EXHIBIT Z
LUXCO GUARANTEE
GUARANTEE AGREEMENT
GUARANTEE AGREEMENT dated as of January 26, 2006 made
BETWEEN: P.P. LUXCO HOLDINGS II S.A.R.L., a corporation constituted under the
laws of Luxembourg, registered with the register of commerce and
companies under number B 88.549 and having its registered office at 00
xxxxxx Xxxxxxxx, X.X. 000, X-0000 Xxxxxxxxxx, (xxx "GUARANTOR")
AND: NATIONAL BANK OF CANADA
acting both on its own behalf and as Agent on behalf of the other
Guaranteed Parties (as hereinafter defined).
WHEREAS Picchio Pharma Inc. (the "BORROWER"), National Bank of Canada, as
Agent, and the Lenders are parties to a credit agreement dated as of
January 26, 2006 (as same may be amended, supplemented or restated from
time to time, the "CREDIT AGREEMENT") pursuant to which the Lenders have
agreed to extend credit to the Borrower in an aggregate principal amount of
$50,000,000;
WHEREAS the Guarantor is a direct subsidiary of the Borrower and benefits
from the extension of credit to the Borrower pursuant to the Credit
Agreement;
WHEREAS the execution and delivery of this Guarantee by the Guarantor is a
condition to the extension of credit to the Borrower under the Credit
Agreement;
NOW, THEREFORE, the parties agree as follows:
1. DEFINITIONS
1.1 Capitalized terms used herein and not otherwise defined herein shall have
the meanings assigned to such terms in the Credit Agreement;
1.2 The term "AGENT" herein shall mean National Bank of Canada, acting in its
capacity as agent for the Lenders.
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1.3 The term "GUARANTEED PARTIES" shall mean the Agent and the Lenders, and any
of their respective successors.
1.4 The term "LENDER" herein shall mean each of the Lenders under the Credit
Agreement as well as any of their respective successors and assignees as
permitted under the Credit Agreement;
1.5 The term "OBLIGATIONS" herein shall mean all present and future
indebtedness, liabilities and obligations of the Borrower to the Lenders
under or arising from the Credit Agreement and any document evidencing any
of the foregoing;
1.6 The term "SECURITY" herein shall mean any security, guarantee,
subordination and undertaking in favour of the Agent and the Lenders and
any document evidencing any of the foregoing.
2. GUARANTEE
The Guarantor hereby, solidarily, unconditionally and irrevocably,
guarantees to each Guaranteed Party the payment and the performance in full
of all of the Obligations in accordance with their respective terms and
when and as due (whether at maturity, by reason of acceleration or
otherwise). The liability of the Guarantor shall continue until the payment
and performance in full of the Obligations, provided that the Guarantor
shall have no obligation to make any payment in excess of the Obligations.
3. LIMITATION ON GUARANTEE
Notwithstanding anything contrary in this agreement, the liability of the
Guarantor under this Guarantee shall be limited to an amount not exceeding
fifty million Dollars ($50,000,000), plus interest at Prime Rate plus 2%
from the date at which a demand for payment is made under Article 4.
4. PAYMENT
4.1 The Guarantor shall be liable for the payment of any amount owed on account
of the Obligations upon receipt of a written demand from the Agent.
4.2 All payments due under this Guarantee shall be made to the Agent for the
account of each Guaranteed Party in such manner and at such place as the
Agent may specify by written notice to the Guarantor.
4.3 Any amount payable by the Guarantor hereunder shall be paid in the currency
of the Obligations to which such amount relates.
4.4 The records of the Agent and each other Guaranteed Party shall be, absent
manifest error, prima facie evidence of the Obligations owing to such
Guaranteed Party and of all payments and performances in respect thereof.
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5. CHANGES IN CIRCUMSTANCES AND WAIVERS
5.1 This Guarantee shall remain in effect notwithstanding any change in the
corporate status, the constitution, the business, the objects or the
shareholders of the Guarantor or the Borrower and notwithstanding any
termination of or change in the relationships that exist between the
Borrower and the Guarantor.
5.2 The liability of the Guarantor under this Guarantee shall not be released,
reduced or affected
a) by reason of any amendment, waiver, release, or extension granted
in respect of the Obligations or any Security by any of the
Guaranteed Parties without the consent of or notification to the
Guarantor, or
b) by reason of any failure to obtain, preserve or perfect any
Security or of any release or subordination of any Security, or
c) by reason of any release of or any stay of proceedings against
the Borrower pursuant to any law relating to bankruptcy,
insolvency, restructuring or affecting creditors' rights
generally, or
d) by reason of any payment made on account of the Obligations by
any person other than the Guarantor.
5.3 This Guarantee shall oblige the Guarantor to pay on demand any sum owed
hereunder and the Guaranteed Parties shall not be bound to exercise their
recourses against the Borrower or any person liable with or for the
Borrower, to realize on any Security whatsoever nor to await the results of
any liquidation of any property. The Guarantor waives any benefit of
division and discussion and shall not be entitled to exercise any
subrogation resulting from any payment made under this Guarantee until the
Guaranteed Parties shall have been paid in full of all moneys owed to them
under the Obligations.
5.4 The Guarantor waives any right to assert against the Guaranteed Parties as
a defence, counterclaim, set-off or cross claim, any claim which the
Guarantor may now or at any time hereafter have against the Borrower or any
Guaranteed Party and the Guarantor also waives any defence based on or
arising from the invalidity or the unenforceability of any of the
Obligations or any part thereof.
6. JUDGMENT CURRENCY
If a judgment is rendered against the Guarantor for an amount owed
hereunder and if the judgment is rendered in a currency ("OTHER CURRENCY")
other than that in which such amount is owed under this Guarantee
("CURRENCY OF THE AGREEMENT"), the Guarantor shall pay, if applicable, at
the date of payment of the judgment, an additional amount equal to the
excess (i) of the said amount owed under this Guarantee, expressed into the
Other Currency as at the date of payment of the judgment, over (ii) the
amount of the judgment. For the purposes of obtaining the judgment and
making the calculation referred to in (i), the
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exchange rate shall be the spot rate at which the Agent, on the relevant
date, may in Montreal, sell the Currency of the Agreement to obtain the
Other Currency. Any additional amount owed under this Section 6 shall
constitute a cause of action distinct from the cause of action which gave
rise to the judgment, and said judgment shall not constitute res judicata
in that respect.
7. TAXES
If the Guarantor is compelled by law to make any withholding or deduction
due to any tax or if a Lender is liable to pay tax in respect of any
payment due or made by the Guarantor, the Guarantor must pay to the Agent
or such Lender such additional amount as may be necessary in order that the
payment actually received be equal to the payment which otherwise would
have been received in the absence of such withholding or deduction
(including in the absence of any additional withholding or deduction or tax
in respect of any additional amount payable pursuant to this Section 7).
However, this Section 7 will not apply in respect of a tax on the overall
net income or the capital of a Lender or of any tax, withholding, deduction
or levy arising by reason of any Lender ceasing to be a Canadian Qualified
Person or assigning its rights to a person who is not a Canadian Qualified
Person.
8. RELIANCE
8.1 The Guarantor represents and warrants to the Guaranteed Parties that:
8.1.1 the Guarantor has the capacity and power to execute this Guarantee
and all necessary actions or consents to authorize the execution and
performance of same have been taken or obtained; this Guarantee
constitutes a valid and binding obligation of the Guarantor;
8.1.2 the Guarantor has had adequate means to obtain from the Borrower
information concerning the Borrower and the Borrower's financial
condition and affairs;
8.1.3 the Guarantor is executing this Guarantee freely and deliberately,
and understands the obligations and financial risk undertaken by
providing this Guarantee;
8.1.4 the Guarantor has not depended or relied on the Lender and its
representatives for any information whatsoever concerning the Borrower
or the Borrower's financial condition and affairs or other matters
material to the Guarantor's decision to provide this Guarantee or for
any counselling or guidance therefor with respect to such decision;
and
8.1.5 the Guarantor has the financial ability to meet its obligations under
this Guarantee and will manage its business with a view to maintain
such financial ability.
8.2 The Guarantor agrees that none of the Guaranteed Parties has any duty or
responsibility whatsoever, now or in the future, to provide to the
Guarantor any information concerning the Borrower or the Borrower's
financial condition and affairs and that, if the Guarantor
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receives any such information from any Guaranteed Party, the Guarantor will
independently verify the information and will not rely on such Guaranteed
Party, with respect to the accuracy of such information.
9. INTERPRETATION
9.1 This Guarantee shall be governed by and construed in accordance with the
laws in effect in the Province of Quebec.
9.2 This Guarantee is in addition to and not in substitution of or in
replacement for any other hypothec, pledge, security, guarantee or other
right held by or benefiting to any Guaranteed Party.
10. JURISDICTION; CONSENT TO SERVICE OF PROCESS
10.1 Each of the parties hereto hereby irrevocably and unconditionally submits,
to the nonexclusive jurisdiction of the courts of the Province of Quebec
sitting in the judicial district of Montreal and any appellate court from
such courts in any action or proceeding arising out of or relating to this
Guarantee, or for recognition or enforcement of any judgment, and each of
the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and
determined in such courts. Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions in any manner provided by law. Nothing in
this Guarantee shall affect any right that any of the Guaranteed Parties
may otherwise have to bring any action or proceeding relating to this
Guarantee against the Guarantor or its properties in the courts of any
other jurisdiction.
10.2 Each of the parties hereto hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in the courts of the Province of Quebec.
10.3 Each party to this Guarantee irrevocably consents to service of any such
action or proceeding in the manner provided for notices in Section 11.
Nothing in this Agreement will affect the right of any party to this
Guarantee to serve any action or proceeding in any other manner permitted
by law.
11. NOTICES
All notices, requests and demands to or upon the Guarantor or the Lender to
be effective shall be in writing (including by telecopy) and shall be
deemed to have been duly given or made, when delivered by hand or courier,
on the day of actual delivery thereof, when delivered by mail five Business
Days after being deposited in the mail, postage prepaid, or in the case of
telecopy notice, on the Business Day following the date of transmission,
addressed as follows:
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11.1 If to the Guarantor, at its address or transmission number for notices
provided below:
P.P. LUXCO HOLDINGS II S.A.R.L.
c/o Mr. Stephane Hadet
Oostvogels & Xxxxxxx
00, xxxxxx Xxxxxxxx
X.X. 000 / X00000
Xxxxxxxxxx
Fax: (000) 000.000000
11.2 If to the Agent or the Guaranteed Parties, at the Agent's address or
transmission number for notices provided below:
NATIONAL BANK OF CANADA
Loan Administration
Customer Service Center
0000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Transit No. 0708-1
Xxxxxxxx, Xxxxxx X0X 0X0
Attention: Manager
Fax: (000) 000-0000
The Guarantor or the Agent may change their addresses and transmission
numbers for notices by notice in the manner provided in this Section.
12. COUNTERPARTS
This Guarantee may be executed in any number of counterparts, each of which
shall be deemed to be an original as against any party whose signature
appears thereon, and all of which shall constitute one and the same
instrument. Any manually executed counterpart hereto delivered by facsimile
transmission shall be deemed delivery of an original counterpart hereto.
[THE SIGNATURES OF THE PARTIES APPEAR ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have duly executed this Guarantee as of the
day and year first written above.
P.P. LUXCO HOLDINGS II S.A.R.L., as Guarantor
per: /s/ Xxxxxxxxxxx Xxxxxx
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NATIONAL BANK OF CANADA, as for itself and as
Agent
per: /s/ Xxxxxxx Xxxxxxxx
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per: /s/ Xxxxx Xxxxxxxxxx
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