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
from (i) Designated Financings, (ii) borrowings under the Revolving
Credit
Facility (to the extent not exceeding $5,000,000,000) or this
Agreement, (iii)
Permitted Existing Debt and Permitted Refinancings of Permitted
Existing Debt,
(iv) Permitted Commercial Paper, (v) Permissible Debt, (vi) Debt of
the Borrower
to any Subsidiary or of any Subsidiary to the Borrower or any other
Subsidiary
or (vii) Permitted Repurchase Debt.
"Permitted Existing Debt" shall mean the Debt of the Borrower
and
its Subsidiaries set forth on Schedule 1.01 and any Debt of Wyeth
or its
Subsidiaries existing on the Funding Date and not incurred in
contemplation of
the Acquisition.
"Permitted Liens" shall mean: (a) Liens imposed by Law for
Taxes
that are not yet due or are being contested in compliance with
Section 6.03; (b)
carriers', warehousemen's, mechanics', materialmen's, repairmen's
and other like
Liens imposed by Law, arising in the ordinary course of business
and securing
obligations that are not overdue by more than 30 days (or if more
than 30 days
overdue, are unfiled and no other action has been taken to enforce
such Liens)
or are being contested in compliance with Section 6.03; (c) pledges
and deposits
made in the ordinary course of business (i) in compliance with
workers'
compensation, unemployment insurance and other social security laws
or
regulations and (ii) securing liability for reimbursement or
indemnification
obligations of (including obligations in respect of letters of
credit or bank
guarantees for the benefit of) insurance carriers providing
property, casualty
or liability insurance to the Borrower or any Subsidiary; (d)
deposits to secure
the performance of bids, trade contracts, leases, statutory
obligations, surety
and appeal bonds, performance bonds and other obligations of a like
nature
(including those to secure health, safety and environmental
obligations), 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
(f) of Section
8; (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 Borrower or any Material Subsidiary; (g) Liens (i)
of a
collection bank on the items in the course of collection, (ii)
attaching to
trading accounts or brokerage accounts incurred in the ordinary
course of
business, (iii) in favor of a banking or other financial
institution arising as
a matter of Law encumbering deposits or other funds maintained with
a financial
institution (including the right of set off) and which are
customary in the
banking industry, (iv) attaching to other prepayments, deposits or
earnest money
in the ordinary course of business and (v) attaching to cash
collateral posted
pursuant to a Hedging Contract entered into in the ordinary course
of business;
(h) Liens on insurance policies and the proceeds thereof securing
the financing
of the premiums with respect thereto; and (i) Liens on specific
items of
inventory or other goods and the proceeds thereof securing such
Person's
obligations in respect of documentary letters of credit or banker's
acceptances
issued or created for the account of such Person to facilitate the
purchase,
shipment or storage of such inventory or goods.
"Permitted Refinancing" shall mean any extension, refinancing,
renewal, replacement or defeasement of any Debt within 6 months of
the scheduled
final maturity date of such Debt that (a) does not exceed the
principal amount
of such Debt (plus all accrued interest thereon and the amount of
all Taxes,
fees, costs, expenses and premiums incurred in connection
therewith), (b) is on
the whole on terms no less favorable in all material respects to
the Borrower or
any Subsidiary than such Debt or is on terms that are reasonable
based on
current market conditions for such Debt, and (c) has a weighted
average maturity
and final maturity (measured as of the date of such extension,
refinancing,
renewal replacement or defeasance) no shorter than that of such
Debt.
"Permitted Repurchase Debt" shall mean Debt incurred under
Repurchase Agreements (a) with a term of not more than 270 days for
securities,
money-market funds, loans or instruments that are classified as
long or short
term investments on the Consolidated balance sheet of the Borrower
and its
Subsidiaries entered into (i) on reasonable terms and not for
speculative
purposes and for aggregate amounts equal to not more than the value
of such
securities, money-market funds, loans or instruments as determined
by the
Borrower pursuant to its financial reporting policies, (ii) for
general
corporate purposes and (iii) with any commercial bank, other
financial
institution or investment grade corporation which has a combined
capital and
surplus and undivided profits the U.S. Dollar Equivalent of which
is not less
than $500,000,000; provided that the aggregate outstanding amount
of such Debt
shall not exceed $5,000,000,000 at any one time; provided further,
that after
the Funding Date, not more than $1,000,000,000 of such Debt shall
be incurred by
the Borrower and its Domestic Subsidiaries and (b) with a term
beginning no
sooner than 10 days prior to the Funding Date and expiring not more
than 30 days
after the Funding Date for securities, money-market funds, loans or
instruments
that are classified as long or short term investments on the
Consolidated
balance sheet of the Borrower and its Subsidiaries entered into (i)
on
reasonable terms and not for speculative purposes and for aggregate
amounts
equal to not more than the value of such securities, money-market
funds, loans
or instruments as determined by the Borrower pursuant to its
financial reporting
policies, (ii) to directly or indirectly finance the cash
consideration for the
Acquisition and (iii) with any commercial bank, other financial
institution or
investment grade corporation which has a combined capital and
surplus and
undivided profits the U.S. Dollar Equivalent of which is not less
than
$500,000,000; provided that the aggregate outstanding amount of
such Debt
pursuant to this clause (b) shall not exceed $14,500,000,000 at any
one time.
"Person" shall mean an individual, a corporation, a company, a
voluntary association, a partnership, a trust, a joint venture, a
limited
liability company, an unincorporated organization, or a government
or any
agency, instrumentality or political subdivision thereof.
"Plan" shall mean a Single Employer Plan, a Multiple Employer
Plan
or a Multiemployer Plan.
"Platform" shall have the meaning assigned to that term in
Section
10.02(b)(ii).
"Prime Rate" shall mean the rate of interest per annum publicly
announced from time to time by JPMorgan Chase Bank as its prime
rate in effect
at its office located at 270 Park Avenue, New York, New York; each
change in the
Prime Rate shall be effective from and including the date such
change is
publicly announced as being effective.
"Pro Forma Financials" shall have the meaning assigned to that
term
in Section 3.01(b).
"Property Loss Event" shall mean (a) any loss of or damage to
property or assets of the Borrower or any of its Subsidiaries that
results in
the receipt by such Person of proceeds of insurance (other than
business
interruption insurance) the U.S. Dollar Equivalent of which exceeds
$100,000,000
(individually or in the aggregate) or (b) any taking of property or
assets of
the Borrower or any of its Subsidiaries that results in the receipt
by such
Person of a compensation payment in respect thereof the U.S. Dollar
Equivalent
of which exceeds $100,000,000 (individually or in the
aggregate).
"Purchase Money Debt" shall mean Debt (including industrial
revenue
bonds) incurred to finance the acquisition of property or assets
and secured by
a Lien on such property or assets.
"Quarterly Date" shall mean the last day of each March, June,
September and December in each year, the first of which shall be
the first such
day after the date hereof; provided that, if any such day is not a
Business Day,
then such Quarterly Date shall be the next preceding Business
Day.
"Register" shall have the meaning assigned to that term in
Section
10.06(e).
"Regulation S-X" shall mean Regulation S-X of the Securities
Act.
"Regulations A, D, U and X" shall mean, respectively, Regulations
A,
D, U and X of the Board (or any successor), as the same may be
amended or
supplemented from time to time.
"Regulatory Change" shall mean any change after the date of
this
Agreement in United States Federal, state or foreign Law or
regulations
(including, without limitation, Regulation D) or the adoption or
making after
such date of any interpretations, directives or requests applying
to a class of
banks, including the Administrative Agent or any Lender, of or
under any United
States Federal, state or foreign Law or regulations (whether or not
having the
force of Law) by any court or governmental or monetary authority
charged with
the interpretation or administration thereof.
"Repurchase Agreement" shall mean an agreement by the Borrower
or
any Subsidiary to sell securities to another Person coupled with an
agreement to
purchase such securities from such Person at a specified price on a
later date.
"Required Lenders" shall mean, at any time, Lenders having at
least
a 50.1% interest of the Commitments or, if no Commitments are then
outstanding,
Lenders owed at least a 50.1% interest of the then aggregate unpaid
principal
amount of all outstanding Loans.
"Requisite Amount" shall have the meaning assigned to that term
in
Section 8(e).
"Reserve Requirement" shall mean, for any Interest Period for
all
Eurodollar Loans, the average maximum rate at which reserves
(including any
marginal, supplemental or emergency reserves) are required to be
maintained
during such Interest Period under Regulation D by member banks of
the Federal
Reserve System in New York City with deposits exceeding one billion
U.S. Dollars
against "Eurocurrency Liabilities" (as such term is used in
Regulation D).
Without limiting the effect of the foregoing, the Reserve
Requirement shall
reflect any other reserves required to be maintained by such member
banks by
reason of any Regulatory Change against (a) any category of
liabilities that
includes deposits by reference to which the LIBO Rate is to be
determined or (b)
any category of extensions of credit or other assets that includes
Eurodollar
Loans.
"Restricted Investment" shall have the meaning assigned to that
term
in Section 7.05(b).
"Restricted Payment" shall mean any dividend or other
distribution
(whether in cash, securities or other property) with respect to any
Equity
Interests in any Person, 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 Equity Interests in such Person or any option, warrant or
other right
to acquire any such Equity Interests in such Person.
"Revolving Credit Facility" shall mean the 364 Day Credit
Agreement,
dated as of March 9, 2009, among the Borrower, Citibank, N.A., as
administrative
agent, and the lenders party thereto as amended, supplemented,
modified or
refinanced from time to time.
"S&P" shall mean Standard & Poor's Ratings Group, a
division of The
McGraw Hill Corporation and any successor thereto.
"Sale and Lease-Back Transaction" shall mean any arrangement
providing for the leasing by the Borrower or any of its
Subsidiaries of any real
or tangible personal property, which property has been or is to be
sold or
transferred by the Borrower or such Subsidiary to a third Person
in
contemplation of such leasing.
"Sarbanes-Oxley Act" shall mean the Sarbanes-Oxley Act of 2002.
"SEC" shall mean the United States Securities and Exchange
Commission.
"Secured Debt" shall mean any Debt under any Repurchase
Agreement
and any Debt the obligations with respect to which are secured by a
Lien.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Securitization Facility" shall mean, with respect to any Person,
a
facility or other arrangement or program providing for the sale,
transfer or
conveyance to a Securitization SPV of property or assets in
exchange for the
advance of funds to such Person and/or one or more of its
Subsidiaries.
"Securitization SPV" shall mean, with respect to any Person, a
trust, bankruptcy remote entity or other special purpose entity
which is a
Subsidiary of such Person (or, if not a Subsidiary, the common
equity of which
is wholly owned, directly or indirectly, by such Person) and which
is formed for
the purpose of, and engages in no material business other than,
acting as an
issuer or a depositor under a Securitization Facility or as an
intermediate
transferee and transferor under a Securitization Facility (and, in
connection
therewith, in either case, owning property or assets and pledging
or
transferring any interests therein).
"Series A Preferred Stock" shall have the meaning assigned to
that
term in Section 7.03.
"Single 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 no 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 4069 of
ERISA in the
event such plan has been or were to be terminated.
"Solvent" shall mean, with respect to any Person as of any date
of
determination, that, as of such date, (a) the value of the assets
of such Person
(both at fair value and present fair saleable value) is greater
than the total
amount of liabilities (including contingent and unliquidated
liabilities) of
such Person, (b) such Person is able to pay all liabilities of such
Person as
such liabilities mature and (c) such Person does not have
unreasonably small
capital. In computing the amount of contingent or unliquidated
liabilities at
any time, such liabilities shall be computed at the amount that, in
light of all
the facts and circumstances existing at such time, represents the
amount that
can reasonably be expected to become an actual or matured
liability.
"Specified Asset Sale" shall mean any Disposition or series of
related Dispositions by the Borrower or any of its Subsidiaries
after the
Effective Date not in the ordinary course of business; provided
that "Specified
Asset Sale" shall not include (i) a Disposition or series of
related permanent
Dispositions the U.S. Dollar Equivalent of the Net Cash Proceeds of
which do not
exceed $100,000,000 in the aggregate for such Disposition or series
of related
Dispositions, (ii) Dispositions in connection with Sale and
Lease-Back
Transactions that are Designated Financings; (iii) Dispositions by
Foreign
Subsidiaries to the extent the U.S. Dollar Equivalent of the Net
Cash Proceeds
of all such Dispositions does not exceed $500,000,000 in the
aggregate, (iv)
Dispositions by the Borrower to a Subsidiary or a Subsidiary to the
Borrower or
another Subsidiary, (v) Dispositions (other than those described in
clause (iv)
above or clause (vi) below) in connection with Securitization
Facilities to the
extent that the U.S. Dollar Equivalent of the Net Cash Proceeds of
which in the
aggregate do not exceed (A) $100,000,000 less (B) the aggregate
amount of Debt
constituting Designated Financings under clause (b) of the
definition thereof,
(vi) Dispositions (other than those described in clause (iv) or
clause (v)
above) in connection with Foreign Securitization Facilities to the
extent that
the U.S. Dollar Equivalent of the Net Cash Proceeds of which in the
aggregate do
not exceed (A) $750,000,000 less (B) the aggregate amount of Debt
constituting
Designated Financings under clause (c) of the definition thereof,
(vii)
Dispositions of securities, money-market funds, loans and
instruments that are
classified as long or short term investments on the Consolidated
balance sheet
of the Borrower and its Subsidiaries for the purpose of funding all
or a portion
of the cash consideration for the Acquisition and (viii)
Dispositions under
transactions for the incurrence of Permitted Repurchase Debt.
"Specified Debt" shall mean, with respect to the Borrower long
term
debt and debt maturing within one year on such day (in each case,
of the type
reflected in the Consolidated balance sheet of the Borrower on any
date of
determination).
"Specified Taxes" shall have the meaning assigned thereto in
the
clause (a)(ii) of the definition of Net Cash Proceeds.
"Statutory Reserve Rate" shall
mean 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 aggregate of the maximum reserve
percentage
(including any marginal, special, emergency or supplemental
reserves) expressed
as a decimal established by the Board to which the Administrative
Agent is
subject with respect to the Adjusted LIBO Rate, for eurocurrency
funding
(currently referred to as "Eurocurrency Liabilities" in Regulation
D). Such
reserve percentage shall include those imposed pursuant to such
Regulation D.
Eurodollar 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 regulation. The Statutory
Reserve Rate
shall be adjusted automatically on and as of the effective date of
any change in
any reserve percentage.
"Subsidiary" shall mean, with respect to any Person, any
corporation, partnership, limited liability company or other
business entity of
which at least a majority of the outstanding shares of Voting Stock
is at the
time directly or indirectly owned or controlled by such Person or
one or more of
the Subsidiaries of such Person. Unless the context shall otherwise
require,
"Subsidiary" refers to a Subsidiary of the Borrower.
"Taxes" shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges , liabilities or withholdings
(including
interest, fines, penalties or additions to tax) imposed by any
Governmental
Authority.
"Transaction Documents" shall mean this Agreement, the other
Loan
Documents and the Merger Agreement.
"Type", when used in reference to any Loan or Borrowing, refers
to
whether the rate of interest on such Loan, or on the Loans
comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or
the Base
Rate.
"United States" and "United States Person" shall have the
meaning
assigned to that term in Section 7701 of the Code.
"Unused Commitment Fee Rate" shall mean, as of any date of
determination, a per annum rate equal to the rate set forth below
opposite the
applicable Borrower's Credit Rating in effect at such time:
--------------------------------------------------------------------------------
Level I Level II Level
III Level IV Level V
--------------------------------------------------------------------------------
Borrower's Credit AA+/Aa1 or
AA/Aa2
AA-/Aa3
A+/A1 A/A2 or
Ratings
higher
lower
--------------------------------------------------------------------------------
Unused
0.25%
0.30%
0.375%
0.50% 0.50%
Commitment Fee
--------------------------------------------------------------------------------
For purposes of determining the Unused Commitment Fee Rate, the
applicable
Borrower's Credit Ratings from one of S&P and Moody's will be
required to
qualify for the applicable level set forth above; provided that if
the higher
applicable Borrower's Credit Rating is more than one Level higher
than the other
Borrower's Credit Rating, the Unused Commitment Fee Rate shall be
the Level
below the Level corresponding to such higher Borrower's Credit
Rating.
"U.S. Dollar Equivalent" shall mean, (a) with respect to any
amount
denominated in U.S. Dollars on any date, such amount, (b) with
respect to any
amount denominated in any other currency on any date, the amount of
U.S. Dollars
that would be required to purchase such amount of such currency at
or about
11:00 A.M., New York City time, on such date, for delivery two
Business Days
later, as determined by the Administrative Agent on the basis of
the spot
selling rate for the offering of such currency for U.S. Dollars in
the New York
foreign exchange market, determinations thereof made in good faith
by the
Administrative Agent to be conclusive and binding on the parties in
the absence
of manifest error.
"U.S. Dollars" and "$" shall mean lawful money of the United
States
of America.
"Voting Stock" shall mean Equity Interests of any Person having
ordinary power to vote in the election of members of the board of
directors,
managers, trustees or other controlling Persons, of such Person
(irrespective of
whether, at the time, Equity Interests of any other class or
classes of such
entity shall have or might have voting power by reason of the
happening of a
contingency).
"Wyeth" shall mean Wyeth, a Delaware corporation.
"Wyeth Disclosure Letter" shall mean the Company Disclosure
Letter
(as defined in the Merger Agreement) dated January 25, 2009 and
delivered by
Wyeth to the Borrower pursuant to the Merger Agreement.
"Wyeth 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 Wyeth and
its Subsidiaries, taken as a whole; provided, however, that a Wyeth
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 Wyeth 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 Wyeth
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 Wyeth
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 Wyeth 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, including as a
result of the
identity of the Borrower; (F) any failure by Wyeth 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 Wyeth Material Adverse Effect may be taken into
account in
determining whether there has been, a Wyeth Material Adverse
Effect); (G) any
change in the price or trading volume of the common stock of Wyeth
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 Wyeth Material Adverse Effect may be taken into
account in
determining whether there has been, a Wyeth Material Adverse
Effect); and (H)
compliance with the terms of, or the taking of any action required
by, the
Merger Agreement.
"Wyeth SEC Documents" shall mean all registration statements,
prospectuses, forms, reports, definitive proxy statements,
schedules, statements
and documents required to be filed by Wyeth 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
Wyeth 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.
1.02 Accounting Terms and Determinations. Unless otherwise
specified
herein, all accounting terms used herein shall be interpreted,
all
determinations with respect to accounting matters hereunder shall
be made, and
all financial statements and certificates and reports as to
financial matters
required to be furnished to the Administrative Agent or any Lender
hereunder
shall be prepared, in accordance with GAAP as in effect from time
to time,
applied on a basis consistent with the audited Consolidated
financial statements
of the Borrower for the Borrower's fiscal year ended December 31,
2008 (except
for changes concurred with by the Borrower's independent public
accountants
("Accounting Change")); provided, however, that (a) to the extent
any Accounting
Change would affect the calculation of the Leverage Ratio pursuant
of Section 5
of this Agreement, then the Leverage Ratio shall be calculated
without giving
effect to the Accounting Change and (b) following any Accounting
Change, the
Borrower shall provide the Administrative Agent a reconciliation
with respect to
the calculation of the Leverage Ratio before and after giving
effect to such
Accounting Change at the time the Borrower is required by Section
6.01(c)(ii) to
deliver the calculations demonstrating compliance with Section 5.
Following any
Accounting Change, upon request by the Borrower or Administrative
Agent, the
Borrower, Administrative Agent and Required Lenders agree to
negotiate in good
faith to amend Section 5 and related definitions to preserve the
original intent
thereof in light of the Accounting Change.
1.03 Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later
specified date,
the word "from" means "from and including" and the words "to" and
"until" each
mean "to but excluding"
1.04 Terms Generally. The definitions set forth or referred to
in
Section 1.01 shall apply equally to both 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." All references herein to Articles, Sections, Exhibits
and Schedules
shall be deemed references to Articles and Sections of, and
Exhibits and
Schedules to, this Agreement unless the context shall otherwise
require.
Section 2. Amounts and Terms of the Loans.
2.01 Commitments. Each Lender severally agrees, on the terms
and
conditions hereinafter set forth, to make a loan (each a "Loan") in
U.S. Dollars
to the Borrower on the Funding Date, which shall occur during the
period from
the Effective Date until the Commitment Termination Date, in an
aggregate amount
not to exceed at any time outstanding (a) the amount set forth
opposite such
Lender's name on Schedule 2.01 hereto or (b) if such Lender has
entered into any
Assignment and Acceptance, the amount set forth for such Lender in
the Register
maintained by the Administrative Agent pursuant to Section
10.06(e), in each
case as such amount may be reduced pursuant to Section 2.04(a) or
(b) or Section
2.11 (such Lender's "Commitment"). Amounts of Loans prepaid may not
be
reborrowed. Any unused Commitment shall terminate on the earlier of
(i) the
funding of the Loans on the Funding Date and (ii) close of banking
business on
the Commitment Termination Date.
2.02 Making the Loans. (a) The Borrowing shall be made on
notice,
given not later than (i) in the case of a Base Rate Loan, 11:00
A.M. (New York
City time) one Business Day before the date of the proposed
Borrowing (which
shall be a Business Day) and (ii) in the case of a Eurodollar Loan,
11:00 A.M.
(New York City time) three Business Days before the date of the
proposed
Borrowing, in each case by the Borrower to the Administrative
Agent, which shall
give to each Lender prompt notice thereof on the same Business Day
by facsimile
transmission or electronic messaging system. Such notice of the
Borrowing (the
"Notice of Borrowing") shall be in writing in substantially the
form of Exhibit
B hereto, specifying therein (A) the requested date of the proposed
Borrowing
(which shall be a Business Day), (B) the Type of Loans comprising
the Borrowing,
(C) the aggregate amount of the Borrowing, (D) in the case of a
Borrowing
consisting of Eurodollar Loans, the initial Interest Period for
each such Loan,
and (E) the location and number of the Borrower's account to which
funds are to
be disbursed. Each Lender shall, before 12:00 Noon (New York City
time) on the
date of the Borrowing, make available to the Administrative Agent
at the
Administrative Agent's Account, in same day funds, such Lender's
ratable portion
of the Borrowing. After the Administrative Agent's receipt of such
funds and
upon fulfillment of the applicable conditions set forth in Section
3, the
Administrative Agent will make such funds available to the Borrower
by promptly
crediting the amounts so received, in like funds, to an account of
the Borrower
or maintained with the Administrative Agent in New York City and
designated by
the Borrower in the Notice of Borrowing.
(b) Anything herein to the contrary notwithstanding, the
Borrower
may not select Eurodollar Loans for the Borrowing if the obligation
of the
Lenders to make Eurodollar Loans shall then be suspended pursuant
to Section
2.08 or 2.15.
(c) Once received by the Administrative Agent the Notice of
Borrowing shall be irrevocable and binding on the Borrower.
(d) Unless the Administrative Agent shall have received notice
from
a Lender prior to the date of such Borrowing that such Lender will
not make
available to the Administrative Agent such Lender's ratable portion
of the
Borrowing, the Administrative Agent may assume that such Lender has
made such
portion available to the Administrative Agent on the date of such
Borrowing in
accordance with Section 2.02(a) and the Administrative Agent may,
in reliance
upon such assumption, make available to the Borrower on such date
a
corresponding amount. If and to the extent that such Lender shall
not have so
made such ratable portion available to the Administrative Agent,
such Lender and
the Borrower severally agree (but without duplication) to repay to
the
Administrative Agent forthwith on demand such corresponding amount
together with
interest thereon, for each day from the date such amount is made
available to
the Borrower until the date such amount is repaid to the
Administrative Agent,
at the Federal Funds Effective Rate. If such Lender shall repay to
the
Administrative Agent such corresponding amount, such amount so
repaid shall
constitute such Lender's Loan as part of such Borrowing for
purposes of this
Agreement. If the Borrower shall repay to the Administrative Agent
such
corresponding amount, such prepayment shall not limit any claim the
relevant
Borrower may have against the Lender that failed to make such
amount available.
(e) The failure of any Lender to make the Loan to be made by it
as
part of the Borrowing shall not relieve any other Lender of its
obligation, if
any, hereunder to make its Loan on the Funding Date, but no Lender
shall be
responsible for the failure of any other Lender to make the Loan to
be made by
such other Lender on the Funding Date. The Administrative Agent
shall have no
obligation to make a Lender's ratable portion of the Borrowing
available to the
Borrower if, prior to the Borrowing, such Lender had not made such
portion of
the Borrowing available to the Administrative Agent.
2.03 Use of Proceeds. The proceeds of the Loans shall be used by
the
Borrower solely to finance (a) the Acquisition, and (b) the payment
of fees and
expenses in connection with the Acquisition.
2.04 Changes of Commitments. (a) Termination on the Commitment
Termination Date. Unless theretofore reduced to such amount
pursuant to Section
2.04(b) or 2.11, the Commitments of the Lenders shall automatically
be reduced
to zero on the earlier of (i) the funding of the Loans on the
Funding Date and
(ii) the close of banking business on the Commitment Termination
Date.
(b) Ratable Termination or Reduction. The Borrower shall have
the
right, at any time or from time to time, upon at least three
Business Days'
notice to the Administrative Agent, to terminate in whole or reduce
ratably in
part the unused portions of the respective Commitments of the
Lenders, provided
that each partial reduction shall be in the minimum amount of
$25,000,000 or an
integral multiple of $1,000,000 in excess thereof. The aggregate
amount of the
Commitments, once reduced as provided in this Section 2.04(b) or in
Section
2.11, may not be reinstated.
2.05 Fees. (a) Unused Commitment Fee. The Borrower agrees to pay
to
the Administrative Agent for the account of each Lender an unused
commitment fee
on the daily average amount of such Lender's Commitment, for each
day during the
period from the Effective Date until the earlier of the Funding
Date and the
Commitment Termination Date at a rate per annum equal to the Unused
Commitment
Fee Rate. The accrued unused commitment fee shall be payable in
arrears on each
Quarterly Date and, without duplication, on the earlier of the
Funding Date and
the Commitment Termination Date.
(b) Duration Fee. The Borrower agrees to pay to the
Administrative
Agent, for the account of each Lender, a duration fee on each
Duration Fee
Payment Date in an amount equal to the Applicable Duration Fee Rate
times the
aggregate outstanding principal amount of Loans on such Duration
Fee Payment
Date.
(c) Administrative Agent's Fee. The Borrower shall pay to the
Administrative Agent for its own account such fees as may from time
to time be
agreed in writing by and between the Borrower and the
Administrative Agent.
2.06 Repayment of Loans. The Borrower hereby promises to pay to
the
Administrative Agent, for account of each Lender, the aggregate
outstanding
principal amount of the Loans, and the Loans shall mature, on the
Original
Maturity Date; provided, however, that if the First Extension
Conditions have
been satisfied, only the aggregate outstanding principal amount of
the Loans in
excess of the First Extension Amount shall mature on the Original
Maturity Date
and the Borrower hereby promises to pay to the Administrative
Agent, for account
of each Lender, the remaining aggregate outstanding principal
amount of the
Loans, and the Loans shall mature, on the First Extended Maturity
Date; provided
further, that if the Final Extension Conditions have been
satisfied, only the
aggregate outstanding principal amount of the Loans in excess of
the Final
Extension Amount shall mature on the First Extended Maturity Date
and the
Borrower hereby promises to pay to the Administrative Agent, for
account of each
Lender, the remaining aggregate outstanding principal amount of the
Loans, and
the Loans shall mature, on the Final Extended Maturity Date.
2.07 Interest on Loans. (a) Scheduled Interest. The Borrower
shall
pay interest on the unpaid principal amount of each Loan owing to
each Lender by
the Borrower from the date of such Loan until such principal amount
shall be
paid in full, at the following rates:
(i) Base Rate Loans. During such periods as such Loan is a
Base Rate Loan, a rate per annum
equal at all times to the sum of (x) the
Base Rate in effect from time to
time plus (y) the Applicable Margin,
payable in arrears on each Quarterly
Date during such periods and, without
duplication, on the date such Base
Rate Loan shall be Converted or paid in
full.
(ii) Eurodollar Loans. During such periods as such Loan is a
Eurodollar Loan, a rate per annum
equal at all times during each Interest
Period for such Loan to the sum of
(x) the Adjusted LIBO Rate for such
Interest Period for such Loan plus
(y) the Applicable Margin, payable in
arrears on the last day of such
Interest Period and, if such Interest
Period has a duration of more than
three months, on each day that occurs
during such Interest Period every
three months from the first day of such
Interest Period and, without
duplication, on the date such Eurodollar Loan
shall be Converted or paid in
full.
(b) Default Interest. Upon the occurrence and during the
continuance
of an Event of Default, the Borrower shall pay interest on the
aggregate unpaid
principal amount of the Loans and the amount of all other
Obligations then due
and payable, from the date such amount shall be due until such
amount shall be
paid in full, payable in arrears on the date such aggregate amount
shall be paid
in full and on demand, at a rate per annum equal at all times to
2.00% per annum
above the rate per annum required to be paid on Base Rate Loans
pursuant to
clause (a)(i) above.
2.08 Interest Rate Determination. (a) Each determination by the
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