Exhibit 10(f)
U.S. $600,000,000
================================================================================
CREDIT AGREEMENT,
dated as of April 23, 1999,
among
BERGEN XXXXXXXX DRUG COMPANY,
and
BERGEN XXXXXXXX CORPORATION,
as the Borrowers,
CERTAIN FINANCIAL INSTITUTIONS,
as the Lenders,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as the Administrative Agent,
CHASE SECURITIES INC.,
as the Syndication Agent,
and
WACHOVIA BANK, N.A.,
as the Documentation Agent
================================================================================
CO-LEAD ARRANGERS AND CO-BOOK MANAGERS:
NATIONSBANC XXXXXXXXXX SECURITIES LLC
and
CHASE SECURITIES INC.
TABLE OF CONTENTS
Page||
ARTICLE IDEFINITIONS AND INTERPRETATION.............................. 1
SECTION 1.1. Defined Terms............................. 1
SECTION 1.2. Use of Defined Terms...................... 2
SECTION 1.3. Interpretation............................ 2
SECTION 1.4. Accounting and Financial Determinations... 3
SECTION 1.5. Conflict in Credit Documents.............. 3
SECTION 1.6. Legal Representation of Parties........... 4
ARTICLE IICOMMITMENTS, BORROWING PROCEDURES AND NOTES................ 4
SECTION 2.1. Commitments............................... 4
SECTION 2.1.1. Commitment of Each Lender................. 4
SECTION 2.1.2. Lenders Not Permitted or Required
To Make Contract Loans................ 4
SECTION 2.1.3. Parent Appointed Attorney-in-Fact......... 4
SECTION 2.2. Reduction of Commitments.................. 5
SECTION 2.2.1. Optional.................................. 5
SECTION 2.2.2. Mandatory................................. 5
SECTION 2.3. Contract Borrowing Procedure.............. 5
SECTION 2.4. Contract Continuation and
Conversion Elections; Contract
Loans Comprising Funding.............. 6
SECTION 2.5. Swing Line................................ 7
SECTION 2.6. Notes..................................... 9
SECTION 2.6.1. Contract Note............................. 9
SECTION 2.6.2. Bid Note.................................. 9
SECTION 2.6.3. Swing Note................................ 9
SECTION 2.6.4. Notations................................. 10
SECTION 2.7. Bid Procedure............................. 10
SECTION 2.7.1. Bid Requests.............................. 10
SECTION 2.7.2. Bid Offers................................ 11
SECTION 2.7.3. Acceptance by Borrowers of Bid Offers..... 12
SECTION 2.7.4. Acknowledgment of Bid Borrowings.......... 13
SECTION 2.7.5. Bid Loan Funding.......................... 14
SECTION 2.8. Extension of Commitment Termination Date.. 14
SECTION 2.9. Joint and Several Liability............... 14
SECTION 2.10. Borrower Waivers.......................... 15
ARTICLE IIIREPAYMENTS, PREPAYMENTS, INTEREST AND FEES................ 16
SECTION 3.1. Repayments and Prepayments................ 16
SECTION 3.1.1. Contract Loans............................ 16
SECTION 3.1.2. Bid Loans................................. 17
SECTION 3.2. Interest Provisions....................... 17
SECTION 3.2.1. Contract Rates............................ 17
Exhibit 10(f) - i -
SECTION 3.2.2. Post-Default Contract Rates............... 18
SECTION 3.2.3. Payment Dates............................. 18
SECTION 3.2.4. Bid Rates................................. 18
SECTION 3.3. Fees...................................... 19
SECTION 3.3.1. Facility Fee.............................. 19
SECTION 3.3.2. Other Fees................................ 19
SECTION 3.3.3. Utilization Fee........................... 19
ARTICLE IVCERTAIN EURODOLLAR RATE AND OTHER PROVISIONS............... 19
SECTION 4.1. Eurodollar Rate Lending Unlawful.......... 19
SECTION 4.2. Deposits Unavailable...................... 20
SECTION 4.3. Increased Eurodollar Rate Loan
Costs, etc............................ 20
SECTION 4.4. Funding Losses............................ 20
SECTION 4.5. Increased Capital Costs................... 21
SECTION 4.6. Taxes..................................... 22
SECTION 4.7. Payments, Computations, etc............... 23
SECTION 4.8. Sharing of Payments....................... 24
SECTION 4.9. Setoff.................................... 25
SECTION 4.10. Mitigation of Certain Costs;
Lender Replacement; etc............... 25
SECTION 4.11. Use of Proceeds........................... 26
ARTICLE VCONDITIONS TO EFFECTIVENESS AND BORROWING .................. 26
SECTION 5.1. Effectiveness and Initial Borrowing....... 26
SECTION 5.1.1. Agreement Counterparts, etc............... 26
SECTION 5.1.2. Resolutions, etc.......................... 26
SECTION 5.1.3. Delivery of Notes......................... 27
SECTION 5.1.4. Effectiveness of Fourth Amendment
to Amended and Restated Credit
Agreement............................. 27
SECTION 5.1.5. Material Adverse Change................... 27
SECTION 5.1.6. Opinion of Counsel........................ 27
SECTION 5.1.7. Closing Fees, Expenses, etc............... 27
SECTION 5.2. All Borrowings............................ 27
SECTION 5.2.1. Compliance with Warranties, No Default,
etc................................... 27
SECTION 5.3. Borrowing Request......................... 28
SECTION 5.4. Satisfactory Legal Form................... 28
ARTICLE VIREPRESENTATIONS AND WARRANTIES............................. 28
SECTION 6.1. Organization, etc......................... 28
SECTION 6.2. Due Authorization, Non-Contravention,
etc................................... 29
SECTION 6.3. Government Approval, Regulation, etc...... 29
SECTION 6.4. Validity, etc............................. 29
SECTION 6.5. Financial Information..................... 29
Exhibit 10(f) - ii -
SECTION 6.6. No Material Adverse Change................ 30
SECTION 6.7. Litigation, Labor Controversies, etc...... 30
SECTION 6.8. Subsidiaries.............................. 30
SECTION 6.9. Compliance with Law....................... 30
SECTION 6.10. Ownership of Properties................... 31
SECTION 6.11. Taxes..................................... 31
SECTION 6.12. Pension and Welfare Plans................. 31
SECTION 6.13. Environmental Warranties.................. 31
SECTION 6.14. Regulations U and X....................... 33
SECTION 6.15. Accuracy of Information................... 33
SECTION 6.16. Year 2000 Compliance...................... 34
ARTICLE VIICOVENANTS................................................. 34
SECTION 7.1. Affirmative Covenants..................... 34
SECTION 7.1.1. Financial Information, Reports,
Notices, etc.......................... 34
SECTION 7.1.2. Compliance with Laws, etc................. 36
SECTION 7.1.3. Maintenance of Properties................. 37
SECTION 7.1.4. Insurance................................. 37
SECTION 7.1.5. Books and Records......................... 37
SECTION 7.1.6. Environmental Covenant.................... 38
SECTION 7.1.7. Year 2000 Compliance...................... 38
SECTION 7.1.8. PharMerica Acquisition.................... 38
SECTION 7.1.9. Borrowings to Repay PharMerica
Credit Agreement...................... 39
SECTION 7.1.10. Subsidiary Guaranty....................... 39
SECTION 7.2. Negative Covenants........................ 40
SECTION 7.2.1. Indebtedness.............................. 40
SECTION 7.2.2. Liens..................................... 42
SECTION 7.2.3. Financial Condition....................... 42
SECTION 7.2.4. Consolidation, Merger, etc................ 43
SECTION 7.2.5. Transactions with Affiliates.............. 43
SECTION 7.2.6. Business Activities....................... 44
SECTION 7.2.7. Margin Stock.............................. 44
ARTICLE VIIIEVENTS OF DEFAULT........................................ 44
SECTION 8.1. Events of Default......................... 44
SECTION 8.1.1. Non-Payment of Obligations................ 44
SECTION 8.1.2. Breach of Warranty........................ 44
SECTION 8.1.3. Non-Performance of Certain Covenants and
Obligations........................... 45
SECTION 8.1.4. Non-Performance of Other Covenants and
Obligations........................... 45
SECTION 8.1.5. Default on Other Indebtedness............. 45
SECTION 8.1.6. Judgments................................. 45
SECTION 8.1.7. Pension Plans............................. 45
SECTION 8.1.8. Bankruptcy, Insolvency, etc............... 46
Exhibit 10(f) - iii -
SECTION 8.1.9. Change of Control......................... 47
SECTION 8.1.10. Credit Document Ceases to Bind............ 47
SECTION 8.2. Action if Bankruptcy...................... 47
SECTION 8.3. Action if Other Event of Default.......... 47
SECTION 8.4. Enforcement............................... 47
ARTICLE IXTHE Administrative Agent................................... 48
SECTION 9.1. Actions 48
SECTION 9.2. Funding Reliance, etc..................... 49
SECTION 9.3. Exculpation............................... 49
SECTION 9.4. Successor................................. 50
SECTION 9.5. Loans by Administrative Agent............. 51
SECTION 9.6. Credit Decisions.......................... 51
SECTION 9.7. Copies, etc............................... 51
SECTION 9.8. Syndication Agent; Documentation Agent.... 51
ARTICLE XMISCELLANEOUS PROVISIONS.................................... 52
SECTION 10.1. Waivers, Amendments, etc.................. 52
SECTION 10.2. Notices................................... 53
SECTION 10.3. Payment of Costs and Expenses............. 53
SECTION 10.4. Indemnification........................... 54
SECTION 10.5. Survival.................................. 55
SECTION 10.6. Severability.............................. 55
SECTION 10.7. Headings.................................. 55
SECTION 10.8. Execution in Counterparts................. 56
SECTION 10.9. Governing Law; Entire Agreement........... 56
SECTION 10.10. Successors and Assigns.................... 56
SECTION 10.11. Sale and Transfer of Contract Loans and
Commitment; Participations in
Contract Loans........................ 56
SECTION 10.11.1. Assignments............................... 56
SECTION 10.11.2. Participations............................ 59
SECTION 10.11.3. Federal Reserve Bank Assignments.......... 59
SECTION 10.12. Confidentiality........................... 60
SECTION 10.13. Other Transactions........................ 61
SECTION 10.14. Forum Selection and Consent to
Jurisdiction.......................... 61
SECTION 10.15. Waiver of Jury Trial...................... 62
SECTION 10.16. Governmental Regulation................... 62
Exhibit 10(f) - iv -
||
SCHEDULES
SCHEDULE I - Defined Terms
SCHEDULE II - Disclosure Schedule
SCHEDULE III - Lenders, Commitments and Percentages
EXHIBITS
EXHIBIT A-1 - Contract Note
EXHIBIT A-2 - Bid Note
EXHIBIT A-3 - Swing Note
EXHIBIT B-1 - Bid Borrowing Request
EXHIBIT B-2 - Bid Offer
EXHIBIT B-3 - Bid Acknowledgment
EXHIBIT C-1 - Contract Borrowing Request
EXHIBIT C-2 - Contract Continuation/Conversion Notice
EXHIBIT D - Guaranty
EXHIBIT E - Matters for Opinion of Counsel to Parent and Bergen Drug
EXHIBIT F - Assignment Agreement
EXHIBIT G - Form of Joinder Agreement
Exhibit 10(f) - v -
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of April 23, 1999 (the "Effective
Date"), among BERGEN XXXXXXXX DRUG COMPANY, a California corporation ("Bergen
Drug"), BERGEN XXXXXXXX CORPORATION, a New Jersey corporation (the "Parent"; and
collectively with Bergen Drug, the "Borrowers"), the various financial
institutions as are or may become parties hereto and which are listed on
Schedule III hereof or which may hereafter become a party hereto (collectively,
the "Lenders"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, a
national banking association ("Bank of America"), as administrative agent (in
such capacity, the "Administrative Agent") for the Lenders , Chase Securities
Inc., as the Syndication Agent (in such capacity, the "Syndication Agent") and
Wachovia Bank, N.A., as the documentation agent (in such capacity, the
"Documentation Agent"),
W I T N E S S E T H:
WHEREAS, the Parent is engaged directly and through its various
Subsidiaries in the distribution business; and
WHEREAS, the Borrowers desire to obtain Commitments from the Lenders
pursuant to which Contract Loans, in a maximum aggregate principal amount not to
exceed $600,000,000, would be made to the Borrowers prior to the Commitment
Termination Date; and
WHEREAS, in addition to such Commitments, the Borrowers may from time
to time request that one or more of the Lenders make Bid Loans to the Borrowers
and desire to establish a procedure therefor; and
WHEREAS, the Lenders are willing, on the terms and subject to the
conditions hereinafter set forth (including Article V), to extend such
Commitments and make such Loans to the Borrowers; and
WHEREAS, the proceeds of such Loans will be used for General Corporate
Purposes of the Borrowers;
NOW, THEREFORE, the parties hereto, intending legally to be bound
hereby, agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION I.1. Defined Terms. Certain capitalized terms (whether or not
underscored) when used in this Agreement and the other Credit Documents,
including its preamble and recitals, shall have the respective meanings assigned
thereto in Schedule I.
Exhibit 10(f) Page 1
SECTION I.2. Use of Defined Terms. Unless otherwise defined or the
context otherwise requires, terms for which meanings are provided in this
Agreement shall have such meanings when used in the Disclosure Schedule and in
each Note, Borrowing Request, Contract Continuation/Conversion Notice, Credit
Document, notice and other communication delivered from time to time in
connection with this Agreement or any other Credit Document.
SECTION I.3. Interpretation. In this Agreement and each other Credit
Document, unless a clear contrary intention appears:
(a) the singular number includes the plural number and vice
versa;
(b) reference to any Person includes such Person's
predecessors, successors and assigns but, if applicable, only if such
predecessors, successors and assigns are permitted by this Agreement,
and reference to a Person in a particular capacity excludes such Person
in any other capacity or individually;
(c) reference to any gender includes each other gender;
(d) reference to any agreement (including this Agreement and
the Schedules and Exhibits hereto), document or instrument means such
agreement, document or instrument as amended or modified and in effect
from time to time in accordance with the terms thereof and, if
applicable, the terms hereof and reference to any promissory note
includes any promissory note which is an extension or renewal thereof
or a substitute or replacement therefor;
(e) reference to any Applicable Law means such Applicable Law
as amended, modified, codified, replaced or reenacted, in whole or in
part, and in effect from time to time, including rules and regulations
promulgated thereunder and reference to any section or other provision
of any Applicable Law means that provision of such Applicable Law from
time to time in effect and constituting the substantive amendment,
modification, codification, replacement or reenactment of such section
or other provision;
(f) reference to any Article, Section, Schedule or Exhibit
means such Article or Section hereof or Schedule or Exhibit hereto;
(g) "hereunder", "hereof", "hereto" and words of similar
import shall be deemed references to this Agreement as a whole and not
to any particular Article, Section or other provision hereof;
(h) "including" (and with correlative meaning "include") means
including without limiting the generality of any description preceding
such term;
(i) "or" is not exclusive; and
Exhibit 10(f) Page 2
(j) relative to the determination of any period of time,
"from" means "from and including", "to" means "to but excluding", and
"through means "to and including".
SECTION I.4. Accounting and Financial Determinations. Unless otherwise
specified, all accounting terms used in this Agreement or in any other Credit
Document shall be interpreted, all accounting determinations and computations
hereunder or thereunder (including under Section 7.2.3) shall be made, and all
financial statements required to be delivered hereunder or thereunder shall be
prepared in accordance with GAAP as applied in the preparation of the financial
statements referred to in Section 7.1.1; provided, that for purposes of
determining compliance with Section 7.2, accounting terms shall be interpreted,
and accounting determinations and computations shall be made, in accordance with
GAAP as in effect from time to time; and provided, further, that if either (x)
the Parent or any of its Subsidiaries shall change its method of accounting from
a basis consistent with any prior financial statement thereof or (y) there is
any change in GAAP after the date hereof, which in either such case the
Administrative Agent determines affects the effectiveness of compliance with
Section 7.2, then the Borrowers, the Administrative Agent and the Lenders shall
negotiate in good faith for a period of 30 days to reach agreement regarding
changes to Section 7.2 which retain the effectiveness of compliance therewith,
but if no such agreement is reached within such 30-day period accounting terms
shall be interpreted, and accounting determinations and computations shall be
made, under GAAP as in effect on the date hereof for purposes of determining
compliance with Section 7.2.
SECTION I.5. Conflict in Credit Documents. If there is any conflict
between this Agreement and any other Credit Document, this Agreement and such
other Credit Document shall be interpreted and construed, if possible, so as to
avoid or minimize such conflict but, to the extent (and only to the extent) of
such conflict, this Agreement shall prevail and control.
SECTION I.6. Legal Representation of Parties. This Agreement and the
other Credit Documents were negotiated by the parties with the benefit of legal
representation and any rule of construction or interpretation otherwise
requiring this Agreement or any other Credit Document to be construed or
interpreted against any party shall not apply to any construction or
interpretation hereof or thereof.
ARTICLE II
COMMITMENTS, BORROWING PROCEDURES AND NOTES
SECTION II.1. Commitments. On the terms and subject to the conditions
of this Agreement (including Article V), each Lender severally agrees to make
Contract Loans pursuant to the Commitments described in this Section 2.1.
Exhibit 10(f) Page 3
SECTION II.1.1. Commitment of Each Lender. On any Business Day
occurring on or after the Effective Date and prior to the Commitment Termination
Date, each Lender will make loans under this Agreement (relative to such Lender
under this Section 2.1.1, and of any type, its "Contract Loans") to the Borrower
equal to such Lender's Percentage of the aggregate amount of the Contract
Borrowing of Contract Loans of the same type requested by the Borrowers to be
made on such day. The commitment of each Lender described in this Section 2.1.1
is herein referred to as its "Commitment". On the terms and subject to the
conditions hereof, the Borrower may from time to time before the Commitment
Termination Date borrow, prepay and reborrow Contract Loans.
SECTION II.1.2. Lenders Not Permitted or Required To Make Contract
Loans. No Lender shall be required to make any Contract Loan if, after giving
effect thereto, the then aggregate outstanding principal amount of all Contract
Loans made by
(a) all Lenders would, when added to the then aggregate
outstanding principal amount of all Bid Loans and Swing Loans, exceed
the Total Commitment Amount, or
(b) such Lender would exceed its Percentage (after giving
effect to all Contract Loans (whether or not made by any particular
Lender) as if each Lender had made its Contract Loans in accordance
with the terms hereof) of the then aggregate outstanding principal
amount of all Contract Loans made by all Lenders.
SECTION II.1.3. Parent Appointed Attorney-in-Fact. Each Borrower hereby
irrevocably appoints the Parent as such Borrower's attorney-in-fact, with full
authority in the place and stead of such Borrower and in the name of such
Borrower or otherwise, from time to time, in the Parent's discretion, to take
any of the following actions:
(a) to request Loans to be made on behalf of such Borrower and
to execute and deliver Borrowing Requests on behalf of such Borrower;
(b) to deliver Contract Continuation/Conversion Notices on
behalf of such Borrower;
(c) to make payments and prepayments of the Obligations of
such Borrower hereunder; and
(d) to take such other action and to execute such other
instruments as the Parent may deem necessary to accomplish the purposes
of this Agreement.
Each Borrower hereby acknowledges, consents and agrees that the power of
attorney granted pursuant to this subsection is irrevocable and coupled with an
interest.
Exhibit 10(f) Page 4
SECTION II.2. Reduction of Commitments. The Commitments are subject to
reduction from time to time pursuant to this Section 2.2.
SECTION II.2.1. Optional. The Borrowers may, from time to time on any
Business Day, voluntarily reduce the Total Commitment Amount; provided that all
such reductions shall require at least 3 Business Days' prior notice to the
Administrative Agent and be permanent, and any partial reduction of the Total
Commitment Amount, as the case may be, shall be in a minimum amount of
$10,000,000 and in an integral multiple of $5,000,000; and provided, further,
that the Total Commitment Amount may not be reduced below the sum of (x) the
then aggregate outstanding principal amount of all Loans of all Lenders and (y)
the then Swing Line Commitment.
SECTION II.2.2. Mandatory. The Total Commitment Amount shall, without
any further action, automatically and permanently be reduced by an amount equal
to the amount of each required prepayment on each date when a mandatory
prepayment pursuant to Section 3.1.1(c) is required or would have been required
had Contract Loans been then outstanding in a sufficient aggregate principal
amount.
SECTION II.3. Contract Borrowing Procedure. By delivering a Contract
Borrowing Request to the Administrative Agent on a Business Day, the Borrowers
may from time to time irrevocably request (i) on or before 9:00 a.m., California
time, on the date of the requested Borrowing, in the case of any proposed
Contract Borrowing of Base Rate Loans, and (ii) on or before 10:00 a.m.,
California time, not less than 3 nor more than 5 Business Days prior to the date
of the requested Borrowing, in the case of any proposed Contract Borrowing of
Eurodollar Rate Loans, that a Contract Borrowing be made in a minimum amount of
$10,000,000 and an integral multiple of $5,000,000 or in the unused amount of
the Commitments in the case of any proposed Contract Borrowing of Base Rate
Loans, and a minimum amount of $10,000,000 and an integral multiple of
$5,000,000 in the case of any proposed Borrowing of Eurodollar Rate Loans. On
the terms and subject to the conditions of this Agreement, each Contract
Borrowing shall be comprised of the same type of Contract Loans from all
Lenders, and shall be made on the Business Day, specified in such Contract
Borrowing Request. On or before 11:00 a.m., California time, on such Business
Day each Lender shall deposit with the Administrative Agent same day funds in an
amount equal to such Lender's Percentage of the requested Contract Borrowing.
Such deposit will be made to an account which the Administrative Agent shall
specify from time to time by notice to the Lenders. To the extent same day funds
are received from the Lenders, the Administrative Agent shall make such same day
funds available to the Borrowers by wire transfer to the accounts the Borrowers
shall have specified in their Borrowing Request. The obligations of the Lenders
under this Article II are several and not joint and no Lender's obligation to
make any Contract Loan shall be affected by any other Lender's failure to make
any Contract Loan.
SECTION II.4. Contract Continuation and Conversion Elections; Contract
Loans Comprising Funding. (a) By delivering a Contract Continuation/Conversion
Exhibit 10(f) Page 5
Notice to the Administrative Agent on or before 10:00 a.m., California time, on
a Business Day, the Borrowers may from time to time irrevocably elect, on, in
the case of any proposed conversion into Base Rate Loans, not less than 1 nor
more than 3 Business Days' notice, and in the case of any proposed continuation
as, or conversion into, Eurodollar Rate Loans, not less than 3 nor more than 5
Business Days' notice, that all, or any portion in an aggregate minimum amount
of $10,000,000 and an integral multiple of $5,000,000 in the case of any
proposed continuation as, or conversion into, Eurodollar Rate Loans, and a
minimum aggregate amount of $10,000,000 and an integral multiple of $5,000,000
in the case of any proposed continuation as, or conversion into, Base Rate
Loans, of any Contract Loans be, in the case of Base Rate Loans, converted into
Eurodollar Rate Loans or, in the case of Eurodollar Rate Loans, converted into a
Base Rate Loan or continued as a Eurodollar Rate Loan (in the absence of
delivery of a Contract Continuation/Conversion Notice with respect to any
Eurodollar Rate Loan at least 3 Business Days before the last day of the then
current Interest Period with respect thereto, such Eurodollar Rate Loan shall,
on such last day, automatically be continued as a Eurodollar Rate Loan with an
initial Interest Period of one month if permitted hereunder and, if not then
permitted hereunder, converted to a Base Rate Loan); provided that (i) each such
conversion or continuation shall be pro rata among the applicable outstanding
Contract Loans of the same type of all Lenders, and (ii) no portion of the
outstanding principal amount of any Contract Loans may be continued as, or be
converted into, Eurodollar Rate Loans when any Default has occurred and is
continuing.
(b) Each Lender may, if it so elects, fulfill its obligation to make,
continue or convert Contract Loans comprising Eurodollar Rate Loans hereunder by
causing one of its foreign branches or Affiliates (or an international banking
facility created by such Lender) to make or maintain such Eurodollar Rate Loan;
provided that such Eurodollar Rate Loan shall nonetheless be deemed to have been
made and to be held by such Lender, and the obligation of the Borrowers to repay
such Eurodollar Rate Loan shall nevertheless be to such Lender for the account
of such foreign branch, Affiliate or international banking facility. In
addition, the Borrowers hereby consent and agree that, for purposes of any
determination to be made for purposes of Section 4.1, 4.2, 4.3 or 4.4, it shall
be conclusively assumed that each Lender elected to fund all Eurodollar Rate
Loans by purchasing Dollar deposits in its Eurodollar Office's interbank
eurodollar market.
SECTION II.5. Swing Line. (a) Subject to the terms and conditions of
this Agreement, the Swing Line Lender shall, on and after the Effective Date,
and prior to the Commitment Termination Date, provide to the Borrowers a swing
line credit facility (the "Swing Line") of up to $50,000,000; provided that the
Swing Line Lender shall not in any event be obligated to make any Loan (each a
"Swing Loan") under the Swing Line if, after giving effect to such Swing Loan,
(x) the aggregate principal amount of the outstanding Swing Loans would exceed
the lesser of (i) $50,000,000 and (ii) the then Total Commitment Amount and (y)
the aggregate principal amount of all then outstanding Loans and Swing Loans
would exceed the then Total Commitment Amount. The commitment of the Swing Line
Exhibit 10(f) Page 6
Lender described in this Section 2.5(a) is herein called the "Swing Line
Commitment".
(b) Each request for Swing Loans shall be made from time to time on or
after the Effective Date by either
(i) delivering or telecopying a Swing Loan Request therefor
to the Administrative Agent who shall promptly notify the Swing Line
Lender of the same, or
(ii) giving telephonic notice thereof to the Administrative
Agent at or before 10:00 a.m., California time, on any Business Day and
promptly confirming such notice by delivering or telecopying a Swing
Loan Request therefor, signed by an Authorized Officer of the
Borrowers, to the Administrative Agent who shall promptly notify the
Swing Line Lender of the same.
On the terms and subject to the conditions of this Agreement, each
Swing Loan shall be disbursed on the Business Day on which the Swing Loan
Request therefor was timely made, in same day funds by wire transfer to such
transferee(s), or to such account(s) of the Borrowers, as the Borrowers shall
have specified in the Swing Loan Request therefor. Swing Loans shall be made as
Base Rate Loans, shall be in an aggregate minimum principal amount of $1,000,000
and an integral multiple of $100,000.
(c) The highest principal amount outstanding on any day under the Swing
Line shall accrue interest for that day at a rate equal to the rate which would
be applicable to Contract Loans which are Base Rate Loans on such day. Such
interest shall be payable quarterly in arrears on each Quarterly Payment Date,
unless demand therefor is made earlier, and shall be payable solely for the
account of the Swing Line Lender.
(d) The principal and interest outstanding under the Swing Line shall
be due and payable (i) on demand made at any time, without prior notice to the
Borrowers (which the Borrowers hereby waive to the fullest extent permitted by
law), and (ii) in any event on the Commitment Termination Date; provided that,
if no Default shall have occurred and be continuing at the time of such demand,
then the Borrowers shall, immediately after the Borrowers learn of such demand,
if and to the extent that the Borrowers are permitted to borrow Contract Loans
under the terms of this Agreement at the time of such demand, be deemed to have
submitted a Contract Borrowing Request for Contract Loans in an amount necessary
to repay the amount demanded. The provisions of Section 2.3 concerning the
integral multiples required for Contract Borrowings of Contract Loans shall not
apply to the Contract Borrowings of Contract Loans described in the foregoing
proviso.
(e) The Borrowers may, from time to time on any Business Day, make a
voluntary prepayment, in whole or in part, of the outstanding principal amount
of any Swing Loans, without incurring any premium or penalty; provided that
Exhibit 10(f) Page 7
(i) each such voluntary prepayment shall require prior
written notice given to the Administrative Agent (who shall promptly
notify the Swing Line Lender of the same) no later than 10:00 a.m.,
California time, on the day on which the Borrowers intend to make a
voluntary prepayment, and
(ii) each such voluntary prepayment shall be in a minimum
amount of $1,000,000 and an integral multiple of $100,000 (or, if less,
the outstanding principal amount of all Swing Loans then outstanding);
(f) Each Lender shall be deemed to have unconditionally and irrevocably
purchased an undivided interest and risk participation from the Swing Line
Lender, without recourse or warranty (except that the outstanding Swing Loans in
fact were made, have not been repaid, and have not been sold, assigned or
encumbered by the Swing Line Lender) in an amount equal to that Lender's
Percentage of the Swing Line Commitment and the principal and interest
outstanding from time to time under the Swing Line.
(g) Upon the occurrence of an Event of Default, the Swing Line Lender
may, but is not required to, without notice to or the consent of the Borrowers,
terminate the Swing Line and cause Contract Loans to be made by the Lenders
under the Commitments in an aggregate amount equal to the amount of principal
outstanding under the Swing Line and, for this purpose, the conditions precedent
set forth in Article VI shall not apply. The proceeds of such Contract Loans
shall be paid to the Administrative Agent for the account of the Swing Line
Lender to repay the principal amounts outstanding under the Swing Line.
(h) The Swing Line Lender shall not, without the approval of all
Lenders, make a Swing Loan if the Administrative Agent or the Swing Line Lender
then has actual knowledge that an Event of Default has occurred and is then
continuing.
SECTION II.6. Notes. The Loans of the Lenders shall be evidenced by the
Notes pursuant to this Section 2.6.
SECTION II.6.1. Contract Note. All Contract Loans made or deemed made
by each Lender shall be evidenced by a promissory note (a "Contract Note") of
the Borrowers, dated the Effective Date and substantially in the form of Exhibit
A-1, payable to the order of such Lender at the office of the Administrative
Agent and in a maximum principal amount equal to such Lender's Commitment.
SECTION II.6.2. Bid Note. All Bid Loans made by each Lender shall be
evidenced by a promissory note of the Borrowers, dated the Effective Date and
substantially in the form of Exhibit A-2 (a "Bid Note"), payable to the order of
such Lender at the office of the Administrative Agent.
Exhibit 10(f) Page 8
SECTION II.6.3. Swing Note. All Swing Loans made by the Swing Line
Lender shall be evidenced by a promissory note of the Borrowers, substantially
in the form of Exhibit A-3 (a "Swing Note"), payable to the order of the
Administrative Agent for the account of the Swing Line Lender and in a maximum
principal amount equal to $50,000,000.
SECTION II.6.4. Notations. The Borrowers hereby irrevocably authorize
each Lender to make (or cause to be made) appropriate notations in its records
or, at the option of the Administrative Agent, on the grid attached to such
Lender's Notes (or on a continuation of such grid attached to such Lender's
Notes and made a part thereof), which notations shall evidence, inter alia, the
date of, the outstanding principal amount of, and the interest rate (including
any conversions thereof pursuant to Section 4.2) applicable to, the Loans
evidenced thereby. The notations on such records or each such grid (and on each
such continuation) indicating the outstanding principal amount of the Loans
shall, in the absence of manifest error, be conclusive evidence of the principal
amount thereof owing and unpaid, but the failure to record, or any error in
recording, any such amount in such records or on such grid (or on such
continuation) shall not limit or otherwise affect the obligations of the
Borrowers hereunder or under such Notes to make payment of principal of or
interest on such Loans when due or increase or otherwise affect the rights of
the Borrowers in respect of payments of principal of or interest on such Loans
actually made.
SECTION II.6.5. Obligations of Borrowers. Notwithstanding the delivery
by the Borrowers of separate Contract Notes and Bid Notes to each Lender, all
borrowing requests shall be delivered to and all payments due under the terms of
any Note shall be made by the Borrowers solely to the Administrative Agent.
SECTION II.7. Bid Procedure. The Borrowers may request Bid Offers from
the Lenders to make Bid Loans in accordance with Section 2.7.1 from time to time
on any Business Day prior to the date occurring seven days prior to the
Commitment Termination Date; provided that, after giving effect to each Bid
Borrowing, the then aggregate principal amount of (a) all outstanding Bid Loans
shall not exceed an amount equal to the then Total Commitment Amount and (b) all
then outstanding Loans and Swing Loans shall not exceed the Total Commitment
Amount. All Lenders, or any lesser number thereof (including any Lender
individually), may, but shall have no obligation to, make Bid Offers so
requested, and the Borrowers may, but shall have no obligation to, accept any
Lender's Bid Offer.
SECTION II.7.1. Bid Requests. The Borrowers may request from all
Lenders a Bid Borrowing by a telephonic Bid Borrowing Request to the
Administrative Agent, not later than 10:00 a.m., California time, at least one
Business Day prior to the date for the proposed Bid Borrowing, which notice
shall be immediately confirmed by a facsimile Bid Borrowing Request specifying:
Exhibit 10(f) Page 9
(a) the date and aggregate amount of the proposed Bid
Borrowing (which shall be in a minimum aggregate principal amount of
$10,000,000 and in an integral multiple of $5,000,000); and
(b) the maturity date (or dates) (relative to each Bid Loan,
its "Stated Maturity Date") for repayment of each Bid Loan to be made
as part of such Bid Borrowing (which Stated Maturity Date may not be
earlier than the date occurring seven days after the date of such Bid
Borrowing or later than the earlier of (x) the date occurring 270 days
after the date of such Bid Borrowing and (y) the Commitment Termination
Date);
The Administrative Agent shall promptly (but in any event on the same Business
Day) notify each Lender by telephone (confirmed by facsimile) of each Bid
Borrowing Request. The Borrowers shall not request more than 2 Bid Borrowings
within any 5 Business Day period.
SECTION II.7.2. Bid Offers. If any Lender, in its sole discretion,
elects to offer to make a Bid Loan to the Borrowers as part of a proposed Bid
Borrowing, which would bear interest at a rate (or rates) selected by such
Lender in its sole discretion, it shall deliver a Bid Offer by facsimile to the
Administrative Agent before 6:45 a.m., California time, on the date of such
proposed Bid Borrowing; provided that Bid Offers submitted by the Administrative
Agent (or any Affiliate of the Administrative Agent) in its capacity as a Lender
must be submitted to the Administrative Agent no later than 6:30 a.m.,
California time, which Bid Offer shall specify:
(a) the amount(s) and Stated Maturity Date(s) of the Bid Loans
which such Lender would be willing to make as part of such proposed Bid
Borrowing, which amount shall be in a minimum principal amount of
$5,000,000 and in an integral multiple of $1,000,000, and may exceed
such Lender's Percentage of the Total Commitment Amount; and
(b) the Bid Rate(s) therefor.
Bid Offers submitted pursuant to this Section 2.7.2 shall be irrevocable,
subject to the terms and conditions of this Agreement. If a Bid Offer submitted
pursuant to this Section 2.7.2 is determined by the Administrative Agent (whose
determination shall be conclusive in the absence of manifest error) to:
(c) be not substantially in the form of Exhibit B-2,
(d) omit any required information,
(e) be conditional or qualified in any respect,
(f) propose terms other than or in addition to those set forth
in the Bid Borrowing Request,
Exhibit 10(f) Page 10
(g) not have been delivered to the Administrative Agent by
6:45 a.m., California time, or
(h) be otherwise inconsistent with the provisions hereof,
the Administrative Agent will reject the offer made by such Bid Offer and give
telephonic notice (confirmed in writing) of such rejection to the Lender which
submitted such Bid Offer. Promptly thereafter, and in any case, no later than
7:15 a.m., California time, the Administrative Agent will give telephonic notice
(confirmed in writing) to the Borrowers of all conforming Bid Offers and the
terms thereof.
SECTION II.7.3. Acceptance by Borrowers of Bid Offers. The Borrower
shall, before 7:45 a.m., California time, on the date of such proposed Bid
Borrowing, in its sole discretion either:
(a) irrevocably cancel the Bid Borrowing Request that
requested such Bid Borrowing by giving the Administrative Agent
telephonic notice (confirmed promptly thereafter in writing) to that
effect; or
(b) irrevocably accept one or more of the Bid Offers by giving
telephonic notice to the Administrative Agent of the amount of the Bid
Borrowing to be made on such date, specifying the amount of the Bid
Loan(s) to be made by each Lender as part of such Bid Borrowing, which
amount shall not be greater than the amount offered by such Lender in
its Bid Offer, the Stated Maturity Date(s) and the Bid Rate(s)
therefor;
provided that:
(c) the Borrowers shall not accept any Lender's conforming Bid
Offer to make a Bid Loan at a particular Bid Rate for the same Stated
Maturity Date if the Borrowers have decided to reject any other
Lender's conforming Bid Offer to make a Bid Loan at a lower Bid Rate;
(d) the aggregate principal amount of all Bid Offers accepted
by the Borrowers shall not, after giving effect to all reductions made
pursuant to clause (e) below, exceed the principal amount specified in
the Bid Borrowing Request;
(e) if the Borrowers shall accept any Bid Offer to make a Bid
Loan at a particular Bid Rate, then the Borrowers shall accept all
offers to make Bid Loans at such Bid Rate for the same Stated Maturity
Date; provided that, if the aggregate principal amount of all Bid Loans
offered at such Bid Rate, together with the aggregate principal amount
of all Bid Loans offered at lower Bid Rates, shall exceed the amount
specified in the Bid Borrowing Request, then the Borrower shall
(notwithstanding the requirements of clause (f) below)
(i) accept only a portion of all Bid Offers made at
such higher Bid Rate so as to eliminate such excess, and
Exhibit 10(f) Page 11
(ii) allocate such excess among all Lenders offering
Bid Offers at such higher Bid Rate as nearly as possible in
proportion to the respective amounts of the Bid Loans offered
thereby; provided if the portion of the principal amount of
such Bid Loans to be so allocated is not sufficient to enable
Bid Loans to be so allocated to each such Lender in a minimum
principal amount of $5,000,000 and in an integral multiple of
$1,000,000, the Borrowers shall select the Lenders to be
allocated such Bid Loans in a minimum principal amount of
$1,000,000 and round allocations up to the next higher
multiple of $1,000,000 if necessary; and
(f) with respect to each Stated Maturity Date, the Borrowers
shall not accept a Bid Offer in a principal amount of less than
$5,000,000 (except as provided in clause (e) above) or other than in an
integral multiple of $1,000,000.
Subject to the foregoing requirements, the Borrowers may accept or reject, at
the Borrowers' sole discretion, the offer to make any Bid Loan contained in any
Bid Offer. Each notice given by the Borrowers pursuant to this Section 2.7.3
shall be irrevocable. Failure by the Borrowers to accept a Bid Offer in
accordance with the provisions of this Section 2.7.3 shall constitute a
rejection of such Bid Offer.
SECTION II.7.4. Acknowledgment of Bid Borrowings. Promptly after
acceptance of a Bid Offer by the Borrowers pursuant to Section 2.7.3(b):
(a) in any case no later than 8:00 a.m., California time, on
the date of such Bid Borrowing, the Borrowers shall deliver to the
Administrative Agent a Bid Acknowledgment confirming, with respect to
each Bid Loan to be made to the Borrowers, the Stated Maturity Date,
amount, and Bid Rate therefor; and
(b) in any case no later than 8:15 a.m., California time, on
the date of the proposed Bid Borrowing, the Administrative Agent will
give telephonic notice to each Lender submitting a Bid Offer of each
Stated Maturity Date, amount, and Bid Rate so accepted by the Borrowers
and promptly thereafter written notice of the same to all Lenders.
SECTION II.7.5. Bid Loan Funding. On or before 10:00 a.m., California
time, on the Business Day specified for each Bid Borrowing, each Lender whose
Bid Offer in respect thereof the Borrowers accepted pursuant to Section 2.7.3(b)
shall deposit with the Administrative Agent same day funds in an amount equal to
the principal amount of such Lender's Bid Loan. Such deposit will be made to an
account which the Administrative Agent shall from time to time specify by notice
to the Lenders. To the extent same day funds are received from such Lenders, the
Administrative Agent shall make such same day funds available to the Borrowers
by wire transfer to the accounts the Borrowers shall have specified in its Bid
Acknowledgment. No Lender's obligation to make any Bid Loan shall be affected by
any other Lender's failure to make any Bid Loan.
Exhibit 10(f) Page 12
SECTION II.8. Extension of Commitment Termination Date. Not less than
30 days nor more than 60 days before each anniversary of the Effective Date, the
Borrowers may, by written request delivered to the Administrative Agent, request
that the Commitment Termination Date be extended by all of the Lenders for a
period of 364 days from the then-current Commitment Termination Date. The
Administrative Agent shall promptly notify the Lenders of any such request. Such
extension shall only be effective upon approval thereof in writing by each of
the Administrative Agent and all of the Lenders and the execution and delivery
of such amendments to the Credit Documents as the Administrative Agent may
require in connection with such extension. The Administrative Agent and each
Lender may accept or reject any request for an extension in its sole and
absolute discretion. The Administrative Agent and each Lender shall use best
efforts to accept or reject any such request within 30 days after receiving
notice thereof, provided that any failure by the Administrative Agent or a
Lender to respond to such a request shall be deemed to be a rejection thereof.
SECTION II.9. Joint and Several Liability. Each Borrower has determined
that it is in its best interest and in furtherance of its legitimate business
purposes to induce the Lenders to extend credit to the Borrowers pursuant to
this Agreement. Each Borrower acknowledges and represents that the availability
of the Commitments to both of the Borrowers benefits each Borrower individually
and that the Loans made will be for and inure to the benefit of both of the
Borrowers individually and jointly. Accordingly, each Borrower shall be jointly
and severally liable (as a principal and not as a surety, guarantor or other
accommodation party) for each and every representation, warranty, covenant and
obligation to be performed by the Borrower under this Agreement, the Notes and
the other Loan Documents, and each Borrower acknowledges that in extending the
credit provided herein each Lender is relying upon the fact that the obligations
of each Borrower hereunder are the joint and several obligations of a principal.
The invalidity, unenforceability or illegality of this Agreement, the Notes or
any other Loan Document as to one Borrower or the release by the Lenders of a
Borrower thereunder shall not affect the Obligations of the other Borrowers
under this Agreement, the Notes or the other Loan Documents, all of which shall
otherwise remain the valid and legally binding obligations of the other
Borrowers.
SECTION II.10. Borrower Waivers. Each Borrower acknowledges that the
Lenders may, at any time and from time to time, without notice or demand, and
without affecting the enforceability or security hereof or of any other Credit
Document:
(a) accept partial payments on the Obligations;
(b) receive and hold additional security or
guaranties for the Obligations or any part thereof;
Exhibit 10(f) Page 13
(c) release, reconvey, terminate, waive, abandon,
subordinate, exchange, substitute, transfer and enforce any
security or guaranties, and apply any security and direct the
order or manner of sale thereof as the Administrative Agent,
in its sole and absolute discretion may determine;
(d) release any Person or any guarantor from any
personal liability with respect to the Obligations or any part
thereof;
(e) settle, release on terms satisfactory to the
Administrative Agent or by operation of applicable Laws or
otherwise liquidate or enforce any Obligations and any
security or guaranty therefor in any manner, or consent to the
transfer of any security and bid and purchase at any sale; and
(f) consent to the merger, change or any other
restructuring or termination of the corporate existence of any
Borrower or any other Person, and correspondingly restructure
the Obligations, and any such merger, change restructuring or
termination shall not affect the liability of the Borrowers or
the continuing existence of any Lien under any Credit Document
to which a Borrower is a party or the enforceability hereof or
thereof with respect to all or any part of the Obligations.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION III.1. Repayments and Prepayments. The Borrowers shall repay in
full the unpaid principal amount of each Loan as provided in this Section 3.1.
SECTION III.1.1. Contract Loans. The Borrowers shall repay in full the
unpaid principal amount of each Contract Loan upon the Final Maturity Date.
Prior thereto, the Borrowers:
(a) may, from time to time on any Business Day, make a
voluntary prepayment, in whole or in part, of the outstanding principal
amount of any Contract Loans; provided that:
(i) any such prepayment shall be made pro rata
among Contract Loans of the same type and, if applicable,
having the same Interest Period of all Lenders;
(ii) no such prepayment of any Eurodollar Rate Loan
may be made on any day other than the last day of the Interest
Period for such Loan, unless the Borrower pays to each Lender
the amount, if any, due in respect thereof to such Lender
pursuant to Section 4.4;
Exhibit 10(f) Page 14
(iii) all such voluntary prepayments shall require at
least 3 but no more than 5 Business Days' prior telephonic
notice to the Administrative Agent (confirmed by prompt
written notice);
(iv) all such voluntary partial prepayments shall be
in an aggregate minimum amount of $10,000,000 and an integral
multiple of $5,000,000; and
(v) no such prepayment of less than all of any
Eurodollar Rate Loan may be made if, after giving effect
thereto, the aggregate amount of any Eurodollar Rate Loans
having the same Interest Period would be less than $10,000,000
or other than an integral multiple of $5,000,000;
(b) shall, immediately upon any acceleration of the Final
Maturity Date of any Contract Loans pursuant to Section 8.2 or 8.3,
repay all Contract Loans, unless, pursuant to Section 8.3, only a
portion of all Contract Loans is so accelerated; and
(c) shall, not later than 10 days after the receipt by the
Borrowers of any Net Asset Sale Proceeds in connection with a Permitted
Asset Sale of the kind described in clause (a) of the definition
thereof, make a mandatory prepayment of the outstanding aggregate
principal amount of all Contract Loans then outstanding, if any, in an
amount equal to the applicable amount of such Net Asset Sale Proceeds.
Each prepayment of any Contract Loans made pursuant to this Section 3.1.1 shall
be without premium or penalty, except as may be required by Section 4.4.
SECTION III.1.2. Bid Loans. The Borrowers shall repay in full the
unpaid principal amount of each Bid Loan upon the Stated Maturity Date therefor.
Prior thereto, the Borrowers:
(a) may not prepay any Bid Loan; and
(b) shall, immediately upon any acceleration of the Stated
Maturity Date of any Bid Loan pursuant to Section 8.2 or 8.3, repay or
prepay all Bid Loans unless, pursuant to Section 8.3, only a portion of
all Bid Loans is so accelerated.
SECTION III.2. Interest Provisions. Interest on the outstanding
principal amount of Loans shall accrue and be payable in accordance with this
Section 3.2.
SECTION III.2.1. Contract Rates. Pursuant to a duly completed and
delivered Contract Borrowing Request or Contract Continuation/Conversion Notice,
the Borrowers may elect that Contract Loans comprising a Contract Borrowing
accrue interest at a rate per annum:
Exhibit 10(f) Page 15
(a) on that portion maintained from time to time as a Base
Rate Loan, equal to the sum of the Base Rate from time to time in
effect plus the Applicable Margin, if any; and
(b) on that portion maintained as a Eurodollar Rate Loan,
during each Interest Period applicable thereto, equal to the sum of the
Eurodollar Rate for such Interest Period plus the Applicable Margin.
All Eurodollar Rate Loans shall bear interest from the first day of the
applicable Interest Period to the last day of such Interest Period at the
interest rate determined as applicable to such Eurodollar Rate Loan.
SECTION III.2.2. Post-Default Contract Rates. After the occurrence of
any Event of Default and for so long (but only for so long) as such Event of
Default shall be continuing, the Borrowers shall pay, but only to the extent
permitted by Applicable Law, interest (after as well as before judgment) at a
rate per annum which is 2% per annum in excess of any applicable interest rate
hereunder prior to such Event of Default and, if no such interest rate is
otherwise applicable, at a rate per annum on any monetary Obligation then due
and payable equal to the Base Rate from time to time in effect plus a margin of
2.0% per annum.
SECTION III.2.3. Payment Dates. Interest accrued on each Contract Loan
shall be payable, without duplication:
(a) on the Final Maturity Date;
(b) with respect to the principal amount paid or prepaid, on
the date of any payment or prepayment, in whole or in part, of
principal outstanding on such Loan;
(c) with respect to Base Rate Loans, on each Quarterly Payment
Date occurring after the Effective Date;
(d) with respect to Eurodollar Rate Loans, on the last day of
each applicable Interest Period and, if such Interest Period is of six
months duration, on the date which would have been the last day of an
Interest Period of three months duration;
(e) with respect to any Base Rate Loans converted into
Eurodollar Rate Loans on a day when interest would not otherwise have
been payable pursuant to clause (c), on the date of such conversion;
and
(f) on that portion of any Contract Loans the Final Maturity
Date of which is accelerated pursuant to Section 8.2 or 8.3,
immediately upon such acceleration.
Interest accrued on Contract Loans or other monetary Obligations arising under
this Agreement or any other Credit Document after the date such amount is due
Exhibit 10(f) Page 16
and payable (whether on the Final Maturity Date, upon acceleration or otherwise)
shall be payable upon demand.
SECTION III.2.4. Bid Rates. Interest on the outstanding principal
amount of Bid Loans shall accrue at a rate per annum equal to the applicable Bid
Rate for each such Bid Loan and shall be payable at the time(s) specified in the
Bid Offer for each such Bid Loan or, if no such time is so specified, on the
Stated Maturity Date thereof.
SECTION III.3. Fees. The Borrowers agree to pay the fees set forth in
this Section 3.3. All such fees shall be non-refundable.
SECTION III.3.1. Facility Fee. The Borrowers agree to pay to the
Administrative Agent for the account of each Lender, for the period (including
any portion thereof when its Commitment is suspended by reason of the Borrowers'
inability to satisfy any condition of Article V) from the Effective Date through
the Commitment Termination Date, a facility fee at the Facility Rate on such
Lender's respective Commitment (whether or not used). Such facility fees shall
be payable by the Borrowers in arrears on each Quarterly Payment Date,
commencing June 30, 1999, and on the Commitment Termination Date.
SECTION III.3.2. Other Fees. The Borrowers agree to pay to the
Administrative Agent and the Syndication Agent certain fees provided in a letter
agreement dated February 19, 1999.
SECTION III.3.3. Utilization Fee. The Borrowers agree to pay to the
Administrative Agent for the account of each Lender for the period from the
effective date hereof through the Commitment Termination Date, for each day that
the aggregate outstandings under the Senior Credit Facilities exceed 33 1/3% of
the aggregate commitments under the Senior Credit Facilities, a utilization fee
on all Borrowings outstanding on such day at the Utilization Fee Rate. The
utilization fee shall be payable by the Borrowers in arrears on each Quarterly
Payment Date, commencing June 30, 1999, and on the Commitment Termination Date.
ARTICLE IV
CERTAIN EURODOLLAR RATE AND OTHER PROVISIONS
SECTION IV.1. Eurodollar Rate Lending Unlawful. If any Lender shall
determine (which determination shall, upon notice thereof to the Borrowers, the
Administrative Agent and the Lenders, be conclusive and binding on the
Borrowers) that the introduction of or any change in or in the interpretation of
any Applicable Law makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for such Lender to make, continue or
maintain any Loan as, or to convert any Loan into, a Eurodollar Rate Loan, the
obligations of such Lender to make, continue, maintain or convert any such type
of Loans shall, upon such determination, forthwith be suspended until such
Lender shall notify the Administrative Agent that the circumstances causing such
Exhibit 10(f) Page 17
suspension no longer exist, and all Eurodollar Rate Loans shall automatically
convert into Base Rate Loans at the end of the then current Interest Periods
with respect thereto or sooner, if required by such Applicable Law or assertion.
SECTION IV.2. Deposits Unavailable. If the Administrative Agent shall
have determined (which determination shall, upon notice thereof to the Borrowers
and the Lenders, be conclusive and binding on the Borrowers) that, by reason of
circumstances affecting the Reference Lenders' relevant market, adequate means
do not exist for ascertaining the interest rate applicable hereunder to
Eurodollar Rate Loans, then, upon notice from the Administrative Agent to the
Borrowers and the Lenders, the obligations of all Lenders under Sections 2.3 and
2.4 to make or continue any Loans as, or to convert any Loans into, Eurodollar
Rate Loans shall forthwith be suspended until the Administrative Agent shall
notify the Borrowers and the Lenders that the circumstances causing such
suspension no longer exist.
SECTION IV.3. Increased Eurodollar Rate Loan Costs, etc. The Borrowers
agree to reimburse each Lender for (a) any reserve requirement (including all
basic, supplemental, marginal and other reserves and taking into account any
transitional adjustments or other scheduled changes in reserve requirements)
applicable to such Lender, including reserve requirements for "Eurocurrency
liabilities" pursuant to Regulation D of the F.R.S. Board, and (b) any increase
in the cost to such Lender of, or any reduction in the amount of any sum
receivable by such Lender, in either such case after the date hereof in respect
of making, continuing or maintaining (or of its obligation to make, continue or
maintain) any Loans as, or of converting (or of its obligation to convert) any
Loans into, Eurodollar Rate Loans. Such Lender shall promptly notify the
Administrative Agent and the Borrowers in writing of the occurrence of any such
event, such notice to state, in reasonable detail, the reasons therefor and the
additional amount (including calculation thereof) required fully to compensate
such Lender for such increased cost or reduced amount. Such additional amounts
shall be payable by the Borrowers directly to such Lender within 5 Business Days
of its receipt of such notice, and such notice shall, in the absence of manifest
error, be conclusive and binding on the Borrowers; provided that the Borrowers
shall have no obligation to reimburse any Lender for any such additional amount
attributable to any point or period of time more than 6 months before the date
on which such Lender shall first have given notice to the Borrowers of its claim
to be entitled to the benefits of this Section 4.3 in respect of such additional
amount.
SECTION IV.4. Funding Losses. In the event any Lender shall incur any
loss or expense (including any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to make, continue or maintain any portion of the principal amount of any Loan
as, or to convert any portion of the principal amount of any Loan into, a
Eurodollar Rate Loan) as a result of:
(a) any conversion or repayment or prepayment of the principal
amount of any Eurodollar Rate Loans on a date other than the scheduled
Exhibit 10(f) Page 18
last day of the Interest Period applicable thereto, whether pursuant to
Section 3.1 or otherwise;
(b) any Loans not being made as Eurodollar Rate Loans in
accordance with the Borrowing Request therefor (other than solely as a
result of the failure of such Lender to duly and punctually perform its
obligations under Section 2.3 or 2.4); or
(c) any Loans not being continued as, or converted into,
Eurodollar Rate Loans in accordance with the Continuation/Conversion
Notice therefor (other than solely as a result of the failure of such
Lender to duly and punctually perform its obligations under Section 2.3
or 2.4),
then, upon the written notice of such Lender to the Borrowers (with a copy to
the Administrative Agent), the Borrowers shall, within 5 days of its receipt
thereof, pay directly to such Lender such amount as will (in the reasonable
determination of such Lender) reimburse such Lender for such loss or expense.
Such written notice (which shall include calculations in reasonable detail)
shall, in the absence of manifest error, be conclusive and binding on the
Borrowers.
SECTION IV.5. Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any Applicable Law or guideline, decision or request (whether or
not having the force of law) of any court, central bank, regulator or other
governmental authority affects or would affect the amount of capital required or
expected to be maintained by any Lender or any Person controlling such Lender,
and such Lender determines (in its sole and absolute discretion) that the rate
of return on its or such controlling Person's capital as a consequence of its
Commitment or the Loans made by such Lender is reduced to a level below that
which such Lender or such controlling Person could have achieved but for the
occurrence of any such circumstance, then, in any such case upon notice from
time to time by such Lender to the Borrowers, the Borrowers shall immediately
pay directly to such Lender additional amounts sufficient to compensate such
Lender or such controlling Person for such reduction in rate of return. A
statement of such Lender as to any such additional amount or amounts (including
calculations thereof in reasonable detail) shall, in the absence of manifest
error, be conclusive and binding on the Borrowers. In determining such amount,
such Lender may use any reasonable method of averaging and attribution; provided
that the Borrowers shall have no obligation to reimburse any Lender for any such
additional amount attributable to any point or period of time more than 6 months
before the date on which such Lender shall first have given notice to the
Borrowers of its claim to be entitled to the benefits of this Section 4.5 in
respect of such additional amount.
SECTION IV.6. Taxes. All payments by the Borrowers of principal of, and
interest on, the Loans and all other amounts payable hereunder shall be made
free and clear of and without deduction for any present or future income,
excise, stamp or franchise taxes and other taxes, fees, duties, withholdings or
Exhibit 10(f) Page 19
other charges of any nature whatsoever imposed by any taxing authority, but
excluding franchise taxes and taxes imposed on or measured by any Lender's net
income or net receipts (such non-excluded items being called "Taxes"). In the
event that any withholding or deduction from any payment to be made by the
Borrowers hereunder is required in respect of any Taxes pursuant to any
Applicable Law, then the Borrowers will:
(a) pay directly to the relevant authority the full amount
required to be so withheld or deducted;
(b) promptly forward to the Administrative Agent an official
receipt or other documentation satisfactory to the Administrative Agent
evidencing such payment to such authority; and
(c) pay to the Administrative Agent for the account of the
Lenders such additional amount or amounts as is necessary to ensure
that the net amount actually received by each Lender will equal the
full amount such Lender would have received had no such withholding or
deduction been required.
Moreover, if any Taxes are directly asserted against the Administrative Agent or
any Lender with respect to any payment received by the Administrative Agent or
such Lender hereunder, the Administrative Agent or such Lender may pay such
Taxes and the Borrowers, upon presentation of reasonable evidence of the payment
of such Taxes by the Administrative Agent or such Lender, as the case may be,
will promptly pay such additional amounts (including any penalties, interest or
expenses, unless such penalties, interest or expenses result solely from the
negligence of such Person) as is necessary in order that the net amount received
by such Person after the payment of such Taxes (including any Taxes on such
additional amount) shall equal the amount such person would have received had
such Taxes not been asserted.
If the Borrowers fail to pay any Taxes when due to the appropriate
taxing authority or fails to remit to the Administrative Agent, for the account
of the respective Lenders, the required receipts or other required documentary
evidence, the Borrowers shall indemnify the Lenders for any incremental Taxes,
interest or penalties that may become payable by any Lender as a result of any
such failure.
Each Lender that is incorporated under the laws of any jurisdiction
other than the United States of America or any state or other political
subdivision thereof represents and warrants to the Borrowers and to the
Administrative Agent that, in the case of the Lenders party hereto on the date
hereof, on the date hereof, and, in the case of each other Lender, on the date
of its execution and delivery of the Assignment Agreement that first makes it a
party hereto, its Domestic Office and its Eurodollar Office are entitled to
receive payments in respect of its Loans, including principal, interest and
commitment fees, without deduction or withholding for or on account of Taxes.
Exhibit 10(f) Page 20
Upon the request of the Borrowers or the Administrative Agent, each
Lender that is organized under the laws of a jurisdiction other than the United
States shall, prior to the due date of any payments under the Note, execute and
deliver to the Borrowers and the Administrative Agent, on or about the first
scheduled payment date in each Fiscal Year, one or more (as the Borrowers or the
Administrative Agent may reasonably request) United States Internal Revenue
Service Forms 4224 or Forms 1001 or such other forms or documents (or successor
forms or documents), appropriately completed, as may be applicable to establish
the extent, if any, to which a payment to such Lender is exempt from withholding
or deduction of Taxes.
SECTION IV.7. Payments, Computations, etc. Unless otherwise expressly
provided, all payments by the Borrowers pursuant to this Agreement, the Note or
any other Credit Document shall be made by the Borrowers to the Administrative
Agent for the pro rata account of the Lenders entitled to receive such payment.
All such payments required to be made to the Administrative Agent shall be made,
without setoff, deduction or counterclaim, not later than 10:00 a.m., California
time, on the date due, in same day or immediately available funds, to such
account as the Administrative Agent shall specify from time to time by notice to
the Borrowers. Funds received after that time shall be deemed to have been
received by the Administrative Agent on the next succeeding Business Day. The
Administrative Agent shall promptly remit in same day funds to each Lender its
share, if any, of such payments received by the Administrative Agent for the
account of such Lender. All interest and fees shall be computed on the basis of
the actual number of days (including the first day but excluding the last day)
occurring during the period for which such interest or fee is payable over a
year comprised of 360 days. Whenever any payment to be made shall otherwise be
due on a day which is not a Business Day, such payment shall (except as
otherwise required by the definition of the term "Interest Period" with respect
to Eurodollar Rate Loans) be made on the next succeeding Business Day and such
extension of time shall be included in computing interest and fees, if any, in
connection with such payment.
SECTION IV.8. Sharing of Payments. If any Lender shall obtain any
payment or other recovery (whether voluntary, involuntary, by application of
setoff or otherwise) on account of any Contract Loan (other than pursuant to
Sections 4.1, 4.3, 4.4, 4.5 and 4.6) in excess of its pro rata share of payments
then or therewith obtained by all Lenders on account of Contract Loans, such
Lender shall purchase from such other Lenders such participations in such Loans
made by them as shall be necessary to cause such purchasing Lender to share the
excess payment or other recovery ratably with each of them; provided that if all
or any portion of the excess payment or other recovery is thereafter recovered
from such purchasing Lender, the purchase shall be rescinded and each Lender
which has sold a participation to the purchasing Lender shall repay to the
purchasing Lender the purchase price to the ratable extent of such recovery
together with an amount equal to such selling Lender's ratable share (according
to the proportion of
Exhibit 10(f) Page 21
(a) the amount of such selling Lender's required repayment to
the purchasing Lender
to
(b) the total amount so recovered from the purchasing
Lender)of any interest or other amount paid or payable by the purchasing Lender
in respect of the total amount so recovered. The Borrower agrees that any Lender
so purchasing a participation from another Lender pursuant to this Section 4.8
may, to the fullest extent permitted by Applicable Law, exercise all its rights
of payment (including pursuant to Section 4.9) with respect to such
participation as fully as if such Lender were the direct creditor of the
Borrowers in the amount of such participation. If under any applicable
bankruptcy, insolvency or other similar law, any Lender receives a secured claim
or collateral in lieu of a setoff to which this Section applies, such Lender
shall, to the extent practicable, exercise its rights in respect of such secured
claim or collateral in a manner consistent with the rights of the Lenders
entitled under this Section 4.8 to share in the benefits of any recovery on such
secured claim or collateral.
SECTION IV.9. Setoff. The Administrative Agent and each Lender shall,
upon the occurrence of any Default described in Section 8.1.8 or any Event of
Default, have the right to appropriate and apply to the payment of the
Obligations owing to it (whether or not then due) any and all balances, credits,
deposits, accounts or moneys of the Borrowers then or thereafter with such
Lender; provided that any such appropriation and application shall be subject to
the provisions of Section 4.8. Each Lender agrees promptly to notify the
Borrowers and the Administrative Agent after any such setoff and application
made by such Lender; provided that the failure to give such notice shall not
affect the validity of such setoff and application. The rights of each Lender
under this Section 4.9 are in addition to other rights and remedies (including
other rights of setoff under Applicable Law or otherwise) which such Lender may
have.
SECTION IV.10. Mitigation of Certain Costs; Lender Replacement; etc.(a)
Each Affected Lender will, if requested in writing by the Borrowers, and only to
the extent not inconsistent with such Affected Lender's internal policies, use
its best efforts to make, fund, or maintain such Affected Lender's Loans of the
affected type through another lending office of such Affected Lender if, as a
result thereof, the Affecting Event would be eliminated or materially reduced
and if, as determined by such Affected Lender in its sole discretion, the
making, funding, or maintaining of such Loans through such other lending office
would not otherwise adversely affect such Affected Lender or such Affected
Lender's rights in respect of such Loans and, if such Affected Lender determines
that another lending office would eliminate or materially reduce such Affecting
Event and would not otherwise adversely affect such Affected Lender or such
Affected Lender's rights in respect of such Loans, such Affected Lender shall
give notice thereof to the Borrowers and the Administrative Agent, such notice
to state, in reasonable detail, why such lending office would eliminate or
Exhibit 10(f) Page 22
materially reduce such Affecting Event and the costs and expenses expected to be
incurred by such Affected Lender in utilizing such lending office. The Borrowers
hereby agree to pay all reasonable costs and expenses incurred by such Affected
Lender (including legal costs and expenses) in utilizing another lending office
of such Affected Lender pursuant to this Section 4.10(a).
(b If (i) the Borrowers have requested an Affected Lender to change its
lending office and such Affected Lender has not changed its lending office
within 30 days of such request, or (ii) a change in the lending office of an
Affected Lender would not eliminate the Affecting Event, and the Affecting Event
is still continuing and is not applicable to all other Lenders, or (iii) an
Affected Lender willfully fails to make any Loan required to be made hereunder,
then the Borrowers may designate another lender which is reasonably acceptable
to the Administrative Agent (a "Replacement Lender") to purchase all (but not
less than all) of the Loans and interest in the Contract Note, and to assume the
Commitment and other obligations hereunder, of such Affected Lender, without
recourse to or warranty by, or expense to, such Affected Lender, for a purchase
price equal to the sum of (x) the outstanding aggregate principal amount of such
Affected Lender's Contract Loans plus (y) all accrued but unpaid interest and
fees payable to such Affected Lender to the date on which such Affected Lender
receives payment of such purchase price, together with payment to such Affected
Lender of all other amounts then payable to such Affected Lender hereunder,
including amounts accrued pursuant to Section 4.3, 4.4, 4.5, or 4.6. Any such
purchase and assumption shall be made in accordance with Section 10.11. Upon
such purchase, such Affected Lender shall no longer be a party hereto or have
any rights or obligations hereunder (other than rights in respect of Bid Loans
and rights which would survive the payment of such Affected Lender's Contract
Loans in accordance with this Agreement) and such Replacement Lender shall
succeed to the rights and obligations of such Affected Lender hereunder.
SECTION IV.11. Use of Proceeds. The Borrowers shall apply the proceeds
of each Borrowing in accordance with the fifth recital.
ARTICLE V
CONDITIONS TO EFFECTIVENESS AND BORROWING
SECTION V.1. Effectiveness and Initial Borrowing. The effectiveness of
this Agreement and the obligations of the Lenders to fund the initial Borrowing
after the Effective Date shall be subject to the prior or concurrent
satisfaction of each of the conditions precedent set forth in this Section 5.1.
SECTION V.1.1. Agreement Counterparts, etc. The Administrative Agent
shall have received one or more counterparts of this Agreement duly executed by
the Borrowers, the Administrative Agent and each of the Lenders.
Exhibit 10(f) Page 23
SECTION V.1.2. Resolutions, etc. The Administrative Agent shall have
received from each of the Borrowers a certificate, dated the Effective Date, of
its Secretary or Assistant Secretary as to:
(a resolutions of its Board of Directors then in full force
and effect authorizing the execution, delivery and performance of this
Agreement and each other Credit Document to be executed by it;
(b true and complete copies of its Organic Documents attached
to such certificate; and
(c the incumbency and signatures of those of its officers
authorized to act with respect to this Agreement and each other Credit
Document executed by it,
upon which certificate each Lender may conclusively rely until it shall have
received a further certificate of the Secretary or an Assistant Secretary of a
Borrower canceling or amending such prior certificate.
SECTION V.1.3. Delivery of Notes. The Administrative Agent shall have
received the Notes duly executed and delivered by the Borrowers.
SECTION V.1.4. Effectiveness of Fourth Amendment to Amended and
Restated Credit Agreement. That certain Fourth Amendment dated as of April 23,
1999, to the Amended and Restated Credit Agreement dated as of September 30,
1994 of the Borrowers shall have been executed and the conditions precedent to
its effectiveness shall have been satisfied.
SECTION V.1.5. Material Adverse Change. Except as disclosed in Item
5.1.5/6.6 ("Potential MACs") of the Disclosure Schedule, there shall have
occurred no material adverse change in the consolidated condition (financial or
otherwise), business, operations, properties, performance or prospects of the
Parent and its Subsidiaries since September 30, 1998 taken as a whole.
SECTION V.1.6. Opinion of Counsel. The Administrative Agent shall have
received an opinion, dated the Effective Date and addressed to the
Administrative Agent and all Lenders, from counsel to the Borrowers, who shall
be reasonably satisfactory to the Administrative Agent, covering the matters set
forth in Exhibit E and such other matters as the Administrative Agent shall
reasonably deem appropriate.
SECTION V.1.7. Closing Fees, Expenses, etc. The Administrative Agent
shall have received for the account of the Administrative Agent or for the
account of each Lender, as the case may be, all fees, costs and expenses due and
payable pursuant to Sections 3.3 and 10.3, if then invoiced.
SECTION V.2. All Borrowings.. The obligation of each Lender to fund any
Loan on the occasion of any Borrowing (including the initial Borrowing) shall be
subject to the satisfaction of each of the conditions precedent set forth in
this Section 5.2.
Exhibit 10(f) Page 24
Both before and after giving effect to any Borrowing and the
application of the proceeds thereof (but, if any Default of the nature referred
to in Section 8.1.5 shall have occurred with respect to any other Indebtedness,
without giving effect to the application, directly or indirectly, of the
proceeds thereof, unless the proceeds of such Borrowing are applied to pay such
other Indebtedness in full) the following statements shall be true and correct:
(a the representations and warranties set forth in Article VI
shall be true and correct in all material respects with the same effect
as if then made (unless stated to relate solely to an earlier date, in
which case such representations and warranties shall be true and
correct as of such earlier date); and
(b no Default shall have then occurred and be continuing.
SECTION V.3. Borrowing Request. The Administrative Agent shall have
received a Borrowing Request for such Borrowing. Each of the delivery of a
Borrowing Request and the acceptance by the Borrower of the proceeds of such
Borrowing shall constitute a representation and warranty by the Borrowers that
on the date of such Borrowing (both immediately before and after giving effect
to such Borrowing and the application of the proceeds thereof) the statements
made in Section 5.2.1 are true and correct.
SECTION V.4. Satisfactory Legal Form. All documents executed or
submitted pursuant to this Article V in respect of such Borrowing shall be
reasonably satisfactory in form and substance to the Administrative Agent and,
as to legal matters, its counsel; and the Administrative Agent and its counsel
shall have received all information, approvals, opinions, documents or
instruments as the Administrative Agent, including any Lender through the
Administrative Agent, or its counsel may reasonably request with respect to any
proposed Borrowing hereunder.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders and the Administrative Agent to enter into
this Agreement and to make Loans hereunder, the Borrowers represent and warrant
unto the Administrative Agent and each Lender as set forth in this Article VI.
SECTION VI.1. Organization, etc. The Parent and each of its Significant
Subsidiaries is a corporation validly organized and existing and in good
standing under the laws of the State of its incorporation, is duly qualified to
do business and is in good standing as a foreign corporation in each
Exhibit 10(f) Page 25
jurisdiction where the nature of its business requires such qualification, and
has full power and authority and holds all requisite governmental licenses,
permits and other approvals to enter into and perform its Obligations under this
Agreement and each other Credit Document and to own and hold under lease its
property and to conduct its business substantially as currently conducted by it,
except where the failure to be so qualified or hold any such license, permit or
approval, singly or in the aggregate, would not have a Materially Adverse
Effect.
SECTION VI.2. Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by each of the Borrowers of this Agreement and each
other Credit Document executed or to be executed by it are within each
Borrower's corporate powers, have been duly authorized by all necessary
corporate action, and do not:
(a contravene the Organic Documents of the Borrowers;
(b constitute a breach or default under any contractual
restriction or violate or contravene any law or governmental regulation
or court decree or order binding on or affecting the Borrowers which
individually or in the aggregate does or could reasonably be expected
to have a Materially Adverse Effect, except as identified in Item 6.2
("Potential Contravention") of the Disclosure Schedule; or
(c result in, or require the creation or imposition of, any
Lien on any of the Borrowers' properties.
SECTION VI.3. Government Approval, Regulation, etc. No authorization or
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body or other Person is required for the due execution,
delivery or performance by the Borrowers of this Agreement or any other Credit
Document. Neither the Parent nor any of its Subsidiaries is an "investment
company" within the meaning of the Investment Company Act of 1940. Neither the
Parent nor any of its Subsidiaries is a "holding company" or a "subsidiary
company" of a "holding company" or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company" within the meaning of the Public
Utility Holding Company Act of 1935.
SECTION VI.4. Validity, etc. This Agreement constitutes, and each other
Credit Document executed by the Borrowers will, on the due execution and
delivery thereof, constitute, the legal, valid and binding obligations of the
Borrowers enforceable in accordance with their respective terms.
SECTION VI.5. Financial Information. (a) The audited consolidated
balance sheets of the Parent and its Subsidiaries as at September 30, 1998, and
the related audited consolidated statements of earnings and cash flow of the
Parent and its Subsidiaries, copies of which have been furnished to the
Administrative Agent and each Lender, have been prepared in accordance with GAAP
consistently applied, and present fairly the consolidated financial condition of
Exhibit 10(f) Page 26
the corporations covered thereby as at the dates thereof and the results of
their operations for the periods then ended.
(b The unaudited condensed consolidated balance sheets of the Parent
and its Subsidiaries as at December 31, 1998, and related condensed consolidated
statements of earnings and cash flow of the Parent and its Subsidiaries, copies
of which have been furnished to the Administrative Agent and each Lender, have
been prepared in accordance with GAAP consistently applied, and, subject to
usual and customary annual audit adjustments, present fairly the consolidated
financial condition of the corporations covered thereby as at the dates thereof
and the results of their operations for the periods then ended.
SECTION VI.6. No Material Adverse Change. Since September 30, 1998,
there has been no material adverse change in the consolidated condition
(financial or otherwise), operations, business, properties, performance or
prospects of the Parent and its Subsidiaries taken as a whole.
SECTION VI.7. Litigation, Labor Controversies, etc. There is no pending
or, to the knowledge of the Borrowers, threatened litigation, action,
proceeding, or labor controversy affecting the Parent or any of its
Subsidiaries, or any of their respective properties, businesses, assets or
revenues, which has resulted in, or could reasonably be expected to result in, a
Materially Adverse Effect or which purports to affect the legality, validity or
enforceability of this Agreement or any other Credit Document, except as
disclosed in Item 6.7 ("Litigation") of the Disclosure Schedule.
SECTION VI.8. Subsidiaries. The Parent has no Subsidiaries, except
those Subsidiaries:
(a which are identified in Item 6.8 ("Existing Subsidiaries")
of the Disclosure Schedule; or
(b which have been organized after the date hereof or which
were permitted to be acquired pursuant to and in accordance with
Section 7.2.4.
SECTION VI.9. Compliance with Law. Without limiting Section 6.2, the
Parent and each of its Significant Subsidiaries is in compliance with Applicable
Law, except where such non-compliance, singly or in the aggregate, does not and
could not reasonably be expected to result in a Materially Adverse Effect.
SECTION VI.10. Ownership of Properties. The Parent and each of its
Significant Subsidiaries owns good and marketable title to all of its material
properties and assets, real and personal, tangible and intangible, of any nature
whatsoever (including patents, trademarks, trade names, service marks and
copyrights), free and clear of all Liens, charges or claims (including
infringement claims with respect to patents, trademarks, copyrights and the
like), except as permitted pursuant to Section 7.2.2 and where such charges,
Exhibit 10(f) Page 27
claims or infringement do not and could not reasonably be expected to result in
a Materially Adverse Effect.
SECTION VI.11. Taxes. The Parent and each of its Subsidiaries has filed
all material tax returns and reports required by law to have been filed by it
and has paid all material taxes and governmental charges thereby shown to be
owing, except any such taxes or charges which are being diligently contested in
good faith by appropriate proceedings and for which adequate reserves in
accordance with GAAP shall have been set aside on its books.
SECTION VI.12. Pension and Welfare Plans. During the
twelve-consecutive-month period prior to the date of the execution and delivery
of this Agreement and prior to the date of any Borrowing hereunder, no steps
have been taken by the PBGC to terminate any Pension Plan, and no contribution
failure has occurred with respect to any Pension Plan sufficient to give rise to
a Lien under section 302(f) of ERISA. No condition exists or event or
transaction has occurred with respect to any Pension Plan which might result in
the incurrence by the Parent or any member of the Controlled Group of any
material liability, fine or penalty. Except as disclosed in Item 6.12 ("Employee
Benefit Plans") of the Disclosure Schedule, neither the Parent nor any member of
the Controlled Group has any contingent liability with respect to any
post-retirement benefit under a Welfare Plan that has or could reasonably be
expected to have a Materially Adverse Effect, other than liability for
continuation coverage described in Part 6 of Title I of ERISA.
SECTION VI.13. Environmental Warranties. Except as set forth in Item
6.13 ("Environmental Matters") of the Disclosure Schedule:
(a all facilities and property (including underlying
groundwater) owned or leased by the Parent or any of its Subsidiaries
have been, and continue to be, owned or leased by the Parent and its
Subsidiaries in compliance with all Environmental Laws, except where
such non-compliance, singly or in the aggregate, does not and could not
reasonably be expected to result in a Materially Adverse Effect;
(b there have been no past, and there are no pending or, to
the knowledge of the Parent, threatened
(i) claims, complaints, notices or requests for
information received by the Parent or any of its Subsidiaries
with respect to any alleged violation of any Environmental
Law, or
(ii) complaints, notices or inquiries to the Parent
or any of its Subsidiaries regarding potential liability
under any Environmental Law,
which, singly or in the aggregate, have or could reasonably be expected
to have a Materially Adverse Effect;
Exhibit 10(f) Page 28
(c there have been no Releases of Hazardous Materials at, on
or under any property now or previously owned or leased by the Parent
or any of its Subsidiaries that, singly or in the aggregate, have, or
could reasonably be expected to have, a Materially Adverse Effect;
(d the Parent and its Subsidiaries have been issued and are in
compliance with all permits, certificates, approvals, licenses and
other authorizations relating to environmental matters and necessary or
desirable for their businesses, except where such non-compliance,
singly or in the aggregate, does not and could not reasonably be
expected to result in a Materially Adverse Effect;
(e no property now owned or leased, or, to the best knowledge
of the Parent and its Subsidiaries, previously owned or leased, by the
Parent or any of its Subsidiaries is listed or, to the knowledge of the
Borrowers, proposed for listing (with respect to owned property only)
on the National Priorities List pursuant to CERCLA, on the CERCLIS or
on any similar state list of sites requiring investigation or clean-up,
and neither the Parent nor any of its Subsidiaries has received any
notice or other communication that any property previously owned or
leased by the Parent or any of its Subsidiaries is listed or proposed
for listing on any such list;
(f there are no underground storage tanks, active or
abandoned, including petroleum storage tanks, on or under any property
now or previously owned or leased by the Parent or any of its
Subsidiaries that, singly or in the aggregate, have, or could
reasonably be expected to have, a Materially Adverse Effect;
(g neither the Parent nor any Subsidiary of the Parent has
directly transported or directly arranged for the transportation of any
Hazardous Material to any location which is listed or, to the knowledge
of the Parent, proposed for listing on the National Priorities List
pursuant to CERCLA, on the CERCLIS or on any similar state list or
which is the subject of Federal, state or local enforcement actions or
other investigations which may lead to claims against the Parent or
such Subsidiary thereof for any remedial work, damage to natural
resources or personal injury, including claims under CERCLA, which,
singly or in the aggregate, have or could reasonably be expected to
have a Materially Adverse Effect;
(h there are no polychlorinated biphenyls or friable asbestos
present at any property now or previously owned or leased by the Parent
or any Subsidiary that, singly or in the aggregate, have or could
reasonably be expected to have a Materially Adverse Effect; and
(i no conditions exist at, on or under any property now or
previously owned or leased by the Parent or any of its Subsidiaries
which, with the passage of time, or the giving of notice or both, would
give rise to liability under any Environmental Law that, singly or in
Exhibit 10(f) Page 29
the aggregate, have or may reasonably be expected to have a Materially
Adverse Effect.
SECTION VI.14. Regulations U and X. The Parent is not engaged in the
business of extending credit for the purpose of purchasing or carrying Margin
Stock, and no proceeds of any Loans will be used in violation of, or would be
inconsistent with, F.R.S. Board Regulation U or X. Terms for which meanings are
provided in F.R.S. Board Regulation U or X or any regulations substituted
therefor, as from time to time in effect, are used in this Section 6.14 with
such meanings.
SECTION VI.15. Accuracy of Information. All factual information
heretofore or contemporaneously furnished by or on behalf of the Borrowers in
writing to the Administrative Agent or any Lender for purposes of or in
connection with this Agreement or any transaction contemplated hereby is, and
all other such factual information hereafter furnished by or on behalf of the
Borrowers to the Administrative Agent or any Lender will be, true and accurate
in every material respect on the date as of which such information is dated or
certified and as of the date of execution and delivery of this Agreement by the
Administrative Agent and such Lender, and such information is not, or shall not
be, as the case may be, when taken as a whole, incomplete by omitting to state
any material fact necessary to make such information not misleading.
SECTION VI.16. Year 2000 Compliance. The Parent is (i) developing a
review and assessment of all areas within its and each of its Subsidiaries'
business and operations that could be adversely affected by the "Year 2000
Problem" (that is, the inability of certain computer applications to recognize
correctly and perform date-sensitive functions involving certain dates prior to
and any date after December 31, 1999), (ii) developing a plan and timeline for
addressing the Year 2000 Problem on a timely basis, and (iii) to date,
implementing that plan in accordance with that timetable. The Parent reasonably
believes that all computer applications that are material to its or any of its
Subsidiaries' business and operations will on a timely basis be able to perform
properly date-sensitive functions for all dates before and after January 1, 2000
(that is, be "Year 2000 Compliant").
ARTICLE VII
COVENANTS
SECTION VII.1. Affirmative Covenants. The Borrowers agree with the
Administrative Agent and each Lender that, until all Commitments have terminated
and all Obligations have been paid and performed in full, the Borrowers will
perform the obligations set forth in this Section 7.1.
SECTION VII.1.1. Financial Information, Reports, Notices, etc. The
Borrowers will furnish, or will cause to be furnished, to each Lender and the
Administrative Agent copies of the following financial statements, reports,
notices and information:
Exhibit 10(f) Page 30
(a as soon as available and in any event within 45 days after
the end of each of the first three Fiscal Quarters of each Fiscal Year
of the Parent, the consolidated balance sheet of the Parent and its
Subsidiaries as of the end of such Fiscal Quarter and the consolidated
statements of earnings and cash flow of the Parent and its Subsidiaries
for such Fiscal Quarter and for the period commencing at the end of the
previous Fiscal Quarter and ending with the end of such Fiscal Quarter,
all reported on in a manner acceptable to the Securities and Exchange
Commission and certified by the chief financial Authorized Officer of
the Parent, which statements shall commencing with the Fiscal Quarter
ending December 31, 1999, present the results of each of the Parent's
significant operating business segments in accordance with the
Financial Accounting Standard's Board Statement No. 131, and together
with, in the case of the Fiscal Quarter ending June 30, 1999 only,
consolidated financial statements for Bergen Drug and, if it shall then
be a Subsidiary of the Parent, PharMerica;
(b as soon as available and in any event within 90 days after
the end of each Fiscal Year of the Parent, the consolidated balance
sheet of the Parent and its Subsidiaries as of the end of such Fiscal
Year and the consolidated statements of earnings and cash flow of the
Parent and its Subsidiaries for such Fiscal Year, all reported on in a
manner acceptable to the Securities and Exchange Commission and
certified (without any Impermissible Qualification) by Deloitte &
Touche or other independent public accountants acceptable to the
Administrative Agent and the Required Lenders, which statements shall
present the results of each of the Parent's significant operating
business segments in accordance with the Financial Accounting
Standard's Board Statement No.
131;
(c as soon as available and in any event within 45 days after
the end of the first three Fiscal Quarters of each Fiscal Year and
within 90 days after the end of each Fiscal Year, commencing after the
Initial Borrowing Date, a certificate, executed by the chief financial
Authorized Officer of the Parent, showing (in reasonable detail and
with appropriate calculations and computations in all respects
reasonably satisfactory to the Administrative Agent) compliance with
the financial covenants set forth in Section 7.2.3 and stating that
such Authorized Officer is not aware of any Default that has occurred
and is continuing or, if such Authorized Officer is aware of any such
Default, describing such Default and the action, if any, which the
Parent is taking and proposes to take with respect thereto;
(d as soon as possible and in any event within 3 days after
any Responsible Officer of the Parent obtains knowledge of the
occurrence of each Default, a statement of the chief financial
Authorized Officer of the Parent setting forth details of such Default
and the action which the Parent has taken and proposes to take with
respect thereto;
Exhibit 10(f) Page 31
(e as soon as possible and in any event (i) within 3 Business
Days after any Responsible Officer of the Parent obtains knowledge of
the occurrence of any litigation, action, proceeding, or labor
controversy which purports to affect the legality, validity or
enforceability of this Agreement or any other Credit Document, or of
any adverse development therein, notice thereof and, upon the written
request of the Administrative Agent at the direction of the Required
Lenders, copies of all material documentation relating thereto
reasonably required to evaluate such litigation, unless such
litigation, action, proceeding, or labor controversy is covered by
insurance, in which case such notice and documentation is not required,
and (ii) within 45 days after the end of each Fiscal Quarter a report
of the Parent regarding all litigation, actions, proceedings and labor
controversies affecting the Parent or any of its Subsidiaries, or any
of their respective properties, businesses, assets or revenues which
have resulted in, or could reasonably be expected to result in, a
Materially Adverse Effect, and which have not been disclosed in the
reports delivered under clauses (a), (b) and (f) of this Section 7.1.1;
(f promptly after the sending or filing thereof, copies of all
reports which the Parent sends to its securityholders generally, and
all reports, statements, notices and other communications which the
Parent or any of its Subsidiaries files with the Securities and
Exchange Commission or any national securities exchange;
(g immediately upon becoming aware of the institution of any
steps by the Parent or any other Person to terminate any Pension Plan,
or the failure to make a required contribution to any Pension Plan if
such failure is sufficient to give rise to a Lien under section 302(f)
of ERISA, or the taking of any action with respect to a Pension Plan
which could result in the requirement that the Parent furnish a bond or
other security to the PBGC or such Pension Plan, or the occurrence of
any event with respect to any Pension Plan which could result in the
incurrence by the Borrowers of any material liability, fine or penalty,
or any material increase in the contingent liability of the Borrowers
with respect to any post-retirement Welfare Plan benefit, notice
thereof and copies of all documentation relating thereto;
(h to the extent not otherwise required under any of the
preceding clauses of this Section 7.1.1, concurrently when received by
the Borrowers from, or furnished by the Borrowers to, any holder of any
of its Indebtedness, copies of any written communication received by
the Borrowers from, and information furnished by the Borrowers to, any
such holder in respect of any default or alleged default with respect
to such Indebtedness; and
(i such other information respecting the condition or
operations, financial or otherwise, of the Parent or any of its
Subsidiaries as any Lender through the Administrative Agent may from
time to time reasonably request.
Exhibit 10(f) Page 32
SECTION VII.1.2. Compliance with Laws, etc. The Parent will, and will
cause each of its Significant Subsidiaries to, comply with all Applicable Law,
including:
(a the maintenance and preservation of its corporate
existence and qualification as a foreign corporation, except as
otherwise expressly permitted by Section 7.2.4; and
(b the payment, before the same become delinquent, of all
taxes, assessments and governmental charges imposed upon it or upon its
property except to the extent being diligently contested in good faith
by appropriate proceedings and for which adequate reserves in
accordance with GAAP shall have been set aside on its books;
in each such case where such non-compliance, singly or in the aggregate, has
resulted or could be reasonably expected to result in a Materially Adverse
Effect.
SECTION VII.1.3. Maintenance of Properties. The Parent will, and will
cause each of its Significant Subsidiaries to, maintain, preserve, protect and
keep its material properties in good repair, working order and condition, normal
wear and tear and damage by the elements or casualty excepted, and make
necessary and proper repairs, renewals and replacements so that its business
carried on in connection therewith may be properly conducted at all times unless
the Parent determines in good faith that the continued maintenance of any of its
properties is no longer economically desirable.
SECTION VII.1.4. Insurance. The Parent will, and will cause each of its
Subsidiaries to, maintain or cause to be maintained with responsible insurance
companies insurance, including self-insurance in such amounts as is customary in
the case of similar businesses, with respect to its properties and business
against such casualties and contingencies and of such types and in such amounts
as is customary in the case of similar businesses from time to time and, in any
event, as required by any Applicable Law and will, within 90 days after the end
of each Fiscal Year, furnish to each Lender a certificate of an Authorized
Officer of the Parent setting forth the nature and extent of all insurance
maintained by the Parent and its Subsidiaries in accordance with this Section
7.1.4.
SECTION VII.1.5. Books and Records. The Parent will, and will cause
each of its Subsidiaries to, keep books and records which accurately reflect in
all material respects all of its business affairs and transactions and permit
the Administrative Agent and each Lender or any of their respective
representatives, at reasonable times and intervals and, so long as no Default
has occurred and is continuing, upon prior reasonable notice, to visit all of
its offices, to discuss its financial matters with its officers and its
independent public accountant (and the Parent hereby authorizes such independent
public accountant to discuss the Parent's financial matters with each Lender or
its representatives whether or not any representative of the Parent is present)
Exhibit 10(f) Page 33
and to examine (and, at the expense of the Parent, photocopy extracts from) any
of its books or other corporate records; provided that unless a Default has
occurred and is continuing, the Parent will only be required to pay the expenses
of the Administrative Agent for one visit per year. The Parent shall pay any
fees of such independent public accountant incurred in connection with the
Agent's or any Lender's exercise of its rights pursuant to this Section 7.1.5.
SECTION VII.1.6. Environmental Covenant. The Parent will, and will
cause each of its Subsidiaries to,
(a use and operate all of its facilities and properties in
material compliance with all Environmental Laws, keep all necessary
permits, approvals, certificates, licenses and other authorizations
relating to environmental matters in effect and remain in compliance
therewith, and handle all Hazardous Materials in compliance with all
applicable Environmental Laws, except where such non-compliance, singly
or in the aggregate, does not and could not reasonably be expected to
result in a Materially Adverse Effect;
(b promptly notify the Administrative Agent and provide copies
upon receipt of all written claims, complaints, notices or inquiries
relating to the condition of its facilities and properties as they
relate to compliance with or liability under Environmental Laws; and
(c provide such information and certifications which the
Administrative Agent (including any Lender reasonably through the
Administrative Agent) may reasonably request from time to time to
evidence compliance with this Section 7.1.6.
SECTION VII.1.7. Year 2000 Compliance. The Parent will promptly notify
the Administrative Agent in the event the Parent discovers or determines that
any computer application that is material to the business and operations of the
Parent and its Subsidiaries taken as a whole will not be Year 2000 Compliant on
a timely basis.
SECTION VII.1.8. PharMerica Acquisition. As soon as practicable (but in
no event later than 15 days) following the PharMerica Acquisition, the Parent
shall cause PharMerica to execute a Joinder Agreement in substantially the form
of Exhibit H hereto, pursuant to which PharMerica shall be added as a Borrower
under this Agreement. From and after PharMerica's execution of the Joinder
Agreement, except as expressly provided herein, PharMerica shall be deemed to be
a Borrower for all purposes of the Agreement and shall have joint and several
liability for all Obligations. Notwithstanding the foregoing, until the
PharMerica Subordinated Notes have been repaid and PharMerica's obligations
under the PharMerica Indenture terminated, PharMerica's liability as Borrower
under the Senior Credit Facilities shall be limited to the maximum amount
permitted to be borrowed by PharMerica under the PharMerica Indenture, but in no
event less than $325,000,000. PharMerica's liability under the Senior Credit
Facilities shall be apportioned between such facilities based upon the aggregate
outstanding Obligations hereunder and thereunder. For example, if the
outstandings under this Agreement were $500,000,000, the outstandings under the
$400,000,000 Senior Credit Facility were $250,000,000 and the maximum amount
permitted to be borrowed by the terms of the PharMerica Indenture were
$325,000,000, PharMerica's liability under this Agreement would be equal to
Exhibit 10(f) Page 34
$216,666,667 (2/3 of $325,000,000) and PharMerica's liability under the
$400,000,000 Senior Credit Facility would be equal to $108,333,333 (1/3 of
$325,000,000). As soon as practicable following the PharMerica Acquisition, the
Parent shall cause PharMerica to provide the Administrative Agent with such
additional instruments or documents, including, without limitation, opinions of
counsel, certified resolutions, incumbency certificates, third party consents
and other evidences of authority, with respect to PharMerica's obligations under
this Agreement as the Administrative Agent shall reasonably request.
SECTION VII.1.9. Borrowings to Repay PharMerica Credit Agreement.
Repayment of amounts outstanding under the PharMerica Credit Agreement shall be
funded through ratable borrowings under this Agreement and the $400,000,000
Senior Credit Facility, based upon the total commitments available under each of
the Senior Credit Facilities. By way of example, if the Total Commitment Amount
under this Agreement is $600,000,000 and the total commitment amount under the
$400,000,000 Senior Credit Facility is $400,000,000, the borrowings to repay the
PharMerica Credit Agreement shall be made under such facilities in the ratio of
3 to 2.
SECTION VII.1.10. Subsidiary Guaranty. As soon as practicable following
the incurrence by any Subsidiary of the Parent (other than a Borrower) of more
than $50,000,000 of Indebtedness (exclusive of any indebtedness owing to the
Parent or another Subsidiary of the Parent), the Parent shall cause such
Subsidiary to execute a guaranty of the Obligations of the Borrowers hereunder
pursuant to a Guaranty substantially in the form of Exhibit D hereto. In
addition, the Parent shall cause such Subsidiary to provide the Administrative
Agent with such additional instruments or documents, including, without
limitation, opinions of counsel, certified resolutions, incumbency certificates
and other evidences of authority as the Administrative Agent shall reasonably
request.
SECTION VII.2. Negative Covenants. The Borrowers agree with the
Administrative Agent and each Lender that, until all Commitments have terminated
and all Obligations have been paid and performed in full, the Borrowers will
perform the obligations set forth in this Section 7.2.
SECTION VII.2.1. Indebtedness. The Parent will not, and will not permit
any Subsidiary thereof to, create, incur, assume or be or become otherwise
liable for any Indebtedness, except (without duplication) the following:
(a Indebtedness in respect of the Loans and other Obligations;
Exhibit 10(f) Page 35
(b Indebtedness identified in Item 7.2.1(b) ("Ongoing
Indebtedness") of the Disclosure Schedule;
(c Indebtedness identified in Item 7.2.1(c) ("Indebtedness to
be Paid") of the Disclosure Schedule until the date, if any, therein
identified for the payment in full thereof or, if no such date is
therein identified, the Effective Date;
(d secured Indebtedness to finance or refinance the
acquisition of items of equipment or distribution facilities (including
related real property and improvements thereto) in the ordinary course
of business in a principal amount not exceeding an amount equal to the
total acquisition cost thereof;
(e unsecured Indebtedness in the ordinary course of business
(other than Indebtedness for or in respect of borrowed money),
including trade credit on normal and customary terms and Hedging
Obligations;
(f Indebtedness in respect of Capitalized Lease Liabilities;
(g secured Indebtedness of any Person acquired under Section
7.2.4 (other than any such Indebtedness incurred in anticipation of
such acquisition) that cannot then be refinanced without material
premium or other cost and after consummation of the PharMerica
Acquisition, the PharMerica Subordinated Notes;
(h Indebtedness consisting of recourse obligations in respect
of any Permitted Receivables Transaction;
(i intercompany Indebtedness and, without duplication, all
Indebtedness of the Parent under its subordinated debt securities
issued to the Trusts in connection with the Guaranteed Preferred
Securities;
(j secured Indebtedness in the ordinary course of business in
an aggregate principal amount at any time, when added to then
outstanding Indebtedness of the kind described in clause (d) or (g),
not to exceed an amount equal to 10% of the Net Worth of the Parent at
the end of the most recently ended Fiscal Quarter;
(k unsecured Indebtedness under one or more credit facilities
in an aggregate principal amount at any time not exceeding 125% of the
aggregate commitments under the Senior Credit Facilities;
(l secured Indebtedness under Reverse Repos in an aggregate
principal amount at any time not exceeding $50,000,000;
(m Indebtedness in respect of letters of credit (other than
letters of credit supporting Indebtedness for or in respect of borrowed
money) issued for the account of the Borrower or any Subsidiary in the
ordinary course of business;
Exhibit 10(f) Page 36
(n Indebtedness in respect of commercial paper issued and sold
in the commercial paper market in an aggregate principal or face amount
not to exceed the unused availability under the Senior Credit
Facilities; and
(o other unsecured Indebtedness (including unsecured
Indebtedness incurred by any Person acquired under Section 7.2.4) in an
aggregate principal amount at any time, if (i) after giving pro forma
effect to such Indebtedness as if such Indebtedness and all other
Indebtedness incurred since the first day of the most recently ended
12-month period for which the Administrative Agent has received
financial statements under Section 7.1.1 had been incurred, and
proceeds thereof had been applied, on such first day, and (ii) in the
case of the acquisition of any Person after giving pro forma effect to
such acquisition as if such acquisition had occurred on the first day
of the most recently ended 12-month period for which the Administrative
Agent has received financial statements under Section 7.1.1, there
would not be a Default under Section 7.2.3 as of the end of such
12-month period;provided that Indebtedness permitted under clauses (d)
and (g) of this Section 7.2.1 shall not exceed $40,000,000 in the
aggregate outstanding at any time.
SECTION VII.2.2. Liens. The Parent will not, and will not permit any of
its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any
of its property, revenues or assets, whether now owned or hereafter acquired,
except:
(a Liens securing payment of the Obligations;
(b Liens outstanding on the date hereof as set forth
in Item 7.2.2(b) ("Existing Liens") of the Disclosure Schedule;
(c Liens granted to secure payment of Indebtedness (x) of the
kind described in Section 7.2.1(d) covering only those items of
equipment or distribution facilities acquired, (y) of the kind
described in Section 7.2.1(g) or (l) covering only those properties
acquired or to be repurchased, as the case may be, or (z) of the kind
described in Section 7.2.1(j);
(d Liens incurred or arising in the ordinary course of
business (other than securing Indebtedness for or in respect of
borrowed money), which, singly or in the aggregate, do not and could
not be reasonably expected to result in a Materially Adverse Effect;
(e judgment Liens in respect of any judgment or order for the
payment of money of not greater than $25,000,000 or, if greater than
$25,000,000, in existence less than 20 days after the entry thereof or
with respect to which execution has been stayed or the payment of which
Exhibit 10(f) Page 37
is covered in full by insurance maintained with responsible insurance
companies which have acknowledged such coverage thereof in writing;
(f Liens arising in connection with any Permitted
Receivables Transaction;
(g Liens arising in connection with any Capitalized Lease
Liabilities; and
(h Liens arising in connection with taxes, fees, assessments
and other governmental charges which are not due or which are being
contested in good faith and for which adequate reserves have been
established.
SECTION VII.2.3. Financial Condition. The Parent will not permit on or
after the Initial Borrowing Date:
(a its Net Worth on the last day of any Fiscal Quarter to be
less than the Minimum Net Worth Target;
(b its Leverage Ratio on the last day of any Fiscal Quarter
to be more than 55%; and
(c its Interest Coverage Ratio on the last day of any Fiscal
Quarter for the four (4) consecutive Fiscal Quarters then ended to be
less than 3.0:1.0.
SECTION VII.2.4. Consolidation, Merger, etc. The Parent will not, and
will not permit any of its Significant Subsidiaries to, liquidate or dissolve,
consolidate with, or merge into or with, any other corporation, or purchase or
otherwise acquire all or substantially all of the stock or assets of any Person
(or of any division thereof), or sell, lease or otherwise dispose of all or any
of the assets of the Parent or of all or any of the stock or assets of any
Subsidiary of the Parent, except that, so long as no Default has occurred and is
continuing or would occur after giving effect thereto, (v) the Parent may merge
with any of its Subsidiaries so long as the survivor thereof is the Parent, (w)
any Subsidiary of the Parent may merge into or with any other Subsidiary of the
Parent, (x) the Parent and its Subsidiaries may acquire any Person by merger if
the assets of such Person represent less than 2% of the Parent's consolidated
assets at the time of such acquisition, (y) the Parent and its Subsidiaries may
make Permitted Asset Sales and any Permitted Receivables Transaction and (z) the
Parent or any of its Subsidiaries may liquidate or dissolve voluntarily into,
merge with and into, or purchase all or substantially all of the assets or
capital stock or equivalent equity interest of any Person, or acquire such
Person by merger, if after giving pro forma effect to such transaction as if
such transaction had occurred on the first day of the most recently ended
Exhibit 10(f) Page 38
12-month period for which the Administrative Agent has received financial
statements under Section 7.1.1 (including, without limitation, assuming that any
Indebtedness of such Person had been incurred as of the first day of such
12-month period), there would not be a Default under Section 7.2.3 as of the end
of such 12-month period and, in the case of any merger of the Parent, if it is
the survivor thereof and, in the case of any merger of any other Borrower, if
the survivor thereof is the Parent or a wholly-owned Subsidiary of the Parent.
SECTION VII.2.5. Transactions with Affiliates. The Parent will not, and
will not permit any of its Subsidiaries to, enter into, or cause, suffer or
permit to exist any arrangement or contract with any of its other Affiliates
unless such arrangement or contract is fair and equitable to the Parent or such
Subsidiary and is an arrangement or contract of the kind which would be entered
into by a prudent Person in the position of the Parent or such Subsidiary with a
Person which is not one of its Affiliates; provided that the Parent may enter
into, or cause, suffer or permit to exist any arrangement or contract regarding
executive compensation (including executive loans) or stock repurchases if such
arrangement or contract shall have been previously approved by a majority of
disinterested directors of the Parent.
SECTION VII.2.6. Business Activities. The Parent will not, and will not
permit any of its Subsidiaries to, engage in any business activity, except those
described in the first recital and other activities that are related or allied
with the healthcare industry.
SECTION VII.2.7. Margin Stock. The Borrowers will not, and will not
permit any of their Subsidiaries to, acquire any Margin Stock except to the
extent that the aggregate value of all Margin Stock held by the Borrowers or any
such Subsidiary does not exceed fifteen percent of the value of all assets of
the Borrowers or such Subsidiary that are subject to the restrictions set forth
in Section 7.2.2. For purposes of this Section 7.2.7, the term "Margin Stock"
shall have the meaning ascribed to such term in F.R.S. Board Regulation U, as
from time to time in effect.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION VIII.1. Events of Default. Each of the following events or
occurrences described in this Section 8.1 shall constitute an "Event of
Default".
SECTION VIII.1.1. Non-Payment of Obligations. Any Borrower shall
default in the payment or prepayment when due of any principal of any Loan, any
Borrower shall default (and such default shall continue unremedied for a period
of 3 Business Days) in the payment when due of any interest on any Loan, or any
Borrower shall default (and such default shall continue unremedied for a period
of 5 Business Days) in the payment when due of any commitment fee or of any
other Obligation.
SECTION VIII.1.2. Breach of Warranty. Any representation or warranty of
any Borrower made or deemed to be made hereunder or in any other Credit Document
Exhibit 10(f) Page 39
or any other writing or certificate furnished by or on behalf of any Borrower to
the Administrative Agent or any Lender for the purposes of or in connection with
this Agreement or any such other Credit Document (including any certificates
delivered pursuant to Article V) is or shall be incorrect when made in any
material respect.
SECTION VIII.1.3. Non-Performance of Certain Covenants and Obligations.
Any Borrower shall default in the due performance and observance of any of its
obligations under Section 4.11, 7.1.1(d) or 7.2.
SECTION VIII.1.4. Non-Performance of Other Covenants and Obligations.
Any Borrower shall default in the due performance and observance of any other
agreement contained herein or in any other Credit Document, and such default
shall continue unremedied for a period of 10 Business Days after the earlier of
(a) the date on which any Responsible Officer of such Borrower became aware of
such default, and (b) notice thereof shall have been given to such Borrower by
the Administrative Agent or any Lender.
SECTION VIII.1.5. Default on Other Indebtedness. A default shall occur
in the payment when due (subject to any applicable grace period), whether by
acceleration or otherwise, of any amount in respect of any Indebtedness (other
than Indebtedness described in Section 8.1.1) of the Parent or any of its
Subsidiaries in an aggregate principal amount of more than $25,000,000, or a
default shall occur in the performance or observance of any obligation or
condition with respect to such Indebtedness in an aggregate principal amount of
more than $25,000,000 if the effect of such default is to accelerate the
maturity of any such Indebtedness or such default shall continue unremedied for
any applicable period of time sufficient to permit the holder or holders of such
Indebtedness, or any trustee or administrative agent for such holders, to cause
such Indebtedness to become due and payable prior to its expressed maturity.
SECTION VIII.1.6. Judgments. Any judgment or order for the payment of
money in excess of $25,000,000 shall be rendered against the Parent or any of
its Subsidiaries and shall remain unsatisfied and either:
(a) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order and shall not have been stayed; or
(b) there shall be any period of 20 consecutive days during
which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect.
SECTION VIII.1.7. Pension Plans. Any of the following events shall
occur with respect to any Pension Plan:
(a) the institution of any steps by the Parent, any member of
its Controlled Group or any other Person to terminate a Pension Plan
if, as a result of such termination, the Parent or any such member
could be required to make a contribution to such Pension Plan, or could
Exhibit 10(f) Page 40
reasonably expect to incur a liability or obligation to such Pension
Plan, which would or could be reasonably expected to result in a
Materially Adverse Effect; or
(b) a contribution failure occurs with respect to any Pension
Plan sufficient to give rise to a Lien under section 302(f) of ERISA.
SECTION VIII.1.8. Bankruptcy, Insolvency, etc. Any Borrower or any
Significant Subsidiary of the Parent shall:
(a) become insolvent or generally fail to pay, or admit in
writing its inability or unwillingness to pay, debts as they become
due;
(b) apply for, consent to, or acquiesce in, the appointment of
a trustee, receiver, sequestrator or other custodian for any Borrower
or any of its Subsidiaries or any property of any thereof, or make a
general assignment for the benefit of creditors;
(c) in the absence of such application, consent or
acquiescence, permit or suffer to exist the appointment of a trustee,
receiver, sequestrator or other custodian for any Borrower or any of
its Subsidiaries or for a substantial part of the property of any
thereof, and such trustee, receiver, sequestrator or other custodian
shall not be discharged within 60 days; provided that the Parent and
each Subsidiary hereby expressly authorizes the Administrative Agent
and each Lender to appear in any court conducting any relevant
proceeding during such 60-day period to preserve, protect and defend
their rights under the Credit Documents;
(d) initiate, permit or suffer to exist the commencement of
any bankruptcy, reorganization, debt arrangement or other case or
proceeding under any bankruptcy or insolvency law, or any dissolution,
winding up or liquidation proceeding, in respect of the Parent or any
of its Subsidiaries, and, if any such case or proceeding is not
commenced by the Parent or such Subsidiary, such case or proceeding
shall be consented to or acquiesced in by the Parent or such Subsidiary
or shall result in the entry of an order for relief or shall remain for
60 days undismissed; provided that the Parent and each Subsidiary
hereby expressly authorizes the Administrative Agent and each Lender to
appear in any court conducting any such case or proceeding during such
60-day period to preserve, protect and defend their rights under the
Credit Documents; or
(e) take any corporate action authorizing, or in furtherance
of, any of the foregoing.
SECTION VIII.1.9. Change of Control. An Impermissible Change of Control
shall occur.
Exhibit 10(f) Page 41
SECTION VIII.1.10. Credit Document Ceases to Bind. Any Credit Document
ceases to be the legal, valid and binding obligation of any Borrower enforceable
against such Borrower in accordance with its terms, for any reason.
SECTION VIII.2. Action if Bankruptcy. If any Event of Default described
in Section 8.1.8 shall occur with respect to the Parent or any Subsidiary, the
Commitments (if not theretofore terminated) shall automatically terminate, the
Stated Maturity Date shall automatically be accelerated and the outstanding
principal amount of all outstanding Loans and all other Obligations shall
automatically be and become immediately due and payable, without notice or
demand.
SECTION VIII.3. Action if Other Event of Default. If any Event of
Default (other than any Event of Default described in Section 8.1.8 with respect
to the Parent or any Subsidiary thereof) shall occur for any reason, whether
voluntary or involuntary, and be continuing, the Administrative Agent, upon the
direction of the Required Lenders, shall by notice to the Borrowers declare all
or any portion of the outstanding principal amount of the Loans and other
Obligations to be due and payable, the Stated Maturity Date to be accelerated
and/or the Commitments (if not theretofore terminated) to be terminated,
whereupon the full unpaid amount of such Loans and other Obligations which shall
be so declared due and payable shall be and become immediately due and payable,
and/or, as the case may be, the Commitments shall terminate, without further
notice, demand or presentment, which the Borrowers hereby waive to the fullest
extent permitted by Applicable Law.
SECTION VIII.4. Enforcement. Upon the occurrence of and during the
continuance of any Event of Default, the Administrative Agent may enforce this
Agreement and the other Credit Documents independently as to each Borrower and
independently of any other remedy or security the Administrative Agent at any
time may have or hold in connection with the Obligations, and it shall not be
necessary for the Administrative Agent to marshal assets in favor of any of the
Borrowers or any other Person or to proceed upon or against and/or exhaust any
other security or remedy before proceeding to enforce this Agreement and the
other Credit Documents. Each of the Borrowers expressly waives any right to
require the Administrative Agent to marshal assets in favor of either Borrower
or any other Person or to proceed against any other Person or any collateral
provided by any other Person, and agrees that the Administrative Agent may
proceed against any Persons and/or collateral in such order as it shall
determine in its sole and absolute discretion. The Administrative Agent may file
a separate action or actions against either Borrower, whether action is brought
or prosecuted with respect to any other security or against any other Person, or
whether any other Person is joined in any such action or actions. Each of the
Borrowers agrees that the Administrative Agent and the other Borrowers may deal
with each other in connection with this Agreement or otherwise, or alter any
contracts or agreements now or hereafter existing between them in any manner
whatsoever.
Exhibit 10(f) Page 42
ARTICLE IX
THE Administrative Agent
SECTION IX.1. Each Lender hereby appoints Bank of America as its
Administrative Agent under and for purposes of this Agreement and each other
Credit Document. Each Lender authorizes the Administrative Agent to act on
behalf of such Lender under this Agreement and each other Credit Document and,
in the absence of other written instructions from the Required Lenders received
from time to time by the Administrative Agent (with respect to which the
Administrative Agent agrees that it will comply, except as otherwise provided in
this Section 9.1 or as otherwise advised by counsel), to exercise such powers
hereunder and thereunder as are specifically delegated to or required of the
Administrative Agent by the terms hereof and thereof, together with such powers
as may be reasonably incidental thereto. Each Lender hereby indemnifies (which
indemnity shall survive any termination of this Agreement) the Administrative
Agent, pro rata according to such Lender's Percentage, from and against any and
all liabilities, obligations, losses, damages, claims, costs or expenses of any
kind or nature whatsoever which may at any time be imposed on, incurred by, or
asserted against, the Administrative Agent in any way relating to or arising out
of this Agreement and any other Credit Document, including reasonable attorneys'
fees, and as to which the Administrative Agent is not reimbursed by the Parent
and the Borrowers; provided, that no Lender shall be required to reimburse the
Agent for its gross negligence or willful misconduct. The Administrative Agent
shall not be required to take any action hereunder or under any other Credit
Document, or to prosecute or defend any suit in respect of this Agreement or any
other Credit Document, unless it is indemnified hereunder to its satisfaction.
If any indemnity in favor of the Administrative Agent shall be or become, in the
determination of the Administrative Agent inadequate, the Administrative Agent
may call for additional indemnification from the Lenders and cease to do the
acts indemnified against hereunder until such additional indemnity is given.
Notwithstanding any provision to the contrary contained elsewhere in this
Agreement or in any other Loan Document, the Administrative Agent shall not have
any duties or responsibilities, except those expressly set forth herein, nor
shall the Administrative Agent have or be deemed to have any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.
SECTION IX.2. Funding Reliance, etc. Unless the Administrative Agent
shall have been notified by telephone, confirmed in writing, by any Lender by
3:00 p.m., California time, on the day prior to a Borrowing that such Lender
will not make available the amount which would constitute its Percentage of such
Borrowing on the date specified therefor, the Administrative Agent may assume
that such Lender has made such amount available to the Administrative Agent and,
in reliance upon such assumption, make available to the Borrowers a
corresponding amount. If and to the extent that such Lender shall not have made
such amount available to the Administrative Agent, (a) such Lender agrees to
Exhibit 10(f) Page 43
repay the Administrative Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date the Administrative
Agent made such amount available to the Borrowers to the date such amount is
repaid to the Administrative Agent, at an interest rate equal for the first 3
days of such period to the Federal Funds Rate from time to time in effect and
thereafter at the interest rate applicable at the time to Loans comprising such
Borrowing, together with such other compensatory amounts as may be required to
be paid by such Lender to the Administrative Agent under the Rules for Interbank
Cooperation of the Council on International Banking or the Clearinghouse
Compensation Committee, as the case may be, as in effect from time to time and
(b) the Borrowers agree to repay to the Administrative Agent forthwith upon
demand such corresponding amount together with interest thereon, for each day
from the date the Administrative Agent made such amount available to the
Borrowers to the date such amount is repaid to the Administrative Agent, at the
interest rate applicable at the time to Loans comprising such Borrowing.
SECTION IX.3. Exculpation. Neither the Administrative Agent,
Syndication Agent or Documentation Agent nor any of their respective directors,
officers, employees or agents shall be liable to any Lender for any action taken
or omitted to be taken by them under this Agreement or any other Credit
Document, or in connection herewith or therewith, except for their own willful
misconduct or gross negligence, nor responsible for any recitals or warranties
herein or therein, nor for the effectiveness, enforceability, validity or due
execution of this Agreement or any other Credit Document nor to make any inquiry
respecting the performance by the Borrowers of their respective obligations
hereunder or under any other Credit Document. Any such inquiry which may be made
by the Administrative Agent, Syndication Agent or Documentation Agent shall not
obligate them to make any further inquiry or to take any action. The
Administrative Agent, Syndication Agent or Documentation Agent shall be entitled
to rely upon advice of counsel concerning legal matters and upon any notice,
consent, certificate, statement or writing which the Administrative Agent
believes in good faith to be genuine and to have been presented by a proper
Person.
SECTION IX.4. Successor. The Administrative Agent may resign as such at
any time upon at least 30 days' prior notice to the Borrowers and all Lenders,
such resignation to be effective upon the appointment of a successor
Administrative Agent as provided below. If the Administrative Agent at any time
shall resign, the Required Lenders may appoint another Lender, which (so long as
no Default has occurred and is continuing) shall be reasonably acceptable to the
Borrowers, as a successor Administrative Agent which shall thereupon become the
Administrative Agent hereunder. If no successor Administrative Agent shall have
been so appointed by the Required Lenders, and shall have accepted such
appointment, within 30 days after the retiring Agent's giving notice of
resignation, then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent, which (so long as no Default
has occurred and is continuing) shall be reasonably acceptable to the Borrowers,
and which shall be one of the Lenders or a commercial banking institution
organized under the laws of the U.S. (or any State thereof) or a U.S. branch or
Exhibit 10(f) Page 44
agency of a commercial banking institution, and having a combined capital and
surplus of at least $500,000,000. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall be entitled to receive from the retiring
Administrative Agent such documents of transfer and assignment as such successor
Administrative Agent may reasonably request, and shall thereupon succeed to and
become vested with all rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations under this Agreement. After any retiring Agent's
resignation hereunder as the Administrative Agent, the provisions of:
(a) this Article IX shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was the
Administrative Agent under this Agreement; and
(b) Sections 10.3 and 10.4 shall continue to inure to its
benefit.
SECTION IX.5. Loans by Administrative Agent. The Administrative Agent
shall have the same rights and powers with respect to the Loans made by it or
any of its Affiliates as any other Lender and may exercise the same as if it
were not the Administrative Agent. The Administrative Agent and its Affiliates
may accept deposits from, lend money to, and generally engage in any kind of
business with Borrowers or any Subsidiary or Affiliate thereof as if Bank of
America was not the Administrative Agent hereunder.
SECTION IX.6. Credit Decisions. Each Lender acknowledges that it has,
independently of the Administrative Agent and each other Lender, and based on
such Lender's review of the financial information of the Borrowers, this
Agreement, the other Credit Documents (the terms and provisions of which being
satisfactory to such Lender) and such other documents, information and
investigations as such Lender has deemed appropriate, made its own credit
decision to extend its Commitment. Each Lender also acknowledges that it will,
independently of the Administrative Agent and each other Lender, and based on
such other documents, information and investigations as it shall deem
appropriate at any time, continue to make its own credit decisions as to
exercising or not exercising from time to time any rights and privileges
available to it under this Agreement or any other Credit Document.
SECTION IX.7. Copies, etc. The Administrative Agent shall give prompt
notice to each Lender of each notice or request required or permitted to be
given to the Administrative Agent by the Borrowers pursuant to this Agreement
(unless concurrently delivered to the Lenders by the Borrowers). The
Administrative Agent will distribute to each Lender each document or instrument
received for its account and copies of all other communications received by the
Administrative Agent from the Borrowers for distribution to the Lenders by the
Administrative Agent in accordance with the terms of this Agreement. To the
extent otherwise permitted hereunder, the Administrative Agent will request of
the Borrowers any information reasonably requested by any Lender.
SECTION IX.8. Syndication Agent; Documentation Agent. Neither of the
Persons identified on the facing page or signature pages of this Agreement as
the Syndication Agent or the Documentation Agent shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than,
in the case of Wachovia Bank, N.A., those applicable to all Lenders as such.
Without limiting the foregoing, none of the Persons so identified as the
Syndication Agent or the Documentation Agent shall have or be deemed to have any
Exhibit 10(f) Page 45
fiduciary relationship with any Lender. Each Lender acknowledges that it has not
relied, and will not rely, on any of the Persons so identified in deciding to
enter into this Agreement or in taking or not taking action hereunder.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION X.1. Waivers, Amendments, etc. The provisions of this Agreement
and of each other Credit Document may from time to time be amended, modified or
waived, if such amendment, modification or waiver is in writing and consented to
by the Borrowers and the Required Lenders; provided that no such amendment,
modification or waiver which would:
(a) modify any requirement hereunder that any particular
action be taken by all the Lenders or by the Required Lenders shall be
effective unless consented to by each Lender;
(b) modify this Section 10.1, change the definition of
"Required Lenders", release any Borrower or Guarantor, increase the
Total Commitment Amount or the Percentage of any Lender, reduce or
extend the due date of any fees described in Article III or extend the
Commitment Termination Date or the Final Maturity Date shall be made
without the consent of each Lender;
(c) extend the maturity date for, or reduce the amount of, any
payment required under Section 2.2.2 or any other scheduled repayment
or prepayment of principal of or interest on any Contract Loan (or
reduce the principal amount of or rate of interest on any Contract
Loan) shall be made without the consent of each Lender; or
(d) affect adversely the interests, rights or obligations of
the Administrative Agent qua the Administrative Agent shall be made
without consent of the Administrative Agent.
No failure or delay on the part of the Administrative Agent, any Lender
or the holder of any Note in exercising any power or right under this Agreement
or any other Credit Document shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power or right preclude any other or
Exhibit 10(f) Page 46
further exercise thereof or the exercise of any other power or right. No notice
to or demand on the Borrowers in any case shall entitle them to any notice or
demand in similar or other circumstances. No waiver or approval by the
Administrative Agent, any Lender or the holder of any Note under this Agreement
or any other Credit Document shall, except as may be otherwise stated in such
waiver or approval, be applicable to subsequent transactions. No waiver or
approval hereunder shall require any similar or dissimilar waiver or approval
thereafter to be granted hereunder. All remedies of the Administrative Agent and
the Lenders under the Credit Documents and Applicable Law are cumulative and
remain available until the Obligations shall have been paid in full.
SECTION X.2. Notices. All notices and other communications provided to
any party hereto under this Agreement or any other Credit Document shall be in
writing or by Telex or by facsimile and addressed, delivered or transmitted to
such party at its address, Telex or facsimile number set forth below its
signature hereto or set forth in the Assignment Agreement or at such other
address, Telex or facsimile number as may be designated by such party in a
notice to the other parties. Any notice, if mailed and properly addressed with
postage prepaid or if properly addressed and sent by pre-paid courier service,
shall be deemed given when received; any notice, if transmitted by Telex or
facsimile, shall be deemed given when transmitted (if such transmittal is
confirmed by answerback in the case of Telexes and telephone in the case of
facsimiles).
SECTION X.3. Payment of Costs and Expenses. The Borrowers agree to pay
on demand all reasonable expenses of the Administrative Agent (including the
reasonable fees and charges of counsel to the Administrative Agent and of local
counsel, if any, who may be retained by counsel to the Administrative Agent) in
connection with
(a) the negotiation, preparation, execution and delivery of
this Agreement and of each other Credit Document, including schedules
and exhibits, and any amendments, waivers, consents, supplements or
other modifications to this Agreement or any other Credit Document as
may from time to time hereafter be required, whether or not the
transactions contemplated hereby are consummated, and
(b) the preparation and review of the form of this Agreement
or any other Credit Document.
The Borrowers further agree to pay, and to save the Administrative Agent and the
Lenders harmless from all liability for, any stamp, documentary or other similar
taxes which may be payable in connection with the execution or delivery of this
Agreement, the borrowings hereunder, or the issuance of the Notes or any other
Credit Document. The Borrowers also agree to reimburse the Administrative Agent
and each Lender upon demand for all reasonable fees of financial advisors and
reasonable out-of-pocket expenses (including reasonable attorneys' fees and
legal expenses) incurred by the Administrative Agent or such Lender in
connection with (x) the negotiation of any restructuring or "work-out", whether
Exhibit 10(f) Page 47
or not consummated, of any Obligations and (y) the enforcement of any
Obligations.
SECTION X.4. Indemnification. In consideration of the execution and
delivery of this Agreement by each Lender and the extension of the Commitments,
the Borrowers hereby indemnify, exonerate and hold the Administrative Agent, the
Syndication Agent, the Documentation Agent and each Lender and each of their
respective officers, directors, employees and agents (collectively, the
"Indemnified Parties") free and harmless from and against any and all actions,
causes of action, suits, losses, costs, liabilities and damages, whether arising
at law or by statute, and reasonable expenses incurred in connection therewith
(irrespective of whether any such Indemnified Party is a party to the action for
which indemnification hereunder is sought), including reasonable attorneys' fees
and charges (collectively, the "Indemnified Liabilities"), incurred by the
Indemnified Parties or any of them as a result of, or arising out of, or
relating to:
(a) any transaction financed or to be financed in whole or in
part, directly or indirectly, with the proceeds of any Loan;
(b) the entering into and performance of this Agreement and
any other Credit Document by any of the Indemnified Parties (including
any action brought by or on behalf of the Borrowers as the result of
any determination by the Required Lenders pursuant to Article V not to
fund any Borrowing but excluding any otherwise Indemnified Liabilities
in respect of which the Borrowers shall have finally prevailed in an
action or other proceeding by or against any Lender in respect of any
additional or other amount claimed by such Lender under Article IV) or
which solely arise from or are solely attributable to a Lender's
willful failure to make a Loan required to be made hereunder;
(c) any investigation, litigation or proceeding related to any
acquisition or proposed acquisition by the Parent or any of its
Subsidiaries of all or any portion of the stock or assets of any
Person, whether or not the Administrative Agent or such Lender is party
thereto of which investigation, litigation or proceeding each
Indemnified Party shall notify the Borrowers reasonably promptly after
a Responsible Officer of such Indemnified Party shall learn thereof;
(d) any investigation, litigation or proceeding related to any
environmental cleanup, audit, compliance or other matter relating to
the protection of the environment or the Release by the Parent or the
Borrower or any Subsidiary thereof of any Hazardous Material of which
investigation, litigation or proceeding each Indemnified Party shall
notify the Parent or the Borrower reasonably promptly after a
Responsible Officer of such Indemnified Party shall learn thereof; or
(e) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or releases from, any real
Exhibit 10(f) Page 48
property owned or operated by the Parent or any Subsidiary thereof of
any Hazardous Material (including any losses, liabilities, damages,
injuries, costs, expenses or claims asserted or arising under any
Environmental Law), regardless of whether caused by, or within the
control of, the Parent or such Subsidiary,
except for any such Indemnified Liabilities finally determined by a court of
competent jurisdiction to have arisen for the account of a particular
Indemnified Party by reason of the relevant Indemnified Party's gross negligence
or willful misconduct. Where two or more Indemnified Parties are subject to the
same action or proceeding they will, to the extent practicable and permitted
under applicable professional legal ethical rules, engage but one law firm to
represent such Indemnified Parties. If and to the extent that the foregoing
undertaking may be unenforceable for any reason, the Parent and the Borrower
hereby agree to make the maximum contribution to the payment and satisfaction of
each of the Indemnified Liabilities which is permissible under Applicable Law.
SECTION X.5. Survival. The obligations of the Borrowers under Sections
4.3, 4.4, 4.5, 4.6, 10.3 and 10.4, and the obligations of the Lenders under
Section 9.1, shall in each case survive any termination of this Agreement, the
payment in full of all Obligations and the termination of all Commitments. The
representations and warranties made by the Borrowers in this Agreement and in
each other Credit Document shall survive the execution and delivery of this
Agreement and each such other Credit Document.
SECTION X.6. Severability. Any provision of this Agreement or any other
Credit Document which is prohibited or unenforceable in any jurisdiction shall,
as to such provision and such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions of
this Agreement or such Credit Document or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION X.7. Headings. The various headings of this Agreement and of
each other Credit Document are inserted for convenience only and shall not
affect the meaning or interpretation of this Agreement or such other Credit
Document or any provisions hereof or thereof.
SECTION X.8. Execution in Counterparts. This Agreement may be executed
by the parties hereto in several counterparts, each of which shall be executed
by the Borrowers and the Administrative Agent and be deemed to be an original
and all of which shall constitute together but one and the same agreement.
SECTION X.9. Governing Law; Entire Agreement. THIS AGREEMENT AND EACH
OTHER CREDIT DOCUMENT SHALL EACH BE DEEMED TO BE A CONTRACT MADE UNDER AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. This Agreement and the other
Credit Documents constitute the entire understanding among the parties hereto
with respect to the subject matter hereof and supersede any prior agreements,
written or oral, with respect thereto.
Exhibit 10(f) Page 49
SECTION X.10. Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided that:
(a) the Borrowers may not assign or transfer its rights or
obligations hereunder without the prior written consent of the
Administrative Agent and all Lenders; and
(b) the rights of sale, assignment and transfer of the Lenders
are subject to Section 10.11.
SECTION X.11. Sale and Transfer of Contract Loans and Commitment;
Participations in Contract Loans. Each Lender may assign, or sell participations
in, its Contract Loans and Commitment to one or more other Persons in accordance
with this Section 10.11.
SECTION X.11.1. Assignments. Any Lender,. Assignments
(a) with notice to the Borrowers and the Administrative Agent
and with the written consent of the Administrative Agent (which consent
shall not be unreasonably delayed or withheld), may at any time assign
and delegate to one or more Eligible Assignees, and
(b) with notice to the Borrowers and the Administrative Agent,
but without the consent of the Administrative Agent, may assign and
delegate to any of its Affiliates or to any other Lender
(each Person described in either of the foregoing clauses as being the Person to
whom such assignment and delegation is to be made, being hereinafter referred to
as an "Assignee Lender"), all or any portion of such Lender's Commitment and the
rights and obligations related thereto under this Agreement and the other Credit
Documents; provided that
(i) any such Assignee Lender will comply, if
applicable, with the provisions contained in the last sentence
of Section 4.6,
(ii) no such assignment and delegation of a portion
of such Lender's Commitment or Contract Loans shall be in a
principal amount of less than the Minimum Assignment Amount,
unless such assignment and delegation is made to another
Lender or the Borrowers shall consent thereto,
(iii) no Lender may make any assignment and
delegation unless after giving effect thereto such Lender
either (A) has no Commitment or (B) would continue to have a
Commitment of not less than the Minimum Retained Amount unless
the Borrowers shall consent thereto,
Exhibit 10(f) Page 50
(iv) each such assignment and delegation shall be of
a constant, and not a varying, percentage of the assigning
Lender's Commitment and Contract Loans and such Lender's
rights and assignable obligations with respect thereto; and
(v) the Borrowers and the Administrative Agent
shall be entitled to continue to deal solely and directly with
such assigning Lender in connection with the interests so
assigned and delegated to an Assignee Lender until
(A) written notice of such assignment and
delegation, together with payment instructions,
addresses and related information with respect to
such Assignee Lender, shall have been given to the
Borrowers and the Administrative Agent by such Lender
and such Assignee Lender,
(B) such Assignee Lender shall have executed
and delivered to the Borrowers and the Administrative
Agent an Assignment Agreement, accepted by the
Administrative Agent, which acceptance the
Administrative Agent shall not unreasonably withhold
or delay, and
(C) the processing fees described below
shall have been paid.
From and after the date that the Administrative Agent accepts such Assignment
Agreement, (x) the Assignee Lender thereunder shall be deemed automatically to
have become a party hereto and to the Bid Trust Agreement and to the extent of
the Commitment and, if any, Contract Loan(s) and related rights and obligations
assigned and delegated to such Assignee Lender in connection with such
Assignment Agreement, shall have the rights and obligations of a Lender
hereunder and under the other Credit Documents, and (y) the assignor Lender, to
the extent of the Commitment and, if any, Contract Loan(s) and related rights
and obligations assigned and delegated by it in connection with such Assignment
Agreement, shall be released from its obligations hereunder and under the other
Credit Documents. Accrued interest on assigned Obligations, and accrued fees,
shall be paid as provided in the Assignment Agreement or, if the Assignment
Agreement does not so provide, to the relevant Assignee Lender. Accrued interest
and accrued fees shall be paid at the same time or times provided in the Note
and in this Agreement. Such assignor Lender or such Assignee Lender must also
pay a processing fee to the Administrative Agent upon delivery of any Assignment
Agreement in the amount of $2,500. Any attempted assignment and delegation not
made in accordance with this Section 10.11.1 shall be null and void.
(c) Notwithstanding anything to the contrary contained herein,
any Lender (a "Granting Lender") may grant to a special purpose funding
vehicle (an "SPC"), identified as such in writing from time to time by
the Granting Lender to the Administrative Agent and the Borrowers, the
option to provide to the Borrowers, all or any part of any Loan that
Exhibit 10(f) Page 51
such Granting Lender would otherwise be obligated to make to the
Borrowers pursuant to this Agreement; provided that (i) nothing herein
shall constitute a commitment by any SPC to make any Loan and (ii) if
an SPC elects not to exercise such option or otherwise fails to provide
all or any part of such Loan, the Granting Lender shall be obligated to
make such Loan pursuant to the terms hereof. The making of a Loan by an
SPC hereunder shall utilize the Commitment of the Granting Lender to
the same extent, and as if, such Loan were made by such Granting
Lender. Each party hereto hereby agrees that no SPC shall be liable for
any indemnity or similar payment obligation under this Agreement (all
liability for which shall remain with the Granting Lender). In
addition, notwithstanding anything to the contrary contained in this
Section, any SPC may (i) with notice to, but without the prior written
consent of, the Borrowers and the Administrative Agent and without
paying any processing fee therefor, assign all or a portion of its
interests in any Loans to the Granting Lender or to any financial
institutions (consented to by the Borrowers and Administrative Agent,
such consent not to be unreasonably withheld) providing liquidity
and/or credit support to or for the account of such SPC to support the
funding or maintenance of Loans and (ii) disclose on a confidential
basis any non-public information relating to its Loans to any rating
agency, commercial paper dealer or provider of any surety, guarantee or
credit or liquidity enhancement to such SPC.
SECTION X.11.2. Participations. Any Lender may at any time sell to one
or more Persons (each such Person being herein called a "Participant")
participating interests in any of the Contract Loans, Commitment, or other
interests of such Lender hereunder; provided that
(a) no participation contemplated in this Section 10.11 shall
relieve such Lender from its Commitment or its other obligations
hereunder or under any other Credit Document and such Lender shall be
fully entitled to the benefits of this Agreement, including under
Articles IV and X, as if no such participation had been sold,
(b) such Lender shall remain solely responsible for the
performance of its Commitment and such other obligations,
(c) the Borrowers and the Administrative Agent shall continue
to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and each of the
other Credit Documents,
(d) such Lender may not agree with any Participant, unless
such Participant is an Affiliate of such Lender, or is itself a Lender,
that such Participant shall be entitled to require such Lender to take
or refrain from taking any action hereunder or under any other Credit
Document, except that such Lender may agree with any Participant that
such Lender will not, without such Participant's consent, take any
action which would modify Section 10.1, change the definition of
Exhibit 10(f) Page 52
"Required Lenders", increase the Total Commitment Amount or the
Percentage of any Lender, reduce any fees described in Article III, or
extend the final scheduled due date for, or reduce the amount of,
principal of or interest on any Contract Loan, and
(e) the Borrowers shall not be required to pay any amount
under Sections 4.3, 4.5 and 4.6 that is greater than the amount which
it would have been required to pay had no participating interest been
sold.
SECTION X.11.3. Federal Reserve Bank Assignments. Notwithstanding
anything to the contrary contained or implied herein, any Lender may assign and
pledge all or any portion of its Commitment and Loans, if any, and other rights
related thereto to a Federal Reserve Bank; provided that such an assignment
shall not relieve such Lender from its obligations hereunder. If, in order to
effect such an assignment or pledge, a Lender requires a promissory note
evidencing such Loans, then the Borrower will execute and deliver to such Lender
a promissory note payable to the order of such Lender in a maximum principal
amount equal, in the case of Contract Loans, to such Lender's then Commitment,
and in the case of Bid Loans, the aggregate principal amount thereof and
otherwise in the form of Exhibit A-1 or A-2, as the case may be, promptly
following such Lender's request therefor. From and after the execution and
delivery of such promissory note, such Lenders' Contract Loans or Bid Loans, as
the case may be, shall be evidenced thereby and not by the Contract Note or the
Bid Note, as the case may be.
SECTION X.12. Confidentiality. The Administrative Agent and the Lenders
shall hold all non-public information (which has been identified as such by the
Borrowers) obtained pursuant to the requirements of this Agreement in accordance
with their customary procedures for handling confidential information of this
nature and in accordance with safe and sound banking practices and in any event
may make disclosure to any of their examiners, Affiliates, outside auditors,
counsel and other professional advisors in connection with this Agreement or as
reasonably required by any bona fide prospective Eligible Assignee or
Participant or any other Person acquiring an interest in any Loan by operation
of law (a "Transferee") or as required or requested by any governmental agency
or representative thereof or pursuant to legal process; provided that:
(a) unless specifically prohibited by Applicable Law, each
Lender shall notify the Borrowers of any request by any governmental
agency or representative thereof (other than any such request in
connection with an examination of the financial condition of such
Lender by such governmental agency) for disclosure of any such
non-public information prior to disclosure of such information;
(b) prior to any such disclosure pursuant to this Section
10.12, each Lender shall require any such bona fide prospective
Eligible Assignee or Participant or Transferee receiving a disclosure
of non-public information to agree in writing:
Exhibit 10(f) Page 53
(i) to be bound by this Section 10.12; and
(ii) to require such Person to require any other
Person to whom such Person discloses such non-public
information to be similarly bound by this Section 10.12; and
(c) except as may be required by an order of a court of
competent jurisdiction and to the extent set forth therein, no Lender
shall be obligated or required to return any materials furnished by the
Borrowers or any Subsidiary thereof.
SECTION X.13. Other Transactions. Nothing contained herein shall
preclude the Administrative Agent or any other Lender from engaging in any
transaction, in addition to those contemplated by this Agreement or any other
Credit Document, with the Borrowers or any Affiliate thereof in which the
Borrowers or such Affiliate is not restricted hereby from engaging with any
other Person.
SECTION X.14. Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE
AGENT, THE LENDERS OR THE BORROWERS MAY BE BROUGHT AND MAINTAINED IN THE COURTS
OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK, IN EACH CASE, SITTING IN NEW YORK CITY; PROVIDED THAT ANY
SUIT SEEKING ENFORCEMENT AGAINST ANY PROPERTY MAY BE BROUGHT, AT THE AGENT'S
OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH PROPERTY MAY BE FOUND. THE
BORROWERS HEREBY EXPRESSLY AND IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, IN EACH CASE, SITTING IN
NEW YORK CITY FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND
IRREVOCABLY AGREE TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION
WITH SUCH LITIGATION. THE BORROWERS FURTHER IRREVOCABLY CONSENT TO THE SERVICE
OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR
WITHOUT THE STATE OF NEW YORK. THE BORROWERS HEREBY EXPRESSLY AND IRREVOCABLY
WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH THEY OR
EITHER OF THEM MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH
LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY
SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT
THE BORROWERS HAVE OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF
ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE,
ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH
RESPECT TO ITSELF OR ITS PROPERTY, THE BORROWERS HEREBY IRREVOCABLY WAIVE SUCH
IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER CREDIT
DOCUMENTS.
Exhibit 10(f) Page 54
SECTION X.15. Waiver of Jury Trial. THE ADMINISTRATIVE AGENT, THE
LENDERS AND THE BORROWERS HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY
OTHER CREDIT DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE AGENT, THE LENDERS
OR THE BORROWERS. THE BORROWERS ACKNOWLEDGE AND AGREE THAT THEY HAVE RECEIVED
FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION
OF EACH OTHER CREDIT DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS
A MATERIAL INDUCEMENT FOR THE ADMINISTRATIVE AGENT AND THE LENDERS ENTERING INTO
THIS AGREEMENT AND EACH SUCH OTHER CREDIT DOCUMENT.
SECTION X.16. Governmental Regulation. Anything contained in this
Agreement to the contrary notwithstanding, no Lender shall be obligated to
extend credit to the Borrowers in violation of any limitation or prohibition
provided by any Applicable Law.
Exhibit 10(f) Page 55
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
BORROWERS:
----------
BERGEN XXXXXXXX DRUG COMPANY
By___________________________________
Title:
Address:
0000 Xxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxx X. Xxxxxxx
Vice President, Treasurer
BERGEN XXXXXXXX CORPORATION
By___________________________________
Title:
Address:
0000 Xxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxx X. Xxxxxx
Executive Vice President,
Chief Financial Officer
Exhibit 10(f) S - 1
ADMINISTRATIVE AGENT:
---------------------
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION,
as Administrative Agent
By___________________________________
Title:
Address:
Agency Management-Los Angeles #5618
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxx Xxxxxx
Exhibit 10(f) S - 2
LENDERS:
--------
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION
By___________________________________
Title:
Credit Products-Health Care-
Los Angeles #9173
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx Xxxxx
Domestic Lending Office:
GPO Domestic Acct. Admin. #5693
0000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxxx
Eurodollar Lending Office:
GPO Domestic Acct. Admin. #5693
0000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxxx
Exhibit 10(f) S - 3
THE CHASE MANHATTAN BANK
By___________________________________
Title: Xxxx Xxx Xxx
Vice President
Domestic Office:
Agent Bank Services
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxx Xxxxxx-Xxxxx
Eurodollar Office:
Agent Bank Services
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxx Xxxxxx-Xxxxx
Exhibit 10(f) S - 4
WACHOVIA BANK, N.A.
By___________________________________
Title:
Domestic Office:
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxx Xxxx, Vice President
Eurodollar Office:
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxx Xxxx, Vice President
Exhibit 10(f) S - 5
ABN AMRO BANK N.V.
By___________________________________
Title:
Domestic Office:
000 Xxxxx XxXxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Credit Administration
Eurodollar Office:
000 Xxxxx XxXxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Credit Administration
Exhibit 10(f) S - 6
BANK OF MONTREAL
By___________________________________
Title:
Domestic Office:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx Turf
Eurodollar Office:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx Turf
Exhibit 10(f) S - 7
FIRST UNION NATIONAL BANK
By___________________________________
Title:
Domestic Office:
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxx X. Xxxx, Vice President
Eurodollar Office:
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxx X. Xxxx, Vice President
Exhibit 10(f) S - 8
BANCA NAZIONALE DEL LAVORO S.p.A.-
NEW YORK BRANCH
By___________________________________
Title:
Domestic Office:
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx
Eurodollar Office:
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx
Exhibit 10(f) S - 9
BANCO POPULAR DE PUERTO RICO
By___________________________________
Title:
By___________________________________
Title:
Domestic Office:
0 Xxxx 00xx - 0xx Xxxxx
Xxx Xxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxxxx Xxxxx, AVP
Eurodollar Office:
0 Xxxx 00xx - 0xx Xxxxx
Xxx Xxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxxxx Xxxxx, AVP
Exhibit 10(f) X - 00
XXXX XX XXXXXX
By___________________________________
Title:
Domestic Office:
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, III
Eurodollar Office:
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, III
Exhibit 10(f) X - 00
XXX XXXX XX XXX XXXX
By___________________________________
Title:
Domestic Office:
00000 Xxxxxxxx Xxxxxxxxx, #000
Xxx Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
Eurodollar Office:
Xxx Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxx Xxxxxxxx
Exhibit 10(f) X - 00
XXX XXXX XX XXXX XXXXXX
By___________________________________
Title:
Domestic Office:
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx
Eurodollar Office:
Scotiabanc, Inc.
Suite 2700
000 Xxxxxxxxx Xxxxxx X.X.
Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxx Xxxxx
Exhibit 10(f) S - 13
FLEET NATIONAL BANK
By___________________________________
Title:
Domestic Office:
Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxx Xxxxx,
Senior Vice President
Eurodollar Office:
Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxx Xxxxxxxx,
Loan Administrator
Exhibit 10(f) S - 14
MELLON BANK, N.A.
By___________________________________
Title:
Domestic Office:
Three Mellon Bank, Rm. 1203
Xxxxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Loan Administration
Eurodollar Office:
Three Mellon Bank, Rm. 1203
Xxxxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Loan Administration
Exhibit 10(f) S - 00
XXXXXXXX XXXX XXXX XX XXXXXXXXXXXX
By___________________________________
Title:
Domestic Office:
National City Center
00 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxx,
Vice President
Eurodollar Office:
National City Center
00 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxx,
Vice President
Exhibit 10(f) S - 16
THE NORTHERN TRUST COMPANY
By___________________________________
Title:
Domestic Office:
00 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
Eurodollar Office:
00 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
Exhibit 10(f) S - 17
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By___________________________________
Title:
Domestic Office:
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Xx.
Eurodollar Office:
000 Xxxxx Xxxxxx Xxxxxx
Mail Code 1108
Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Xx.
Exhibit 10(f) S - 18
XXXXX FARGO BANK, N.A.
By___________________________________
Title:
By___________________________________
Title:
Domestic Office:
000 Xxxxxxxx Xxxx., 16th Floor
MAC 2818-165
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
Vice President
Eurodollar Office:
000 Xxxxxxxx Xxxx., 16th Floor
MAC 2818-165
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
Vice President
Exhibit 10(f) S - 19
THE FIFTH THIRD BANK
By___________________________________
Title:
Domestic Office:
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxxx Xxxx
Eurodollar Office:
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxxx Xxxx
Exhibit 10(f) S - 20
BANCA DI ROMA-SAN FRANCISCO
By___________________________________
Title:
Domestic Office:
Xxx Xxxxxx
Xxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xx. Xxxxxxx Xxxxxxx,
First Vice President
Eurodollar Office:
Xxx Xxxxxx
Xxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xx. Xxxxxxx Xxxxxxx,
First Vice President
Exhibit 10(f) S - 21
VIA BANQUE
By__________________________________
Xxxxxxxx Prot
Title: Sous Directeur
Domestic Office:
Xxx Xxxxxx
00, xxx Xxxxxx 00000
Xxxxx, Xxxxxx
Telephone No.: (00 0) 00 00 00 00
Facsimile No.: (00 0) 00 00 00 00
Attention: Xxxxxxxx Xxxxxxxx
Eurodollar Office:
Xxx Xxxxxx
00, xxx Xxxxxx 00000
Xxxxx, Xxxxxx
Telephone No.: (00 0) 00 00 00 00
Facsimile No.: (00 0) 00 00 00 00
Attention: Xxxxxxxx Xxxxxxxx
Exhibit 10(f) S - 22
SCHEDULE I
DEFINED TERMS
"Administrative Agent" is defined in the preamble and includes each
other Person as shall have subsequently been appointed as the successor
Administrative Agent pursuant to Section 9.4.
"Affected Lender" means (x) any Lender that has given notice to the
Borrower pursuant to or is entitled to the benefits of Section 4.1, 4.3, 4.4,
4.5 or 4.6 if, as a result thereof, the Borrowers have become obligated to pay
such Lender any amounts, or the obligations of such Lender to make or continue,
or convert Loans into, Eurodollar Rate Loans has been suspended, (y) any Lender
that has given notice that it will not make its Loan(s) as a result of such
Lender's determination that the conditions precedent to a Borrowing will not be
satisfied, or (z) any Lender that has willfully failed to make any Loan required
to be made hereunder if such failure shall continue for at least 2 Business Days
after the Borrowers shall have given written notice thereof to such Lender.
"Affecting Event" means the event or condition giving rise to a notice
under Section 4.1, 4.3, 4.4, 4.5 or 4.6 from any Affected Lender.
"Affiliate" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan). For purposes of this definition of the term
"Affiliate", a Person shall be deemed to be "controlled by" any other Person if
such other Person possesses, directly or indirectly, power:
(a) to vote 10% or more of the securities (on a fully diluted
basis) having ordinary voting power for the election of directors or
managing general partners; or
(b) to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
"Agreement" means the Credit Agreement to which this Schedule is
attached, including this Schedule and the other Schedules and Exhibits thereto.
"Applicable Law" means, relative to any Person or matter, any law,
rule, regulation, order, decree, subpoena or other requirement having the force
of law relating to such Person or matter and, if applicable, any interpretation
thereof by any Person having jurisdiction with respect thereto or charged with
the administration or interpretation thereof.
Exhibit 10(f)-Schedule 1 Page 1
"Applicable Margin" means, relative to any Base Rate Loan or Eurodollar
Rate Loan, the applicable margin (expressed in basis points) per annum as set
forth in the table below based on the Parent's then Senior Debt Rating:
Senior Debt Rating
------------------
Base Rate Eurodollar
Xxxxx'x S&P Loan Rate Loan
------- --- --------- ---------
A2 or higher A or higher 0.0 29.0
A3 A- 0.0 32.0
Baa1 BBB+ 0.0 40.0
Baa2 BBB 0.0 50.0
Baa3 BBB- 0.0 72.5
Below Baa3 Below BBB- 50.0 80.0
; provided that, for purposes of determining such applicable margin, if
Xxxxx'x and S&P have split Senior Debt Ratings with a difference of
only one rating tier, the higher Senior Debt Rating will be
determinative and the lower Senior Debt Rating will be disregarded; and
provided, further, that if Xxxxx'x and S&P have split Senior Debt
Ratings with a difference of more than one rating tier, one rating tier
below the higher Senior Debt Rating will be determinative and both
Senior Debt Ratings will be disregarded.
"Assignee Lender" is defined in Section 10.11.1.
"Assignment Agreement" means an Assignment Agreement substantially in
the form of Exhibit F.
"Authorized Officer" means, relative to the Parent or Bergen Drug, as
the case may be, those of its officers whose signatures and incumbency shall
have been certified to the Administrative Agent and the Lenders pursuant to
Section 5.1.1.
"Bank of America" is defined in the preamble.
"Base Rate" means, on any date and with respect to all Base Rate Loans,
a fluctuating rate of interest per annum equal to the higher of:
(a) the rate of interest most recently announced by Bank of
America at its Domestic Office as its reference rate for Dollar loans;
and
(b) the Federal Funds Rate most recently determined by the
Administrative Agent plus 0.50%.
The Base Rate is not necessarily intended to be the lowest rate of interest in
connection with extensions of credit. Changes in the rate of interest on that
portion of any Loans maintained as Base Rate Loans will take effect
simultaneously with each change in the Base Rate. The Administrative Agent will
give notice promptly to the Borrowers and the Lenders of changes in the Base
Rate.
Exhibit 10(f)-Schedule 1 Page 2
"Base Rate Loan" means a Loan bearing interest at a fluctuating rate
determined by reference to the Base Rate.
"Beneficial Owner" shall have the meaning assigned thereto in Rule
13d-3 of the Securities and Exchange Commission under the Securities Exchange
Act of 1934 as in effect on the date hereof.
"Bid Acknowledgment" means an acknowledgment, duly completed and
executed by an Authorized Officer of each Borrower, of such Borrower's
acceptance of a Bid Offer, substantially in the form of Exhibit B-3.
"Bid Borrowing" means Bid Loans having the same Stated Maturity Date
and made on the same Business Day by one or more Lenders pursuant to the same
Bid Borrowing Request.
"Bid Borrowing Request" means a Bid Offer request and certificate, duly
completed and executed by an Authorized Officer of each Borrower, substantially
in the form of Exhibit B-1.
"Bid Loan" means a Loan made by a Lender to the Borrowers as a result
of the procedure set forth in Section 2.7.
"Bid Offer" means an Offer by a Lender to make a Bid Loan,
substantially in the form of Exhibit B-2.
"Bid Note" is defined in Section 2.6.2.
"Bid Rate" means, relative to any Bid Loan of any Lender, the fixed
rate of interest (expressed to the nearest 1/10,000 of 1%) offered by such
Lender in its Bid Offer to make such Bid Loan.
"Borrower" means, prior to PharMerica's execution of the Joinder
Agreement, each of the Parent and Bergen Drug and after PharMerica's execution
of the Joinder Agreement, each of the Parent, Bergen Drug and PharMerica.
"Borrowers" is defined in the preamble, as modified by the immediately
preceding definition.
"Borrowing" means a Bid Borrowing, a Contract Borrowing or a Swing
Borrowing, as the context may require or allow.
"Borrowing Request" means a Bid Borrowing Request, a Contract Borrowing
Request or a Swing Borrowing Request, as the context may require or allow.
"Business Day" means:
Exhibit 10(f)-Schedule 1 Page 3
(a) any day which is neither Saturday or Sunday nor a legal
holiday on which banks are authorized or required to be closed in Los
Angeles, California or New York, New York; and
(b) relative to the making, continuing, prepaying or repaying
of any Eurodollar Rate Loans, any day on which dealings in Dollars are
carried on in the London interbank market.
"Capitalized Lease Liabilities" means all monetary obligations of the
Parent and its Subsidiaries under any leasing or similar arrangement which, in
accordance with GAAP, are or would be classified as capitalized leases.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980.
"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List.
"Code" means the Internal Revenue Code of 1986.
"Commitment" is defined in Section 2.1.1.
"Commitment Termination Date" means April 22, 2000, as such date may be
extended pursuant to Section 2.8;
"Commitment Termination Event" means:
(a) the occurrence of any Event of Default described in
Section 8.1.8 with respect to the Parent, Bergen Drug or any
Significant Subsidiary; or
(b) the occurrence and continuance of any other Event of
Default which has not been cured and either
(i) the declaration of the Contract Loans to be due
and payable pursuant to Section 8.3, or
(ii) in the absence of such declaration, the giving
of notice by the Administrative Agent, acting at the direction
of the Required Lenders, to the Borrowers that the Commitments
have been terminated.
"Contingent Liability" means any agreement, undertaking or arrangement
by which any Person guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise, to
provide funds for payment, to supply funds to, or otherwise to invest in, a
debtor, or otherwise to assure a creditor or purchaser of assets against loss)
the debt, obligation or other liability of any other Person (other than by
endorsements of instruments in the course of collection), or guarantees the
payment of dividends or other distributions upon the shares of any other Person
Exhibit 10(f)-Schedule 1 Page 4
or undertakes or agrees (contingently or otherwise) to purchase, repurchase, or
otherwise acquire any Indebtedness, obligation or liability or any security
therefor, or to provide funds for the payment or discharge thereof (whether in
form of loans, advances, stock purchases, capital contributions or otherwise),
or to maintain solvency, assets, level of income, or other financial condition,
or to make payment or pledge other than for value received. The amount of any
Person's obligation under any Contingent Liability shall (subject to any
limitation set forth therein) be determined in accordance with GAAP.
"Continuing Director" means a director of the Parent who either (a) was
a member of the Parent's board of directors before the Effective Date and has
been such continuously thereafter or (b) became a director after the Effective
Date and whose election or nomination for election was approved by a vote of the
majority of the Continuing Directors then members of the Parent's board of
directors.
"Contract Borrowing" means Contract Loans of the same type and, in the
case of Eurodollar Rate Loans, having the same Interest Period made by all
Lenders on the same Business Day pursuant to the same Contract Borrowing Request
pursuant to Section 2.1.
"Contract Borrowing Request" means a loan request and certificate, duly
completed and executed by an Authorized Officer of such Borrower, substantially
in the form of Exhibit C-1.
"Contract Continuation/Conversion Notice" means a notice of
continuation or conversion and certificate duly completed and executed by an
Authorized Officer of each Borrower, substantially in the form of Exhibit C-2.
"Contract Loan" is defined in Section 2.1.1.
"Contract Note" is defined in Section 2.6.1.
"Controlled Group" means all members of a controlled group of
corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control which, together with the
Parent, are treated as a single employer under section 414(b) or 414(c) of the
Code or section 4001 of ERISA.
"Credit Document" means this Agreement, each Note, the Guaranty, the
Joinder Agreement and each other agreement, document or instrument delivered in
connection with this Agreement, each Note and the Guaranty.
"Debt" of any Person means any Indebtedness of such Person of the type
described in clause (a) or (c) of the definition thereof or any Contingent
Liability of such Person in respect of such Indebtedness.
Exhibit 10(f)-Schedule 1 Page 5
"Default" means any Event of Default or any condition, occurrence or
event which, after notice or lapse of time or both, would constitute an Event of
Default.
"Disclosure Schedule" means the Disclosure Schedule attached to the
Agreement as Schedule II, as it may be amended, supplemented or otherwise
modified from time to time by the Borrowers with the written consent of the
Administrative Agent and the Required Lenders.
"Documentation Agent" is defined in the preamble.
"Dollar" and the sign "$" mean lawful money of the United States.
"Domestic Office" means, relative to any Lender, the office of such
Lender designated as such below its signature hereto or designated in the
Assignment Agreement or such other office of a Lender within the United States
as may be designated from time to time by notice from such Lender to the Parent
and the Borrower and the Administrative Agent.
"EBIT" means, for any period, consolidated earnings of the Parent and
its Subsidiaries for such period before interest and taxes (including, without
limitation and without duplication, all interest paid by the Parent under its
subordinated debt securities issued to the Trusts and all payments by the Parent
of dividends and distributions with respect to the Guaranteed Preferred
Securities), before up to $93,000,000 of certain non-cash charges taken by the
Borrower in its Fiscal Quarter ending September 30, 1998 and before up to
$50,000,000 of extraordinary, non-cash charges in any Fiscal Year associated
with acquisitions.
"Effective Date" is defined in the preamble.
"Eligible Assignee" means a bank, thrift, insurance company, finance
company, investment fund, money market mutual fund or similar Person
incorporated or organized under the laws of the United States of America, any
state or other political subdivision thereof or another member country of the
OECD.
"Environmental Laws" means all applicable Federal, state or local
statutes, laws, ordinances, codes, rules, regulations and guidelines (including
consent decrees and administrative orders) relating to public health and safety
and protection of the environment.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"Eurodollar Office" means, relative to any Lender, the office of such
Lender designated as such below its signature hereto or designated in the
Assignment Agreement or such other office of a Lender as designated from time to
time by notice from such Lender to the Borrowers and the Administrative Agent,
Exhibit 10(f)-Schedule 1 Page 6
whether or not outside the United States, which shall be making or maintaining
Eurodollar Rate Loans of such Lender hereunder.
"Eurodollar Rate" means, relative to any Contract Loan to be made,
continued or maintained as, or converted into, a Eurodollar Rate Loan for any
Interest Period, a rate per annum (rounded upwards, if necessary, to the nearest
1/16 of 1%) equal to the average of the rates per annum at which Dollar deposits
in immediately available funds are offered to each Reference Lender's Eurodollar
office in the London interbank market as at or about 11:00 a.m., London time,
two Business Days prior to the beginning of such Interest Period for delivery on
the first day of such Interest Period, and in an amount approximately equal to
the amount of such Reference Lender's Eurodollar Rate Loan and for a period
approximately equal to such Interest Period.
"Eurodollar Rate Loan" means a Loan bearing interest, at all times
during an Interest Period applicable to such Loan, at a fixed rate of interest
determined by reference to the Eurodollar Rate.
"Event of Default" is defined in Section 8.1.
"Facility Rate"means, at any time, the applicable rate (expressed in
basis points) set forth in the table below based on the Parent's then Senior
Debt Rating:
Senior Debt Rating
------------------
Moody's S&P Percentage Rate
------- --- ---------------
A2 or higher A or higher 6.0
A3 A- 8.0
Baa1 BBB+ 10.0
Baa2 BBB 12.5
Baa3 BBB- 15.0
Below Baa3 Below BBB- 20.0
; provided that, for purposes of determining such percentage rate, if
Moody's and S&P have split Senior Debt Ratings with a difference of
only one rating tier, the higher Senior Debt Rating shall be
determinative and the lower Senior Debt Rating shall be disregarded;
and provided, further, if Moody's and S&P have split Senior Debt
Ratings with a difference of more than one rating tier, one rating tier
below the higher Senior Debt Rating will be determinative and both
Senior Debt Ratings will be disregarded.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to:
Exhibit 10(f)-Schedule 1 Page 7
(a) the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published for such day (or, if such day is
not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York; or
(b) if such rate is not so published for any day which is a
Business Day, the average of the quotations at 10:00 a.m., New York
time, for such day on such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected
by it.
"Final Maturity Date" means the earlier of:
(a) the Commitment Termination Date; and
(b) the date to which the Final Maturity Date may be
accelerated pursuant to Section 8.2 or 8.3.
"Fiscal Quarter" means any quarter of a Fiscal Year.
"Fiscal Year" means any period of twelve consecutive calendar months
ending on September 30; references to a Fiscal Year with a number corresponding
to any calendar year (e.g. the "1994 Fiscal Year") refer to the Fiscal Year
ending on the September 30 occurring during such calendar year.
"$400,000,000 Senior Credit Facility" means that certain Amended and
Restated Credit Agreement, dated as of September 30, 1994 as Amended by that
certain Fourth Amendment dated as of April 23, 1999 by and among Bergen Drug,
the Parent, the lenders party thereto, Bank of America National Trust and
Savings Association, as agent, including any related notes, guarantees,
collateral documents, instruments and agreements executed in connection
therewith, and in each case as amended modified, renewed, refunded, replaced or
refinanced from time to time (together with any amendment, modification,
renewal, refunding, replacement, refinancing to or of any of the foregoing).
"F.R.S. Board" means the Board of Governors of the Federal Reserve
System.
"Funded Debt" means, on any date, the consolidated long-term Debt of
the Parent and its Subsidiaries including current maturities of such long-term
Debt, but excluding intercompany Debt, on such date.
"GAAP" means generally accepted accounting principles applied in the
preparation of the financial statements of the Parent and its Subsidiaries
required pursuant to Section 7.1.1(b).
"General Corporate Purposes" means, subject to the terms and conditions
of this Agreement, making or financing any payment for or in respect of working
Exhibit 10(f)-Schedule 1 Page 8
capital, capital expenditures, acquisitions, stock repurchases, refinancing
Indebtedness or any other general corporate purpose.
"Guaranteed Preferred Securities" means the preferred securities issued
by Bergen Capital Trust I, Bergen Capital Trust II and Bergen Capital Trust III
(collectively, the "Trusts") pursuant to the Form S-3 Registration Statement
filed by the Parent and the Trusts with the Securities and Exchange Commission
on March 12, 1999.
"Guaranty" means a guaranty of a Subsidiary of the Parent executed
pursuant to the terms of Section 7.1.10, in the form of Exhibit D, of the
Indebtedness and other Obligations of the Borrowers under this Agreement, each
Note and the other Credit Documents to which they are a party.
"Hazardous Material" means:
(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource
Conservation and Recovery Act;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous, dangerous or
toxic chemical, material or substance within the meaning of any other
applicable Federal, state or local statute, law, regulation, ordinance
or requirement (including consent decrees and administrative orders)
relating to or imposing liability or standards of conduct concerning
any hazardous, toxic or dangerous waste, substance or material, all as
amended or hereafter amended.
"Hedging Obligations" means all monetary obligations under any interest
rate protection agreement or currency exchange agreement or similar agreement
providing for the protection against fluctuations in interest or currency
exchange rates.
"Impermissible Change of Control" means any of the following shall
occur:
(a) Bergen Drug shall cease for any reason to be a wholly-
owned Subsidiary of the Parent;
(b) any Person or group (within the meaning of Rule 13d-5 of
the Securities and Exchange Commission under the Securities Exchange
Act of 1934) shall be or become the Beneficial Owner of issued and
outstanding capital stock of the Parent representing 20% or more of the
voting power in elections for directors of the Parent on a fully
diluted basis (other than (x) Xxxxxx X. Xxxxxxx or the estate of Xxxx
Exhibit 10(f)-Schedule 1 Page 9
Martini or (y) solely as a result of the conversion of the Parent's
Class B common stock outstanding on the date hereof into Class A common
stock of the Parent);
(c) a majority of the Parent's board of directors shall cease
to be comprised of Continuing Directors; or
(d) any event or condition relating to a change of control of
the Parent or Bergen Drug which requires or permits the holder or
holders of Indebtedness of the Parent or any of its Subsidiaries in an
aggregate principal amount of $10,000,000 or more, or any agent or
trustee for such holders, to require the purchase or repurchase of such
Indebtedness prior to its expressed maturity from such holder or
holders.
"Impermissible Qualification" means, relative to the opinion or
certification of any independent public accountant as to any financial statement
of the Parent, any qualification or exception to such opinion or certification:
(a) which is of a "going concern" or similar nature;
(b) which relates to the limited scope of examination of
matters relevant to such financial statement; or
(c) which relates to the treatment or classification of any
item in such financial statement and which, as a condition to its
removal, would require an adjustment to such item the effect of which
would be to cause the Borrower to be in default of any of its
obligations under Section 7.2.3.
"Indebtedness" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments;
(b) all obligations, contingent or otherwise, relative to the
face amount of all letters of credit (exclusive of documentary letters
of credit), whether or not drawn, and banker's acceptances issued for
the account of such Person;
(c) all obligations of such Person as lessee under leases
which have been or should be, in accordance with GAAP, recorded as
Capitalized Lease Liabilities;
(d) net liabilities of such Person under all Hedging
Obligations;
(e) whether or not so included as liabilities in accordance
with GAAP, all obligations of such Person to pay the deferred purchase
price of property or services (other than trade payables incurred in
Exhibit 10(f)-Schedule 1 Page 10
the ordinary course of business), and indebtedness (excluding prepaid
interest thereon) secured by a Lien on property owned or being
purchased by such Person (including indebtedness arising under
conditional sales or other title retention agreements), whether or not
such indebtedness shall have been assumed by such Person or is limited
in recourse;
(f) all Contingent Liabilities of such Person in respect of
any of the foregoing; and
(g) Indebtedness consisting of recourse obligations in respect
of any Permitted Receivables Transaction, but only to the extent that
such obligations constitute a liability under GAAP.
"Indemnified Liabilities" is defined in Section 10.4.
"Indemnified Parties" is defined in Section 10.4.
"Interest Coverage Ratio" means, for any period, the ratio of
(i) EBIT for such period
to
(ii) Interest Expense for such period.
"Interest Expense" means all financing costs associated with
Indebtedness, including, without limitation, interest, amortization of
underwriting fees and discounts, amortization of original issue discount,
amendment fees, receivable program fees, commercial paper fees and other similar
expenses and, without duplication, all payments by the Parent of dividends and
distributions with respect to the Guaranteed Preferred Securities.
"Interest Period" means, relative to any Eurodollar Rate Loans, the
period from the date on which such Eurodollar Rate Loan is made or continued as,
or converted into, a Eurodollar Rate Loan pursuant to Section 2.3 or 2.4 to the
day which numerically corresponds to such date that is one, two, three or six
months thereafter (or, if such month has no numerically corresponding day, on
the last Business Day of such month) (and any other period that is less than 30
days for which the Administrative Agent shall have determined that funding
therefor is available to the Lenders), as the Borrower may select in its
relevant notice pursuant to Section 2.3 or 2.4; provided that:
(a) the Borrowers shall not be permitted to select Interest
Periods to be in effect at any one time which have expiration dates
occurring on more than 5 different dates in respect of Eurodollar Rate
Loans;
Exhibit 10(f)-Schedule 1 Page 11
(b) if such Interest Period would otherwise end on a day which
is not a Business Day, such Interest Period shall end on the next
following Business Day (unless, if such Interest Period applies to
Eurodollar Rate Loans, such next following Business Day is the first
Business Day of the next calendar month, in which case such Interest
Period shall end on the Business Day next preceding such numerically
corresponding day); and
(c) no Interest Period may end later than the Final Maturity
Date.
"Joinder Agreement" means a joinder agreement to be executed by
PharMerica, substantially in the form of Exhibit H.
"Lenders" is defined in the preamble.
"Leverage Ratio" means, on any date, the ratio of Funded Debt of the
Parent and its Subsidiaries on such date to Total Capital of the Parent and its
Subsidiaries on such date.
"Lien" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
lessor's interest under a capitalized lease, charge against or interest in
property to secure payment of a debt or performance of an obligation or other
priority or preferential arrangement of any kind or nature whatsoever.
"Loan" means a Bid Loan or a Contract Loan, as the context may require
or allow.
"Margin Stock" means "margin stock" within the meaning of Regulation U
of the F.R.S. Board.
"Materially Adverse Effect" means a materially adverse change (i) in
the consolidated condition (financial or otherwise), business, operations or
prospects of the Parent and its Subsidiaries taken as a whole since September
30, 1998 or (ii) in the ability of the Parent or Bergen Drug to duly and
punctually pay and perform their respective Obligations.
"Minimum Assignment Amount" means $10,000,000 (or, if less, 5% of the
Commitments then in effect of all Lenders).
"Minimum Net Worth Target" means, on any date, the sum of (a)
$629,000,000 plus (b) an amount equal to 50% of cumulative consolidated positive
earnings of the Parent and its Subsidiaries after September 30, 1998.
"Minimum Retained Amount" means $10,000,000 or, if less, 5% of the
Commitments then in effect of all Lenders.
"Moody's" means Xxxxx'x Investors Service, Inc.
Exhibit 10(f)-Schedule 1 Page 12
"Net Asset Sale Proceeds" means the net cash proceeds (i.e., gross cash
proceeds minus reasonable related costs and expenses and related taxes thereon)
received in connection with a Permitted Asset Sale described in clause (a) of
the definition thereof.
"Net Worth" means, on any date, consolidated net worth of the Parent
and its Subsidiaries as is or would be shown on the consolidated balance sheet
of the Parent and its Subsidiaries as of such date in accordance with GAAP plus,
from and after September 30, 1998, to the extent deducted in the calculation
thereof, up to $50,000,000 per Fiscal Year of non-cash charges associated with
acquisitions, plus, without duplication, the aggregate outstanding face amount
of the Guaranteed Preferred Securities.
"Note" means any Bid Note, any Contract Note or the Swing Note, as the
context may require or allow.
"Obligations" means all obligations (monetary or otherwise) of the
Parent and the Borrower arising under or in connection with this Agreement, the
Notes, the Guaranty and each other Credit Document.
"OECD" means the Organization for Economic Cooperation and Development.
"Organic Document" means, relative to the Parent or Bergen Drug, as the
case may be, its certificate of incorporation, its by-laws and all shareholder
agreements, voting trusts and similar arrangements applicable to any of its
authorized shares of capital stock.
"Participant" is defined in Section 10.11.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Pension Plan" means a "pension plan", as such term is defined in
section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
multiemployer plan as defined in section 4001(a)(3) of ERISA), and to which the
Parent or any corporation, trade or business that is, along with the Parent, a
member of a Controlled Group, may have liability, including any liability by
reason of having been a substantial employer within the meaning of section 4063
of ERISA at any time during the preceding five years, or by reason of being
deemed to be a contributing sponsor under section 4069 of ERISA.
"Percentage" means, relative to any Lender at any time, the portion
(expressed as a percentage) of the then Total Commitment Amount representing
such Lender's then Commitment, being the percentage set opposite its name on
Schedule III hereto, or, if such Lender has executed an Assignment Agreement, as
indicated on the most recent Assignment Agreement executed by such Lender.
Exhibit 10(f)-Schedule 1 Page 13
"Permitted Asset Sale" means any of the following:
(a) any sale or other disposition by the Parent and its
Subsidiaries the proceeds of which, when added to the aggregate
proceeds of all other such sales or dispositions (other than any
Permitted Receivables Transaction or any sale or disposition of the
kind described in clause (c) or (d) of this definition) after September
30, 1998, exceeds an amount equal to 15% of the Parent's Net Worth on
September 30, 1998, if an amount equal to 75% of the Net Asset Sale
Proceeds therefrom is used to repay Loans pursuant to Section 3.1.1(c)
and/or results in a reduction of the Total Commitment Amount pursuant
to Section 2.2.2;
(b) any sale or other disposition by the Parent and its
Subsidiaries the proceeds of which, when added to the aggregate
proceeds of all other such sales or dispositions (other than any
Permitted Receivables Transaction or any sale or disposition of the
kind described in clause (c) or (d) of this definition) after September
30, 1998, does not exceed an amount equal to 15% of the Parent's Net
Worth on September 30, 1998;
(c) any sale or other disposition of inventory in the ordinary
course of business, including any new distribution arrangements
developed in the future to provide goods and services to customers,
including without limitation, start-up payments, selling concessions,
sale or return or consignment arrangements, pharmacy management and
outsourcing services, stockless inventory systems and deferred billing
or delayed payment terms; and
(d) any sale or other disposition of any property which is
obsolete or replaced with similar property substantially
contemporaneously therewith.
"Permitted Receivables Transaction" means any agreement of the Parent
or any of its Subsidiaries providing for sales, transfers or conveyances of up
to $150,000,000 of receivables purporting to be sales (and considered sales
under GAAP).
"Person" means any natural person, corporation, partnership, firm,
association, trust, government, governmental agency or any other entity, whether
acting in an individual, fiduciary or other capacity.
"PharMerica" means PharMerica, Inc., a Delaware corporation.
"PharMerica Acquisition" means the acquisition of PharMerica by the
Parent pursuant to the terms of that certain [describe acquisition/merger
agreement].
Exhibit 10(f)-Schedule 1 Page 14
"PharMerica Credit Agreement" means that certain credit agreement dated
as of December 3, 1997 by and among PharMerica, the lenders party thereto, CIBC
Xxxxxxxxxxx Corp., as syndication agent, Bank of America, as documentation agent
and The Chase Manhattan Bank, as administrative agent, as same has been amended
prior to the date hereof.
"PharMerica Indenture" means that certain Indenture dated as of March
31, 1998, among PharMerica, certain Subsidiaries of PharMerica and Xxxxxx Trust
and Savings Bank, as trustee, pursuant to which the PharMerica Subordinated
Notes were issued.
"PharMerica Subordinated Notes" means those certain 8 3/8% Senior
Subordinated Notes due 2008 in the aggregate principal amount of $325,000,000
issued by PharMerica pursuant to the PharMerica Indenture.
"Plan" means any Pension Plan or Welfare Plan.
"Quarterly Payment Date" means the last day of each March, June,
September and December or, if any such day is not a Business Day, the next
succeeding Business Day.
"Reference Lender" means Bank of America and up to two other Lenders
nominated as Reference Lenders from time to time by Bank of America.
"Release" means a "release", as such term is defined in CERCLA.
"Replacement Lender" is defined in Section 4.10(b).
"Required Lenders" means, at any time when the Commitments shall remain
in effect, Lenders holding more than 50% of the then aggregate outstanding
principal amount of the Contract Note, or, if no such principal amount is then
outstanding, Lenders having Commitments constituting more than 50% of the Total
Commitment Amount or, at any time when the Commitments of the Lenders shall have
terminated pursuant to Section 8.2 or 8.3, Lenders holding more than 50% of the
aggregate principal amount of the Loans then outstanding.
"Resource Conservation and Recovery Act" means the Resource
Conservation and Recovery Act, 42 U.S.C. Section 690, et seq.
"Responsible Officer" means, relative to any event or condition (x)
affecting or otherwise relating to the Parent or the Borrower, an officer or
employee thereof who in the ordinary course of business has or exercises
responsibility for events and conditions similar to such event or condition and
(y) affecting or otherwise relating to any Lender, a senior officer (such as,
for example, senior vice president) who in the ordinary course of business has
and exercises responsibility for events and conditions similar to such event or
condition and who has customer relationship responsibility for the Parent or the
Borrower.
Exhibit 10(f)-Schedule 1 Page 15
"Reverse Repos" means an agreement providing for the transfer of funds
against the delivery at a date certain (not later than one year after such
transfer) or on demand of, or a short term loan having a maturity of less than
one year secured by, certificates of deposit, eligible bankers' acceptances or
securities that are direct unconditional obligations of, or that are fully
guaranteed as to principal and interest by, the United States of America or any
agency thereof or a State or other political subdivision thereof and such other
securities as may be accepted for transfer by a reputable counterparty or
acceptable collateral for a loan by a financial institution.
"S&P" means Standard & Poor's Corporation.
"Senior Credit Facilities" means, collectively, this agreement and the
$400,000,000 Senior Credit Facility.
"Senior Debt Rating" means, on any date, without regard to credit
enhancement (a) the senior debt rating actually or implicitly assigned to the
Parent by Moody's and Standard & Poor's or (b) if no senior debt rating has been
so assigned, it shall be presumed that Moody's has assigned a rating below Baa3
and that Standard & Poor's has assigned a rating below BBB-.
"Significant Subsidiary" means, with respect to any Person, any
Subsidiary of such Person which would be a "significant subsidiary" of such
Person under Regulation S-X as in effect on the date hereof of the Securities
and Exchange Commission if such Person were the registrant referred to therein
and the references to "10 percent" in clauses (1) and (2) of the definition
thereof were to 3 percent and to "10 percent" in clause (3) of such definition
were to 5 percent.
"Stated Maturity Date" is defined in Section 2.7.1(b).
"Subsidiary" means, with respect to any Person, any corporation of
which more than 50% of the outstanding capital stock having ordinary voting
power to elect a majority of the board of directors of such corporation
(irrespective of whether at the time capital stock of any other class or classes
of such corporation shall or might have voting power upon the occurrence of any
contingency) is at the time directly or indirectly owned by such Person, by such
Person and one or more other Subsidiaries of such Person, or by one or more
other Subsidiaries of such Person or otherwise, directly or indirectly,
controlled by such Person, by such Person and one or more other Subsidiaries of
such Person or by one or more other Subsidiaries of such Person and includes any
similar entity (other than a corporation) so owned or controlled.
For purposes of this definition of "Subsidiary", a Person shall be
deemed to be "controlled by" any other Person if such other Person possesses,
directly or indirectly, power to direct or cause the direction of the management
and policies of such Person whether by contract or otherwise.
Exhibit 10(f)-Schedule 1 Page 16
"Swing Borrowing" means Swing Loans made by the Administrative Agent on
the same Business Day pursuant to the same Swing Borrowing Request.
"Swing Borrowing Request" means a loan request and certificate, duly
completed and executed by an Authorized Officer of the Borrower, substantially
in the form of Exhibit C-3.
"Swing Line" is defined in Section 2.5(a).
"Swing Line Commitment" is defined in Section 2.5(a).
"Swing Line Lender" means Bank of America.
"Swing Loan" is defined in Section 2.5(a).
"Syndication Agent" is defined in the preamble.
"Taxes" is defined in Section 4.6.
"Total Capital" means, on any date, the sum of (x) the consolidated
Funded Debt plus (y) the Net Worth on such date plus, without duplication, (z)
the aggregate outstanding face amount of the Guaranteed Preferred Securities.
"Total Commitment Amount" means, on any date, $600,000,000, as such
amount may be reduced from time to time pursuant to Section 2.2.
"Transferee" is defined in Section 10.12.
"Trusts" is defined in the definition of "Guaranteed Preferred
Securities".
"type" means, relative to any Contract Loan, the portion thereof, if
any, being maintained as a Base Rate Loan or a Eurodollar Rate Loan.
"United States" or "U.S." means the United States of America, its fifty
States and the District of Columbia.
"Utilization Fee Rate" means, at any time, the applicable rate
(expressed in basis points) set forth in the table below based on the Parent's
then Senior Debt Rating:
Exhibit 10(f)-Schedule 1 Page 17
Senior Debt Rating
------------------
Xxxxx'x S&P Rate
------- --- ----
A2 or higher A or higher 10.0
A3 X- 00.0
Xxx0 BBB+ 12.5
Baa2 BBB 12.5
Baa3 BBB- 12.5
Below Baa3 Below BBB- 25.0
; provided that, for purposes of determining such rate, if Xxxxx'x and
S&P have split Senior Debt Ratings with a difference of only one rating
tier, the higher Senior Debt Rating shall be determinative and the
lower Senior Debt Rating shall be disregarded; and provided, further,
if Xxxxx'x and S&P have split Senior Debt Ratings with a difference of
more than one rating tier, one rating tier below the higher Senior Debt
Rating will be determinative and both Senior Debt Ratings will be
disregarded.
"Welfare Plan" means a "welfare plan", as such term is defined in
section 3(1) of ERISA.
Exhibit 10(f)-Schedule 1 Page 18
SCHEDULE II
DISCLOSURE SCHEDULE
-------------------
ITEM 5.1.5/6.6 Potential MACs.
------------------------------
ITEM 6.2 Potential Contravention.
---------------------------------
ITEM 6.7 Litigation.
--------------------
ITEM 6.8 Existing Subsidiaries.
-------------------------------
ITEM 6.12 Employee Benefit Plans.
---------------------------------
ITEM 6.13 Environmental Matters.
--------------------------------
ITEM 7.2.1(b) Ongoing Indebtedness.
-----------------------------------
ITEM 7.2.1(c) Indebtedness to be Paid.
--------------------------------------
ITEM 7.2.2(b) Existing Liens.
-----------------------------
Exhibit 10(f) - Schedule II Page 1
SCHEDULE III
Lenders, Commitments and Percentages
------------------------------------
Lender Commitment Percentage
------ ---------- ----------
Bank of America $62,500,000 10.4167%
National Trust and
Savings Association
The Chase Manhattan Bank $62,500,000 10.4167%
Wachovia Bank, N.A. $57,500,000 9.5832%
ABN-AMRO Bank, N.V. $45,000,000 7.5000%
Los Angeles
Bank of Montreal $45,000,000 7.5000%
First Union National Bank $45,000,000 7.5000%
Banca Nazionale del Lavoro $22,500,000 3.7500%
Banco Popular de Puerto Rico $22,500,000 3.7500%
Bank of Hawaii $22,500,000 3.7500%
The Bank of New York $22,500,000 3.7500%
The Bank of Nova Scotia $22,500,000 3.7500%
Fleet National Bank $22,500,000 3.7500%
Mellon Bank, N.A. $22,500,000 3.7500%
National City Bank $22,500,000 3.7500%
The Northern Trust Company $22,500,000 3.7500%
SunTrust Bank, $22,500,000 3.7500%
Central Florida, X.X.
Xxxxx Fargo Bank, N.A. $22,500,000 3.7500%
Fifth Third Bank $15,000,000 2.5000%
Banca di Roma $10,000,000 1.6667%
Via Bank $10,000,000 1.6667%
----------- -------
$600,000,000 100%
Exhibit 10(f) - Schedule III Page 1
EXHIBIT A-1
CONTRACT NOTE
$_____________ April 23, 1999
FOR VALUE RECEIVED, the undersigned, BERGEN XXXXXXXX DRUG COMPANY, a
California corporation and BERGEN XXXXXXXX CORPORATION, a New Jersey corporation
(collectively, the "Borrowers"), jointly and severally promise to pay to the
order of ____________________ (the "Lender") at the offices of BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION, as administrative agent (the
"Administrative Agent") for the financial institutions as are or may become
parties to the Credit Agreement hereinafter referred to (collectively, the
"Lenders"), the principal sum of __________________________ ($____________) or,
if less, the aggregate unpaid principal amount of all Contract Loans made by the
Lender pursuant to that certain Credit Agreement, dated as of April 23, 1999, as
amended (together with all further amendments and other modifications, if any,
from time to time thereafter made thereto, the "Credit Agreement"), among the
Borrowers, the Lenders, the Administrative Agent, Chase Securities Inc., as
Syndication Agent, and Wachovia Bank, N.A., as Documentation Agent, payable in
full on the Final Maturity Date.
The Borrowers also promise to pay interest on the unpaid principal
amount hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) and, after maturity, until paid, at the
rates per annum and on the dates specified in the Credit Agreement.
Payments of both principal and interest are to be made in lawful money
of the United States of America in same day or immediately available funds to
the account designated by the Administrative Agent pursuant to the Credit
Agreement.
This Note is one of the Contract Notes referred to in, and evidences
Indebtedness incurred under, the Credit Agreement, to which reference is made
for a statement of the terms and conditions on which the Borrowers are permitted
and required to make prepayments and repayments of principal of the Contract
Loans evidenced by this Note and on which such Loans may be declared to be or
may become immediately due and payable. Unless otherwise defined, terms used
herein have the meanings provided in the Credit Agreement.
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive presentment for payment, demand, protest and notice of dishonor.
Exhibit 10(f) Exhibit A - Page 1
THIS NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF NEW YORK.
BERGEN XXXXXXXX DRUG COMPANY
By
Title:
BERGEN XXXXXXXX CORPORATION
By
Title:
Exhibit 10(f) Exhibit A - Page 2
EXHIBIT A-1
CONTRACT LOANS AND PRINCIPAL PAYMENTS
||
=========================================================================================================
of Contract Amount of Unpaid
Loan Made Principal Repaid Principal Balance
--------------- ---------------- -----------------
Date Base Eurodollar Interest Period (if Base Eurodollar Base Eurodollar Total Notation
---- Rate Rate applicable) Rate Rate Rate Rate Made By
---- ---- ---------- ---- ---- ---- ---- ----- -------
--------- --------------- ----------------------- ----------------- ----------------- -------- ---------
--------- --------------- ----------------------- ----------------- ----------------- -------- ---------
--------- --------------- ----------------------- ----------------- ----------------- -------- ---------
--------- --------------- ----------------------- ----------------- ----------------- -------- ---------
--------- --------------- ----------------------- ----------------- ----------------- -------- ---------
--------- --------------- ----------------------- ----------------- ----------------- -------- ---------
--------- --------------- ----------------------- ----------------- ----------------- -------- ---------
--------- --------------- ----------------------- ----------------- ----------------- -------- ---------
--------- --------------- ----------------------- ----------------- ----------------- -------- ---------
--------- --------------- ----------------------- ----------------- ----------------- -------- ---------
--------- --------------- ----------------------- ----------------- ----------------- -------- ---------
--------- --------------- ----------------------- ----------------- ----------------- -------- ---------
--------- --------------- ----------------------- ----------------- ----------------- -------- ---------
Exhibit 10(f) Exhibit A - Page 3
EXHIBIT A-2
BID NOTE
April 23, 1999
FOR VALUE RECEIVED, the undersigned, BERGEN XXXXXXXX DRUG
COMPANY, a California corporation and BERGEN XXXXXXXX CORPORATION, a New
Jersey corporation (collectively, the "Borrowers"), jointly and severally
promise to pay to the order of _____________________ (the "Lender") at the
offices of BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as
administrative agent (the "Administrative Agent") for the financial
institutions as are or may become parties to the Credit Agreement
hereinafter referred to (collectively, the "Lenders"), the aggregate
unpaid principal amount of all Bid Loans made by the Lender pursuant to
that certain Credit Agreement, dated as of April 23, 1999, as amended
(together with all further amendments and other modifications, if any,
from time to time thereafter made thereto, the "Credit Agreement"), among
the Borrowers, the Lenders, the Administrative Agent, Chase Securities
inc., as Syndication Agent, and Wachovia Bank, N.A., as Documentation
Agent, payable in full on the Final Maturity Date.
The Borrowers also promise to pay interest on the unpaid
principal amount hereof from time to time outstanding from the date hereof
until maturity (whether by acceleration or otherwise) and, after maturity,
until paid, at the rates per annum and on the dates specified or otherwise
provided in the Credit Agreement.
Payments of both principal and interest are to be made in lawful
money of the United States of America in same day or immediately available
funds to the account designated by the Administrative Agent pursuant to
the Credit Agreement.
This Note is one of the Bid Notes referred to in, and evidences
Indebtedness incurred under, the Credit Agreement, to which reference is
made for a statement of the terms and conditions on which the Borrowers
are permitted and required to make prepayments and repayments of principal
of the Bid Loans evidenced by this Note and on which such Loans may be
declared to be or may become immediately due and payable. Unless otherwise
defined, terms used herein have the meanings provided in the Credit
Agreement.
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive presentment for payment, demand, protest and notice of dishonor.
Exhibit 10(f) Exhibit A - Page 4
THIS NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
BERGEN XXXXXXXX DRUG COMPANY
By
Title:
BERGEN XXXXXXXX CORPORATION
By
Title:
Exhibit 10(f) Exhibit A - Page 5
EXHIBIT A-2
BID LOANS AND PRINCIPAL PAYMENTS
=============================================================================================================
||
Amount of Stated Maturity Amount of Unpaid Notation
Date Bid Loan Made Date Principal Repaid Principal Balance Total Made By
---- ------------- ---- ---------------- ----------------- ----- --------
--------- ----------------- --------------- ----------------- ----------------- ----------- -----------------
--------- ----------------- --------------- ----------------- ----------------- ----------- -----------------
--------- ----------------- --------------- ----------------- ----------------- ----------- -----------------
--------- ----------------- --------------- ----------------- ----------------- ----------- -----------------
--------- ----------------- --------------- ----------------- ----------------- ----------- -----------------
--------- ----------------- --------------- ----------------- ----------------- ----------- -----------------
--------- ----------------- --------------- ----------------- ----------------- ----------- -----------------
--------- ----------------- --------------- ----------------- ----------------- ----------- -----------------
--------- ----------------- --------------- ----------------- ----------------- ----------- -----------------
--------- ----------------- --------------- ----------------- ----------------- ----------- -----------------
--------- ----------------- --------------- ----------------- ----------------- ----------- -----------------
||
Exhibit 10(f) Exhibit A - Page 6
EXHIBIT A-3
SWING NOTE
$50,000,000 April 23, 1999
FOR VALUE RECEIVED, the undersigned, BERGEN XXXXXXXX DRUG
COMPANY, a California corporation and BERGEN XXXXXXXX CORPORATION, a New
Jersey corporation (collectively, the "Borrowers"), jointly and severally
promise to pay to the order of BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as administrative agent (the "Administrative Agent") for the
Swing Line Lender under the Credit Agreement hereinafter referred to
(collectively, the "Lenders"), the principal sum of FIFTY MILLION DOLLARS
($50,000,000) or, if less, the aggregate unpaid principal amount of all
Swing Loans made by the Administrative Agent pursuant to that certain
Credit Agreement, dated as of April 23, 1999, as amended prior to the date
hereof (together with all amendments and other modifications, if any, from
time to time thereafter made thereto, the "Credit Agreement"), among the
Borrowers, the Lenders, the Administrative Agent, Chase Securities Inc.,
as Syndication Agent, and Wachovia Bank, N.A., as Documentation Agent,
payable in full on the Commitment Termination Date or demand, whichever is
earlier.
The Borrowers also promise to pay interest on the unpaid
principal amount hereof from time to time outstanding from the date hereof
until maturity (whether by acceleration or otherwise) and, after maturity,
until paid, at the rates per annum and on the dates specified in the
Credit Agreement.
Payments of both principal and interest are to be made in lawful
money of the United States of America in same day or immediately available
funds to the account designated by the Administrative Agent pursuant to
the Credit Agreement.
This Note is the Swing Note referred to in, and evidences
Indebtedness incurred under, the Credit Agreement, to which reference is
made for a statement of the terms and conditions on which the Borrowers
are permitted and required to make prepayments and repayments of principal
of the Swing Loans evidenced by this Note and on which such Loans may be
declared to be immediately due and payable. Unless otherwise defined,
terms used herein have the meanings provided in the Credit Agreement.
Exhibit 10(f) Exhibit A - Page 7
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive presentment for payment, demand, protest and notice of dishonor.
THIS NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF NEW YORK.
BERGEN XXXXXXXX DRUG COMPANY
By___________________________
Title:
BERGEN XXXXXXXX CORPORATION
By___________________________
Title:
Exhibit 10(f) Exhibit A - Page 8
SWING LOANS AND PRINCIPAL PAYMENTS
================================================================================
||
Amount Amount of Unpaid
of Swing Principal Principal Notation
Date Loan Made Rapaid Balance Total Made By
---- --------- --------- --------- ----------- ---------
---------- ------------ ------------ ------------- ------------ ----------------
---------- ------------ ------------ ------------- ------------ ----------------
---------- ------------ ------------ ------------- ------------ ----------------
---------- ------------ ------------ ------------- ------------ ----------------
---------- ------------ ------------ ------------- ------------ ----------------
---------- ------------ ------------ ------------- ------------ ----------------
---------- ------------ ------------ ------------- ------------ ----------------
---------- ------------ ------------ ------------- ------------ ----------------
---------- ------------ ------------ ------------- ------------ ----------------
---------- ------------ ------------ ------------- ------------ ----------------
---------- ------------ ------------ ------------- ------------ ----------------
||
Exhibit 10(f) Exhibit A - Page 9
EXHIBIT B-1
BID BORROWING REQUEST
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Administrative Agent
Global Agency #5596
0000 Xxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Telephone: (415) 622-____
BERGEN XXXXXXXX DRUG COMPANY AND BERGEN XXXXXXXX CORPORATION
------------------------------------------------------------
Ladies/Gentlemen:
This Bid Borrowing Request is delivered to you pursuant to Section
2.7.1 of the Credit Agreement, dated as of April 23, 1999 (together with all
amendments, if any, from time to time made thereto, the "Credit Agreement"),
among Bergen Xxxxxxxx Drug Company, a California corporation and Bergen Xxxxxxxx
Corporation, a New jersey corporation (collectively, the "Borrowers"), the
Lenders party thereto, Bank of America National Trust and Savings Association,
as Administrative Agent, Chase Securities Inc., as Syndication Agent, and
Wachovia Bank, N.A., as Documentation Agent. Unless otherwise defined herein or
the context otherwise requires, terms used herein have the meanings provided in
the Credit Agreement.
The Borrowers hereby propose that a Bid Borrowing be made on the
following terms:
A. 1. Stated Maturity Date:1/ ________________________.
2. Date of Bid Borrowing:2/ ________________________.
----------------
1/ No earlier than seven days after the date of the Bid Borrowing
requested herein, and no later than the earlier of (x) the date which
is 270 days after the date of such Bid Borrowing and (y) the Commitment
Termination Date.
2/ A Business Day at least 1 Business Day after the delivery (including by
facsimile) of this Bid Borrowing Request.
Exhibit 10(f) Exhibit B - Page 1
3. Amount of Bid Borrowing:3/ ________________________.
B. [Repeat as necessary.]
The Borrowers have caused this Bid Borrowing Request to be executed and
delivered by their duly Authorized Officers this _____ day of _______________,
19__.
BERGEN XXXXXXXX DRUG COMPANY
By_________________________________
Title:
BERGEN XXXXXXXX CORPORATION
By_________________________________
Title:
3/ A minimum aggregate principal amount of $10,000,000 and an integral
multiple of $5,000,000.
Exhibit 10(f) Exhibit B - Page 2
EXHIBIT B-2
BID OFFER
_______________, 19__
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Administrative Agent
Global Agency #5596
0000 Xxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Telephone: (415) 622-____
BERGEN XXXXXXXX DRUG COMPANY AND BERGEN XXXXXXXX CORPORATION
------------------------------------------------------------
Ladies/Gentlemen:
This Bid Offer is delivered to you as Administrative Agent pursuant to
Section 2.7.2 of the Credit Agreement, dated as of April 23, 1999 (together with
all amendments, if any, from time to time made thereto, the "Credit Agreement"),
among Bergen Xxxxxxxx Drug Company, a California corporation and Bergen Xxxxxxxx
Corporation, a New Jersey corporation (collectively, the "Borrowers"), the
Lenders parties thereto, Bank of America National Trust and Savings Association,
as Administrative Agent, Chase Securities Inc., as Syndication Agent, and
Wachovia Bank, N.A., as Documentation Agent. Unless otherwise defined herein or
the context otherwise requires, terms used herein have the meanings provided in
the Credit Agreement.
The undersigned Lender hereby makes a Bid Offer, in response to the Bid
Borrowing Request made by the Borrowers on [_______________, 19__], on the
following terms:
A. Bid Loan with Stated Maturity Date: ______________________.
Amount Rate per annum1/
----------------------
1/ Expressed to the nearest 1/10,000 of 1%.
Exhibit 10(f) Exhibit B - Page 3
1. $___________ at _____% p.a.
2. $___________ at _____% p.a.
3. $___________ at _____% p.a.
B. [Repeat as necessary.]
[NAME OF LENDER]
By_________________________________
Name:
Title:
Exhibit 10(f) Exhibit B - Page 4
EXHIBIT B-3
BID ACKNOWLEDGMENT
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Administrative Agent
Global Agency #5596
0000 Xxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Telephone: (415) 622-____
BERGEN XXXXXXXX DRUG COMPANY AND BERGEN XXXXXXXX CORPORATION
------------------------------------------------------------
Ladies/Gentlemen:
This Bid Acknowledgment is delivered to you pursuant to Section 2.7.4
of the Credit Agreement, dated as of April 23, 1999 (together with all
amendments, if any, from time to time made thereto, the "Credit Agreement"),
among Bergen Xxxxxxxx Drug Company, a California corporation and Bergen Xxxxxxxx
Corporation, a New Jersey corporation (collectively, the "Borrowers"), the
Lenders party thereto, Bank of America National Trust and Savings Association,
as Administrative Agent, Chase Securities Inc., as Syndication Agent, and
Wachovia Bank, N.A., as Documentation Agent. Unless otherwise defined herein or
the context otherwise requires, terms used herein have the meanings provided in
the Credit Agreement.
The Borrowers hereby accept the following Bid Offer(s), dated
_______________, 19__, for the Bid Borrowing to take place on _______________,
19__, on the following terms:
A. [Lender]
1. Principal Amount
of Bid Loan $___________________
2. Stated Maturity Date ______________, 19__
3. Amount of, and Bid Rate
for, each Bid Loan $______ at ___% p.a.
$______ at ___% p.a.
$______ at ___% p.a.
$______ at ___% p.a.
Exhibit 10(f) Exhibit B - Page 5
B. [Lender]
1. Principal Amount
of Bid Loan $___________________
2. Stated Maturity Date ______________, 19__
3. Amount of, and Bid Rate
for, each Bid Loan $______ at ___% p.a.
$______ at ___% p.a.
$______ at ___% p.a.
$______ at ___% p.a.
C. [Repeat as necessary.]
The Borrowers hereby confirm to each Lender that the Bid Offer(s)
received by the Borrowers in connection with the above-described Bid Borrowing
Request was(were) accepted or rejected in accordance with the terms and
provisions of Section 2.7.3 of the Credit Agreement.
The Borrowers hereby certify and warrant that on the date hereof and on
the date of the Bid Borrowing comprising the Bid Offers accepted hereby (after
giving effect to such Borrowing, but without, if any Default of the type
referred to in Section 8.1.5 of the Credit Agreement with respect to any other
Indebtedness shall have occurred with respect to any other Indebtedness, giving
effect to the application, directly or indirectly, of the proceeds thereof,
unless the proceeds of such Borrowing are applied to pay such other Indebtedness
in full):
(a) the representations and warranties set forth in Article VI
of the Credit Agreement are and will be true and correct in all
material respects as if then made;
(b) no Default has occurred and is continuing or will have
occurred and be continuing;
(c) the aggregate amount of the requested Bid Borrowing and
all other Loans outstanding on the date of the requested Bid Borrowing
does not and will not exceed the Total Commitment Amount.
The Borrowers agree that if, prior to the time of the Bid Borrowing
comprising the Bid Offers accepted hereby, any matter certified to herein by it
will not be true and correct at such time as if then made, it will immediately
so notify the Administrative Agent. Except to the extent, if any, that prior to
the time of such Bid Borrowing the Administrative Agent shall receive written
Exhibit 10(f) Exhibit B - Page 6
notice to the contrary from the Borrowers, each matter certified to herein shall
be deemed once again to be certified as true and correct at the date of such
Borrowing as if then made.
Please wire transfer the proceeds of the Contract Borrowing requested
hereby to the accounts of the following persons at the financial institutions
indicated respectively:
Amount to be Person to be Paid
Transferred Name Account No.
----------- ---- -----------
$---------- ------------ ------------
$---------- ------------ ------------
Balance of The Borrower ____________
such proceeds
The Borrowers have caused this Bid Acknowledgment to be executed and
delivered, and the certification and warranties contained herein to be made, by
their duly Authorized Officers this _____ day of _______________, 19__.
BERGEN XXXXXXXX DRUG COMPANY
By_________________________________
Title:
BERGEN XXXXXXXX CORPORATION
By_________________________________
Title:
Exhibit 10(f) Exhibit B - Page 7
EXHIBIT C-1
CONTRACT BORROWING REQUEST
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Administrative Agent
Global Agency #5596
0000 Xxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Telephone: (415) 622-____
BERGEN XXXXXXXX DRUG COMPANY AND BERGEN XXXXXXXX CORPORATION
------------------------------------------------------------
Ladies/Gentlemen:
This Borrowing Request is delivered to you pursuant to Section 2.3 of
the Credit Agreement, dated as of April 23, 1999 (together with all amendments
and other modifications, if any, from time to time made thereto, the "Credit
Agreement"), among Bergen Xxxxxxxx Drug Company, a California corporation and
Bergen Xxxxxxxx Corporation, a New Jersey corporation (collectively, the
"Borrowers"), certain financial institutions, Bank of America National Trust and
Savings Association, as administrative agent (the "Administrative Agent"), Chase
Securities Inc., as Syndication Agent, and Wachovia Bank, N.A., as Documentation
Agent. Unless otherwise defined herein or the context otherwise requires, terms
used herein have the meanings provided in the Credit Agreement.
The Borrowers hereby request that a Contract Borrowing of Contract
Loans be made in the aggregate principal amount of $__________ on
_______________, 19__ as [Eurodollar Rate Loans having an Interest Period of
_____ months] [Base Rate Loans].
The Borrowers hereby acknowledge that, pursuant to Section 5.3 of the
Credit Agreement, each of the delivery of this Contract Borrowing Request and
the acceptance by the Borrowers of the proceeds of the Contract Loans requested
hereby constitute representations and warranties by the Borrowers that, on the
date of such Contract Loans, and immediately before and after giving effect
thereto and to the application of the proceeds therefrom, all statements set
Exhibit 10(f) Exhibit C - Page 1
forth in Section 5.2.1 are true and correct in all material respects.
The Borrowers agree that if, prior to the time of the Borrowing
requested hereby, any matter certified to herein by it will not be true and
correct at such time as if then made, it will immediately so notify the
Administrative Agent. Except to the extent, if any, that prior to the time of
the Contract Borrowing requested hereby the Administrative Agent shall receive
written notice to the contrary from the Borrowers, each matter certified to
herein shall be deemed once again to be certified as true and correct on the
date of such Borrowing as if then made.
Please wire transfer the proceeds of the Contract Borrowing requested hereby to
the accounts of the following persons at the financial institutions indicated
respectively:
Amount to be Person to be Paid
Transferred Name Account No.
----------- ---- -----------
$---------- ------------ ------------
$---------- ------------ ------------
Balance of The Borrowers ____________
such proceeds
The Borrowers have caused this Borrowing Request to be executed and
delivered, and the certification and warranties contained herein to be made, by
their duly Authorized Officers this _____ day of _______________, 19__.
BERGEN XXXXXXXX DRUG COMPANY
By___________________________________
Title:
BERGEN XXXXXXXX CORPORATION
By___________________________________
Title:
Exhibit 10(f) Exhibit C - Page 2
EXHIBIT C-2
CONTRACT CONTINUATION/CONVERSION NOTICE
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Administrative Agent
Global Agency #5596
0000 Xxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Telephone: (415) 622-____
BERGEN XXXXXXXX DRUG COMPANY AND BERGEN XXXXXXXX CORPORATION
------------------------------------------------------------
Ladies/Gentlemen:
This Contract Continuation/Conversion Notice is delivered to you
pursuant to Section 2.4 of the Credit Agreement, dated as of April 23, 1999
(together with all amendments and other modifications, if any, from time to time
made thereto, the "Credit Agreement"), among Bergen Xxxxxxxx Drug Company, a
California corporation and Bergen Xxxxxxxx Corporation, a New Jersey corporation
(the "Borrowers), certain financial institutions, Bank of America National Trust
and Savings Association, as administrative agent (the "Administrative Agent"),
Chase Securities Inc., as Syndication Agent, and Wachovia Bank, N.A., as
Documentation Agent. Unless otherwise defined herein or the context otherwise
requires, terms used herein have the meanings provided in the Credit Agreement.
The Borrowers hereby request that on _______________, 19__,
(1) $__________ of the presently outstanding principal amount of the
Contract Loans originally made on _______________, 19__,
(2) all presently outstanding Contract Loans being maintained as [Base
Rate Loans] [Eurodollar Rate Loans],
(3) be [converted into] [continued as],
(4) [Eurodollar Rate Loans having an Interest Period of _____ months]
[Base Rate Loans].
Exhibit 10(f) Exhibit C - Page 3
The Borrowers hereby acknowledge that, pursuant to Section 5.3 of the
Credit Agreement, the delivery of this Contract Continuation/Conversion Notice
constitutes a representations and warranties by the Borrowers that, on the date
of such Conversion/Continuation, and before and after giving effect thereto, all
statements set forth in Section 5.2.1 are true and correct in all material
respects.
The Borrowers agree that if, prior to the time of the
Conversion/Continuation requested hereby, any matter certified to herein by it
will not be true and correct at such time as if then made, it will immediately
so notify the Administrative Agent. Except to the extent, if any, that prior to
the time of the Borrowing requested hereby the Administrative Agent shall
receive written notice to the contrary from the Borrowers, each matter certified
to herein shall be deemed once again to be certified as true and correct at the
date of such Borrowing as if then made.
The Borrowers have caused this Contract Continuation/Conversion Notice
to be executed and delivered, and the certification and warranties contained
herein to be made, by their Authorized Officers this _____ day of
_______________, 19__.
BERGEN XXXXXXXX DRUG COMPANY
By___________________________________
Title:
BERGEN XXXXXXXX CORPORATION
By___________________________________
Title:
Exhibit 10(f) Exhibit C - Page 4
EXHIBIT D
GUARANTY
THIS GUARANTY (this "Guaranty"), dated as of ________, ____, made by
________________, a ______________ (the "Guarantor"), in favor of BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, a national banking association
("BankAmerica"), as administrative agent (in such capacity, the "Administrative
Agent"), for the Lenders (hereinafter defined),
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, dated as of April 23, 1999
(together with all amendments and other modifications, if any, from time to time
made thereto, the "Credit Agreement"), among Bergen Xxxxxxxx Drug Company, a
California corporation and Bergen Xxxxxxxx Corporation, a New Jersey corporation
(the "Borrowers), certain financial institutions which are, or may become,
parties thereto (the "Lenders"), Bank of America National Trust and Savings
Association, as administrative agent (the "Administrative Agent"), Chase
Securities Inc., as Syndication Agent, and Wachovia Bank, N.A., as Documentation
Agent, the Lenders have extended their respective Commitments (this and other
capitalized terms used but not otherwise defined herein having the same
respective meanings as are ascribed to them in the Credit Agreement) to make
Loans to the Borrowers; and
WHEREAS, Guarantor has duly authorized the execution, delivery and
performance of this Guaranty; and
WHEREAS, it is in the best interests of Guarantor to execute this
Guaranty inasmuch as Guarantor will derive substantial direct and indirect
benefits from the Loans made from time to time to the Borrowers by the Lenders
pursuant to the Credit Agreement;
NOW THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, and in order to induce the Lenders to make the
Loans to the Borrowers pursuant to the Credit Agreement, Guarantor agrees, for
the benefit of the Lenders and the Administrative Agent as follows,
ARTICLE I
DEFINITIONS
SECTION I.1. Certain Terms. The following terms (whether or not
underscored) when used in this Guaranty, including its preamble and recitals,
shall have the following meanings (such definitions to be equally applicable to
the singular and plural forms thereof):
Exhibit 10(f) Exhibit D - Page 1
"Administrative Agent" is defined in the preamble.
"Borrowers" is defined in the first recital.
"Credit Agreement" is defined in the first recital.
"Guaranteed Obligations" is defined in Section 2.1.
"Guaranty" is defined in the preamble.
"Lenders" is defined in the first recital.
"Guarantor" is defined in the first recital.
SECTION I.2. Interpretation. This Guaranty is a Credit Document and,
accordingly, shall be interpreted as provided in the Credit Agreement, including
Section 1.2 thereof.
ARTICLE II
GUARANTY PROVISIONS
SECTION II.1. Guaranty. Guarantor hereby absolutely, unconditionally
and irrevocably (all of the following guaranteed and indemnified obligations
being collectively called the "Guaranteed Obligations")
(a) guarantees the full and punctual payment when due, whether
at stated maturity, by required prepayment, declaration, acceleration,
demand or otherwise, and due and punctual performance of all
Obligations of the Borrowers now or hereafter existing, whether for
principal, interest, fees, expenses or otherwise, and all other
obligations of the Borrowers to the Administrative Agent and the
Lenders, howsoever created, arising or evidenced under the Credit
Agreement, the Notes and each other Credit Document to which the
Borrowers are a party, whether direct or indirect, absolute or
contingent or now or hereafter existing or due or to become due
(including in all cases all such amounts which would become due but for
the operation of the automatic stay under Section 362(a) of the United
States Bankruptcy Code, 11 U.S.C. 362(a), and the operation of Sections
502(b) and 506(b) of the United States Bankruptcy Code, 11 U.S.C.
502(b) and 506(b)), and
(b) indemnifies and holds harmless the Administrative Agent
and the Lenders and each holder of the Note from and against any and
all costs and expenses (including reasonable attorney's fees and
expenses) incurred by the Administrative Agent or any Lender or such
holder, as the case may be, in enforcing any rights under this
Guaranty.
SECTION II.2. Acceleration of Guaranty. Guarantor agrees that, in the
event of the dissolution or insolvency of the either of the Borrowers or
Exhibit 10(f) Exhibit D - Page 2
Guarantor, or the inability or failure of the Borrowers or Guarantor to pay
debts as they become due, or an assignment by the Borrowers or Guarantor for the
benefit of creditors, or the commencement of any case or proceeding in respect
of the Borrowers or Guarantor under any bankruptcy, insolvency or similar laws,
and if such event shall occur at a time when any of the Guaranteed Obligations
may not then be due and payable, Guarantor will pay to the Administrative Agent
forthwith the full amount which would be payable hereunder by Guarantor if all
such Guaranteed Obligations were then due and payable.
SECTION II.3. Guaranty Absolute, etc. This Guaranty shall in all
respects be a continuing, absolute, unconditional and irrevocable guaranty, and
shall remain in full force and effect until all Guaranteed Obligations have been
paid and otherwise performed in full, all obligations of Guarantor hereunder
shall have been paid in full and the Commitments shall have terminated.
Guarantor guarantees that the Guaranteed Obligations will be paid and otherwise
performed strictly in accordance with the terms of the Credit Agreement and each
other Credit Document under which they arise, regardless of any law, regulation
or order now or hereafter in effect in any jurisdiction affecting any of such
terms or the rights of the Administrative Agent and the Lenders or any holder of
any Note with respect thereto. The liability of Guarantor under this Guaranty
shall be absolute, unconditional and irrevocable irrespective of:
(a) any lack of validity, legality or enforceability of the
Credit Agreement, any Note or any other Credit Document;
(b) the failure of the Administrative Agent or any Lender or
any holder of any Note
(i) to assert any claim or demand or to enforce any
right or remedy against the Borrowers or any other Person
(including any other guarantor) under the provisions of the
Credit Agreement, any Note, any other Credit Document or
otherwise, or
(ii) to exercise any right or remedy against any
other guarantor of, or collateral securing, any Guaranteed Obligations;
(c) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Guaranteed Obligations, or any
other extension, compromise or renewal of any Guaranteed Obligation;
(d) any reduction, limitation, impairment or termination of
any Guaranteed Obligations for any reason, including any claim of
waiver, release, surrender, alteration or compromise, and shall not be
subject to (and Guarantor hereby waives any right to or claim of) any
defense or setoff, counterclaim, recoupment or termination whatsoever
by reason of the invalidity, illegality, nongenuineness, irregularity,
compromise, unenforceability of, or any other event or occurrence
Exhibit 10(f) Exhibit D - Page 3
affecting, any Guaranteed Obligations;
(e) any amendment to, rescission, waiver, or other
modification of, or any consent to departure from, any of the terms of
the Credit Agreement, any Note or any other Credit Document;
(f) any addition, exchange, release, surrender or
non-perfection of any collateral, or any amendment to or waiver or
release or addition of, or consent to departure from, any other
guaranty, held by the Administrative Agent or any Lender or any holder
of any Note securing any of the Guaranteed Obligations; or
(g) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, the
Borrowers, any surety or any guarantor.
SECTION II.4. Reinstatement, etc. Guarantor agrees that this Guaranty
shall continue to be effective or be reinstated, as the case may be, if at any
time any payment (in whole or in part) of any of the Guaranteed Obligations is
rescinded or must otherwise be restored by the Administrative Agent or any
Lender or any holder of any Note, upon the insolvency, bankruptcy or
reorganization of either of the Borrowers or otherwise, as though such payment
had not been made.
SECTION II.5. Waiver, etc. Guarantor hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Guaranteed Obligations and this Guaranty and any requirement that the
Administrative Agent or any Lender or any holder of any Note protect, secure,
perfect or insure any security interest or any property subject thereto, or
exhaust any right or take any action against the Borrowers or any other Person
(including any other guarantor) or entity or any collateral securing any
Guaranteed Obligations.
SECTION II.6. Subrogation, etc. Guarantor will not exercise any rights
which it may acquire by reason of any payment made hereunder, whether by way of
subrogation, reimbursement or otherwise, until the prior final payment, in full
and in cash, of all Guaranteed Obligations. Any amount paid to Guarantor on
account of any payment made hereunder prior to the final payment in full of all
Guaranteed Obligations shall be held in trust for the benefit of the
Administrative Agent and the Lenders and each holder of a Note and shall
immediately be paid to the Administrative Agent and each holder of a Note and
credited and applied against the Guaranteed Obligations, whether matured or
unmatured, in accordance with the terms of the Credit Agreement (or other
agreement(s) pursuant to which such Guaranteed Obligations are outstanding);
provided that if
Exhibit 10(f) Exhibit D - Page 4
(a) Guarantor has made payment to the Administrative Agent and
each holder of a Note of all or any part of the Guaranteed Obligations, and
(b) all Guaranteed Obligations have been paid in full and the
Commitments and any other commitments of the Lenders to the Borrowers
have been permanently terminated,
the Administrative Agent and each holder of a Note agrees that, at Guarantor's
request, the Administrative Agent and such holder of a Note will execute and
deliver to Guarantor appropriate documents (without recourse and without
representation or warranty) necessary to evidence the transfer by subrogation to
Guarantor of an interest in the Guaranteed Obligations resulting from such
payment by Guarantor. In furtherance of the foregoing, for so long as any
Guaranteed Obligations or Commitments remain outstanding, Guarantor shall
refrain from taking any action or commencing any proceeding against the
Borrowers (or its successors or assigns, whether in connection with a bankruptcy
proceeding or otherwise) to recover any amounts in respect of payments made
under this Guaranty to the Administrative Agent or any holder of a Note.
SECTION II.7. Successors, Transferees and Assigns; Transfers of Notes,
etc. This Guaranty shall:
(a) be binding upon Guarantor, and its successors, transferees
and assigns; provided that Guarantor may not assign or transfer any of
its rights or obligations hereunder without the prior written consent
of the Administrative Agent and the Lenders; and
(b) inure to the benefit of and be enforceable by the
Administrative Agent, each holder of any Note and each of their
respective successors, transferees and assigns.
ARTICLE III
MISCELLANEOUS PROVISIONS
SECTION III.1. Amendments, etc. No amendment to or waiver of any
provision of this Guaranty, nor consent to any departure by Guarantor herefrom,
shall in any event be effective unless the same shall be in writing and signed
by the Administrative Agent and the Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given.
SECTION III.2. Addresses for Notices to Guarantor. All notices and
other communications hereunder to Guarantor shall be in writing (including
facsimile communication) and mailed or sent or delivered to it to the address
set forth below its signature hereto or to such other address as shall be
designated by Guarantor in a written notice to the Administrative Agent and the
Exhibit 10(f) Exhibit D - Page 5
Lenders at their respective addresses specified in the Credit Agreement
complying as to delivery with the terms of this Section 3.2. All such notices
and other communications shall, when mailed or sent, respectively, be effective
when deposited in the mails or sent by facsimile (if such transmittal is
confirmed by telephone, in the case of facsimiles), respectively, addressed as
aforesaid.
SECTION III.3. No Waiver; Remedies. In addition to, and not in
limitation of, Sections 2.3 and 2.5, no failure on the part of the
Administrative Agent or any Lender or any holder of a Note to exercise, and no
delay in exercising, any right hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right hereunder preclude any other
or further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
SECTION III.4. Section Captions. Section captions used in this Guaranty
are for convenience of reference only, and shall not affect the construction of
this Guaranty.
SECTION III.5. Setoff. In addition to, and not in limitation of, any
rights of the Administrative Agent and each Lender or any holder of a Note under
Applicable Law, the Administrative Agent, such Lender and each such holder
shall, upon the occurrence of any Default described in any of clauses (a)
through (e) of Section 8.1.8 of the Credit Agreement or any Event of Default,
have the right to appropriate and apply to the payment of the obligations of
Guarantor owing to it hereunder, whether or not then due, and Guarantor hereby
grants to each of the Administrative Agent, each Lender and each such holder a
continuing security interest in, any and all balances, credits, deposits,
accounts or moneys of Guarantor then or thereafter maintained, respectively,
with the Administrative Agent, such Lender or such holder and any and all
property of every kind or description of or in the name of Guarantor now or
hereafter, for any reason or purpose whatsoever, in the possession or control
of, or in transit to, the Administrative Agent, such Lender, such holder or any
administrative agent or bailee for the Administrative Agent, such Lender or such
holder.
SECTION III.6. Severability. Wherever possible each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under
Applicable Law, but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
Exhibit 10(f) Exhibit D - Page 6
SECTION III.7. Governing Law, Entire Agreement, etc. THIS GUARANTY
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH INTERNAL LAWS OF THE STATE
OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS. THIS GUARANTY
AND THE OTHER CREDIT DOCUMENTS CONSTITUTE THE ENTIRE UNDERSTANDING AMONG THE
PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDE ANY PRIOR
AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT THERETO.
SECTION III.8. Forum Selection And Consent To Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
GUARANTY OR ANY OTHER CREDIT DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE
AGENT OR ANY LENDER OR GUARANTOR OR THE BORROWERS MAY BE BROUGHT AND MAINTAINED
IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING
ENFORCEMENT AGAINST ANY PROPERTY MAY BE BROUGHT, AT THE ADMINISTRATIVE AGENT'S
OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH PROPERTY MAY BE FOUND.
GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH
LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT
RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. GUARANTOR FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK.
GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE NOW OR HEREAFTER TO THE LAYING
OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND
ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO
THE EXTENT THAT GUARANTOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM
JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR
NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR
OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, GUARANTOR HEREBY IRREVOCABLY
WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS GUARANTY.
SECTION III.9. Waiver of Jury Trial. GUARANTOR HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS GUARANTY, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE AGENT,
THE LENDERS, THE BORROWERS OR GUARANTOR. GUARANTOR ACKNOWLEDGES AND AGREES THAT
IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION AND THAT
THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE ADMINISTRATIVE AGENT AND THE
LENDERS ENTERING INTO THE CREDIT AGREEMENT.
Exhibit 10(f) Exhibit D - Page 7
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
GUARANTOR
By___________________________________
Title:
Address:
Telephone No.:
Facsimile No.:
Attention:
Exhibit 10(f) Exhibit D - Page 8
EXHIBIT E
MATTERS TO BE COVERED BY OPINIONS OF
COUNSEL TO THE BORROWERS
1. Bergen Drug is a corporation duly organized, validly existing, and
in good standing under the laws of the State of California, and is duly
qualified to do business and is in good standing as a foreign corporation in
each jurisdiction where the nature of its business makes such qualification
necessary and where the failure to so qualify might have a Materially Adverse
Effect. Bergen Drug has full power and authority to own and to hold under lease
its property and to conduct its business substantially as presently conducted by
it. Bergen Drug has full corporate power and authority (a) to execute, deliver,
and perform its obligations under the Credit Agreement and the Notes, and (b) to
obtain Loans as contemplated by the Credit Agreement.
2. The Parent is a corporation duly organized, validly existing, and in
good standing under the laws of the State of New Jersey, and is duly qualified
to do business and is in good standing as a foreign corporation in each
jurisdiction where the nature of its business makes such qualification necessary
and where the failure to so qualify might have a Materially Adverse Effect. The
Parent has full power and authority to own and to hold under lease its property
and to conduct its business substantially as presently conducted by it. The
Parent has full corporate power and authority (a) to execute, deliver, and
perform its obligations under the Credit Agreement and the Note and (b) to
obtain Loans as contemplated by the Credit Agreement.
3. The execution, delivery, and performance by Bergen Drug of the
Credit Agreement and the Notes have been duly authorized by all necessary
corporate action and do not and will not contravene (i) Bergen Drug's Organic
Documents, or (ii) any Applicable Law binding on or affecting Bergen Drug, or
(iii) to the best of our knowledge after due inquiry, any contractual
restriction binding on or affecting Bergen Drug, and, to the best of our
knowledge after due inquiry, do not and will not result in or create any Lien on
or in any of Bergen Drug's properties.
4. The execution, delivery, and performance by the Parent of the Credit
Agreement and the Notes have been duly authorized by all necessary corporate
action and do not and will not contravene (i) the Parent's Organic Documents, or
(ii) any Applicable Law binding on or affecting the Parent, or (iii) to the best
of our knowledge after due inquiry, any contractual restriction binding on or
affecting the Parent, and, to the best of our knowledge after due inquiry, do
not and will not result in or create any Lien on or in any of the Parent's
properties.
5. To the best of counsel's knowledge after due inquiry, neither the
Parent nor any Subsidiary is in default in the payment of (or the performance of
Exhibit 10(f) Exhibit E - Page 1
any obligation applicable to) any Indebtedness or in violation of any law or
governmental regulation or court decree or order, which in any such case, could
reasonably be expected to result in a Materially Adverse Effect.
6. The Credit Agreement and the Notes have been duly executed and
delivered by the Borrowers and each constitutes the legal, valid, and binding
obligation of the Borrower, enforceable against the Borrowers in accordance with
its respective terms, subject to bankruptcy, insolvency, and other similar laws
relating to or affecting the enforceability of creditors' rights generally, and
except as the enforceability thereof by way of specific performance or by other
equitable remedies may be limited by general equitable principles (regardless of
whether enforcement is sought in a proceeding in equity or at law).
7. To the best of counsel's knowledge after due inquiry, except as
disclosed in writing to the Administrative Agent and the Lenders prior to the
Effective Date, there is no pending or threatened action or proceeding affecting
the Borrowers against the Borrowers or any of their Subsidiaries before any
court, governmental agency, or arbitrator, or any development not so disclosed
in any such action or proceeding, which could result in a Materially Adverse
Effect or which relates to the Credit Agreement or the Notes or any transaction
contemplated by either thereof.
8. To the best of counsel's knowledge after due inquiry, except as
disclosed in writing to the Administrative Agent and the Lenders prior to the
date hereof, there is no pending or threatened action or proceeding affecting
the Borrowers or any of their Subsidiaries before any court, governmental
agency, or arbitrator, or any development not so disclosed in any such action or
proceeding, which could result in a Materially Adverse Effect or which relates
to the Credit Agreement or the Guaranty or any transaction contemplated by
either thereof.
9. Except for the [describe required approvals], no authorization or
approval or other action by, and no notice to or filing with, any government
authority or regulatory body is or will be required in connection with the
execution, delivery, and performance by the Parent and Bergen Drug of the Credit
Agreement and the other Credit Documents. The [required approvals] have been
duly obtained and are final and non-appealable and in full force and effect on
the date hereof.
10. Neither the Parent nor any of its Subsidiaries is an "investment
company" or a company "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, or a "holding company" or a "subsidiary
company" of a "holding company" or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company" within the meaning of the Public
Utility Holding Company Act of 1935.
Exhibit 10(f) Exhibit E - Page 2
EXHIBIT F
ASSIGNMENT AGREEMENT
(Bergen Xxxxxxxx Drug Company/Bergen Xxxxxxxx Corporation)
This Agreement, dated as of the date set forth in Item I (each
reference to an "Item" herein shall be deemed to refer to such Item on Schedule
I hereto), is made by the party named in Item II (the "Assignor") to the entity
named in Item III (the "Assignee").
W I T N E S S E T H:
The Assignor has entered into a Credit Agreement, dated as of April 23,
1999 (together with all amendments and other modifications, if any, from time to
time made thereto, the "Credit Agreement"), among Bergen Xxxxxxxx Drug Company,
a California corporation and Bergen Xxxxxxxx Corporation, a New Jersey
corporation (the "Borrowers), certain financial institutions which are, or may
become, parties thereto (the "Lenders"), Bank of America National Trust and
Savings Association, as administrative agent (the "Administrative Agent"), Chase
Securities Inc., as Syndication Agent, and Wachovia Bank, N.A., as Documentation
Agent, under which the Assignor has agreed to make Contract Loans in the amount
of up to the amount set forth in Item IV (such amount equals the original
commitment of the Assignor and may have been, or may be, reduced or increased by
other assignments by, or to, the Assignor, and will be reduced by the assignment
under this Agreement) and the Bank Group has agreed to make Contract Loans in
the amount of up to the amount set forth in Item V. Such Contract Loans are
sometimes called the "Advances" or each "Advance" hereinafter. Unless the
context clearly indicates otherwise, all other terms used in this Agreement
shall have the meanings given them by, and shall be construed as set forth in,
the Credit Agreement.
In consideration of the premises and the mutual covenants contained
herein, the Assignor and the Assignee hereby covenant and agree as follows:
1. Assignment and Assumption. Subject to the terms and conditions of this
Agreement, the Assignor and the Assignee agree that:
(a) the Assignor hereby sells, transfers, assigns and
delegates to the Assignee, in consideration of entry by the Assignee
into this Agreement [and of payment by the Assignee to the Assignor of
the amount set forth in Item VI]; and
(b) the Assignee hereby purchases, assumes and undertakes from
the Assignor, without recourse and without representation or warranty
(except as expressly provided in this Agreement)
Exhibit 10(f) Exhibit F - Page 1
a share equal to the percentage set forth in Item VII (expressed as a percentage
of the aggregate Advances and Commitments of the Bank Group) of the Assignor's
commitments, loans, rights, benefits, obligations, liabilities and indemnities
under and in connection with the Credit Agreement and all of the Advances,
including without limitation the right to receive payment of principal, and
interest on such percentage of the Assignor's Advances, and the obligation to
fund all future Advances in respect of such assignment, and to indemnify the
Administrative Agent or any other party under the Credit Agreement and to pay
all other amounts payable by a Bank (in such percentage of the aggregate
obligations of the Bank Group) under or in connection with the Credit Agreement
[(other than any such amounts payable in respect of a Bid Loan) but not
including any fees except as otherwise agreed by the Assignor and the Assignee].
The interest of the Assignor under the Credit Agreement (including the
portion of the Assignor's Advances and all such commitments, loans, rights,
benefits, obligations, liabilities and indemnities) which the Assignee purchases
and assumes hereunder is hereinafter referred to as its "Assigned Share". The
day upon which the Assignee shall make the payment described in the prior
paragraph is hereinafter referred to as the "Funding Date". Upon completion of
the assignment hereunder, the Assignor will have the revised share of the total
Advances and Commitments of the Bank Group set forth in Item VIII.
2. Future Payments. The Assignor shall notify the Administrative Agent
to make all payments with respect to the Assigned Share after the Funding Date
directly to the Assignee. The Assignor and Assignee agree and acknowledge that
all payment of interest, commitment fees and other fees accrued up to, but not
including, the Funding Date are the property of the Assignor, and not the
Assignee. The Assignee shall, upon payment of any interest, commitment fees or
other fees, remit to the Assignor all of such interest, commitment fees and
other fees accrued up to, but not including, the Funding Date.
3. No Warranty or Recourse. The sale, transfer, assignment and
delegation of the Assigned Share is made without warranty or recourse against
the Assignor of any kind, except that the Assignor warrants that it has not sold
or otherwise transferred any other interest in the Assigned Share to any other
party. The Assignor may, however, have sold and may hereafter sell
Participations in, or may have assigned or may hereafter assign, portions of its
interest in the Advances and the Credit Agreement that in the aggregate
(together with the portion assigned hereby), do not exceed 100% of the
Assignor's interest in the Advances and the Credit Agreement.
4. Covenants and Warranties. To induce the other to enter into this
Agreement, each of the Assignee and the Assignor warrants and covenants with
respect to itself that:
Exhibit 10(f) Exhibit F - Page 2
(a) Existence. It is, in the case of the Assignee, a
_______________ organized under the laws of _______________ and it is,
in the case of the Assignor, a _______________ duly existing under the
laws of _______________;
(b) Authority. It is duly authorized to execute, deliver and
perform this Agreement;
(c) No Conflict. The execution, delivery and performance of
this Agreement do not conflict with any provision of law or of the
charter or by-laws (or equivalent constituent documents) of such party,
or of any agreement binding upon it; and
(d) Valid and Binding. All acts, conditions and things
required to be done and performed and to have occurred prior to the
execution, delivery and performance of this Agreement, and to
constitute the same the legal, valid and binding obligation of such
party enforceable against such party in accordance with its terms, have
been done and performed and have occurred in due and strict compliance
with all applicable laws.
5. Covenants and Warranties by the Assignee. To induce the Assignor to
enter into this Agreement, the Assignee warrants and covenants that (a) it is
purchasing and assuming the Assigned Share in the course of making loans in the
ordinary course of its commercial lending business, and (b) it has,
independently and without reliance upon the Assignor, and based upon such
financial statements and other documents and information as it has deemed
appropriate, made its own credit analysis and decision to engage in this
purchase and transfer of the Assigned Share. The Assignee it acknowledges that
the Assignor has not made and does not make any representations or warranties or
assume any responsibility with respect to the validity, genuineness,
enforceability or collectibility of the Advances, the Credit Agreement or any
related instrument, document or agreement. The Assignee further warrants and
covenants that it is an Eligible Assignee.
6. Payments to the Assignor; Offices. All amounts payable to the
Assignor in U.S. Dollars shall be paid by transfer of federal funds to the
Assignor, ABA No. _______________, Account No. _______________, Attention:
_______________, Reference: Bergen Xxxxxxxx. The Assignee's initial Domestic
Office and initial Eurodollar Office are set forth in Item IX.
7. Other Transactions. The Assignee shall have no interest in any
property in the Assignor's possession or control, or in any deposit held or
other indebtedness owing by the Assignor, which may be or become collateral for
or otherwise available for payment of the Advances by reason of the general
description of secured obligations contained in any security agreement or other
agreement or instrument held by the Assignor or by reason of the right of
set-off, counterclaim or otherwise, except that if such interest is provided for
Exhibit 10(f) Exhibit F - Page 3
in provisions of the Credit Agreement regarding sharing of set-off, the Assignee
shall have the same rights as any other lender that is a party to the Credit
Agreement. The Assignor and its affiliates may accept deposits from, lend money
to, act as trustee under indentures for and generally engage in any kind of
business with the Borrower, and any person who may do business with or own
securities of the Borrowers, or any of the Borrower's subsidiaries. The Assignee
shall have no interest in any property taken as security for any other loans or
any other credits extended to the Borrowers or any of its subsidiaries by the
Assignor to the Borrowers.
8. Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of the Assignor and the Assignee.
9. Expenses. In the event of any action to enforce the provisions of
this Agreement against a party hereto, the prevailing party shall be entitled to
recover all costs and expenses incurred in connection therewith including,
without limitation, attorneys' fees and expenses, including allocable cost of
in-house legal counsel and staff.
10. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
11. Amendments, Changes and Modifications. This Agreement may not be
amended, changed, modified, altered, or terminated except by an agreement in
writing signed by the Assignor and the Assignee (or their permitted successors
or assigns).
12. Withholding Taxes. The Assignee (a) represents and warrants to the
Assignor, the Administrative Agent and the Borrowers that under applicable law
and treaties no tax will be required to be withheld by the Assignor with respect
to any payments to be made to the Assignee hereunder, (b) agrees to furnish (if
it is organized under the laws of any jurisdiction other than the United States
or any State thereof) to the Assignor, the Administrative Agent and the
Borrowers prior to the time that the Administrative Agent or Borrowers is
required to make any payment of principal, interest or fees hereunder either
U.S. Internal Revenue Service Form 4224 or U.S. Internal Revenue Service Form
1001 (wherein the Assignee claims entitlement to the benefits of a tax treaty
that provides for a complete exemption from U.S. federal income withholding tax
on all payments hereunder) and agrees to provide new Forms 4224 or 1001 upon the
expiration of any previously delivered form or comparable statements in
accordance with applicable U.S. law and regulations and amendments thereto, duly
executed and completed by the Assignee, and (c) agrees to comply with all
applicable U.S. laws and regulations with regard to such withholding tax
exemption.
13. Entire Agreement. This Agreement sets forth the entire
understanding of the parties[, except for any side letter between the Assignor
Exhibit 10(f) Exhibit F - Page 4
and the Assignee with reference to fees or other items and] except for the
consents contemplated hereby, and supersedes any and all prior agreements,
arrangements, and understandings relating to the subject matter hereof. No
representation, promise, inducement or statement of intent has been made by any
party which is not embodied in this Agreement, and no party shall be bound by or
liable for any alleged representation, promise, inducement or statement of
intention not expressly set forth herein.
14. Counterparts. This Agreement may be executed by the Assignor and
the Assignee in separate counterparts, each of which when so executed and
delivered shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on their behalf by their duly authorized officers as of the day and
year first above written.
[ASSIGNOR]
Address: By: ______________________________
__________________(print name)
Title: ___________________________
Exhibit 10(f) Exhibit F - Page 5
[ASSIGNEE]
Address: By: ______________________________
__________________(print name)
Title: ___________________________
[Consents required to become effective as provided in Section 10.11 of the
Credit Agreement:
Consented to this _____ day of _______________, 19__.
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Administrative Agent
By: ______________________________
__________________(print name)
Title: ______________________
Consented to this _____ day of _______________, 19__.
BERGEN XXXXXXXX DRUG COMPANY, as Borrower
By: ______________________________
__________________(print name)
Title: ______________________
and by BERGEN XXXXXXXX CORPORATION, as Borrower
By: ______________________________
__________________(print name)
Title: ______________________]
Exhibit 10(f) Exhibit F - Page 6
Schedule I
to
Assignment Agreement
Item I: Date of Assignment:
Item II: Assigning Bank (the "Assignor"):
Item III: Assignee (the "Assignee"):
Item IV: Initial Total Commitment of the Assignor:
Item V: Bank Group's Initial Total Commitment:
Item VI: Payment to the Assignor on Funding Date:
Item VII: Percentage Assigned: __________%
(Expressed as a percentage of the total aggregate Loans and
Commitments of the Bank Group, carry out to 10 decimal places;
[upon effectiveness of the Assignment as provided in the Credit
Agreement, this will constitute the Assignee's "Percentage"])
Item VIII: Revised Percentage of the Assignor: __________%
(carry out to 10 decimal places[; upon effectiveness of the
Assignment as provided in the Credit Agreement, this will
constitute the Assignor's "Percentage"])
Item IX: Domestic Office:
==============================
----------, ---------- ------
Attention: __________________
Telephone No.: ______________
Facsimile No.: ______________
Eurodollar Office:
==============================
----------, ---------- ------
Attention: __________________
Telephone No.: ______________
Facsimile No.: ______________
Exhibit 10(f) Schedule I
EXHIBIT G
JOINDER AGREEMENT
WHEREAS, Bergen Xxxxxxxx Drug Company, a California corporation (the
"Bergen Drug") and Bergen Xxxxxxxx Corporation, a New Jersey corporation (the
"Parent") entered into that certain Credit Agreement dated as of April 23,
1999,(as the same may at any time be amended or modified from time to time, the
"Credit Agreement") with the Lenders party thereto (as defined in the Credit
Agreement) Bank of America National Trust and Savings Association, a national
banking association, as administrative agent (the "Administrative Agent"), Chase
Securities Inc., as Syndication Agent, and Wachovia Bank, N.A., as Documentation
Agent;
WHEREAS, the Parent has acquired PharMerica Inc., a Delaware
corporation ("PharMerica");
WHEREAS, pursuant to Section 7.1.8 of the Credit Agreement, PharMerica
desires to be added as a Borrower under the Credit Agreement;
WHEREAS, the Administrative Agent and the Lenders have agreed to permit
PharMerica to become a Borrower under the Credit Agreement by executing this
Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
1. Unless otherwise specified herein, all capitalized terms used but
not otherwise defined herein have the meanings assigned to such terms in the
Credit Agreement.
2. Subject to the provisions of Section 3 hereof, PharMerica hereby
unconditionally assumes and agrees to pay, perform and discharge all of the
obligations as a Borrower under the Credit Agreement; and the parties hereto
agree that, for all purposes of the Credit Agreement, PharMerica shall be deemed
to be a Borrower. From and after the date hereof, all references in the Credit
Agreement to the Borrowers shall be deemed to refer to each of the Parent,
Bergen Drug and PharMerica. By their execution hereof, Bergen Drug and the
Parent reaffirm that they shall at all times remain liable under the Credit
Agreement to pay, perform and discharge all of their obligations as a Borrower
thereunder.
3. Notwithstanding anything to the contrary herein, until the
PharMerica Subordinated Notes have been repaid and PharMerica's obligations
under the PharMerica Indenture terminated, PharMerica's liability as a Borrower
under the Senior Credit Facilities shall be limited to the maximum amount
permitted to be borrowed by PharMerica under the PharMerica Indenture, but in no
event less than $325,000,000. PharMerica's liability under the Senior Credit
Exhibit 10(f) Exhibit G - Page 5
Facilities shall be apportioned between such facilities based upon the aggregate
outstanding Obligations thereunder. For example, if the outstandings under the
Credit Agreement were $500,000,000, the outstandings under the $400,000,000
Senior Credit Facility were $250,000,000 and the maximum amount permitted to be
borrowed by the terms of the PharMerica Indenture were $325,000,000,
PharMerica's liability under the Credit Agreement would be equal to $216,666,667
(2/3 of $325,000,000) and PharMerica's liability under the $400,000,000 Senior
Credit Facility would be equal to $108,333,333 (1/3 of $325,000,000).
4. PharMerica hereby makes as to itself, for the benefit of the
Administrative Agent and the Lenders, all of the representations and warranties
made by a Borrower in the Credit Agreement, which representations and warranties
are true and correct in all material respects as of the date hereof.
5. This Agreement is governed by and construed under the internal laws
of the State of New York without regard to principles of conflicts of law.
Exhibit 10(f) Exhibit G - Page 2
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of ______________, 1999.
PHARMERICA, INC.
By:_______________________________
Name: ____________________________
Title:____________________________
Address:
Fax No.:
Telephone:
BERGEN XXXXXXXX DRUG COMPANY
By:_______________________________
Name: ____________________________
Title:____________________________
Address: 0000 Xxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Fax No.:
Telephone:
BERGEN XXXXXXXX CORPORATION
By:_______________________________
Name: ____________________________
Title:____________________________
Address: 0000 Xxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Fax No.:
Telephone:
Exhibit 10(f) Exhibit G - Page 3
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION,
as Administrative Agent
By:_______________________________
Name: ____________________________
Title:____________________________
Address: 000 Xxxxx Xxxxxx Xxxxxx,
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Fax No.:
Telephone:
Exhibit 10(f) Exhibit G - Page 4
