EXHIBIT 10.1
================================================================================
U.S. $22,500,000,000
364-DAY BRIDGE TERM LOAN CREDIT AGREEMENT
Dated as of March 12, 2009
Among
PFIZER INC.,
as Borrower,
and
THE INITIAL LENDERS NAMED HEREIN,
as Initial Lenders,
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent,
and
J.P. MORGAN SECURITIES INC., BANC OF
AMERICA SECURITIES LLC, BARCLAYS
CAPITAL, CITIGROUP GLOBAL MARKETS INC., AND
GOLDMAN SACHS CREDIT PARTNERS
L.P.,
as Joint Lead Arrangers,
and
BANCO SANTANDER, S.A. NEW YORK BRANCH, CREDIT SUISSE,
DEUTSCHE BANK SECURITIES
INC., HSBC BANK USA, NATIONAL ASSOCIATION, THE ROYAL BANK OF
SCOTLAND PLC, THE
BANK
OF TOKYO-MITSUBISHI UFJ, LTD., AND UBS SECURITIES LLC,
as Arrangers,
and
BANC OF AMERICA SECURITIES LLC,
BARCLAYS CAPITAL, CITIBANK, N.A., AND GOLDMAN
SACHS CREDIT PARTNERS L.P.
as Joint Syndication Agents
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<PAGE>
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS AND ACCOUNTING
MATTERS.............................. 1
1.01 Certain Defined
Terms........................................... 1
1.02 Accounting Terms and
Determinations............................. 25
1.03 Computation of Time
Periods..................................... 26
1.04 Terms
Generally................................................. 26
SECTION 2. AMOUNTS AND TERMS OF THE
LOANS.................................. 26
2.01
Commitments.....................................................
26
2.02 Making the
Loans................................................ 26
2.03 Use of
Proceeds................................................. 27
2.04 Changes of
Commitments.......................................... 27
2.05
Fees............................................................
28
2.06 Repayment of
Loans.............................................. 28
2.07 Interest on
Loans............................................... 28
2.08 Interest Rate
Determination..................................... 29
2.09 Optional Conversion of
Loans.................................... 29
2.10 Optional
Prepayments............................................ 30
2.11 Mandatory Prepayments and
Commitment Reductions................. 30
2.12 Payments and
Computations....................................... 31
2.13 Sharing of Payments
Etc......................................... 32
2.14 Additional
Costs................................................ 32
2.15
Illegality......................................................
34
2.16
Taxes...........................................................
34
2.17 Defaulting
Lender............................................... 36
SECTION 3. CONDITIONS TO EFFECTIVE DATE AND FUNDING
DATE................... 36
3.01 Conditions Precedent to
Effective Date.......................... 36
3.02 Conditions Precedent to
the Funding Date........................ 38
SECTION 4. REPRESENTATIONS AND
WARRANTIES.................................. 41
4.01 Organization; Powers;
Binding Effect............................ 41
4.02
Contravention...................................................
41
4.03
Authorization...................................................
41
4.04 Financial Statements;
Material Adverse Change................... 41
4.05 No
Omission.....................................................
42
4.06
Status..........................................................
43
4.07 Federal Reserve
Regulations..................................... 43
4.08 Investment Company
Status....................................... 43
4.09
Litigation......................................................
43
4.10 Use of
Proceeds................................................. 43
4.11
Solvency........................................................
43
4.12 Compliance with
Laws............................................ 43
4.13 Patriot
Act..................................................... 43
SECTION 5. FINANCIAL
COVENANTS............................................. 44
SECTION 6. AFFIRMATIVE
COVENANTS........................................... 44
6.01 Financial Statements;
Ratings Change and Other Information...... 44
6.02 Preservation of
Existence....................................... 45
6.03 Payment of
Obligations.......................................... 45
6.04 Maintenance of
Properties; Insurance............................ 46
6.05 Books and Records;
Inspection Rights............................ 46
6.06 Compliance with
Laws............................................ 46
6.07 Maintenance of
Ratings.......................................... 46
SECTION 7. NEGATIVE
COVENANTS.............................................. 47
7.01 Subsidiary
Debt................................................. 47
7.02 Secured
Debt.................................................... 47
7.03 Restricted
Payments............................................. 47
7.04 Restrictions on
Subsidiary Distributions; Negative Pledges...... 48
7.05 Mergers and Acquisitions;
Fundamental Changes................... 49
7.06 Transactions with
Affiliates.................................... 49
SECTION 8. EVENTS OF
DEFAULT............................................... 50
SECTION 9. THE ADMINISTRATIVE
AGENT........................................ 53
9.01 Authorization and
Action........................................ 53
9.02 Administrative Agent's
Reliance, Etc............................ 53
9.03 JPMorgan and
Affiliates......................................... 54
9.04 Lender Credit
Decision.......................................... 54
9.05
Indemnification.................................................
54
9.06 Successor Administrative
Agent.................................. 54
SECTION 10.
MISCELLANEOUS...................................................
55
10.01 No Waiver;
Remedies............................................. 55
10.02 Notices,
Etc.................................................... 55
10.03 Amendments,
Etc................................................. 57
10.04 Costs and Expenses;
Indemnity................................... 58
10.05 Binding
Effect.................................................. 60
10.06 Assignments and
Participations.................................. 60
10.07 Governing
Law................................................... 64
10.08 Execution in
Counterparts....................................... 64
10.09 Successors and
Assigns.......................................... 64
10.10
Captions........................................................
64
10.11
Confidentiality.................................................
64
10.12 Jurisdiction,
Etc............................................... 65
10.13 Waiver of Jury
Trial............................................ 65
10.14 USA Patriot
Act................................................. 65
10.15 Release of
Guarantors........................................... 66
10.16 No Fiduciary
Duty............................................... 66
10.17 Right of
Set-off................................................ 67
<PAGE>
ANNEXES
Annex A
- Applicable Margin
SCHEDULES
Schedule 1.01 - Permitted Existing Debt
Schedule 2.01 - Initial Lenders and
Commitments
Schedule 4.05 - Supplemental
Information
Schedule 7.02 - Existing Liens
EXHIBITS
Exhibit A - Form of
Note
Exhibit B - Form of
Notice of Borrowing
Exhibit C - Form of
Assignment and Acceptance
Exhibit D-1 - Effective
Date Form of Opinion of In-house Counsel to the
Borrower
Exhibit D-2 - Effective
Date Form of Opinion of New York Counsel to the
Loan Parties
Exhibit D-3 - Funding
Date Form of Opinion of In-house Counsel to
the
Borrower
Exhibit D-4 - Funding
Date Form of Opinion of New York Counsel to
the
Loan Parties
Exhibit E - Form of
Guaranty Agreement
Exhibit F - Form of
Solvency Certificate
Exhibit G - Form of
Compliance Certificate
<PAGE>
CREDIT AGREEMENT dated as of March 12, 2009 among:
PFIZER INC., a corporation duly organized and validly existing
under
the laws of the State of Delaware (the "Borrower");
The lenders (the "Initial Lenders") listed on the signature
pages
hereof; and
JPMORGAN CHASE BANK, N.A. ("JPMorgan"), as agent (in such
capacity,
together with its successors in such capacity, the "Administrative
Agent") for
the Lenders (as hereinafter defined).
The parties
hereby agree as follows:
Section 1. Definitions and Accounting Matters.
1.01 Certain Defined Terms. As used herein, the following terms
shall have the following meanings (all terms defined in this
Section 1 or in
other provisions of this Agreement in the singular to have the same
meanings
when in the plural and vice versa):
"Accountants" shall have the meaning assigned to that term in
Section 3.02(j).
"Accounting Change" shall have the meaning assigned to that term
in
Section 1.02.
"Acquired Business" shall mean Wyeth and its Subsidiaries.
"Acquisition" shall mean the acquisition by the Borrower of the
Acquired Business by the merger of Wagner Acquisition Corp., a
direct
wholly-owned Subsidiary of the Borrower, with and into Wyeth
pursuant to the
terms of the Merger Agreement.
"Additional Costs" shall have the meaning assigned to that term
in
Section 2.14(a).
"Adjusted LIBO Rate" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum
(rounded upwards,
if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate
for such
Interest Period multiplied by (b) the Statutory Reserve Rate.
"Administrative
Agent" shall have the meaning assigned to that term
in the introduction hereto.
"Administrative Agent's Account" shall mean the account of the
Administrative Agent most recently designated by it as such account
by notice to
the Lenders and the Borrower.
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" shall mean, as to any Person, any other Person
that,
directly or indirectly, controls, is controlled by or is under
common control
with such Person. For purposes of this definition, the term
"control" (including
the terms "controlling", "controlled by" and "under common control
with") of a
Person means the possession, direct or indirect, of the power to
vote 20% or
more of the Voting Stock of such Person or to direct or cause the
direction of
the management and policies of such Person, whether through the
ownership of
Voting Stock, by contract or otherwise.
"Agreement" shall mean this
Credit Agreement, as amended,
supplemented, extended or otherwise modified from time to time.
"Applicable Duration Fee Rate" shall mean the rate equal to the
rate
set forth below opposite the applicable Duration Fee Payment Date
and the
aggregate outstanding principal amount of Loans on such Duration
Fee Payment
Date:
--------------------------------------------------------------------------------
Aggregate Outstanding Principal 90
Days 180
Days 270 days
Amount of
Loans
after the after
the after the
Funding Date Funding
Date Funding Date
--------------------------------------------------------------------------------
Greater than or equal
to
1.50%
2.00%
3.00%
$12,500,000,000
--------------------------------------------------------------------------------
Greater than or equal
to
1.00%
1.50%
2.00%
$7,500,000,000 but less than
$12,500,000,000
--------------------------------------------------------------------------------
Less than
$7,500,000,000
0.75%
1.25%
1.75%
--------------------------------------------------------------------------------
"Applicable Lending Office" shall mean, with respect to each
Lender,
such Lender's Domestic Lending Office in the case of a Base Rate
Loan and such
Lender's Eurodollar Lending Office in the case of a Eurodollar
Loan.
"Applicable Margin" shall
have the meaning assigned to that term on
Annex A.
"Approved Fund" shall mean 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 (i) a Lender, (ii) an Affiliate of a
Lender or (iii)
an entity or an Affiliate of an entity that administers or manages
a Lender.
"Assignment and Acceptance" shall mean an instrument in
substantially the form of Exhibit C hereto.
"Bankruptcy Code" shall mean the United States Bankruptcy Code
of
1978, as amended from time to time.
"Base Rate" shall mean, for any day, a rate per annum equal to
the
greatest of (a) the Prime Rate in effect on such day, (b) the
Federal Funds
Effective Rate in effect on such day plus 1/2 of 1.00% and (c) the
Adjusted LIBO
Rate for a one month Interest Period beginning on such day (or if
such day is
not a Business Day, the immediately preceding Business Day) plus
1.00%, provided
that, for the avoidance of doubt, the Adjusted LIBO Rate for any
day shall be
based on the rate appearing on the Reuters BBA Libor Rates Page
3750 (or on any
successor or substitute page of such page) at approximately 11:00
a.m. London
time on such day. Any change in the Base Rate due to a change in
the Prime Rate,
the Federal Funds Effective Rate or the Adjusted LIBO Rate shall be
effective
from and including the effective date of such change in the Prime
Rate, the
Federal Funds Effective Rate or the Adjusted LIBO Rate,
respectively.
"Base Rate Loan" shall mean a Loan that bears interest as
provided
in Section 2.07(a)(i).
"Board" shall mean the Board of Governors of the Federal
Reserve
System of the United States of America.
"Board of Directors" shall mean the board of directors of the
Borrower.
"Borrower" shall have the meaning assigned to that term in the
introduction hereto.
"Borrower's Credit Ratings" shall mean (a) an unsecured long
term
obligations rating and commercial paper credit rating of the
Borrower from
Moody's and (b) a long term issuer credit rating and a short term
issuer credit
rating of the Borrower from S&P.
"Borrowing" shall mean the borrowing of simultaneous Loans of
the
same Type made by each of the Lenders pursuant to Section 2.02.
"Business Day" shall mean any day (a)on which commercial banks
are
not authorized by Law or required to close in New York City, and
(b) if such day
relates to any Eurodollar Loan that is also a day on which dealings
in U.S.
Dollar deposits are carried out in the London interbank market.
"Capital Lease" shall mean a lease of (or other agreement
conveying
the right to use) real and/or personal property which obligations
are required
to be classified and accounted for as a capital lease on a balance
sheet of such
Person under generally accepted accounting principles (including
Statement of
Financial Accounting Standards No. 13 of the Financial Accounting
Standards
Board).
"Capital Lease Obligations" shall mean, as to any Person, the
obligations of such Person to pay rent or other amounts under a
Capital Lease
and, for purposes of this Agreement, the amount of such obligations
shall be the
capitalized amount thereof, determined in accordance with generally
accepted
accounting principles (including such Statement No. 13).
"Certain Significant Items" shall mean those items designated
as
"Certain Significant Items" in the Financial Report (or successor
report) filed
as an exhibit to the Borrower's Annual Reports on Form 10-K or in
the
Management's Discussion and Analysis of Financial Condition and
Results of
Operations in the Borrower's Quarterly Reports on Form 10-Q, as
applicable.
"Change of Control" shall mean (a) the acquisition of
ownership,
directly or indirectly, beneficially or of record, by any Person or
group
(within the meaning of the Exchange Act and the rules of the SEC
thereunder as
in effect on the date hereof), of Equity Interests representing
more than 35% of
the aggregate ordinary voting power represented by the issued and
outstanding
Equity Interests of the Borrower; or (b) occupation of a majority
of the seats
(other than vacant seats) on the Board of Directors by Persons who
were neither
(i) nominated by the Board of Directors nor (ii) appointed by
directors so
nominated.
"Code" shall mean the Internal Revenue Code of 1986, as amended
from
time to time.
"Comfort Letter" shall have the meaning assigned to that term
in
Section 3.02(j).
"Commitment" shall have the meaning assigned to that term in
Section
2.01.
"Commitment Documents" shall mean (i) the Bridge Term Facility
Commitment Letter, dated as of January 25, 2009, as amended from
time to time,
among the Borrower and the Joint Lead Arrangers, (ii) the Bridge
Term Facility
Additional Arranger Commitment Letter, dated as of February 18,
2009, as amended
from time to time, among the Borrower and the Joint Lead Arrangers
and each
Accession Letter (as defined therein) and (iii) the Bridge Term
Facility Fee
Letter, dated as of January 25, 2009, as amended from time to time,
including
pursuant to the Amendment to Bridge Term Facility Fee Letter, dated
as of March
12, 2009, in each case, among the Borrower and the Joint Lead
Arrangers.
"Commitment Termination Date" shall mean the earliest of (a)
the
consummation of the Acquisition prior to the Funding Date, (b) the
Termination
Date (as defined in, and subject to extension pursuant to the terms
of, the
Merger Agreement), (c) December 31, 2009, (d) the abandonment of
the Acquisition
or the termination of the Merger Agreement and (e) the date on
which the
Commitments are cancelled pursuant to Section 8.
"Communications" shall have the meaning assigned to that term
in
Section 10.02(b)(i).
"Company Disclosure Letter" shall mean the Parent Disclosure
Letter
(as defined in the Merger Agreement) dated January 25, 2009 and
delivered by the
Borrower to Wyeth pursuant to the Merger Agreement.
"Company Material Adverse Effect" shall mean an effect, event,
development, change, state of facts, condition, circumstance or
occurrence that
is or would be reasonably expected to be materially adverse to the
financial
condition, assets, liabilities, business or results of operations
of the
Borrower and its Subsidiaries, taken as a whole; provided, however,
that a
Company Material Adverse Effect shall not be deemed to include
effects, events,
developments, changes, states of facts, conditions, circumstances
or occurrences
arising out of, relating to or resulting from: (A) changes
generally affecting
the economy, financial or securities markets or political or
regulatory
conditions, to the extent such changes do not adversely affect the
Borrower and
its Subsidiaries in a disproportionate manner relative to other
participants in
the pharmaceutical or biotechnology industry; (B) changes in the
pharmaceutical
or biotechnology industry, to the extent such changes do not
adversely affect
the Borrower and its Subsidiaries in a disproportionate manner
relative to other
participants in such industry; (C) any change in Law or the
interpretation
thereof or GAAP or the interpretation thereof, to the extent such
changes do not
adversely affect the Borrower and its Subsidiaries in a
disproportionate manner
relative to other participants in such industry; (D) acts of war,
armed
hostility or terrorism to the extent such changes do not adversely
affect the
Borrower and its Subsidiaries in a disproportionate manner relative
to other
participants in the pharmaceutical or biotechnology industry; (E)
any change
attributable to the negotiation, execution or announcement of the
Acquisition,
including any litigation resulting therefrom, and any adverse
change in
customer, distributor, employee, supplier, financing source,
licensor, licensee,
sub-licensee, stockholder, co-promotion or joint venture partner or
similar
relationships; (F) any failure by the Borrower to meet any internal
or published
industry analyst projections or forecasts or estimates of revenues
or earnings
for any period (it being understood and agreed that the facts and
circumstances
giving rise to such failure that are not otherwise excluded from
the definition
of Company Material Adverse Effect may be taken into account in
determining
whether there has been, a Company Material Adverse Effect); (G) any
change in
the price or trading volume of the common stock of the Borrower on
the New York
Stock Exchange (it being understood and agreed that the facts and
circumstances
giving rise to such change that are not otherwise excluded from the
definition
of Company Material Adverse Effect may be taken into account in
determining
whether there has been, a Company Material Adverse Effect); and (H)
compliance
with the terms of, or the taking of any action required by, the
Merger
Agreement.
"Company SEC Documents" shall mean all registration statements,
prospectuses, forms, reports, definitive proxy statements,
schedules, statements
and documents required to be filed by the Borrower under the
Securities Act or
the Exchange Act, as the case may be, together with all
certifications required
pursuant to the Sarbanes-Oxley Act and any other documents filed by
the Borrower
or any of its Subsidiaries with the SEC, including exhibits and
other
information incorporated therein, as they have been supplemented,
modified or
amended since the time of filing.
"Consolidated" shall mean, with respect to any Person, the
consolidation of accounts of such Person and its Subsidiaries in
accordance with
GAAP.
"Consolidated Net Income" shall mean, for any period, the
Consolidated net income (or loss) for such period as reflected in
the
Consolidated statements of income, stockholders' equity and cash
flows of the
Borrower most recently filed with the SEC; provided, however, that
the net
income of any other Person in which the Borrower or a Subsidiary
has a joint
interest with a third party (which interest does not cause the net
income of
such other Person to be Consolidated into the net income of the
Borrower) shall
be included only to the extent of the amount of dividends or
distributions paid
to the Borrower or a Subsidiary.
"Constituent Documents" shall mean, with respect to any Person,
(a)
the articles of incorporation, certificate of incorporation,
constitution or
certificate of formation (or the equivalent organizational
documents) of such
Person, (b) the by-laws or operating agreement (or the equivalent
governing
documents) of such Person and (c) any document setting forth the
manner of
election or duties of the directors or managing members of such
Person (if any)
and the designation, amount or relative rights, limitations and
preferences of
any class or series of such Person's Equity Interests.
"Convert", "Conversion" and "Converted" shall each refer to a
conversion of Loans of one Type into Loans of the other Type
pursuant to Section
2.08, 2.09 or 2.15.
"Covered Subsidiaries" shall mean the Material Subsidiaries and
the
Guarantors.
"Debt" of any Person shall mean the sum of the following
(without
duplication): (a) all obligations of such Person for borrowed
money, under
Repurchase Agreements, Disqualified Stock or evidenced by bonds,
debentures,
notes or other similar instruments (other than any such obligations
to the
extent that (i) the liability of such Person is limited solely to
the property
or asset financed by such obligations or (ii) such obligations
result from the
requirement to return collateral posted to such Person by a
counterparty
pursuant to a Hedging Contract); (b) all obligations of such Person
to pay the
deferred purchase price of property, assets or services, except
trade accounts
payable arising in the ordinary course of business; (c) all Capital
Lease
Obligations of such Person (other than any such obligations to the
extent that
the liability of such Person is limited solely to the property or
asset financed
by such obligations); (d) all Debt of others secured by a Lien on
any property
or asset of such Person, whether or not such Debt is assumed by
such Person; (e)
all Debt of others Guaranteed by such Person; and (f) all
reimbursement
obligations or other obligations (other than contingent
obligations) with
respect to bankers' acceptances or letters of credit or similar
instruments
created or issued at the request of such Person.
"Debt Incurrence" shall mean the issuance or the incurrence of
any
Debt of the type set forth in clause (a) of the definition of Debt,
in each
case, after the date hereof by the Borrower or any of its
Subsidiaries as to
which the Borrower or such Subsidiary receives Net Cash
Proceeds.
"Default" shall mean any Event of Default or any event that
with
notice or lapse of time or both would become an Event of
Default.
"Defaulting Lender" shall mean any Lender, as reasonably
determined
by the Administrative Agent on or prior to the Funding Date, that
has (a) failed
to comply with its obligation to fund any portion of its Loans on
the Funding
Date, (b) notified the Borrower, the Administrative Agent or any
Lender in
writing that it does not intend to comply with any of its funding
obligations
under this Agreement or has made a public statement to the effect
that it does
not intend to comply with its funding obligations under this
Agreement or
generally under other agreements in which it has committed to
extend credit, (c)
failed, within three Business Days or prior to the Funding Date, if
earlier,
after written request by the Administrative Agent, to confirm that
it will
comply with the terms of this Agreement relating to its obligations
to fund
prospective Loans; provided that any such Lender shall cease to be
a Defaulting
Lender under this clause (c) upon receipt of such confirmation by
the
Administrative Agent, (d) otherwise failed to pay over to the
Administrative
Agent or any other Lender any other amount required to be paid by
it hereunder
within three Business Days of the date when due or prior to the
Funding Date, if
earlier, unless the subject of a good faith dispute, or (e) (i)
become or is
insolvent or has a parent company that has become or is insolvent
or (ii) become
the subject of a bankruptcy or insolvency proceeding, or has had a
receiver,
conservator, trustee, administrator, assignee for the benefit of
creditors or
similar Person charged with reorganization or liquidation of its
business or
custodian, appointed for it, or has taken any action in furtherance
of, or
indicating its consent to, approval of or acquiescence in any such
proceeding or
appointment or has a parent company that has become the subject of
a bankruptcy
or insolvency proceeding, or has had a receiver, conservator,
trustee,
administrator, assignee for the benefit of creditors or similar
Person charged
with reorganization or liquidation of its business or custodian
appointed for
it, or has taken any action in furtherance of, or indicating its
consent to,
approval of or acquiescence in any such proceeding or appointment;
provided that
a Lender shall not be a Defaulting Lender solely by virtue of the
ownership or
acquisition of an Equity Interest in such Lender or a parent
company thereof by
a Governmental Authority or an instrumentality thereof; provided
further that a
Lender may cease to be a Defaulting Lender pursuant to Section
2.17(a).
"Designated Equity Issuances" shall mean any issuance or sale of
any
Equity Interests (i) pursuant to employee and other benefit plans,
stock option
plans, management equity plans, other benefit plans or compensation
arrangements
or accommodations for management, directors or employees of the
Borrower and its
Subsidiaries existing on the Effective Date or, if after the
Effective Date,
established in the ordinary course of business, (ii) by any
Subsidiaries of the
Borrower to the Borrower or any other Subsidiary, (iii)
constituting
consideration for the Acquisition, (iv) in connection with the
exercise of the
Acquired Business' $2 Convertible Preferred Stock, par value $2.50
per share,
outstanding immediately prior to the Effective Time (as defined in
the Merger
Agreement), (v) constituting consideration for Designated
Investments and (vi)
pursuant to dividend reinvestment plans established for the benefit
of the
common stock holders of the Borrower.
"Designated Financings" shall mean the following Debt of the
Borrower or its Subsidiaries: (a) Sale and Lease-Back Transactions
the U.S.
Dollar Equivalent of the Net Cash Proceeds of which (when taken
together with
all such Sale and Lease-Back Transactions) do not exceed
$100,000,000; (b) Debt
under Securitization Facilities (other than Foreign Securitization
Facilities)
the U.S. Dollar Equivalent of the Net Cash Proceeds of which in the
aggregate do
not exceed (i) $100,000,000 less (ii) the U.S. Dollar Equivalent of
the Net Cash
Proceeds of Dispositions constituting Specified Asset Sales under
clause (v) of
that definition, and (c) Debt under Foreign Securitization
Facilities the U.S.
Dollar Equivalent of the Net Cash Proceeds of which in the
aggregate do not
exceed (i) $750,000,000 less (ii) the U.S. Dollar Equivalent of the
Net Cash
Proceeds of Dispositions constituting Specified Asset Sales under
clause (vi) of
that definition.
"Designated Investment" shall mean a Domestic Designated
Investment
or a Foreign Designated Investment.
"Disposition" or "Dispose" shall mean the sale, transfer,
license,
lease or other disposition (including any Sale and Lease-Back
Transaction) of
any property or assets by any Person (or the granting of any option
or other
right to do any of the foregoing), including any sale, assignment,
transfer or
other disposal, with or without recourse, of any notes or accounts
receivable or
any rights and claims associated therewith; provided that the term
"Disposition"
shall not include any loss of or damage to, or any condemnation or
other taking
of, any property or assets.
"Disqualified Stock" shall mean with respect to any Person, any
Equity Interest that, by its terms (or by the terms of any security
into which
it is convertible or for which it is exchangeable), or upon the
happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking
fund
obligation or otherwise, or is exchangeable for Debt of such
Person, or is
redeemable at the option of the holder thereof, in whole or in
part, on or prior
to the date that is five years after the Original Maturity
Date.
"Domestic Designated Investment" shall mean a Restricted
Investment
in a Person organized and existing under the laws of the United
States of
America or any public subdivision thereof by the Borrower or any
Subsidiary
organized and existing under the laws of the United States of
America or any
public subdivision thereof other than the Acquisition.
"Domestic Lending Office" shall mean, with respect to any
Initial
Lender, the office of such Lender specified as its "Domestic
Lending Office" in
its Administrative Questionnaire or, with respect to any other
Lender, the
office of such Lender specified as its "Domestic Lending Office" in
its
Administrative Questionnaire, or such other office of such Lender
as such Lender
may from time to time notify the Borrower and the Administrative
Agent.
"Domestic Subsidiary" shall mean a Subsidiary that is not a
Foreign
Subsidiary.
"Duration Fee Payment Date" shall mean each of (i) the date that
is
90 days after the Funding Date, (ii) the date that is 180 days
after the Funding
Date and (iii) the date that is 270 days after the Funding Date;
provided that
if any such date shall not be a Business Day, then such Duration
Fee Payment
Date shall be the immediately preceding Business Day.
"EBITDA" shall mean, with respect to any Person, for any
period,
Consolidated Net Income for such Person for such period plus (a)
the sum of, in
each case to the extent included in the calculation of such
Consolidated Net
Income but without duplication,
(i) federal, state, local or foreign income Taxes;
(ii) depreciation or amortization expenses;
(iii) interest expenses (net of interest income);
(iv) fees and expenses paid related to the closing of the
Acquisition;
(v) extraordinary, non-recurring or unusual losses or expenses
(including costs and expenses related to the cost reduction
initiative program
announced January 2009, or a substantially similar cost reduction
initiative
program created in conjunction with the Acquisition, including
termination
costs, exit costs and other implementation costs not to exceed
$3,500,000,000 in
the aggregate during the term of this Agreement);
(vi) costs and expenses related to the integration (both before
acquisition and after) of Wyeth including termination costs, costs
to exit
redundant facilities, and other organizational integration costs
such as
write-offs of redundant IT systems, accelerated depreciation
incurred in
connection with anticipated closures or shortened lives due to
acquisition and
costs of integrating data; provided that such costs and expenses do
not to
exceed $4,000,000,000 in the aggregate during the term of this
Agreement;
(vii) non-cash purchase accounting charges attributable to any
acquisition including future write-offs of in process research and
development
capitalized as part of such acquisition;
(viii) discontinued operations to the extent segregated in the
Consolidated statements of income, stockholders' equity and cash
flows of the
Borrower; and
(ix) non-cash Certain Significant Items not included above in
clauses (i) through (viii) and cash Certain Significant Items not
included above
in clauses (i) through (viii) to the extent such cash items do not
exceed
$500,000,000 in the aggregate for any such period,
in each case, for such period, and minus (b) without duplication
and to the
extent included in determining such Consolidated Net Income, the
sum of all
income or gains attributed to such items for such period; provided
that (1) if
the Acquisition or a Material Transaction has occurred during such
period,
EBITDA shall be determined for such period on a pro forma basis as
if such
Material Transaction or the Acquisition has occurred on the first
day of such
period and (2) if the cash consideration for the Acquisition is
financed with
proceeds of Permitted Repurchase Debt of the type described in
clause (b) of the
definition thereof incurred in the period prior to the consummation
of the
Acquisition and the Acquisition has occurred within ten days after
the end of
such prior period, EBITDA shall be determined for such prior period
on a pro
forma basis as if the Acquisition had occurred on the first day of
such prior
period.
"Effective Date" shall have the meaning assigned to that term
in
Section 3.01.
"Eligible Assignee" shall mean (i) a Lender; (ii) an Affiliate of
a
Lender; (iii) a commercial bank organized under the Laws of the
United States,
or any State thereof, and having total assets in excess of
$10,000,000,000; (iv)
a commercial bank organized under the Laws of any other country
that is a member
of the Organization for Economic Cooperation and Development or has
concluded
special lending arrangements with the International Monetary Fund
associated
with its assets in excess of $10,000,000,000 or its equivalent in
the relevant
foreign currency, so long as such bank is acting through a branch
or agency
located in the country in which it is organized or another country
that is
described in this clause (iv); (v) the central bank of any country
that is a
member of the Organization for Economic Cooperation and
Development; (vi) a
finance company, insurance company or other financial institution
or fund
(whether a corporation, partnership, trust or other entity) that is
engaged in
making, purchasing or otherwise investing in commercial loans for
its own
account in the ordinary course of its business and having total
assets in excess
of $10,000,000,000 or its equivalent in the relevant foreign
currency; (vii) any
Approved Fund and (viii) any other Person approved by the
Administrative Agent
and, unless an Event of Default shall have occurred and be
continuing, the
Borrower, such approval not to be unreasonably withheld or delayed;
provided
that none of the Borrower, any Affiliate of the Borrower or an
individual shall
qualify as an Eligible Assignee.
"Equity Interests" shall mean shares of capital stock,
partnership
interests, membership interests in a limited liability company,
beneficial
interests in a trust or other equity ownership interests in a
Person, and any
warrants, options or other rights entitling the holder thereof to
purchase or
acquire any such equity interest.
"Equity Issuance" shall mean any issuance or sale by the Borrower
or
any of its Subsidiaries after the date hereof of (i) any of its
Equity Interests
or (ii) any other security or instrument representing an Equity
Interest (or the
right to obtain any Equity Interest) in the Borrower or any of its
Subsidiaries,
in each case, other than Disqualified Stock.
"ERISA" shall mean the Employee Retirement Income Security Act
of
1974, as amended from time to time, and the regulations promulgated
and rulings
issued thereunder.
"ERISA Affiliate" shall mean any Person that for purposes of
Title
IV of ERISA is a member of the Borrower's controlled group, or
under common
control with the Borrower, within the meaning of Section 414 of the
Internal
Revenue Code.
"ERISA Event" shall mean (a) the occurrence with respect to a
Plan
of a reportable event, within the meaning of Section 4043 of ERISA,
unless the
30-day notice requirement with respect thereto has been waived by
the Pension
Benefit Guaranty Corporation (or any successor) ("PBGC"); (b) the
application
for a minimum funding waiver with respect to a Plan; (c) the
provision by the
administrator of any Plan of a notice of intent to terminate such
Plan, pursuant
to Section 4041(a)(2) of ERISA (including any such notice with
respect to a plan
amendment referred to in Section 4041(e) of ERISA); (d) the
cessation of
operations at a facility of the Borrower or any of its ERISA
Affiliates in the
circumstances described in Section 4062(e) of ERISA; (e) the
withdrawal by the
Borrower or any of its ERISA Affiliates from a Multiple Employer
Plan during a
plan year for which it was a substantial employer, as defined in
Section
4001(a)(2) of ERISA; (f) the conditions set forth in Section
302(f)(1)(A) and
(B) of ERISA to the creation of a lien upon property or assets or
rights to
property or assets of the Borrower or any of its ERISA Affiliates
for failure to
make a required payment to a Plan are satisfied; (g) the adoption
of an
amendment to a Plan requiring the provision of security to such
Plan, pursuant
to Section 307 of ERISA; or (h) the termination of a Plan by the
PBGC pursuant
to Section 4042 of ERISA, or the occurrence of any event or
condition described
in Section 4042 of ERISA that constitutes grounds for the
termination of, or the
appointment of a trustee to administer, a Plan.
"Eurodollar" when used in reference to any Loan or Borrowing,
refers
to whether such Loan, or the Loans comprising such Borrowing, are
bearing
interest at a rate determined by reference to the Adjusted LIBO
Rate.
"Eurodollar Lending Office" shall mean, with respect to any
Lender,
the office of such Lender specified as its "Eurodollar Lending
Office" in its
Administrative Questionnaire (or, if no such office is specified,
its Domestic
Lending Office), or such other office of such Lender as such Lender
may from
time to time notify the Borrower and the Administrative Agent.
"Events of Default" shall have the meaning assigned to that term
in
Section 8.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as
amended.
"Excluded Taxes" shall mean, with respect to the Administrative
Agent, any Lender or any other recipient of any payment to be made
by or on
account of any obligation of the Borrower hereunder or under any
other Loan
Document, (a) Taxes imposed on (or measured by) its net income by
the United
States of America (including any political subdivision thereof) or
by any other
jurisdiction (including any political subdivision of any thereof)
under the Laws
of which it is organized, in which its principal office is located
or in which
it conducts any business (other than solely on account of the
execution and
performance of or the receipt of any payment under, this Agreement
or any other
Loan Document) or, in the case of any Lender, in which its
Applicable Lending
Office is located, (b) any branch profits taxes imposed by the
United States of
America or any comparable Tax imposed by any foreign jurisdiction
and (c) in the
case of a Foreign Lender (other than an assignee pursuant to a
demand by the
Borrower under Section 10.06(a)), any withholding Tax that is
attributable to
such Foreign Lender's failure, inability or ineligibility to
furnish
documentation described in Section 2.16(e) establishing that such
Foreign Lender
is entitled to complete exemption from withholding Tax, except to
the extent the
Administrative Agent's or such Lender's failure is due to a change
in Law
occurring after the date on which such Foreign Lender becomes a
Lender hereunder
and except to the extent that such Foreign Lender (or its assignor,
if any) was
entitled, at the time of designation of a different Applicable
Lending Office,
to receive additional amounts from the Borrower with respect to
such withholding
Tax pursuant to Section 2.16(a).
"Federal Funds Effective Rate" shall mean, 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.
"Final Extended Maturity Date" shall mean the date that is 90
days
after the First Extended Maturity Date, provided that, if such date
shall not be
a Business Day, the Final Extended Maturity Date shall be the
immediately
preceding Business Day.
"Final Extension Amount" shall mean an amount selected by the
Borrower and set forth in the Final Extension Notice, which amount
shall not
exceed the lesser of (i) 10% of the Initial Balance and the (ii)
aggregate
outstanding principal amount of the Loans on the Final Extension
Date.
"Final Extension Conditions" shall mean each of the following
conditions: (a) the First Extension Date shall have occurred, (b)
the Borrower
shall have given written notice signed by a Financial Officer (the
"Final
Extension Notice") to the Administrative Agent not later than 11:00
A.M. (New
York City time) three Business Days before the date of the proposed
Final
Extension Date, which notice shall include (i) the Final Extension
Amount, (ii)
the proposed Final Extension Date and (iii) a representation and
warranty by the
Borrower that on the Final Extension Date, and after giving effect
thereto, the
statements in clause (d) below are accurate, (c) the Administrative
Agent shall
have received from the Borrower for the account of each Lender an
extension fee
equal to 2.00% of the Final Extension Amount and (d) on the Final
Extension Date
and after giving effect thereto, the following statements shall be
true: (x) the
representations and warranties contained in Section 4 are accurate
in all
material respects on and as of such date as if made on and as of
such date,
except to the extent such representation and warranties expressly
relate to an
earlier date, in which case such representations and warranties
shall have been
accurate in all material respects as of such earlier date, (y)
since December
31, 2008, a Material Adverse Change has not occurred and (z) no
Default has
occurred and is continuing or would result from the occurrence of
the Final
Extension Date.
"Final Extension Date" shall mean the date,
on or before the close
of banking business on the First Extended Maturity Date, on which
each of the
Final Extension Conditions shall have been satisfied.
"Financial Officer" shall mean (a) the Senior Vice
President-Controller of the Borrower, (b) the Chief Financial
Officer of the
Borrower, (c) the Senior Vice President-Treasurer of the Borrower
or (d) any
officer of the Borrower who succeeds to all or substantially all of
the
responsibilities of an officer identified in clause (a), (b) or (c)
above.
"First Extended Maturity Date" shall mean the date that is 90
days
after the Original Maturity Date, provided that, if such date shall
not be a
Business Day, the First Extended Maturity Date shall be the
immediately
preceding Business Day.
"First Extension Amount" shall mean an amount selected by the
Borrower and set forth in the First Extension Notice, which amount
shall not
exceed the lesser of (i) 20% of the Initial Balance and the (ii)
aggregate
outstanding principal amount of the Loans on the First Extension
Date.
"First Extension Conditions" shall mean each of the following
conditions: (a) the Funding Date shall have occurred, (b) the
Borrower shall
have given written notice signed by a Financial Officer (the "First
Extension
Notice") to the Administrative Agent not later than 11:00 A.M. (New
York City
time) three Business Days before the date of the proposed First
Extension Date,
which notice shall include (i) the First Extension Amount, (ii) the
proposed
First Extension Date and (iii) a representation and warranty by the
Borrower
that on the First Extension Date, and after giving effect thereto,
the
statements in clause (d) below are accurate, (c) the Administrative
Agent shall
have received from the Borrower for the account of each Lender an
extension fee
equal to 2.00% of the First Extension Amount and (d) on the First
Extension Date
and after giving effect thereto, the following statements shall be
true: (x) the
representations and warranties contained in Section 4 are accurate
in all
material respects on and as of such date as if made on and as of
such date,
except to the extent such representation and warranties expressly
relate to an
earlier date, in which case such representations and warranties
shall have been
accurate in all material respects as of such earlier date, (y)
since December
31, 2008, a Material Adverse Change has not occurred and (z) no
Default has
occurred and is continuing or would result from the occurrence of
the First
Extension Date.
"First Extension Date" shall mean the date, on or before the
close
of banking business on the Original Maturity Date, on which each of
the First
Extension Conditions shall have been satisfied.
"Foreign Designated Investment" shall mean any Restricted
Investment
other than a Domestic Designated Investment and the
Acquisition.
"Foreign Lender" shall mean any Lender that is organized under
the
laws of a jurisdiction other than the United States of America. 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 Securitization Facility" shall mean any Securitization
Facility in which the related property or assets are those of a
Foreign
Subsidiary.
"Foreign Subsidiary" shall mean any Subsidiary that is not
organized
under the laws of the United States of America or any public
subdivision
thereof.
"Funding Date" shall have the meaning assigned to that term in
Section 3.02.
"GAAP" shall mean generally accepted accounting principles in
the
United States of America.
"Governmental Authority" shall mean the government of the
United
States of America, 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 any Person shall mean any obligation of such
Person
directly guaranteeing any Debt of any other Person or otherwise
providing for
the payment of any Debt of any Person, provided that the term
"Guarantee" shall
not include endorsements for collection or deposits in the ordinary
course of
business. The term "Guarantee" used as a verb has a correlative
meaning.
"Guarantors" shall mean, as of the funding on the Funding Date
and
after the Funding Date, Wyeth, and each other Subsidiary that signs
the Guaranty
Agreement or that becomes a party to the Guaranty Agreement on or
after the
Funding Date.
"Guaranty Agreement" shall mean the guaranty agreement,
substantially in the form of Exhibit E, executed by the
Guarantors.
"Hedging Contracts" shall mean all interest rate contracts,
foreign
exchange contracts, currency swap or option agreements, forward
contracts,
commodity swap, purchase or option agreements, other commodity
price hedging
arrangements and all other similar agreements or arrangements
designed to alter
the risks of any Person arising from fluctuations in interest
rates, currency
values or commodity prices.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
"Indemnitee" shall have the meaning assigned to that term in
Section
10.04(c).
"Information" shall mean all information, documentation or
materials
(including the financial statements referred to in Section 3.01(b))
delivered by
the Borrower or at the direction of the Borrower to the Joint Lead
Arrangers,
the Administrative Agent or the Lenders (or, in each case, their
affiliates or
representatives) in connection with this Agreement.
"Initial Balance" shall mean the initial aggregate principal
amount
of the Loans made on the Funding Date.
"Initial Lenders" shall have the meaning assigned to that term
in
the introduction hereto.
"Interest Period" shall mean the period commencing on the date
of
such Borrowing and ending on the numerically corresponding day in
the calendar
month that is one, two, three or six months thereafter, as the
Borrower may
elect; 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, in the case of a Eurodollar Borrowing only,
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 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 Borrowing initially shall be the Funding Date and thereafter
shall be the
effective date of the most recent conversion or continuation of
such Borrowing.
"Joint Lead Arrangers" shall mean J.P. Morgan Securities Inc.,
Banc
of America Securities LLC, Barclays Capital, the investment banking
division of
Barclays Bank PLC, Citigroup Global Markets Inc. and Goldman Sachs
Credit
Partners L.P.
"Law" shall mean any federal, state, local, national or
supranational or foreign law (including common law), statute,
ordinance, rule,
regulation, Order, code ruling, decree, arbitration award, agency
requirement,
license or permit of any Governmental Authority.
"Lenders" shall mean (i) the Initial Lenders and (ii) each
Eligible
Assignee that shall become a party hereto pursuant to Section
10.06(a), (b) or
(c).
"Leverage Ratio" shall mean, with respect to any Person as of
the
last day of any fiscal quarter, the ratio of (a) Specified Debt of
such Person
and its Subsidiaries outstanding as of such date to (b) EBITDA for
such Person
for the last four fiscal quarter period ending on such date.
"LIBO Rate" shall mean, with respect to any Eurodollar Borrowing
for
any Interest Period, the rate appearing on Reuters BBA Libor Rates
Page 3750 (or
on any successor or substitute page of such page providing rate
quotations
comparable to those currently provided on such page of such page,
as determined
by the Administrative Agent from time to time for purposes of
providing
quotations of interest rates applicable to dollar deposits in the
London
interbank market) at approximately 11:00 a.m., London time, two
Business Days
prior to the commencement of such Interest Period, as the rate for
dollar
deposits with a maturity comparable to such Interest Period. In the
event that
such rate is not available at such time for any reason, then the
"LIBO Rate"
with respect to such Eurodollar Borrowing for such Interest Period
shall be the
rate at which dollar deposits of $5,000,000 and for a maturity
comparable to
such Interest Period are offered by the principal London office of
the
Administrative Agent in immediately available funds in the London
interbank
market at approximately 11:00 a.m., London time, two Business Days
prior to the
commencement of such Interest Period.
"Lien" shall mean, with respect to any property or asset, any
mortgage, lien, pledge, charge, security interest or encumbrance of
any kind in
respect of such property or asset.
"Loan" shall have the meaning assigned to that term in Section
2.01.
"Loan Documents" shall mean, collectively, this Agreement, the
Guaranty Agreement, the Notes and the Commitment Documents.
"Loan Party" shall mean each of the Borrower, each Guarantor
and
each other Subsidiary that executes and delivers a Loan
Document.
"Material Adverse Change" shall mean any material adverse change
in
any of (a) the business, condition (financial or otherwise) or
results of
operations of the Borrower and its Subsidiaries taken as a whole,
(b) the
ability of the Borrower to perform any of its material obligations
under this
Agreement or the other Loan Documents, or (c) the rights of or
benefits
available to the Lenders or the Administrative Agent under this
Agreement or any
other Loan Document.
"Material Adverse Effect" shall mean an effect that results in
or
causes, or could reasonably be expected to result in or cause, a
Material
Adverse Change.
"Material Subsidiary" shall mean any Subsidiary (a) for which
the
Consolidated gross revenues for the four fiscal quarter periods
ending on the
last day of the most recently ended fiscal quarter of the Borrower
for which
financial statements have been delivered pursuant to clauses (a) or
(b), as
applicable, of Section 6.01 (or prior to such delivery, as of
December 31, 2008)
exceed 5% of the Consolidated gross revenues of the Borrower for
such period, in
each case determined in accordance with GAAP, or (b) for which the
aggregate
total assets (after intercompany eliminations) as of the last day
of the most
recently ended fiscal quarter of the Borrower for which financial
statements
have been delivered pursuant to clauses (a) or (b), as applicable,
of Section
6.01 (or prior to such delivery, as of December 31, 2008) exceed 5%
of the
Consolidated total assets of the Borrower as of such date, in each
case
determined in accordance with GAAP.
"Material Transaction" shall mean (a) any Disposition or series
of
related Dispositions by the Borrower or any of its Subsidiaries
after the
Effective Date, in each case, involving consideration (including
non-cash
consideration) with a fair market value in excess of $100,000,000
or (b) any
Designated Investment after the Effective Date involving
consideration
(including non-cash consideration) with a fair market value in
excess of
$100,000,000.
"Merger Agreement" shall mean the Agreement and Plan of Merger,
dated as of January 25, 2009, as amended, supplemented or otherwise
modified
from time to time (in each case in accordance with the terms of
this Agreement),
among Pfizer Inc., Wagner Acquisition Corp. and Wyeth.
"Moody's" shall mean Moody's Investor Services, Inc. and any
successor thereto.
"Multiemployer Plan" shall mean a multiemployer plan, as defined
in
Section 4001(a)(3) of ERISA, in respect of which the Borrower or
any ERISA
Affiliate could have any obligation or liability, contingent or
otherwise.
"Multiple Employer Plan" shall mean a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of
the Borrower or any ERISA Affiliate and at least one Person other
than the
Borrower and the ERISA Affiliates or (b) was so maintained and in
respect of
which the Borrower or any ERISA Affiliate could have liability
under Section
4064 or 4069 of ERISA in the event such plan has been or were to be
terminated.
"Net Cash Proceeds" shall mean, (a) with respect to any
Disposition
by the Borrower or any of its Subsidiaries, the aggregate amount of
all cash
proceeds (including any cash proceeds received by way of deferred
payment of
principal pursuant to a note or installment receivable, purchase
price
adjustment, or otherwise, but only as and when received) received
by the
Borrower or such Subsidiary in respect of such Disposition, net of
(i) all
attorneys' fees, accountants' fees, brokerage, consultant and other
customary
fees and commissions, title and recording tax expenses and other
fees and
expenses incurred by the Borrower or such Subsidiary in connection
with such
Disposition, (ii) all Taxes (including Taxes arising out of the
distribution of
such cash proceeds by a Foreign Subsidiary directly to the Borrower
or
indirectly to the Borrower by one or more intermediate Subsidiaries
or another
Subsidiary organized and existing under the laws of the United
States of America
or any public subdivision thereof (such Taxes, "Specified Taxes"))
paid or
reasonably estimated to be payable as a result thereof, (iii) any
liabilities or
obligations associated with the property or assets Disposed of in
such
Disposition and retained, indemnified or insured by the Borrower or
any of its
Subsidiaries after such Disposition, including without limitation
pension and
other post-employment benefit liabilities, liabilities related to
environmental
matters, and liabilities relating to any indemnification
obligations associated
with such Disposition, (iv) all payments made, and all installment
payments
required to be made, with respect to any obligation (x) that is
secured by any
property or assets subject to such Disposition, in accordance with
the terms of
any Lien upon such property or assets, or (y) that must by its
terms, or in
order to obtain a necessary consent to such Disposition, or by
applicable law,
be repaid out of the proceeds from such Disposition, (v) all
distributions and
other payments required to be made to minority interest holders in
Subsidiaries
or joint ventures as a result of such Disposition, or to any other
Person (other
than the Borrower or any of its Subsidiaries) owning a beneficial
interest in
the property or assets Disposed of in such Disposition, and (vi)
the amount of
any purchase price or similar adjustment (x) claimed by any Person
to be owed by
the Borrower or any of its Subsidiaries, until such time as such
claim shall
have been settled or otherwise finally resolved or (y) paid or
payable by the
Borrower or any of its Subsidiaries, in either case in respect of
such
Disposition, (b) with respect to any Property Loss Event, the
aggregate amount
of all cash proceeds received by the Borrower and its Subsidiaries,
net of
amounts applied or committed to be applied, to the restoration or
repair of
damaged property or assets or to the purchase price of replacement
property or
assets or other similar property or assets useful in the business
of the
Borrower within 180 days after the receipt of such proceeds and net
of Taxes,
including Specified Taxes, and (c) with respect to any Equity
Issuance or Debt
Incurrence, the aggregate amount of all cash proceeds received by
the Borrower
and its Subsidiaries in respect of such Equity Issuance or Debt
Incurrence, net
of fees, expenses, costs, underwriting discounts and commissions
incurred by the
Borrower and its Subsidiaries in connection therewith and net of
taxes paid or
estimated to be payable as a result thereof.
"Note" shall mean a promissory note of the Borrower payable to
the
order of any Lender, in substantially the form of Exhibit A hereto,
evidencing
the aggregate indebtedness of the Borrower to such Lender.
"Notice
of Borrowing" shall have the meaning assigned to that term
in Section 2.02(a).
"Obligations" means the Loans and all other amounts,
obligations,
covenants and duties owing by the Borrower or any other Loan Party
to the
Administrative Agent, any Lender, any Affiliate of any of them or
any
Indemnitee, of every type and description (whether by reason of an
extension of
credit, payment of any draft drawn or other payment thereunder,
loan, guaranty,
indemnification or otherwise), present or future, arising under
this Agreement,
any other Loan Document, whether direct or indirect (including
those acquired by
assignment), absolute or contingent, due or to become due, now
existing or
hereafter arising and however acquired and whether or not evidenced
by any note,
guaranty or other instrument or for the payment of money, including
all fees,
interest, charges, expenses, attorneys' fees and disbursements and
other sums
chargeable to the Borrower or any other Loan Party under this
Agreement and any
other Loan Document.
"Order" shall mean any order, judgment or injunction.
"Original Maturity Date" shall mean the date that is 364 days
after
the Funding Date, provided that, if such date shall not be a
Business Day, the
Original Maturity Date shall be the immediately preceding Business
Day.
"Other Taxes" shall mean 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 hereunder or from the
execution, delivery
or enforcement of, or otherwise with respect to, the Loan
Documents.
"Patriot Act" shall mean the USA Patriot Act of 2001 (31 U.S.C.
5318
et seq.).
"Permanent Financing" shall mean the issuance or incurrence by
any
Loan Party of loans, debt facilities (including any repurchase
facility), debt
or equity securities, common or preferred equity contributions or
other Equity
Interests, for proceeds of up to $22,500,000,000 for the purpose of
reducing the
Commitments, repaying the Obligations and/or financing a portion of
the
Acquisition that would otherwise be funded by the Loans.
"Permissible Debt" shall mean Debt for borrowed money or
Guarantees
thereof (without duplication) (i) of any Subsidiary that is not a
Guarantor in
an aggregate principal amount for all such Subsidiaries for which
the U.S.
Dollar Equivalent does not exceed $2,500,000,000, and (ii) of any
Foreign
Subsidiary in an aggregate principal amount for all Foreign
Subsidiaries for
which the U.S. Dollar Equivalent does not exceed
$2,000,000,000.
"Permitted Commercial Paper" shall mean commercial paper, or
refinancings thereof, issued by the Company in the ordinary course
of business
for working capital purposes.
"Permitted Debt Issuance" shall mean a Debt Incurrence resulting