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Exhibit 10.29
CARDINAL HEALTH, INC.
FIVE-YEAR CREDIT AGREEMENT
DATED AS OF MARCH 31, 1999
THE SUBSIDIARY BORROWERS PARTY HERETO,
THE LENDERS PARTY HERETO
AND
THE FIRST NATIONAL BANK OF CHICAGO, AS ADMINISTRATIVE AGENT
BANK OF AMERICA NT & SA, AS SYNDICATION AGENT
CITIBANK, N.A., AS CO-DOCUMENTATION AGENT
CREDIT SUISSE FIRST BOSTON, AS CO-DOCUMENTATION AGENT
FIRST CHICAGO CAPITAL MARKETS, INC., AS LEAD ARRANGER AND BOOK MANAGER
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TABLE OF CONTENTS
Article I. DEFINITIONS............................................................................................2
Article II. THE CREDITS..........................................................................................19
2.1 Commitments of the Lenders and Swing Line Facility.............................................19
2.2 Determination of Dollar Amounts; Required Payments; Termination................................23
2.3 Ratable Loans..................................................................................24
2.4 Types of Advances..............................................................................24
2.5 Facility Fee; Reductions in Aggregate Commitment; Utilization Fee..............................24
2.6 Minimum Amount of Each Advance.................................................................24
2.7 Prepayments....................................................................................25
2.8 Method of Selecting Types and Interest Periods for New Advances................................25
2.9 Conversion and Continuation of Outstanding Advances............................................26
2.10 Method of Borrowing............................................................................27
2.11 Changes in Interest Rate, etc..................................................................27
2.12 Rates Applicable After Default.................................................................28
2.13 Method of Payment..............................................................................28
2.14 Noteless Agreement; Evidence of Indebtedness...................................................29
2.15 Telephonic Notices.............................................................................30
2.16 Interest Payment Dates; Interest and Fee Basis.................................................30
2.17 Notification of Advances, Interest Rates, Prepayments and Commitment Reductions................31
2.18 Lending Installations..........................................................................31
2.19 Non-Receipt of Funds by the Administrative Agent...............................................31
2.20 Market Disruption..............................................................................32
2.21 Judgment Currency..............................................................................33
2.22 Payment Provisions Relating to the euro........................................................33
2.23 Redenomination and Alternative Currencies......................................................34
2.24 Replacement of Lender..........................................................................34
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2.25 Application of Payments with Respect to Defaulting Lenders.....................................34
Article III. YIELD PROTECTION; TAXES.............................................................................35
3.1 Yield Protection...............................................................................35
3.2 Changes in Capital Adequacy Regulations........................................................36
3.3 Availability of Types of Advances..............................................................37
3.4 Funding Indemnification........................................................................37
3.5 Taxes..........................................................................................37
3.6 Lender Statements; Survival of Indemnity.......................................................39
Article IV. CONDITIONS PRECEDENT.................................................................................40
4.1 Initial Advance................................................................................40
4.2 Each Advance...................................................................................41
Article V. REPRESENTATIONS AND WARRANTIES........................................................................42
5.1 Existence and Standing.........................................................................42
5.2 Authorization and Validity.....................................................................42
5.3 No Conflict; Government Consent................................................................42
5.4 Financial Statements...........................................................................43
5.5 Material Adverse Change........................................................................43
5.6 Taxes..........................................................................................43
5.7 Litigation and Contingent Obligations..........................................................44
5.8 Subsidiaries...................................................................................44
5.9 ERISA..........................................................................................44
5.10 Accuracy of Information........................................................................45
5.11 Regulation U...................................................................................45
5.12 Material Agreements............................................................................45
5.13 Compliance With Laws...........................................................................45
5.14 Plan Assets; Prohibited Transactions...........................................................45
5.15 Environmental Matters..........................................................................45
5.16 Investment Company Act.........................................................................46
5.17 Public Utility Holding Company Act.............................................................46
5.18 Year 2000......................................................................................46
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5.19 Default........................................................................................46
Article VI. COVENANTS............................................................................................46
6.1 Financial Reporting............................................................................46
6.2 Use of Proceeds................................................................................48
6.3 Notice of Default..............................................................................48
6.4 Conduct of Business............................................................................48
6.5 Taxes..........................................................................................48
6.6 Insurance......................................................................................48
6.7 Compliance with Laws...........................................................................48
6.8 Inspection.....................................................................................49
6.9 Merger.........................................................................................49
6.10 Sale of Assets.................................................................................49
6.11 Investments....................................................................................50
6.12 Liens..........................................................................................50
6.13 Year 2000......................................................................................52
6.14 Subsidiary Indebtedness. ......................................................................52
6.15 Limitation on Restrictions on Significant Subsidiary Distributions. ...........................53
6.16 Contingent Obligations.........................................................................54
6.17 Minimum Net Worth..............................................................................54
Article VII. DEFAULTS............................................................................................54
Article VIII. ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES.....................................................56
8.1 Acceleration...................................................................................56
8.2 Amendments.....................................................................................57
8.3 Preservation of Rights.........................................................................57
Article IX. GENERAL PROVISIONS...................................................................................58
9.1 Survival of Representations....................................................................58
9.2 Governmental Regulation........................................................................58
9.3 Headings.......................................................................................58
9.4 Entire Agreement...............................................................................58
9.5 Several Obligations; Benefits of this Agreement................................................58
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9.6 Expenses; Indemnification......................................................................58
9.7 Numbers of Documents...........................................................................59
9.8 Accounting.....................................................................................59
9.9 Severability of Provisions.....................................................................59
9.10 Nonliability of Lenders........................................................................60
9.11 Confidentiality................................................................................60
9.12 Nonreliance....................................................................................60
Article X. THE AGENT.............................................................................................61
10.1 Appointment; Nature of Relationship............................................................61
10.2 Powers.........................................................................................61
10.3 General Immunity...............................................................................61
10.4 No Responsibility for Loans, Recitals, etc.....................................................61
10.5 Action on Instructions of Lenders..............................................................62
10.6 Employment of Agents and Counsel...............................................................62
10.7 Reliance on Documents; Counsel.................................................................62
10.8 Administrative Agent's Reimbursement and Indemnification.......................................63
10.9 Notice of Default..............................................................................63
10.10 Rights as a Lender.............................................................................63
10.11 Lender Credit Decision.........................................................................64
10.12 Successor Administrative Agent.................................................................64
10.13 Administrative Agent's Fee.....................................................................65
10.14 Delegation to Affiliates.......................................................................65
10.15 Administrative Agent, Syndication Agent, Co-Documentation Agents, Lead Arranger, etc...........65
Article XI. SETOFF; RATABLE PAYMENTS.............................................................................65
11.1 Setoff.........................................................................................65
11.2 Ratable Payments...............................................................................66
Article XII. BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS...................................................66
12.1 Successors and Assigns.........................................................................66
12.2 Participations.................................................................................66
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12.3 Assignments....................................................................................67
12.4 Dissemination of Information...................................................................69
12.5 Tax Treatment..................................................................................69
12.6 Transfer to an SPC.............................................................................69
Article XIII. NOTICES............................................................................................70
13.1 Notices........................................................................................70
13.2 Change of Address..............................................................................70
Article XIV. COUNTERPARTS........................................................................................70
Article XV. CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.........................................71
15.1 CHOICE OF LAW..................................................................................71
15.2 CONSENT TO JURISDICTION........................................................................71
15.3 WAIVER OF JURY TRIAL...........................................................................71
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FIVE-YEAR CREDIT AGREEMENT
This Agreement, dated as of March 31, 1999, is among Cardinal Health,
Inc. (the "Company"), certain Subsidiaries of the Company (the "Subsidiary
Borrowers", and together with the Company, the "Borrowers"), the lenders party
hereto from time to time (the "Lenders"), and The First National Bank of
Chicago, as Administrative Agent (the "Administrative Agent"). The parties
hereto agree as follows:
ARTICLE I.
DEFINITIONS
As used in this Agreement:
"364-Day Credit Agreement" means the 364-Day Credit Agreement dated the
date hereof between the Company, the Subsidiary Borrowers party thereto, the
Lenders and the Administrative Agent, as Administrative Agent, as such agreement
may be amended, restated or extended from time to time.
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Company or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any firm, corporation or limited liability
company, or division thereof, whether through purchase of assets, merger or
otherwise or (ii) directly or indirectly acquires (in one transaction or as the
most recent transaction in a series of transactions) at least a majority (in
number of votes) of the securities of a corporation which have ordinary voting
power for the election of directors (other than securities having such power
only by reason of the happening of a contingency) or a majority (by percentage
or voting power) of the outstanding ownership interests of a partnership or
limited liability company.
"Adjusted Tangible Net Worth" means, as of any date, (i) the amount of
any capital stock, paid in capital and similar equity accounts plus (or minus in
the case of a deficit) the capital surplus and retained earnings of the Company
and its consolidated Subsidiaries, but excluding the amount of any foreign
currency translation adjustment account shown as a capital account, less (ii)
the net book value of all items of the following character which are included in
the assets of the Company and its consolidated Subsidiaries: (a) goodwill,
including, without limitation, the excess of cost over book value of any asset,
(b) organization or experimental expenses, (c) unamortized debt discount and
expense, (d) patents, trademarks, trade names and copyrights, (e) treasury
stock, (f) franchises, licenses and permits, and (g) other assets which are
deemed intangible assets under Agreement Accounting Principles.
"Administrative Agent" means The First National Bank of Chicago in its
capacity as contractual representative of the Lenders pursuant to Article X, and
not in its individual capacity as a Lender, and any successor Administrative
Agent appointed pursuant to Article X.
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"Advance" means a borrowing hereunder, (i) made by one or more Lenders
on the same Borrowing Date, or (ii) converted or continued by the Lenders on the
same date of conversion or continuation, consisting, in either case, of the
aggregate amount of the several Loans of the same Type and, in the case of
Eurocurrency Loans, in the same Agreed Currency and for the same Interest
Period.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
"Aggregate Commitment" means the aggregate of the Commitments of all
the Lenders, as reduced from time to time pursuant to the terms hereof. As of
the date of this Agreement, the original Aggregate Commitment was $750,000,000.
"Aggregate Dollar Outstandings" means as at any date of determination
with respect to any Lender, the aggregate unpaid principal amount of such
Lender's Dollar Loans on such date.
"Aggregate Multicurrency Commitments" means at any date of
determination with respect to all Multicurrency Lenders, an amount equal to the
Multicurrency Commitments of all Multicurrency Lenders on such date.
"Aggregate Multicurrency Outstandings" means as at any date of
determination with respect to any Lender, the Equivalent Amount of the aggregate
unpaid principal amount of such Lender's Multicurrency Loans and Alternate
Currency Loans on such date.
"Aggregate Outstandings" means as at any date of determination with
respect to any Lender, the sum of such Lender's Aggregate Dollar Outstandings
and Aggregate Multicurrency Outstandings on such date.
"Agreed Currencies" means (i) Dollars, (ii) so long as such currencies
remain Eligible Currencies, such freely traded currencies to be agreed upon,
including without limitation, the euro and British Pounds Sterling, and (iii)
any Alternate Currency.
"Agreement" means this credit agreement, as it may be amended or
modified and in effect from time to time.
"Agreement Accounting Principles" means generally accepted accounting
principles in the United States of America in effect from time to time, applied
in a manner consistent with that used in preparing the financial statements
referred to in Section 5.4; provided, however, that if any change in Agreement
Accounting Principles from those applied in preparing such financial statements
affects the calculation of any financial covenant contained in this Agreement,
the Borrowers and the Administrative Agent hereby agree to negotiate in good
faith towards making appropriate amendments acceptable to the Required Lenders
to the provisions of this Agreement to reflect as nearly as possible the effect
of the financial covenants as in effect on the date hereof.
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"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the Corporate Base Rate for such day and (ii) the sum
of the Federal Funds Effective Rate for such day plus 1/2% per annum.
"Alternate Currency" means (i) so long as such currencies remain
Eligible Currencies, the euro, Italian Lira, Canadian Dollars and Australian
Dollars, and (ii) any other Eligible Currency which the Company requests the
Administrative Agent to include as an Alternate Currency hereunder and which is
acceptable to one or more of the applicable Alternate Currency Lenders, and with
respect to which an Alternate Currency Addendum has been executed among the
Company, a Subsidiary Borrower, one or more Alternate Currency Lenders and the
Administrative Agent in connection therewith.
"Alternate Currency Addendum" means a schedule and addendum entered
into among the Company, a Subsidiary Borrower, one or more Alternate Currency
Lenders and the Administrative Agent, in form and substance satisfactory to the
Administrative Agent, the Company, such Subsidiary Borrower and such Alternate
Currency Lenders party thereto.
"Alternate Currency Commitment" means a portion of the Multicurrency
Commitment equal to, for each Alternate Currency Lender and for each Alternate
Currency, the obligation of such Alternate Currency Lender to make Alternate
Currency Loans not exceeding the Equivalent Amount set forth in Schedule 5 or
the applicable Alternate Currency Addendum, as such amount may be modified from
time to time pursuant to the terms of this Agreement and the applicable
Alternate Currency Addendum.
"Alternate Currency Lender" means any Lender (including any Lending
Installation) party to an Alternate Currency Addendum.
"Alternate Currency Loan" means any Loan denominated in an Alternate
Currency made by the Administrative Agent or one or more of the Alternate
Currency Lenders to a Borrower pursuant to this Agreement and the applicable
Alternate Currency Addendum.
"Alternate Currency Rate" means, with respect to any Alternate Currency
Loan, such publicly announced interbank rate as is customary for prime bank
deposits or loans in the currency of such Alternate Currency Loan and in the
financial center where the Alternate Currency Lenders would fund such Loan, or
such other rate as may be set forth in the applicable Alternate Currency
Addendum.
"Alternate Currency Share" means, with respect to any Alternate
Currency Lender for any particular Alternate Currency, the percentage obtained
by dividing (a) such Alternate Currency Lender's Alternate Currency Commitment
at such time as set forth in the applicable Alternate Currency Addendum by (b)
the aggregate of the Alternate Currency Commitments at such time of all
Alternate Currency Lenders with respect to such Alternate Currency as set forth
in the applicable Alternate Currency Addendum.
"Applicable Fee Rate" means, at any time, the percentage rate per annum
at which Facility Fees are accruing on the Aggregate Commitment (without regard
to usage) at such time as set forth in the Pricing Schedule.
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"Applicable Margin" means, with respect to any Eurocurrency Loan,
Floating Rate Loan or the Facility Fee, as the case may be at any time, the
applicable percentage which is applicable at such time set forth in the Pricing
Schedule provided that upon the occurrence and during the continuation of a
Default, the Applicable Margin shall be the highest Applicable Margin set forth
in the Pricing Schedule.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Australian Dollars" or "AUS$" shall mean the lawful currency of the
Commonwealth of Australia.
"Authorized Officer" means any of the Chairman, Chief Executive
Officer, President, Vice Chairman, Chief Financial Officer, Controller, or
Treasurer of a Borrower, or their equivalent, acting singly.
"Available Dollar Commitment" means at any date of determination with
respect to any Lender, the amount of such Lender's Dollar Commitment in effect
on such date reduced by the sum of (i) such Lender's Commitment Percentage of
the Equivalent Amount of any Swingline Loans outstanding on such date, and (ii)
the Aggregate Dollar Outstandings of such Lender on such date.
"Available Multicurrency Commitment" means at any date of determination
with respect to any Multicurrency Lender, the amount of such Multicurrency
Lender's Multicurrency Commitment in effect on such date reduced by the sum of
(i) the Equivalent Amount of any unused Alternate Currency Commitment of such
Multicurrency Lender on such date, and (ii) the Aggregate Multicurrency
Outstandings of such Multicurrency Lender on such date.
"Borrowers" means the Company and the Subsidiary Borrowers, and
"Borrower" means any of them, as the context may require.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" is defined in Section 2.8.
"British Pounds Sterling" or "(pound)" means the lawful currency of the
United Kingdom of Great Britain and Northern Ireland.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Eurocurrency Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in Chicago, Detroit and New York for the conduct
of substantially all of their commercial lending activities and on which
dealings in the Agreed Currencies of the relevant Eurocurrency Advances are
carried on in the London interbank market and (and, if the Advances which are
the subject of such borrowing, payment or rate selection are denominated in
euros, a day upon which a clearing system as determined by the Administrative
Agent to be suitable for clearing or settlement of the euro is open for
business), and (ii) for all other purposes, a day (other than a Saturday or
Sunday) on which banks generally are open in Detroit for the conduct of
substantially all of their commercial lending activities.
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"Canadian Dollars" or "C$" shall mean the lawful currency of the
Dominion of Canada.
"Capitalized Lease" of a Person means any lease of Property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Cash Equivalent Investments" means (i) short-term obligations of, or
fully guaranteed by, the United States of America, (ii) commercial paper rated
A-1 or better by S&P or P-1 or better by Moody's, (iii) demand deposit accounts
maintained in the ordinary course of business, (iv) certificates of deposit
issued by and time deposits with commercial banks (whether domestic or foreign)
having capital and surplus in excess of $100,000,000, (v) banker's acceptances,
(vi) money-market funds, provided that such funds invest solely in securities
otherwise described in this definition, (vii) variable rate demand notes, (viii)
municipal preferred stock, (ix) cash market preferred stock, and (x) short term
municipal notes; provided in each case that the same provides for payment of
both principal and interest (and not principal alone or interest alone) and is
not subject to any contingency regarding the payment of principal or interest.
"Change in Control" means the acquisition by any Person, or two or more
Persons acting in concert, of beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities Exchange
Act of 1934) of 30% or more of the outstanding shares of voting stock of the
Company, provided, however, that the acquisitions by or on behalf of a Plan, an
employee stock purchase plan of the Company, or by Persons who before such
acquisition were officers, directors, employees or who held in the aggregate not
less than 5% of the outstanding shares of voting stock of the Company shall not
be included in determining whether a Change in Control shall have occurred.
"Closing Date" shall mean March 31, 1999.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Co-Documentation Agents" means Citibank, N.A. and Credit Suisse First
Boston.
"Commitment" means, for each Lender, the obligation of such Lender to
make Loans not exceeding the amount set forth opposite its signature below or as
set forth in any assignment that has become effective pursuant to Section
12.3.2, as such amount may be modified from time to time pursuant to the terms
hereof.
"Commitment Percentage" means as to any Lender, the percentage which
such Lender's Commitment then constitutes of the Aggregate Commitment (or, if
the Commitments have terminated or expired, the percentage which (a) the
Aggregate Outstandings of such Lender at such time constitutes of (b) the
Aggregate Outstandings of all Lenders at such time).
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"Company" means Cardinal Health, Inc., an Ohio corporation, and it
successors and assigns.
"Computation Date" is defined in Section 2.2.
"Consolidated or "consolidated" means, when used with reference to any
financial term in this Agreement, the aggregate for two or more Persons of the
amounts signified by such term for all such Persons determined on a consolidated
basis in accordance with Agreement Accounting Principles.
"Contingent Obligation" of a Person means any agreement, undertaking or
arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person for
Indebtedness, or agrees to maintain the net worth or working capital or other
financial condition of any other Person, or otherwise assures any creditor of
such other Person against loss, including, without limitation, any comfort
letter, operating agreement, take-or-pay contract or the obligations of any such
Person as general partner of a partnership with respect to the liabilities of
the partnership, provided, however, that any assumption, guaranty, endorsement
or undertaking with respect to any liability of any of its Subsidiaries to any
other of its Subsidiaries shall not be a Contingent Obligation of the Company.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Company or any of its Subsidiaries, are
treated as a single employer under Section 414 of the Code.
"Conversion/Continuation Notice" is defined in Section 2.9.
"Corporate Base Rate" means a rate per annum equal to the corporate
base rate of interest announced by First Chicago from time to time, changing
when and as said corporate base rate changes.
"Cost Rate" means
1. The cost of compliance with existing requirements of the Bank of
England and/or the Financial Services Authority (or any authority which replaces
all or any of their functions) in respect of Advances denominated in British
Pounds Sterling will be calculated by the Administrative Agent in relation to
each Advance on the basis of rates supplied by the Administrative Agent by
reference to the circumstances existing on the first day of each Interest Period
in respect of such Advance and, if any such Interest Period exceeds three
months, at three calendar monthly intervals from the first day of such Interest
Period during its duration in accordance with the following formula:
AB +C(B-D) + E x 0.01 per cent per annum
100 - (A+C)
Where:
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A. is the percentage of eligible liabilities (assuming these to be in
excess of any stated minimum) which the Administrative Agent is from time to
time required to maintain as an interest free cash ratio deposit with the Bank
of England to comply with cash ratio requirements.
B. is the percentage rate per annum at which British Pounds Sterling
deposits are offered by the Administrative Agent in accordance with its normal
practice, for a period equal to (a) the relevant Interest Period (or, as the
case may be, remainder of such Interest Period) in respect of the relevant
Advance of (b) three months, whichever is the shorter, to a leading bank in the
London Interbank Market at or about 11:00 a.m.
in a sum approximately equal to the amount of such Advance.
C. is the percentage of eligible liabilities which the Administrative
Agent is required from time to time to maintain as interest bearing special
deposits with the Bank of England.
D. is the percentage rate per annum payable by the Bank of England to
the Administrative Agent on interest bearing special deposits.
E. is the rate payable by the Administrative Agent to the Financial
Services Authority pursuant to the Fees Regulations (but, for this purpose, the
figure at paragraph [2.02b]/[2.03b] of the Fees Regulations shall be deemed to
be zero) and expressed in pounds per (pound)1,000,000 of the Fee Base of the
Administrative Agent.
2. For the purposes of this definition:
(a) "eligible liabilities" and "special deposits" shall bear the
meanings ascribed to them from time to time under or pursuant to the Bank of
England Act 1998 or (as appropriate) by the Bank of England;
(b) "Fees Regulations" shall mean the Banking Supervision (Fees)
Regulations 1998 or such other regulations as may be in force from time to time
in respect of the payment of fees for banking supervision; and
(c) "Fee Base" shall bear the meaning ascribed to it, and shall be
calculated in accordance with, the Fees Regulations.
3. The percentages used in A and C above shall be those required to be
maintained on the first day of the relevant period as determined in accordance
with B above.
4. In application of the above formula, A, B, C and D will be included
in the formula as figures and not as percentages e.g. if A is 0.5 per cent and B
is 12 per cent, AB will be calculated as 0.5 x 12 and not as 0.5 per cent x 12
per cent.
5. Calculations will be made on the basis of a 365 day year (or, if
market practice differs, in accordance with market practice).
6. A negative result obtained by subtracting D from B shall be taken as
zero.
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7. The resulting figures shall be rounded upwards, if not already such
a multiple, to the nearest whole multiple of one-thirty second of one percent
per annum.
8. Additional amounts calculated in accordance with this definition are
payable at the same time that accrued interest is payable for the Interest
Period to which they relate.
9. The determination of the Cost Rate by the Administrative Agent in
relation to any period shall, in the absence of manifest error, be conclusive
and binding on all of the parties hereto.
10. The Administrative Agent may from time to time, after consultation
with the Company and the Lenders, determine and notify to all parties any
amendments or variations which are required to be made to the formula set out
above in order to comply with any requirements from time to time imposed by the
Bank of England or the Financial Services Authority (or any other authority
which replaces all or any of their functions) in relation to Advances
denominated in British Pounds Sterling (including any requirements relating to
sterling primary liquidity) and, any such determination shall, in the absence of
manifest error, be conclusive and binding on all the parties hereto.
"Default" means an event described in Article VII.
"Defaulting Lender" means any Lender that (a) on any Borrowing Date
fails to make available to the Administrative Agent such Lender's Loans required
to be made to a Borrower on such Borrowing Date or any payment required to be
made pursuant to Section 2.1(a)(iv), (b) shall not have made a payment to the
Swingline Lender pursuant to Section 2.1(b)(iii), or (c) shall not have made
available to the Administrative Agent its proportionate share of the Unpaid
Amount as required pursuant to Section 2.19(b). Once a Lender becomes a
Defaulting Lender, such Lender shall continue as a Defaulting Lender until such
time as such Defaulting Lender makes available to the Administrative Agent the
amount of such Defaulting Lender's Loans together with all other amounts
required to be paid to the Administrative Agent, the Swingline Lender or any
other Lender pursuant to this Agreement.
"Dollar Advance" means a borrowing hereunder (or continuation or a
conversion thereof) consisting of the several Dollar Loans made on the same
Borrowing Date (or date of conversion or continuation) by the Lenders to a
Borrower of the same Type and for the same Interest Period.
"Dollar Amount" of any currency at any date shall mean (i) the amount
of such currency if such currency is Dollars or (ii) the Equivalent Amount of
Dollars if such currency is any currency other than Dollars, calculated on the
basis of the arithmetical mean of the buy and sell spot rates of exchange of the
Administrative Agent for such currency on the London market at 11:00 a.m.,
London time, on or as of the most recent Computation Date provided for in
Section 2.2.
"Dollar Commitment" means for each Lender the aggregate amount set
forth opposite its name on Schedule 6, provided, however that the Aggregate
Dollar Commitments of the Lenders shall not exceed $600,000,000.
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"Dollar Commitment Percentage" means as to any Lender, the percentage
which such Lender's Dollar Commitment then constitutes of the aggregate Dollar
Commitments of all Lenders (or, if the Commitments have terminated or expired,
the percentage which (a) the Aggregate Dollar Outstandings of such Lender at
such time constitutes of (b) the Aggregate Dollar Outstandings of all Lenders at
such time).
"Dollar Loans" means, with respect to a Lender, such Lender's Loans
made pursuant to Section 2.1(a)(i).
"Dollars" and "$" shall mean the lawful currency of the United States
of America.
"Eligible Currency" means any currency other than Dollars (i) that is
readily available, (ii) that is freely traded, (iii) in which deposits are
customarily offered to banks in the London interbank market, (iv) which is
convertible into Dollars in the international interbank market and (v) as to
which an Equivalent Amount may be readily calculated. If, after the designation
by the Lenders of any currency as an Agreed Currency, (x) currency control or
other exchange regulations are imposed in the country in which such currency is
issued with the result that different types of such currency are introduced, (y)
such currency is, in the determination of the Administrative Agent, no longer
readily available or freely traded or (z) in the determination of the
Administrative Agent, an Equivalent Amount of such currency is not readily
calculable, the Administrative Agent shall promptly notify the Lenders and the
Borrowers, and such currency shall no longer be an Agreed Currency until such
time as all of the Lenders agree to reinstate such currency as an Agreed
Currency and promptly, but in any event within five Business Days of receipt of
such notice from the Administrative Agent, the Borrowers shall repay all Loans
in such affected currency or convert such Loans into Loans in Dollars or another
Agreed Currency, subject to the other terms set forth in Article II.
"EMU" means Economic and Monetary Union as contemplated in the Treaty
on European Union.
"EMU Legislation" means legislative measures of the European Union for
the introduction of, changeover to or operation of the euro in one or more
member states.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
(i) the protection of the environment, (ii) the effect of the environment on
human health, (iii) emissions, discharges or releases of pollutants,
contaminants, hazardous substances or wastes into surface water, ground water or
land, or (iv) the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants, contaminants, hazardous
substances or wastes or the clean-up or other remediation thereof.
"Equivalent Amount" of any currency with respect to any amount of
Dollars at any date shall mean the equivalent in such currency of such amount of
Dollars, calculated on the basis of the arithmetical mean of the buy and sell
spot rates of exchange of the Administrative Agent for such other currency at
11:00 a.m., London time, on the date on or as of which such amount is to be
determined.
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"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"euro" means the single currency of the European Union as constituted
by the Treaty on European Union and as referred to in EMU Legislation.
"euro unit" means the currency unit of the euro as defined in the EMU
Legislation.
"Eurocurrency" means any Agreed Currency.
"Eurocurrency Advance" means an Advance comprised of Eurocurrency
Loans.
"Eurocurrency Loan" means a Loan which, except as otherwise provided in
Section 2.12, bears interest at the applicable Eurocurrency Rate.
"Eurocurrency Payment Office" of the Administrative Agent shall mean,
for each of the Agreed Currencies, the office, branch, affiliate or
correspondent bank of the Administrative Agent specified as the "Eurocurrency
Payment Office" for such currency in Schedule 3 hereto or such other office,
branch, affiliate or correspondent bank of the Administrative Agent as it may
from time to time specify to the Borrowers and each Lender as its Eurocurrency
Payment Office.
"Eurocurrency Rate" means, with respect to a Eurocurrency Advance for
the relevant Interest Period, the sum of (i) the quotient of (a) the
Eurocurrency Reference Rate applicable to such Interest Period, divided by (b)
one minus the Reserve Requirement (expressed as a decimal) applicable to such
Interest Period, plus (ii) the Applicable Margin. The Eurocurrency Rate shall be
expressed as a percentage rounded to four decimal places.
"Eurocurrency Reference Rate" means, with respect to each Interest
Period for a Multicurrency Advance :
(a) the rate per annum quoted at or about 11:00 a.m. (London time) on
the Quotation Date for such period on that page of the Telerate Screen, Reuters
or Bloombergs which displays British Bankers Association Interest Settlement
Rates for deposits in the relevant Agreed Currency for such period or, if such
page or service shall cease to be available, such other page or such other
service (as the case may be) for the purpose of displaying British Bankers
Association Interest Settlement Rates for such currency as the Administrative
Agent, in its discretion, shall select.
(b) If no such rate is displayed for the relevant currency and the
relevant period and there is no alternative service on which two or more such
quotations for the Agreed Currency are displayed, "Eurocurrency Reference Rate"
will be the rate at which deposits in the Agreed Currency of that amount are
offered by the Administrative Agent for that period to prime banks in the London
interbank market at or about 11:00 a.m. (London time) on the Quotation Date for
such period.
Plus, in each case, the Cost Rate; and with respect to a Dollar Advance
for the relevant Interest Period, the rate determined by the Administrative
Agent to be the rate at which First Chicago offers to place Eurodollar deposits
with first-class banks in the London interbank
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market at 11:00 a.m. (London time) two Business Days prior to the first day of
such Interest Period in the approximate amount of the relevant Dollar Loan of
First Chicago and having a maturity equal to such Interest Period.
"Excluded Taxes" means, in the case of each Lender or applicable
Lending Installation and the Administrative Agent, taxes imposed on its overall
net income, and franchise taxes (and any interest, fees or penalties for late
payment thereof) imposed on it by (i) the jurisdiction under the laws of which
such Lender or the Administrative Agent is incorporated or organized or (ii) the
jurisdiction in which the Administrative Agent's or such Lender's principal
executive office or such Lender's applicable Lending Installation is located.
"Exhibit" refers to an exhibit to this Agreement, unless another
document is specifically referenced.
"Facility Termination Date" means March 31, 2004, or any earlier date
on which the Aggregate Commitment is reduced to zero or otherwise terminated
pursuant to the terms hereof.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to 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 immediately preceding Business Day) by the Federal Reserve Bank of New
York, or, if such rate is not so published for such day, the average of the
quotations at approximately 10:00 a.m. (Detroit time) on such day on such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by the Administrative Agent in its sole
discretion.
"Financial Contract" of a Person means (a) any exchange-traded or over
the counter futures, forward, swap or option contract or other financial
instrument with similar characteristics or (b) any Rate Hedging Agreement.
"First Chicago" means The First National Bank of Chicago in its
individual capacity, and its successors.
"Floating Rate" means, for any day, a rate per annum equal to the
Alternate Base Rate for such day in each case changing when and as the Alternate
Base Rate changes.
"Floating Rate Advance" means an Advance comprised of Floating Rate
Loans.
"Floating Rate Loan" means a Dollar Loan which, except as otherwise
provided in Section 2.12, bears interest at the Floating Rate.
"Guarantor" means the Company, and its successors and assigns.
"Guaranty" means that certain Guaranty dated the date hereof executed
by the Guarantor in favor of the Administrative Agent, for the ratable benefit
of the Lenders, as it may be amended or modified and in effect from time to
time.
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"Indebtedness" of a Person means, as of any date, such Person's (i)
obligations for borrowed money or evidenced by bonds, notes, acceptances,
debentures or similar instruments or letters of credit (or reimbursement
agreements in respect thereof) or bankers' acceptances, (ii) obligations
representing the deferred purchase price of Property or services (other than
accounts payable arising in the ordinary course of such Person's business
payable on terms customary in the trade), (iii) obligations, whether or not
assumed, secured by Liens or payable out of the proceeds or production from
Property now or hereafter owned or acquired by such Person, (iv)obligations of
such Person to purchase securities or other Property arising out of or in
connection with the sale of the same or substantially similar securities or
Property, (v) Capitalized Lease Obligations, (vi) any other obligation for
borrowed money or other financial accommodation which in accordance with
Agreement Accounting Principles would be shown as a liability on the
consolidated balance sheet of such Person, (vii) any Rate Hedging Obligations of
such Person, and (viii) all Contingent Liabilities of such Person with respect
to or relating to the indebtedness, obligations and liabilities of others
similar in character to those described in clauses (i) through (vii) of this
definition.
"Interest Period" means, with respect to a Eurocurrency Advance, a
period of one, two, three or six months (or such longer or shorter period
requested by the Borrower and acceptable to all of the Lenders), commencing on a
Business Day selected by the Borrower pursuant to this Agreement. Such Interest
Period shall end on the day which corresponds numerically to such date one, two,
three or six months thereafter (or such longer or shorter period requested by
the Borrower and acceptable to all of the Lenders), provided, however, that if
there is no such numerically corresponding day in such next, second, third or
sixth succeeding month, such Interest Period shall end on the last Business Day
of such next, second, third or sixth succeeding month. If an Interest Period
would otherwise end on a day which is not a Business Day, such Interest Period
shall end on the next succeeding Business Day, provided, however, that if said
next succeeding Business Day falls in a new calendar month, such Interest Period
shall end on the immediately preceding Business Day.
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in the
ordinary course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in the
trade) or contribution of capital by such Person; stocks, bonds, mutual funds,
partnership interests, notes, debentures or other securities owned by such
Person; any certificate of deposit owned by such Person; and structured notes,
derivative financial instruments and other similar instruments or contracts
owned by such Person.
"Lead Arranger" means First Chicago Capital Markets, Inc., a Delaware
corporation, and its successors.
"Lenders" means the lending institutions listed on the signature pages
of this Agreement and their respective successors and assigns.
"Lending Installation" means, with respect to a Lender or the
Administrative Agent, the office, branch, subsidiary or Affiliate of such Lender
or the Administrative Agent with respect to each Agreed Currency listed on
Schedule 4, or otherwise selected by such Lender and the Administrative Agent
pursuant to Section 2.18.
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"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement).
"Loan" means, with respect to a Lender, such Lender's loan made
pursuant to Article II (or any conversion or continuation thereof).
"Loan Documents" means this Agreement, the Notes, the Guaranty and any
other instrument or document executed in connection with any of the foregoing at
any time.
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, condition (financial or otherwise), results of operations,
or prospects of the Company and its Subsidiaries taken as a whole, (ii) the
ability of the Company to perform its obligations under the Loan Documents to
which it is a party, or (iii) the validity or enforceability of any of the Loan
Documents or the rights or remedies of the Administrative Agent or the Lenders
thereunder.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multicurrency Advance" means a borrowing hereunder (or continuation or
a conversion thereof) consisting of the several Multicurrency Loans made on the
same Borrowing Date (or date of conversion or continuation) by the Lenders to a
Borrower of the same Type and for the same Interest Period.
"Multicurrency Commitment" means for each Lender the aggregate amount
set forth as its Multicurrency Commitment on Schedule 6 or as set forth in any
assignment that has become effective pursuant to Section 12.3.2, as such amount
shall be modified from time to time pursuant to the terms hereof, provided,
however that the Aggregate Multicurrency Commitments of the Lenders shall not
exceed the Equivalent Amount of $150,000,000.
"Multicurrency Commitment Percentage" means as to any Multicurrency
Lender, the percentage which such Multicurrency Lender's Multicurrency
Commitment then constitutes of the Aggregate Multicurrency Commitments (or, if
the Multicurrency Commitments have terminated or expired, the percentage which
(a) the Aggregate Multicurrency Outstandings of such Multicurrency Lender at
such time constitutes of (b) the Aggregate Multicurrency Outstandings of all
Multicurrency Lenders at such time).
"Multicurrency Lender" means each Lender having a Multicurrency
Commitment.
"Multicurrency Loans" means, with respect to a Multicurrency Lender,
such Lender's Loans made pursuant to Section 2.1(a)(ii).
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"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Company is a party to
which more than one employer is obligated to make contributions.
"National Currency Unit" means the unit of currency (other than a euro
unit) of a Participating Member State.
"Net Worth" means at any time the consolidated stockholder's equity of
the Company and its Subsidiaries calculated on a consolidated basis as of such
time in accordance with Agreement Accounting Principles .
"Non-U.S. Borrower" is defined in Section 3.1(b).
"Non-U.S. Lender" is defined in Section 3.5(iv).
"Note" means any promissory note issued at the request of a Lender
pursuant to Section 2.14 in the form of Exhibit E.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Loans, all accrued and unpaid fees and all expenses,
reimbursements, indemnities and other obligations of the Borrowers to the
Lenders or to any Lender, the Administrative Agent or any indemnified party
arising under the Loan Documents.
"Other Taxes" is defined in Section 3.5(ii).
"Overdue Rate" means a per annum rate that is equal to the sum of two
percent (2%) plus the Alternate Base Rate, changing as and when the Alternate
Base Rate changes or, with respect to any Alternate Currency Loan, such other
overdue rate, if any, as specified in the applicable Alternate Currency
Addendum.
"Participants" is defined in Section 12.2.1.
"Participating Member State" means any member state of the European
Union which has the euro as its lawful currency.
"Payment Date" means the last day of each calendar quarter, commencing
June 30, 1999.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Person" means any natural person, corporation, firm, joint venture,
partnership, limited liability company, association, enterprise, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412 of the
Code and as to which the Company or any member of the Controlled Group may have
any liability.
"Pricing Schedule" means the Schedule attached hereto identified as
such.
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"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned
or leased by such Person.
"Purchasers" is defined in Section 12.3.1.
"Quotation Date" in relation to any period for which a Eurocurrency
Reference Rate for an Agreed Currency other than Dollars is to be determined
hereunder, means the date on which quotations would ordinarily be given by prime
lenders in the London inter-bank market for deposits in the Agreed Currency in
relation to which such rate is to be determined for delivery on the first day of
that period, provided that, if, for such period, quotations would ordinarily be
given on more than one date, the Quotation Date for that period shall be the
last of those dates.
"Rate Hedging Agreement" means an agreement, device or arrangement
providing for payments which are related to fluctuations of interest rates,
exchange rates or forward rates, including, but not limited to,
dollar-denominated or cross-currency interest rate exchange agreements, forward
currency exchange agreements, interest rate cap or collar protection agreements,
forward rate currency or interest rate options, puts and warrants.
"Rate Hedging Obligations" of a Person means any and all obligations of
such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (a) any and all Rate
Hedging Agreements, and (b) any and all cancellations, buy backs, reversals,
terminations or assignments of any Rate Hedging Agreement.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying margin
stocks applicable to member banks of the Federal Reserve System.
"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC has by regulation waived
the requirement of Section 4043(a) of ERISA that it be notified within 30 days
of the occurrence of such event, provided, however, that a failure to meet the
minimum funding standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
"Required Lenders" means Lenders in the aggregate having at least 51%
of the Aggregate Commitment or, if the Aggregate Commitment has been terminated,
Lenders in the aggregate holding at least 51% of the Aggregate Outstandings.
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"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on Eurocurrency
liabilities.
"Significant Subsidiary" means any Subsidiary of the Company that would
be a "significant subsidiary" within the meaning of Rule 1-02 of the Securities
and Exchange Commission's Regulation S-X if 5% were substituted for 10% wherever
it occurs in such Rule.
"S&P" means Standard and Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc.
"Schedule" refers to a specific schedule to this Agreement, unless
another document is specifically referenced.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Single Employer Plan" means a Plan maintained by the Company or any
member of the Controlled Group for employees of the Company or any member of the
Controlled Group.
"Subsequent Participant" means any member state of the European Union
that adopts the euro as its lawful currency after the date of this Agreement.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, limited liability company, association, joint venture or
similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.
Unless otherwise expressly provided, all references herein to a "Subsidiary"
shall mean a Subsidiary of the Company.
"Subsidiary Borrower" means each Subsidiary of the Company listed as a
Subsidiary Borrower on Schedule 1 as amended from time to time in accordance
with Section 5.8.
"Substantial Portion" means, with respect to the Property of the
Company and its Subsidiaries, Property which (i) represents more than 20% of the
consolidated assets of the Company and its Subsidiaries as would be shown in the
consolidated financial statements of the Company and its Subsidiaries as at the
beginning of the twelve-month period ending with the month in which such
determination is made, or (ii) is responsible for more than 20% of the
consolidated net sales or of the consolidated net income of the Company and its
Subsidiaries as reflected in the financial statements referred to in clause (i)
above.
"Swingline Lender" means First Chicago.
"Swingline Loan" means any borrowing under Section 2.8 evidenced by the
Swingline Note and made by the Swingline Lender pursuant to Section 2.1(b).
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"Swingline Note" means the promissory note of the Company evidencing
the Swingline Loans, in substantially the same form as Exhibit F hereto, as
amended or modified at the time such Swingline Loan is made to the Company.
"Syndication Agent" means Bank of America NT & SA.
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and any and all liabilities with
respect to the foregoing, but excluding Excluded Taxes.
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Advance, its nature as a Floating
Rate Advance or a Eurocurrency Advance.
"Unfunded Liabilities" means the amount (if any) by which the present
value of all vested and unvested accrued benefits under all Single Employer
Plans exceeds the fair market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plans using PBGC actuarial assumptions for single employer plan terminations.
"Unpaid Amount" is defined in Section 2.19(b).
"Unmatured Default" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization 100% of the
ownership interests having ordinary voting power of which shall at the time be
so owned or controlled.
"Year 2000 Issues" means anticipated costs, problems and uncertainties
associated with the inability of certain computer applications of the Company
and its Subsidiaries, and of the Company's and its Subsidiaries' material
customers, suppliers and vendors, to function on and after January 1, 2000 as
they do on the date hereof, including handling applications involving dates, as
such inability affects the business, operations and financial condition of the
Company and its Subsidiaries.
"Year 2000 Program" is defined in Section 5.18.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
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ARTICLE II.
THE CREDITS
2.1 Commitments of the Lenders and Swing Line Facility.
(a) Revolving Credit Advances.
(i) From and including the date of this Agreement and prior to the
Facility Termination Date, each Lender agrees, for itself only, subject to the
terms and conditions set forth in this Agreement, to make Loans to the Borrowers
in Dollars from time to time in amounts not to exceed in the aggregate at any
one time outstanding the amount of its Dollar Commitment. Each Dollar Advance
shall consist of Dollar Loans made by each Lender ratably in proportion to such
Lender's respective Available Dollar Commitment divided by the aggregate
Available Dollar Commitments of all Lenders at such time.
(ii) From and including the date of this Agreement and prior to the
Facility Termination Date, each Multicurrency Lender agrees, for itself only,
subject to the terms and conditions set forth in this Agreement, to make
Multicurrency Loans to the Borrowers in Eligible Currencies from time to time
prior to the Facility Termination Date so long as after giving effect thereto
and any concurrent repayment or prepayment of Loans (x) the Available
Multicurrency Commitment of each Multicurrency Lender is greater than or equal
to zero, (y) the Equivalent Amount of the Aggregate Multicurrency Outstandings
of all Lenders does not exceed $150,000,000 and (z) the Aggregate Outstandings
of all Lenders does not exceed the Aggregate Commitment. Each Multicurrency
Advance shall consist of Multicurrency Loans made by each Multicurrency Lender
ratably in proportion to such Multicurrency Lender's respective Available
Multicurrency Commitment divided by the aggregate Available Multicurrency
Commitments of all Multicurrency Lenders at such time.
(iii) Subject to the terms of this Agreement, the Borrowers may borrow,
repay and reborrow at any time prior to the Facility Termination Date. The
Commitments to lend hereunder shall expire on the Facility Termination Date.
(iv) Immediately and automatically upon the occurrence of a Default
under Sections 7.2, 7.6 or 7.7, (A) each Lender shall be deemed to have
unconditionally and irrevocably purchased from each Multicurrency Lender,
without recourse or warranty, an undivided interest in and participation in each
Multicurrency Loan ratably in accordance with such Lender's Commitment
Percentage, (B) immediately and automatically all Multicurrency Loans shall be
converted to and redenominated in Dollars equal to the Equivalent Amount of each
such Multicurrency Loan determined as of the date of such conversion, (C) each
Multicurrency Lender shall be deemed to have unconditionally and irrevocably
purchased from each Dollar Lender, without recourse or warranty, an undivided
interest in and participation in each Dollar Loan ratably in accordance with
such Multicurrency Lender's Commitment Percentage. Each of the Lenders shall pay
to
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the applicable Multicurrency Lender not later than two (2) Business Days
following a request for payment from such Lender, in Dollars, an amount equal to
the undivided interest in and participation in the Multicurrency Loan purchased
by such Lender pursuant to this Section 2.1(a)(iv), and each of the
Multicurrency Lenders shall pay to the applicable Dollar Lender not later than
two (2) Business Days following a request for payment from such Lender, in
Dollars, an amount equal to the undivided interest in and participation in the
Dollar Loan purchased by such Multicurrency Lender pursuant to this Section
2.1(a)(iv), it being the intent of the Lenders that following such equalization
payments, each Lender shall hold its Commitment Percentage of the Aggregate
Outstandings.
(b) Swingline Loans.
(i) Subject to the terms and conditions of this Agreement, the
Swingline Lender agrees to make Swingline Loans to the Company from time to time
on any Business Day during the period from the date hereof to but excluding the
Facility Termination Date in the aggregate principal Dollar Amount not to exceed
at any date the lesser of (A) $50,000,000 (the "Swingline Amount") and (B) the
unused portion of the Aggregate Commitment as of such date. In addition, the
outstanding principal amount of Swingline Loans made in Dollars shall not exceed
$40,000,000 at any time, and the Equivalent Amount of the outstanding principal
amount of Swingline Loans made in British Pounds Sterling or the euro unit shall
not exceed $10,000,000 at any time. The obligation of the Swingline Lender to
make Swingline Loans in British Pounds Sterling or the euro unit shall be in the
Swingline Lender's sole discretion, and any such Swingline Loans shall be deemed
to utilized the Swingline Lender's Multicurrency Commitment. Each Lender's
Commitment shall be deemed utilized by an amount equal to such Lender's
Commitment Percentage of each Swingline Loan for purposes of determining the
amount of Loans required to be made by such Lender. All Swingline Loans shall
bear interest at the Alternate Base Rate or such other rate as shall be agreed
between the Company and the Swingline Lender with respect to any Swingline Loan
at the time such Swingline Loan is made. If any Swingline Loan made in Dollars
is not repaid by the Company on the date when due, each Lender will make a
Floating Rate Loan the proceeds of which will be used to repay the Swingline
Loan.
(ii) The Swingline Lender may at any time in its sole and absolute
discretion require that any Swingline Loan be refunded by a Floating Rate
Advance from the Lenders, and upon written notice thereof by the Swingline
Lender to the Administrative Agent, the Lenders and the Company, the Company
shall be deemed to have requested a Floating Rate Advance in an amount equal to
the Dollar Amount of such Swingline Loan and such Floating Rate Advance shall be
made to refund such Swingline Loan. Any Swingline Loan outstanding in an
Eligible Currency other than Dollars, shall, upon the giving of such notice by
the Swingline Lender, immediately and automatically be converted to and
redenominated in Dollars equal to the Equivalent Amount of each such Swingline
Loan determined as of the date of such conversion. Each Lender shall be
absolutely and unconditionally obligated to fund its Commitment Percentage of
such Floating Rate Advance or, if applicable, to purchase a participation
interest in the
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Swingline Loans pursuant to Section 2.1(b)(iii) and such obligation shall not be
affected by any circumstance, including, without limitation, (A) any set-off,
counterclaim, recoupment, defense or other right which such Lender has or may
have against the Administrative Agent or the Company or any of its Subsidiaries
or anyone else for any reason whatsoever (including without limitation any
failure to comply with the requirements of Section 4.2, other than the Swingline
Lender making a Swingline Loan when it had actual knowledge of the existence of
a Default); (B) the occurrence or continuance of a Default, subject to Section
2.1(b)(iii); (C) any adverse change in the condition (financial or otherwise) of
the Company or any of its Subsidiaries; (D) any breach of this Agreement by the
Company or any of its Subsidiaries or any other Lender; or (E) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing (including without limitation the Company's failure to satisfy any
conditions contained in Article IV or any other provision of this Agreement).
(iii) If, for any reason (including without limitation as a result of
the occurrence of a Default with respect to the Company pursuant to Article VII)
Floating Rate Loans may not be made by the Lenders as described in Section
2.1(b)(ii), then (A) the Company agrees that each Swingline Loan not paid
pursuant to Section 2.1(b)(ii) shall bear interest, payable on demand by the
Swingline Lender, at the Overdue Rate, (B) the Company agrees that each
Swingline Loan outstanding in an Eligible Currency other than Dollars shall be
immediately and automatically converted to and redenominated in Dollars equal to
the Equivalent Amount of each such Swingline Loan determined as of the date of
such conversion, and (C) effective on the date each such Floating Rate Loan
would otherwise have been made, each Lender severally agrees that it shall
unconditionally and irrevocably, without regard to the occurrence of any
Default, in lieu of deemed disbursement of loans, to the extent of such Lender's
Commitment, purchase a participation interest in the Swingline Loans by paying
its Commitment Percentage thereof, provided, however, that no Lender shall be
obligated to purchase such participation in a Swingline Loan made by the
Swingline Lender when it had actual knowledge of the existence of a Default.
Each Lender will immediately transfer to the Swingline Lender, in same day
funds, the amount of its participation. Each Lender shall share based on its
Commitment Percentage in any interest which accrues thereon and in all
repayments thereof. If and to the extent that any Lender shall not have so made
the amount of such participating interest available to the Swingline Lender,
such Lender and the Company severally agree to pay to the Swingline Lender
forthwith on demand such amount together with interest thereon, for each day
from the date of demand by the Swingline Lender until the date such amount is
paid to the Swingline Lender, at (x) in the case of the Company, at the interest
rate specified above and (y) in the case of such Lender, the Federal Funds
Effective Rate.
(c) Alternate Currency Loans.
(i) Subject to the terms and conditions of this Agreement and the
applicable Alternate Currency Addendum, from and including the later of the date
of this Agreement and the date of execution of the applicable Alternate Currency
Addendum and prior to the Facility Termination Date (unless an earlier
termination date shall be specified in the
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applicable Alternate Currency Addendum), the Administrative Agent and the
applicable Alternate Currency Lenders agree, on the terms and conditions set
forth in this Agreement and in the applicable Alternate Currency Addendum, to
make Alternate Currency Loans under such Alternate Currency Addendum to the
applicable Borrower party to such Alternate Currency Addendum from time to time
in the applicable Alternate Currency, in an amount not to exceed each such
Alternate Currency Lender's applicable Alternate Currency Commitment; provided,
however, (i) at no time shall the outstanding principal amount of all Alternate
Currency Loans exceed the Alternate Currency Commitment for such currency (ii)
at not time shall the Aggregate Multicurrency Outstandings exceed the Aggregate
Multicurrency Commitments and (iii) at no time shall the aggregate outstanding
principal amount of the Alternate Currency Loans for any specific Alternate
Currency exceed the amount specified as the maximum amount for such Alternate
Currency in the applicable Alternate Currency Addendum. The Equivalent Amount of
any Alternate Currency Commitment of an Alternate Currency Lender shall be
deemed to utilize such Lender's Multicurrency Commitment. Each Alternate
Currency Loan shall consist of Alternate Currency Loans made by each applicable
Alternate Currency Lender ratably in proportion to such Alternate Currency
Lender's respective Alternate Currency Share. Subject to the terms of this
Agreement and the applicable Alternate Currency Addendum, the Borrowers may
borrow, repay and reborrow Alternate Currency Loans at any time prior to the
Facility Termination Date. On the Facility Termination Date, the outstanding
principal balance of the Alternate Currency Loans shall be paid in full by the
applicable Borrower and prior to the Facility Termination Date prepayments of
the Alternate Currency Loans shall be made by the applicable Borrower if and to
the extent required by this Agreement. Subject to the applicable Alternate
Currency Addendum, each Alternate Currency Loan shall have a maturity of one,
two, three or six months and bear interest at the Alternate Currency Rate for
such period plus the Applicable Margin as if such Loan were a Eurocurrency Loan.
(ii) The Company may, by written notice to the Administrative Agent
request the establishment of additional Alternate Currency Commitments in
additional Alternate Currencies provided the Equivalent Amount of the Alternate
Currency Commitment requested together with the Aggregate Multicurrency
Outstandings does not exceed the Aggregate Multicurrency Commitments ("Request
for a New Alternate Currency Facility"). The Administrative Agent will promptly
forward to the Multicurrency Lenders any Request for a New Alternate Currency
Facility received from the Company; provided each Lender shall be deemed not to
have agreed to such request unless its written consent thereto has been received
by the Administrative Agent within ten (10) Business Days from the date of such
notification by the Administrative Agent to such Lender (or such shorter period
as shall be specified by the Company in the Request for a New Alternate Currency
Facility). In the event that one or more Multicurrency Lenders consent to such
Request for a New Alternate Currency Facility and agree to make Alternate
Currency Loans in such Alternate Currency in an amount not less than that
requested by the Company, upon execution of the applicable Alternate Currency
Addendum and the other documents, instruments and agreements required pursuant
to this Agreement and such Alternate Currency Addendum, the Alternate Currency
Loans with respect thereto may be made.
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(iii) Except as otherwise required by applicable law, in no event shall
the Administrative Agent or Alternate Currency Lenders have the right to
accelerate the Alternate Currency Loans outstanding under any Alternate Currency
Addendum or to terminate their Alternate Currency Commitments (if any)
thereunder to make Alternate Currency Loans prior to the stated termination date
in respect thereof, except that such Administrative Agent and Alternate Currency
Lenders shall, in each case, have such rights upon an acceleration of the Loans
and a termination of the Commitments pursuant to Section 8.1.
(iv) Immediately and automatically upon the occurrence of a Default
under Sections 7.2, 7.6 or 7.7, each Lender shall be deemed to have
unconditionally and irrevocably purchased from each Alternate Currency Lender,
without recourse or warranty, an undivided interest in and participation in each
Alternate Currency Loan ratably in accordance with such Lender's Commitment
Percentage, and immediately and automatically all Alternate Currency Loans shall
be converted to and redenominated in Dollars equal to the Equivalent Amount of
each such Alternate Currency Loan determined as of the date of such conversion.
Each of the Lenders shall pay to the applicable Alternate Currency Lender not
later than two (2) Business Days following a request for payment from such
Lender, in Dollars, an amount equal to the undivided interest in and
participation in the Alternate Currency Loan purchased by such Lender pursuant
to this Section 2.1(c)(iv).
2.2 Determination of Dollar Amounts; Termination.
(i) The Administrative Agent will determine the Dollar Amount of:
(a) each Advance as of the date two Business Days prior to the
Borrowing Date or, if applicable, date of conversion/continuation of such
Advance,
(b) all outstanding Advances and Alternate Currency Loans on and
as of the last day of each Interest Period (but not less frequently than
quarterly), on receipt of any notice from the Company as to the reduction of the
Aggregate Commitment, and on any other Business Day elected by the
Administrative Agent in its discretion or upon instruction by the Required
Lenders; and
(c) all outstanding Advances and Alternate Currency Loans on each
Business Day during which Aggregate Dollar Outstandings together with
outstanding Swingline Loans exceed $500,000,000 or Aggregate Multicurrency
Outstandings exceed $100,000,000.
Each day upon or as of which the Administrative Agent determines Dollar
Amounts as described in the preceding clauses (a), (b) and (c) is herein
described as a "Computation Date" with respect to each Advance for which a
Dollar Amount is determined on or as of such day.
(ii) Any outstanding Advances together with any other unpaid
Obligations then due and payable shall be paid in full by the Borrowers on the
Facility Termination Date.
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2.3 Ratable Loans.
Other than Alternate Currency Loans, each Multicurrency Advance
hereunder shall consist of Multicurrency Loans made from the several
Multicurrency Lenders ratably in proportion to such Multicurrency Lenders'
respective Available Multicurrency Commitment divided by the aggregate Available
Multicurrency Commitments of all Multicurrency Lenders at such time, and each
Dollar Advance hereunder shall consist of Dollar Loans made from the Lenders
ratably according to their Dollar Commitment Percentage.
2.4 Types of Advances.
The Advances may be Floating Rate Advances or Eurocurrency Advances, on
the one hand, and Dollar Advances or Multicurrency Advances on the other hand,
or a combination thereof, selected by the relevant Borrowers in accordance with
Sections 2.8 and 2.9, provided, however, that a Floating Rate Advance must also
be a Dollar Advance.
2.5 Facility Fee; Reductions in Aggregate Commitment; Utilization Fee.
The Company agrees to pay to the Administrative Agent for the account
of each Lender a facility fee, determined in accordance with the Pricing
Schedule, calculated on the Aggregate Commitment, whether used or unused,
payable quarterly in arrears for the ratable benefit of the Lenders from the
date of this Agreement until the Facility Termination Date. The Aggregate
Commitment may be reduced by the Company in multiples of $10,000,000 upon three
Business Days' prior written notice. Any such reduction shall be allocated
ratably between the Dollar Commitment and the Multicurrency Commitment. For each
day on which the Aggregate Outstandings exceeds 33% of the Aggregate Commitment,
a utilization fee at the per annum rate set forth on the Pricing Schedule will
accrue on the aggregate principal amount of outstanding Advances for the ratable
benefit of the Lenders, payable in arrears on each Payment Date until the
Facility Termination Date, provided, however, that irrespective of the amount of
Aggregate Outstandings, a utilization fee at the rates set forth on the Pricing
Schedule for ">67%" shall accrue on all Multicurrency Advances and Alternate
Currency Loans for the benefit of the Multicurrency Lenders, payable as
aforesaid.
2.6 Minimum Amount of Each Advance.
Each Eurocurrency Advance shall be in the minimum Equivalent Amount of
$5,000,000 (and in multiples of Equivalent Amounts of $1,000,000 in excess
thereof, or in the case of a Multicurrency Advance, such other lesser multiple
as the Administrative Agent deems appropriate), and each Floating Rate Advance
shall be in the minimum amount of $5,000,000 (and in multiples of $1,000,000 if
in excess thereof), provided, however, that any Floating Rate Advance may be in
the amount of the unused Aggregate Commitment. Each Swingline Loan shall be in
the minimum amount of $5,000,000 (and in multiples of $500,000 if in excess
thereof) or in the case of Swingline Loans in British Pounds Sterling or euro
units, such other minimum amounts and multiples as the Swingline Lender shall
determine, provided however, that any Swingline Loan may be in the amount of the
unused Swingline Commitment. Alternate Currency Loans shall be in such minimum
amounts as are set forth in the applicable Alternate Currency Addendum.
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2.7 Prepayments.
(a) The Borrowers may from time to time pay, without penalty or
premium, all outstanding Floating Rate Advances, or, in a minimum aggregate
amount of $5,000,000 or any integral multiple of $1,000,000 in excess thereof,
any portion of the outstanding Floating Rate Advances upon one Business Days'
prior notice to the Administrative Agent, who shall give prompt notice thereof
to the Lenders.
(b) The Borrowers may from time to time pay, subject to the
payment of any funding indemnification amounts required by Section 3.4 but
without penalty or premium, all outstanding Eurocurrency Advances, or, in a
minimum aggregate Equivalent Amount of $5,000,000 or any integral multiple
Equivalent Amount of $1,000,000 in excess thereof, or in the case of a
Multicurrency Advance, such other lesser multiple as the Administrative Agent
deems appropriate, any portion of the outstanding Eurocurrency Advances upon
three Business Days' prior notice to the Administrative Agent, who shall give
prompt notice thereof to the Lenders.
(c) If at any time, for any reason, the Aggregate Outstandings of
all Lenders shall exceed the Aggregate Commitment then in effect, the Borrowers
shall, without notice or demand, immediately prepay the Dollar Loans and/or
Multicurrency Loans such that the sum of the aggregate principal amount of
Dollar Loans so prepaid and the Equivalent Amount of the aggregate principal
amount of Multicurrency Loans so prepaid, at least equals the amount of such
excess.
(d) If, at any time for any reason, either (i) the Aggregate
Multicurrency Outstandings of all Multicurrency Lenders exceed the Aggregate
Multicurrency Commitments of the Multicurrency Lenders or (ii) the Aggregate
Dollar Outstandings of all Lenders exceed the aggregate Dollar Commitments of
all Lenders, the Borrowers shall, without notice or demand, immediately prepay
the Multicurrency Loans in the Equivalent Amount at least equal to the excess
referred to in (i) and the Dollar Loans in an amount at least equal to the
excess referred to in (ii).
(e) Each prepayment pursuant to this Section 2.7 shall be
accompanied by accrued and unpaid interest on the amount prepaid to the date of
prepayment and any amounts payable under Section 3.4 in connection with such
payment.
(f) Notwithstanding the foregoing, mandatory prepayments of
Multicurrency Loans that would otherwise be required pursuant to this Section
2.7 solely as a result of fluctuations in exchange rates from time to time shall
only be required to be made pursuant to this Section 2.7 on a Computation Date
on the basis of the exchange rates in effect on such Computation Date.
2.8 Method of Selecting Types and Interest Periods for New Advances.
The Company or the relevant Borrower shall select the Type of Advance
and, in the case of each Eurocurrency Advance, the Interest Period and Agreed
Currency applicable thereto from time to time. The Company or the relevant
Borrower shall give the Administrative Agent
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irrevocable notice (a "Borrowing Notice") not later than 10:00 a.m. (Detroit
time) on the Borrowing Date of each Floating Rate Advance (other than Swingline
Loans), not later than 11:00 a.m. (Detroit time) three Business Days before the
Borrowing Date for each Eurocurrency Advance in Dollars, and not later than
11:00 a.m. (London time) three Business Days before the Borrowing Date for each
Multicurrency Advance, specifying:
(i) the Borrower,
(ii) the Borrowing Date, which shall be a Business Day, of such
Advance,
(iii) the aggregate amount of such Advance,
(iv) the Type of Advance selected,
(v) in the case of each Eurocurrency Advance, the Interest
Period, and Agreed Currency applicable thereto, and
(vi) details relating to funds transfer for such Advance.
The Company shall give the Administrative Agent notice of its request
for each Swingline Loan not later than 2:00 p.m. Detroit time on the same
Business Day such Swingline Loan is requested to be made. Not later than noon
(Detroit time) on each Borrowing Date, each Lender shall make available its Loan
or Loans in funds immediately available to the Administrative Agent at its
address specified pursuant to Article XIII. The Administrative Agent will make
the funds so received from the Lenders available to the Borrower at the
Administrative Agent's aforesaid address.
2.9 Conversion and Continuation of Outstanding Advances.
Floating Rate Advances shall continue as Floating Rate Advances unless
and until such Floating Rate Advances are converted into Eurocurrency Advances
pursuant to this Section 2.9 or are repaid in accordance with Section 2.7. Each
Eurocurrency Advance shall continue as a Eurocurrency Advance until the end of
the then applicable Interest Period therefor, at which time:
(i) each such Eurocurrency Advance denominated in Dollars shall be
automatically converted into a Floating Rate Advance unless (x) such
Eurocurrency Advance is or was repaid in accordance with Section 2.7 or (y) the
Borrower shall have given the Administrative Agent a Conversion/Continuation
Notice (as defined below) requesting that, at the end of such Interest Period,
such Eurocurrency Advance either continue as a Eurocurrency Advance for the same
or another Interest Period or be converted into a Floating Rate Advance; and
(ii) each such Multicurrency Advance shall automatically continue as a
Multicurrency Advance in the same Agreed Currency with an Interest Period of one
month unless (x) such Multicurrency Advance is or was repaid in accordance with
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Section 2.7 or (y) the Borrower shall have given the Administrative Agent a
Conversion/Continuation Notice (as defined below) requesting that, at the end of
such Interest Period, such Multicurrency Advance continue as a Multicurrency
Advance for the same or another Interest Period.
Subject to the terms of Section 2.6, the Borrower may elect from time
to time to convert all or any part of an Advance of any Type into any other Type
or Types of Advances denominated in the same or any other Agreed Currency (other
than an Alternate Currency); provided that any conversion of any Eurocurrency
Advance shall be made on, and only on, the last day of the Interest Period
applicable thereto. The Borrower shall give the Administrative Agent irrevocable
notice (a "Conversion/Continuation Notice") of each conversion of an Advance or
continuation of a Eurocurrency Advance not later than 10:00 a.m. (Detroit time)
at least one Business Day, in the case of a conversion into a Floating Rate
Advance, three Business Days, in the case of a conversion into or continuation
of a Eurocurrency Advance denominated in Dollars, or four Business Days, in the
case of a conversion into or continuation of a Multicurrency Advance, prior to
the date of the requested conversion or continuation, specifying:
i. the requested date, which shall be a Business Day, of such
conversion or continuation, and
ii. the Agreed Currency, amount and Type(s) of Advance(s) into which
such Advance is to be converted or continued and, in the case of a
conversion into or continuation of a Eurocurrency Advance, the
duration of the Interest Period applicable thereto.
2.10 Method of Borrowing.
On each Borrowing Date, each Lender shall make available its Loan or
Loans, if any, (i) if such Loan is a Dollar Loan, not later than noon, Detroit
time, in Federal or other funds immediately available to the Administrative
Agent, in Detroit, Michigan at its address specified in or pursuant to Article
XIII and, (ii) if such Loan is a Multicurrency Loan, and subject to any
applicable Alternate Currency Addendum, not later than noon, local time, in the
city of the Administrative Agent's Eurocurrency Payment Office for such
currency, in such funds as may then be customary for the settlement of
international transactions in such currency in the city of and at the address of
the Administrative Agent's Eurocurrency Payment Office for such currency. Unless
the Administrative Agent determines that any applicable condition specified in
Article IV has not been satisfied, the Administrative Agent will make the funds
so received from the Lenders available to the relevant Borrower at the
Administrative Agent's aforesaid address. Notwithstanding the foregoing
provisions of this Section 2.10, to the extent that a Loan made by a Lender
matures on the Borrowing Date of a requested Loan in the same currency, such
Lender shall apply the proceeds of the Loan it is then making to the repayment
of principal of the maturing Loan.
2.11 Changes in Interest Rate, etc.
Each Floating Rate Advance shall bear interest on the outstanding
principal amount thereof, for each day from and including the date such Advance
is made or is converted from a Eurocurrency Advance into a Floating Rate Advance
pursuant to Section 2.9 to but excluding the date it becomes due or is converted
into a Eurocurrency Advance pursuant to Section 2.9 hereof, at a rate per annum
equal to the Floating Rate for such day. Changes in the rate of interest on
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that portion of any Advance maintained as a Floating Rate Advance will take
effect simultaneously with each change in the Alternate Base Rate. Each
Eurocurrency Advance shall bear interest on the outstanding principal amount
thereof from and including the first day of the Interest Period applicable
thereto to (but not including) the last day of such Interest Period at the
interest rate determined by the Administrative Agent as applicable to such
Eurocurrency Advance based upon the Borrower's selections under Sections 2.8 and
2.9 and otherwise in accordance with the terms hereof. No Interest Period may
end after the Facility Termination Date.
2.12 Rates Applicable After Default.
Notwithstanding anything to the contrary contained in Section 2.8 or
2.9, during the continuance of a Default or Unmatured Default the Required
Lenders may, at their option, by notice to the Borrowers (which notice may be
revoked at the option of the Required Lenders notwithstanding any provision of
Section 8.2 requiring unanimous consent of the Lenders to changes in interest
rates), declare that no Advance may be made as, converted into or continued as a
Eurocurrency Advance. During the continuance of a Default the Required Lenders
may, at their option, by notice to the Borrowers (which notice may be revoked at
the option of the Required Lenders notwithstanding any provision of Section 8.2
requiring unanimous consent of the Lenders to changes in interest rates),
declare that (i) each Eurocurrency Advance shall bear interest for the remainder
of the applicable Interest Period at the rate otherwise applicable to such
Interest Period plus 2% per annum and (ii) each Floating Rate Advance shall bear
interest at a rate per annum equal to the Floating Rate in effect from time to
time plus 2% per annum, provided that, during the continuance of a Default under
Section 7.6 or 7.7, the interest rates set forth in clauses (i) and (ii) above
shall be applicable to all Advances without any election or action on the part
of the Administrative Agent or any Lender.
2.13 Method of Payment.
(i) Each Advance shall be repaid and each payment of interest thereon
shall be paid in the currency in which such Advance was made or converted into.
All payments of the Obligations hereunder shall be made, without setoff,
deduction, or counterclaim, in immediately available funds by wire transfer to
the Administrative Agent at (except as set forth in the next sentence) the
Administrative Agent's address specified pursuant to Article XIII, or at any
other Lending Installation of the Administrative Agent specified in writing by
the Administrative Agent to the Borrower, by noon (local time) on the date when
due and, except for payments on Swingline Loans and Alternate Currency Loans,
shall be applied ratably by the Administrative Agent among the Lenders. All
payments to be made by the Borrowers hereunder in any currency other than
Dollars shall be made in such currency on the date due in such funds as may then
be customary for the settlement of international transactions in such currency
for the account of the Administrative Agent, at its Eurocurrency Payment Office
for such currency and, except for payments of Alternate Currency Loans, shall be
applied ratably by the Administrative Agent among the Lenders. Each payment
delivered to the Administrative Agent for the account of any Lender shall be
delivered promptly by the Administrative Agent to such Lender in the same type
of funds that the Administrative Agent received at, (a) with respect to Floating
Rate Loans and Eurocurrency Loans denominated in Dollars, its address specified
pursuant to Article XIII or at any Lending
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Installation specified in a notice received by the Administrative Agent from
such Lender and (b) with respect to Eurocurrency Loans denominated in an Agreed
Currency other than Dollars, in the funds received from the Borrower at the
address of the Administrative Agent's Eurocurrency Payment Office for such
currency. In relation to the payment of any amount of euro, such amount shall be
made available to the Administrative Agent in immediately available, freely
transferable, cleared funds to such account with such bank in London (or such
other principal financial center in such Participating Member State as the
Administrative Agent may from time to time nominate for this purpose) as the
Administrative Agent shall from time to time nominate for this purpose.
(ii) Notwithstanding the foregoing provisions of this Section, if,
after the making of any Advance in any currency other than Dollars, currency
control or exchange regulations are imposed in the country which issues such
currency with the result that the type of currency in which the Advance was made
(the "Original Currency") no longer exists or the relevant Borrower is not able
to make payment to the Administrative Agent for the account of the Lenders in
such Original Currency, then all payments to be made by the Borrowers hereunder
in such currency shall instead be made when due in Dollars in an amount equal to
the Dollar Amount (as of the date of repayment) of such payment due, it being
the intention of the parties hereto that the Borrowers take all risks of the
imposition of any such currency control or exchange regulations. For purposes of
this Section 2.13(ii), the commencement of the third stage of European Economic
and Monetary Union shall not constitute the imposition of currency control or
exchange regulations.
2.14 Noteless Agreement; Evidence of Indebtedness.
(i) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of each Borrower to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time hereunder.
(ii) The Administrative Agent shall maintain accounts in which it will
record (a) the amount of each Loan made hereunder, the Agreed Currency and Type
thereof and, if applicable, the Interest Period with respect thereto, (b) the
amount of any principal or interest due and payable or to become due and payable
from each Borrower to each Lender hereunder and (c) the amount of any sum
received by the Administrative Agent hereunder from the Borrowers and each
Lender's share thereof.
(iii) The entries maintained in the accounts maintained pursuant to
paragraphs (i) and (ii) above shall be prima facie evidence of the existence and
amounts of the Obligations therein recorded; provided, however, that the failure
of the Administrative Agent or any Lender to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrowers to repay
the Obligations in accordance with their terms.
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(iv) Any Lender may request that its Loans be evidenced by a promissory
note (a "Note"). In such event, the relevant Borrower shall prepare, execute and
deliver to such Lender a Note payable to the order of such Lender in a form
supplied by the Administrative Agent and reasonably acceptable to the Company.
Thereafter, the Loans evidenced by such Note and interest thereon shall at all
times (including after any assignment pursuant to Section 12.3) be represented
by one or more Notes (but not more than one Note for each Agreed Currency)
payable to the order of the payee named therein or any assignee pursuant to
Section 12.3, except to the extent that any such Lender or assignee subsequently
returns any such Note for cancellation and requests that such Loans once again
be evidenced as described in paragraphs (i) and (ii) above.
2.15 Telephonic Notices.
The Borrowers hereby authorize the Lenders and the Administrative Agent
to extend, convert or continue Advances, effect selections of Agreed Currencies
and Types of Advances and to transfer funds based on telephonic notices given to
the Administrative Agent by any person or persons listed on Schedule 8, as such
Schedule may be revised by the Company from time to time in accordance with
Section 13.1, it being understood that the foregoing authorization is
specifically intended to allow Borrowing Notices and Conversion/Continuation
Notices to be given telephonically. The Borrowers agree to deliver promptly to
the Administrative Agent a written confirmation, if such confirmation is
requested by the Administrative Agent or any Lender, of each telephonic notice
signed by an Authorized Officer. If the written confirmation differs in any
material respect from the action taken by the Administrative Agent and the
Lenders, the records of the Administrative Agent regarding the telephonic notice
shall govern absent manifest error.
2.16 Interest Payment Dates; Interest and Fee Basis.
Interest accrued on each Floating Rate Advance shall be payable on each
Payment Date, commencing with the first such date to occur after the date
hereof, on any date on which the Floating Rate Advance is prepaid, whether due
to acceleration or otherwise, and at maturity. Interest on Floating Rate Loans
shall be calculated for actual days elapsed on the basis of a 365 or 366-day
year, as appropriate. Interest accrued on that portion of the outstanding
principal amount of any Floating Rate Advance converted into a Eurocurrency
Advance on a day other than a Payment Date shall be payable on the date of
conversion. Interest accrued on each Eurocurrency Advance shall be payable in
arrears on the last day of its applicable Interest Period, on any date on which
the Eurocurrency Advance is prepaid, whether by acceleration or otherwise, and
at maturity, and with respect to any Alternate Currency Loan, the date specified
as the date on which interest is payable in the applicable Alternate Currency
Addendum. Interest accrued on each Eurocurrency Advance having an Interest
Period longer than three months shall also be payable on the last day of each
three-month interval during such Interest Period. Interest shall be calculated
for actual days elapsed on the basis of a 360-day year, except for interest on
Loans denominated in British Pounds Sterling which shall be calculated for
actual days elapsed on the basis of a 365-day year. Interest shall be payable
for the day an Advance is made but not for the day of any payment on the amount
paid if payment is received prior to noon (local time) at the place of payment.
If any payment of principal of or interest on an Advance shall become due on a
day which is not a Business Day, such payment shall be made on the next
succeeding
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Business Day and, in the case of a principal payment, such extension of time
shall be included in computing interest in connection with such payment.
2.17 Notification of Advances, Interest Rates, Prepayments and
Commitment Reductions.
Promptly after receipt thereof, the Administrative Agent will notify
each Lender of the contents of each Aggregate Commitment reduction notice,
Borrowing Notice, Conversion/Continuation Notice, and repayment notice received
by it hereunder. The Administrative Agent will notify each Lender, the Company
and the relevant Borrower of the interest rate applicable to each Eurocurrency
Advance promptly upon determination of such interest rate and will give each
Lender and the Company prompt notice of each change in the Alternate Base Rate.
2.18 Lending Installations.
Each Lender will book its Loans at the appropriate Lending Installation
listed on Schedule 4 or such other Lending Installation designated by such
Lender in accordance with the final sentence of this Section 2.18. All terms of
this Agreement shall apply to any such Lending Installation and the Loans and
any Notes issued hereunder shall be deemed held by each Lender for the benefit
of any such Lending Installation. Each Lender may, by not less than one days'
prior written notice to the Administrative Agent and the Borrowers in accordance
with Article XIII, designate replacement or additional Lending Installations
through which Loans will be made by it and for whose account Loan payments are
to be made.
2.19 Non-Receipt of Funds by the Administrative Agent.
(a) Unless the relevant Borrower or a Lender, as the case may be,
notifies the Administrative Agent prior to the date on which it is scheduled to
make payment to the Administrative Agent of (i) in the case of a Lender, the
proceeds of a Loan or any payment by such Lender pursuant to Sections
2.1(a)(iv), 2.1(b)(iii) or 2.1(c)(iv), or (ii) in the case of such Borrower, a
payment of principal, interest or fees to the Administrative Agent for the
account of the Lenders, that it does not intend to make such payment, the
Administrative Agent may assume that such payment has been made. The
Administrative Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption. If
such Lender or the Borrower, as the case may be, has not in fact made such
payment to the Administrative Agent, the recipient of such payment shall, on
demand by the Administrative Agent, repay to the Administrative Agent the amount
so made available together with interest thereon in respect of each day during
the period commencing on the date such amount was so made available by the
Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to (x) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day or such other rate which is customary
for the settlement of overnight interbank transactions in the currency of such
payment, or (y) in the case of payment by the Borrower, the interest rate
applicable to the relevant Loan. With respect to Multicurrency Advances, a
payment shall be deemed to have been made by the Administrative Agent on the
date on which it is required to be made under this Agreement if the
Administrative Agent has, on or before that date, taken all relevant steps to
make that payment. With respect to the payment of any amount denominated in
euro, the Administrative Agent shall not be liable to any Borrower or any of the
Lenders in any way whatsoever for any delay, or the consequences of
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any delay, in the crediting to any account of any amount required by this
Agreement to be paid by the Administrative Agent if the Administrative Agent
shall have taken all relevant steps to achieve, on the date required by this
Agreement, the payment of such amount in immediately available, freely
transferable, cleared funds in the euro unit to the account with the bank in the
principal financial center in the Participating Member State which the relevant
Borrower or, as the case may be, any Lender shall have specified for such
purpose. In this Section 2.19, "all relevant steps" means all such steps as may
be prescribed from time to time by the regulations or operating procedures of
such clearing or settlement system as the Administrative Agent may from time to
time determine for the purpose of clearing or settling payments of euro.
(b) The failure of any Lender to make the Loan to be made by it as
part of any Advance shall not relieve any other Lender of its obligation
hereunder to make its Loan on the date of such Advance, but no Lender, except as
otherwise provided in the next sentence of this Section 2.19(b), shall be
responsible for the failure of a Defaulting Lender to make the Loan to be made
by such Defaulting Lender on the date of any Advance. Notwithstanding the
foregoing sentence, but otherwise subject to the terms and conditions of this
Agreement, the Administrative Agent shall notify each Lender of the failure by a
Defaulting Lender to make a Dollar Loan required to be made by it hereunder (the
amount not made available being the "Unpaid Amount"), and each Lender shall
immediately transfer to the Administrative Agent on such date the lesser of such
Lender's proportionate share (based on its Dollar Commitment divided by the
Dollar Commitments of all Lenders that have not so failed to fund their Loans)
of the Unpaid Amount and its unused Commitment. Any such transfer shall be
deemed to be a Floating Rate Loan by such Lender. Each Defaulting Lender shall
pay on demand to each other Lender that makes a payment under this Section
2.19(b) the amount paid by such other Lender to cover such failure, together
with interest thereon, for each day from the date such payment was made until
the date such other Lender has been paid such amount in full, at a rate per
annum equal to the Federal Funds Effective Rate plus two percent (2%).
2.20 Market Disruption.
Notwithstanding the satisfaction of all conditions referred to in
Article II and Article IV with respect to any Advance in any Agreed Currency
other than Dollars, if there shall occur on or prior to the date of such Advance
any change in national or international financial, political or economic
conditions or currency exchange rates or exchange controls which would in the
reasonable opinion of the Administrative Agent or the Required Lenders make it
impracticable for the Eurocurrency Loans comprising such Advance to be
denominated in the Agreed Currency specified by the relevant Borrower, then the
Administrative Agent shall forthwith give notice thereof to the Borrowers and
the Lenders, and such Loans shall not be denominated in such Agreed Currency but
shall be made on such Borrowing Date in Dollars, in an aggregate principal
amount equal to the Dollar Amount of the aggregate principal amount specified in
the related Borrowing Notice or Conversion/Continuation Notice, as the case may
be, as Floating Rate Loans, unless the relevant Borrower notifies the
Administrative Agent at least two Business Days before such date that (i) it
elects not to borrow on such date or (ii) it elects to borrow on such date in a
different Agreed Currency, as the case may be, in which the denomination of such
Loans would in the opinion of the Administrative Agent and the Required Lenders
be practicable and in an aggregate principal amount equal to the Dollar Amount
of the aggregate principal
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amount specified in the related Borrowing Notice or Conversion/Continuation
Notice, as the case may be.
2.21 Judgment Currency.
If for the purposes of obtaining judgment in any court it is necessary
to convert a sum due from any Borrower hereunder in the currency expressed to be
payable herein (the "specified currency") into another currency, the parties
hereto agree, to the fullest extent that they may effectively do so, that the
rate of exchange used shall be that at which in accordance with normal banking
procedures the Administrative Agent could purchase the specified currency with
such other currency at the Administrative Agent's main Chicago office on the
Business Day preceding that on which final, non-appealable judgment is given.
The obligations of the Borrowers in respect of any sum due to any Lender or the
Administrative Agent hereunder shall, notwithstanding any judgment in a currency
other than the specified currency, be discharged only to the extent that on the
Business Day following receipt by such Lender or the Administrative Agent (as
the case may be) of any sum adjudged to be so due in such other currency such
Lender or the Administrative Agent (as the case may be) may in accordance with
normal, reasonable banking procedures purchase the specified currency with such
other currency. If the amount of the specified currency so purchased is less
than the sum originally due to such Lender or the Administrative Agent, as the
case may be, in the specified currency, the Borrowers agree, to the fullest
extent that they may effectively do so, as a separate obligation and
notwithstanding any such judgment, to indemnify such Lender or the
Administrative Agent, as the case may be, against such loss, and if the amount
of the specified currency so purchased exceeds (a) the sum originally due to any
Lender or the Administrative Agent, as the case may be, in the specified
currency and (b) any amounts shared with other Lenders as a result of
allocations of such excess as a disproportionate payment to such Lender under
Section 12.2, such Lender or the Administrative Agent, as the case may be,
agrees to remit such excess to the relevant Borrower.
2.22 Payment Provisions Relating to the euro.
(a) Any amount payable by the Administrative Agent to the Lenders
under this Agreement in the currency of a Participating Member State shall be
paid in the euro unit.
(b) If, in relation to the currency of any Subsequent Participant,
the basis of accrual of interest or fees expressed in this Agreement with
respect to such currency shall be inconsistent with any convention or practice
in the London Interbank Market or, as the case may be, the Paris Interbank
Market for the basis of accrual of interest or fees in respect of the euro, such
convention or practice shall replace such expressed basis effective as of and
from the date on which such Subsequent Participant becomes a Participating
Member State; provided, that if any Loan in the currency of such Subsequent
Participant is outstanding immediately prior to such date, such replacement
shall take effect, with respect to such Loan, at the end of the then current
Interest Period.
(c) Without prejudice and in addition to any method of conversion
or rounding prescribed by any EMU legislation and (i) without prejudice to the
respective liabilities for indebtedness of the Borrowers to the Lenders and the
Lenders to the Borrowers under or
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pursuant to this Agreement and (ii) without increasing the Multicurrency
Commitment of any Lender:
(y) each reference in this Agreement to a minimum amount (or
an integral multiple thereof) in a national currency denomination of a
Subsequent Participant to be paid to or by the Administrative Agent
shall, immediately upon such Subsequent Participant becoming a
Participating Member State, be replaced by a reference to such
reasonably comparable and convenient amount (or an integral multiple
thereof) in the euro unit as the Administrative Agent may from time to
time specify; and
(z) except as expressly provided in this Section 2.22, each
provision of this Agreement shall be subject to such reasonable changes
of construction as the Administrative Agent may from time to time
specify to be necessary or appropriate.
2.23 Redenomination and Alternative Currencies.
Each obligation under this Agreement of a party to this Agreement which
has been denominated in the national currency unit of a Subsequent Participant
state shall be redenominated into the euro unit in accordance with EMU
legislation immediately upon such Subsequent Participant becoming a
Participating Member State (but otherwise in accordance with EMU Legislation).
2.24 Replacement of Lender.
If any Borrower is required pursuant to Section 3.1, 3.2 or 3.5 to make
any additional payment to any Lender or if any Lender's obligation to make or
continue, or to convert Floating Rate Advances into, Eurocurrency Advances shall
be suspended pursuant to Section 3.3, or if any Lender shall become a Defaulting
Lender (any Lender so affected an "Affected Lender"), the Company may elect, if
such amounts continue to be charged or such suspension is still effective, to
replace such Affected Lender as a Lender party to this Agreement, provided that
no Default or Unmatured Default shall have occurred and be continuing at the
time of such replacement, and provided further that, concurrently with such
replacement, (i) another bank or other entity which is reasonably satisfactory
to the Company and the Administrative Agent shall agree, as of such date, to
purchase for cash the Advances and other Obligations due to the Affected Lender
pursuant to an assignment substantially in the form of Exhibit C and to become a
Lender for all purposes under this Agreement and to assume all obligations of
the Affected Lender to be terminated as of such date and to comply with the
requirements of Section 12.3 applicable to assignments, and (ii) the Borrowers
shall pay to such Affected Lender in same day funds on the day of such
replacement all interest, fees and other amounts then accrued but unpaid to such
Affected Lender by the Borrowers hereunder to and including the date of
termination, including without limitation payments due to such Affected Lender
under Sections 3.1, 3.2 and 3.5. Nothing herein shall release any Defaulting
Lender from any obligation it may have to any Borrower, the Administrative Agent
or any other Lender.
2.25 Application of Payments with Respect to Defaulting Lenders.
No payments of principal, interest or fees delivered to the
Administrative Agent for the account of any Defaulting Lender shall be delivered
by the Administrative Agent to such Defaulting Lender. Instead, such payments
shall, for so long as such Defaulting Lender shall be
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a Defaulting Lender, be held by the Administrative Agent, and the Administrative
Agent is hereby authorized and directed by all parties hereto to hold such funds
in escrow and apply such funds as follows:
(a) First, if applicable to any payments due to the Swingline
Lender under Section 2.1(b)(iii); and
(b) Second, to Loans required to be made by such Defaulting
Lender on any Borrowing Date to the extent such Defaulting Lender fails
to make such Loans.
Notwithstanding the foregoing, upon the termination of the Commitments
and the payment and performance of all of the Obligations (other than those
owing to a Defaulting Lender), any funds then held in escrow by the
Administrative Agent pursuant to the preceding sentence shall be distributed to
each Defaulting Lender, pro rata in proportion to amounts that would be due to
each Defaulting Lender but for the fact that it is a Defaulting Lender
ARTICLE III.
YIELD PROTECTION; TAXES
3.1 Yield Protection.
(a) If, on or after the date of this Agreement, the adoption of
any law or any governmental or quasi-governmental rule, regulation, policy,
guideline or directive (whether or not having the force of law), or any change
in the interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender or
applicable Lending Installation with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency:
(i) subjects any Lender or any applicable Lending Installation to any
Taxes, or changes the basis of taxation of payments (other than with respect to
Excluded Taxes) to any Lender in respect of its Eurocurrency Loans, or
(ii) imposes or increases or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirement against assets of,
deposits with or for the account of, or credit extended by, any Lender or any
applicable Lending Installation (other than reserves and assessments taken into
account in determining the interest rate applicable to Eurocurrency Advances),
or
(iii) imposes any other condition the result of which is to increase
the cost to any Lender or any applicable Lending Installation of maintaining its
Commitment or making, funding or maintaining its Eurocurrency Loans (including,
without limitation, any conversion of any Loan denominated in an Agreed Currency
other than euro into a Loan denominated in euro) or reduces any amount
receivable by any Lender or any applicable Lending Installation in connection
with its Eurocurrency Loans, or requires any Lender or any applicable Lending
Installation to make any payment calculated by
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reference to its Commitment or the amount of Eurocurrency Loans held or interest
received by it, by an amount deemed material by such Lender,
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation of making or maintaining its Eurocurrency Loans
(including, without limitation, any conversion of any Loan denominated in an
Agreed Currency other than euro into a Loan denominated in euro) or Commitment
or to reduce the return received by such Lender or applicable Lending
Installation in connection with such Eurocurrency Loans or Commitment, then,
within 30 days of demand by such Lender, the relevant Borrower shall pay such
Lender such additional amount or amounts as will compensate such Lender for such
increased cost or reduction in amount received.
(b) Non-U.S. Reserve Costs or Fees With Respect to Loans to
Non-U.S. Borrowers. If any law or any governmental or quasi-governmental rule,
regulation, policy, guideline or directive of any jurisdiction outside of the
United States of America or any subdivision thereof (whether or not having the
force of law) imposes or deems applicable any reserve requirement against or fee
with respect to assets of, deposits with or for the account of, or credit
extended by, any Lender or any applicable Lending Installation, and the result
of the foregoing is to increase the cost to such Lender or applicable Lending
Installation of making or maintaining its Eurocurrency Loans to any Borrower
that is not incorporated under the laws of the United States of America or a
state thereof (each a "Non-U.S. Borrower") or its Commitment to any Non-U.S.
Borrower or to reduce the return received by such Lender or applicable Lending
Installation in connection with such Eurocurrency Loans to any Non-U.S. Borrower
or Commitment to any Non-U.S. Borrower, then, within 30 days of demand by such
Lender, such Non-U.S. Borrower shall pay such Lender such additional amount or
amounts as will compensate such Lender for such increased cost or reduction in
amount received, provided that such Non-U.S. Borrower shall not be required to
compensate any Lender for such non-U.S. reserve costs or fees to the extent that
an amount equal to such reserve costs or fees is received by such Lender as a
result of the calculation of the interest rate applicable to Eurocurrency
Advances pursuant to clause (i)(b) of the definition of "Eurocurrency Rate."
3.2 Changes in Capital Adequacy Regulations.
If a Lender determines the amount of capital required or expected to be
maintained by such Lender, any Lending Installation of such Lender or any
corporation controlling such Lender is increased as a result of a Change (as
defined below), then, within 15 days of demand by such Lender, the Company shall
pay such Lender the amount necessary to compensate for any shortfall in the rate
of return on the portion of such increased capital which such Lender determines
is attributable to this Agreement, its Loans or its Commitment to make Loans
hereunder (after taking into account such Lender's policies as to capital
adequacy). "Change" means (i) any change after the date of this Agreement in the
Risk-Based Capital Guidelines or (ii) any adoption of or change in any other
law, governmental or quasi-governmental rule, regulation, policy, guideline,
interpretation, or directive (whether or not having the force of law) after the
date of this Agreement which affects the amount of capital required or expected
to be maintained by any Lender or any Lending Installation or any corporation
controlling any Lender. "Risk-Based Capital Guidelines" means (i) the risk-based
capital guidelines in effect in the United States on the date of this Agreement,
including transition rules, and (ii) the corresponding
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capital regulations promulgated by regulatory authorities outside the United
States implementing the July 1988 report of the Basle Committee on Banking
Regulation and Supervisory Practices Entitled "International Convergence of
Capital Measurements and Capital Standards," including transition rules, and any
amendments to such regulations adopted prior to the date of this Agreement.
3.3 Availability of Types of Advances.
If any Lender determines that maintenance of its Eurocurrency Loans at
a suitable Lending Installation would violate any applicable law, rule,
regulation, or directive, whether or not having the force of law, or if the
Required Lenders determine that (i) deposits of a type, currency and maturity
appropriate to match fund Eurocurrency Advances are not available or (ii) the
interest rate applicable to Eurocurrency Advances does not accurately reflect
the cost of making or maintaining Eurocurrency Advances, then the Administrative
Agent shall suspend the availability of Eurocurrency Advances and require any
affected Eurocurrency Advances to be repaid or converted to Floating Rate
Advances at the end of the then current Interest Period for the affected
Eurocurrency Advance.
3.4 Funding Indemnification.
If any payment of a Eurocurrency Advance occurs on a date which is not
the last day of the applicable Interest Period, whether because of acceleration,
prepayment or otherwise, or a Eurocurrency Advance is not made on the date
specified by a Borrower for any reason other than default by the Lenders, the
Borrowers will indemnify each Lender for any loss or cost incurred by it
resulting therefrom, including, without limitation, any loss or cost in
liquidating or employing deposits acquired to fund or maintain such Eurocurrency
Advance.
3.5 Taxes.
(i) All payments by the Borrowers to or for the account of any Lender
or the Administrative Agent hereunder or under any Note shall be made free and
clear of and without deduction for any and all Taxes. If any Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder to any Lender or the Administrative Agent, (a) the sum payable shall
be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
3.5) such Lender or the Administrative Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(b) the Borrower shall make such deductions, (c) the Borrower shall pay the full
amount deducted to the relevant authority in accordance with applicable law and
(d) the Borrower shall furnish to the Administrative Agent the original copy of
a receipt evidencing payment thereof within 30 days after such payment is made.
(ii) In addition, the Borrowers hereby agree to pay any present or
future stamp or documentary taxes and any other excise or property taxes,
charges or similar levies which arise from any payment made hereunder or under
any Note or from the execution or delivery of, or otherwise with respect to,
this Agreement or any Note ("Other Taxes").
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(iii) The Borrowers hereby agree to indemnify the Administrative Agent
and each Lender for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed on amounts payable under this
Section 3.5) paid by the Administrative Agent or such Lender and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto. Payments due under this indemnification shall be made within 30 days of
the date the Administrative Agent or such Lender makes demand therefor pursuant
to Section 3.6.
(iv) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof (each a "Non-U.S. Lender") agrees that it
will, not less than ten Business Days after the date of this Agreement, (i)
deliver to each of the Company and the Administrative Agent two duly completed
copies of United States Internal Revenue Service Form 1001 or 4224, certifying
in either case that such Lender is entitled to receive payments under this
Agreement from the Company and any other Borrower that is not a Non-U.S.
Borrower without deduction or withholding of any United States federal income
taxes, or (ii) deliver to each of the Company and the Administrative Agent a
United States Internal Revenue Form W-8 or W-9, as the case may be, and certify
that it is entitled to an exemption from United States backup withholding tax.
Each Non-U.S. Lender further undertakes to deliver to each of the Company and
the Administrative Agent (x) renewals or additional copies of such form (or any
successor form) on or before the date that such form expires or becomes
obsolete, and (y) after the occurrence of any event requiring a change in the
most recent forms so delivered by it, such additional forms or amendments
thereto as may be reasonably requested by the Company or the Administrative
Agent. All forms or amendments described in the preceding sentence shall certify
that such Lender is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes, unless an
event (including without limitation any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form or amendment with
respect to it and such Lender advises the Company and the Administrative Agent
that it is not capable of receiving payments from the Company and any other
Borrower other than a Non-U.S. Borrower without any deduction or withholding of
United States federal income tax.
(v) For any period during which a Non-U.S. Lender has failed to provide
the Company with an appropriate form pursuant to clause (iv), above (unless such
failure is due to a change in treaty, law or regulation, or any change in the
interpretation or administration thereof by any governmental authority,
occurring subsequent to the date on which a form originally was required to be
provided), such Non-U.S. Lender shall not be entitled to indemnification under
this Section 3.5 with respect to Taxes imposed by the United States; provided
that, should a Non-U.S. Lender which is otherwise exempt from or subject to a
reduced rate of withholding tax become subject to Taxes because of its failure
to deliver a form required under clause (iv), above, the Company shall take such
steps as such Non-U.S. Lender shall reasonably request to assist such Non-U.S.
Lender to recover such Taxes.
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(vi) Any Lender that is entitled to an exemption from or reduction of
withholding tax with respect to payments under this Agreement or any Note
pursuant to the law of any relevant jurisdiction or any treaty shall deliver to
the Company (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate. Each Multicurrency Lender which is neither a
resident of the United Kingdom nor a bank carrying on a bona fide banking
business in the United Kingdom agrees to furnish, on or before the date such
Lender makes a Loan to a Borrower in the United Kingdom or denominated in
British Pounds Sterling, to the Administrative Agent, the Company and any
relevant Subsidiary Borrower evidence satisfactory to the Administrative Agent
and the Company that such Lender has filed with the United Kingdom Inland
Revenue a "Claim on Behalf of a United States Domestic Corporation to Relief
from United Kingdom Income Tax on Interest and Royalties Arising in the United
Kingdom" or other appropriate form or forms of exemption from withholding tax
and received from the Inland Revenue authority that payments to such Lender by
the relevant Borrower hereunder may be made gross; provided that such Lender's
failure to furnish such evidence shall not relieve the Company or any Subsidiary
Borrower of any of their respective obligations under this Agreement, except as
otherwise provided in this Section 3.5.
(vii) If the U.S. Internal Revenue Service or any other governmental
authority of the United States or any other country or any political subdivision
thereof asserts a claim that the Administrative Agent did not properly withhold
tax from amounts paid to or for the account of any Lender (because such Lender
failed to notify the Administrative Agent of a change in circumstances which
rendered its exemption from withholding ineffective), such Lender shall
indemnify the Administrative Agent fully for all amounts paid, directly or
indirectly, by the Administrative Agent as tax, withholding therefor, or
otherwise, including penalties and interest, and including taxes imposed by any
jurisdiction on amounts payable to the Administrative Agent under this
subsection, together with all costs and expenses related thereto (including
attorneys fees and time charges of attorneys for the Administrative Agent, which
attorneys may be employees of the Administrative Agent). The obligations of the
Lenders under this Section 3.5(vii) shall survive the payment of the Obligations
and termination of this Agreement.
3.6 Lender Statements; Survival of Indemnity.
To the extent reasonably possible, each Lender shall designate an
alternate Lending Installation with respect to its Eurocurrency Loans to reduce
any liability of the Borrowers to such Lender under Sections 3.1, 3.2 and 3.5 or
to avoid the unavailability of Eurocurrency Advances under Section 3.3, so long
as such designation is not, in the judgment of such Lender, disadvantageous to
such Lender. Each Lender shall deliver a written statement of such Lender to the
Borrowers (with a copy to the Administrative Agent) as to the amount due, if
any, under Section 3.1, 3.2, 3.4 or 3.5. Such written statement shall set forth
in reasonable detail the calculations upon which such Lender determined such
amount and shall be final, conclusive and binding on the Borrowers in the
absence of manifest error. Determination of amounts payable
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under such Sections in connection with a Eurocurrency Loan shall be calculated
as though each Lender funded its Eurocurrency Loan through the purchase of a
deposit of the type, currency and maturity corresponding to the deposit used as
a reference in determining the Eurocurrency Rate applicable to such Loan,
whether in fact that is the case or not. Unless otherwise provided herein, the
amount specified in the written statement of any Lender shall be payable on
demand after receipt by the Borrowers of such written statement. The obligations
of the Borrowers under Sections 3.1, 3.2, 3.4 and 3.5 shall survive payment of
the Obligations and termination of this Agreement.
ARTICLE IV.
CONDITIONS PRECEDENT
4.1 Initial Advance.
The Lenders shall not be required to make the initial Advance hereunder
unless the Borrowers have satisfied the following conditions:
(a) Each Borrower has furnished to the Administrative Agent with
sufficient copies for the Lenders:
(i) Copies of the articles or certificate of incorporation of such
Borrower, together with all amendments, and a certificate of good standing, each
certified by the appropriate governmental officer in its jurisdiction of
incorporation.
(ii) Copies, certified by the Secretary or Assistant Secretary of such
Borrower, of its by-laws or code of regulations and of its Board of Directors'
resolutions and of resolutions or actions of any other body authorizing the
execution of the Loan Documents to which such Borrower is a party.
(iii) An incumbency certificate, executed by the Secretary or Assistant
Secretary of such Borrower, which shall identify by name and title and bear the
signatures of the Authorized Officers and any other officers of such Borrower
authorized to sign the Loan Documents to which such Borrower is a party, upon
which certificate the Administrative Agent and the Lenders shall be entitled to
rely until informed of any change in writing by such Borrower.
(iv) A certificate, signed by the Chief Financial Officer or Treasurer
of such Borrower, stating that on the initial Borrowing Date no Default or
Unmatured Default has occurred and is continuing.
(v) A written opinion of such Borrower's counsel, addressed to the
Lenders in substantially the form of Exhibit A.
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(vi) Any Notes requested by a Lender pursuant to Section 2.14 payable
to the order of each such requesting Lender.
(vii) Written money transfer instructions, in substantially the form of
Exhibit D, addressed to the Administrative Agent and signed by an Authorized
Officer, together with such other related money transfer authorizations as the
Administrative Agent may have reasonably requested.
(viii) Information reasonably satisfactory to the Administrative Agent
regarding the Company's Year 2000 Program.
(ix) A pro forma covenant compliance certificate in form and substance
reasonably satisfactory to the Administrative Agent from the Chief Financial
Officer or Treasurer of the Company.
(x) The Guaranty, duly executed by the Company.
(xi) Such other documents as any Lender or its counsel may have
reasonably requested.
(b) The presentation of evidence satisfactory to the
Administrative Agent that the Amended and Restated Credit Agreement dated as of
March 30, 1994 among X.X. Xxxxxxx Corporation and the lenders party thereto and
the agent named therein shall terminate and all indebtedness, liabilities, and
obligations outstanding thereunder shall be paid in full not later than April 9,
1999.
(c) The presentation of evidence satisfactory to the
Administrative Agent that the Credit Agreement Facility A dated September 23,
1996, as amended, among Allegiance Corporation and the lenders party thereto and
the agent named therein shall have been terminated and all indebtedness,
liabilities, and obligations outstanding thereunder shall have been paid in full
or will be paid from the proceeds of the initial Advance.
(d) The presentation of evidence satisfactory to the
Administrative Agent that revolving credits facilities of the Company totaling
not less than $95,000,000 have been terminated and all indebtedness, liabilities
and obligations outstanding thereunder shall have been paid in full or will be
paid from the proceeds of the initial Advance.
4.2 Each Advance
The Lenders shall not be required to make, continue or convert any
Advance, and the Swingline Lender shall not be required to make any Swingline
Loan, unless on the applicable Borrowing Date or date of conversion or
continuation:
(i) There exists no Default or Unmatured Default.
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(ii) The representations and warranties contained in Article V (other
than Section 5.5, 5.7 and 5.15) are true and correct in all material respects as
of such Borrowing Date except to the extent any such representation or warranty
is stated to relate solely to an earlier date, in which case such representation
or warranty shall have been true and correct on and as of such earlier date.
(iii) All legal matters incident to the making of such Advance shall be
satisfactory to the Lenders and their counsel.
(iv) Each Borrowing Notice with respect to each such Advance shall
constitute a representation and warranty by the Borrower that the conditions
contained in Sections 4.2(i) and (ii) have been satisfied.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
The Company and each of the Borrowers represents and warrants to the
Lenders that:
5.1 Existence and Standing.
Each of the Company and its Significant Subsidiaries is a corporation,
partnership (in the case of Subsidiaries only) or limited liability company duly
and properly incorporated or organized, as the case may be, validly existing and
(to the extent such concept applies to such entity) in good standing under the
laws of its jurisdiction of incorporation or organization and has all requisite
authority to conduct its business in each jurisdiction in which its business is
conducted, except where the failure to do so could not reasonably be expected to
have a Material Adverse Effect.
5.2 Authorization and Validity.
Each Borrower has the power and authority and legal right to execute
and deliver the Loan Documents to which it is a party and to perform its
obligations thereunder. The execution and delivery by each Borrower of the Loan
Documents to which it is a party and the performance of its obligations
thereunder have been duly authorized by proper corporate or other proceedings,
and the Loan Documents to which such Borrower is a party constitute legal, valid
and binding obligations of such Borrower enforceable against such Borrower in
accordance with their terms, except as enforceability may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally.
5.3 No Conflict; Government Consent.
Neither the execution and delivery by the Borrowers of the Loan
Documents to which they are a party, nor the consummation of the transactions
therein contemplated, nor compliance with the provisions thereof will violate
(i) any law, rule, regulation, order, writ, judgment,
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injunction, decree or award binding on any Borrower or (ii) any Borrower's
articles or certificate of incorporation, partnership agreement, certificate of
partnership, articles or certificate of organization, by-laws, code or
regulations, or operating or other management agreement, as the case may be, or
(iii) the provisions of any indenture, instrument or agreement to which any
Borrower is a party or is subject, or by which it, or its Property, is bound, or
conflict with or constitute a default thereunder, or result in, or require, the
creation or imposition of any Lien in, of or on the Property of any Borrower
pursuant to the terms of any such indenture, instrument or agreement. No order,
consent, adjudication, approval, license, authorization, or validation of, or
filing, recording or registration with, or exemption by, or other action in
respect of any governmental or public body or authority, or any subdivision
thereof, which has not been obtained by a Borrower, is required to be obtained
by any Borrower in connection with the execution and delivery of the Loan
Documents, the borrowings under this Agreement, the payment and performance by
such Borrower of the Obligations or the legality, validity, binding effect or
enforceability of any of the Loan Documents.
5.4 Financial Statements.
The following consolidated financial statements heretofore delivered to
the Lenders were prepared in accordance with Agreement Accounting Principles in
effect on the date such statements were prepared and fairly present the
consolidated financial condition and operations of the Company and its
Subsidiaries at such date and the consolidated results of their operations for
the period then ended, subject, in the case of such interim statements, to
routine year-end audit adjustments:
(i) June 30, 1998 audited consolidated financial statements of the
Company and its Subsidiaries; December 31, 1997 audited consolidated financial
statements of Allegiance Corporation and its consolidated subsidiaries;
(ii) December 31, 1998 unaudited interim consolidated financial
statements of the Company and its Subsidiaries; and
(iii) December 31, 1998 unaudited interim consolidated financial
statements of Allegiance Corporation and its consolidated subsidiaries.
5.5 Material Adverse Change.
Since June 30, 1998 there has been no change in the business, Property,
prospects, condition (financial or otherwise) or results of operations of the
Company and its Subsidiaries which could reasonably be expected to have a
Material Adverse Effect.
5.6 Taxes.
The Company and its Subsidiaries have filed all United States federal
tax returns and all other tax returns which are required to be filed and have
paid all taxes due pursuant to said returns or pursuant to any assessment
received by the Company or any of its Subsidiaries, except such taxes, if any,
as are being contested in good faith and as to which adequate reserves have been
provided in accordance with Agreement Accounting Principles and as to which no
Lien exists. No tax liens have been filed and no claims are being asserted with
respect to any such
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taxes which could reasonably be expected to have a Material Adverse Effect. The
charges, accruals and reserves on the books of the Company and its Subsidiaries
in respect of any taxes or other governmental charges are adequate.
5.7 Litigation and Contingent Obligations.
Except as set forth on Schedule 7, there is no litigation, arbitration,
governmental investigation, proceeding or inquiry pending or, to the knowledge
of any of their officers, threatened against or affecting the Company or any of
its Subsidiaries which could reasonably be expected to have a Material Adverse
Effect or which seeks to prevent, enjoin or delay the making of any Loans. As of
the date of this Agreement, other than any liability incident to any litigation,
arbitration or proceeding which (i) could not reasonably be expected to have a
Material Adverse Effect or (ii) is set forth on Schedule 7, the Company has no
material Contingent Obligations not provided for or disclosed in the financial
statements referred to in Section 5.4.
5.8 Subsidiaries.
Schedule 1 contains an accurate list of all Subsidiaries of the Company
(other than immaterial or inactive Subsidiaries) and each Subsidiary Borrower as
of the date of this Agreement, setting forth their respective jurisdictions of
organization and the percentage of their respective capital stock or other
ownership interests owned by the Company or other Subsidiaries. All of the
issued and outstanding shares of capital stock or other ownership interests of
such Subsidiaries have been (to the extent such concepts are relevant with
respect to such ownership interests) duly authorized and issued and are fully
paid and non-assessable, except to the extent that the lack of such status could
not reasonably be expected to have a Material Adverse Effect. The Company may
amend Schedule 1 from time to time by delivering to the Administrative Agent an
updated list of Subsidiaries, and the Company may designate any Subsidiary
thereon which is directly or indirectly 80% (or, in the case of X.X. Xxxxxxx
S.A., 75%) or more owned by the Company as a Subsidiary Borrower hereunder so
long as (a) the Company guarantees the obligations of such new Subsidiary
Borrower pursuant to the terms of the Guaranty, (b) such new Subsidiary Borrower
delivers all corporate or organizational documents and authorizing resolutions
and legal opinions reasonably requested by the Administrative Agent and (c) such
new Subsidiary Borrower agrees to the terms and conditions of this Agreement and
the Borrowers and the new Subsidiary Borrower execute all agreements and take
such other action reasonably requested by Administrative Agent. Schedule 1 may
be amended to remove any Subsidiary as a Subsidiary Borrower upon (i) written
notice by the Company to the Administrative Agent to such effect and (ii)
repayment in full of all outstanding Loans of such Subsidiary Borrower.
5.9 ERISA.
The Unfunded Liabilities of all Single Employer Plans do not in the
aggregate exceed $75,000,000. Each Single Employer Plan complies in all material
respects with all applicable requirements of law and regulations where the
failure to so comply could reasonably be expected to have a Material Adverse
Effect. No Reportable Event has occurred with respect to any Plan where such
occurrence could reasonably be expected to have a Material Adverse Effect.
Neither the Company or any of its Significant Subsidiaries has withdrawn from
any Plan or initiated steps to do so, and no steps have been taken to reorganize
or terminate any Single Employer Plan
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where in either instance a liability in excess of $75,000,000 could reasonably
be expected to result.
5.10 Accuracy of Information.
No information, exhibit or report furnished by the Company or any of
its Subsidiaries to the Administrative Agent or to any Lender in connection with
the negotiation of, or compliance with, the Loan Documents contained any
material misstatement of fact or omitted to state a material fact or any fact
necessary to make the statements contained therein not misleading; provided,
however, that to the extent any such information, exhibits or reports include or
incorporate by reference any forward-looking statement (each, a "Forward-Looking
Statement") which reflects the Company's current view (as of the date such
Forward-Looking Statement is made) with respect to future events, prospects,
projections or financial performance, such Forward-Looking Statement is subject
to uncertainties and other factors which could cause actual results to differ
materially from such Forward-Looking Statement.
5.11 Regulation U.
Margin stock (as defined in Regulation U) constitutes less than 25% of
the value of those assets of the Company and its Subsidiaries which are subject
to any limitation on sale, pledge, or other restriction hereunder.
5.12 Material Agreements.
Neither the Company nor any Subsidiary is a party to any agreement or
instrument or subject to any charter or other corporate restriction which could
reasonably be expected to have a Material Adverse Effect. Neither the Company
nor any Subsidiary is in default in the performance, observance or fulfillment
of any of the obligations, covenants or conditions contained in any agreement to
which it is a party, which default could reasonably be expected to have a
Material Adverse Effect.
5.13 Compliance With Laws.
The Company and its Subsidiaries have complied with all applicable
statutes, rules, regulations, orders and restrictions of any domestic or foreign
government or any instrumentality or agency thereof having jurisdiction over the
conduct of their respective businesses or the ownership of their respective
Property, except for any failure to comply with any of the foregoing which could
not reasonably be expected to have a Material Adverse Effect.
5.14 Plan Assets; Prohibited Transactions.
The Company is not an entity deemed to hold "plan assets" within the
meaning of 29 C.F.R. Section 2510.3-101 of an employee benefit plan (as defined
in Section 3(3) of ERISA) which is subject to Title I of ERISA or any plan
(within the meaning of Section 4975 of the Code), and neither the execution of
this Agreement nor the making of Loans hereunder gives rise to a prohibited
transaction within the meaning of Section 406 of ERISA or Section 4975 of the
Code.
5.15 Environmental Matters.
In the ordinary course of its business, the officers of the Company
consider the effect of Environmental Laws on the business of the Company and its
Subsidiaries, in the course of which
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they identify and evaluate potential risks and liabilities accruing to the
Company due to Environmental Laws. On the basis of this consideration, the
Company has concluded that Environmental Laws cannot reasonably be expected to
have a Material Adverse Effect. Neither the Company nor any Subsidiary has
received any notice to the effect that its operations are not in material
compliance with any of the requirements of applicable Environmental Laws or are
the subject of any federal or state investigation evaluating whether any
remedial action is needed to respond to a release of any toxic or hazardous
waste or substance into the environment, which non-compliance or remedial action
could reasonably be expected to have a Material Adverse Effect.
5.16 Investment Company Act.
Neither the Company nor any Subsidiary is an "investment company" or a
company "controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
5.17 Public Utility Holding Company Act.
Neither the Company nor any Subsidiary 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, as amended.
5.18 Year 2000.
The Company has substantially completed an assessment of the Year 2000
Issues and has a realistic and achievable program for addressing the remediation
of Year 2000 Issues on a timely basis to avoid any impact on the Company and its
Subsidiaries which would reasonably be expected to have a Material Adverse
Effect (the "Year 2000 Program"). Based on such assessment and on the Year 2000
Program the Company does not reasonably anticipate that Year 2000 Issues will
have a Material Adverse Effect.
5.19 Default.
There exists no Default or Unmatured Default under Article VII of this
Agreement.
ARTICLE VI.
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1 Financial Reporting.
The Company will maintain, for itself and each Subsidiary, a system of
accounting established and administered in accordance with Agreement Accounting
Principles, and furnish to the Lenders:
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(i) Within 120 days after the close of each of its fiscal years, an
unqualified (except for qualifications relating to changes in accounting
principles or practices reflecting changes in Agreement Accounting Principles
and required or approved by the Company's independent certified public
accountants) audit report certified by independent certified public accountants
reasonably acceptable to the Lenders, prepared in accordance with Agreement
Accounting Principles on a consolidated basis for itself and its Subsidiaries,
including balance sheets as of the end of such period, related profit and loss
statements, and a statement of cash flows, accompanied by a certificate of said
accountants that, in the course of their examination necessary for their
certification of the foregoing, they have obtained no knowledge of any Default
or Unmatured Default, or if, in the opinion of such accountants, any Default or
Unmatured Default shall exist, stating the nature and status thereof.
(ii) Within 60 days after the close of each of the first three
quarterly periods of each fiscal year, for itself and its Subsidiaries,
consolidated unaudited balance sheets as at the close of each such period and
consolidated unaudited profit and loss statements and a consolidated unaudited
statement of cash flows for the period from the beginning of such fiscal year to
the end of such quarter, all certified by its Chief Financial Officer,
Controller, or Treasurer.
(iii) Together with the financial statements required under Sections
6.1(i) and (ii), a compliance certificate in substantially the form of Exhibit B
signed by its Chief Financial Officer, Controller, or Treasurer and stating that
no Default or Unmatured Default exists, or if any Default or Unmatured Default
exists, stating the nature and status thereof.
(iv) As soon as possible and in any event within 10 Business Days after
the Company knows that any Reportable Event has occurred with respect to any
Plan, a statement, signed by the Chief Financial Officer, Controller, or
Treasurer of the Company, describing said Reportable Event and the action which
the Company proposes to take with respect thereto.
(v) As soon as possible and in any event within 10 Business Days after
receipt by the Company, a copy of (a) any notice or claim to the effect that the
Company or any of its Subsidiaries is or may be liable to any Person as a result
of the release by the Company, any of its Subsidiaries, or any other Person of
any toxic or hazardous waste or substance into the environment, and (b) any
notice alleging any violation of any federal, state or local environmental,
health or safety law or regulation by the Company or any of its Subsidiaries,
which, in either case, could reasonably be expected to have a Material Adverse
Effect.
(vi) Such other information (including non-financial information) as
the Administrative Agent or any Lender may from time to time reasonably request.
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6.2 Use of Proceeds.
The Company will, and will cause each Subsidiary to, use the proceeds
of the Advances for general corporate purposes, including Acquisitions. The
Company will not, nor will it permit any Subsidiary to, use any of the proceeds
of the Advances to purchase or carry any "margin stock" (as defined in
Regulation U).
6.3 Notice of Default.
The Company will, and will cause each Borrower and Significant
Subsidiary to, give prompt notice in writing to the Administrative Agent of the
occurrence of any Default or Unmatured Default and of any other development,
financial or otherwise (including, without limitation, developments with respect
to Year 2000 Issues), which could reasonably be expected to have a Material
Adverse Effect.
6.4 Conduct of Business.
The Company will, and will cause each Significant Subsidiary to, carry
on and conduct its business in substantially the same manner and in
substantially the same fields of enterprise as it is presently conducted or
fields related thereto (except that the Company and its Significant Subsidiaries
shall have no duty to renew or extend contracts which expire by their terms) and
do all things necessary to remain duly incorporated or organized, validly
existing and (to the extent such concept applies to such entity) in good
standing as a domestic corporation, partnership or limited liability company in
its jurisdiction of incorporation or organization, as the case may be, and
maintain all requisite authority to conduct its business in each jurisdiction in
which its business is conducted, unless the failure to do so could not
reasonably be expected to have a Material Adverse Effect.
6.5 Taxes.
The Company will, and will cause each Significant Subsidiary to, timely
file complete and correct United States federal and applicable foreign, state
and local tax returns required by law and pay when due all taxes, assessments
and governmental charges and levies upon it or its income, profits or Property,
except those which are being contested in good faith by appropriate proceedings
and with respect to which adequate reserves have been set aside in accordance
with Agreement Accounting Principles, except where the failure to do so could
not reasonably be expected to have a Material Adverse Effect.
6.6 Insurance.
The Company will, and will cause each Significant Subsidiary to,
maintain as part of a self-insurance program or with financially sound and
reputable insurance companies insurance on all their Property in such amounts
(with such customary deductibles, exclusions and self-insurance) and covering
such risks as is consistent with sound business practice.
6.7 Compliance with Laws.
The Company will, and will cause each Significant Subsidiary to, comply
with all laws, rules, regulations, orders, writs, judgments, injunctions,
decrees or awards to which it may be
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subject including, without limitation, all Environmental Laws, except where the
failure to do so could not reasonably be expected to have a Material Adverse
Effect.
6.8 Inspection.
The Company will, and will cause each Significant Subsidiary to, permit
the Administrative Agent and the Lenders, by their respective representatives
and agents, to inspect any of the Property, books and financial records of the
Company and each Significant Subsidiary, to examine and make copies of the books
of accounts and other financial records of the Company and each Significant
Subsidiary, and to discuss the affairs, finances and accounts of the Company and
each Significant Subsidiary with, and to be advised as to the same by, their
respective officers upon reasonable prior notice at such reasonable times and
intervals as the Administrative Agent or any Lender may designate, provided that
neither the Company nor any of its Subsidiaries shall be responsible for the
costs and expenses incurred by the Administrative Agent, any Lender, or their
representatives in connection with such inspection prior to the occurrence and
continuation of a Default.
6.9 Merger.
The Company will not, nor will it permit any Significant Subsidiary to,
merge or consolidate with or into any other Person, except that, provided that
no Default or Unmatured Default shall have occurred and be continuing or would
result therefrom on a pro forma basis reasonably acceptable to the
Administrative Agent, the Company may merge or consolidate with any other U.S.
corporation and each Significant Subsidiary may merge or consolidate with any
other Person, provided, further, that (i) in the case of any such merger or
consolidation involving the Company, the Company is the surviving corporation
and (ii) in the case of any such merger or consolidation involving a Significant
Subsidiary which is a Subsidiary Borrower, the surviving corporation assumes all
of such Borrower's obligations under this Agreement and remains or becomes a
Subsidiary Borrower.
6.10 Sale of Assets.
The Company will not, nor will it permit any Significant Subsidiary to,
lease, sell or otherwise dispose of its Property, to any other Person (other
than the Company or another Subsidiary), except:
(i) Sales of inventory in the ordinary course of business.
(ii) Sales or other dispositions in the ordinary course of business of
fixed assets for the purpose of replacing such fixed assets, provided that such
fixed assets are replaced within 360 days of such sale or other disposition with
other fixed assets which have a fair market value not materially less than the
fixed assets sold or otherwise disposed of.
(iii) Sales or other dispositions outside the ordinary course of
business of accounts receivable, lease receivables, leases or equipment which
had been leased by the Company or such Significant Subsidiary, provided that any
such sale or other disposition is for reasonably equivalent value and could not
reasonably be expected to have a Material Adverse Effect.
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(iv) Other leases, sales (including sale-leasebacks) or other
dispositions of its Property that, together with all other Property of the
Company and its Subsidiaries previously leased, sold or disposed of (other than
as provided in clauses (i), (ii) and (iii) above) as permitted by this Section
during the twelve-month period ending with the month prior to the month in which
any such lease, sale or other disposition occurs, do not constitute a
Substantial Portion of the Property of the Company and its Subsidiaries, or
together with all other Property of the Company and its Subsidiaries previously
leased, sold or disposed of (other than as provided in clauses (i) and (ii)
above) as permitted by this Section during the period from the date of this
Agreement to the end of the month prior to the month in which any such lease,
sale or other disposition occurs, do not constitute 35% of the consolidated
assets of the Company and its Subsidiaries as would be shown in the consolidated
financial statements of the Company and its Subsidiaries as at the beginning of
the fiscal year in which any such lease, sale or other disposition occurs.
Notwithstanding anything in this Section 6.10 to the contrary, (a) no
such leases, sales or other dispositions of property may be made (other than
pursuant to clause (i) above) if any Default or Unmatured Default has occurred
and is continuing, and (b) all leases, sales and other dispositions of Property
at any time shall be for not less than the fair market value of such Property as
determined in good faith by the Company.
6.11 Investments.
The Company will not, nor will it permit any Significant Subsidiary to,
make or suffer to exist any Investments, or commitments therefor, or to create
any Subsidiary or to become or remain a partner in any partnership or joint
venture, except:
(i) Cash Equivalent Investments.
(ii) Investments in Subsidiaries.
(iii) other Investments in existence on the date hereof.
(iv) Other Investments provided that the aggregate amount of such
Investments made in any fiscal year does not exceed 25% of Adjusted Tangible Net
Worth as of the beginning of such fiscal year.
6.12 Liens.
The Company will not, nor will it permit any Significant Subsidiary to,
create, incur, or suffer to exist any Lien in, of or on the Property of the
Company or any of its Significant Subsidiaries, except:
(i) Liens for taxes, assessments or governmental charges or levies on
its Property if the same shall not at the time be delinquent or thereafter can
be paid without penalty, or are being contested in good faith and by appropriate
proceedings and for
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which adequate reserves in accordance with Agreement Accounting Principles shall
have been set aside on its books.
(ii) Liens imposed by law, such as landlord's, carriers',
warehousemen's and mechanics' liens and other similar liens arising in the
ordinary course of business which secure payment of obligations not more than 60
days past due or which are being contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with Agreement
Accounting Principles shall have been set aside on its books.
(iii) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions, or other social
security or retirement benefits, or similar legislation (other than Liens in
favor of the PGBC).
(iv) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature generally
existing with respect to properties of a similar character and which do not in
any material way affect the marketability of the same or interfere with the use
thereof in the business of the Company or its Subsidiaries.
(v) Liens existing on the date hereof.
(vi) Liens on any assets which exist at the time of acquisition of such
assets by the Company or any of its Subsidiaries, or liens to secure the payment
of all of any part of the purchase price of such assets upon the acquisition of
such assets by the Company or any of its Subsidiaries or to secure any
Indebtedness incurred or guaranteed by the Company or any of its Subsidiaries
prior to, at the time, of or within 360 days after, such acquisition (or, in the
case of real property, the completion of construction (including any
improvements on an existing asset) or commencement of full operation of such
asset, whichever is later), which Indebtedness is incurred or guaranteed for the
purpose of financing all or any part of the purchase price thereof or, in the
case of real property, construction or improvements thereon, provided, however,
that in the case of any such acquisition, construction or improvement, the Lien
shall not apply to such assets theretofore owned by the Company or any of its
Subsidiaries other than, in the case of any such construction or improvement,
any real property on which the property so constructed, or the improvement, is
located, provided further, however, that the aggregate outstanding principal
amount of Indebtedness secured by Liens permitted by this Section 6.12(vi) shall
not at any time exceed $250,000,000.
(vii) Liens in favor of the United States of America or any State
thereof, or any department, agency or instrumentality or political subdivision
of the United States of America or any State thereof, or in favor of any other
country or any political subdivision thereof, to secure partial, progress,
advance or other payments pursuant to any contract or statute or to secure any
Indebtedness incurred or guaranteed for the purpose of financing all or any part
of the purchase price (or, in the case of real property, the cost of
construction), of the assets subject to such liens (including without limitation
liens incurred in connection with pollution control, industrial revenue or
similar financings).
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(viii) Any extension, renewal or replacement (or successive extensions,
renewals or replacements) in whole or in part of any Lien referred to in the
foregoing clauses, provided, however, that the principal amount of Indebtedness
secured thereby shall not exceed the principal amount of Indebtedness so secured
prior to such extension, renewal or replacement and that such extension, renewal
or replacement Lien shall be limited to all or a part of the assets which
secured the Lien so extended, renewed or replaced (plus improvements and
construction on such real property).
(ix) So long as no Default under Section 7.9 would occur in connection
therewith, Liens created by or resulting from any litigation or other proceeding
which is being contested in good faith by appropriate proceedings, including
Liens arising out of judgments or awards against the Company or any of its
Subsidiaries with respect to which the Company or such Subsidiary is in good
faith prosecuting an appeal or proceeding for review or for which the time to
make an appeal has not yet expired; or final unappealable judgment Liens which
are satisfied within 15 days of the date of judgment; or Liens incurred by the
Company or any of its Subsidiaries for the purpose of obtaining a stay or
discharge in the course of any litigation or other proceeding to which the
Company or such Subsidiary is a party.
(x) Liens securing Indebtedness described in Section 6.16(iv) and (v).
(xi) Liens securing Indebtedness and not otherwise permitted by the
foregoing provisions of this Section 6.12, provided that the aggregate
outstanding principal amount of the Indebtedness secured by all such Liens shall
not at any time exceed 25% of Adjusted Tangible Net Worth.
6.13 Year 2000.
The Company will take and will cause each of its Subsidiaries to take
all such actions as are reasonably necessary to successfully implement the Year
2000 Program and to assure that Year 2000 Issues will not have a Material
Adverse Effect. At the request of the Administrative Agent, the Company will
provide a description of the Year 2000 Program, together with any updates or
progress reports with respect thereto.
6.14 Subsidiary Indebtedness.
The Company will not permit any Subsidiary to create, incur or suffer
to exist any Indebtedness, except:
(i) The Loans.
(ii) Indebtedness outstanding on the date of this Agreement or incurred
pursuant to commitments in existence on the date of this Agreement.
(iii) Indebtedness of any Subsidiary to the Company or any other
Subsidiary.
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(iv) Indebtedness of any Person that becomes a Subsidiary after the
date hereof; provided that such Indebtedness existed at the time such Person
becomes a Subsidiary and is not created in contemplation of or in connection
with such Person becoming a Subsidiary.
(v) Any refunding or refinancing of any Indebtedness referred to in
clauses (i) through (iv) above, provided that any such refunding or refinancing
of Indebtedness referred to in clause (ii), (iii) or (iv) does not increase the
principal amount thereof.
(vi) Indebtedness arising from (a) the endorsement of negotiable
instruments for deposit or collection or similar transactions in the ordinary
course of business, or (b) the honoring by a bank or other financial institution
of a check, draft or similar instrument inadvertently (except in the case of
daylight overdrafts) drawn against insufficient funds in the ordinary course of
business.
(vii) Indebtedness arising from guarantees of loans and advances by
third parties to employees and officers of a Subsidiary in the ordinary course
of business for bona fide business purposes, provided that the aggregate
outstanding principal amount of such Indebtedness does not at any time exceed
$100,000,000 .
(viii) Indebtedness of a Subsidiary arising from agreements providing
for indemnification, adjustment of purchase price or similar obligations or from
guarantees, letters of credit, surety bonds or performance bonds securing any
obligations of the Company or any of its Subsidiaries incurred or assumed in
connection with the disposition of any business, property or Subsidiary.
(ix) Indebtedness arising from Rate Hedging Obligations.
(x) Contingent Obligations.
(xi) Indebtedness outstanding under investment grade commercial paper
programs.
(xii) Other Indebtedness; provided that, at the time of the creation,
incurrence or assumption of such other Indebtedness and after giving effect
thereto, the aggregate amount of all such other Indebtedness of the Subsidiaries
does not exceed an amount equal to 25% of Adjusted Tangible Net Worth at such
time.
6.15 Limitation on Restrictions on Significant Subsidiary
Distributions.
The Company will not, and will not permit any Significant Subsidiary
to, enter into or suffer to exist or become effective any consensual encumbrance
or restriction on the ability of any Significant Subsidiary of the Company to
(i) pay dividends or make any other distributions in respect of any capital
stock of such Subsidiary held by, or pay any Indebtedness owed to, the Company
or any other Subsidiary of the Company, (ii) make loans or advances to the
Company or any other Subsidiary of the Company
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or (iii) transfer any of its assets to the Company or any other Subsidiary of
the Company, except for such encumbrances or restrictions existing under or by
reason of (a) any restrictions existing under the Loan Documents, (b) any
restrictions with respect to a Significant Subsidiary imposed pursuant to an
agreement which has been entered into in connection with the disposition of all
or substantially all of the capital stock or assets of such Subsidiary, and (c)
any restrictions with respect to assets encumbered by a Lien permitted by
Section 6.12 so long as such restriction applies only to the asset encumbered by
such permitted Lien.
6.16 Contingent Obligations.
The Company will not, nor will it permit any Subsidiary to, make or
suffer to exist any Contingent Obligation (including, without limitation, any
Contingent Obligation with respect to the obligations of a Subsidiary), except
(i) by endorsement of instruments for deposit or collection in the ordinary
course of business, (ii) the Guaranty, (iii) Contingent Obligations of
special-purpose finance Subsidiaries, provided that no Person has recourse
against the Company or any Significant Subsidiary for such Contingent
Obligations, (iv) Contingent Obligations arising from the sale by Pyxis
Corporation of lease receivables, leases or equipment, provided that the
aggregate amount of such Contingent Obligations do not at any time exceed 10% of
Adjusted Tangible Net Worth, (v) Contingent Obligations arising out of operating
or synthetic leases entered into by Subsidiaries of the Company, provided that
the aggregate amount of such Contingent Obligations do not at any time exceed
25% of Adjusted Tangible Net Worth, and (vi) Contingent Obligations in addition
to those described in (i)-(v) above, provided that the aggregate amount of such
additional Contingent Obligations (without duplication) do not at any time
exceed 25% of Adjusted Tangible Net Worth.
6.17 Minimum Net Worth.
The Company shall not permit its Net Worth to be less than
$2,550,000,000 at any time.
ARTICLE VII.
DEFAULTS
The occurrence of any one or more of the following events shall
constitute a Default:
7.1. Any representation or warranty made or deemed made by or on behalf
of the Company or any of its Subsidiaries to the Lenders or the Administrative
Agent under or in connection with this Agreement, any Loan, or any certificate
or information delivered in connection with this Agreement or any other Loan
Document shall be materially false on the date as of which made.
7.2. Nonpayment of principal of any Loan within one day after the same
becomes due, or nonpayment of interest upon any Loan or of any commitment fee or
other obligations under any of the Loan Documents within five days after the
same becomes due.
7.3. The breach by the Company of Sections 6.3, 6.9, 6.10, 6.14, 6.16,
or 6.17.
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7.4. The breach by any Borrower (other than a breach which constitutes
a Default under another Section of this Article VII) of any of the terms or
provisions of this Agreement which is not remedied within thirty days after
written notice from the Administrative Agent or any Lender.
7.5. Failure of the Company or any of its Significant Subsidiaries to
pay when due any principal, interest or other amounts, subject to any applicable
grace period, or the default by the Company or any of its Significant
Subsidiaries in the performance beyond the applicable grace period with respect
thereto, if any, of any term, provision or condition contained in the 364-Day
Credit Agreement or any agreement or agreements under which any Indebtedness in
excess of 2% of Adjusted Tangible Net Worth was created or is governed, or any
other event shall occur or condition exist, the effect of which default or event
is to cause, or to permit the holder or holders of such Indebtedness to cause,
such Indebtedness to become due prior to its stated maturity; or any such
Indebtedness of the Company or any of its Subsidiaries shall be declared to be
due and payable or required to be prepaid or repurchased (other than by a
regularly scheduled payment) prior to the stated maturity thereof; or the
Company or any of its Significant Subsidiaries shall not pay, or admit in
writing its inability to pay, its debts generally as they become due.
7.6. The Company or any of its Significant Subsidiaries shall (i) have
an order for relief entered with respect to it under the Federal bankruptcy laws
as now or hereafter in effect, (ii) make an assignment for the benefit of
creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment
of a receiver, custodian, trustee, examiner, liquidator or similar official for
it or any Substantial Portion of its Property, (iv) institute any proceeding
seeking an order for relief under the Federal bankruptcy laws as now or
hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or
seeking dissolution, winding up, liquidation, reorganization, arrangement,
adjustment or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors or fail to file an
answer or other pleading denying the material allegations of any such proceeding
filed against it, (v) take any corporate or partnership action to authorize or
effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail
to contest in good faith any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of the Company or any
of its Significant Subsidiaries, a receiver, trustee, examiner, liquidator or
similar official shall be appointed for the Company or any of its Significant
Subsidiaries or any Substantial Portion of its Property, or a proceeding
described in Section 7.6(iv) shall be instituted against the Company or any of
its Significant Subsidiaries and such appointment continues undischarged or such
proceeding continues undismissed or unstayed for a period of 60 consecutive
days.
7.8. Any court, government or governmental agency shall condemn, seize
or otherwise appropriate, or take custody or control of, all or any portion of
the Property of the Company and its Subsidiaries which, when taken together with
all other Property of the Company and its Subsidiaries so condemned, seized,
appropriated, or taken custody or control of, during the twelve-month period
ending with the month in which any such action occurs, constitutes a Substantial
Portion.
7.9. The Company or any of its Significant Subsidiaries shall fail
within 60 days to pay, bond or otherwise discharge one or more (i) judgments or
orders for the payment of money (not covered by insurance)in excess of 2% of
Adjusted Tangible Net Worth (or the equivalent thereof in currencies other than
U.S. Dollars) in the aggregate, or (ii) nonmonetary judgments or
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orders which, individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect, which judgment(s), in either such case, is/are
not stayed on appeal or otherwise being appropriately contested in good faith.
7.10. Any member of the Controlled Group shall fail to pay when due an
amount or amounts aggregating in excess of $75,000,000 which it shall have
become liable to pay under Title IV of ERISA; or notice of intent to terminate a
Single Employer Plan with Unfunded Liabilities in excess of $20,000,000 (a
"Material Plan") shall be filed under Section 4041(c) of ERISA by any member of
the Controlled Group, any plan administrator or any combination of the
foregoing; or PBGC shall institute proceedings under which it is likely to
prevail under Title IV of ERISA to terminate, to impose liability (other than
for premiums under Section 4007 of ERISA) in respect of, or to cause a trustee
to be appointed to administer any Material Plan; or a condition shall exist by
reason of which the PBGC would be entitled to obtain a decree adjudicating that
any Material Plan must be terminated; or there shall occur a complete or partial
withdrawal from, or a default, within the meaning of Section 4219(c)(5) of
ERISA, with respect to, one or more Multiemployer Plans which causes one or more
members of the Controlled Group to incur a current payment obligation in excess
of $75,000,000.
7.11. Any Change in Control shall occur.
7.12. The Guaranty shall fail to remain in full force or effect or any
action shall be taken to discontinue or to assert the invalidity or
unenforceability of the Guaranty, or the Company shall fail to comply with any
of the terms or provisions of the Guaranty, or the Company shall deny that it
has any further liability under the Guaranty, or shall give notice to such
effect.
ARTICLE VIII.
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1 Acceleration.
If any Default described in Section 7.6 or 7.7 occurs with respect to
the Company or any of its Significant Subsidiaries, the obligations of the
Lenders to make Loans hereunder shall automatically terminate and the
Obligations shall immediately become due and payable without any election or
action on the part of the Administrative Agent or any Lender. If any other
Default occurs and is continuing, the Required Lenders (or the Administrative
Agent with the consent of the Required Lenders) may terminate or suspend the
obligations of the Lenders to make Loans hereunder, or declare the Obligations
to be due and payable, or both, whereupon the Obligations shall become
immediately due and payable, without presentment, demand, protest or notice of
any kind, all of which the Company hereby expressly waives.
If, within 60 days after acceleration of the maturity of the
Obligations or termination of the obligations of the Lenders to make Loans
hereunder as a result of any Default (other than any Default as described in
Section 7.6 or 7.7 with respect to the Company) and before any judgment or
decree for the payment of the Obligations due shall have been obtained or
entered, the Required Lenders (in their sole discretion) shall so direct, the
Administrative Agent shall, by notice to the Company, rescind and annul such
acceleration and/or termination.
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8.2 Amendments.
Subject to the provisions of this Article VIII, the Required Lenders
(or the Administrative Agent with the consent in writing of the Required
Lenders) and the Borrowers may enter into written agreements supplemental hereto
for the purpose of adding or modifying any provisions to the Loan Documents or
changing in any manner the rights of the Lenders or the Borrowers hereunder or
waiving any Default hereunder; provided, however, that no such supplemental
written agreement shall, without the consent of all of the Lenders:
(i) Extend the final maturity of any Loan or postpone any regularly
scheduled payment of principal of any Loan or forgive all or any portion of the
principal amount thereof, or reduce the rate or extend the time of payment of
interest or fees thereon.
(ii) Reduce the percentage specified in the definition of Required
Lenders.
(iii) Extend the Facility Termination Date or reduce the amount or
extend the payment date for, the mandatory payments required under Section 2.2,
or increase the amount of the Aggregate Commitment or of the Commitment of any
Lender hereunder, or permit any Borrower to assign its rights under this
Agreement (other than as may be permitted pursuant to Section 6.9).
(iv) Amend this Section 8.2.
(v) Release the Company as guarantor of any Advance.
No amendment of any provision of this Agreement relating to the
Administrative Agent shall be effective without the written consent of the
Administrative Agent, and no amendment of any provision of this Agreement
relating to the Swingline Loans shall be effective without the written consent
of the Swingline Lender. The Administrative Agent may waive payment of the fee
required under Section 12.3.2 without obtaining the consent of any other party
to this Agreement.
Notwithstanding anything herein to the contrary, no Defaulting Lender
shall be entitled to vote (whether to consent or to withhold its consent) with
respect to any amendment, modification, termination or waiver requiring the
consent of the Required Lenders, and, for purposes of determining the Required
Lenders, the Commitments and the Loans of each Defaulting Lender shall be
disregarded.
8.3 Preservation of Rights
No delay or omission of the Lenders or the Administrative Agent to
exercise any right under the Loan Documents shall impair such right or be
construed to be a waiver of any Default or an acquiescence therein, and the
making of a Loan notwithstanding the existence of a Default or the inability of
a Borrower to satisfy the conditions precedent to such Loan shall not constitute
any waiver or acquiescence. Any single or partial exercise of any such right
shall not preclude other or further exercise thereof or the exercise of any
other right, and no waiver, amendment or other variation of the terms,
conditions or provisions of the Loan Documents whatsoever shall be
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valid unless in writing signed by the Lenders required pursuant to Section 8.2,
and then only to the extent in such writing specifically set forth. All remedies
contained in the Loan Documents or by law afforded shall be cumulative and all
shall be available to the Administrative Agent and the Lenders until the
Obligations have been paid in full.
ARTICLE IX.
GENERAL PROVISIONS
9.1 Survival of Representations.
All representations and warranties of the Borrowers contained in this
Agreement shall survive the making of the Loans herein contemplated.
9.2 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 statute or regulation.
9.3 Headings.
Section headings in the Loan Documents are for convenience of reference
only, and shall not govern the interpretation of any of the provisions of the
Loan Documents.
9.4 Entire Agreement.
The Loan Documents embody the entire agreement and understanding among
the Borrowers, the Administrative Agent and the Lenders and supersede all prior
agreements and understandings among the Borrowers, the Administrative Agent and
the Lenders relating to the subject matter thereof other than the fee letter
described in Section 10.13.
9.5 Several Obligations; Benefits of this Agreement.
The respective obligations of the Lenders hereunder are several and not
joint and no Lender shall be the partner or agent of any other (except to the
extent to which the Administrative Agent is authorized to act as such). The
failure of any Lender to perform any of its obligations hereunder shall not
relieve any other Lender from any of its obligations hereunder. This Agreement
shall not be construed so as to confer any right or benefit upon any Person
other than the parties to this Agreement and their respective successors and
assigns, provided, however, that the parties hereto expressly agree that the
Lead Arranger shall enjoy the benefits of the provisions of Sections 9.6, 9.10
and 10.11 to the extent specifically set forth therein and shall have the right
to enforce such provisions on its own behalf and in its own name to the same
extent as if it were a party to this Agreement.
9.6 Expenses; Indemnification.
(i) The Borrowers shall reimburse the Administrative Agent and the Lead
Arranger for any reasonable costs, internal charges and out-of-pocket expenses
(including
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reasonable attorneys' fees and time charges of attorneys for the Administrative
Agent, which attorneys may be employees of the Administrative Agent, but subject
to any limitations contained in the letter from Xxxxxxxxx Xxxxxx PLLC to First
Chicago dated February 19, 1999) paid or incurred by the Administrative Agent or
the Lead Arranger in connection with the preparation, investigation,
negotiation, execution, delivery, syndication, review, amendment, modification,
and administration of the Loan Documents, whether incurred prior to or
subsequent to closing. The Borrowers also agree to reimburse the Administrative
Agent, the Lead Arranger and the Lenders for any costs, internal charges and
out-of-pocket expenses (including reasonable attorneys' fees and time charges of
attorneys for the Administrative Agent, the Lead Arranger and the Lenders, which
attorneys may be employees of the Administrative Agent, the Lead Arranger or the
Lenders) paid or incurred by the Administrative Agent, the Lead Arranger or any
Lender in connection with the collection and enforcement of the Loan Documents.
(ii) The Company hereby further agrees to indemnify the Administrative
Agent, the Lead Arranger and each Lender, its directors, officers and employees
against all losses, claims, damages, penalties, judgments, liabilities and
expenses (including, without limitation, all reasonable expenses of litigation
or preparation therefor whether or not the Administrative Agent, the Lead
Arranger or any Lender is a party thereto) which any of them may pay or incur
arising out of or relating to this Agreement, the other Loan Documents, the
transactions contemplated hereby or the direct or indirect application or
proposed application of the proceeds of any Loan hereunder except to the extent
that they are determined in a final non-appealable judgment by a court of
competent jurisdiction to have resulted from the gross negligence or willful
misconduct of the party seeking indemnification. The obligations of the Company
under this Section 9.6 shall survive the termination of this Agreement.
9.7 Numbers of Documents.
All statements, notices, closing documents, and requests hereunder
shall be furnished to the Administrative Agent with sufficient counterparts so
that the Administrative Agent may furnish one to each of the Lenders.
9.8 Accounting.
Except as provided to the contrary herein, all accounting terms used
herein shall be interpreted and all accounting determinations hereunder shall be
made in accordance with Agreement Accounting Principles except that any
calculation or determination which is to be made on a consolidated basis shall
be made for the Company and all its Subsidiaries, including those Subsidiaries,
if any, which are unconsolidated on the Company's audited financial statements.
9.9 Severability of Provisions.
Any provision in any Loan Document that is held to be inoperative,
unenforceable, or invalid in any jurisdiction shall, as to that jurisdiction, be
inoperative, unenforceable, or invalid without affecting the remaining
provisions in that jurisdiction or the operation, enforceability, or
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validity of that provision in any other jurisdiction, and to this end the
provisions of all Loan Documents are declared to be severable.
9.10 Nonliability of Lenders.
The relationship between the Company on the one hand and the Lenders
and the Administrative Agent on the other hand shall be solely that of borrower
and lender. Neither the Administrative Agent, the Lead Arranger nor any Lender
shall have any fiduciary responsibilities to the Company solely by reason of
being a party to this Agreement. Neither the Administrative Agent, the Lead
Arranger nor any Lender undertakes any responsibility to the Company to review
or inform the Company of any matter in connection with any phase of the
Company's business or operations. The Company agrees that neither the
Administrative Agent, the Lead Arranger nor any Lender shall have liability to
the Company (whether sounding in tort, contract or otherwise) for losses
suffered by the Company in connection with, arising out of, or in any way
related to, the transactions contemplated and the relationship established by
the Loan Documents, or any act, omission or event occurring in connection
therewith, unless it is determined in a final non-appealable judgment by a court
of competent jurisdiction that such losses resulted from the gross negligence or
willful misconduct of the party from which recovery is sought. Neither the
Administrative Agent, the Lead Arranger nor any Lender shall have any liability
with respect to, and the Company hereby waives, releases and agrees not to xxx
for, any special, indirect or consequential damages suffered by the Company in
connection with, arising out of, or in any way related to the Loan Documents or
the transactions contemplated thereby.
9.11 Confidentiality.
Each of the Administrative Agent and each Lender agrees to hold any
confidential information which it may receive from the Company pursuant to this
Agreement in confidence, except for disclosure (i) to its Affiliates and to
other Lenders and their respective Affiliates, (ii) to legal counsel,
accountants, and other professional advisors to such Lender or the
Administrative Agent or, subject to Section 12.4, to a Transferee, (iii) to
regulatory officials, (iv) to any Person as required by law, regulation, or
legal process, (v) to any Person in connection with any legal proceeding to
which such Lender is a party, (vi) to such Lender's contractual counterparties
in swap agreements or to legal counsel, accountants and other professional
advisors to such counterparties, (vii) permitted by Section 12.4, and (viii) to
rating agencies if requested or required by such agencies in connection with a
rating relating to the Advances hereunder, provided that reasonable advance
written notice is given to the Company.
9.12 Nonreliance.
Each Lender hereby represents that it is not relying on or looking to
any margin stock (as defined in Regulation U of the Board of Governors of the
Federal Reserve System) for the repayment of the Loans provided for herein.
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ARTICLE X.
THE AGENT
10.1 Appointment; Nature of Relationship.
The First National Bank of Chicago is hereby appointed by each of the
Lenders as its contractual representative (herein referred to as the
"Administrative Agent") hereunder and under each other Loan Document, and each
of the Lenders irrevocably authorizes the Administrative Agent to act as the
contractual representative of such Lender with the rights and duties expressly
set forth herein and in the other Loan Documents. The Administrative Agent
agrees to act as such contractual representative upon the express conditions
contained in this Article X. Notwithstanding the use of the defined term
"Administrative Agent," it is expressly understood and agreed that the
Administrative Agent shall not have any fiduciary responsibilities to any Lender
by reason of this Agreement or any other Loan Document and that the
Administrative Agent is merely acting as the contractual representative of the
Lenders with only those duties as are expressly set forth in this Agreement and
the other Loan Documents. In its capacity as the Lenders' contractual
representative, the Administrative Agent (i) does not hereby assume any
fiduciary duties to any of the Lenders, (ii) is a "representative" of the
Lenders within the meaning of Section 9-105 of the Uniform Commercial Code and
(iii) is acting as an independent contractor, the rights and duties of which are
limited to those expressly set forth in this Agreement and the other Loan
Documents. Each of the Lenders hereby agrees to assert no claim against the
Administrative Agent on any agency theory or any other theory of liability for
breach of fiduciary duty, all of which claims each Lender hereby waives.
10.2 Powers.
The Administrative Agent shall have and may exercise such powers under
the Loan Documents as are specifically delegated to the Administrative Agent by
the terms of each thereof, together with such powers as are reasonably
incidental thereto. The Administrative Agent shall have no implied duties to the
Lenders, or any obligation to the Lenders to take any action thereunder except
any action specifically provided by the Loan Documents to be taken by the
Administrative Agent.
10.3 General Immunity.
Neither the Administrative Agent nor any of its directors, officers,
agents or employees shall be liable to the Company, the Lenders or any Lender
for any action taken or omitted to be taken by it or them hereunder or under any
other Loan Document or in connection herewith or therewith except to the extent
such action or inaction is determined in a final non-appealable judgment by a
court of competent jurisdiction to have arisen from the gross negligence or
willful misconduct of such Person.
10.4 No Responsibility for Loans, Recitals, etc.
Neither the Administrative Agent nor any of its directors, officers,
agents or employees shall be responsible for or have any duty to ascertain,
inquire into, or verify (a) any statement, warranty or representation made in
connection with any Loan Document or any borrowing
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hereunder; (b) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each
Lender; (c) the satisfaction of any condition specified in Article IV, except
receipt of items required to be delivered solely to the Administrative Agent;
(d) the existence or possible existence of any Default or Unmatured Default; (e)
the validity, enforceability, effectiveness, sufficiency or genuineness of any
Loan Document or any other instrument or writing furnished in connection
therewith; (f) the value, sufficiency, creation, perfection or priority of any
Lien in any collateral security; or (g) the financial condition of the Company
or any guarantor of any of the Obligations or of any of the Company's or any
such guarantor's respective Subsidiaries. The Administrative Agent shall have no
duty to disclose to the Lenders information that is not required to be furnished
by the Company to the Administrative Agent at such time, but is voluntarily
furnished by the Company to the Administrative Agent (either in its capacity as
Administrative Agent or in its individual capacity).
10.5 Action on Instructions of Lenders.
The Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, hereunder and under any other Loan
Document in accordance with written instructions signed by the Required Lenders,
and such instructions and any action taken or failure to act pursuant thereto
shall be binding on all of the Lenders. The Lenders hereby acknowledge that the
Administrative Agent shall be under no duty to take any discretionary action
permitted to be taken by it pursuant to the provisions of this Agreement or any
other Loan Document unless it shall be requested in writing to do so by the
Required Lenders. The Administrative Agent shall be fully justified in failing
or refusing to take any action hereunder and under any other Loan Document
unless it shall first be indemnified to its satisfaction by the Lenders pro rata
against any and all liability, cost and expense that it may incur by reason of
taking or continuing to take any such action.
10.6 Employment of Agents and Counsel.
The Administrative Agent may execute any of its duties as
Administrative Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Administrative Agent shall be entitled
to advice of counsel concerning the contractual arrangement between the
Administrative Agent and the Lenders and all matters pertaining to the
Administrative Agent's duties hereunder and under any other Loan Document.
10.7 Reliance on Documents; Counsel.
The Administrative Agent shall be entitled to rely upon any Note,
notice, consent, certificate, affidavit, letter, telegram, statement, paper or
document believed by it to be genuine and correct and to have been signed or
sent by the proper person or persons, and, in respect to legal matters, upon the
opinion of counsel selected by the Administrative Agent, which counsel may be
employees of the Administrative Agent.
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10.8 Administrative Agent's Reimbursement and Indemnification.
The Lenders agree to reimburse and indemnify the Administrative Agent
ratably in proportion to their respective Commitments (or, if the Commitments
have been terminated, in proportion to their Commitments immediately prior to
such termination) (i) for any amounts not reimbursed by the Company for which
the Administrative Agent is entitled to reimbursement by the Company under the
Loan Documents (other than the fee payable pursuant to Section 10.13), (ii) for
any other expenses incurred by the Administrative Agent on behalf of the
Lenders, in connection with the preparation, execution, delivery, administration
and enforcement of the Loan Documents (including, without limitation, for any
expenses incurred by the Administrative Agent in connection with any dispute
between the Administrative Agent and any Lender or between two or more of the
Lenders) and (iii) for any liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind and
nature whatsoever which may be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of the Loan Documents
or any other document delivered in connection therewith or the transactions
contemplated thereby (including, without limitation, for any such amounts
incurred by or asserted against the Administrative Agent in connection with any
dispute between the Administrative Agent and any Lender or between two or more
of the Lenders), or the enforcement of any of the terms of the Loan Documents or
of any such other documents, provided that (i) no Lender shall be liable for any
of the foregoing to the extent any of the foregoing is found in a final
non-appealable judgment by a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of the Administrative Agent and
(ii) any indemnification required pursuant to Section 3.5(vii) shall,
notwithstanding the provisions of this Section 10.8, be paid by the relevant
Lender in accordance with the provisions thereof. The obligations of the Lenders
under this Section 10.8 shall survive payment of the Obligations and termination
of this Agreement.
10.9 Notice of Default.
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Unmatured Default hereunder unless
the Administrative Agent has received written notice from a Lender or the
Company referring to this Agreement describing such Default or Unmatured Default
and stating that such notice is a "notice of default". In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall give
prompt notice thereof to the Lenders.
10.10 Rights as a Lender.
In the event the Administrative Agent is a Lender, the Administrative
Agent shall have the same rights and powers hereunder and under any other Loan
Document with respect to its Commitment and its Loans as any Lender and may
exercise the same as though it were not the Administrative Agent, and the term
"Lender" or "Lenders" shall, at any time when the Administrative Agent is a
Lender, unless the context otherwise indicates, include the Administrative Agent
in its individual capacity. The Administrative Agent and its Affiliates may
accept deposits from, lend money to, and generally engage in any kind of trust,
debt, equity or other transaction, in addition to those contemplated by this
Agreement or any other Loan Document, with the Company or any of its
Subsidiaries in which the Company or such
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Subsidiary is not restricted hereby from engaging with any other Person. The
Administrative Agent, in its individual capacity, is not obligated to remain a
Lender.
10.11 Lender Credit Decision.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent, the Lead Arranger or any other Lender
and based on the financial statements prepared by the Company and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and the other Loan Documents.
Each Lender also acknowledges that it will, independently and without reliance
upon the Administrative Agent, the Lead Arranger or any other Lender and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement and the other Loan Documents.
10.12 Successor Administrative Agent.
The Administrative Agent may resign at any time by giving written
notice thereof to the Lenders and the Company, such resignation to be effective
upon the appointment of a successor Administrative Agent or, if no successor
Administrative Agent has been appointed, forty-five days after the retiring
Administrative Agent gives notice of its intention to resign. The Administrative
Agent may be removed at any time with or without cause by written notice
received by the Administrative Agent from the Required Lenders, such removal to
be effective on the date specified by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint, on
behalf of the Company and the Lenders, a successor Administrative Agent, which
successor Administrative Agent shall (unless a Default shall have occurred and
be continuing) be approved by the Company (which approval shall not be
unreasonably withheld or delayed). If no successor Administrative Agent shall
have been so appointed by the Required Lenders within thirty days after the
resigning Administrative Agent's giving notice of its intention to resign, then
the resigning Administrative Agent may appoint, on behalf of the Company and the
Lenders, a successor Administrative Agent. Notwithstanding the previous
sentence, without the consent of any Lender but upon thirty days prior written
notice to the Lenders and the Company, the Administrative Agent may appoint any
of its Affiliates which is a commercial bank as a successor Administrative Agent
hereunder, which successor Administrative Agent shall (unless a Default shall
have occurred and be continuing) be approved by the Company (which approval
shall not be unreasonably withheld or delayed). If the Administrative Agent has
resigned or been removed and no successor Administrative Agent has been
appointed, the Lenders may perform all the duties of the Administrative Agent
hereunder and the Company shall make all payments in respect of the Obligations
to the applicable Lender and for all other purposes shall deal directly with the
Lenders. No successor Administrative Agent shall be deemed to be appointed
hereunder until such successor Administrative Agent has accepted the
appointment. Any such successor Administrative Agent shall be a commercial bank
having capital and retained earnings of at least $5,000,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the resigning or removed Administrative Agent. Upon the effectiveness of the
resignation or removal of the Administrative Agent, the resigning or removed
Administrative Agent shall be discharged from its duties and obligations
hereunder and
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under the Loan Documents. After the effectiveness of the resignation or removal
of an Administrative Agent, the provisions of this Article X shall continue in
effect for the benefit of such Administrative Agent in respect of any actions
taken or omitted to be taken by it while it was acting as the Administrative
Agent hereunder and under the other Loan Documents. In the event that there is a
successor to the Administrative Agent by merger, or the Administrative Agent
assigns its duties and obligations to an Affiliate pursuant to this Section
10.12, then the term "Corporate Base Rate" as used in this Agreement shall mean
the prime rate, base rate or other analogous rate of the new Administrative
Agent.
10.13 Administrative Agent's Fee.
The Company agrees to pay to the Administrative Agent, for its own
account, the fees agreed to by the Company and the Administrative Agent pursuant
to that certain letter agreement dated February 15, 1999 or as otherwise agreed
from time to time.
10.14 Delegation to Affiliates.
The Company and the Lenders agree that the Administrative Agent may
delegate any of its duties under this Agreement to any of its Affiliates. Any
such Affiliate (and such Affiliate's directors, officers, agents and employees)
which performs duties in connection with this Agreement shall be entitled to the
same benefits of the indemnification, waiver and other protective provisions to
which the Administrative Agent is entitled under Articles IX and X.
10.15 Administrative Agent, Syndication Agent, Co-Documentation Agents,
Lead Arranger, etc.
Neither the Syndication Agent, the Co-Documentation Agents nor the Lead
Arranger shall have any right, power, obligation, liability, responsibility or
duty under this Agreement other than those applicable to all Lenders as such.
Without limiting the foregoing, none of such Lenders or the Administrative Agent
shall have or be deemed to have a fiduciary relationship with any Lender. Each
Lender hereby makes the same acknowledgments with respect to such Lenders as it
makes with respect to the Administrative Agent in Section 10.11.
ARTICLE XI.
SETOFF; RATABLE PAYMENTS
11.1 Setoff.
In addition to, and without limitation of, any rights of the Lenders
under applicable law, if any Borrower becomes insolvent, however evidenced, or
any Default occurs and is continuing, any and all deposits (including all
account balances, whether provisional or final and whether or not collected or
available) and any other Indebtedness at any time held or owing by any Lender or
any Affiliate of any Lender to or for the credit or account of any Borrower may
be offset and applied toward the payment of the Obligations owing to such
Lender, whether or not the Obligations, or any part hereof, shall then be due.
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11.2 Ratable Payments.
If any Lender, whether by setoff or otherwise, has payment made to it
upon its Loans (other than payments received pursuant to Section 3.1, 3.2, 3.4
or 3.5 or payments of Alternate Currency Loans) in a greater proportion than
that received by any other Lender, such Lender agrees, promptly upon demand, to
purchase a portion of the Loans held by the other Lenders so that after such
purchase each Lender will hold its ratable proportion of Loans. If any Lender,
whether in connection with setoff or amounts which might be subject to setoff or
otherwise, receives collateral or other protection for its Obligations or such
amounts which may be subject to setoff, such Lender agrees, promptly upon
demand, to take such action necessary such that all Lenders share in the
benefits of such collateral ratably in proportion to their Loans. In case any
such payment is disturbed by legal process, or otherwise, appropriate further
adjustments shall be made.
If an amount to be setoff is to be applied to Indebtedness of the
Company to a Lender other than Indebtedness comprised of Loans made by such
Lender, such amount shall be applied ratably to such other Indebtedness and to
the Indebtedness comprised of such Loans.
ARTICLE XII.
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1 Successors and Assigns.
The terms and provisions of the Loan Documents shall be binding upon
and inure to the benefit of the Borrowers and the Lenders and their respective
successors and assigns, except that (i) the Borrowers shall not have the right
to assign their rights or obligations under the Loan Documents and (ii) any
assignment by any Lender must be made in compliance with Section 12.3.
Notwithstanding clause (ii) of this Section, any Lender may at any time, without
the consent of the Borrowers or the Administrative Agent, assign all or any
portion of its rights under this Agreement and any Note to a Federal Reserve
Bank; provided, however, that no such assignment to a Federal Reserve Bank shall
release the transferor Lender from its obligations hereunder. The Administrative
Agent may treat the Person which made any Loan or which holds any Note as the
owner thereof for all purposes hereof unless and until such Person complies with
Section 12.3 in the case of an assignment thereof or, in the case of any other
transfer, a written notice of the transfer is filed with the Administrative
Agent. Any assignee or transferee of the rights to any Loan or any Note agrees
by acceptance of such transfer or assignment to be bound by all the terms and
provisions of the Loan Documents. Any request, authority or consent of any
Person, who at the time of making such request or giving such authority or
consent is the owner of the rights to any Loan (whether or not a Note has been
issued in evidence thereof), shall be conclusive and binding on any subsequent
holder, transferee or assignee of the rights to such Loan.
12.2 Participations.
12.2.1. Permitted Participants; Effect.
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Any Lender may, in its sole discretion, in the ordinary course of its
business and in accordance with applicable law, at any time sell to one or more
banks or other entities ("Participants") participating interests in any Loan
owing to such Lender, any Note held by such Lender, any Commitment of such
Lender or any other interest of such Lender under the Loan Documents. In the
event of any such sale by a Lender of participating interests to a Participant,
such Lender's obligations under the Loan Documents shall remain unchanged, such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, such Lender shall remain the owner of its Loans
and the holder of any Note issued to it in evidence thereof for all purposes
under the Loan Documents, all amounts payable by the Borrowers under this
Agreement shall be determined as if such Lender had not sold such participating
interests, and 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 the Loan Documents.
12.2.2. Voting Rights.
Each Lender shall retain the sole right to approve, without the consent
of any Participant, any amendment, modification or waiver of any provision of
the Loan Documents other than any amendment, modification or waiver with respect
to any Loan or Commitment in which such Participant has an interest which
forgives principal, interest or fees or reduces the interest rate or fees
payable with respect to any such Loan or Commitment, extends the Facility
Termination Date, postpones any date fixed for any regularly-scheduled payment
of principal of, or interest or fees on, any such Loan or Commitment, releases
the Company as guarantor of any such Loan or releases all or substantially all
of the collateral, if any, securing any such Loan.
12.2.3. Benefit of Setoff.
The Company agrees that each Participant shall be deemed to have the
right of setoff provided in Section 11.1 in respect of its participating
interest in amounts owing under the Loan Documents to the same extent as if the
amount of its participating interest were owing directly to it as a Lender under
the Loan Documents, provided that each Lender shall retain the right of setoff
provided in Section 11.1 with respect to the amount of participating interests
sold to each Participant. The Lenders agree to share with each Participant, and
each Participant, by exercising the right of setoff provided in Section 11.1,
agrees to share with each Lender, any amount received pursuant to the exercise
of its right of setoff, such amounts to be shared in accordance with Section
11.2 as if each Participant were a Lender.
12.3 Assignments.
12.3.1. Permitted Assignments.
Any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time assign to one or more financial
institutions, mutual funds, insurance companies or other entities engaged in the
business of extending credit for borrowed money ("Purchasers") all or any part
of its rights and obligations under the Loan Documents. Such assignment shall be
substantially in the form of Exhibit C or in such other form as may be agreed to
by the parties thereto. The consent of the Company and the Administrative Agent
shall be required prior to an
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assignment becoming effective with respect to a Purchaser which is not a Lender
or an Affiliate thereof; provided, however, that if a Default has occurred and
is continuing, the consent of the Company shall not be required. Such consent
shall not be unreasonably withheld or delayed. The assignor shall give prompt
written notice to the Company of any assignment becoming effective without the
consent of the Company. The Administrative Agent shall give written notice to
each Lender of any assignment becoming effective to an assignor other than a
Lender or an Affiliate thereof. Each such assignment with respect to a Purchaser
which is not a Lender or an Affiliate thereof shall (unless each of the Company
and the Administrative Agent otherwise consents) be in an amount not less than
the lesser of (i) $5,000,000 and in multiples of $1,000,000 or (ii) the
remaining amount of the assigning Lender's Commitment (calculated as at the date
of such assignment) or outstanding Loans (if the applicable Commitment has been
terminated). If any Lender assigns a part of its rights and obligations in
respect of its Dollar Loans and/or its Dollar Commitment under this Agreement to
a Purchaser other than a Lender or an Affiliate thereof, such Lender shall
assign proportionate interests in its respective Multicurrency Loans and
Multicurrency Commitment and other related rights and obligations hereunder to
such Purchaser, and if any Lender assigns a part of its rights and obligations
under this Agreement in respect of its Multicurrency Loans and/or Multicurrency
Commitments to a Purchaser other than a Lender or an Affiliate thereof, such
Lender shall assign proportionate interests in its Dollar Loans and Dollar
Commitments to such Purchaser. Any assignment of an Alternate Currency Loan
shall be for the entire amount of such Alternate Currency Loan of such Lender.
12.3.2. Effect; Effective Date.
Upon (i) delivery to the Administrative Agent of an assignment,
together with any consents required by Section 12.3.1, and (ii) payment of a
$3,500 fee to the Administrative Agent for processing such assignment (unless
such fee is waived by the Administrative Agent), such assignment shall become
effective on the effective date specified in such assignment. The assignment
shall contain a representation by the Purchaser to the effect that none of the
consideration used to make the purchase of the Commitment and Loans under the
applicable assignment agreement constitutes "plan assets" as defined under ERISA
and that the rights and interests of the Purchaser in and under the Loan
Documents will not be "plan assets" under ERISA. On and after the effective date
of such assignment, such Purchaser shall for all purposes be a Lender party to
this Agreement and any other Loan Document executed by or on behalf of the
Lenders and shall have all the rights and obligations of a Lender under the Loan
Documents, to the same extent as if it were an original party hereto, and no
further consent or action by the Company, the Lenders or the Administrative
Agent shall be required to release the transferor Lender with respect to the
percentage of the Aggregate Commitment and Loans assigned to such Purchaser.
Upon the consummation of any assignment to a Purchaser pursuant to this Section
12.3.2, the transferor Lender, the Administrative Agent and the Borrowers shall,
if the transferor Lender or the Purchaser desires that its Loans be evidenced by
Notes, make appropriate arrangements so that new Notes or, as appropriate,
replacement Notes are issued to such transferor Lender and new Notes or, as
appropriate, replacement Notes, are issued to such Purchaser, in each case in
principal amounts reflecting their respective Commitments, as adjusted pursuant
to such assignment.
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12.4 Dissemination of Information.
The Company authorizes each Lender to disclose to any Participant or
Purchaser or any other Person acquiring an interest in the Loan Documents by
operation of law (each a "Transferee") and any prospective Transferee any and
all information in such Lender's possession concerning the creditworthiness of
the Company and its Subsidiaries, provided that each Transferee and prospective
Transferee agrees in writing to be bound by Section 9.11 of this Agreement.
12.5 Tax Treatment.
If any interest in any Loan Document is transferred to any Transferee
which is organized under the laws of any jurisdiction other than the United
States or any State thereof, the transferor Lender shall cause such Transferee,
concurrently with the effectiveness of such transfer, to comply with the
provisions of Section 3.5(iv).
12.6 Transfer to an SPC.
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 Company, the option to provide to the Borrowers all
or any part of any Loan (other than an Alternate Currency Loan) that such
Granting Lender would otherwise be obligated to make to the Borrower 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 furtherance of the
foregoing, each party hereto hereby agrees (which agreement shall survive the
termination of this Agreement) that, prior to the date that is one year and one
day after the payment in full of all outstanding commercial paper or other
senior indebtedness of any SPC, it will not institute against, or join any other
person in instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under the laws of the United
States or any State thereof. In addition, notwithstanding anything to the
contrary in this Section 12.6, any SPC may (i) with notice to, but without the
prior written consent of, the Company 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 Company and the Administrative Agent) 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. As this
Section applies to any particular SPC, this section may not be amended without
the written consent of such SPC.
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ARTICLE XIII.
NOTICES
13.1 Notices.
Except as otherwise permitted by Section 2.15 with respect to borrowing
notices, all notices, requests and other communications to any party hereunder
shall be in writing (including electronic transmission, facsimile transmission
or similar writing) and shall be given to such party: (x) in the case of the
Borrowers or the Administrative Agent, at its address or facsimile number set
forth on the signature pages hereof, (y) in the case of any Lender, at its
address or facsimile number set forth below its signature hereto or (z) in the
case of any party, at such other address or facsimile number as such party may
hereafter specify for the purpose by notice to the Administrative Agent and the
Borrowers in accordance with the provisions of this Section 13.1. Each such
notice, request or other communication shall be effective (i) if given by
facsimile transmission, when transmitted to the facsimile number specified in
this Section and confirmation of receipt is received, (ii) if given by mail, 72
hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid, or (iii) if given by any other means,
when delivered (or, in the case of electronic transmission, received) at the
address specified in this Section; provided that notices to the Administrative
Agent under Article II shall not be effective until received.
13.2 Change of Address.
The Borrowers, the Administrative Agent and any Lender may each change
the address for service of notice upon it by 5 days' prior written notice to the
other parties hereto.
ARTICLE XIV.
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Borrowers, the
Administrative Agent and the Lenders and each party has notified the
Administrative Agent by facsimile transmission or telephone that it has taken
such action.
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ARTICLE XV.
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
15.1 CHOICE OF LAW.
THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A CONTRARY EXPRESS
CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS
(INCLUDING, WITHOUT LIMITATION, 735 ILCS SECTION 105/5-1 ET SEQ, BUT OTHERWISE
WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
15.2 CONSENT TO JURISDICTION.
EACH BORROWER HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE COURT SITTING IN
CHICAGO, ILLINOIS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY
LOAN DOCUMENTS AND EACH BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN
RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH
COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO
THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT
SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE
AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST ANY BORROWER IN THE COURTS OF
ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY ANY BORROWER AGAINST THE
AGENT OR ANY LENDER OR ANY AFFILIATE OF THE AGENT OR ANY LENDER INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR
CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN CHICAGO,
ILLINOIS.
15.3 WAIVER OF JURY TRIAL.
THE BORROWERS, THE AGENT AND EACH LENDER HEREBY WAIVE TRIAL BY JURY IN
ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER
SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO,
OR CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
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IN WITNESS WHEREOF, the Borrowers, the Lenders and the Administrative Agent have
executed this Agreement as of the date first above written.
CARDINAL HEALTH, INC.
By: /s/ Xxxxxxxxx X. Xxxxxxx
-------------------------------------
Title: Vice President & Treasurer
----------------------------------
0000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
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78
Commitment:
$65,625,000 THE FIRST NATIONAL BANK OF CHICAGO,
Individually and as Administrative Agent
By: /s/ X. X. Xxxxxx
-------------------------------------
Title: Vice President
----------------------------------
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
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79
Commitment:
$61,875,000 BANK OF AMERICA NT & SA
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------
Title: Senior Vice President
----------------------------------
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
74
80
Commitment:
$61,875,000 CITICORP USA, INC.
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Title: Vice President
----------------------------------
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention:
------------------------------
Telephone:
------------------------------
FAX:
------------------------------------
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81
Commitment:
$61,875,000 CREDIT SUISSE FIRST BOSTON
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Title: Managing Director
----------------------------------
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Title: Director
----------------------------------
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention:
------------------------------
Telephone:
------------------------------
FAX:
------------------------------------
76
82
Commitment:
$46,875,000 FIRST UNION NATIONAL BANK
By: /s/ Xxxx X. Xxxx
-------------------------------------
Title: Vice President
----------------------------------
000 Xxxxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxxx Xxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
77
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Commitment:
$46,875,000 PNC BANK, NATIONAL ASSOCIATION
By: /s/ X. X. Xxxxxxxxxx
-------------------------------------
Title: Senior Vice President
----------------------------------
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: C. Xxxxxx Xxxxxxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
78
84
Commitment:
$46,875,000 WACHOVIA BANK, NA
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Title: Vice President
----------------------------------
000 Xxxxxxxxx Xxxxxx, XX
Xxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
79
85
Commitment:
$39,375,000 BARCLAYS BANK PLC
By: /s/ Xxxxxxx Xxxx
---------------------------------------
Title: Associate Director & Vice President
------------------------------------
000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
80
86
Commitment:
$39,375,000 FLEET BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Title: Senior Vice President
----------------------------------
000 Xxxxx Xxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
81
87
Commitment:
$39,375,000 DEUTSCHE BANK AG - NEW YORK BRANCH
A/O CAYMAN ISLANDS BRANCH
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Title: Director
----------------------------------
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------
Title: Director
----------------------------------
00 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxx Xxxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
82
88
Commitment:
$24,000,000 BANCA COMMERCIALE ITALIANA -
CHICAGO BRANCH
By: /s/
-------------------------------------
Title: Vice President
----------------------------------
000 X. Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
83
89
Commitment:
$24,000,000 BANK OF MONTREAL
By: /s/ Xxxxxxx Xxxxxx
-------------------------------------
Title: Director
----------------------------------
000 X. XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
84
90
Commitment:
$24,000,000 THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------------
Title: Deputy General Manager
----------------------------------
000 X. Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
85
91
Commitment:
$24,000,000 XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------------
Title: Vice President
----------------------------------
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention:
------------------------------
Telephone:
------------------------------
FAX:
------------------------------------
86
92
Commitment:
$24,000,000 NATIONAL CITY BANK
By: /s/ Xxxxxxxx Xxxxxxx
-------------------------------------
Title: Vice President
----------------------------------
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
87
93
Commitment:
$24,000,000 THE NORTHERN TRUST COMPANY
By: /s/ X. X. Xxxxxx
-------------------------------------
Title: Vice President
----------------------------------
00 X. XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
88
94
Commitment:
$24,000,000 SUNTRUST BANK, ATLANTA
By: /s/ Xxxxx X. Dash
-------------------------------------
Title: Vice President
----------------------------------
000 Xxxxxxxxx Xxxxxx, X.X., 0xx Xxxxx
Mail Code 1928
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Dash
Telephone: (000) 000-0000
FAX: (000) 000-0000
89
95
Commitment:
$24,000,000 STANDARD CHARTERED BANK
By: /s/ D. D. Cutting Xxxxxxxx XxXxxxx
------------------------------------------
Title: Senior Vice President Vice President
---------------------------------------
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
90
96
Commitment:
$24,000,000 THE BANK OF NEW YORK
By: /s/ Xx Xxxxxxxxx
-------------------------------------
Title: Vice President
----------------------------------
Xxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
91
97
Commitment:
$24,000,000 XXXXX FARGO BANK, NATIONAL ASSOCIATION
By: /s/ Xxxx Xxxxx
-------------------------------------
Title: Vice President
----------------------------------
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx XxXxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
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PRICING SCHEDULE
The Applicable Margin shall be as determined by the matrix below:
------------------------------------------------------------------------------------------------------------------------------------
Level I Level II Level III Level IV Level V Level VI
Status Status Status Status Status Status
------------------------------------------------------------------------------------------------------------------------------------
(Less than
Reference Rating BBB+ or BBB or or Equal to)
(Greater than or Equal to) A+ or A1 A or A2 A- or X0 Xxx0 Xxx0 XXX- or Baa3
------------------------------------------------------------------------------------------------------------------------------------
Facility Fee 7.0 8.0 9.0 10.0 12.0 15.0
------------------------------------------------------------------------------------------------------------------------------------
Eurocurrency Rate
Applicable Margin 13.0 17.0 21.0 25.0 28.0 35.0
------------------------------------------------------------------------------------------------------------------------------------
Utilization fee (Greater than) 33% 2.5 2.5 5.0 5.0 10.0 15.0
------------------------------------------------------------------------------------------------------------------------------------
Utilization fee (Greater than) 67% 5.0 5.0 10.0 15.0 20.0 20.0
------------------------------------------------------------------------------------------------------------------------------------
For the purposes of this Schedule, the following terms have the
following meanings, subject to the final paragraph of this Schedule:
"Level I Status" exists at any date if, on such date, the Company's
Xxxxx'x Rating is A1 or better or the Company's S&P Rating is A+ or better.
"Level II Status" exists at any date if, on such date, (i) the Company
has not qualified for Level I Status and (ii) the Company's Xxxxx'x Rating is A2
or better or the Company's S&P Rating is A or better.
"Level III Status" exists at any date if, on such date, (i) the Company
has not qualified for Level I Status or Level II Status and (ii) the Company's
Xxxxx'x Rating is A3 or better or the Company's S&P Rating is A- or better.
"Level IV Status" exists at any date if, on such date, (i) the Company
has not qualified for Level I Status, Level II Status or Level III Status and
(ii) the Company's Xxxxx'x Rating is Baa1 or better or the Company's S&P rating
is BBB+ or better.
"Level V Status" exists at any date if, on such date, (i) the Company
has not qualified for Level I Status, Level II Status, Level III Status or Level
IV Status and (ii) the Company's Xxxxx'x rating is Baa2 or better or the
Company's S&P rating is BBB or better.
"Level VI Status" exists at any date if, on such date, the Company has
not qualified for Level I Status, Level II Status, Level III Status, Level IV
Status or Level V Status.
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"Xxxxx'x Rating" means, at any time, the rating issued by Xxxxx'x
Investors Service, Inc. and then in effect with respect to the Company's senior
unsecured long-term debt securities without third-party credit enhancement.
"S&P Rating" means, at any time, the rating issued by Standard and
Poor's Rating Services, a division of The McGraw Hill Companies, Inc., and then
in effect with respect to the Company's senior unsecured long-term debt
securities without third-party credit enhancement.
"Status" means either Level I Status, Level II Status, Level III
Status, Level IV Status, Level V Status or Level VI Status.
The Applicable Margin shall be determined in accordance with the
foregoing table based on the Company's Status as determined from its
then-current Moody's and S&P Ratings. The credit rating in effect on any date
for the purposes of this Schedule is that in effect at the close of business on
such date. If at any time the Company has no Xxxxx'x Rating or no S&P Rating,
Level VI Status shall exist.
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EXHIBIT A
FORM OF OPINION
March 31, 1999
The Administrative Agent and the Lenders who are
parties to the Credit Agreement described below.
SUBJECT: CARDINAL HEALTH, INC. - FIVE-YEAR CREDIT AGREEMENT
Gentlemen/Ladies:
We are counsel for Cardinal Health, Inc., an Ohio corporation (the
"COMPANY"), and have represented the Company in connection with its execution
and delivery of a Five-Year Credit Agreement dated as of March 31,1999 (the
"AGREEMENT"), among the Company, the Subsidiary Borrowers, the Lenders named
therein, and The First National Bank of Chicago, as Administrative Agent,
providing for Advances in an aggregate principal amount not exceeding
$750,000,000 at any one time outstanding. All capitalized terms used in this
opinion and not otherwise defined herein shall have the meanings attributed to
them in the Agreement. This opinion is being delivered to you pursuant to
Section 4.1(a)(v) of the Agreement.
In connection with the issuance of this opinion letter, we have
examined the following documents:
(a) A copy of the Agreement executed by the Company;
(b) The Company's Articles of Incorporation as
certified by the Ohio Secretary of State;
(c) The Company's Code of Regulations as certified by
the Company's assistant secretary;
(d) A certificate of good standing of the Company
issued by the Ohio Secretary of State;
(e) Resolutions of the executive committee of the
Company's board of directors as certified by the Company's assistant
secretary;
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(f) [INSERT DESCRIPTION OF NOTE(S) TO BE EXECUTED AT
CLOSING];
(g) An executed copy of the Guaranty of the Company
dated as of March 31, 1999;
(h) Certificates of certain officers of the Company
as to certain factual matters; and
(i) Such other documents and matters of law as we
deemed necessary or advisable in order to render the opinions set forth
in this letter.
The documents referenced in items (a), (f), and (g) are
sometimes referred to hereinafter as the "LOAN DOCUMENTS".
In our review and in rendering the opinions expressed herein,
we have assumed, without independent verification, the following: (I) the
genuineness of all signatures, the legal capacity of all natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified, facsimile, or
photostatic copies, the completeness and correctness of any representations and
certifications made to us by officers of the Company, and the completeness and
correctness of any representations and certificates of public officials and
public filing records; (II) that the Loan Documents have been duly and validly
authorized, executed, and delivered by all parties thereto other than the
Company, and that the Loan Documents are binding and legally enforceable against
all of the parties thereto, including without limitation the Subsidiary
Borrowers, other than the Company; (III) all parties to the Loan Documents other
than the Company have received adequate consideration for their execution and
delivery of, and performance of their respective obligations under, the Loan
Documents to which each of them is a party; and (IV) all conditions and other
transactions contemplated by the Agreement to have occurred at or prior to the
funding of the initial Loans have occurred or have been waived by the
appropriate parties and Loans in the amount of the Aggregate Commitment will be
fully available pursuant to the terms of the Agreement.
Based upon the foregoing, and subject to the qualifications
set forth below, we are of the opinion that:
1. The Company is a corporation validly existing and in good
standing under the laws of the State of Ohio.
2. The execution and delivery by the Company of the Loan
Documents to which it is a party and the performance by the Company of its
obligations thereunder have been duly authorized by proper corporate proceedings
on the part of the Company and will not:
(a) Require any consent of the Company's
shareholders;
(b) (i) Violate (A) any order, judgment, or decree of
any court or governmental agency binding on the Company and known to
us, (B) any statute of the State of Ohio or the United States, or any
written regulation thereunder, (C) the Company's articles of
incorporation or code of regulations, or (D) the provisions of any
indenture, instrument, or agreement to which the Company is a party or
is subject, or by which it, or its Property, is bound, and which is
filed or incorporated by reference as an exhibit to the Company's
periodic reports under the Securities Exchange Act of 1934,
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pursuant to item 601(b)(10) of Regulation S-K of the Securities and
Exchange Commission, or (ii) conflict with or constitute a default
under any such indenture, instrument, or agreement, provided that no
opinion is expressed with respect to any violation, conflict, or
default of any financial covenants set forth in any such indenture,
instrument, or agreement that may, among other things, limit or
otherwise restrict the amount of Indebtedness the Company may incur or
restrict the amount of interest or other expenses the Company may
incur; or
(c) Result in, or require, the creation or imposition
of any Lien in or on the Property of the Company pursuant to the terms
of any indenture, instrument or agreement binding upon the Company, and
which is filed or incorporated by reference as an exhibit to the
Company's periodic reports under the Securities Exchange Act of 1934,
pursuant to item 601(b)(10) of Regulation S-K of the Securities and
Exchange Commission.
3. The Loan Documents to which the Company is a party have
been duly executed and delivered by the Company and, except for the "choice of
law" provisions of the Loan Documents, constitute legal, valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms. Set forth later in this opinion letter is an opinion regarding the
enforceability of the "choice of law" provisions of the Loan Documents.
4. To the best of our knowledge and except as set forth in
Schedule 8 of the Agreement, there is no litigation, arbitration, governmental
investigation, proceeding, or inquiry pending or threatened against the Company
which, if adversely determined, could reasonably be expected to have a Material
Adverse Effect.
5. No authorization or approval of, or filing with, any
governmental agency of the United States or of the State of Ohio which has not
been obtained or made is necessary for the execution and delivery of, and
performance of the Company's obligations under the Loan Documents.
In addition to any other qualification set forth herein, our
opinions are qualified as follows:
(A) We wish to advise you that we do not express any
opinion with respect to: (1) the power or authority of the Lenders to
make the loans contemplated by the Agreement; (2) compliance by the
Lenders with any federal or state banking law, rule, regulation, or
restriction; or (3) compliance by the Lenders with any federal, state,
or foreign law, rule, regulation, or restriction which is or was
required to be complied with by the Lenders (as opposed to compliance
therewith by the Company) in order to enforce any rights or remedies of
the Lenders under the Loan Documents. Accordingly, all of the foregoing
opinions expressed by us are qualified to the extent set forth in the
preceding sentence.
(B) To the extent that the foregoing opinions are
stated to be to the best of our knowledge, or relate to matters which
are known to us, we have, with your consent, relied on one or more
certificates of officers of the Company as to factual matters, and the
absence of any contrary knowledge of those attorneys of our firm
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familiar with the affairs of the Company, and we have neither
independently investigated nor attempted to verify any of such matters.
(C) We have made no examination of and express no
opinion as to: (1) the right, title, or interest of any person to any
property; (2) the accuracy or sufficiency of the description in the
Loan Documents of any real or personal property; or (3) the existence
of or freedom of any property from any liens, security interests, or
other encumbrances.
(D) Our opinions are subject to and affected by: (1)
any bankruptcy, insolvency, avoidance, fraudulent conveyance,
reorganization, moratorium, or similar laws affecting the rights and
remedies of creditors generally; and (2) general principles of equity
(whether considered in a proceeding in equity or at law).
(E) We express no opinion as to whether a court would
limit the exercise or enforcement of rights or remedies by the Lenders
under the Loan Documents: (1) in the event of any default by the
Company, if it is determined that such default is not material or if
such exercise or enforcement is not reasonably necessary for the
protection of the Lenders; or (2) if the exercise or enforcement
thereof under the circumstances would violate an implied covenant of
good faith and fair dealing.
(F) Certain waivers and exculpatory clauses contained
in the Loan Documents may be limited or unenforceable.
(G) No opinion is expressed with respect to the
validity or enforceability of those provisions of the Loan Documents
which purport by their terms to relieve any party of, or to indemnify
such party against, any liability for such party's own negligence,
gross negligence, or willful misconduct, or to obligate the Company to
bear the legal and other expenses of any other party.
(H) We are authorized to practice law in Ohio, and no
opinion is expressed herein other than as to the laws of the State of
Ohio and federal law. With your permission, for purposes of the opinion
set forth in paragraph 3, we have assumed that the substantive laws of
the State of Ohio, except for conflict of laws principles, would govern
the Loan Documents.
In addition to the foregoing opinions, you have also requested
our opinion regarding whether an Ohio court would enforce the "choice of law"
provisions of the Loan Documents (the "CHOICE OF LAW PROVISIONS") against the
Company.
In Xxxxxxx Radio Prod. v. Midwestern Broadcast, 453 N.E. 2d
683 (Ohio 1983), the Ohio Supreme Court held that the rule set forth in the
Restatement of Law 2d (1971) 561, Conflict of Laws, Section 187, is to be
applied in determining whether or not a contractual choice of law provision will
be enforced by an Ohio court. The relevant part of Section 187 is set forth
below:
(2) The law of the state chosen by the parties to
govern their contractual rights and duties will be applied, even if the
particular issue is one which the parties could not have resolved by an
explicit provision in their agreement directed to that issue, unless
either
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(a) the chosen state has no substantial
relationship to the parties or the transaction and there is no other
reasonable basis for the parties' choice, or
(b) application of the law of the chosen
state would be contrary to a fundamental policy of a state which has a
materially greater interest than the chosen state in the determination
of the particular issue and which, under the rule of Section 188, would
be the state of the applicable law in the absence of an effective
choice of law by the parties.
In Xxxxxxx, the agreement at issue included a term providing
that it was to be governed by New York law. One of the parties to the agreement
was located in New York and executed the agreement in New York. In addition,
performance under the agreement also took place in New York. Based upon the
foregoing, the Ohio Supreme Court concluded that New York did bear a substantial
relationship to the parties and the agreement. Xxxxxxx, 453 N.E. 2d 686.
Similarly, Comment (f) to Section 187 of the Restatement states that a
substantial relationship exists when the state of choice is where performance by
one of the parties is to take place or where one of the parties has its
principal place of business.
In rendering the following opinion, we have assumed, with your
approval and without independent verification, that the following facts and
statements are true and accurate in all respects:
(i) The Administrative Agent's principal office is
located in Illinois;
(ii) The terms of the Loan Documents were negotiated
by certain representatives of the Administrative Agent from Illinois;
(iii) The Loan Documents are being executed by
certain of the Lenders in Illinois and are being delivered to Illinois;
(iv) In selecting the laws of the State of Illinois
to govern the Loan Documents, the parties acted in good faith and
without an intent to evade the law; and
(v) The application of the laws of the State of
Illinois to the Loan Documents will not be contrary to any fundamental
policy of any state which has a materially greater interest than the
State of Illinois in the determination of any particular right, duty,
or obligation of any party under the Loan Documents.
Based upon the foregoing, and subject to the qualifications
and assumptions set forth herein, we our of the opinion that it would be more
likely than not that an Ohio court would enforce the Choice of Law Provisions
based upon a determination by such court that the Loan Documents and the parties
thereto have a substantial relationship with the State of Illinois.
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The opinions set forth herein are given as of the date hereof,
and we disclaim any obligation to notify you or any other person or entity if
any change in fact or law, or both (whether statutory, regulatory, regulatory
interpretation or judicial interpretation), should change our opinion with
respect to any matter set forth herein. This opinion may be relied upon and is
solely for the benefit of the Addressees at the beginning of this opinion (and
also any Purchasers, but not any Participants), and it is not to be made
available to or relied upon by any other party or communicated or disclosed to
any other person without our prior written consent.
Very truly yours,
XXXXX & XXXXXXXXX LLP
By______________________________
Xxxx Xxxxxxxx, Partner
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EXHIBIT B
COMPLIANCE CERTIFICATE
Date:_______________________________
_______________
The First National Bank of Chicago
_______________
_______________
Dear __________:
This notice serves to confirm that, to the best of my
knowledge, Cardinal Health, Inc. (the "Company") has observed or performed in
all material respects all of the covenants, conditions and agreements contained
in the Five-Year Credit Agreement and the 364-Day Credit Agreement, each dated
March __, 1999 and each among the Company, certain subsidiaries of the Company
named therein, The First National Bank of Chicago, as Administrative Agent, and
the lenders named therein.
Detailed calculations are attached.
In addition, please find enclosed a copy of our most recently
filed Form 10-Q.
Sincerely,
_____________________________________________
[Chief Financial Officer/Controller/Treasurer]
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Section 6.17, Minimum Net Worth.
[INSERT CALCULATION]
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EXHIBIT C
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between (the
"Assignor") and (the "Assignee") is dated as of , 19. The parties hereto agree
as follows:
1) PRELIMINARY STATEMENT. The Assignor is a party to a Five-Year Credit
Agreement dated as of March ___, 1999 (the "Agreement") among the Company,
the Subsidiary Borrowers, the Lenders named therein, and The First National
Bank of Chicago, as Administrative Agent (which, as it may be amended,
modified, renewed or extended from time to time is herein called the
"Credit Agreement") described in Item 1 of Schedule 1 attached hereto
("Schedule 1"). Capitalized terms used herein and not otherwise defined
herein shall have the meanings attributed to them in the Credit Agreement.
2) ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns to
the Assignee, and the Assignee hereby purchases and assumes from the
Assignor, an interest in and to the Assignor's rights and obligations under
the Credit Agreement and the other Loan Documents, such that after giving
effect to such assignment the Assignee shall have purchased pursuant to
this Assignment Agreement the percentage interest specified in Item 3 of
Schedule 1 of all outstanding rights and obligations under the Credit
Agreement and the other Loan Documents relating to the facilities listed in
Item 3 of Schedule 1. The aggregate Commitment (or Loans, if the applicable
Commitment has been terminated) purchased by the Assignee hereunder is set
forth in Item 4 of Schedule 1.
3) EFFECTIVE DATE. The effective date of this Assignment Agreement (the
"Effective Date") shall be the later of the date specified in Item 5 of
Schedule 1 or two Business Days (or such shorter period agreed to by the
Administrative Agent) after this Assignment Agreement, together with any
consents required under the Credit Agreement, are delivered to the
Administrative Agent. In no event will the Effective Date occur if the
payments required to be made by the Assignee to the Assignor on the
Effective Date are not made on the proposed Effective Date.
4) PAYMENT OBLIGATIONS. In consideration for the sale and assignment of
Loans hereunder, the Assignee shall pay the Assignor, on the Effective
Date, the amount agreed to by the Assignor and the Assignee. On and after
the Effective Date, the Assignee shall be entitled to receive from the
Administrative Agent all payments of principal, interest and fees with
respect to the interest assigned hereby. The Assignee will promptly remit
to the Assignor any interest on Loans and fees received from the
Administrative Agent which
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relate to the portion of the Commitment or Loans assigned to the Assignee
hereunder for periods prior to the Effective Date and not previously paid
by the Assignee to the Assignor. In the event that either party hereto
receives any payment to which the other party hereto is entitled under this
Assignment Agreement, then the party receiving such amount shall promptly
remit it to the other party hereto.
5) RECORDATION FEE. The Assignor and Assignee each agree to pay
one-half of the recordation fee required to be paid to the Administrative
Agent in connection with this Assignment Agreement unless otherwise
specified in Item 6 of Schedule 1.
6) REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants that (i) it is the legal
and beneficial owner of the interest being assigned by it hereunder, (ii)
such interest is free and clear of any adverse claim created by the
Assignor and (iii) the execution and delivery of this Assignment Agreement
by the Assignor is duly authorized. It is understood and agreed that the
assignment and assumption hereunder are made without recourse to the
Assignor and that the Assignor makes no other representation or warranty of
any kind to the Assignee. Neither the Assignor nor any of its officers,
directors, employees, agents or attorneys shall be responsible for (i) the
due execution, legality, validity, enforceability, genuineness, sufficiency
or collectability of any Loan Document, including without limitation,
documents granting the Assignor and the other Lenders a security interest
in assets of the Company or any guarantor, (ii) any representation,
warranty or statement made in or in connection with any of the Loan
Documents, (iii) the financial condition or creditworthiness of the Company
or any guarantor, (iv) the performance of or compliance with any of the
terms or provisions of any of the Loan Documents, (v) inspecting any of the
property, books or records of the Company, (vi) the validity,
enforceability, perfection, priority, condition, value or sufficiency of
any collateral securing or purporting to secure the Loans or (vii) any
mistake, error of judgment, or action taken or omitted to be taken in
connection with the Loans or the Loan Documents.
7) REPRESENTATIONS AND UNDERTAKINGS OF THE ASSIGNEE. The Assignee (i)
confirms that it has received a copy of the Credit Agreement, together with
copies of the financial statements requested by the Assignee and such other
documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment Agreement, (ii)
agrees that it will, independently and without reliance upon the
Administrative Agent, the Assignor or any other Lender and based on such
documents and information at it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under the Loan Documents, (iii) appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such
powers under the Loan Documents as are delegated to the Administrative
Agent by the terms thereof, together with such powers as are reasonably
incidental thereto, (iv) confirms that the execution and delivery of this
Assignment Agreement by the Assignee is duly authorized, (v) agrees that it
will perform in accordance with their terms all of the obligations which by
the terms of the Loan Documents are required to be performed by it as a
Lender, (vi) agrees that its payment instructions and notice instructions
are as set forth in the
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attachment to Schedule 1, (vii) confirms that none of the funds, monies,
assets or other consideration being used to make the purchase and
assumption hereunder are "plan assets" as defined under ERISA and that its
rights, benefits and interests in and under the Loan Documents will not be
"plan assets" under ERISA, (viii) agrees to indemnify and hold the Assignor
harmless against all losses, costs and expenses (including, without
limitation, reasonable attorneys' fees) and liabilities incurred by the
Assignor in connection with or arising in any manner from the Assignee's
non-performance of the obligations assumed under this Assignment Agreement,
and (ix) if applicable, attaches the forms prescribed by the Internal
Revenue Service of the United States certifying that the Assignee is
entitled to receive payments under the Loan Documents without deduction or
withholding of any United States federal income taxes.
8) GOVERNING LAW. This Assignment Agreement shall be governed by the
internal law, and not the law of conflicts, of the State of Illinois.
9) NOTICES. Notices shall be given under this Assignment Agreement in
the manner set forth in the Credit Agreement. For the purpose hereof, the
addresses of the parties hereto (until notice of a change is delivered)
shall be the address set forth in the attachment to Schedule 1.
10) COUNTERPARTS; DELIVERY BY FACSIMILE. This Assignment Agreement may
be executed in counterparts. Transmission by facsimile of an executed
counterpart of this Assignment Agreement shall be deemed to constitute due
and sufficient delivery of such counterpart and such facsimile shall be
deemed to be an original counterpart of this Assignment Agreement.
IN WITNESS WHEREOF, the duly authorized officers of the parties hereto
have executed this Assignment Agreement by executing Schedule 1 hereto as of the
date first above written.
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SCHEDULE 1
TO ASSIGNMENT AGREEMENT
1) Description and Date of Credit Agreement:
2) Date of Assignment Agreement: , 19
3) Amounts (As of Date of Item 2 above):
Facility Facility Facility Facility
1* 2* 3* 4*
-------- -------- -------- --------
a. Assignee's percentage
of each Facility
purchased under the
Assignment
Agreement ***, **** ____% ____% ____% ____%
b. Amount of each Facility
purchased under the
Assignment Agreement ***,
****t $____ $____ $____ $____
--------------------------------------------------------------------------------
4) Assignee's Commitment (or Loans with respect to terminated Commitments)
purchased hereunder: $_________________________________
5) Proposed Effective Date: ___________________________
N/A
6) Non-standard Recordation Fee
Arrangement [Assignor/Assignee to pay 100% of fee]
[Fee waived by Administrative Agent]
Accepted and Agreed:
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[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By:__________________________ By:________________________
Title:_______________________ Title:_____________________
ACCEPTED AND CONSENTED TO BY: ACCEPTED AND CONSENTED TO BY
[NAME OF COMPANY] [NAME OF AGENT]
By:__________________________ By:________________________
Title:_______________________ Title:_____________________
* Insert specific facility names per Credit Agreement
** Percentage taken to 10 decimal places
*** If fee is split 50-50, pick N/A as option
**** Assignments must be pro rata
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Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT
ADMINISTRATIVE INFORMATION SHEET
Attach Assignor's Administrative Information Sheet, which must include
notice addresses for the Assignor and the Assignee
(Sample form shown below)
ASSIGNOR INFORMATION
CONTACT:
Name:_________________________________ Telephone No.:________________
Fax No.:______________________________ Telex No.:____________________
Answerback:___________________
PAYMENT INFORMATION:
Name & ABA # of Destination Bank:______________________________________
________________________________________________________________________________
Account Name & Number for Wire Transfer:_______________________________
________________________________________________________________________________
Other Instructions:____________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Address for Notices for Assignor:______________________________________
________________________________________________________________________________
________________________________________________________________________________
ASSIGNEE INFORMATION
CREDIT CONTACT:
Name:_________________________________ Telephone No.:________________
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Fax No.:______________________________ Telex No.:____________________
Answerback:___________________
KEY OPERATIONS CONTACTS:
Booking Booking
Installation:_________________________ Installation:_________________
Name:_________________________________ Name:_________________________
Telephone No.:________________________ Telephone No.:________________
Fax No.:______________________________ Fax No.:______________________
Telex No.:____________________________ Telex No.:____________________
Answerback:___________________________ Answerback:___________________
PAYMENT INFORMATION:
Name & ABA # of Destination Bank:______________________________________
________________________________________________________________________________
Account Name & Number for Wire Transfer:_______________________________
________________________________________________________________________________
Other Instructions:____________________________________________________
________________________________________________________________________________
Address for Notices for Assignee:______________________________________
________________________________________________________________________________
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EXHIBIT D
LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
To The First National Bank of Chicago,
as Administrative Agent (the "Administrative Agent") under the Credit
Agreement Described Below.
Re: Credit Agreement, dated March __, 1999 (as the same may be amended or
modified, the "Credit Agreement"), among Cardinal Health, Inc. (the
"Company"), the Lenders named therein and the Administrative Agent.
Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned thereto in the Credit Agreement.
The Administrative Agent is specifically authorized and directed to act
upon the following standing money transfer instructions with respect to the
proceeds of Advances or other extensions of credit from time to time until
receipt by the Administrative Agent of a specific written revocation of such
instructions by the Company, provided, however, that the Administrative Agent
may otherwise transfer funds as hereafter directed in writing by the Company in
accordance with Section 13.1 of the Credit Agreement or based on any telephonic
notice made in accordance with Section 2.14 of the Credit Agreement.
Facility Identification Number(s)______________________________________
Customer/Account Name__________________________________________________
Transfer Funds To______________________________________________________
________________________________________________________________________________
________________________________________________________________________________
For Account No.________________________________________________________
Reference/Attention To_________________________________________________
Authorized Officer
(Customer Representative) Date
__________________________________ _______________________
(Please Print) Signature
Bank Officer Name Date
__________________________________ _______________________
(Please Print) Signature
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EXHIBIT E
NOTE
[Date]
Cardinal Health, Inc., an Ohio corporation (the "Borrower"), promises
to pay to the order of ____________________________________ (the "Lender") the
aggregate unpaid principal amount of all Loans made by the Lender to the
Borrower pursuant to Article II of the Agreement (as hereinafter defined), in
immediately available funds at the place specified pursuant to Article II of the
Agreement together with interest on the unpaid principal amount hereof at the
rates and on the dates set forth in the Agreement. The Borrower shall pay the
principal of and accrued and unpaid interest on the Loans in full on the
Facility Termination Date.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Loan and the date and amount of each principal
payment hereunder.
This Note is one of the Notes issued pursuant to, and is entitled to
the benefits of, the Five-Year Credit Agreement dated as of March 31, 1999
(which, as it may be amended or modified and in effect from time to time, is
herein called the "Agreement"), among the Borrower, the lenders party thereto,
including the Lender, and The First National Bank of Chicago, as Administrative
Agent, to which Agreement reference is hereby made for a statement of the terms
and conditions governing this Note, including the terms and conditions under
which this Note may be prepaid or its maturity date accelerated. This Note is
guaranteed pursuant to the Guaranty, as more specifically described in the
Agreement, and reference is made thereto for a statement of the terms and
provisions thereof. Capitalized terms used herein and not otherwise defined
herein are used with the meanings attributed to them in the Agreement.
By:___________________________
Print Name:___________________
Title:________________________
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SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF ______________,
DATED ______________,
Date Principal Maturity of Principal Unpaid
Amount of Loan Interest Period Amount Paid Balance
------------------------------------------------------------------------------------------------------------------------
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SCHEDULE 1
SUBSIDIARIES AND OTHER INVESTMENTS
(SEE SECTIONS 5.8 AND 6.12)
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NAME JURISDICTION OF INCORPORATION
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C. International, Inc. Ohio
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Cardal, Inc. Ohio
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Cardinal Florida, Inc. Florida
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Cardinal Health Systems, Inc. Ohio
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Cardinal Mississippi, Inc. Mississippi
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Cardinal Syracuse, Inc. New York
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CORD Logistics, Inc. Ohio
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Xxxxxxx Drug Company Tennessee
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Renlar Systems, Inc. Kentucky
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Comprehensive Reimbursement Consultants, Inc. Minnesota
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NAME JURISDICTION OF INCORPORATION
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Xxxxx X. Xxxx, Inc. Massachusetts
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Ellicott Drug Company New York
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The Xxxxxxx Group, Inc. Nevada
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Allied Healthcare Services, Inc. Nevada
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Brighton Capital, Inc. Nevada
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Cardinal Information Corporation Nevada
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Cardinal West, Inc. Nevada
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Cascade Development, Inc. Nevada
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CDI Investments, Inc. Delaware
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Xxxxxxx Capital Corporation Nevada
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Pinnacle Intellectual Property Services, Inc. Nevada
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Pinnacle Intellectual Property Services
International, Inc. Nevada
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ScriptLINE, Inc. Nevada
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NAME JURISDICTION OF INCORPORATION
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Leader Drugstores, Inc. Delaware
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Marmac Distributors, Inc. Connecticut
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Medical Strategies, Inc. Massachusetts
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Medicine Shoppe International, Inc. Delaware
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Pharmacy Operations of New York, Inc. New York
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Pharmacy Operations, Inc. Delaware
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Medicine Shoppe Internet, Inc. Missouri
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Managed Pharmacy Benefits, Inc. Missouri
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Pharmacy Service Corporation Missouri
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MediQual Systems, Inc. Delaware
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National Pharmpak Services, Inc. Ohio
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National Specialty Services, Inc. Tennessee
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The Heron Corporation Ohio
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Nexus Healthcare, Inc. Ohio
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NAME JURISDICTION OF INCORPORATION
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Ohio Valley-Clarksburg, Inc. Delaware
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Xxxx Healthcare, Inc. Texas
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MediTROL, Inc. Nevada
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MediTROL Automation Systems, Inc. Texas
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Cardinal Health International Ventures, Limited Bermuda foreign sales corp.
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Xxxx Healthcare Building, Inc. Texas
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Xxxx Shared Services, Inc. Texas
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PCI Services, Inc. Delaware
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Packaging Coordinators, Inc. Pennsylvania
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Packaging Coordinators Incorporated, Caribe Delaware
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PCI/DELVCO, Inc. Delaware
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The Tri-Line Co., Inc. Delaware
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PCI/Tri-Line (USA), Inc. Delaware
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NAME JURISDICTION OF INCORPORATION
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PCI/Allpack Holdings, Inc. Delaware
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PCI allpack GmbH Germany
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PCI Acquisition I, Inc. Delaware
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PCI Acquisition II, Inc. Delaware
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PCI Holdings (UK) Co. England and Wales
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Unipack Limited (UK) Co. England and Wales
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Xxxxxxxx Holdings, Inc. Ohio
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Pyxis Corporation Canada
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X.X. Xxxxxxx Corporation Delaware
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F & F Holding GmbH Germany
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X.X. Xxxxxxx GmbH Germany
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Allcaps Weichgelatinekapseln GmbH Germany
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Gelatine Products International Delaware
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NAME JURISDICTION OF INCORPORATION
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X.X. Xxxxxxx Argentina S.A.I.C. Argentina
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Vivax Interamericana S.A. Argentina
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X.X. Xxxxxxx Canada Inc. Canada
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X.X. Xxxxxxx do Brasil Encapsulacoes, Ltda. Brazil
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X.X. Xxxxxxx Egypt Egypt
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X.X. Xxxxxxx (Europe) AG Switzerland
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X.X. Xxxxxxx Hardcapsule (West) Utah
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X.X. Xxxxxxx Holdings Ltd. England
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X.X. Xxxxxxx Limited England
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Xxxxxxx DDS Limited England
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X.X. Xxxxxxx Holdings Pty. Ltd. Australia
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X.X. Xxxxxxx K.K. Japan
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X.X. Xxxxxxx Korea Limited Korea
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X.X. Xxxxxxx Production S.A. France
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NAME JURISDICTION OF INCORPORATION
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X.X. Xxxxxxx S.A. France
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X.X. Xxxxxxx S.p.A. Italy
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X.X. Xxxxxxx DDS BV Holland
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X.X. Xxxxxxx Pharmaceutical, Inc. New Jersey
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RPS Technical Services, Inc. Delaware
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X.X. Xxxxxxx Xxxxxxxxxxx XxxX Xxxxxxx
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Allcaps Wichgelatinekapseln Verwaltungs GmbH Germany
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X.X. Xxxxxxx International (FSC), Ltd. Barbados
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X.X. Xxxxxxx (Spain) SA Spain
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The LVC Corporation Missouri
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XxxXxx, Inc. Ohio
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Solomons Company Georgia
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Xxxxxxxx Distribution Corporation Delaware
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NAME JURISDICTION OF INCORPORATION
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Xxxxxxxx Drug Distributors, Inc. Delaware
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Allegiance Corporation Delaware
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Allegiance Healthcare Corporation Delaware
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Allegiance Healthcare Foreign Sales Corporation Barbados
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West Xxxxxx, Inc. Nevada
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Allegiance Healthcare International, Inc. Delaware
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Allegiance Healthcare Canada Inc. Canada
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Source Medical, Inc. Canada
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Cirmex de Chihuahua S.A. de C.V. Mexico
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Cirpro de Delicias S.A. de C.V. Mexico
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Convertors de Mexico S.A. de C.V. Mexico
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Productos Urologos de Mexico S.A. de C.V. Mexico
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Quiroproductos de Xxxxxxxxxx S.A. de C.V. Mexico
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NAME JURISDICTION OF INCORPORATION
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Dutch American Manufacturers (D.A.M.) B.V. Netherlands
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Allegiance Healthcare Holding B.V. Netherlands
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Allegiance Healthcare Deutschland Holding GmbH Germany
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Allegiance Healthcare Deutschland GmbH Germany
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International Medical Produces (Deutschland) GmbH Germany
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Surgi-Tech Deutschland GmbH Germany
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Allegiance Healthcare GmbH Switzerland
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Allegiance Healthcare Limited United Kingdom
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Allegiance Industries Sdn. Bhd. New Synthetics Company Malaysia
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Allegiance International Manufacturing B.V. Netherlands
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Allegiance Medica S.R.L. Italy
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Allegiance S.L. Spain
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Allegiance S.P.R.L. Belgium
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NAME JURISDICTION OF INCORPORATION
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Allegiance Sante S.A. France
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International Medical Products Group B.V. Netherlands
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International Medical Products Holding B.V. Netherlands
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International Medical Products, B.V. Netherlands
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Medpro Medische Produkten B.V. Netherlands
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SOHO Disposables B.V. Netherlands
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Surgical Technologies Europa B.V. Netherlands
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Surgi-Tech Europa Divisione Surgi-Tech Italia S.R.L. Italy
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Allegiance Healthcare (Thailand) Ltd. Thailand
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Allegiance Healthcare Sdn. Bhd. Malaysia
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Allegiance International GmbH Austria
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Allegiance International Manufacturing (Bermuda) Ltd. Bermuda
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NAME JURISDICTION OF INCORPORATION
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Xxxxx Branch Dominican Republic
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Converters Branch Dominican Republic
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Eurovac Limited Malta
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SCHEDULE 3
EUROCURRENCY PAYMENT OFFICES OF THE AGENT
Currency Eurocurrency Payment Office
-------- ---------------------------
Dollars The First National Bank of Chicago
Detroit, Michigan
British Pounds Sterling The First National Bank of Chicago
London Branch
Euros The First National Bank of Chicago
London Branch
----------------------- ----------------------------------
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SCHEDULE 4
LENDING INSTALLATIONS
Lender Floating Rate Loans Eurocurrency Loans (list all)
------ ------------------- -----------------------------
The First National Bank of Chicago The First National Bank of Chicago, The First National Bank of Chicago,
Detroit, Michigan Detroit, Michigan
The First National Bank of Chicago,
London Branch (for Multicurrency Loans)
Bank of America NT & SA Bank of America London (for Pounds Sterling)
Citicorp USA Inc. Citibank London (for Euro)
Citibank Frankfurt (for German Marks)
Citibank London (for Pounds Sterling)
Citibank New York (for Canadian Dollars)
Citibank Sydney (for Australian Dollars)
Citibank Paris (for French Francs)
Citibank Milan (for Italian Lira)
Barclays Bank PLC Barclays Bank PLC London (for Pounds Sterling)
Deutsche Bank AG - New York Branch a/o Deutsche Bank AG - London (for Pounds Sterling)
Cayman Islands Branch
Bank of Montreal Bank of Montreal - London (for Pounds Sterling)
Banca Commerciale Italiana - Chicago Banca Commerciale Italiana - London
Branch (for Pounds Sterling)
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SCHEDULE 5
ALTERNATE CURRENCY COMMITMENT
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SCHEDULE 6
MULTICURRENCY COMMITMENT
Commitments
Lender Multi Currency Dollar
------ -------------- ------
The First National Bank of Chicago $25,000,000 $40,625,000
Bank of America NT & SA $25,000,000 $36,875,000
CITICORP USA, INC. $25,000,000 $36,875,000
Barclays Bank PLC $25,000,000 $14,375,000
Deutsche Bank AG $25,000,000 $14,375,000
Bank of Montreal $15,000,000 $ 9,000,000
Banca Commerciale Italiana $10,000,000 $14,000,000
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SCHEDULE 7
LITIGATION AND CONTINGENT OBLIGATIONS
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EXHIBIT F
SWINGLINE NOTE
March __, 1999
---------, ------------
FOR VALUE RECEIVED, CARDINAL HEALTH INC., an Ohio corporation (the
"Borrower"), hereby unconditionally promises to pay to the order of The First
National Bank of Chicago (the "Lender"), at the principal banking office of the
Administrative Agent in lawful money of the United States of America and in
immediately available funds, the unpaid principal amount of the Swingline Loans
as evidenced by the books and records of the Lender, on the Facility Termination
Date or such earlier date as the Lender may require under the Credit Agreement
referred to below, when the entire outstanding principal amount of the Swingline
Loans evidenced hereby, and all accrued interest thereon, shall be due and
payable; and to pay interest on the unpaid principal balance hereof from time to
time outstanding, in like money and funds, for the period from the date hereof
until the Swingline Loans evidenced hereby shall be paid in full, at the rates
per annum on and the dates provided in the Credit Agreement referred to below.
The Lender is hereby authorized by the Borrower to record on its books
and records the date, currency and the amount of each Swingline Loan, the
applicable interest rate, the amount of each payment or prepayment of principal
thereon, and the other information provided for in such books and records, which
books and records shall constitute prime facie evidence of the information so
recorded, provided, however, that any failure by the Lender to record any such
notation shall not relieve the Borrower of its obligation to repay the
outstanding principal amount of this Swingline Note, all accrued interest hereon
and any amount payable with respect hereto in accordance with the terms of this
Swingline Note and the Credit Agreement.
The Borrower waives presentment, protest, notice of dishonor and any
other formality in connection with this Swingline Note. Should the indebtedness
evidenced by this Swingline Note or any part thereof be collected in any
proceeding or be placed in the hands of attorneys for collection, the Borrower
agrees to pay, in addition to the principal, interest and other sums due and
payable hereon, all costs of collecting this Swingline Note, including
reasonable attorneys' fees and expenses.
This Swingline Note evidences Swingline Loans made under a Five-Year
Credit Agreement, dated as of March 31, 1999 (as amended or modified from time
to time, the "Credit Agreement"), by and among the Borrower, the Lenders
(including the Lender) named therein and The First National Bank of Chicago, as
Administrative Agent for the Lenders, to which reference is hereby made for a
statement of the circumstances under which this Swingline Note is subject to
prepayment and under which its due date may be accelerated. Capitalized terms
used but not defined in this Swingline Note shall have the respective meanings
assigned to them in the Credit Agreement.
This Swingline Note is made under, and shall be governed by and
construed in accordance with, the Laws of the State of Illinois in the same
manner applicable to contracts
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made and to be performed entirely within such State and without giving effect to
choice of law principles of such State.
CARDINAL HEALTH INC.
By:___________________________
Its:
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