherwise
engage in any other transactions with, any of its Affiliates, except (a)
transactions in the ordinary course of business at prices and on terms and
conditions not less favorable to the Company or such Subsidiary than could be
obtained on an arm's-length basis from unrelated third parties, (b) transactions
between or among the Company and its Subsidiaries not involving any other
Affiliate and (c) any Restricted Payment permitted by Section 7.06.
SECTION 7.08. Restrictive Agreements. The Company will not, and will
not permit any of its Subsidiaries to, directly or indirectly, enter into, incur
or permit to exist any agreement or other consensual arrangement that prohibits,
restricts or imposes any condition upon the ability of any Subsidiary to pay
dividends or other distributions with respect to any shares of its Capital Stock
or to make or repay loans or advances to the Company or any other Subsidiary or
to guarantee Indebtedness of the Company or any other Subsidiary; provided that
the foregoing shall not apply to (a) restrictions and conditions imposed by law
(including any Requirement of Law) or by this Agreement, (b) restrictions and
conditions existing on the date hereof and identified in Schedule 7.08 (and any
extension or renewal of, or any amendment or modification to, any such
restriction or condition that does not expand in any material respect the scope
thereof) and (c) customary restrictions and conditions contained in agreements
relating to the sale of a Subsidiary pending such sale, provided that such
restrictions and conditions apply only to the Subsidiary that is to be sold and
such sale is permitted hereunder.
SECTION 7.09. Certain Financial Covenants.
(a) Interest Coverage Ratio. The Company will not permit the Interest
Coverage Ratio to be less than 3.00 to 1.0 at any time.
(b) Leverage Ratio. The Company will not permit the Leverage Ratio to
be greater than 3.50:1.0 at any time.
SECTION 7.10. Sale and Leaseback Transactions. The Company will not,
nor will it permit any of its Subsidiaries to, become or remain liable in any
way, whether directly or by assignment or as a guarantor or other contingent
obligor, for the obligations of the lessee or user under any lease or contract
for the use of any real or personal property if such property was owned by the
Company or any of its Subsidiaries for more than 90 days prior to the date such
Person became liable for such obligation and has been or is to be sold or
transferred to any other Person and was, is or will be used by the Company or
any such Subsidiary for substantially the same purpose as such property was used
by the Company or such Subsidiary prior to such sale or transfer or to enter
into any Synthetic Lease, except to the extent any such transaction is permitted
under Section 7.01(i).
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ARTICLE VIII
EVENTS OF DEFAULT
If any of the following events ("Events of Default") shall occur:
(a) any Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or otherwise;
(b) any Borrower shall fail to pay any interest on any Loan or any fee
or any other amount (other than an amount referred to in clause (a) of this
Article) payable under this Agreement or under any other Loan Document,
when and as the same shall become due and payable, and such failure shall
continue unremedied for a period of five or more Business Days;
(c) any representation or warranty made or deemed made by or on behalf
of any Obligor in or in connection with this Agreement or any other Loan
Document or any amendment or modification hereof or thereof, or in any
report, certificate, financial statement or other document furnished
pursuant to or in connection with this Agreement or any other Loan Document
or any amendment or modification hereof or thereof, shall prove to have
been incorrect in any material respect when made or deemed made or
furnished;
(d) the Company shall fail to observe or perform any covenant,
condition or agreement contained in Section 6.02(a), 6.03 (with respect to
the Company's existence) or 6.08 (other than the second sentence thereof)
or in Article VII; or any Guarantor shall default in the performance of any
of its obligations contained herein; or the Company shall fail to observe
or perform any covenant, condition or agreement contained in Section 6.09
and such failure shall continue unremedied for a period of 15 or more days;
(e) any Obligor shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those
specified in clause (a), (b) or (d) of this Article) or any other Loan
Document and such failure shall continue unremedied for a period of 30 or
more days after written notice thereof from the Administrative Agent (given
at the request of any Lender) to the Company;
(f) the Company or any of its Subsidiaries (other than any Immaterial
Subsidiary) shall fail to make any payment (whether of principal or
interest and regardless of amount) in respect of any Material Indebtedness,
when and as the same shall become due and payable (after taking into
account any applicable grace period);
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables
or permits (after taking into
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account any applicable grace period) the holder or holders of any Material
Indebtedness or any trustee or agent on its or their behalf to cause any
Material Indebtedness to become due, or to require the prepayment,
repurchase, redemption or defeasance thereof, prior to its scheduled
maturity; provided that this clause (g) shall not apply to secured
Indebtedness that becomes due as a result of the voluntary sale or transfer
of the property or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of the Company or any of its Subsidiaries (other than any
Immaterial Subsidiary) or its debts, or of all or a substantial part of its
assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Company or any such Subsidiary or for all or a
substantial part of its assets, and, in any such case, such proceeding or
petition shall continue undismissed for a period of 60 or more days or an
order or decree approving or ordering any of the foregoing shall be
entered;
(i) the Company or any of its Subsidiaries (other than any Immaterial
Subsidiary) shall (i) voluntarily commence any proceeding or file any
petition seeking liquidation, reorganization or other relief under any
Federal, state or foreign bankruptcy, insolvency, receivership or similar
law now or hereafter in effect, (ii) consent to the institution of, or fail
to contest in a timely and appropriate manner, any proceeding or petition
described in clause (h) of this Article, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Company or any such Subsidiary or for all or a
substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make
a general assignment for the benefit of creditors or (vi) take any action
for the purpose of effecting any of the foregoing;
(j) the Company or any of its Subsidiaries (other than any Immaterial
Subsidiary) shall become unable, admit in writing its inability or fail
generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $20,000,000 shall be rendered against the Company or
any of its Subsidiaries or any combination thereof and the same shall
remain undischarged for a period of 30 consecutive days during which
execution shall not be effectively stayed, or any action shall be legally
taken by a judgment creditor to attach or levy upon any assets of the
Company or any of its Subsidiaries to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in liability of the
Company and its Subsidiaries in an aggregate amount exceeding $20,000,000;
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(m) a Change in Control shall occur; or
(n) the Liens created by the Security Documents shall at any time not
constitute a valid and perfected Lien on the collateral intended to be
covered thereby (to the extent perfection by filing, registration,
recordation or possession is required herein or therein) in favor of the
Collateral Agent and for the benefit of the Lenders, free and clear of all
other Liens (other than Permitted Encumbrances) or, except for expiration
in accordance with its terms, any of the Security Documents shall for
whatever reason be terminated or cease to be in full force and effect, or
the enforceability of any Loan Document shall be contested by any Obligor
party thereto;
then, and in every such event (other than an event with respect to any Obligor
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Company, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Obligors accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by each Obligor; and in case of any
event with respect to any Obligor described in clause (h) or (i) of this
Article, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Obligors accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by each Obligor.
ARTICLE IX
THE ADMINISTRATIVE AGENT
Each of the Lenders and the Issuing Lender hereby irrevocably appoints
the Administrative Agent as its agent hereunder and under the other Loan
Documents and authorizes the Administrative Agent to take such actions on its
behalf and to exercise such powers as are delegated to the Administrative Agent
by the terms hereof or thereof, together with such actions and powers as are
reasonably incidental thereto. Without limiting the foregoing, each Lender
hereby (a) acknowledges, approves and consents to the Intercreditor and
Collateral Agency Agreement and the Sharing Agreement attached as Exhibits C and
D, respectively, (b) authorizes and directs the Administrative Agent and/or the
Collateral Agent to execute and deliver amendments thereto, or replacement
agreements therefor in substantially the form of such agreements as in effect on
the date hereof (with such amendments thereto as the Administrative
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Agent may reasonably agree to in order to give effect to the purposes of the
intercreditor arrangements contemplated by the Intercreditor and Collateral
Agency Agreement and/or the Sharing Agreement), and/or any acknowledgments,
joinders, notifications or other agreements or instruments, or to take such
other steps, as the Collateral Agent shall reasonably determine, with respect
thereto in order to cause the Lenders to become subject to the terms of each of
the Sharing Agreement and the Intercreditor and Collateral Agency Agreement (and
the Lenders hereby confirm and ratify all such amendments, replacement
agreements, acknowledgments, joinders, modifications and/or other agreements or
instruments) and (c) authorizes and directs the Collateral Agent to execute and
deliver the Pledge Agreements and any amendments thereto contemplated by Section
5.01(f) or Section 6.09(b) and/or to take such other steps with respect to the
pledge of Capital Stock of any Foreign Subsidiary thereunder as the Collateral
Agent shall reasonably determine (and the Lenders hereby approve and ratify the
terms of each such Pledge Agreement).
The Person serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and
may exercise the same as though it were not the Administrative Agent, and such
Person 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 other
Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall not
be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing, (b) the Administrative Agent shall not
have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or
by the other Loan Documents that the Administrative Agent is required to
exercise in writing by the Required Lenders, and (c) except as expressly set
forth herein and in the other Loan Documents, the Administrative Agent shall not
have any duty to disclose, and shall not be liable for the failure to disclose,
any information relating to the Company or any of its Subsidiaries that is
communicated to or obtained by the bank serving as Administrative Agent or any
of its Affiliates in any capacity. The Administrative Agent shall not be liable
for any action taken or not taken by it (or directed by the Administrative Agent
to be taken by the Collateral Agent) with the consent or at the request of the
Required Lenders (or, to the extent required by this Agreement, all of the
Lenders) or in the absence of its own gross negligence or willful misconduct.
The Administrative Agent shall be deemed not to have knowledge of any Default
unless and until written notice thereof is given to the Administrative Agent by
the Company or a Lender, and the Administrative Agent shall not be responsible
for or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement or any other Loan
Document, (ii) the contents of any certificate, report or other document
delivered hereunder or thereunder or in connection herewith or therewith, (iii)
the performance or observance of any of the covenants, agreements or other terms
or conditions set forth herein or therein, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Loan Document or any
other agreement, instrument or document, or (v) the satisfaction of
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any condition set forth in Article V or elsewhere herein or therein, other than
to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for an Obligor), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent (and which may include any of its
Affiliates and, without limiting the foregoing, it is agreed that as of the date
hereof (and until such appointment may be revoked by the Administrative Agent)
X.X. Xxxxxx Europe Limited will act for the purposes of performing certain
administrative functions with respect to extensions of credit hereunder to be
made in currencies other than Dollars). The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
The Administrative Agent may resign at any time by notifying the
Lenders, the Issuing Lender and the Company. Upon any such resignation, the
Required Lenders shall have the right, in consultation with the Company, to
appoint a successor. If no successor 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 its resignation, then the
retiring Administrative Agent's resignation shall nonetheless become effective
and (1) the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder and (2) the Required Lenders shall perform the duties
of the Administrative Agent (and all payments and communications 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 agent as provided for above in this paragraph. Upon the acceptance of
its appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring (or retired) 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
paragraph). The fees payable by the Company to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Company and such successor. After the Administrative Agent's
resignation hereunder, the provisions of this Article and Section 10.03
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shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative 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 the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
Except as otherwise provided in Section 10.02(b) with respect to this
Agreement, the Administrative Agent may, with the prior consent of the Required
Lenders (but not otherwise), consent to any modification, supplement or waiver
under any of the Loan Documents, provided that, without the prior consent of
each Lender, the Administrative Agent shall not, and shall not consent to any
modification, supplement or waiver of any of the Security Documents to, except
as provided herein or in the Security Documents, release all or substantially
all of the collateral or otherwise terminate all or substantially all of the
Liens under any Security Document providing for collateral security, except that
no such consent shall be required, and the Administrative Agent is hereby
authorized, to (or to consent to, as the case may be) release any Lien covering
property that is the subject of either a disposition of property permitted
hereunder or a disposition to which the Required Lenders have consented and
provided, further, that no such consent shall be required for any amendment or
modification to any Security Document as contemplated by the last sentence of
the first paragraph of this Article.
Notwithstanding anything herein to the contrary, the Sole Lead
Arranger and Sole Bookrunner and the Co-Syndication Agents named on the cover
page of this Agreement shall not have any duties or liabilities under this
Agreement or the other Loan Documents, except in their respective capacity (if
any) as a Lender.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Notices. (a) Notices Generally. Except in the case of
notices and other communications expressly permitted to be given by telephone,
all notices and other communications provided for herein shall be in writing and
shall be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(i) if to the Company or any Subsidiary Guarantor, to it at Xxx
Xxxxxxxxxxx Xxxxx, Xxxx Xxxxxxxxxx, Xxx Xxxxxx 00000, Attention of Xxxx
Xxxxxx, Vice President and Treasurer (Telecopy No. 000-000-0000; Telephone
No. (000) 000-0000);
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(ii) if to the Administrative Agent, to JPMorgan Chase Bank, N.A.,
0000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxx 00000, Attention of Loan and
Agency Services Group, Xxxxxx Xxxxx (Telecopy No. 000-000-0000; Telephone
No. 000-000-0000) and, if such notice or other communication relates to
borrowings of, or payments or prepayments of, or the duration of Interest
Periods for, Loans denominated in a Foreign Currency, also to X.X. Xxxxxx
Europe Limited, Attention: Xxxxxxx Xxxxx (Telecopy No. 00-000-000-0000 or
00-000-000-0000; Telephone No. 00-000-000-0000);
(iii) if to the Issuing Lender, to it at 000 Xxxxx 00 Xxxx, Xxxxxxxxx,
Xxx Xxxxxx, 00000, Attention of Xxxxxxx Xxxxx (Telecopy No. 000-000-0000;
Telephone No. 000-000-0000);
(iv) if to a Lender, to it at its address (or telecopy number) set
forth in its Administrative Questionnaire.
(b) Electronic Communications. Notices and other communications to the
Lenders hereunder may be delivered or furnished by electronic communications
pursuant to procedures approved by the Administrative Agent; provided that the
foregoing shall not apply to notices pursuant to Article II unless otherwise
agreed by the Administrative Agent and the applicable Lender. The Administrative
Agent or the Company 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.
(c) Change of Address, Etc. Any party hereto may change its address or
telecopy number for notices and other communications hereunder by notice to the
other parties hereto (or, in the case of any such change by a Lender, by notice
to the Company and the Administrative Agent). All notices and other
communications given to any party hereto in accordance with the provisions of
this Agreement shall be deemed to have been given on the date of receipt.
SECTION 10.02. Waivers; Amendments.
(a) No Deemed Waivers; Remedies Cumulative. No failure or delay by the
Administrative Agent, the Issuing Lender, any Lender or any Obligor in
exercising any right or power hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the Issuing
Lender, the Lenders or any Obligor hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by any Obligor
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the
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foregoing, the making of a Loan or issuance of a Letter of Credit shall not be
construed as a waiver of any Default, regardless of whether the Administrative
Agent, any Lender or the Issuing Lender may have had notice or knowledge of such
Default at the time.
(b) Amendments. Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Company and the Required Lenders or by the Company
and the Administrative Agent with the consent of the Required Lenders; provided
that no such agreement shall
(i) increase the Commitment of any Lender without the written consent
of such Lender,
(ii) reduce the principal amount of any Loan or LC Disbursement or
reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby,
(iii) postpone the scheduled date of payment of the principal amount
of any Loan or LC Disbursement, or any interest thereon, or any fees
payable hereunder, or reduce the amount of, waive or excuse any such
payment, or postpone the scheduled date of expiration of any Commitment,
without the written consent of each Lender affected thereby,
(iv) change Section 2.08(d) or Section 2.17(c) without the consent of
each Lender affected thereby,
(v) change any of the provisions of this Section or the percentage in
the definition of the term "Required Lenders" or any other provision hereof
specifying the number or percentage of Lenders required to waive, amend or
modify any rights hereunder or make any determination or grant any consent
hereunder, without the written consent of each Lender, or
(vi) release the Company from its guarantee obligations under Article
III, release all or substantially all of the Subsidiary Guarantors from
their guarantee obligations under Article III or release all or
substantially all of the collateral, in each case without the written
consent of each Lender;
provided further that (x) no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent, the Issuing Lender or
the Swingline Lender hereunder without the prior written consent of the
Administrative Agent, the Issuing Lender or the Swingline Lender, as the case
may be, and (y) any modification or supplement of Article III shall require the
consent of each Subsidiary Guarantor.
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SECTION 10.03. Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Company shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of this
Agreement and the other Loan Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by the Issuing Lender in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder, (iii) all out-of-pocket expenses incurred by the
Administrative Agent, the Issuing Lender or any Lender, including the fees,
charges and disbursements of any counsel for the Administrative Agent, the
Issuing Lender or any Lender, in connection with the enforcement or protection
of its rights in connection with this Agreement and the other Loan Documents,
including its rights under this Section, or in connection with the Loans made or
Letters of Credit issued hereunder, including in connection with any workout,
restructuring or negotiations in respect thereof and (iv) all reasonable costs,
expenses, taxes, assessments and other charges incurred in connection with any
filing, registration, recording or perfection of any security interest
contemplated by any Security Document or any other document referred to therein.
(b) Indemnification by the Company. The Company shall indemnify the
Administrative Agent, the Issuing Lender and each Lender, and each Related Party
of any of the foregoing Persons (each such Person being called an "Indemnitee"),
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the fees, charges and
disbursements of any counsel for any Indemnitee, incurred by or asserted against
any Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement or any agreement or instrument
contemplated hereby, the performance by the parties hereto of their respective
obligations hereunder or the consummation of the Transactions or any other
transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use
of the proceeds therefrom (including any refusal by the Issuing Lender to honor
a demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such Letter
of Credit) or (iii) any actual or prospective claim, litigation, investigation
or proceeding relating to any of the foregoing, whether based on contract, tort
or any other theory and regardless of whether any Indemnitee is a party thereto;
provided that (x) such indemnity shall not, as to any Indemnitee, be available
to the extent that such losses, claims, damages, liabilities or related expenses
are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee and (y) such indemnity shall not apply to Taxes, which shall
governed exclusively by Section 2.16.
(c) Reimbursement by Lenders. To the extent that the Company fails to
pay any amount required to be paid by it to the Administrative Agent, the
Issuing Lender or the Swingline Lender under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Administrative Agent, the
Issuing Lender or the Swingline Lender, as the case may be,
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such Lender's Applicable Percentage (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount; provided that the unreimbursed expense or indemnified loss, claim,
damage, liability or related expense, as the case may be, was incurred by or
asserted against the Administrative Agent, the Issuing Lender or the Swingline
Lender in its capacity as such.
(d) Waiver of Consequential Damages, Etc. To the extent permitted by
applicable law, no Obligor shall assert, and each Obligor hereby waives, any
claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement or any
agreement or instrument contemplated hereby, the Transactions, any Loan or
Letter of Credit or the use of the proceeds thereof.
(e) Payments. All amounts due under this Section shall be payable
promptly after written demand therefor.
SECTION 10.04. Successors and Assigns.
(a) Assignments Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby, except that no Obligor may assign or
otherwise transfer any of its rights or obligations hereunder without the prior
written consent of each Lender (and any attempted assignment or transfer by any
Obligor without such consent shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby
and, to the extent expressly contemplated hereby, the Related Parties of each of
the Administrative Agent, the Issuing Lender and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may assign to one or more
assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at the time owing to
it) with the prior written consent (such consent in each case not to be
unreasonably withheld) of (x) the Company, provided that no consent of the
Company shall be required (i) for an assignment to a Lender, an Affiliate of a
Lender or an Approved Fund or (ii) if an Event of Default under clause (a), (b),
(h) or (i) of Article VIII has occurred and is continuing, for an assignment to
any other Person and (y) the Administrative Agent, the Issuing Lender and the
Swingline Lender, provided that assignments shall be subject to the following
additional conditions:
(A) except in the case of an assignment to a Lender or a Lender
Affiliate or an assignment of the entire remaining amount of the assigning
Lender's Commitment, the amount of the Commitment of the assigning Lender
subject to each such assignment (determined as of the date the Assignment
and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 unless each of the
Company and the Administrative Agent otherwise consent (provided
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that no such consent of the Company shall be required if an Event of
Default under clause (a), (b), (h) or (i) of Article VIII has occurred and
is continuing),
(B) 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,
(C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee of $3,500,
(D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire; and
(E) so long as any Borrower is organized under the laws of the
Netherlands, in the case of any assignment to an Affiliate of a Lender or
an Approved Fund, such assignee shall be capable of making the
representation contemplated in Section 10.18 (and the relevant assignee
Lender and such assignee agrees to provide reasonable prior notice of such
assignment to such Borrower, and provide such information to such Borrower
relating to such representation as such Borrower shall reasonably request).
Upon acceptance and recording pursuant to paragraph (d) of this Section, from
and after the effective date specified in each Assignment and Acceptance, the
assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, 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 Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance 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 2.14, 2.15, 2.16 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 (e) of this Section. The Company shall
not be liable for any costs or expenses of any Lender in effecting any
assignment under this Section.
Notwithstanding anything to the contrary contained herein, any Lender
(a "Granting Lender") may grant to a special purpose vehicle (an "SPV") of such
Granting Lender, identified as such in writing from time to time by the Granting
Lender to the Administrative Agent and the Company, the option to provide to any
Borrower all or any part of any Loan that such Granting Lender would otherwise
be obligated to make to the Company pursuant to Section 2.01, provided that (i)
nothing herein shall constitute a commitment by any SPV to make any Loan, (ii)
if an SPV elects not to exercise such option or otherwise fails to provide all
or any part of such Loan, the Granting Lender shall be obligated to make such
Loan pursuant to the terms hereof and (iii) the Company may bring any proceeding
against either the Granting Lender or the SPV in order to enforce any rights of
the Borrower under any of the Loan Documents. The making of a Loan by an SPV
hereunder shall utilize the Commitment of the Granting Lender
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to the same extent, and as if, such Loan were made by the Granting Lender. Each
party hereto hereby agrees that no SPV shall be liable for any payment under
this Agreement for which a Lender would otherwise be liable, for so long as, and
to the extent, the related Granting Lender makes such payment. In furtherance of
the foregoing, each party hereto hereby agrees (which agreement shall survive
the termination of this Agreement) that, prior to the date that is one year and
one day after the payment in full of all outstanding commercial paper or other
senior indebtedness of any SPV, it will not institute against, or join any other
Person in instituting against, such SPV any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or similar proceedings under
the laws of the United States or any State thereof arising out of any claim
against such SPV under this Agreement. In addition, notwithstanding anything to
the contrary contained in this Section, any SPV may with notice to, but without
the prior written consent of, the Company or the Administrative Agent and
without paying any processing fee therefor, assign all or a portion of its
interests in any Loans to its Granting Lender or to any financial institutions
(consented to by the Company and the Administrative Agent, which consent, in
each case, shall not be unreasonably withheld) providing liquidity and/or credit
support (if any) with respect to commercial paper issued by such SPV to fund
such Loans and such SPV may disclose, on a confidential basis, confidential
information with respect to the Company and its Subsidiaries to any rating
agency, commercial paper dealer or provider of a surety, guarantee or credit
liquidity enhancement to such SPV. This paragraph may not be amended without the
consent of any SPV at the time holding Loans under this Agreement.
(c) Maintenance of Register by the Administrative Agent. The
Administrative Agent, acting for this purpose as an agent of the Company, shall
maintain at one of its offices in New York City a copy of each Assignment and
Acceptance delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitment of, and principal amount of the
Loans and LC Disbursements owing to, each Lender pursuant to the terms hereof
from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrowers, the Administrative Agent, the Issuing Lender and
the Lenders shall treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrowers, the Issuing Lender and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(d) Effectiveness of Assignments. Upon its receipt of a duly completed
Assignment and Acceptance executed by an assigning Lender and an assignee, the
assignee's completed Administrative Questionnaire (unless the assignee shall
already be a Lender hereunder), the processing and recordation fee referred to
in paragraph (b) of this Section and any written consent to such assignment
required by paragraph (b) of this Section, the Administrative Agent shall accept
such Assignment and Acceptance and record the information contained therein in
the Register. No assignment shall be effective for purposes of this Agreement
unless it has been recorded in the Register as provided in this paragraph.
(e) Participations. Any Lender may, without the consent of the
Company, the Administrative Agent, the Issuing Lender or the Swingline Lender,
sell participations to one or more banks or other entities (a "Participant") in
all or a portion of such Lender's rights and
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obligations under this Agreement and the other Loan Documents (including all or
a portion of its Commitment and the Loans owing to it); provided that (i) such
Lender's obligations under this Agreement and the other Loan Documents shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) the Borrowers,
the Administrative Agent, the Issuing Lender and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and the other Loan
Documents. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and the other Loan Documents and to approve any
amendment, modification or waiver of any provision of this Agreement or any
other Loan Document; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in the first proviso to Section
10.02(b) that affects such Participant. Subject to paragraph (f) of this
Section, the Borrowers agree that each Participant shall be entitled to the
benefits of Sections 2.14, 2.15 and 2.16 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section. The Borrowers shall not be liable for any costs or expenses of any
Lender in effecting any participation under this Section.
(f) Limitations on Rights of Participants. A Participant shall not be
entitled to receive any greater payment under Section 2.14 or 2.16 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Company's prior written consent. A Participant
shall not be entitled to the benefits of Section 2.16 unless the Company is
notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrowers, to comply with Section 2.16(e) and (f)
as though it were a Lender.
(g) Certain Pledges. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement to
secure obligations of such Lender, including any such pledge or assignment to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such assignee for such Lender as a party hereto.
(h) No Assignments to the Obligors or Affiliates. Anything in this
Section to the contrary notwithstanding, no Lender may assign or participate any
interest in any Loan or LC Exposure held by it hereunder to the Company or any
of its Affiliates or Subsidiaries without the prior consent of each Lender.
SECTION 10.05. Survival. All covenants, agreements, representations
and warranties made by the Obligors herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any Loans
and issuance of any Letters of Credit, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Lender or any Lender may have had notice or
knowledge of any Default or incorrect
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representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid or any Letter of Credit is outstanding and
so long as the Commitments have not expired or terminated. The provisions of
Sections 2.14, 2.15, 2.16, 3.03, 10.03, 10.11 and 10.13 and Article IX shall
survive and remain in full force and effect regardless of the consummation of
the transactions contemplated hereby, the repayment of the Loans, the expiration
or termination of the Letters of Credit and the Commitments or the termination
of this Agreement or any provision hereof.
SECTION 10.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement and
any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract between and among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 5.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page to this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 10.07. Severability. Any provision of this Agreement held to
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 10.08. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or the account of any Obligor against any of and all the
obligations of any Obligor now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured. The
rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have. Each
Lender agrees to notify the Company and the Administrative Agent as promptly as
practicable after any such set-off and application made by such Lender, provided
that the failure to give such notice shall not affect the validity of such
set-off and application.
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SECTION 10.09. Governing Law; Jurisdiction; Etc.
(a) Governing Law. This Agreement shall be construed in accordance
with and governed by the law of the State of New York.
(b) Submission to Jurisdiction. Each Obligor hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement, or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent, the Issuing Lender or any Lender may otherwise have to
bring any action or proceeding relating to this Agreement against any Obligor or
its properties in the courts of any jurisdiction.
(c) Waiver of Venue. Each Obligor hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement in
any court referred to in paragraph (b) of this Section. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(d) Appointment of Agent for Service of Process. Each Subsidiary
Borrower irrevocably designates and appoints the Company as its authorized
agent, to accept and acknowledge on its behalf, service of any and all process
which may be served in any suit, action or proceeding of the nature referred to
in Section 10.09(b) in any federal or New York State court sitting in New York
City. The Company hereby agrees to accept such appointment by each Subsidiary
Borrower party hereto from time to time and to give such Subsidiary Borrower
prompt notice upon receipt of, and to forward promptly to such Subsidiary
Borrower, all papers served upon the Company pursuant to such appointment. Said
designation and appointment shall be irrevocable by each such Subsidiary
Borrower until all Loans, all reimbursement obligations, interest thereon and
all other amounts payable by such Subsidiary Borrower hereunder and under the
other Loan Documents shall have been paid in full in accordance with the
provisions hereof and thereof and such Subsidiary Borrower shall have been
terminated as a Borrower hereunder pursuant to Section 2.19. If the Company
shall cease so to act as such agent, each such Subsidiary Borrower covenants and
agrees to notify the Administrative Agent promptly thereof and to designate
irrevocably and appoint without delay another such agent satisfactory to the
Administrative Agent and to deliver promptly to the Administrative Agent
evidence in writing of such other agent's acceptance of such appointment.
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(e) Service of Process. Each party to this Agreement irrevocably
consents to service of process in the manner provided for notices in Section
10.01. Nothing in this Agreement will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 10.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.11. Judgment Currency. This is an international loan
transaction in which the specification of Dollars or any Foreign Currency, as
the case may be (the "Specified Currency"), and payment in New York City or the
country of the Specified Currency, as the case may be (the "Specified Place"),
is of the essence, and the Specified Currency shall be the currency of account
in all events relating to Loans denominated in the Specified Currency. The
payment obligations of each Obligor under this Agreement shall not be discharged
or satisfied by an amount paid in another currency or in another place, whether
pursuant to a judgment or otherwise, to the extent that the amount so paid on
conversion to the Specified Currency and transfer to the Specified Place under
normal banking procedures does not yield the amount of the Specified Currency at
the Specified Place due hereunder. If for the purpose of obtaining judgment in
any court it is necessary to convert a sum due hereunder in the Specified
Currency into another currency (the "Second Currency"), the rate of exchange
that shall be applied shall be the rate at which in accordance with normal
banking procedures the Administrative Agent could purchase the Specified
Currency with the Second Currency on the Business Day next preceding the day on
which such judgment is rendered. The obligation of each Obligor in respect of
any such sum due from it to the Administrative Agent or any Lender hereunder or
under any other Loan Document (in this Section called an "Entitled Person")
shall, notwithstanding the rate of exchange actually applied in rendering such
judgment, be discharged only to the extent that on the Business Day following
receipt by such Entitled Person of any sum adjudged to be due hereunder in the
Second Currency such Entitled Person may in accordance with normal banking
procedures purchase and transfer to the Specified Place the Specified Currency
with the amount of the Second Currency so adjudged to be due; and each Obligor
hereby, as a separate obligation and notwithstanding any such judgment, agrees
to indemnify such Entitled Person against, and to pay such Entitled Person on
demand, in the Specified Currency, the amount (if any) by which the sum
originally due to such Entitled Person in the Specified Currency hereunder
exceeds the amount of the Specified Currency so purchased and transferred.
Credit Agreement
-92-
SECTION 10.12. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 10.13. Treatment of Certain Information; Confidentiality.
(a) Treatment of Certain Information. The Borrowers acknowledge that
from time to time the Administrative Agent or any Lender, in connection with the
performance of its duties or the exercise of its rights relating to this
Agreement, may employ the services of one or more subsidiaries or affiliates of
the Administrative Agent or such Lender, as the case may be, and the Company
hereby authorizes each Lender to share any information delivered to such Lender
by the Company and its Subsidiaries pursuant to this Agreement, or in connection
with the decision of such Lender to enter into this Agreement, to any such
subsidiary or affiliate, it being understood that any such subsidiary or
affiliate receiving such information shall be bound by the provisions of
paragraph (b) of this Section as if it were a Lender hereunder. Such
authorization shall survive the repayment of the Loans, the expiration or
termination of the Letters of Credit and the Commitments or the termination of
this Agreement or any provision hereof.
(b) Confidentiality. Each of the Administrative Agent, the Issuing
Lender and the Lenders agrees to maintain the confidentiality of the Information
(as defined below), except that Information may be disclosed (i) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors reasonably necessary in connection with this
Agreement (it being understood that the Persons to whom such disclosure is made
will be informed of the confidential nature of such Information and will be
provided to such Person upon the understanding that such Information will be
kept confidential), (ii) to the extent requested by any regulatory authority,
(iii) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (iv) to any other party to this Agreement,
(v) in connection with the exercise of any remedies hereunder or under any other
Loan Document or any suit, action or proceeding relating to this Agreement or
any other Loan Document or the enforcement of rights hereunder or thereunder,
(vi) subject to an agreement in writing containing provisions substantially the
same as those of this paragraph and for the benefit of the Company, to (a) any
assignee of or Participant in, or any prospective assignee of or Participant in,
any of its rights or obligations under this Agreement or (b) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction
relating to the Borrower and their respective obligations, (vii) with the
consent of the Company or (viii) to the extent such Information (A) becomes
publicly available other than as a result of a breach of this paragraph or (B)
becomes available to the Administrative Agent, the Issuing Lender or any Lender
on a nonconfidential basis from a source other than an Obligor not known by such
Person to be in breach of a confidentiality agreement; provided that each Lender
shall, unless prohibited by any Requirement of Law, use reasonable efforts to
notify the Company of any request or requirement for disclosure of Information
under clause (ii) or (iii) above prior to such disclosure. For the purposes of
this paragraph, "Information" means all information received from or on behalf
of any Obligor relating to the Company or any of its Subsidiaries or any of
their respective businesses, other than any such information that is available
to the Administrative
Credit Agreement
-93-
Agent, the Issuing Lender or any Lender on a nonconfidential basis prior to
disclosure by or on behalf of an Obligor. 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.
SECTION 10.14. USA PATRIOT Act. Each Lender hereby notifies the
Borrowers that pursuant to the requirements of the USA PATRIOT Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001)), such Lender may be required
to obtain, verify and record information that identifies the Borrowers, which
information includes the name and address of the Borrowers and other information
that will allow such Lender to identify the Borrowers in accordance with said
Act.
SECTION 10.15. Waiver of Immunity. To the extent that any Subsidiary
Borrower that is a Foreign Subsidiary may be or become entitled to claim for
itself or its property any immunity on the ground of sovereignty or the like
from suit, court jurisdiction, attachment prior to judgment, attachment in aid
of execution of a judgment or execution of a judgment, and to the extent that in
any such jurisdiction there may be attributed such an immunity (whether or not
claimed), such Subsidiary Borrower hereby irrevocably agrees not to claim and
hereby irrevocably waives such immunity with respect to its obligations under
this Agreement.
SECTION 10.16. Appointment of Company as Agent. Each Subsidiary
Borrower party hereto as of the Effective Date, by its signature below, and each
Subsidiary Borrower designated after the Effective Date as a "Borrower" pursuant
to Section 2.19, by its acknowledgment to the Subsidiary Borrower Designation
Letter relating to such Subsidiary Borrower, as applicable:
(a) appoints and authorizes the Company for the purposes of (i)
signing documents deliverable by or on behalf of such Subsidiary Borrower
hereunder or under any other Loan Document, (ii) providing notices to or
making requests of the Administrative Agent, the Issuing Lender or any
Lender on behalf of such Subsidiary Borrower, (iii) receiving notices and
documents from the Administrative Agent, any Issuing Lender or any Lender
on behalf of such Subsidiary Borrower, and (iv) taking any other action on
behalf such Subsidiary Borrower hereunder or under any other Loan Document,
in each case to the extent specifically provided for hereunder or
thereunder, and such Subsidiary Borrower agrees to be irrevocably bound by
all such actions being taken on behalf of such Subsidiary Borrower by the
Company and all such notices received by the Company on behalf of such
Subsidiary Borrower; provided that another Person may be appointed to act
in substitution for the Company with the power and authority granted
thereto by such Subsidiary Borrower under this clause (a) so long as such
Person shall have been certified as such in a single writing executed by
such Subsidiary Borrower and delivered to the Administrative Agent;
Credit Agreement
-94-
(b) authorizes the Administrative Agent, the Issuing Lender and each
Lender to treat (i) each document signed by, each notice given or received
by, each document delivered or received by and each request made by the
Company on its behalf and (ii) each other action which specifically
provides herein or therein that the Company acts on behalf, or at the
direction, of such Subsidiary Borrower as if such Subsidiary Borrower (and
not the Company) had in fact signed such document, given or received such
notice, delivered or received such document, made such request or taken
such action; and
(c) acknowledges that the Administrative Agent, the Issuing Lender and
each Lender are relying upon the appointments and authorizations set forth
in this Section in connection with the making of their Commitments and
credit extensions hereunder.
In the event the Administrative Agent, the Issuing Lender or any Lender
reasonably believes that it has received a conflicting notice or instruction
from the Company and/or its designees, the Administrative Agent, the Issuing
Lender or such Lender may refrain from action upon such notice or instruction
and shall promptly request the Company for clarification regarding such notice
or instruction.
SECTION 10.17. Termination of Commitments under Existing Credit
Agreement. Each of the signatories hereto that is also a party to the Existing
Credit Agreement hereby agrees that, as of the Effective Date, all of the
commitments to extend credit under the Existing Credit Agreement will be
terminated automatically. This Agreement constitutes notice thereof and pursuant
hereto the requirement contained in Section 2.08(c) of the Existing Credit
Agreement that the requirement for prior notice of such termination of such
commitments be given to the administrative agent thereunder is waived.
SECTION 10.18. Lender Representation - Professional Market Party. Each
Lender represents and warrants to each Borrower incorporated or resident in The
Netherlands on the date of this Agreement that it is a Professional Market Party
and each new Lender or other entity to whom a Lender assigns or transfers any or
all of its rights and obligations under this Agreement (if on the date such
assignment or transfer becomes effective it is a requirement under Dutch law
that such new Lender is a Professional Market Party) will be deemed to have
represented and warranted to each Borrower incorporated or resident in The
Netherlands that on such date it is a Professional Market Party. For purposes of
this Section, (i) "Exemption Regulation" means the Dutch exemption regulation
dated 26 June 2002 (Vrijstellingsregeling Wtk 1992) (as amended from time to
time) as promulgated in connection with the WTK; (ii) "Professional Market
Party" means a professional market party (professionele marktpartij) within the
meaning of the Exemption Regulation; and (iii) "WTK" means the Dutch Act on the
Supervision of Credit Institutions 1992 (Wet toezicht kredietwezen 1992) (as
amended from time to time).
Credit Agreement
-95-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
CAMBREX CORPORATION
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Credit Agreement
-96-
SUBSIDIARY BORROWERS
CAMBREX NETHERLANDS B.V.
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Credit Agreement
-97-
SUBSIDIARY GUARANTORS
CAMBREX BIO SCIENCE BALTIMORE, INC.
CAMBREX BIO SCIENCE HOPKINTON, INC.
CAMBREX BIO SCIENCE ROCKLAND, INC.
CAMBREX BIO SCIENCE WALKERSVILLE, INC.
CAMBREX XXXXXXX CITY, INC.
CAMBREX NORTH BRUNSWICK, INC.
CBM TECHNOLOGIES, INC.
By
-------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
Credit Agreement
-98-
BIOWHITTAKER TECHNOLOGIES, INC.
By
-------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
Credit Agreement
-99-
LENDERS
JPMORGAN CHASE BANK, N.A.
individually, as Swingline Lender and
as Administrative Agent
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Credit Agreement
-100-
CITIBANK, N.A.
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Credit Agreement
WACHOVIA BANK, N.A.
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Credit Agreement
ALLIED IRISH BANKS PLC
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Credit Agreement
BANK OF AMERICA, N.A.
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Credit Agreement
KEYBANK NATIONAL ASSOCIATION
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Credit Agreement
THE BANK OF NEW YORK
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Credit Agreement
SVENSKA HANDELSBANKEN AB (PUBL)
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Credit Agreement
SANPAOLO IMI S.p.A.
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
SCHEDULE 1.01
Commitments
Name of Lender Commitment ($)
-------------- --------------
JPMorgan Chase Bank, N.A. $ 65,000,000
Citibank, N.A. 45,000,000
Wachovia Bank, N.A. 45,000,000
Allied Irish Banks plc 25,000,000
Bank of America, N.A. 25,000,000
KeyBank National Association 25,000,000
The Bank of New York 25,000,000
Svenska Handelsbanken AB (Publ) 12,500,000
SANPAOLO IMI S.p.A. 10,000,000
TOTAL $277,500,000
Schedule 1.01 to Credit Agreement
SCHEDULE 2.05(l)
Existing Letters of Credit
See Schedule 7.01 under "Other Indebtedness (Domestic)" for Standby Letter of
Credit.
Schedule 2.05(l) to Credit Agreement
SCHEDULE 4.06(a)
Litigation
See the Litigation and Other Matters section of the Contingencies footnote in
the Cambrex Corporation Annual Report on Form 10-K for year ending December 31,
2005 and the Cambrex Corporation Quarterly Report for the period ending June 30,
2005.
Additionally, in September 2005, the Company received a request for indemnity
from the Purchasers of the Xxxxxxxxxx Chemicals business (Purchasers) related to
an arbitration claim filed by a Xxxxxxxxxx customer (Customer). The arbitration
claim arises from a claimed breach of a Supply Agreement that was assigned to
and assumed by the Purchasers pursuant to the Xxxxxxxxxx Chemicals Purchase
Agreement. Thereafter, we were also served with an arbitration claim by the
customer related to the same matter. In the arbitration claim, Xxxxxxxxxx'x
customer claims $30,000,000 in damages arising from Xxxxxxxxxx'x breach of the
Supply Agreement. The Purchasers claim that the September notice amends the
earlier claims that they filed in March and April 2005 and that the customer's
claimed breach of the Supply Agreement should be treated as part of a breach of
a representation, warranty or covenant set forth in the earlier notices. Since
the Supply Agreement was assigned to and assumed by the Purchasers, we believe
we are not a proper party to this matter and are working with the customer to be
dismissed from the customer's arbitration claim and will reject the Purchasers'
claim in its entirety. Management currently believes that the claim is without
merit and will vigorously defend against the claim. As such, the Company has no
reserves related to this matter.
Schedule 4.06(a) to Credit Agreement
SCHEDULE 4.13
Subsidiaries
The following is a list of subsidiaries of Cambrex Corporation.
Nature of
Person holding ownership ownership Percent of
Name of Subsidiary Jurisdiction interests interests ownership
------------------ --------------- ------------------------- --------- ------------------
Cambrex Corporation Delaware -- -- --
Cambrex Bio Science Baltimore, Inc. Delaware Cambrex Corporation Direct 100%
Cambrex Xxxxxxx City, Inc. Iowa Cambrex Corporation Direct 100%
Cambrex Bio Science Hopkinton, Inc. Delaware Cambrex Bio Science Direct 100%
Baltimore, Inc.
Cambrex North Brunswick, Inc. Delaware Cambrex Bio Science Direct 100%
Walkersville, Inc.
Cambrex Bio Science Rockland, Inc. Delaware Cambrex Corporation Direct 100%
Cambrex Bio Science Walkersville, Inc. Delaware Cambrex Corporation Direct 100%
Cambrex International, Inc. New Jersey Cambrex Corporation Direct 100%
CasChem, Inc. Delaware Xxxxxxxxxx Chemicals, Direct 100%
Inc.
CBM Intellectual Properties, Inc. Nevada Cambrex Corporation Direct 100%
CBM Technologies, Inc. Nevada Cambrex Corporation Direct 100%
Cosan Chemical Corporation New Jersey Xxxxxxxxxx Chemicals, Direct 100%
Inc.
The Xxxxxxxx Chemical Co., Inc. Delaware Cambrex Corporation Direct 100%
Nepera, Inc. New York Xxxxxxxxxx Chemicals, Direct 100%
Inc.
Nepcam, Inc. New York Nepera, Inc. Direct 100%
Nordic Synthesis, Inc. Delaware Cambrex Corporation Direct 100%
Xxxxxxxxxx Chemicals, Inc. Delaware Cambrex Corporation Direct 100%
Zeeland Chemicals, Inc. Michigan Xxxxxxxxxx Chemicals, Direct 100%
Inc.
Schedule 4.13 to Credit Agreement
Nature of
Person holding ownership ownership Percent of
Name of Subsidiary Jurisdiction interests interests ownership
------------------ --------------- ------------------------- --------- ------------------
Cambrex Absorption Systems, Inc. Delaware Cambrex Corporation Direct 100%
BioWhittaker Holdings, Inc. Delaware Cambrex Bio Science Direct 100%
Walkersville, Inc.
BioWhittaker Technologies, Inc. Delaware Cambrex Bio Science Direct 100%
Walkersville, Inc.
Cambrex Bahamas, Inc. Bahamas Cambrex Corporation Direct 100%
Cambrex Limited U.K. Cambrex Bahamas, Inc. Direct 100%
Cambrex (UK & Eire) Limited U.K. Cambrex Limited Direct 100%
CasChem Limited U.K. Cambrex Limited Direct 100%
Cosan Limited U.K. Cambrex Limited Direct 100%
Dutyfocus Limited U.K. Cambrex Limited Direct 100%
Nepera Limited U.K. Cambrex Limited Direct 100%
Cambrex Holdings Limited U.K. Cambrex Limited Direct 100%
Cambrex Bio Science Wokingham Limited U.K. Cambrex Limited Direct 100%
LumiTech (UK) Limited U.K. Cambrex Bio Science Direct 100%
Walkersville, Inc.
Cambrex Bio Science Nottingham Limited U.K. LumiTech (UK) Limited Direct 100%
CBM Denmark I/S Denmark Partnership - Cambrex Direct 99% (C.I.)
(C.I.) Ltd and Cambrex and 1% (Jersey)
(Jersey) Ltd.
Cambrex Bio Science Copenhagen, ApS Denmark Cambrex Bahamas, Inc. Direct 100%
Cambrex OCB Limited Mauritius Cambrex Bahamas, Inc. / Direct 80% /
Cambrex (Jersey) Ltd. 20%
Cambrex Chemicals Private Limited India Cambrex OCB Limited Direct 100%
Schedule 4.13 to Credit Agreement
Nature of
Person holding ownership ownership Percent of
Name of Subsidiary Jurisdiction interests interests ownership
------------------ --------------- ------------------------- --------- ------------------
Cambrex (Jersey) Limited Channel Cambrex Bahamas, Inc. Direct 100%
Islands, U.K.
Cambrex (C.I.) Limited Channel Cambrex (Jersey) Ltd. Direct 100%
Islands, U.K.
BioWhittaker USVI, Inc. US Virgin Cambrex Bio Science Direct 100%
Islands Walkersville
Nepera Foreign Sales Corporation US Virgin Nepera, Inc. Direct 100%
Islands
Cambrex AB Sweden Cambrex Netherlands B.V. Direct 100%
Cambrex Karlskoga International AB Sweden Cambrex AB Direct 100%
Cambrex Karlskoga AB Sweden Cambrex Karlskoga Direct 100%
International AB
Nordic Synthesis AB Sweden Cambrex Karlskoga Direct 100%
International AB
Cambrex GmbH Germany Cambrex Netherlands B.V. Direct 100%
Cambrex B.V. The Netherlands Cambrex Netherlands B.V. Direct 100%
Cambrex Netherlands B.V. The Netherlands Cambrex Holdings Ltd. Direct 100%
Cambrex Profarmaco Milano, S.r.l. Italy Cambrex Netherlands B.V. Direct 95% (Nether-lands)
and Cambrex BV and 5% (BV)
Cambrex Bio Science Milano S.r.l. Italy Cambrex Netherlands B.V. Direct 95% (Nether-lands)
and Cambrex BV and 5% (BV)
Cambrex Profarmaco Research S.r.l. Italy Cambrex Profarmaco Milano Direct 100%
S.r.l.
Cambrex Bio Science Verviers SPRL Belgium Cambrex Netherlands B.V. Direct 99% (Nether-lands)
and Cambrex BV and 1% (BV)
Schedule 4.13 to Credit Agreement
Nature of
Person holding ownership ownership Percent of
Name of Subsidiary Jurisdiction interests interests ownership
------------------ --------------- ------------------------- --------- ------------------
Cambrex France SARL France Cambrex Netherlands B.V. Direct 99% (Nether-lands)
and Cambrex BV and 1% (BV)
Cambrex Bio Science Paris SARL France Cambrex France SARL and Direct 99% (France)
Cambrex BV and 1% (BV)
Cambrex Bio Science Clermont Ferrand France Cambarex France SARL Direct 100%
SAS
Cambrex Profarmaco Xxxxxx NV Belgium Cambrex AB Direct 100%
Cambrex Profarmaco Cork Limited Ireland Cambrex AB Direct 100%
Rumpus Investments Ireland Cambrex Bahamas, Inc. Direct 100%
Russinsky Limited Ireland Cambrex Profarmaco Cork Direct 80% (Cork) and
Ltd., and 20% (Shankore)
Shankore
Irotec Laboratories Sales Limited Ireland Cambrex Profarmaco Cork Direct 100%
Ltd.
Lauteral Limited Ireland Cambrex Profarmaco Cork Direct 100%
Ltd.
Cambrex Bio Ciencia Brasil Ltda Brazil Cambrex Bio Science Direct 99%
Walkersville, and and
Cambrex Bio Science 1%
Rockland
Genolife do Basil Brazil Cambrex Bio Science Direct 100%
Clermont Ferrand SAS
Cambrex Bio Science Australia Pty Ltd Australia Cambrex Bio Science Direct 100%
Walkersville, Inc.
Cambrex Iberia Products S.L. Spain Cambrex Netherlands B.V. Direct 100%
Cambrex Hong Kong Limited Hong Kong Cambrex Corporation/Luke Direct 99% /
X. Xxxxxx 1%
Schedule 4.13 to Credit Agreement
SCHEDULE 7.01
Indebtedness
AMOUNT
ENTITY TYPE OUTSTANDING ($)
------ ---- ---------------
Cambrex Profarmaco Milano S.r.l. Export Financing ($10 MM Euro available) 161,995
Cambrex Profarmaco Milano S.r.l. Export Financing ($3.5 MM eEuro available) 106,443
Cambrex Bio Science Milano Export Financing 0
OVERDRAFT FACILITY
Cambrex Profarmaco Cork Ltd. Overdraft Facility ($864,934 available) 0
Xxxxxxx Xxxxxxxxx XX Overdraft Facility ($708,958 available) 0
Cambrex Bio Science Xxxxxx Overdraft Facility ($1,00,000 available) 4,323
DEBENTURES
Cambrex Cork 73,067
GUARANTEES
Cambrex Karlskoga AB Cover Note with Swedish Authority for Customs
Duty 77,186
Cambrex Profarmaco Cork Ltd. VAT Guarantee 163,803
Cambrex Profarmaco Cork Ltd. Cover Note with Irish Government for Customs
Duty 120,090
LEASES
Cambrex Bio Science Baltimore, Inc. Capital Lease - Building 6,389,389
OTHER INDEBTEDNESS (DOMESTIC)
Cambrex Corporation Standby Letter of Credit 215,000
SURETY BONDS
COMPANY OBLIGEE AMOUNT ($)
------- ------- ----------
Cambrex Karlskoga AB FPG - Insurance company which provides credit
insurance for 205,180
Schedule 7.01 to Credit Agreement
companies' pension commitments.
Cambrex Xxxxxxx City, Inc. U.S. Customs Service 50,000
Cambrex Corporation Missouri Dept. of Revenue 5,000
Schedule 7.01 to Credit Agreement
SCHEDULE 7.02
Liens
Liens created by capital leases referred to in Schedule 7.01
Schedule 7.02 to Credit Agreement
SCHEDULE 7.05
Investments*
ENTITY AMOUNT ($)
------ ----------
PRC Ticinum Lab S.r.l. 30,230
Tercica 173,800
Ortec 84,034
ABC Labs 41,667
-------
TOTAL 329,731
=======
* Representing 50% or less of outstanding equity ownership
Schedule 7.05 to Credit Agreement
SCHEDULE 7.08
Restrictive Agreements
None.
Schedule 7.08 to Credit Agreement
EXHIBIT A
[Form of Assignment and Acceptance]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of October 7, 2005
(as amended and in effect on the date hereof, the "Credit Agreement"), between
Cambrex Corporation, the Subsidiary Borrowers party thereto, the Subsidiary
Guarantors party thereto, the Lenders party thereto and JPMorgan Chase Bank,
N.A., as Administrative Agent for the Lenders. Terms defined in the Credit
Agreement are used herein with the same meanings.
The Assignor named below hereby sells and assigns, without recourse,
to the Assignee named below, and the Assignee hereby purchases and assumes,
without recourse, from the Assignor, effective as of the Assignment Date set
forth below, the interests set forth below (the "Assigned Interest") in the
Assignor's rights and obligations under the Credit Agreement, including the
interests set forth below in the Commitment of the Assignor on the Assignment
Date and Syndicated Loans owing to the Assignor which are outstanding on the
Assignment Date, together with unpaid interest accrued on the assigned Loans to
the Assignment Date, the participations in Letters of Credit, LC Disbursements
and Swingline Loans held by the Assignor on the Assignment Date, and the amount,
if any, set forth below of the fees accrued to the Assignment Date for account
of the Assignor. The Assignee hereby acknowledges receipt of a copy of the
Credit Agreement. From and after the Assignment Date (i) the Assignee shall be a
party to and be bound by the provisions of the Credit Agreement and, to the
extent of the interests assigned by this Assignment and Acceptance, have the
rights and obligations of a Lender thereunder and (ii) the Assignor shall, to
the extent of the interests assigned by this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement.
This Assignment and Acceptance is being delivered to the
Administrative Agent together with (i) if the Assignee is a Foreign Lender, any
documentation required to be delivered by the Assignee pursuant to Section
2.16(e) of the Credit Agreement, duly completed and executed by the Assignee,
and (ii) if the Assignee is not already a Lender under the Credit Agreement, an
Administrative Questionnaire in the form supplied by the Administrative Agent,
duly completed by the Assignee. The [Assignee/Assignor] shall pay the fee
payable to the Administrative Agent pursuant to Section 10.04(b) of the Credit
Agreement.
This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of New York.
Assignment and Acceptance
-2-
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
("Assignment Date"):
Principal Amount
Facility Assigned
-------- ----------------
Commitment Assigned: $
Syndicated Loans:
Fees Assigned (if any):
The terms set forth above and below are hereby agreed to:
[NAME OF ASSIGNOR], as Assignor
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[NAME OF ASSIGNEE], as Assignee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Assignment and Acceptance
-3-
The undersigned hereby consent to the within assignment:(1)
CAMBREX CORPORATION
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent,
as Swingline Lender
and as Issuing Lender
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
----------
(1) Consents to be included to the extent required by Section 10.04(b) of the
Credit Agreement.
Assignment and Acceptance
EXHIBIT B
[Form of Pledge Agreement]
AMENDED AND RESTATED PLEDGE AGREEMENT
AMENDED AND RESTATED PLEDGE AGREEMENT dated as of October 7, 2005,
among CAMBREX CORPORATION, a corporation duly organized and validly existing
under the laws of the State of Delaware (the "Company"), and JPMORGAN CHASE
BANK, N.A., as collateral agent under the Intercreditor and Collateral Agency
Agreement referred to below (in such capacity, together with its successors in
such capacity, the "Collateral Agent").
The Company and JPMorgan Chase Bank, N.A. (formerly known as JPMorgan
Chase Bank), as the Collateral Agent (as defined below) are parties to the
Pledge Agreement, dated as of November 28, 2001, as amended as of June 23, 2003
(as modified and supplemented and in effect from time to time, the "Existing
Pledge Agreement").
The Company, certain Subsidiaries of the Company, certain lenders (the
"Lenders") and JPMorgan Chase Bank, N.A., as administrative agent (in such
capacity, together with its successors in such capacity, the "Administrative
Agent"), are entering into the Credit Agreement, dated as of October 7, 2005 (as
modified and supplemented and in effect from time to time, including any
refinancing or replacement thereof, the "Credit Agreement"), providing, subject
to the terms and conditions thereof, for extensions of credit (by making loans
and issuing letters of credit) to be made by the Lenders to the Borrowers (as
defined therein) in an aggregate initial principal or face amount not exceeding
$277,500,000, and upon becoming effective the Credit Agreement (which shall be a
"Credit Agreement", as such term is defined in the Intercreditor and Collateral
Agency Agreement) will replace the Existing Credit Agreement (as defined in the
Credit Agreement) and the Existing Credit Agreement shall terminate.
To induce the Lenders to enter into the Credit Agreement, and to
extend credit thereunder, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company has agreed
to grant a security interest in the Collateral (as hereinafter defined) as
security for the Secured Obligations (as so defined). The Company wishes to
amend the Existing Pledge Agreement to, among other things, provide for
collateral security for the obligations of the Company under the Credit
Agreement and to confirm and continue the pledge and grant of the collateral
security for the other obligations of the Company secured by the Existing Pledge
Agreement as amended hereby.
Accordingly, the parties hereto agree to amend the Existing Pledge
Agreement in certain respects and to restate the Existing Pledge Agreement, as
so amended, as follows:
Section 1. Definitions. Terms defined in the Intercreditor and
Collateral Agency Agreement or (if not defined in the Intercreditor and
Collateral Agency Agreement) in the Credit Agreement which are not defined
herein are used herein as defined therein. In addition, as used herein:
Pledge Agreement
-2-
"Collateral" has the meaning assigned to such term in Section 3.
"Intercreditor and Collateral Agency Agreement" means the Amended and
Restated Intercreditor and Collateral Agency Agreement dated as of June 23,
2003, among the Company, certain other parties thereto from time to time
(as specified therein) and the Collateral Agent, as amended, modified and
supplemented and in effect from time to time.
"Issuer" means any corporation or other entity identified on Annex 1
under the caption "Issuer".
"Pledged Stock" has the meaning assigned to such term in Section 3(a).
"Proceeds" has the meaning assigned to such term in the Uniform
Commercial Code.
"Secured Obligations" has the meaning assigned to such term in the
Intercreditor and Collateral Agency Agreement, and shall include, without
limitation, all obligations of the Company, whether as borrower, guarantor
or otherwise, under the Credit Agreement and the other Loan Documents
referred to in the Credit Agreement.
"Secured Parties" has the meaning assigned to such term in the
Intercreditor and Collateral Agency Agreement, and shall include, without
limitation, the Administrative Agent and the lenders party to the Credit
Agreement and the other Loan Documents referred to in the Credit Agreement.
"Uniform Commercial Code" means the Uniform Commercial Code as in
effect from time to time in the State of New York.
Section 2. Representations and Warranties. The Company represents and
warrants to the Secured Parties that:
(a) Ownership and Liens. The Company is the sole beneficial owner of
the Collateral and no Lien exists upon the Collateral, except for Permitted
Encumbrances that are also permitted by the terms of each Other Debt
Agreement and except for the security interest created pursuant hereto,
which security interest constitutes a valid and perfected security interest
in and to all of the Collateral, subject to no other Lien except for
Permitted Encumbrances that are also permitted by the terms of each Other
Debt Agreement.
(b) Status of Pledged Stock. The Pledged Stock in which the Company
grants a security interest hereunder has been duly authorized and is
validly existing, fully paid and non-assessable and none of such Pledged
Stock is subject to any contractual restriction, or any restriction under
the charter, by-laws or other organizational documents of the respective
Issuer of such Pledged Stock, upon the pledge of such Pledged Stock or the
Pledge Agreement
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transfer thereof upon the enforcement by the Collateral Agent of its
remedies hereunder (except for any such restriction contained or permitted
herein or hereunder or in or under any Debt Agreement).
(c) No Other Stock. The Pledged Stock evidenced by the certificate or
certificates identified in Annex 1 constitutes 66% of the issued and
outstanding shares of voting Capital Stock, and (subject to clause (ii) of
the proviso at the end of Section 3) all of the issued and outstanding
shares of any other Capital Stock, of the respective Issuer beneficially
owned by the Company on the date hereof (whether or not registered in the
name of the Company) (and it is acknowledged and agreed that if more than
66% of the outstanding voting Capital Stock of any Issuer is delivered to
the Collateral Agent, the Collateral Agent shall have a security interest
in such voting Capital Stock only up to an amount equal to 66% of all of
the issued and outstanding shares of the voting Capital Stock of such
Issuer) and Annex 1 correctly identifies, as at the date hereof, the
respective Issuer of such Pledged Stock, the respective class and par value
(if any) of the shares constituting such Pledged Stock and the respective
number of shares (and registered owners thereof) represented by each such
certificate.
Section 3. The Pledge. As collateral security for the prompt payment
in full when due (whether at stated maturity, by acceleration or otherwise) of
the Secured Obligations, whether now existing or hereafter from time to time
arising, the Company hereby pledges and grants (and hereby confirms and
continues the pledge and grant under the Existing Pledge Agreement as amended
and restated hereby of) a security interest in all of the Company's right, title
and interest in the following property, whether now owned by the Company or
hereafter acquired and whether now existing or hereafter coming into existence
(all being collectively referred to herein as "Collateral"), to the Collateral
Agent for the benefit of the Secured Parties as hereinafter provided:
(a) the Capital Stock of the Issuer or Issuers represented by the
certificate or certificates identified in Annex 1 and all other shares of
Capital Stock of whatever class of the Issuers, now or hereafter owned by
the Company, in each case together with the certificate or certificates, if
any, evidencing the same (collectively, the "Pledged Stock").
(b) all shares, securities, moneys or property representing a dividend
on any of the Pledged Stock, or representing a distribution or return of
capital upon or in respect of the Pledged Stock, or resulting from a
split-up, revision, reclassification or other like change of the Pledged
Stock or otherwise received in exchange therefor, and any subscription
warrants, rights or options issued to the holders of, or otherwise in
respect of, the Pledged Stock;
(c) without affecting the obligations of the Company under any
provision prohibiting such action hereunder or under any Debt Agreement, in
the event of any consolidation or merger in which an Issuer is not the
surviving corporation, all shares of Capital Stock of the successor
corporation formed by or resulting from such consolidation or merger, but
only if such successor corporation is a Foreign Subsidiary owned directly
by the Company or any Domestic Subsidiary (the Pledged Stock, together
Pledge Agreement
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with all other certificates, shares, securities, properties or moneys as
may from time to time be pledged hereunder pursuant to clause (a) or (b)
above and this clause (c) being herein collectively called the "Stock
Collateral"); and
(d) all Proceeds of and to any of the property of the Company
described in the foregoing clauses (a), (b) and (c) of this Section 3;
provided that, notwithstanding anything herein to the contrary, (i) the shares
of voting Capital Stock of an Issuer that are pledged hereunder shall not at any
time exceed 66% of the issued and outstanding voting Capital Stock of such
Issuer and (ii) if shares of any non-voting Capital Stock of an Issuer are
pledged or required to be pledged hereunder and the Company notifies the
Administrative Agent in writing that the creation or continuation of such
pledge, as the case may be, could have adverse tax consequences for the Company,
then (y) with respect to shares that have not yet been pledged hereunder, the
Company shall have no obligation to pledge such shares hereunder and such shares
shall not constitute Pledged Stock and (z) with respect to shares pledged
hereunder prior to such notice from the Company, such shares shall be released
from the pledge hereunder and shall no longer constitute Pledged Stock (and the
Collateral Agent is hereby authorized, without further action by any other
Secured Party, forthwith to release such pledge and cause to be assigned,
transferred or delivered, against receipt but without any recourse, warranty or
representation whatsoever, the certificate(s) for such shares and any related
stock power theretofore delivered to the Collateral Agent hereunder).
Section 4. Further Assurances; Remedies. In furtherance of the grant
of the security interest pursuant to Section 3, the Company hereby agrees with
each Secured Party as follows:
4.01. Delivery and Other Perfection. The Company shall:
(a) subject to Section 4.04(c) and the proviso at the end of Section
3, if any of the shares, securities, moneys or property required to be
pledged by the Company under clauses (a), (b) and (c) of Section 3 are
received by the Company, forthwith either (x) transfer and deliver to the
Collateral Agent such shares or securities so received by the Company
(together with the certificate or certificates, if any, for any such shares
and securities duly endorsed in blank or accompanied by undated stock
powers duly executed in blank), all of which thereafter shall be held by
the Collateral Agent, pursuant to the terms of this Agreement, as part of
the Collateral or (y) take such other action as the Collateral Agent shall
reasonably deem necessary or appropriate to duly record the Lien created
hereunder in such shares, securities, moneys or property in said clauses
(a), (b) and (c);
(b) give, execute, deliver, file and/or record any financing
statement, notice, instrument, document, agreement or other papers that may
be necessary or desirable (in the reasonable judgment of the Collateral
Agent) to create, preserve, perfect or validate the security interest
granted pursuant hereto or to enable the Collateral Agent to exercise and
enforce its rights hereunder with respect to such security interest;
Pledge Agreement
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(c) keep full and accurate books and records relating to the
Collateral, and stamp or otherwise xxxx such books and records in such
manner as the Collateral Agent may reasonably require in order to reflect
the security interests granted by this Agreement; and
(d) not more than once per any fiscal quarter (unless any Event of
Default shall have occurred and be continuing), permit representatives of
the Collateral Agent, upon reasonable prior notice and at reasonable times,
to inspect and make abstracts from its books and records pertaining to the
Collateral, and forward copies of any material notices or communications
received by the Company with respect to the Collateral, all in such manner
as the Collateral Agent may reasonably require.
4.02. Other Financing Statements and Liens. The Company shall not file
or (to the extent within its control) suffer to be on file, or authorize or
permit to be filed or (to the extent within its control) to be on file, in any
jurisdiction, any financing statement or like instrument with respect to the
Collateral in which the Collateral Agent is not named as the sole secured party
for the benefit of the Secured Parties.
4.03. Preservation of Rights. The Collateral Agent shall not be
required to take steps necessary to preserve any rights against prior parties to
any of the Collateral.
4.04. Collateral.
(a) The Company will cause (i) that portion of the Collateral
consisting of shares of the voting Capital Stock of an Issuer to constitute
at all times 66% of the total number of shares of voting Capital Stock of
such Issuer then outstanding and (ii) (subject to clause (ii) of the
proviso at the end of Section 3) that portion of the Collateral consisting
of shares of any other Capital Stock of an Issuer to constitute at all
times 100% of the total number of shares of such Capital Stock then
outstanding.
(b) So long as no Event of Default shall have occurred and be
continuing, the Company shall have the right to exercise all voting,
consensual and other powers of ownership pertaining to the Collateral for
all purposes not inconsistent with the terms of this Agreement or any Debt
Agreement; and the Company agrees that it will not vote the Collateral in
any manner that is inconsistent with the terms of this Agreement or any
Debt Agreement; and the Collateral Agent shall execute and deliver to the
Company or cause to be executed and delivered to the Company all such
proxies, powers of attorney, dividend and other orders, and all such
instruments, without recourse, as the Company may reasonably request for
the purpose of enabling the Company to exercise the rights and powers that
it is entitled to exercise pursuant to this Section 4.04(b).
(c) Unless and until an Event of Default has occurred and is
continuing, the Company shall be entitled to receive and retain any and all
cash dividends and distributions on the Collateral.
(d) If any Event of Default shall have occurred, then so long as such
Event of Default shall continue, and whether or not the Collateral Agent or
any other Secured Party
Pledge Agreement
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exercises any available right to declare any Secured Obligation due and
payable or seeks or pursues any other relief or remedy available to it
under applicable law or under this Agreement, the Credit Agreement or any
other agreement relating to such Secured Obligation, upon written notice
from the Collateral Agent (acting upon instructions of the Required Secured
Parties) to the Company, all dividends and other distributions on the
Collateral shall be paid directly to the Collateral Agent and retained by
it as part of the Collateral, subject to the terms of this Agreement, and,
if the Collateral Agent shall so request in writing, the Company agrees to
execute and deliver to the Collateral Agent appropriate additional
dividend, distribution and other orders and documents to that end; provided
that if such Event of Default is cured, any such dividend or distribution
theretofore paid to the Collateral Agent shall, upon request of the Company
(except to the extent theretofore applied to the Secured Obligations), be
returned by the Collateral Agent to the Company.
4.05. Events of Default, Etc. During the period during which an Event
of Default shall have occurred and be continuing:
(a) the Collateral Agent shall have all of the rights and remedies
with respect to the Collateral of a secured party under the Uniform
Commercial Code (whether or not the Uniform Commercial Code is in effect in
the jurisdiction where the rights and remedies are asserted, to the fullest
extent permitted by applicable law) and such additional rights and remedies
to which a secured party is entitled under the laws in effect in any
jurisdiction where any rights and remedies hereunder may be asserted,
including, without limitation, the right, to the maximum extent permitted
by law, to exercise all voting, consensual and other powers of ownership
pertaining to the Collateral as if the Collateral Agent were the sole and
absolute owner thereof (and the Company agrees to take all such action as
may be appropriate to give effect to such right);
(b) the Collateral Agent in its discretion may, in its name or in the
name of the Company or otherwise, demand, xxx for, collect or receive any
money or property at any time payable or receivable on account of or in
exchange for any of the Collateral, but shall be under no obligation to do
so; and
(c) the Collateral Agent may, upon ten Business Days' prior written
notice to the Company of the time and place, with respect to the Collateral
or any part thereof that shall then be or shall thereafter come into the
possession, custody or control of the Collateral Agent, any other Secured
Party or any of their respective agents, sell, lease, assign or otherwise
dispose of all or any part of such Collateral, at such place or places as
the Collateral Agent deems best, and for cash or for credit or for future
delivery (without thereby assuming any credit risk), at public or private
sale, without demand of performance or notice of intention to effect any
such disposition or of the time or place thereof (except such notice as is
required above or by applicable statute and cannot be waived), and the
Collateral Agent or any other Secured Party or anyone else may be the
purchaser, lessee, assignee or recipient of any or all of the Collateral so
disposed of at any public sale (or, to the extent permitted by law, at any
private sale) and thereafter hold the same absolutely, free from any claim
or right of whatsoever kind, including any right or equity of redemption
(statutory or otherwise), of the Company, any such demand, notice
Pledge Agreement
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and right or equity being hereby expressly waived and released to the
fullest extent permitted by applicable law. The Collateral Agent may,
without notice or publication, to the fullest extent permitted by
applicable law, adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at the time and place fixed for
the sale, and such sale may be made at any time or place to which the sale
may be so adjourned.
The proceeds of each collection, sale or other disposition under this Section
4.05 shall be applied in accordance with Section 4.09.
The Company recognizes that, by reason of certain prohibitions
contained in the Securities Act of 1933, as amended, and applicable state
securities laws, the Collateral Agent may be compelled, with respect to any sale
of all or any part of the Collateral, to limit purchasers to those who will
agree, among other things, to acquire the Collateral for their own account, for
investment and not with a view to the distribution or resale thereof. The
Company acknowledges that any such private sales may be at prices and on terms
less favorable to the Collateral Agent than those obtainable through a public
sale without such restrictions, and, notwithstanding such circumstances, agrees
that any such private sale shall be deemed to have been made in a commercially
reasonable manner and that the Collateral Agent shall have no obligation to
engage in public sales and no obligation to delay the sale of any Collateral for
the period of time necessary to permit the respective Issuer thereof to register
it for public sale.
4.06. Deficiency. If the proceeds of sale, collection or other
realization of or upon the Collateral pursuant to Section 4.05 are insufficient
to cover the costs and expenses of such realization and the payment in full of
the Secured Obligations, the Company shall remain liable for any deficiency.
4.07. Removals, Etc. Without at least 30 days' prior written notice to
the Collateral Agent, the Company shall not change its name from the name shown
on the signature pages hereto.
4.08. Private Sale. The Collateral Agent and the other Secured Parties
shall incur no liability as a result of the sale of the Collateral, or any part
thereof, at any private sale pursuant to Section 4.05 conducted in a
commercially reasonable manner. The Company hereby waives any claims against the
Collateral Agent or any other Secured Party arising by reason of the fact that
the price at which the Collateral may have been sold at such a private sale was
less than the price that might have been obtained at a public sale or was less
than the aggregate amount of the Secured Obligations, even if the Collateral
Agent accepts the first offer received and does not offer the Collateral to more
than one offeree.
4.09. Application of Proceeds. Except as otherwise herein expressly
provided, the Proceeds of any collection, sale or other realization of all or
any part of the Collateral pursuant hereto, and any other cash at the time held
by the Collateral Agent under this Section 4, shall be applied by the Collateral
Agent in the manner set forth in Section 3.02 of the Intercreditor and
Collateral Agency Agreement.
Pledge Agreement
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4.10. Attorney-in-Fact. Without limiting any rights or powers granted
by this Agreement to the Collateral Agent while no Event of Default has occurred
and is continuing, upon the occurrence and during the continuance of such Event
of Default the Collateral Agent is hereby appointed the attorney-in-fact of the
Company for the purpose of carrying out the provisions of this Agreement and
taking any action and executing any instruments that the Collateral Agent may
deem necessary or advisable to accomplish the purposes hereof, which appointment
as attorney-in-fact is irrevocable and coupled with an interest. Without
limiting the generality of the foregoing, upon the occurrence and during the
continuance of any Event of Default, the Collateral Agent shall have the right
and power to receive, endorse and collect all checks made payable to the order
of the Company representing any dividend, payment or other distribution in
respect of the Collateral or any part thereof and to give full discharge for the
same.
4.11. Perfection. Prior to or concurrently with the execution and
delivery of this Agreement, the Company shall deliver to the Collateral Agent
the certificate or certificates identified in Annex 1, accompanied by undated
stock powers duly executed in blank.
4.12. Termination. When (a) all Secured Obligations shall have been
paid in full (other than any indemnity or other obligations expressly stated to
survive termination of any Debt Agreement), (b) all commitments of the Secured
Parties to make extensions of credit under the Debt Agreements shall have
expired or been terminated and (c) all letters of credit issued under any Debt
Agreement shall have expired or been terminated, this Agreement shall terminate,
and the Collateral Agent shall, at the expense of the Company, forthwith cause
to be assigned, transferred and delivered, against receipt but without any
recourse, warranty or representation whatsoever, any remaining Collateral and
money received in respect thereof, to or on the order of the Company and to be
released and canceled all licenses and rights referred to in Section 4.04.
4.13. Further Assurances. The Company agrees that, from time to time
upon the written request of the Collateral Agent, the Company will execute and
deliver such further documents and do such other acts and things as the
Collateral Agent may reasonably request in order fully to effect the purposes of
this Agreement.
Section 5. Miscellaneous.
5.01. Notices. All notices, requests, consents and demands hereunder
shall be in writing and telecopied or delivered to the intended recipient at its
address for notices and other communications specified pursuant to Section 5.01
of the Intercreditor and Collateral Agency Agreement and shall be deemed to have
been given at the times specified in said Section 5.01.
5.02. No Waiver. No failure on the part of the Collateral Agent or any
other Secured Party to exercise, and no course of dealing with respect to, and
no delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise by the Collateral Agent
or any other Secured Party of any right, power or remedy hereunder preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy. The remedies herein are cumulative and are not exclusive of any remedies
provided by law.
Pledge Agreement
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5.03. Amendments, Etc. The terms of this Agreement may be waived,
altered or amended only by an instrument in writing duly executed by the Company
and the Collateral Agent (acting with all requisite consents as provided in the
Intercreditor and Collateral Agency Agreement). Any such amendment or waiver
shall be binding upon the Collateral Agent, each other Secured Party, each other
holder of any of the Secured Obligations and the Company.
5.04. Expenses. The Company agrees to reimburse each of the Collateral
Agent and the other Secured Parties for all reasonable costs and expenses of the
Collateral Agent and the other Secured Parties (including, without limitation,
the reasonable fees and expenses of legal counsel) in connection with (i) any
Default under any Debt Agreement and any enforcement or collection proceeding
resulting therefrom, including, without limitation, all manner of participation
in or other involvement with (w) performance by the Collateral Agent of any
obligations of the Company in respect of the Collateral that the Company has
failed or refused to perform, (x) bankruptcy, insolvency, receivership,
foreclosure, winding up or liquidation proceedings, or any actual or attempted
sale, or any exchange, enforcement, collection, compromise or settlement in
respect of any of the Collateral, and for the care of the Collateral and
defending or asserting rights and claims of the Collateral Agent in respect
thereof, by litigation or otherwise, (y) judicial or regulatory proceedings and
(z) workout, restructuring or other negotiations or proceedings (whether or not
the workout, restructuring or transaction contemplated thereby is consummated)
and (ii) the enforcement of this Section 5.04, and all such costs and expenses
shall be Secured Obligations entitled to the benefits of the collateral security
provided pursuant to Section 3.
5.05. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the respective successors and assigns of the Company,
the Collateral Agent, each other Secured Party and each other holder of any of
the Secured Obligations; provided that the Company shall not assign or transfer
its rights hereunder without the prior written consent of each Secured Party
(and any attempted assignment or transfer by the Company without such consent
shall be null and void).
5.06. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and either of the parties hereto may execute this Agreement by
signing any such counterpart.
5.07. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the law of the State of New York.
5.08. Jurisdiction. The Company hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and
determined in any such New York State or, to the extent permitted by law, in
such federal court. Each of the parties hereto agrees that a final judgment in
Pledge Agreement
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any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that any party may otherwise
have to bring any action or proceeding relating to this Agreement in the courts
of any jurisdiction.
5.09. Waiver of Venue. The Company hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement in
any court referred to in Section 5.08. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
5.10. Service of Process. Each party to this Agreement irrevocably
consents to service of process in the manner provided for notices in Section
5.01. Nothing in this Agreement will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
5.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
5.12. Captions. The captions and section headings appearing herein are
included solely for convenience of reference and are not intended to affect the
interpretation of any provision of this Agreement.
5.13. Agents and Attorneys-in-Fact. The Collateral Agent may employ
agents and attorneys-in-fact in connection herewith and shall not be responsible
for the negligence or misconduct of any such agents or attorneys-in-fact
selected by it in good faith and in the absence of gross negligence or willful
misconduct.
5.14. Severability. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(a) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be construed in order to carry out the intentions of the
parties hereto as nearly as may be possible and (b) the invalidity or
unenforceability of any provision hereof in any jurisdiction shall not affect
the validity or enforceability of such provision in any other jurisdiction.
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IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Pledge Agreement to be duly executed and delivered as of the day and
year first above written.
CAMBREX CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Pledge Agreement
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JPMORGAN CHASE BANK, N.A.,
as Collateral Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Pledge Agreement
ANNEX 1
PLEDGED STOCK
Issuer Certificate No(s). Registered Owner Number of Shares
------ ------------------ ------------------- ----------------------
Cambrex Bahamas, Inc. 1 Cambrex Corporation 1,000 Ordinary shares,
par value $1.00
Pledge Agreement
EXHIBIT C
EXECUTION COPY
AMENDED AND RESTATED INTERCREDITOR
AND
COLLATERAL AGENCY AGREEMENT
AMENDED AND RESTATED INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT
dated as of June 23, 2003 among: CAMBREX CORPORATION, a Delaware corporation
(the "Borrower"); each of the Subsidiaries under the caption "SUBSIDIARIES" on
the signature pages hereto and each other Subsidiary of the Borrower (if any)
that hereafter becomes a "Securing Party" hereunder pursuant to Section 3.06
(together with the Borrower, each a "Securing Party" and, collectively, the
"Securing Parties"); JPMORGAN CHASE BANK, as administrative agent under the
364-Day Credit Agreement for the 364-Day Lenders (in such capacity, together
with its successors in such capacity, the "364-Day Administrative Agent");
JPMORGAN CHASE BANK, as administrative agent under the Five-Year Credit
Agreement for the Five-Year Lenders (in such capacity, together with its
successors in such capacity, the "Five-Year Administrative Agent" and, together
with the 364-Day Administrative Agent, the "Administrative Agents"); each of the
holders of Other Debt that becomes an "Other Debt Holder" hereunder pursuant to
Section 3.05 (each an "Other Debt Holder" and, collectively, the "Other Debt
Holders"); and JPMORGAN CHASE BANK, as collateral agent for the Secured Parties
(in such capacity, together with its successors in such capacity, the
"Collateral Agent") (all capitalized terms used in this preamble and in the
recitals below without being defined shall have the meanings provided for in
Section 1).
RECITALS
WHEREAS, the Borrower, the Administrative Agents and the Collateral
Agent are parties to an Intercreditor and Collateral Agency Agreement dated as
of November 28, 2001 (as amended and in effect immediately prior to the
effectiveness of this Agreement, the "Existing Intercreditor Agreement")
providing for the appointment of the Collateral Agent by the Administrative
Agents and the Lenders, and for certain other agreements relating to the
collateral security for the obligations of the Borrower and the Subsidiary
Guarantors under the Loan Documents (as defined in the 364-Day Credit Agreement
and the Five-Year Credit Agreement);
WHEREAS, the Borrower, certain Subsidiaries of the Borrower (the
"Subsidiary Guarantors"), certain lenders party thereto (the "364-Day Lenders")
and the 364-Day Administrative Agent are parties to a 364-Day Credit Agreement
dated as of November 28, 2001 (as from time to time amended, restated,
supplemented, renewed, extended, increased, refunded, replaced or otherwise
modified, the "364-Day Credit Agreement"), providing, subject to the terms and
conditions thereof, for extensions of credit (by making loans and issuing
letters of credit) to be made by the 364-Day Lenders to the Borrower in an
aggregate principal or face amount not exceeding $157,500,000 as of the date
hereof;
Amended and Restated Intercreditor and Collateral Agency Agreement
-2-
WHEREAS, the Borrower, the Subsidiary Guarantors, certain lenders (the
"Five-Year Lenders" and, together with the 364-Day Lenders, the "Lenders") and
the Five-Year Administrative Agent are parties to a Five-Year Credit Agreement
dated as of November 28, 2001 (as from time to time amended, restated,
supplemented, renewed, extended, increased, refunded, replaced or otherwise
modified, the "Five-Year Credit Agreement" and, together with the 364-Day Credit
Agreement, the "Credit Agreements"), providing, subject to the terms and
conditions thereof, for extensions of credit (by making loans and issuing
letters of credit) to be made by the Five-Year Lenders to the Borrower in an
aggregate principal or face amount not exceeding $268,750,000 as of the date
hereof;
WHEREAS, the Borrower and the Collateral Agent are parties to a Pledge
Agreement dated as of November 28, 2001, pursuant to which the Borrower has
granted to the Collateral Agent for the benefit of the Secured Parties (as
defined therein) a security interest in certain shares of Cambrex Bahamas, Inc.
owned by the Borrower (as amended as of the date hereof and as from time to time
hereafter amended, restated, supplemented, replaced or otherwise modified, the
"Cambrex Bahamas Pledge Agreement");
WHEREAS, Cambrex Bio Science Walkersville, Inc. (formerly known as
BioWhittaker, Inc.) ("Cambrex Walkersville"), a wholly-owned subsidiary of the
Borrower, and the Collateral Agent are parties to a Share Charge dated January
28, 2002, pursuant to which Cambrex Walkersville has granted to the Collateral
Agent for the benefit of the Secured Parties (as defined therein) a security
interest in certain shares of Lumitech (UK) Limited owned by Cambrex
Walkersville (as amended as of the date hereof and as from time to time
hereafter amended, restated, supplemented, replaced or otherwise modified, the
"Lumitech (UK) Pledge Agreement");
WHEREAS, the Borrower may from time to time incur unsubordinated
Indebtedness under agreements other than the Credit Agreements that will be
secured by a pari passu lien on the property covered by the Shared Collateral
Documents and will be subject to the terms of this Agreement (each such
Indebtedness being herein referred to as "Other Debt");
WHEREAS, to induce the 364-Day Lenders to extend credit under the
364-Day Credit Agreement and to induce the Five-Year Lenders to extend credit
under the Five-Year Credit Agreement, the Borrower and certain of its
Subsidiaries have granted, and from time to time may grant, security interests
in certain of their properties as collateral security for, inter alia, the
obligations of the Borrower and the Subsidiary Guarantors in respect of the
Credit Agreements and the Security Documents (as defined therein);
WHEREAS, to induce the holders of Other Debt from time to time to make
extensions of credit to, or purchase notes of, the Borrower, the Borrower and
certain of its Subsidiaries may grant security interests in certain of their
properties as collateral security for such Other Debt; and
WHEREAS, the parties to the Existing Intercreditor Agreement wish to
amend the Existing Intercreditor Agreement, inter alia, to acknowledge the pari
passu ranking of the security interests that may from time to time be granted in
the collateral securing Other Debt and
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to provide for certain agreements among the Secured Parties relating to the
collateral security for any Other Debt;
NOW, THEREFORE, the parties to the Existing Intercreditor Agreement
agree to amend in certain respects and restate in its entirety the Existing
Intercreditor Agreement as so amended, as follows:
Section 1. Definitions.
1.01. Defined Terms. Terms defined in the Credit Agreements which are
not defined herein are used herein as defined therein. In addition, as used in
this Agreement, the following terms have the meanings specified below:
"Actionable Default" means the condition that the Collateral Agent
shall have received a Default Notice from a Secured Party and such Default
Notice shall remain in effect.
"Business Day" means any day on which commercial banks are not
authorized or required to close in New York City.
"Cambrex Bahamas Pledge Agreement" has the meaning assigned to such
term in the recitals of this Agreement.
"Commitment" means, with respect to any Debt Holder, the obligation of
such Debt Holder to make any loan or other extension of credit to the
Borrower (including to acquire participations in loans and letters of
credit) under the Debt Agreement to which it is a party, including, with
respect to any Lender, the Commitment of such Lender under (and as defined
in) each Credit Agreement to which it is a party.
"Debt Agreements" means, collectively, the Credit Agreements and each
Other Debt Agreement.
"Debt Holders" means, collectively, the Lenders and the Other Debt
Holders and shall include any assignee or transferee thereof.
"Default Notice" has the meaning assigned to such term in Section
2.02(e).
"Event of Default" means, with respect to any Debt Agreement, an event
or condition the occurrence or existence of which constitutes an "Event of
Default" as defined in such Debt Agreement.
"Joinder Agreement" means a Joinder Agreement, substantially in the
form of Exhibit A hereto, entered into pursuant to Section 3.05 by and
among the Collateral Agent, any holder of Other Debt and the Borrower,
pursuant to which such holder becomes a party to this Agreement as an Other
Debt Holder and entitled to the benefits,
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and subject to the obligations, of a Debt Holder hereunder and under the
other Shared Collateral Documents.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset and (b) the interest of a vendor or a
lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same
economic effect as any of the foregoing) relating to such asset.
"Lumitech (UK) Pledge Agreement" has the meaning assigned to such term
in the recitals of this Agreement.
"Other Debt" has the meaning assigned to such term in the recitals of
this Agreement.
"Other Debt Agreements" means, collectively, each indenture, credit
agreement, note purchase agreement or other agreement or instrument
evidencing or providing for Other Debt.
"Other Debt Holder" means each holder of Other Debt that has entered
into a Joinder Agreement with the Collateral Agent and the Borrower, so
long as such Other Debt shall remain outstanding.
"Outstanding Amount" means, with respect to any Debt Holder as of any
date of determination thereof, the sum of (a) such Debt Holder's Revolving
Credit Exposures under (and as defined in) the Credit Agreements and (b)
the aggregate principal amount of Other Debt owing to such Debt Holder, in
each case outstanding on such determination date.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership,
governmental agency or other authority.
"Pledge Agreements" means (a) the Cambrex Bahamas Pledge Agreement,
(b) the Lumitech (UK) Pledge Agreement and (c) any other pledge, security
or similar agreement entered into by the Borrower or any of its
Subsidiaries pursuant to any Debt Agreement (and in accordance with Section
3.06).
"Pro Rata Share" means, with respect to any Debt Holder as of any date
of determination thereof, (a) if an Actionable Default shall have occurred
and be continuing, the percentage of (i) the aggregate Outstanding Amounts
of all Debt Holders represented by (ii) such Debt Holder's Outstanding
Amount; and (b) at any other time, the percentage of (i) the sum of the
aggregate Outstanding Amounts of all Debt Holders plus the aggregate unused
Commitments of all Debt Holders represented by (ii) the sum of such Debt
Holder's Outstanding Amount plus such Debt Holder's unused Commitments, in
each case outstanding or in effect on such determination date.
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"Required 364-Day Lenders" means the Required Lenders under and as
defined in the 364-Day Credit Agreement.
"Required Five-Year Lenders" means the Required Lenders under and as
defined in the Five-Year Credit Agreement.
"Required Secured Parties" means, as of any date of determination
thereof, (a) if an Actionable Default shall have occurred and be
continuing, Debt Holders owed or holding more than 60% of the aggregate
Outstanding Amounts of all Debt Holders and (b) at any other time, Debt
Holders owed or holding more than 50% of the sum of the aggregate
Outstanding Amounts of all Debt Holders plus the aggregate unused
Commitments of all Debt Holders, in each case outstanding or in effect on
such determination date.
"Secured Parties" means, collectively, the Lenders, the Administrative
Agents, the Other Debt Holders, the Collateral Agent and their respective
successors, assigns and transferees.
"Secured Obligations" means, collectively, (a) all obligations of the
Borrower in respect of the unpaid principal of and interest on the Loans
(as such term is defined in the Credit Agreements) made by the Lenders to
the Borrower under either Credit Agreement and all other amounts whatsoever
now or hereafter from time to time owing to the Lenders or the
Administrative Agents, or any of them, by the Borrower under the Loan
Documents (including all reimbursement obligations of the Borrower in
respect of LC Disbursements under (and as defined in) either Credit
Agreement and interest thereon), and all obligations of the Subsidiary
Guarantors in respect of any guarantee of any of such obligations of the
Borrower, (b) with respect to any Other Debt, all obligations of the
Borrower in respect of the unpaid principal of and interest and make-whole
amount or other premium, if any, on such Other Debt and all other amounts
whatsoever now or hereafter from time to time owing to the Other Debt
Holders thereof by the Borrower under the respective Other Debt Agreement,
and all obligations of the Subsidiary Guarantors in respect of any
guarantee of any of such obligations of the Borrower, and (c) all present
or future obligations of the Securing Parties, or any of them, to the
Secured Parties, or any of them, under the Shared Collateral Documents.
"Shared Collateral" means the property of the Securing Parties that is
subject to the Liens of the Shared Collateral Documents.
"Shared Collateral Documents" means, collectively, this Agreement, the
Pledge Agreements, and any other pledge, security or similar agreement
entered into pursuant to a Debt Agreement that provides for a Lien on any
property of the Borrower or any of its Subsidiaries that is to be subject
to the terms of this Agreement.
"Uniform Commercial Code" means the Uniform Commercial Code as in
effect from time to time in New York.
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1.02. Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Sections and
Exhibits shall be construed to refer to and Sections of, and Exhibits to, this
Agreement and (e) the words "asset" and "property" shall be construed to have
the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract rights.
Section 2. The Collateral Agent.
2.01. Appointment and Duties of the Collateral Agent.
(a) Appointment. Each Administrative Agent, on behalf of itself and
each of the Lenders for whom it acts, hereby, and each Other Debt Holder, by its
execution and delivery of a Joinder Agreement, designates and appoints JPMorgan
Chase Bank to act as Collateral Agent hereunder and under each of the other
Shared Collateral Documents (whether being entered into in connection with the
effectiveness of the respective Debt Agreement or at any time thereafter
pursuant thereto), and hereby authorizes the Collateral Agent to execute,
deliver and perform, on behalf of each of the Secured Parties, each Shared
Collateral Document to which the Collateral Agent is or is intended to be a
party and to take such actions on behalf of the Secured Parties under the
provisions of the Shared Collateral Documents and to exercise such powers and
perform such duties as are expressly delegated to the Collateral Agent by the
terms of each Shared Collateral Document, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in any Shared Collateral Document, the Collateral Agent shall not have
any duties or responsibilities, except those expressly set forth herein and in
the other Shared Collateral Documents, and no implied covenants, functions or
responsibilities, fiduciary or otherwise, shall be read into this Agreement or
any other Shared Collateral Document or otherwise exist against the Collateral
Agent. Each Secured Party shall be bound by all of the agreements of the
Collateral Agent contained herein and in the Shared Collateral Documents.
(b) Copies of Documents to be Furnished to Secured Parties. The
Collateral Agent will forward to each other Secured Party at its last address on
the records of the Collateral Agent promptly after the Collateral Agent's
receipt thereof a copy of each document furnished to the Collateral Agent under
any Shared Collateral Document that relates to such Secured Party. The
Collateral Agent will forward to each other Secured Party promptly upon such
Secured
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Party's reasonable request therefor a copy of any other document furnished to
the Collateral Agent under the Shared Collateral Documents.
2.02. Rights of Collateral Agent.
(a) Performance of Duties Through Agents. The Collateral Agent may
perform any of its duties under the Shared Collateral Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties.
(b) Absence of Liability. Neither the Collateral Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates shall be
(i) liable for any action lawfully taken or omitted to be taken by it under or
in connection with this Agreement or any other Shared Collateral Document
(except for its gross negligence or willful misconduct), or (ii) responsible in
any manner to any other Secured Party for any recitals, statements,
representations or warranties made by any Securing Party or any representative
thereof or any other Person contained herein or in any Debt Agreement or any
other Shared Collateral Document or any other agreement or any certificate,
report, statement or other document referred to or provided for in, or received
by the Collateral Agent hereunder or in connection with, any Debt Agreement or
Shared Collateral Document or otherwise or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of the Shared
Collateral, any Debt Agreement, or any Shared Collateral Document or any Secured
Obligation or for any failure of any Securing Party to perform its obligations
thereunder. Except as expressly provided herein or in any other Shared
Collateral Document, the Collateral Agent shall not be under any obligation to
any other Secured Party to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, any Debt
Agreement or any Shared Collateral Document or to inspect the properties, books
or records of the Borrower and its Subsidiaries.
The Collateral Agent makes no representations as to the value or
condition of the Shared Collateral or any part thereof, as to the title of any
Securing Party to the Shared Collateral, as to the security afforded by this
Agreement or any other Shared Collateral Document or as to the validity,
execution, enforceability, legality or sufficiency of this Agreement or any
other Shared Collateral Document, and the Collateral Agent shall incur no
liability or responsibility in respect of any such matters. The Collateral Agent
shall not be responsible for insuring the Shared Collateral, for the payment of
taxes, charges, assessments or liens upon the Shared Collateral or otherwise as
to the maintenance of the Shared Collateral. The Collateral Agent shall have no
duty to any Securing Party, or to the holders of any of the Secured Obligations,
as to any Shared Collateral in its possession or control or in the possession or
control of any agent or nominee of the Collateral Agent or any income thereon or
as to the preservation of rights against prior parties or any other rights
pertaining thereto, except the duty to accord such of the Shared Collateral as
may be in its possession substantially the same care as it accords its own
assets and the duty to account for monies received by it in respect of the
Shared Collateral.
(c) Reliance, Etc. The Collateral Agent shall be entitled to rely, and
shall be fully protected in relying, upon any instruction, direction, order,
request, note, writing, resolution, notice, consent, certificate, affidavit,
letter, cablegram, telegram, telecopy, telex or teletype
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message, statement, order or other document reasonably believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons and upon advice and statements of legal counsel, independent
accountants and other experts selected by the Collateral Agent. In connection
with any request of any Secured Party contemplated hereby, the Collateral Agent
shall be fully protected in relying on a certificate of any Secured Party that
the Collateral Agent reasonably believes is authentic.
As to matters not expressly provided for in this Agreement or the
other Shared Collateral Documents, the Collateral Agent shall not be required to
take any action or exercise any discretion, but shall be required to act or
refrain from acting upon the instructions of the Required Secured Parties or all
of the Debt Holders, as applicable, and shall in such cases be fully protected
in acting, or in refraining from acting, hereunder or under any other Shared
Collateral Document in accordance with the instructions of the Required Secured
Parties or all of the Debt Holders, as applicable, and any such action taken or
failure to act pursuant thereto in accordance with the terms hereof or any of
the other Shared Collateral Documents shall be binding upon all of the Secured
Parties. The Collateral Agent shall in all cases be fully justified in failing
or refusing to take any action hereunder or under any other Shared Collateral
Document (i) if such action would, in the reasonable opinion of the Collateral
Agent, be contrary to law or the terms of the Shared Collateral Documents, (ii)
if such action is not specifically provided for herein or in any other Shared
Collateral Document, or it shall not have received any such advice or
concurrence of the relevant Secured Parties as it deems appropriate or (iii) if,
in connection with the taking of any such action that would constitute an
exercise of remedies under any Shared Collateral Document, it shall not first be
indemnified to its reasonable satisfaction by the Debt Holders against any and
all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action, or refraining from taking any action (other
than any liability or expense resulting from its gross negligence or willful
misconduct). No provision of any Shared Collateral Document shall require the
Collateral Agent to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties under any Shared
Collateral Document or in the exercise of any of its rights or powers
thereunder, if it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(d) Effect of Ambiguous Provisions. If, with respect to a proposed
action to be taken by it, the Collateral Agent shall determine in good faith
that the provisions of any Shared Collateral Document relating to the functions
or responsibilities of the Collateral Agent are or may be ambiguous or
inconsistent, the Collateral Agent shall notify the Secured Parties, identifying
the proposed action and the provisions that it considers are or may be ambiguous
or inconsistent, and may decline to perform such function or responsibility
unless it has received the written confirmation from the Required Secured
Parties concurring in the circumstances that the action proposed to be taken by
the Collateral Agent is consistent with the terms of such Shared Collateral
Document or is otherwise appropriate.
(e) Default Notices. The Collateral Agent shall not be deemed to have
actual, constructive, direct or indirect knowledge or notice of the occurrence
of any Event of Default under any Debt Agreement unless and until the Collateral
Agent has received written notice or a certificate from a Secured Party that is
party to such Debt Agreement or the Borrower stating that
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such notice is a "Notice of Event of Default" under the relevant Debt Agreement
(each a "Default Notice"). The Collateral Agent shall not have any obligation
whatsoever either prior to or after receiving any Default Notice to inquire
whether any Event of Default has in fact occurred under any Debt Agreement and
shall be entitled to rely conclusively, and shall be fully protected in so
relying, on any Default Notice so furnished to it. In the event that the
Collateral Agent receives a Default Notice, the Collateral Agent shall promptly
give notice thereof to the other Secured Parties. The Collateral Agent shall
take such action with respect to the Event of Default described in any Default
Notice as so directed pursuant to Section 3.01; provided that, unless and until
the Collateral Agent shall have received such directions, the Collateral Agent
may (but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such Event of Default as it shall deem advisable in
the best interest of the Secured Parties.
(f) No Requirement to Exercise Rights. Notwithstanding anything herein
to the contrary, the Collateral Agent shall not be required to exercise any
discretionary rights, powers or remedies under any Shared Collateral Document,
give any consent under any Shared Collateral Document or enter into any
agreement amending, modifying, supplementing or waiving any provision of any
Shared Collateral Document unless it shall have been directed to do so in
writing by, or, as applicable, shall have received the written consent to the
relevant action of, the Required Secured Parties or all of the Debt Holders, as
applicable.
(g) Perfection, Etc. Except for actions expressly required hereunder
(excluding circumstances in which the Collateral Agent has the ability but not
an affirmative duty to act), nothing in this Agreement or any other Shared
Collateral Document shall be interpreted as giving the Collateral Agent
responsibility for or any duty concerning the validity, perfection, priority or
enforceability of any lien or security interest in any Shared Collateral or
giving the Collateral Agent any obligation to take any action to procure or
maintain such validity, perfection, priority or enforceability.
(h) Dealing with Administrative Agents. Notwithstanding anything
herein to the contrary, with respect to any notice, request, instruction,
direction, consent, communication or other action contemplated or permitted to
be taken or given hereunder by any Lender party to a Credit Agreement, the
Collateral Agent shall be fully protected in relying on a certificate of the
Administrative Agent under such Credit Agreement that it is acting on behalf of
a specified number in aggregate principal amount of Lenders under such Credit
Agreement.
2.03. Indemnification and Reimbursement of the Collateral Agent.
(a) Indemnification. The Borrower agrees to indemnify and hold
harmless the Collateral Agent and its directors, officers, employees, agents and
advisors (each such Person being called an "Indemnitee") from and against any
and all claims, losses, liabilities, obligations, damages and expenses
(including reasonable fees and expenses of counsel) that may be incurred by or
asserted or awarded against the Collateral Agent or any such Person (hereinafter
the "Indemnification Amount") arising out of, related to or in connection with
this Agreement or any other Shared Collateral Document (including the
enforcement of any Shared Collateral Document), except to the extent such
claims, losses, liabilities, damages and expenses are found
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by a court of competent jurisdiction by final and nonappealable judgment to have
resulted from such Person's gross negligence or willful misconduct. If the
Borrower fails to pay the Indemnification Amount when due, interest will accrue
thereon at a rate per annum equal to 2% plus the rate applicable to ABR Loans
pursuant to the Credit Agreements from the scheduled date for payment thereof
until the actual date of payment and such interest shall be added to the
Indemnification Amount.
(b) Expenses. The Borrower agrees to pay to the Collateral Agent the
amount of any and all reasonable out-of-pocket expenses, including the
reasonable fees and expenses of its counsel (and any local counsel) and of any
experts and agents, which the Collateral Agent may incur in connection with (i)
the administration of this Agreement and the other Shared Collateral Documents,
(ii) the custody or preservation of, or the sale of, collection from, or other
realization upon, any of the Shared Collateral, (iii) the exercise or
enforcement (whether through negotiations, legal proceedings or otherwise) of
any of the rights of the Collateral Agent under the Shared Collateral Documents
or (iv) the failure by any Securing Party to perform or observe any of the
provisions of the Shared Collateral Documents.
(c) Reimbursement by Debt Holders. To the extent that the Borrower
fails to pay any amount required to be paid by it to the Collateral Agent or any
other Indemnitee under paragraph (a) or (b) of this Section 2.03, each Debt
Holder severally agrees to pay to the Collateral Agent or such other Indemnitee,
as applicable, such Debt Holder's Pro Rata Share (determined as of the time that
the applicable unreimbursed expense or indemnity payment is sought) of such
unpaid amount.
(d) Waiver of Consequential Damages, Etc. To the extent permitted by
applicable law, the Borrower shall not assert, and hereby waives, any claim
against any Indemnitee or any Debt Holder, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or
actual damages) arising out of, in connection with, or as a result of, this
Agreement, any other Shared Collateral Document, or any agreement or instrument,
or the transactions, contemplated hereby or thereby.
(e) Payments. All amounts due under this Section 2.03 shall be payable
promptly after written demand therefor.
2.04. Resignation of the Collateral Agent. The Collateral Agent may
resign upon not less than 10 days' prior notice to the Borrower and each Debt
Holder, with any such resignation to become effective only upon the appointment
of a successor Collateral Agent under this Section 2.04. If the Collateral Agent
shall resign, then the 364-Day Administrative Agent (acting with the consent of
the Required 364-Day Lenders) and the Five-Year Administrative Agent (acting
with the consent of the Required Five-Year Lenders) shall in consultation with
the Borrower (and if no such successor shall have been appointed within 30 days
of the Collateral Agent's resignation, the Collateral Agent may) appoint a
successor collateral agent for the Secured Parties hereunder, whereupon such
successor agent shall succeed to the rights, powers and duties of the
"Collateral Agent" and the term "Collateral Agent" shall mean such successor
agent effective upon its appointment, and the former Collateral Agent's rights,
powers and duties as Collateral Agent shall be terminated, without any other or
further act or deed on the part of
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such former Collateral Agent (except that the resigning Collateral Agent shall
deliver all Shared Collateral then in its possession to the successor Collateral
Agent) or any of the other Secured Parties. After any retiring Collateral
Agent's resignation hereunder, the provisions of this Agreement shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
the Collateral Agent.
2.05. Information as to Secured Parties. The Administrative Agent
under each Credit Agreement will at such times as shall be requested by the
Collateral Agent supply a list in form and detail satisfactory to the Collateral
Agent setting forth the principal of and interest on, and any other amount then
due and owing in respect of, the Secured Obligations held by each Secured Party
party to such Credit Agreement as at a date specified in such request, to the
extent such information is reasonably available to it. Each Other Debt Holder
will at such times as shall be requested by the Collateral Agent supply a list
in form and detail satisfactory to the Collateral Agent setting forth the
principal of and interest on, and any other amount then due and owing in respect
of, the Secured Obligations held by such Other Debt Holder as at a date
specified in such request, to the extent such information is reasonably
available to such Person. The Borrower will at such times as shall be requested
by the Collateral Agent supply a list in form and detail satisfactory to the
Collateral Agent setting forth the principal of and interest on, and all other
amounts then due and owing in respect of, the Secured Obligations and the
identity of the Secured Party to which such Secured Obligations are owed as at a
date specified in such request. The Collateral Agent shall be entitled to rely
upon such information, and such information shall be conclusive and binding for
all purposes of this Agreement, except to the extent the Collateral Agent shall
have been notified in writing by any Secured Party that such information is
inaccurate.
2.06. Rights as a Debt Holder. With respect to the Secured Obligations
held by it, the Person serving as the Collateral Agent hereunder shall have the
same rights and powers hereunder as any other Debt Holder and may exercise the
same as though it were not the Collateral Agent, and such Person and its
affiliates may accept deposits from, lend money to and generally engage in any
kind of business with the Borrower or any of its Subsidiaries or other affiliate
thereof as if it were not the Collateral Agent hereunder.
Section 3. Intercreditor Agreements.
3.01. Administration of Collateral; Pari Passu Liens. The Collateral
Agent shall hold the Shared Collateral and any Lien thereon for the benefit of
the Secured Parties, pursuant to the terms of this Agreement and the other
Shared Collateral Documents. The Collateral Agent shall administer the Shared
Collateral in the manner contemplated by the Shared Collateral Documents. The
Collateral Agent shall exercise such rights and remedies with respect to the
Shared Collateral as are granted to it under the Shared Collateral Documents and
applicable law and as shall be directed by the Required Secured Parties. No
other class or classes of Secured Parties shall have any right to direct the
Collateral Agent to take any other action in respect of the Shared Collateral,
nor shall any Debt Holder have any right to take action with respect to the
Shared Collateral independently of the Collateral Agent. Without limiting the
generality of the foregoing, (i) each of the parties hereto acknowledges that
the rights of the Secured Parties in and to the Shared Collateral encumbered by
the Shared Collateral Documents are pari passu,
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regardless of the relative times of attachment or perfection of the Liens
securing the Secured Obligations or the time of incurrence of any Secured
Obligations, and the rights of the Secured Parties therein shall be governed by
the terms of this Agreement and the other respective Shared Collateral
Documents, and (ii) in the event of or in connection with any (x) foreclosure,
conveyance or assignment in lieu of foreclosure, (y) other proceeding or
transaction related to or arising out of the Shared Collateral Documents, or (z)
conveyance, operation or any other action with respect to any of the Shared
Collateral thereafter, the Required Secured Parties will, except as otherwise
expressly provided in this Agreement and the other Shared Collateral Documents,
have the exclusive power and authority to direct all decisions, actions and
inactions of the Collateral Agent, notwithstanding that such decisions, actions
or inactions may inure solely to the benefit of any particular Secured Party or
Secured Parties or be detrimental in any manner or to any degree to the
interests of some or all of the Secured Parties, and no other Secured Party will
have any right, power or authority to challenge or interfere with such direction
by the Required Secured Parties, directly or indirectly, by action at law or in
equity, in any proceeding arising under or affecting any Shared Collateral
Document in any collateral action. The Required Secured Parties and the
Collateral Agent when acting (including inaction) in accordance with the
instructions of the Required Secured Parties, as the case may be, will have no
fiduciary duty or (except as expressly provided in this Agreement and the other
Shared Collateral Documents) obligation to the other Secured Parties, and may
(subject to any limitations expressly imposed under this Agreement and the other
Shared Collateral Documents) act (or withhold action) totally without regard to
the effect of such action or inaction on the interests of all or any of the
Secured Parties.
3.02. Application of Proceeds. The proceeds of any collection, sale or
other realization pursuant to any of the Shared Collateral Documents of all or
any part of the Shared Collateral shall be allocated by the Collateral Agent:
First, to the payment of the reasonable costs and expenses of such
collection, sale or other realization, including reasonable out-of-pocket
costs and expenses of the Collateral Agent and the reasonable fees and
expenses of its agents and counsel, and all reasonable costs, expenses or
other liabilities incurred and advances made by the Collateral Agent in
connection with the Shared Collateral Documents;
Second, to the payment in full of the Secured Obligations, in each
case equally and ratably in accordance with the respective amounts thereof
then due and owing or as the Secured Parties holding the same may otherwise
agree; and
Finally, to the payment to the relevant Securing Parties, or their
respective successors or assigns, or as a court of competent jurisdiction
may direct, of any surplus then remaining.
3.03. Release of Shared Collateral. Except as otherwise provided in
Section 5.03 with respect to this Agreement, the Collateral Agent may consent to
the termination of any Pledge Agreement and the Liens thereunder or the release
of any Shared Collateral under any Pledge Agreement, (a) so long as no
Actionable Default shall have occurred and be continuing, with the prior consent
of each Administrative Agent (each acting with the consent of the
Amended and Restated Intercreditor and Collateral Agency Agreement
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requisite Lenders under the respective Credit Agreements) (but not otherwise)
and (b) at any time after and during the continuance of an Actionable Default,
with the prior consent of all of the Debt Holders (but not otherwise); provided
that, notwithstanding the foregoing, so long as no Actionable Default shall have
occurred and be continuing, the Collateral Agent may (and is hereby authorized
by each Secured Party to) consent to the termination of the Liens under any
Pledge Agreement covering, or the release of any Shared Collateral under any
Pledge Agreement consisting of, (i) property that is the subject of either a
disposition permitted under the Debt Agreements or a disposition to which the
requisite Debt Holders have consented under the respective Debt Agreements or
(ii) shares of non-voting Capital Stock of a Foreign Subsidiary of the Borrower
if the continuation of the pledge of such shares could have adverse tax
consequences for the Borrower.
3.04. Amendments to Shared Collateral Documents. Except as otherwise
provided in Sections 3.03 and 5.03, the Collateral Agent may, with the prior
consent of the Required Secured Parties (but not otherwise), consent to any
waiver, amendment, modification or supplement under any of the Shared Collateral
Documents (other than this Agreement); provided that no such waiver, amendment,
modification or supplement shall (a) be made, without the consent of each
Secured Party affected thereby, that would have the effect of modifying any of
the terms hereof (or any comparable provision in any other Shared Collateral
Document) that require the consent of such Secured Party under Section 5.03 or
(b) affect the rights or obligations of the Collateral Agent thereunder without
the consent of the Collateral Agent. Any such waiver, amendment or modification
shall be binding upon each Secured Party. Neither this Section 3.04 nor any
other provision of this Agreement shall in any way limit the ability of any Debt
Holder to waive, amend or otherwise modify any Debt Agreement to which it is a
party.
3.05. Additional Secured Parties; Execution of Joinder Agreement. In
the event the Borrower shall incur Other Debt on or after the date hereof from
time to time and the Borrower and the holder or holders of such Other Debt shall
agree that such Other Debt shall be secured by the Liens under the Shared
Collateral Documents, upon the effectiveness of the Debt Agreement providing for
such Other Debt and the incurrence of such Other Debt thereunder (or promptly
thereafter) each such holder shall execute and deliver a Joinder Agreement with
the Collateral Agent and the Borrower, whereupon each such holder shall, on the
effective date of such Joinder Agreement and without any further action on the
part of such holder (except as provided in the immediately succeeding sentence)
or any other Person, become an "Other Debt Holder" and a "Secured Party" for all
purposes of this Agreement and the obligations of the Borrower and/or any
Subsidiary Guarantors in respect of such Other Debt shall become "Secured
Obligations" hereunder. To the extent the obligations of the Borrower in respect
of such Other Debt are guaranteed by any of the Subsidiary Guarantors, each such
holder agrees, as a condition to the effectiveness of such Joinder Agreement, to
enter into and become party to the Sharing Agreement (as defined in the Credit
Agreements).
3.06. Additional Collateral and Securing Parties. The Borrower and the
Debt Holders agree that in the event at any time after the date hereof the
Borrower or any of its Subsidiaries shall agree to provide to any Debt Holder
(or its agent or representative) Liens on property of the Borrower or any such
Subsidiary not then subject to a Shared Collateral Document to secure the
Secured Obligations of such Debt Holder, such Person may only provide
Amended and Restated Intercreditor and Collateral Agency Agreement
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such Liens on a pari passu basis for the benefit of all of the Debt Holders by
entering into a new pledge, security or similar agreement (or an amendment to
any existing Shared Collateral Document) whereby such Person shall grant a
security interest in favor of the Collateral Agent (or a sub-agent thereof or
trustee reasonably acceptable to the Collateral Agent) for the benefit of all of
the Debt Holders in such property. Upon the entering into of such agreement (or
amendment, as the case may be), such property shall become "Shared Collateral"
under, and subject to the provisions of, this Agreement, such agreement (if any)
shall become a "Shared Collateral Document", and (in the case of any such
Subsidiary that is not a Securing Party at the time thereof) such Subsidiary
shall become a "Securing Party" under, and subject to the provisions of, this
Agreement, in each case automatically and without any further action on the part
of any Person, and the Debt Holders shall have rights in such property only to
the extent set forth in this Agreement and in the other Shared Collateral
Documents. Without limiting the foregoing, in the event the Borrower or any of
its Domestic Subsidiaries is required to pledge pursuant to any Debt Agreement
all or a portion of the Capital Stock of any Foreign Subsidiary formed or
acquired after the date hereof in favor of the Collateral Agent (or a sub-agent
thereof) for the benefit of the Secured Parties, the Borrower or such Domestic
Subsidiary shall, in accordance with this Section 3.06, execute and deliver to
the Collateral Agent a pledge agreement (or an amendment to an existing Pledge
Agreement) in form and substance satisfactory to the Collateral Agent and
consistent with the provisions of this Agreement.
Section 4. Representations and Warranties. Each party hereto hereby
represents and warrants for itself to the other parties hereto that (a) it has
all requisite power and authority to execute, deliver and perform under this
Agreement; (b) the execution, delivery and performance by it of this Agreement
has been duly authorized by all requisite corporate or other action; (c) no
consent or approval of any other Person and no consent, license, approval or
authorization of any governmental authority is required in connection with the
execution, delivery and performance by it of this Agreement; and (d) this
Agreement constitutes such party's legal, valid and binding obligation,
enforceable in accordance with its terms.
Section 5. Miscellaneous.
5.01. Notices, Etc. All notices, requests and other communications
provided for hereunder (including any modifications of, or waivers, requests or
consents under, this Agreement) shall be in writing, telecopied or delivered:
(a) if to any of the Securing Parties, care of Cambrex Corporation,
Xxx Xxxxxxxxxxx Xxxxx, Xxxx Xxxxxxxxxx, Xxx Xxxxxx 00000, Attention of Xxxx
Xxxxxxxxx, Vice President and Treasurer (Telecopy No. (000) 000-0000;
Telephone No. (000) 000-0000);
(b) if to the Collateral Agent, to JPMorgan Chase Bank, 0000 Xxxxxx
Xxxxxx, 0xx Xxxxx, Xxxxxxx, Xxxxx 00000-0000, Attention of Xxxxxxx Xxxx
(Telecopy No. (000) 000-0000; Telephone No. (000) 000-0000), with a copy to
JPMorgan Chase Bank, 000 Xxxxx 00 Xxxx, Xxxxxxxxx, XX 00000, Attention of
Xxxxxxx Xxxxx (Telecopy No. (000) 000-0000; Telephone No. (000) 000-0000);
Amended and Restated Intercreditor and Collateral Agency Agreement
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(c) if to the Administrative Agent, to JPMorgan Chase Bank, 0000
Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxx 00000-0000, Attention of Xxxxxxx
Xxxx (Telecopy No. (000) 000-0000; Telephone No. (000) 000-0000), with a
copy to JPMorgan Chase Bank, 000 Xxxxx 00 Xxxx, Xxxxxxxxx, XX 00000,
Attention of Xxxxxxx Xxxxx (Telecopy No. (973) 5019; Telephone No. (973)
000-0000); and
(d) if to any Other Debt Holder (other than the Lenders), at such Debt
Holder's address for communications as set forth in its Joinder Agreement;
or, as to each party (other than the Collateral Agent), at such other address as
shall be designated by such party in a written notice to the Collateral Agent
or, as to the Collateral Agent, at such other address as shall be designated by
the Collateral Agent in a written notice to the other parties hereto.
Notwithstanding anything herein to the contrary, any notice or other
communication or other action contemplated or required to be given hereunder to
any Lender party to a Credit Agreement shall be given instead to the
Administrative Agent under such Credit Agreement, on behalf of such Lender, at
the aforesaid address (and such Administrative Agent shall transmit such notice
to such Lender), and the Person giving such notice or such other communication
shall be fully protected in giving the same to such Administrative Agent in
accordance with this Section 5.01. All such notices and communications shall be
effective when received.
5.02. Waivers. No failure on the part of the Collateral Agent or any
other Secured Party to exercise, and no course of dealing with respect to, and
no delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise by the Collateral Agent
or any other Secured Party of any right, power or remedy hereunder preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy. The remedies herein are cumulative and are not exclusive of any remedies
provided by law.
5.03. Amendments, etc; Termination. The terms of this Agreement may be
waived, amended or modified only by an instrument in writing duly executed by
the Required Secured Parties or the Collateral Agent, with the consent of the
Required Secured Parties; provided that (a) no such waiver, amendment or
modification shall, without the consent of each Secured Party affected thereby,
change (i) any of the provisions of Section 2.01(b), 2.03(c), 3.03, 3.04, 3.06
or this Section 5.03, (ii) the definitions of "Actionable Default", "Event of
Default", "Pro Rata Share", "Secured Obligations", "Shared Collateral", "Shared
Collateral Documents" or "Secured Parties" or any percentage in the definition
of "Required Secured Parties", (iii) the pari passu ranking of the Liens granted
under the Shared Collateral Documents or the Secured Obligations secured
thereunder, (iv) the order of application of proceeds in respect of the Shared
Collateral under Section 3.02 or (v) any of the provisions of Section 3.01
specifying the number or percentage of Debt Holders authorized or required to
direct any decision, action or inaction by the Collateral Agent; (b) no such
waiver, amendment or modification shall affect the rights or obligations of the
Collateral Agent hereunder without the consent of the Collateral Agent; and (c)
no such waiver, amendment or modification shall affect the rights or obligations
of any Securing Party without the consent of such Securing Party. Any such
waiver or amendment shall be binding upon each Secured Party and each Securing
Party. This Agreement shall terminate and
Amended and Restated Intercreditor and Collateral Agency Agreement
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be of no further force and effect automatically and without further action on
the part of any party hereto upon the termination of each Shared Collateral
Document and release of the Liens thereunder; provided that the provisions of
Section 2.03 shall survive and remain in full force and effect regardless of the
termination of this Agreement.
5.04. Successors and Assigns; Third Party Beneficiaries. This
Agreement shall be binding upon and inure to the benefit of the respective
successors and assigns of each Securing Party, the Collateral Agent and each
other Secured Party (and the term "Secured Party" shall include any future
holder of Secured Obligations); provided that no Securing Party shall assign or
transfer its rights or obligations hereunder without the prior consent of the
Collateral Agent and the Required Secured Parties (and any attempted such
assignment or transfer by the Borrower without such consent shall be null and
void). No Debt Holder shall sell, assign or otherwise transfer any interest in
any Secured Obligations unless the purchaser, assignee or transferee thereof
shall agree in writing to be bound by the terms of this Agreement pursuant to an
instrument in form and substance reasonably satisfactory to the Collateral
Agent. No Person (including any Securing Party, except with respect to any
rights expressly provided to such Securing Party hereunder), other than the Debt
Holders, the Administrative Agent and the Collateral Agent and their respective
successors and assigns, shall have any rights under this Agreement. Nothing in
this Agreement is intended or shall be construed to impair, diminish or
otherwise adversely affect any other right any Secured Party may have or may
obtain against any Securing Party under the Debt Agreement to which such
Securing Party is a party or otherwise.
5.05. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
5.06. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the law of the State of New York.
5.07. Jurisdiction. Each of the Securing Parties hereby irrevocably
and unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement, or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that any party
may otherwise have to bring any action or proceeding relating to this Agreement
in the courts of any jurisdiction.
5.08. Waiver of Venue. Each of the Securing Parties hereby irrevocably
and unconditionally waives, to the fullest extent it may legally and effectively
do so, any objection which it may now or hereafter have to the laying of venue
of any suit, action or proceeding
Amended and Restated Intercreditor and Collateral Agency Agreement
-17-
arising out of or relating to this Agreement in any court referred to in Section
5.07. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
5.09. Service of Process. Each party to this Agreement irrevocably
consents to service of process in the manner provided for notices in Section
5.01. Nothing in this Agreement will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
5.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
5.11. Captions. The captions and section headings appearing herein are
included solely for convenience of reference and are not intended to affect the
interpretation of any provision of this Agreement.
5.12. Entire Agreement. This Agreement represents the entire agreement
among the Debt Holders and supersedes all prior agreements with respect to the
subject matter hereof.
5.13. Effectiveness. This Agreement shall become effective upon the
execution and delivery of (a) this Agreement by each Securing Party, each
Administrative Agent and the Collateral Agent and (b) a Joinder Agreement by the
Borrower, the Collateral Agent and each Purchaser under and as defined in that
certain Note Purchase Agreement dated as of the date hereof between the Borrower
and such Purchasers, and in each case delivery of executed counterparts thereof
to the Collateral Agent.
Amended and Restated Intercreditor and Collateral Agency Agreement
-18-
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Intercreditor and Collateral Agency Agreement to be duly executed by
their respective authorized officers as of the day and year first above written.
BORROWER
CAMBREX CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
SUBSIDIARIES
CAMBREX BIO SCIENCE WALKERSVILLE, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Amended and Restated Intercreditor and Collateral Agency Agreement
-19-
364-DAY ADMINISTRATIVE AGENT
JPMORGAN CHASE BANK,
as 364-Day Administrative Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Amended and Restated Intercreditor and Collateral Agency Agreement
-20-
FIVE-YEAR ADMINISTRATIVE AGENT
JPMORGAN CHASE BANK,
as Five-Year Administrative Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Amended and Restated Intercreditor and Collateral Agency Agreement
-21-
COLLATERAL AGENT
JPMORGAN CHASE BANK,
as Collateral Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Amended and Restated Intercreditor and Collateral Agency Agreement
EXHIBIT A
Joinder Agreement
_____________, 200__
To the Borrower (as hereinafter defined)
and the Collateral Agent (as defined
in the Intercreditor and Collateral
Agency Agreement hereinafter referred to)
Ladies and Gentlemen:
Reference is made to the Amended and Restated Intercreditor and
Collateral Agency Agreement, dated as of June 23, 2003 (as amended, restated or
otherwise modified from time to time, the "Intercreditor and Collateral Agency
Agreement"), among Cambrex Corporation (the "Borrower"), each of the
Subsidiaries party thereto, JPMorgan Chase Bank, as 364-Day Administrative
Agent, JPMorgan Chase Bank, as Five-Year Administrative Agent, each of the
holders of other Indebtedness of the Borrower that has become party thereto by
the execution of a Joinder Agreement and JPMorgan Chase Bank, as Collateral
Agent. Capitalized terms used herein and not otherwise defined have the meaning
ascribed to such terms in the Intercreditor and Collateral Agency Agreement or,
if not defined therein, in the Credit Agreements.
[OTHER DEBT HOLDER], (the "Other Debt Holder") has entered into a
[DESCRIBE DEBT AGREEMENT] with the Borrower pursuant to which the Borrower has
incurred Indebtedness owing to the Other Debt Holder in an aggregate outstanding
principal amount equal to $_______________ (the "Other Debt"). The Other Debt
Holder wishes to provide for the securing of the Other Debt by the Liens under
the Shared Collateral Documents and, accordingly, hereby agrees as follows
pursuant to Section 3.05 of the Intercreditor and Collateral Agency Agreement:
1. Intercreditor and Collateral Agency Agreement. The Other Debt
Holder shall become, and by execution and delivery of this Agreement does
become, and does assume each and every one of the rights and obligations of, an
"Other Debt Holder" under and as defined in the Intercreditor and Collateral
Agency Agreement.
2. Address for Notices, etc. The following address of the Other Debt
Holder is to be used for purposes of notices, requests and other communications
pursuant to Section 5.01 of the Intercreditor and Collateral Agency Agreement:
____________________
____________________
____________________
____________________
Intercreditor and Collateral Agency Agreement
-2-
3. Further Assurances. The Other Debt Holder shall cooperate with the
other Secured Parties and execute such further instruments and documents as the
Collateral Agent shall reasonably request to effect, to the reasonable
satisfaction of the Collateral Agent, the purposes of this Agreement.
4. Binding Effect. This Agreement shall be binding upon the Other Debt
Holder and shall inure to the benefit of the Secured Parties and their
respective successors and assigns.
5. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the law of the State of New York.
6. Effectiveness. This Agreement shall become effective as of the date
on which each of the Borrower and the Collateral Agent shall have accepted this
Agreement as provided on the signature pages below; provided that, to the extent
the obligations of the Borrower in respect of the Other Debt are guaranteed by
any of the Subsidiary Guarantors, this Agreement shall not become effective
unless and until the Other Debt Holder shall have entered into and become party
to the Sharing Agreement (as defined in the Credit Agreements).
Intercreditor and Collateral Agency Agreement
IN WITNESS WHEREOF, the Other Debt Holder has caused this Agreement to
be executed on its behalf by one of its duly authorized officers.
[OTHER DEBT HOLDER]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Accepted:
_________, 200_
JPMORGAN CHASE BANK,
as Collateral Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
_________, 200_
CAMBREX CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Intercreditor and Collateral Agency Agreement
EXHIBIT D
EXECUTION COPY
================================================================================
SHARING AGREEMENT
Dated as of June 23, 2003
AMONG
JPMORGAN CHASE BANK,
as 364-Day Facility Agent,
JPMORGAN CHASE BANK,
as Five-Year Facility Agent,
THE BANK LENDERS WHICH ARE PARTIES HERETO
AND
THE NOTEHOLDERS WHICH ARE PARTIES HERETO
================================================================================
TABLE OF CONTENTS
SECTION HEADING PAGE
------- ------- ----
Parties 1
Recitals ............................................... 1
Section 1 Definitions ................................................... 2
Section 2 Sharing of Recoveries ......................................... 5
Section 2.1. Pro Rata Share ......................................... 5
Section 2.2. Letters of Credit ...................................... 7
Section 3 Agreements Among The Creditors ................................ 8
Section 3.1. Independent Actions by Creditors ....................... 8
Section 3.2. Relation of Creditors .................................. 8
Section 3.3. Acknowledgment of Guaranties ........................... 8
Section 4 Additional Parties ............................................ 8
Section 4.1. Additional Credit Agreement ............................ 8
Section 4.2. Additional Note Purchase Agreements .................... 8
Section 5 Miscellaneous ................................................. 9
Section 5.1. Entire Agreement ....................................... 9
Section 5.2. Notices ................................................ 9
Section 5.3. Successors and Assigns ................................. 9
Section 5.4. Consents, Amendment, Waivers ........................... 9
Section 5.5. Governing Law .......................................... 9
Section 5.6. Counterparts ........................................... 9
Section 5.7. Sale of Interest ....................................... 9
Section 5.8. Severability ........................................... 9
Section 5.9. Expenses ............................................... 10
-i-
Section 5.10. Term of Agreement ...................................... 10
Section 5.12. Submission to Jurisdiction ............................. 10
Section 5.11. WAIVER OF JURY TRIAL ................................... 10
Signature Page ......................................... 11
-ii-
SHARING AGREEMENT
This SHARING AGREEMENT (the or this "Agreement"), dated as of June 23,
2003, is made by and among JPMORGAN CHASE BANK, in its capacity as 364-Day
Facility Agent (as hereinafter defined), JPMORGAN CHASE BANK, in its capacity as
Five-Year Facility Agent (as hereinafter defined), each of the Bank Lenders (as
hereinafter defined) and each of the Noteholders (as hereinafter defined).
RECITALS:
A. Under and pursuant to that certain Note Purchase Agreement dated as of
June 23, 2003 (as amended, restated, supplemented or otherwise modified from
time to time, the "2003 Note Purchase Agreement") by and among CAMBREX
CORPORATION, a Delaware corporation (the "Company"), and each of the
institutional investors named in Schedule A attached thereto (the "2003
Noteholders"), the Company has issued and sold its 5.31% Senior Notes due June
23, 2010 in an aggregate principal amount of $75,000,000 (the "2003 Notes").
B. Under and pursuant to that certain Subsidiary Guaranty dated as of June
23, 2003 (as amended, restated, joined, supplemented or otherwise modified from
time to time, the "2003 Noteholder Guaranty"), certain subsidiaries of the
Company party thereto (the "2003 Noteholders Subsidiary Guarantors") have
absolutely and unconditionally guarantied to the 2003 Noteholders the payment of
the principal, Make-Whole Amount, if any, and interest in respect of the 2003
Notes and the payment and performance of all other obligations of the Company in
respect of the 2003 Note Purchase Agreement.
C. Under and pursuant to that certain Five-Year Credit Agreement dated as
of November 28, 2001 (as amended, restated, supplemented or otherwise modified
from time to time, the "Five-Year Facility") by and among the Company, certain
subsidiaries of the Company party thereto who are guarantors of the Company's
obligations thereunder (the "Five-Year Facility Subsidiary Guarantors"),
JPMorgan Chase Bank, in its capacity as administrative agent (the "Five-Year
Facility Agent"), and the financial institutions and other lenders party thereto
(the "Five-Year Facility Lenders"), the Five-Year Facility Lenders have made
loans and other credit accommodations available to the Company for its working
capital and other general corporate purposes up to an aggregate amount of
$268,750,000 as of the date hereof (all amounts from time to time outstanding in
respect of the Five-Year Facility being hereinafter collectively referred to as
the "Five-Year Loans").
D. Under and pursuant to that certain 364-Day Credit Agreement dated as of
November 28, 2001 (as amended, restated, supplemented or otherwise modified from
time to time, the "364-Day Facility") by and among the Company, certain
subsidiaries of the Company party thereto who are guarantors of the Company's
obligations thereunder (the "364-Day Facility Subsidiary Guarantors"), JPMorgan
Chase Bank, in its capacity as administrative agent (the "364-Day Facility
Agent"), and the financial institutions and other lenders party thereto (the
"364-Day Facility Lenders"), the 364-Day Facility Lenders have made loans and
other credit
accommodations available to the Company for its working capital and other
general corporate purposes up to an aggregate amount of $157,500,000 as of the
date hereof (all amounts from time to time outstanding in respect of the 364-Day
Facility being hereinafter collectively referred to as the "364-Day Loans," and
the 364-Day Loans, together with the Five-Year Loans are hereinafter
collectively referred to as the "Existing Loans"). The Five-Year Facility and
the 364-Day Facility are hereinafter collectively referred to as the "Existing
Bank Credit Agreements," and the Five-Year Facility Lenders and the 364-Day
Facility Lenders are hereinafter collectively referred to as the "Existing Bank
Lenders." The Five-Year Facility Subsidiary Guarantors and the 364-Day Facility
Subsidiary Guarantors are hereinafter collectively referred to as the "Existing
Bank Subsidiary Guarantors."
E. Under and pursuant to the Existing Bank Credit Agreements, the Existing
Bank Subsidiary Guarantors have absolutely and unconditionally guarantied to the
Bank Lenders the payment of all obligations of the Company in respect of the
separate Existing Bank Credit Agreements (the guaranties from the Existing Bank
Subsidiary Guarantors therein, as amended, restated, joined, supplemented or
otherwise modified from time to time, are hereinafter collectively referred to
the "Existing Bank Guaranties").
F. The parties hereto desire to provide for, inter alia, the equal and
ratable sharing of payments received from the Subsidiary Guarantors under the
Bank Guaranties and the Noteholder Guaranties. The Bank Guaranties, the
Noteholder Guaranties and any other guaranty executed by a subsidiary of the
Company for the benefit of a Creditor which becomes a party to this Agreement
pursuant to Section 4 are hereinafter referred to collectively as the
"Subsidiary Agreements." The terms "Subsidiary Guarantors" and "Subsidiary
Guarantor" shall mean and include any subsidiary of the Company that delivers or
is required to deliver a Subsidiary Agreement.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS.
The following terms shall have the meanings assigned to them below in this
Section 1 or in the provisions of this Agreement referred to below:
"Additional Credit Agreement" shall mean any replacement, refinancing or
restructuring of either of the Existing Bank Credit Agreements (or any
replacement, refinancing or restructuring thereof); provided that each
Additional Lender thereunder or an agent acting on behalf of all such Additional
Lenders has executed an acknowledgment to this Agreement in the form of EXHIBIT
A attached hereto.
"Additional Lender" shall mean any lender which has entered into an
Additional Credit Agreement with the Company and in accordance with Section 4
has agreed that the obligations of the Company in respect of such Additional
Credit Agreement constitute Subject Obligations under this Agreement.
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"Additional Loans" shall have the meaning assigned thereto in Section 4.
"Additional Note Purchase Agreement" shall have the meaning assigned
thereto in Section 4.
"Additional Notes" shall have the meaning assigned thereto in Section 4.
"Additional Noteholder" shall mean any institutional investor which has
purchased a 2003 Note from a 2003 Noteholder or which has entered into a
financing agreement with the Company and the Subsidiary Guarantors and in
accordance with Section 4 has agreed that the obligations in respect of such
financing agreement shall constitute Subject Obligations under this Agreement.
"Bank Credit Agreements" shall mean the Existing Bank Credit Agreements and
any Additional Credit Agreement, if any.
"Bank Guaranties" shall mean the Existing Bank Guaranties and any other
guaranty by a subsidiary of the Company delivered pursuant to an Existing Bank
Credit Agreement or an Additional Credit Agreement, if any.
"Bank Lenders" shall mean the Existing Bank Lenders and any Additional
Lender, if any.
"Bankruptcy Proceeding" shall mean, with respect to any Person, (i) the
filing by such Person, or consent by answer or otherwise to the filing against
it of, a petition for relief or reorganization or arrangement or any other
petition in bankruptcy, for liquidation or to take advantage of any bankruptcy,
insolvency, reorganization, moratorium or other similar law of any jurisdiction,
(ii) the making of an assignment for the benefit of such Person's creditors,
(iii) consent by such Person to the appointment of a custodian, receiver,
trustee or other officer with similar powers with respect to such Person or with
respect to any substantial part of its property, (iv) the adjudication of such
Person as insolvent or to be liquidated, (v) the taking by such Person of
corporate action for the purpose of any of the foregoing, or (vi) the entry by a
court or governmental authority of competent jurisdiction of an order
appointing, without consent by such Person, a custodian, receiver, trustee or
other officer with similar powers with respect to it or with respect to any
substantial part of its property, or constituting an order for relief or
approving a petition for relief or reorganization or any other petition in
bankruptcy or for liquidation or to take advantage of any bankruptcy or
insolvency law of any jurisdiction, or ordering the dissolution, winding-up or
liquidation of such Person.
"Company" shall have the meaning assigned thereto in the Recitals hereof.
"Creditor" shall mean the Existing Bank Lenders, the Existing Noteholders
and each of the Additional Lenders, if any, and each of the Additional
Noteholders, if any, that become parties hereunder as contemplated by Section 4.
"Distribution Agent" shall have the meaning assigned thereto in Section 2.
-3-
"Excess Subsidiary Payment" shall mean as to any Creditor an amount equal
to the Subsidiary Payment received by such Creditor less the Pro Rata Share of
Subsidiary Payments to which such Creditor is then entitled.
"Existing Bank Credit Agreements" shall have the meaning assigned thereto
in the Recitals hereof.
"Existing Bank Guaranties" shall have the meaning assigned thereto in the
Recitals hereof.
"Existing Bank Lenders" shall have the meaning assigned thereto in the
Recitals hereof.
"Existing Loans" shall have the meaning assigned thereto in the Recitals
hereof.
"Loans" shall mean the Existing Loans and the Additional Loans, if any.
"Make-Whole Amount" shall have the meaning assigned thereto in the
applicable Note Purchase Agreement.
"Note Purchase Agreements" shall mean the 2003 Note Purchase Agreement and
any Additional Note Purchase Agreement, if any.
"Noteholder Guaranties" shall mean the 2003 Noteholder Guaranty and any
other guaranty by a subsidiary of the Company delivered pursuant to an
Additional Note Purchase Agreement, if any.
"Noteholders" shall mean the 2003 Noteholders and any Additional
Noteholders, if any.
"Notes" shall mean the 2003 Notes and any Additional Notes, if any.
"Person" shall mean an individual, partnership, limited liability company,
corporation, trust or unincorporated organization, and a government or agency or
a political subdivision thereof.
"Pro Rata Share of Subsidiary Payments" shall mean, as of the date of any
Subsidiary Payment to a Creditor in respect of a Subsidiary Agreement, an amount
equal to the product obtained by multiplying (x) the amount of all Subsidiary
Payments made by the Subsidiary Guarantors to all Creditors concurrently with
the payments to such Creditor less all reasonable costs incurred by such
Creditors in connection with the collection of such Subsidiary Payments by (y) a
fraction, the numerator of which shall be the Specified Amount owing to such
Creditor, and the denominator of which is the aggregate amount of all
outstanding Subject Obligations (without giving effect to the application of any
such Subsidiary Payments).
"Receiving Creditor" shall have the meaning assigned thereto in Section 2.
-4-
"Required Creditors" shall mean (a) the "Required Lenders" under and as
defined in each Existing Bank Credit Agreement as in effect on the date hereof,
(b) the "Required Lenders" (or comparable term) under and as defined in each
Additional Credit Agreement (so long as the requisite voting percentage is not
higher than set forth under clause (a) above), (c) the "Required Holders" under
and as defined in the 2003 Note Purchase Agreement as in effect on the date
hereof and (d) the "Required Holders" (or comparable term) under and as defined
in each Additional Note Purchase Agreement (so long as the requisite voting
percentage is not higher than set forth under clause (c) above).
"Special Account" shall have the meaning assigned thereto in Section 2.2.
"Specified Amount" shall mean, as to any Creditor, the aggregate amount of
the Subject Obligations owed to such Creditor.
"Subject Obligations" shall mean all principal, Make-Whole Amount or other
premium, if any, and interest in respect of the Notes and the Loans and all
other obligations of the Company under or in respect of the Notes and the Loans
and under the Note Purchase Agreements and the Bank Credit Agreements and any
other obligations of the Company to the Bank Lenders or to the Noteholders which
are guaranteed pursuant to the Bank Guaranties or the Noteholder Guaranties;
provided that any amount of such Subject Obligations which is not allowed as a
claim enforceable against the Company in a Bankruptcy Proceeding under
applicable law shall be excluded from the computation of "Subject Obligations"
hereunder.
"Subsidiary Agreement" shall have the meaning assigned thereto in the
Recitals hereof.
"Subsidiary Guarantor" shall have the meaning assigned thereto in the
Recitals hereof.
"Subsidiary Payments" shall have the meaning assigned thereto in Section
2.1.
"2003 Note Purchase Agreement" shall have the meaning assigned thereto in
the Recitals hereof.
"2003 Notes" shall have the meaning assigned thereto in the Recitals
hereof.
"2003 Noteholder Guaranty" shall have the meaning assigned thereto in the
Recitals hereof.
"2003 Noteholders" shall have the meaning assigned thereto in the Recitals
hereof.
"2003 Noteholders Subsidiary Guarantors" shall have the meaning assigned
thereto in the Recitals hereof.
SECTION 2. SHARING OF RECOVERIES.
Section 2.1. Pro Rata Share. Each Creditor hereby agrees with each other
Creditor that payments (including payments made through setoff of deposit
balances or otherwise or payments
-5-
or recoveries from any security interest granted by any Subsidiary Guarantor to
any Creditor securing any Subsidiary Agreement) made by a Subsidiary Guarantor
pursuant to the terms of the Subsidiary Agreements ("Subsidiary Payments") (x)
following the commencement of a Bankruptcy Proceeding with respect to any of the
Subsidiary Guarantors or the Company or (y) following the acceleration of the
Notes or the Loans, shall be shared so that each Creditor shall receive its Pro
Rata Share of Subsidiary Payments. Accordingly, each Creditor hereby agrees that
in the event (a) an event described in clause (x) or (y) above shall have
occurred, (b) any Creditor shall receive a Subsidiary Payment (a "Receiving
Creditor"), and (c) any other Creditor shall not concurrently receive its Pro
Rata Share of Subsidiary Payments from the Subsidiary Guarantors (an "Affected
Creditor"), then the Receiving Creditor shall promptly remit the Excess
Subsidiary Payment to each other Creditor who shall then be entitled thereto so
that, after giving effect to such payment (and any other payments then being
made by any other Receiving Creditor pursuant to this Section 2), each Creditor
shall have received its Pro Rata Share of Subsidiary Payments. Each Creditor
(or, for purposes of this Agreement with respect to the Creditors party to a
Bank Credit Agreement, the Person serving as administrative agent for such
Creditors thereunder) shall promptly give notice to the other Creditors upon the
acceleration of the Notes or the Loans, as the case may be, under the respective
Note Purchase Agreement or Bank Credit Agreement to which such Creditor is a
party. For avoidance of doubt, the parties hereto agree that (i) any payments
made by the Company in respect of any Subsidiary Guarantor's obligations under
any Subsidiary Agreement shall not be subject to sharing pursuant to this
Agreement and (ii) any payments made by a Subsidiary Guarantor shall not be
subject to sharing pursuant to this Agreement unless at the time of such payment
an event described in clause (x) or (y) of this Section 2.1 shall have occurred
and be continuing.
Any such payments by a Receiving Creditor in respect of an Excess
Subsidiary Payment shall be deemed to be and shall be made by such Receiving
Creditor in consideration of the purchase for cash at face value, but without
recourse, ratably from the Affected Creditors of a participation interest in
such amount of Notes or Loans (or interest therein or any other amounts in
respect thereof), as the case may be, necessary to cause such Receiving Creditor
to share such Excess Subsidiary Payment with the Affected Creditors as provided
in this Section 2; provided, however, that if any such purchase or payment is
made by any Receiving Creditor and if such Excess Subsidiary Payment or part
thereof is thereafter recovered from such Receiving Creditor by the Subsidiary
Guarantors (including, without limitation, by any trustee in bankruptcy of the
Subsidiary Guarantors or any creditor thereof), the related purchase from the
Affected Creditors shall be rescinded ratably and the purchase price restored as
to the portion of such Excess Subsidiary Payment so recovered, with interest
(but only to the extent that such Receiving Creditor is obligated to pay
interest on the amount so recovered to the relevant Subsidiary Guarantor); and
provided further nothing herein contained shall obligate any Creditor to resort
to any setoff, application of deposit balance or other means of payment under
any Subsidiary Agreement or avail itself of any recourse by resort to any
property of the Company or the Subsidiary Guarantors, the taking of any such
action to remain within the absolute discretion of such Creditor without
obligation of any kind to the other Creditors to take any such action. To the
extent that the obligations in respect of the Notes or the Loans, as the case
may be, held by any Affected Creditor on the date of such purchase shall consist
of one or more types of claims against the Company and its subsidiaries (such as
of principal, interest, premium, fees or other claims), such purchase by the
Receiving Creditor shall be effected by way of a purchase of a
-6-
ratable participation in each of such claims, so that the Receiving Creditor
obtains upon such purchase an equivalent amount of such obligations of each type
held by the Affected Creditor on the date of such purchase. Thereafter, any
payments received by the Affected Creditor in respect of such obligations of any
type held by it (including the obligations of such type in which it has sold a
participation pursuant to this Section 2) shall be applied to such obligations
of such type (including any interest in respect of such obligations accrued
after the date of such participation) ratably, without preference of any such
obligations of such type held by the Affected Creditor in which it has not sold
such a participation over any such obligations of such type held by the Affected
Creditor over which it has sold such a participation. Notwithstanding the
foregoing, if following any such purchase of a participation in any such
obligations held by an Affected Creditor any Receiving Creditor shall request
that such participation interest be converted into a direct interest in such
obligations, the Affected Creditor will execute and deliver such instruments of
assignment as shall be necessary in order that the Receiving Creditor shall have
a direct claim against the Company and its applicable subsidiaries with respect
to such obligations in which the Receiving Creditor shall have obtained such
participation. By their signatures below, each of the Company and the Subsidiary
Guarantors, on behalf of themselves and each of their subsidiaries, consents to
any such acquisition by the Receiving Creditor of a direct interest in such
obligations and agrees to cooperate in connection with the conversion of such
participation interests into direct interests. Without limiting the foregoing,
each Creditor hereby agrees that in the event of an event described under clause
(x) or (y) of this Section 2.1, the Required Creditors shall promptly appoint an
agent for the Creditors (the "Distribution Agent") to distribute the amounts
required to be shared pursuant to this Agreement. The Distribution Agent
appointed hereunder shall execute, acknowledge and deliver to each Creditor an
instrument, satisfactory to the Required Creditors, accepting such appointment
and agreeing to be bound by the terms of this Agreement, and setting forth the
provisions governing such appointment and duties of the Distribution Agent
hereunder (including an indemnity from the Creditors) and the procedures by
which the Distribution Agent shall calculate and distribute amounts required to
be shared pursuant to this Agreement. A copy of such instrument, as executed,
shall be delivered to each Creditor and such instrument shall be binding on all
of the Creditors. Upon the appointment of the Distribution Agent, each Receiving
Creditor shall remit any amounts subject to sharing under this Section 2.1 to
the Distribution Agent for distribution in accordance with such procedures.
Failure to appoint a Distribution Agent shall not impair, or otherwise give rise
to any defense to, the obligation on the part of any Receiving Creditor to share
Subsidiary Payments with Affected Creditors in accordance with this Section 2.
Section 2.2. Letters of Credit. Notwithstanding anything herein to the
contrary, any amounts to be distributed to the Bank Lenders after an event
described in clause (x) or (y) of Section 2.1 above for application as provided
in a Bank Credit Agreement with respect to the undrawn portion of any
outstanding letters of credit issued by the Bank Lenders shall be segregated and
held by the Bank Lenders receiving the same in an interest bearing account (the
"Special Account") as collateral security for such liabilities until a drawing
thereon, at which time such amounts, together with the interest accrued thereon,
shall be applied to such letter of credit liabilities. If any such letters of
credit expire without having been drawn upon in full, amounts held in the
Special Account with respect to the undrawn portion of such letters of credit,
together with the interest accrued thereon, shall be treated as a Subsidiary
Payment and shared in the manner provided in Section 2.1.
-7-
SECTION 3. AGREEMENTS AMONG THE CREDITORS.
Section 3.1. Independent Actions by Creditors. Nothing contained in this
Agreement shall prohibit any Creditor from accelerating the maturity of, or
demanding payment from the Subsidiary Guarantors on, any Subject Obligation of
the Company to such Creditor or from instituting legal action against the
Company or any Subsidiary Guarantor or to obtain a judgment or other legal
process in respect of such Subject Obligation, but (in the event of an event
described in clause (x) or (y) of Section 2.1) any funds received from the
Subsidiary Guarantors in connection with any recovery under any Subsidiary
Agreement shall be subject to the terms of this Agreement.
Section 3.2. Relation of Creditors. This Agreement is entered into solely
for the purposes set forth herein, and no Creditor assumes any responsibility to
any other party hereto to advise such other party of information known to such
Creditor regarding the financial condition of the Company or the Subsidiary
Guarantors or of any other circumstances bearing upon the risk of nonpayment of
the Subject Obligations. Each Creditor specifically acknowledges and agrees that
nothing contained in this Agreement is or is intended to be for the benefit of
the Company or the Subsidiary Guarantors and nothing contained herein shall
limit or in any way modify any of the obligations of the Company or the
Subsidiary Guarantors to the Creditors.
Section 3.3. Acknowledgment of Guaranties. The Bank Lenders hereby
expressly acknowledge the existence of the Noteholder Guaranties and the
Noteholders hereby expressly acknowledge the existence of the Bank Guaranties.
SECTION 4. ADDITIONAL PARTIES.
Section 4.1. Additional Credit Agreements. The Company may enter into one
or more Additional Credit Agreements, in which case any obligations of the
Company thereunder that are guaranteed by any of its subsidiaries (the
"Additional Loans") shall be treated as Subject Obligations under this
Agreement; provided that (i) each Additional Lender party to such Additional
Credit Agreement, or the agent on behalf of all such Additional Lenders, shall
sign an acknowledgment in the form of EXHIBIT A attached to this Agreement, by
which each such Additional Lender agrees to be bound by the terms of this
Agreement, and (ii) such Additional Lender (or the administrative agent on
behalf of such Additional Lender) or the Company shall deliver a copy of the
Additional Credit Agreement, the related Subsidiary Agreement and the
acknowledgment to each existing Creditor.
Section 4.2. Additional Note Purchase Agreements. The Company may enter
into one or more new Note Purchase Agreements (each, an "Additional Note
Purchase Agreement") from time to time, in which case any promissory notes
issued and sold by the Company pursuant thereto that are guaranteed by any of
its subsidiaries (the "Additional Notes") shall be treated as Subject
Obligations under this Agreement; provided that (i) each Additional Noteholder
party to such Additional Note Purchase Agreement shall sign an acknowledgment in
the form of EXHIBIT B attached to this Agreement, by which each such Additional
Noteholder agrees to be bound by the terms of this Agreement and (ii) such
Additional Noteholder (or the Company on
-8-
behalf of such Additional Noteholder) shall deliver a copy of the Additional
Note Purchase Agreement, the related Subsidiary Agreement and the acknowledgment
to each existing Creditor.
SECTION 5. MISCELLANEOUS.
Section 5.1. Entire Agreement. This Agreement represents the entire
Agreement among the Creditors.
Section 5.2. Notices. Notices hereunder shall be given to the Creditors at
their addresses as set forth in the Note Purchase Agreements or the Bank Credit
Agreements, as the case may be, or at such other address as may be designated by
each in a written notice to the other parties hereto.
Section 5.3. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of each of the Creditors and their respective
successors and assigns, whether so expressed or not, and, in particular, shall
inure to the benefit of and be enforceable by any future holder or holders of
any Subject Obligations, and the term "Creditor" shall include any such
subsequent holder of Subject Obligations, wherever the context permits.
Section 5.4. Consents, Amendment, Waivers. Except as otherwise provided,
neither this Agreement nor any provision hereof may be altered, amended,
modified or waived except in a writing executed by the Required Creditors,
provided that (i) no such alteration, amendment, modification or waiver shall
affect the rights or obligations of any individual Creditor (unless affecting
all other Creditors to substantially the same extent) without the consent of
such Creditor and (ii) no such alteration, amendment, modification or waiver
shall affect the rights or obligations of the Company or any of its subsidiaries
without the consent of such Person.
SECTION 5.5. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW
OF THE STATE OF NEW YORK, EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH
STATE THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER
THAN SUCH STATE.
Section 5.6. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one Agreement, and
any of the parties hereto may execute this agreement by signing any such
counterpart.
Section 5.7. Sale of Interest. No Creditor will sell, transfer or otherwise
dispose of any interest in the Subject Obligations unless such purchaser or
transferee shall agree, in writing, to be bound by the terms of this Agreement,
or unless the Subject Obligations are sold, transferred or disposed of at a time
when the Subsidiary Agreements are no longer in effect for the benefit of such
Subject Obligations.
Section 5.8. Severability. In case any one or more of the provisions
contained in this Agreement shall be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
of this Agreement shall not in any way be affected or impaired thereby.
-9-
Section 5.9. Expenses. In the event of any litigation to enforce this
Agreement, the prevailing party shall be entitled to its reasonable attorney's
fees (including the allocated costs of in-house counsel).
Section 5.10. Term of Agreement. This Agreement shall terminate when all
Subject Obligations are paid in full and such payments are not subject to any
possibility of revocation or rescission or until all of the parties hereto
mutually agree in a writing to terminate this Agreement.
Section 5.11. Submission to Jurisdiction. Each party hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the Supreme Court of the State of New York sitting
in New York County and of the United States District Court of the Southern
District of New York, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that any party
hereto may otherwise have to bring any action or proceeding relating to this
Agreement against any other party hereto or its properties in the courts of any
jurisdiction.
Section 5.12. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Signature Pages Follow
-10-
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed as of the date first above written.
JPMORGAN CHASE BANK,
Individually, as 364-Day Facility Agent
and as Five-Year Facility Agent
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
BANK OF AMERICA, N.A.
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
THE BANK OF NEW YORK
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
FLEET NATIONAL BANK
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ABN AMRO BANK N.V.
By
-------------------------------------
-11-
Name:
----------------------------------
Title:
---------------------------------
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
AIB INTERNATIONAL FINANCE
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
THE BANK OF NOVA SCOTIA
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
BANK ONE, NA (Main Office Chicago)
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
CIBC INC.
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
-12-
CREDIT LYONNAIS NEW YORK BRANCH
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
INTERNATIONAL", NEW YORK BRANCH
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
PB CAPITAL CORPORATION
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
PNC BANK, NATIONAL ASSOCIATION
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
-13-
SVENSKA HANDELSBANKEN,
NEW YORK BRANCH
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
SANPAOLO IMI S.p.A.
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
BEAR XXXXXXX CORPORATE LENDING INC.
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
-14-
AIG ANNUITY INSURANCE COMPANY
FIRST SUNAMERICA LIFE INSURANCE COMPANY
AIG SUNAMERICA LIFE ASSURANCE COMPANY
By: AIG Global Investment Corp.,
investment adviser
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
-15-
NEW YORK LIFE INSURANCE COMPANY
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
NEW YORK LIFE INSURANCE AND ANNUITY
CORPORATION
By: New York Life Investment Management
LLC, Its Investment Manager
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
NEW YORK LIFE INSURANCE AND ANNUITY
CORPORATION
INSTITUTIONALLY OWNED LIFE INSURANCE
SEPARATE ACCOUNT
By: New York Life Investment Management
LLC, Its Investment Manager
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
-16-
The undersigned hereby acknowledge, consent and agree to the foregoing
Agreement.
CAMBREX CORPORATION
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
XXXXXXXXXX CHEMICALS, INC.
CAMBREX BIO SCIENCE HOPKINTON, INC.
CBM INTELLECTUAL PROPERTIES, INC.
CASCHEM INTERNATIONAL, INC.
CAMBREX BIO SCIENCE ROCKLAND, INC.
CAMBREX BIO SCIENCE WALKERSVILLE, INC.
CAMBREX XXXXXXX CITY, INC.
COSAN CHEMICAL CORPORATION NEPERA, INC.
THE XXXXXXXX CHEMICAL COMPANY, INC.
CASCHEM, INC.
ZEELAND CHEMICALS, INC.
CAMBREX BIO SCIENCE BALTIMORE, INC.
CBM TECHNOLOGIES, INC.
NORDIC SYNTHESIS, INC.
CAMBREX ABSORPTION SYSTEMS, INC.
CAMBREX NORTH BRUNSWICK, INC.
NEPCAM, INC.
BIOWHITTAKER HOLDINGS, INC.
By
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
-17-
NEPERA FOREIGN SALES CORPORATION
BIOWHITTAKER USVI, INC.
By
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Director
-18-
BIOWHITTAKER TECHNOLOGIES, INC.
By
-------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
-19-
FORM OF ACKNOWLEDGMENT
TO
SHARING AGREEMENT
FOR ADDITIONAL LENDERS
Reference is hereby made to the Sharing Agreement dated as of June 23, 2003
(the "Agreement"), among JPMorgan Chase Bank and the Noteholders party thereto
and certain other parties, if any, thereto. The undersigned [Additional Lender]
[, as administrative agent for the Additional Lenders party to such Credit
Agreement,] has entered into a [Credit Agreement] dated as of _______________
with CAMBREX CORPORATION, a Delaware corporation (the "Company"), and desires
that the credit obligations of the Company with respect thereto constitute
Subject Obligations under the Agreement. The undersigned[, on behalf of such
Additional Lenders,] acknowledges the terms of the Agreement and agrees to be
bound thereby as a Creditor. Terms not otherwise defined herein shall have the
meaning set forth in the Agreement.
______________________________________[,
________________ as an Additional Lender
By
-------------------------------------
Title
----------------------------------
Date
-----------------------------------
Notice Address:
------------------------
----------------------------------------
----------------------------------------
]
---------------------------------------
_____________________________________ [,
as administrative agent for the
Additional Lenders referred to above
By
-------------------------------------
Title
----------------------------------
Date
-----------------------------------
Notice Address:
------------------------
----------------------------------------
----------------------------------------
]
---------------------------------------
Acknowledged and Agreed:
---------------
CAMBREX CORPORATION
--------------------
EXHIBIT A
(to Sharing Agreement)
By
-------------------------------------
Title
----------------------------------
Date
-----------------------------------
________________________________________
_______ [NAMES OF SUBSIDIARY GUARANTORS]
By
-------------------------------------
Title
----------------------------------
Date
-----------------------------------
EXHIBIT A
(to Sharing Agreement)
FORM OF ACKNOWLEDGMENT
TO
SHARING AGREEMENT
FOR ADDITIONAL NOTEHOLDERS
Reference is hereby made to the Sharing Agreement dated as of June 23, 2003
(the "Agreement"), among JPMorgan Chase Bank and the Noteholders party thereto
and certain other parties, if any, thereto. The undersigned has entered into a
Note Purchase Agreement dated as of _______________ with CAMBREX CORPORATION, a
Delaware corporation (the "Company"), and desires that the obligations of the
Company in respect thereof and the promissory notes issued thereunder constitute
Subject Obligations under the Agreement. The undersigned acknowledges the terms
of the Agreement and agrees to be bound thereby as a Creditor. Terms not
otherwise defined herein shall have the meaning set forth in the Agreement.
_______________________________________,
____________ as an Additional Noteholder
By
-------------------------------------
Title
----------------------------------
Date
-----------------------------------
Notice Address:
------------------------
----------------------------------------
----------------------------------------
]
---------------------------------------
Acknowledged and Agreed:
---------------
CAMBREX CORPORATION
--------------------
By
-------------------------------------
Title
----------------------------------
Date
-----------------------------------
________________________________________
_______ [NAMES OF SUBSIDIARY GUARANTORS]
By
-------------------------------------
Title
----------------------------------
Date
-----------------------------------
Sharing Agreement
EXHIBIT E
[Form of Guarantee Assumption Agreement]
GUARANTEE ASSUMPTION AGREEMENT
GUARANTEE ASSUMPTION AGREEMENT dated as of ________ __, 20__ by [NAME
OF ADDITIONAL SUBSIDIARY GUARANTOR], a ________ corporation (the "Additional
Subsidiary Guarantor"), in favor of JPMorgan Chase Bank, N.A., as administrative
agent for the lenders party as "Lenders" to the Credit Agreement referred to
below (in such capacity, together with its successors in such capacity, the
"Administrative Agent").
Cambrex Corporation, a Delaware corporation, the Subsidiary Borrowers
referred to therein, the Subsidiary Guarantors referred to therein, the Lenders
referred to therein and the Administrative Agent are parties to the Credit
Agreement dated as of October 7, 2005 (as modified and supplemented and in
effect from time to time, the "Credit Agreement").
Pursuant to Section 6.09(a) of the Credit Agreement, the Additional
Subsidiary Guarantor hereby agrees to become a "Subsidiary Guarantor" for all
purposes of the Credit Agreement. Without limiting the foregoing, the Additional
Subsidiary Guarantor hereby, jointly and severally with the other Subsidiary
Guarantors, guarantees to each Lender and the Administrative Agent and their
respective successors and assigns the prompt payment in full when due (whether
at stated maturity, by acceleration or otherwise) of all Subsidiary Borrower
Guaranteed Obligations (as defined in Section 3.01(b) of the Credit Agreement)
in the same manner and to the same extent as is provided in Article III of the
Credit Agreement. In addition, the Additional Subsidiary Guarantor hereby makes
the representations and warranties set forth in Sections 4.01, 4.02 and 4.03 of
the Credit Agreement with respect to itself and its obligations under this
Agreement, as if each reference in such Sections to the Loan Documents included
reference to this Agreement.
The Additional Subsidiary Guarantor hereby instructs its counsel to
deliver the opinions referred to in Section 6.09(a)(ii) of the Credit Agreement
to the Lenders and the Administrative Agent.
Guarantee Assumption Agreement
IN WITNESS WHEREOF, the Additional Subsidiary Guarantor has caused
this Guarantee Assumption Agreement to be duly executed and delivered as of the
day and year first above written.
[NAME OF ADDITIONAL SUBSIDIARY
GUARANTOR]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Accepted and agreed:
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Guarantee Assumption Agreement
EXHIBIT F-1
[Form of Opinion of General Counsel of the Obligors]
October 7, 2005
JPMorgan Chase Bank, N.A.,
as Administrative Agent under the
Credit Agreement referred to below
and
Each of the Lenders named in Annex A
hereto that are parties to the
Credit Agreement referred to below
Ladies and Gentlemen:
I am Senior Vice President-Law and Environment, General Counsel and
Secretary of Cambrex Corporation, a Delaware corporation (the "Company"), and
have acted as counsel for the Company and certain of its subsidiaries in
connection with (a) the Credit Agreement, dated as of October 7, 2005 (the
"Credit Agreement") among the Company, the Subsidiary Borrowers referred to
below, the Subsidiary Guarantors referred to below, the lenders named therein
(the "Lenders") and JPMorgan Chase Bank, N.A., as Administrative Agent (in such
capacity, the "Administrative Agent"), (b) the Amended and Restated Pledge
Agreement, dated as of October 7, 2005 (the "Pledge Agreement"), between the
Company and the Collateral Agent and (c) the Amendment and Restatement
Agreement, dated October 7, 2005, relating to the Share Charge, dated January
28, 2002 (as so amended and restated, the "Share Charge"), between Cambrex Bio
Science Walkersville, Inc. (formerly BioWhittaker, Inc.) and the Collateral
Agent.
I am rendering this opinion pursuant to Section 5.01(b) of the Credit
Agreement. As used herein, the following terms shall have the following
meanings: The term "Subsidiary Borrower" means those subsidiaries of the Company
listed in Part I of Annex B hereto. The term "Subsidiary Guarantor" means those
subsidiaries of the Company listed in Part II of Annex B hereto. The term
"Borrowers" means the Company and the Subsidiary Borrowers. The term "Obligors"
mean the Borrowers and the Subsidiary Guarantors. The term "Loan Documents"
means the Credit Agreement, the Pledge Agreement, the Share Charge, and the
Intercreditor and Collateral Agency Agreement. Capitalized terms not otherwise
defined herein shall have the meanings ascribed to them in the Credit Agreement.
As counsel to the Obligors, I have examined the following instruments
and documents: (i) the Loan Documents and (ii) such other documents relating to
the transactions contemplated by the Credit Agreement that I have deemed
necessary or appropriate. I have also examined and relied upon certificates of
public officials and officers of the Obligors, and have
Opinion of General Counsel of the Obligors
-2-
examined such other documents and instruments and have made such further
investigations as I have deemed necessary or appropriate in connection with
rendering this opinion. I have reviewed the charter documents, including
amendments, and the Bylaws of the Obligors (other than Cambrex Netherlands B.V.
(the "Foreign Subsidiary Borrower")) and am familiar with the affairs of and
actions taken by such Obligors in connection with the execution and delivery of
the Loan Documents.
Based upon the foregoing, it is my opinion that:
1. Each of the Obligors (other than the Foreign Subsidiary Borrower)
is a corporation duly incorporated, validly existing and in good standing under
the laws of the state of its incorporation, and is duly qualified to do
business, and is in good standing, in each additional jurisdiction where such
qualification is necessary under applicable law, except where the failure to so
qualify would not have a Material Adverse Effect. Each of the Obligors (other
than the Foreign Subsidiary Borrower) has all requisite corporate power to own
its properties and to carry on its business as now being conducted, and to
execute, deliver and perform the Loan Documents to which it is a party and to
engage in the transactions contemplated by such Loan Documents.
2. The execution, delivery, and performance of the Loan Documents and
the transactions contemplated thereby are within the corporate powers of each of
the Obligors party thereto (other than the Foreign Subsidiary Borrower), have
been duly authorized by all necessary corporate action, and do not contravene
any law, rule or regulation, or any judgment, decree, writ, injunction, order or
award of any arbitrator, court or governmental authority, or of the terms of the
certificate of incorporation or by-laws of any such Obligor, or of any contract
or undertaking to which any Obligor is a party or by which any Obligor or its
property may be bound or affected or, in the case of the Borrower, result in the
imposition of any Lien except for Permitted Encumbrances and Liens created
pursuant to the Loan Documents.
3. Except as set forth in Schedule 4.06(a) to the Credit Agreement,
there are no actions, suits or proceedings pending or, to the best of my
knowledge after due inquiry, threatened against or affecting the Company or any
of its Subsidiaries before any court, governmental authority, or arbitrator (i)
as to which there is a reasonable possibility of an adverse determination and
that, if adversely determined, could reasonably be expected, individually or in
the aggregate, to result in a Material Adverse Effect or (ii) that involve any
Loan Document or the Transactions.
4. No consent, approval or authorization of or declaration,
registration or filing with any United States or New York governmental authority
or any nongovernmental person on the part of any Obligor is required to be
obtained or made in connection with the execution, delivery and performance of
the Loan Documents to which it is a party or the transactions contemplated
hereby or thereby, or as a condition to the legality, validity or enforceability
of such documents.
Opinion of General Counsel of the Obligors
-3-
5. Each Obligor (other than the Foreign Subsidiary Borrower) has duly
executed and delivered each Loan Document to which it is a party.
6. None of the Obligors is (a) an "investment company" as defined in,
or subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
I am qualified to practice law only in the State of New York and I
express no opinion as to the laws of other jurisdictions other than the federal
law of the United States and the General Corporation Law of the State of
Delaware. Insofar as the laws of any such other jurisdiction are relevant to the
opinions expressed herein with respect to any Obligor organized under the laws
of any State other than New York or Delaware, I have assumed, with your
concurrence, that such laws are not materially different from the comparable
laws of the State of New York.
This opinion is solely for the benefit of the Administrative Agent and
the Lenders and their attorneys, accountants, employees, representatives,
successors and assigns in connection with the transactions contemplated pursuant
to the Credit Agreement and the agreements and documents executed in connection
therewith.
Very truly yours,
Xxxxx X. Xxxxxx
Opinion of General Counsel of the Obligors
Annex A
LENDERS
JPMorgan Chase Bank, N.A.
Citibank, N.A.
Wachovia Bank, N.A.
Allied Irish Banks plc
Bank of America, N.A.
KeyBank National Association
The Bank of New York
Svenska Handelsbanken AB (Publ)
SANPAOLO IMI S.p.A.
Opinion of General Counsel of the Obligors
Annex B
SUBSIDIARY OBLIGORS
Part I: Subsidiary Borrowers
Cambrex Netherlands B.V.
Part II: Subsidiary Guarantors
BioWhittaker Technologies, Inc.
Cambrex Bio Science Baltimore, Inc.
Cambrex Bio Science Hopkinton, Inc.
Cambrex Bio Science Rockland, Inc.
Cambrex Bio Science Walkersville, Inc.
Cambrex Xxxxxxx City, Inc.
Cambrex North Brunswick, Inc.
CBM Technologies, Inc.
Opinion of General Counsel of the Obligors
EXHIBIT F-2
[Form of Opinion of Special New York Counsel to the Obligors]
October 7, 2005
JPMorgan Chase Bank, N.A.,
as Administrative Agent under the
Credit Agreement referred to below
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx Xxxxx 00000
Each of the Lenders named in Annex A
attached hereto that are parties to the
Credit Agreement referred to below
We have acted as special New York counsel to (i) Cambrex Corporation,
a Delaware corporation (the "Company"), (ii) the Subsidiary Borrower referred to
below and (iii) each of the Subsidiary Guarantors referred to below in
connection with (a) the Credit Agreement, dated as of October 7, 2005 (the
"Credit Agreement"), among the Company, the Subsidiary Borrower party thereto,
the Subsidiary Guarantors party thereto, the lenders named on the signature
pages thereof (collectively, the "Lenders") and JPMorgan Chase Bank, N.A., as
Administrative Agent (in such capacity, the "Administrative Agent") and (b) the
Amended and Restated Pledge Agreement, dated as of October __, 2005 (the "Pledge
Agreement"), between the Company and JPMorgan Chase Bank, N.A., as Collateral
Agent (in such capacity, the "Collateral Agent").
The opinions expressed below are furnished to you pursuant to Section
5.01(b)(ii) of the Credit Agreement. As used herein, the following terms shall
have the following meanings: The term "Certificated Securities" means the
Pledged Stock (as defined in the Pledge Agreement) of Cambrex Bahamas, Inc. that
is held by the Company, to the extent such Pledged Stock constitutes
certificated securities within the meaning of Section 8-102(a)(4) of the UCC.
The term "Subsidiary Borrower" means the subsidiary of the Company listed in
Part I of Annex B hereto. The term "Subsidiary Guarantors" means those
subsidiaries of the Company listed in Part II of Annex B hereto. The term
"Borrowers" means the Company and the Subsidiary Borrower. The term "Obligors"
means the Borrowers and the Subsidiary Guarantors. The term "Loan Documents"
means the Credit Agreement and the Pledge Agreement. The term "UCC" means the
Uniform Commercial Code as in effect in the State of New York on the date
JPMorgan Chase Bank, N.A.,
as Administrative Agent
Each of the Lenders named
in Annex A -3- October ___, 2005
hereof.
In arriving at the opinions expressed below,
1. we have examined and relied as to factual matters on the following
(including, but not limited to, the representations and warranties contained
therein):
(a) originals, or copies certified or otherwise identified to our
satisfaction, of the Loan Documents;
(b) such corporate or partnership documents and records of the
Obligors and such other instruments and certificates of public officials,
officers and representatives of the Obligors, and other persons, as we have
deemed necessary or appropriate for the purposes of this opinion; and
2. we have made such investigations of law as we have deemed appropriate as a
basis for this opinion.
In rendering the opinions expressed below, we have assumed, with your
permission, without independent investigation or inquiry, (a) the authenticity
of all documents submitted to us as originals, the genuineness of all
signatures, and the conformity to the authentic originals of all documents
submitted to us as telecopied, certified, photostatic or reproduced copies and
the authenticity of the originals of such latter documents, (b) that each Loan
Document has been duly authorized by each person party thereto, that each such
person has the requisite power and authority to execute, deliver and perform
such Loan Document, that each such person is duly organized and that each such
person is validly existing and in good standing under the laws of its
jurisdiction of organization, (c) that each Loan Document has been duly executed
and delivered by each person party thereto (d) that each Loan Document is the
valid and binding obligation of each person party thereto (other than the
Obligors), enforceable against such person in accordance with its terms and (e)
the accuracy of the separate opinion, addressed to you, dated today, of Xxxxx X.
Xxxxxx, Senior Vice President-Law and Environment, General Counsel and Secretary
to the Company.
Based upon and subject to the foregoing and the assumptions,
qualifications and limitations hereinafter set forth, we are of the opinion
that:
1. The Credit Agreement and the Intercreditor and Collateral Agency
Agreement constitute the valid and binding obligation of each Obligor party
thereto, enforceable against such Obligor in accordance with its terms.
JPMorgan Chase Bank, N.A.,
as Administrative Agent
Each of the Lenders named
in Annex A -4- October ___, 2005
2. (a) The provisions of the Pledge Agreement are effective to create
a valid security interest in favor of the Collateral Agent, as security for the
Secured Obligations set forth in the Pledge Agreement, in all of the Collateral
(as defined in the Pledge Agreement) described therein that is of the type in
which a security interest can be created under Article 9 of the UCC, to the
extent the UCC is applicable to the creation of such security interest.
(b) Upon the due execution and delivery today of the Pledge Agreement
and delivery today in New York State of the Certificated Securities (in
certificated form), in each case either in bearer form or registered form,
issued or endorsed in each case in the name of the Collateral Agent or in blank,
to (and retention of control (as defined in Section 8-106 of the UCC) thereof in
New York State by) the Collateral Agent, the Collateral Agent will have a
perfected security interest, for the benefit of the Lenders, in such
Certificated Securities, to the extent the UCC is applicable to the perfection
of such security interest.
Our opinions set forth above are subject to the effects of (a)
bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer,
reorganization and moratorium laws and other similar laws relating to or
affecting creditors' rights or remedies generally and (b) general equitable
principles (whether considered in a proceeding in equity or at law). Our
opinions set forth above are also subject to the effects of (i) concepts of good
faith, reasonableness and fair dealing, and standards of materiality, (ii)
applicable laws and interpretations which may affect the validity or
enforceability of certain provisions of the Pledge Agreement, which limitations,
however, do not, in our opinion, make the remedies provided for therein
inadequate for the practical realization of the principal benefits intended to
be provided thereby (subject to the other qualifications expressed herein),
(iii) limitations on the validity or enforceability of rights to
indemnification, contribution or exculpation under applicable law (including
court decisions).
Without limiting the foregoing, we express no opinion as to the
validity, binding effect or enforceability of any provision of any Loan Document
that purports to (i) prohibit any Obligor from transferring its respective
rights in the collateral described in the Loan Documents or any proceeds
thereof, as contemplated by Section 9-401 of the UCC, (ii) permit the Collateral
Agent to vote or otherwise exercise any rights with respect to any of the
collateral under the Loan Documents absent compliance with the requirements of
applicable laws and regulations as to the voting of or other exercise of rights
with respect to such collateral, (iii) waive, release or vary any defense, right
or privilege of, or any duties owing to, any Obligor to the extent that such
waiver, release or variation may be limited by Section 1-102(3), 9-602 or 9-603
of the UCC or other provisions of applicable law, (iv) grant any right of
set-off with respect to any contingent
JPMorgan Chase Bank, N.A.,
as Administrative Agent
Each of the Lenders named
in Annex A -5- October ___, 2005
or unmatured obligation, (v) maintain or impose any obligation to pay any amount
in U.S. dollars where a final judgment concerning such obligation is rendered in
another currency, (vi) constitute a waiver of inconvenient forum, or (vii)
relate to the subject matter jurisdiction of a court to adjudicate any
controversy. We express no opinion as to (a) Section 3.06 of the Credit
Agreement or (b) the waiver by any Subsidiary Guarantor of any defense, right,
privilege or benefit to the extent such waiver is made to a greater extent than
would be permitted by applicable law. We wish to call to your attention that the
enforceability of waivers of immunity is subject to the limitations imposed by
the U.S. Foreign Sovereign Immunities Act of 1976, as amended.
We express no opinion as to the creation, validity or perfection of
any security interest, or the validity, binding effect or enforceability of any
Loan Document to the extent that such Loan Document grants or purports to grant
(a) a security interest (i) that is not governed by the UCC (including but not
limited to any such security interest with respect to (A) copyrights, copyright
licenses, patents, patent licenses, trademarks and trademark licenses or (B)
insurance policies), (ii) in commercial tort claims, letter-of-credit rights,
fixtures, cooperative interests, farm products, as-extracted collateral or
timber to be cut, (iii) in any property the terms of or governing which void or
prohibit, or are violated by, the granting of such security interest or (iv) in
any claim against the United States, (b) a mortgage or other interest in real
property, or (c) an agricultural lien. Our opinion set forth in paragraph 2
above is limited to Articles 8 and 9 of the UCC and therefore does not address
(i) laws of jurisdictions other than New York, (ii) laws of New York other than
Articles 8 and 9 of the UCC or (iii) collateral of a type not subject to Article
9 of the UCC. We express no opinion as to what law governs perfection of any
security interest granted by the Loan Documents. We have assumed with your
permission that (i) none of the Lenders, the Administrative Agent or the
Collateral Agent has waived, subordinated or agreed with any third party to any
modification of the priority of any security interest granted by the Loan
Documents, (ii) the Certificated Securities will be held at all times by the
Collateral Agent in the State of New York and (iii) each Obligor has sufficient
rights in the collateral described in the Loan Documents for the security
interests granted thereby to attach. We express no opinion as to the title or
any other interest of any Obligor in or to any of the collateral described in
the Loan Documents. No security interest will exist with respect to
after-acquired property of any Obligor until such Obligor has rights therein
within the meaning of Section 9-203 of the UCC and, in the case of investment
property, the Collateral Agent has taken control thereof in the manner
prescribed by Section 8-106 of the UCC.
Except as set forth in paragraph 2 above, we express no opinion as to
the validity or perfection of the security interests purported to be created by
the Loan Documents. We express no opinion as to the validity or perfection of
such security
JPMorgan Chase Bank, N.A.,
as Administrative Agent
Each of the Lenders named
in Annex A -6- October ___, 2005
interests:
(i) with respect to collateral sold, exchanged or otherwise disposed
of by any Obligor;
(ii) to the extent such security interests may be affected by (A)
Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code, under which a bankruptcy
court has discretion as to the extent to which post-petition proceeds may
be subject to a lien arising from a security agreement entered into by the
debtor before the commencement of the case, or (B) Section 547(b) of the
United States Bankruptcy Code, relating to the power to avoid a preference;
(iii) with respect to proceeds, to the extent of limitations under
Section 9-315 of the UCC on the perfection of a security interest in
proceeds;
(iv) as to any collateral acquired by the party granting such security
interest more than four months after such party changes its name so as to
make the relevant financing statements seriously misleading, unless
amendments to such financing statements indicating the new name, identity
or corporate structure of such party are properly filed before the
expiration of such four months;
(v) as to any collateral acquired by a new debtor after becoming bound
by a security agreement entered into by another person;
(vi) as to any property subject to a statute, regulation or treaty of
the United States, whose requirements for a security interest's obtaining
priority over the rights of a lien creditor with respect to such property
preempt Section 9-310(a) of the UCC;
(vii) as to any goods that are an accession to, or commingled or
processed with, other goods, to the extent limited by Section 9-335 or
9-336 of the UCC; or
(viii) as to goods of any kind, such as motor vehicles, subject to
certificate of title statutes.
We call to your attention that (A) the UCC requires periodic filing of
continuation statements in order to maintain the effectiveness of financing
statements filed pursuant thereto and (B) Section 8-107 of the UCC may in
certain circumstances limit the rights of a secured party in respect of any
unauthorized endorsement with respect to certificated securities constituting
collateral under the Pledge Agreement not
JPMorgan Chase Bank, N.A.,
as Administrative Agent
Each of the Lenders named
in Annex A -7- October ___, 2005
registered in the name of or issued to the Collateral Agent and not originally
issued in bearer form.
We express no opinion as to the priority of the security interests
purported to be created by the Loan Documents. Our opinion in paragraph 2 above
is subject to the provisions of the law of any jurisdiction where an issuer of
Stock Collateral (as defined in the Pledge Agreement) is incorporated or formed.
Without limiting the foregoing, we express no opinion as to the priority of any
security interest (i) as against any claims or liens in favor of the United
States or any state thereof, or any federal or state agency, instrumentality or
political subdivision, including but not limited to liens for payment of
federal, state or local taxes that are given priority by operation of law, liens
under Title IV of the Employee Retirement Security Act of 1974, as amended, or
claims arising under 31 U.S.C. Section 3713, (ii) as against any rights of a
person in possession of proceeds consisting of money or "instruments" (as
defined in Section 9-102(a)(47) of the UCC), (iii) as against liens under
Section 4-208 of the UCC, relating to security interests of a collecting bank,
(iv) as against liens granted under Section 364(d) of the United States
Bankruptcy Code, relating to liens granted by a court after the commencement of
a case, or (v) that has been perfected by "control" under Section 8-106 of the
UCC, as against any other security interest in the same property that has also
been perfected by "control."
We express no opinion as to the effect of, or compliance with, any
Federal or State laws regarding fraudulent transfers or conveyances, or laws
governing preferential transfers, or provisions of state law restricting
dividends, loans or other distributions by a corporation to or for the benefit
of its stockholders, or any Federal or State securities laws, rules or
regulations, including without limitation as to the effect thereof on the
validity, binding effect or enforceability of any of the Loan Documents.
We express no opinion as to the laws of any jurisdiction other than
the laws of the State of New York and the Federal laws of the United States of
America that, in our experience, are generally applicable to transactions of
this type. In particular (and without limiting the generality of the foregoing)
we express no opinion as to (a) the laws of any country (other than the Federal
laws of the United States of America) or (b) the effect of such laws (whether
limiting, prohibitive or otherwise) on any of the rights or obligations of any
Obligor or of any other party to or beneficiary of any of the Loan Documents, or
(c) whether the choice of the law of the State of New York as the governing law
in any Loan Document would be given effect by any court or governmental
authority other than a court of the State of New York. In giving the foregoing
JPMorgan Chase Bank, N.A.,
as Administrative Agent
Each of the Lenders named
in Annex A -8- October ___, 2005
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. In giving
the foregoing opinion, we have assumed that the execution and delivery by each
Obligor of the Loan Documents to which it is a party and the performance by each
Obligor of its obligations thereunder will not be illegal or unenforceable or
violate any fundamental public policy under applicable law (other than the laws
of the State of New York and federal laws of the United States of America), and
that no such party has entered therein with the intent of avoiding or a view to
violating applicable law.
This opinion letter is limited to the matters stated and no opinion is
implied or may be inferred beyond the matters expressly stated herein. The
opinions expressed herein are rendered only as of the date hereof, and we assume
no responsibility to advise you of facts, circumstances, events or developments
which hereafter may be brought to our attention and which may alter, affect or
modify the opinions expressed herein.
The opinions expressed herein are solely for your benefit and, without
our prior consent, neither our opinions nor this opinion letter may be relied
upon by or disclosed to any other person.
Very truly yours,
Annex A
Lenders
JPMorgan Chase Bank, N.A.
Citibank, N.A.
Wachovia Bank, N.A.
Allied Irish Banks plc
Bank of America, N.A.
KeyBank National Association
The Bank of New York
Svenska Handelsbanken AB (Publ)
SANPAOLO IMI S.p.A.
Annex B - Part I
SUBSIDIARY BORROWER
Cambrex Netherlands B.V.
Annex B
SUBSIDIARY GUARANTORS
BioWhittaker Technologies, Inc.
Cambrex Bio Science Baltimore, Inc.
Cambrex Bio Science Hopkinton, Inc.
Cambrex Bio Science Rockland, Inc.
Cambrex Bio Science Walkersville, Inc.
Cambrex Xxxxxxx City, Inc.
Cambrex North Brunswick, Inc.
CBM Technologies, Inc.
Opinion of Special New York Counsel to the Obligors
EXHIBIT G
[Form of Opinion of Special New York Counsel to JPMCB]
October 7, 2005
To the Lenders party to the Credit Agreement
referred to below and JPMorgan Chase Bank, N.A.,
as Administrative Agent
Ladies and Gentlemen:
We have acted as special New York counsel to JPMorgan Chase Bank, N.A.
("JPMCB") in connection with the Credit Agreement (the "Credit Agreement") dated
as of October 7, 2005, between Cambrex Corporation (the "Company"), the
Subsidiary Borrowers party thereto, the Subsidiary Guarantors party thereto, the
lenders party thereto and JPMCB, as Administrative Agent, providing for
extensions of credit to be made by said lenders to the Company in an aggregate
initial principal or face amount not exceeding $277,500,000.
Except as otherwise provided herein, terms defined in the Credit
Agreement are used herein as defined therein. The Company and the Subsidiaries
of the Company party to the Credit Agreement are herein collectively referred to
as the "Obligors". This opinion letter is being delivered pursuant to Section
5.01(c) of the Credit Agreement.
In rendering the opinions expressed below, we have examined executed
counterparts of the Credit Agreement. In our examination, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals and the conformity with authentic original documents of all
documents submitted to us as copies. When relevant facts were not independently
established, we have relied upon representations made in or pursuant to the
Credit Agreement. We have also assumed that the Credit Agreement has been duly
authorized, executed and delivered by, and (except, to the extent set forth
below, as to the Obligors) constitutes legal, valid, binding and enforceable
obligations of, all of the parties thereto, that all signatories thereto have
been duly authorized, that all such parties are duly organized and validly
existing and have the power and authority (corporate or other) to execute,
deliver and perform the same and that all authorizations, approvals or consents
of (including without limitation all foreign exchange control approvals), and
all filings or registrations with, any governmental or regulatory authority or
agency (including any central bank ) required for the making and performance by
the Obligors of the Credit Agreement have been obtained or made and are in
effect.
Based upon and subject to the foregoing and subject also to the
comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinions
expressed below, we are of the opinion that the Credit Agreement constitutes the
legal, valid and binding obligation of each Obligor party thereto,
Opinion of Special New York Counsel to JPMCB
-2-
enforceable against such Obligor in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization, fraudulent conveyance or
transfer, moratorium or other similar laws relating to or affecting the rights
of creditors generally, and subject to the possible judicial application of
foreign laws or governmental action affecting the rights of creditors generally,
and except as the enforceability of the Credit Agreement is subject to the
application of general principles of equity (regardless of whether considered in
a proceeding in equity or at law), including (a) the possible unavailability of
specific performance, injunctive relief or any other equitable remedy and (b)
concepts of materiality, reasonableness, good faith and fair dealing.
The foregoing opinions are subject to the following comments and
qualifications:
(A) The enforceability of Section 10.03 of the Credit Agreement may be
limited by laws limiting the enforceability of provisions exculpating or
exempting a party from, or requiring indemnification of a party for,
liability for its own action or inaction, to the extent the action or
inaction involves gross negligence, recklessness, willful misconduct or
unlawful conduct.
(B) The enforceability of provisions in the Credit Agreement to the
effect that terms may not be waived or modified except in writing may be
limited under certain circumstances.
(C) We express no opinion as to (i) the effect of the laws of any
jurisdiction in which any Lender is located (other than the State of New
York) that limit the interest, fees or other charges such Lender may impose
for the loan or use of money or other credit, (ii) the last sentence of
Section 2.17(d) or Section 3.06 of the Credit Agreement, (iii) the first
sentence of Section 10.09(b) of the Credit Agreement, insofar as such
sentence relates to the subject-matter jurisdiction of the United States
District Court for the Southern District of New York to adjudicate any
controversy related to the Credit Agreement, (iv) the waiver of
inconvenient forum set forth in Section 10.09(c) of the Credit Agreement
with respect to proceedings in the United States District Court for the
Southern District of New York, (v) Section 10.11 of the Credit Agreement
and (vi) Section 10.15 of the Credit Agreement to the extent it relates to
immunity acquired after the date of execution and delivery of the Credit
Agreement.
(D) We wish to point out that (i) a New York statute provides that a
judgment rendered by a court of the State of New York in respect of an
obligation denominated in any Foreign Currency would be rendered in such
Foreign Currency and would be converted into Dollars at the rate of
exchange prevailing on the date of entry of such judgment and (ii) a
judgment rendered by a United States Federal court in the State of New York
in respect of an obligation denominated in a Foreign Currency may be
expressed in Dollars (provided that we express no opinion as to the rate of
exchange such court would apply).
Opinion of Special New York Counsel to JPMCB
-3-
(E) Paragraph (iii) of Section 3.02 of the Credit Agreement may not be
enforceable to the extent that the Guaranteed Obligations are materially
modified.
(F) We express no opinion as to the applicability to the obligations
of the Subsidiary Guarantors of Section 548 of the Bankruptcy Code, Article
10 of the New York Debtor Creditor Law or any other provision of law
relating to fraudulent conveyances, transfers or obligations, nor do we
express any opinion as to the enforceability of such obligations.
The foregoing opinions are limited to matters involving the Federal
laws of the United States of America and the law of the State of New York, and
we do not express any opinion as to the laws of any other jurisdiction. Without
limiting the foregoing, we do not hold ourselves out as experts on, or purport
to advise on, the laws of The Netherlands.
At the request of our client, this opinion letter is, pursuant to
Section 5.01(c) of the Credit Agreement, provided to you by us in our capacity
as special New York counsel to JPMCB and may not be relied upon by any other
person or for any purpose other than in connection with the transactions
contemplated by the Credit Agreement without, in each instance, our prior
written consent.
Very truly yours,
WJM/TVN
Opinion of Special New York Counsel to JPMCB
EXHIBIT H
[Form of Subsidiary Borrower Designation Letter]
SUBSIDIARY BORROWER DESIGNATION LETTER
_____________, 20__
To JPMorgan Chase Bank, N.A.,
as Administrative Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Re: Subsidiary Borrower Designation
Ladies and Gentlemen:
Reference is made to the Credit Agreement (the "Credit Agreement")
dated as of October 7, 2005 among Cambrex Corporation (the "Company"), the
Subsidiary Borrowers party thereto, the Subsidiary Guarantors party thereto, the
Lenders party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent
(the "Administrative Agent"). Capitalized terms used but not defined herein
shall have the respective meanings assigned to such terms in the Credit
Agreement.
The Company hereby designates [________] (the "Subject Subsidiary"), a
wholly-owned Subsidiary of the Company and a [corporation] duly organized under
the laws of [________], as a Subsidiary Borrower in accordance with Section
2.19(a) of the Credit Agreement until such designation is terminated in
accordance with Section 2.19(c).
The Subject Subsidiary hereby accepts the above designation and hereby
expressly and unconditionally accepts the obligations of a Subsidiary Borrower
and an Obligor under the Credit Agreement, adheres to the Credit Agreement and
agrees and confirms that, upon your execution and return to the Company of the
enclosed copy of this letter, it shall be a Subsidiary Borrower for purposes of
the Credit Agreement and agrees to be bound by and perform and comply with the
terms and provisions of the Credit Agreement applicable to it as if it had
originally executed the Credit Agreement as a Subsidiary Borrower. Pursuant to
Section 10.16 of the Credit Agreement, the Subject Subsidiary hereby authorizes
and empowers the Company to act as its representative and attorney-in-fact for
the purposes of signing documents and giving and receiving notices (including
notices of Borrowing under the Credit Agreement) and other communications in
connection with the Credit Agreement and the transactions contemplated thereby
and for the purposes of modifying or amending any provision of the Credit
Subsidiary Borrower Designation Letter
-2-
Agreement and further agrees that the Administrative Agent and each Lender may
conclusively rely on the foregoing authorization.
The Company hereby confirms and agrees that after giving effect to
this Designation Letter the Guarantee of the Company contained in Article III of
the Credit Agreement shall apply to all of the obligations of the Subject
Subsidiary under the Credit Agreement.
The Subject Subsidiary hereby represents and warrants:
1. The Subject Subsidiary is a wholly-owned Subsidiary of the Company;
2. Each of the representations and warranties set forth in Sections
4.01, 4.02 and 4.03 of the Credit Agreement is true as if each reference
therein to the Company or to an Obligor were a reference to the Subject
Subsidiary and as if each reference therein to the Loan Documents were a
reference to this Designation Letter and the promissory notes, if any,
executed by the Subject Subsidiary in connection herewith;
3. [The representations and warranties set forth in Section 4.15 are
true and correct on the date hereof;](2)
4. The Subject Subsidiary's addresses for notices, other
communications and service of process provided for in the Credit Agreement
shall be given in the manner, and with the effect, specified in Sections
10.01 and 10.09(e) of the Credit Agreement to it at its "Address for
Notices" specified on the signature pages below; and
5. The Subject Subsidiary shall deliver to the Administrative Agent
the documents and certificates set forth in Section 2.19 of the Credit
Agreement and such other documents as the Administrative Agent shall
reasonably request that are consistent with conditions for Subsidiary
Obligors set forth in Section 5.01 of the Credit Agreement, each in form
and substance reasonably satisfactory to the Administrative Agent.
Attached hereto are certified copies of the following documents:
(i) the [certificate of incorporation][certificate of
formation][articles of organization] and [by-laws][limited
liability company agreement] [partnership agreement] of the
Subject Subsidiary and authorizing resolutions of the [Board of
Directors][Sole Member][General Partner] of the Subject
Subsidiary;(3) and
(ii) a certificate of the Secretary or an Assistant Secretary of the
Subject Subsidiary in respect of each of the officers (x) who are
authorized to sign this Agreement and the other Loan Documents on
the Subject Subsidiary's
----------
(2) Insert if the Subject Subsidiary is a Foreign Subsidiary.
(3) To be revised as appropriate to reflect the relevant organizational
documents of the Subject Subsidiary.
Subsidiary Borrower Designation Letter
-3-
behalf, and (y) who will, until replaced by another officer or
officers duly authorized for that purpose, act as its
representative for the purposes of signing documents and giving
notices and other communications in connection with the Credit
Agreement, the other Loan Documents and the transactions
contemplated thereby.
The designation of the Subject Subsidiary as a Subsidiary Borrower
under the Credit Agreement shall become effective as of the date (the "Effective
Date") on which the Administrative Agent accepts this Designation Letter as
provided on the signature pages below. As of the Effective Date, the Subject
Subsidiary shall be entitled to the rights, and subject to the obligations, of a
Subsidiary Borrower. Except as expressly herein agreed with respect to the
joinder of Subject Subsidiary as a Subsidiary Borrower, the Credit Agreement
shall remain unchanged and in full force and effect.
The Subject Subsidiary hereby agrees that this Designation Letter, the
Credit Agreement and the Notes shall be governed by, and construed in accordance
with, the law of the State of New York. The Subject Subsidiary hereby submits to
the nonexclusive jurisdiction of any New York State court or Federal court of
the United States of America, in each case sitting in New York County, and any
appellate court from any thereof, for the purposes of all legal proceedings
arising out of or relating to this Designation Letter, the Credit Agreement or
the transactions contemplated thereby. The Subject Subsidiary 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. The Subject Subsidiary further agrees
that service of process in any such action or proceeding brought in New York may
be made upon its agent appointed as provided in Section 10.09(d) of the Credit
Agreement.
THE SUBJECT SUBSIDIARY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS DESIGNATION LETTER, THE CREDIT
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY.
This Designation Letter may be executed in any number of counterparts,
all of which taken together shall constitute one and the same agreement.
Subsidiary Borrower Designation Letter
-4-
IN WITNESS WHEREOF, the Company and the Subject Subsidiary have caused
this Subsidiary Borrower Designation Letter to be duly executed and delivered as
of the day and year first above written.
CAMBREX CORPORATION
By
-------------------------------------
Title:
---------------------------------
[NAME OF SUBJECT SUBSIDIARY]
a _________ [corporation]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address for Notices
----------------------------------------
----------------------------------------
----------------------------------------
Attn:
----------------------------------
Tel:
-----------------------------------
Fax:
-----------------------------------
Subsidiary Borrower Designation Letter
-5-
ACCEPTED
JPMORGAN CHASE BANK, N.A.
as Administrative Agent
By
----------------------------------
Title:
------------------------------
Subsidiary Borrower Designation Letter
EXHIBIT I
[Form of Subsidiary Borrower Termination Letter]
_____________, 20__
To JPMorgan Chase Bank, N.A.,
as Administrative Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Each of the Lenders party to the
Credit Agreement referred to below
Re: Termination of [____________] (the "Subject Subsidiary") as Subsidiary
Borrower
The Company hereby gives notice pursuant to Section 2.19 of the Credit
Agreement dated as of October 7, 2005 (the "Credit Agreement") among Cambrex
Corporation (the "Company"), the Subsidiary Borrowers party thereto, the
Subsidiary Guarantors party thereto, the Lenders party thereto and JPMorgan
Chase Bank, N.A., as Administrative Agent (the "Administrative Agent") that,
effective as of the date hereof, the Subject Subsidiary is terminated as a
Borrower under the Credit Agreement and all commitments by the Lenders to issue
Letters of Credit or make Loans for account of such Borrower under the Credit
Agreement are hereby terminated.
Pursuant to Section 2.19 of the Credit Agreement, the Company hereby
certifies (a) that there is no LC Exposure outstanding with respect to any
Letter of Credit for which the Subject Subsidiary is an account party and (b)
that all principal and interest on any Loan of the Subject Subsidiary and all
other amounts payable by such Subject Subsidiary pursuant to the Credit
Agreement have been paid in full on or prior to the date hereof.
All obligations of the Subject Subsidiary arising in respect of any
period in which the Subject Subsidiary was, or on account of any action or
inaction taken by the Subject Subsidiary as an account party or a Borrower under
the Credit Agreement shall survive the termination effected by this notice.
Terms used herein have the meanings assigned to them in the Credit
Agreement.
CAMBREX CORPORATION
By
-------------------------------------
Title:
--------------------------------
Subsidiary Borrower Termination Letter
