364 DAY CREDIT AGREEMENT
by and among
CVS CORPORATION,
THE LENDERS PARTY HERETO,
FLEET NATIONAL BANK,
as Syndication Agent,
CREDIT SUISSE FIRST BOSTON,
as Documentation Agent,
and
THE BANK OF NEW YORK,
as Administrative Agent
--------------------------------
Dated as of May 26, 2000
--------------------------------
BNY CAPITAL MARKETS, INC.,
as Lead Arranger and Book Runner
TABLE OF CONTENTS
Page
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1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION.....................................................................1
1.1 DEFINITIONS..........................................................................................1
1.2 PRINCIPLES OF CONSTRUCTION..........................................................................13
2. AMOUNT AND TERMS OF LOANS.....................................................................................14
2.1 Revolving Credit Loans..............................................................................14
2.2 [INTENTIONALLY OMITTED].............................................................................15
2.3 NOTICE OF BORROWING-REVOLVING CREDIT LOANS..........................................................15
2.4 COMPETITIVE BID LOANS AND PROCEDURE.................................................................15
2.5 USE OF PROCEEDS.....................................................................................17
2.6 TERMINATION OR REDUCTION OF COMMITMENTS.............................................................18
2.7 PREPAYMENTS OF LOANS................................................................................18
3. PROCEEDS, PAYMENTS, CONVERSIONS, INTEREST, YIELD PROTECTION AND FEES..........................................19
3.1 DISBURSEMENT OF THE PROCEEDS OF THE LOANS...........................................................19
3.2 PAYMENTS............................................................................................19
3.3 CONVERSIONS; OTHER MATTERS..........................................................................20
3.4 INTEREST RATES AND PAYMENT DATES....................................................................21
3.5 INDEMNIFICATION FOR LOSS............................................................................23
3.6 REIMBURSEMENT FOR COSTS, ETC........................................................................23
3.7 ILLEGALITY OF FUNDING...............................................................................24
3.8 OPTION TO FUND; SUBSTITUTED INTEREST RATE...........................................................24
3.9 CERTIFICATES OF PAYMENT AND REIMBURSEMENT...........................................................25
3.10 TAXES; NET PAYMENTS................................................................................26
3.11 FACILITY FEE.......................................................................................27
3.12 REPLACEMENT OF LENDER..............................................................................27
4. REPRESENTATIONS AND WARRANTIES................................................................................28
4.1 EXISTENCE AND POWER.................................................................................28
4.2 AUTHORITY...........................................................................................28
4.3 BINDING AGREEMENT...................................................................................28
4.4 LITIGATION..........................................................................................28
4.5 NO CONFLICTING AGREEMENTS...........................................................................29
4.6 TAXES...............................................................................................29
4.7 COMPLIANCE WITH APPLICABLE LAWS; FILINGS............................................................29
4.8 GOVERNMENTAL REGULATIONS............................................................................30
4.9 FEDERAL RESERVE REGULATIONS; USE OF PROCEEDS........................................................30
4.10 NO MISREPRESENTATION...............................................................................30
4.11 PLANS..............................................................................................30
4.12 ENVIRONMENTAL MATTERS..............................................................................31
5. CONDITIONS OF LENDING - FIRST LOANS ON THE FIRST BORROWING DATE...............................................32
5.1 EVIDENCE OF CORPORATE ACTION........................................................................32
5.2 NOTES...............................................................................................32
5.3 EXISTING BANK INDEBTEDNESS..........................................................................32
5.4 OPINION OF COUNSEL TO THE BORROWER..................................................................32
6. CONDITIONS OF LENDING - ALL LOANS.............................................................................32
6.1 COMPLIANCE..........................................................................................33
6.2 REQUESTS............................................................................................33
6.3 LOAN CLOSINGS.......................................................................................33
7. AFFIRMATIVE COVENANTS.........................................................................................33
7.1 LEGAL EXISTENCE.....................................................................................33
7.2 TAXES...............................................................................................33
7.3 INSURANCE...........................................................................................34
7.4 PERFORMANCE OF OBLIGATIONS..........................................................................34
7.5 CONDITION OF PROPERTY...............................................................................34
7.6 OBSERVANCE OF LEGAL REQUIREMENTS....................................................................34
7.7 FINANCIAL STATEMENTS AND OTHER INFORMATION..........................................................34
7.8 RECORDS.............................................................................................36
7.9 AUTHORIZATIONS......................................................................................36
8. NEGATIVE COVENANTS............................................................................................36
8.1 SUBSIDIARY INDEBTEDNESS.............................................................................36
8.2 LIENS...............................................................................................36
8.3 DISPOSITIONS........................................................................................37
8.4 MERGER OR CONSOLIDATION, ETC........................................................................37
8.5 ACQUISITIONS........................................................................................37
8.6 RESTRICTED PAYMENTS.................................................................................38
8.7 LIMITATION ON UPSTREAM DIVIDENDS BY SUBSIDIARIES....................................................38
8.8 LIMITATION ON NEGATIVE PLEDGES......................................................................39
8.9 [INTENTIONALLY OMITTED].............................................................................39
8.10 RATIO OF CONSOLIDATED INDEBTEDNESS TO TOTAL CAPITALIZATION.........................................39
9. DEFAULT.......................................................................................................39
9.1 EVENTS OF DEFAULT...................................................................................39
9.2 REMEDIES............................................................................................41
10. AGENT........................................................................................................42
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10.1 APPOINTMENT........................................................................................42
10.2 DELEGATION OF DUTIES...............................................................................42
10.3 EXCULPATORY PROVISIONS.............................................................................42
10.4 RELIANCE BY ADMINISTRATIVE AGENT...................................................................43
10.5 NOTICE OF DEFAULT..................................................................................43
10.6 NON-RELIANCE.......................................................................................44
10.7 INDEMNIFICATION....................................................................................44
10.8 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY....................................................45
10.9 SUCCESSOR ADMINISTRATIVE AGENT.....................................................................45
10.10 DOCUMENTATION AGENT AND SYNDICATION AGENT.........................................................46
11. OTHER PROVISIONS.............................................................................................46
11.1 AMENDMENTS, WAIVERS, ETC...........................................................................46
11.2 NOTICES............................................................................................46
11.3 NO WAIVER; CUMULATIVE REMEDIES.....................................................................48
11.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.........................................................48
11.5 PAYMENT OF EXPENSES AND TAXES; INDEMNIFIED LIABILITIES.............................................48
11.6 LENDING OFFICES....................................................................................49
11.7 SUCCESSORS AND ASSIGNS.............................................................................49
11.8 COUNTERPARTS.......................................................................................51
11.9 SET-OFF AND SHARING OF PAYMENTS....................................................................52
11.10 INDEMNITY.........................................................................................52
11.11 GOVERNING LAW.....................................................................................53
11.12 SEVERABILITY......................................................................................53
11.13 INTEGRATION.......................................................................................54
11.14 TREATMENT OF CERTAIN INFORMATION..................................................................54
11.15 ACKNOWLEDGMENTS...................................................................................55
11.16 CONSENT TO JURISDICTION...........................................................................55
11.17 SERVICE OF PROCESS................................................................................55
11.18 NO LIMITATION ON SERVICE OR SUIT..................................................................55
11.19 WAIVER OF TRIAL BY JURY...........................................................................56
11.20 EFFECTIVE DATE....................................................................................56
11.21 NOTICE OF COMMITMENT TERMINATION..................................................................56
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EXHIBITS
Exhibit A List of Commitments and Lending and Notice Offices
Exhibit B-1 Form of Revolving Credit Note
Exhibit B-2 Form of Competitive Bid Note
Exhibit C Form of Borrowing Request
Exhibit D Form of Opinion of Counsel to the Borrower
Exhibit E Form of Assignment and Acceptance Agreement
Exhibit F Form of Competitive Bid Request
Exhibit G Form of Invitation to Bid
Exhibit H Form of Competitive Bid
Exhibit I Form of Competitive Bid Accept/Reject Letter
SCHEDULES
Schedule 4.4 List of Litigation
Schedule 8.2 List of Liens
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364 DAY CREDIT AGREEMENT, dated as of May 26, 2000, by and
among CVS CORPORATION, a Delaware corporation (the "BORROWER"), the Lenders
party hereto from time to time (each a "LENDER" and, collectively, the
"LENDERS"), FLEET NATIONAL BANK, as syndication agent (in such capacity, the
"SYNDICATION AGENT"), CREDIT SUISSE FIRST BOSTON, as documentation agent (in
such capacity, the "DOCUMENTATION AGENT"), and THE BANK OF NEW YORK ("BNY"), as
administrative agent for the Lenders (in such capacity, the "ADMINISTRATIVE
AGENT").
1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION
1.1 DEFINITIONS
When used in any Loan Document (as defined below), each of the
following terms shall have the meaning ascribed thereto unless the context
otherwise specifically requires:
"ABR ADVANCES": the Revolving Credit Loans (or any portions thereof) at
such time as they (or such portions) are made or are being maintained at a rate
of interest based upon the Alternate Base Rate.
"ACCUMULATED FUNDING DEFICIENCY": as defined in Section 302 of ERISA.
"ACQUISITION": with respect to any Person, the purchase or other
acquisition by such Person, by any means whatsoever (including by devise,
bequest, gift, through a dividend or otherwise), of (a) stock of, or other
equity securities of, any other Person if, immediately thereafter, such other
Person would be either a consolidated subsidiary of such Person or otherwise
under the control of such Person, (b) any business, going concern or division or
segment thereof, or (c) the Property of any other Person other than in the
ordinary course of business, provided that (i) no acquisition of substantially
all of the assets, or any division or segment, of such other Person shall be
deemed to be in the ordinary course of business and (ii) no redemption,
retirement, purchase or acquisition by any Person of the stock or other equity
securities of such Person shall be deemed to constitute an Acquisition.
"ADMINISTRATIVE AGENT": as defined in the preamble.
"AFFECTED ADVANCE": as defined in Section 3.8(b).
"AFFILIATE": with respect to any Person at any time and from time to
time, any other Person (other than a wholly-owned subsidiary of such Person)
which, at such time (a) controls such Person, (b) is controlled by such Person
or (c) is under common control with such Person. The term "control", as used in
this definition with respect to any Person, means the power, whether direct or
indirect through one or more intermediaries, to direct or cause the direction of
the management and policies of such Person, whether through the ownership of
voting securities or other interests, by contract or otherwise.
"AGGREGATE COMMITMENT AMOUNT": at any time, the sum of the Commitment
Amounts of the Lenders at such time under this Agreement.
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"AGGREGATE CREDIT EXPOSURE": at any time, the sum at such time of (a)
the aggregate Committed Credit Exposure of the Lenders at such time under this
Agreement and (b) the aggregate outstanding principal balance of all Competitive
Bid Loans at such time under this Agreement.
"AGREEMENT": this Credit Agreement, as the same may be amended,
supplemented or otherwise modified from time to time.
"ALTERNATE BASE RATE": for any day, a rate per annum equal to the
greater of (a) the BNY Rate in effect on such day, or (b) 0.50% PLUS the Federal
Funds Effective Rate (rounded, if necessary, to the nearest 1/100th of 1% or, if
there is no nearest 1/100 of 1%, then to the next higher 1/100 of 1%) in effect
on such day.
"APPLICABLE MARGIN": (i) with respect to the unpaid principal balance
of ABR Advances, the applicable percentage set forth below in the column
entitled "ABR Advances", (ii) with respect to the unpaid principal balance of
Eurodollar Advances, the applicable percentage set forth below in the column
entitled "Eurodollar Advances" and (iii) with respect to the Facility Fee, the
applicable percentage set forth below in the column entitled "Facility Fee", in
each case opposite the applicable Pricing Level:
------------------------------- ---------------------------- ---------------------------- --------------------
ABR Eurodollar Facility
Pricing Level Advances Advances Fee
------------- -------- -------- ---
Pricing Level I 0% 0.130% 0.070%
Pricing Level II 0% 0.180% 0.070%
Pricing Level III 0% 0.225% 0.075%
Pricing Level IV 0% 0.270% 0.080%
Pricing Level V 0% 0.300% 0.100%
Pricing Level VI 0% 0.325% 0.125%
Pricing Level VII 0% 0.400% 0.150%
------------------------------- ---------------------------- ---------------------------- --------------------
Decreases in the Applicable Margin resulting from a change in Pricing Level
shall become effective upon the delivery by the Borrower to the Administrative
Agent of a notice pursuant to Section 7.7(d). Increases in the Applicable Margin
resulting from a change in Pricing Level shall become effective on the effective
date of any downgrade or withdrawal in the rating by Xxxxx'x or S&P of the
senior unsecured long term debt rating of the Borrower.
"ASSIGNMENT": as defined in Section 11.7(c).
"ASSIGNMENT AND ACCEPTANCE AGREEMENT": an assignment and acceptance
agreement executed by an assignor and an assignee pursuant to which, subject to
the terms and conditions
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hereof and thereof, the assignor assigns to the assignee all or any portion of
such assignor's Loans, Notes and Commitment, substantially in the form of
Exhibit E.
"ASSIGNMENT FEE": as defined in Section 11.7(c).
"BENEFITED LENDER": as defined in Section 11.9(b).
"BNY": as defined in the preamble.
"BNY RATE": a rate of interest per annum equal to the rate of interest
publicly announced in New York City by BNY from time to time as its prime
commercial lending rate, such rate to be adjusted automatically (without notice)
on the effective date of any change in such publicly announced rate.
"BORROWER": as defined in the preamble.
"BORROWING DATE": (i) in respect of Revolving Credit Loans, any
Domestic Business Day or Eurodollar Business Day, as the case may be, on which
the Lenders shall make Revolving Credit Loans pursuant to a Borrowing Request
and (ii) in respect of Competitive Bid Loans, any Business Day on which a Lender
shall make a Competitive Bid Loan pursuant to a Competitive Bid Request.
"BORROWING REQUEST": a request for Revolving Credit Loans in the form
of Exhibit C.
"CHANGE OF CONTROL": any of the following:
(i) any Person or group (as such term is used in Section
13(d)(3) of the Securities Exchange Act of 1934, as amended), (a) shall have or
acquire beneficial ownership of securities having 30% or more of the ordinary
voting power of the Borrower or (b) shall possess, directly or indirectly, the
power to direct or cause the direction of the management and policies of the
Borrower, whether through the ownership of voting securities, by contract or
otherwise; or
(ii) the Continuing Directors shall cease for any reason to
constitute a majority of the board of directors of the Borrower then in office.
"COMMITMENT": in respect of any Lender, such Lender's undertaking to
make Revolving Credit Loans, subject to the terms and conditions hereof, in an
aggregate outstanding principal amount not to exceed the Commitment Amount of
such Lender.
"COMMITMENT AMOUNT": at any time and with respect to any Lender, the
amount set forth adjacent to such Lender's name under the heading "Commitment
Amount" in Exhibit A at such time or, in the event that such Lender is not
listed on Exhibit A, the "Commitment Amount" which such Lender shall have
assumed from another Lender in accordance with Section 11.7 on or prior to such
time, as the same may be adjusted from time to time pursuant to Sections 2.6 and
11.7(c).
"COMMITMENT PERCENTAGE": at any time and with respect to any Lender, a
fraction the numerator of which is such Lender's Commitment Amount at such time,
and the denominator of which is the Aggregate Commitment Amount at such time.
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"COMMITMENT PERIOD": the period commencing on the Effective Date and
ending on the Commitment Termination Date, or on such earlier date as all of the
Commitments shall have been terminated in accordance with the terms hereof.
"COMMITMENT TERMINATION DATE": the earlier of May 25, 2001 and the date
on which the Loans shall become due and payable, whether by acceleration, notice
of intention to prepay or otherwise.
"COMMITTED CREDIT EXPOSURE": with respect to any Lender at any time,
the sum at such time of the outstanding principal balance of such Lender's
Revolving Credit Loans.
"COMPETITIVE BID": an offer by a Lender, in the form of Exhibit H, to
make one or more Competitive Bid Loans.
"COMPETITIVE BID ACCEPT/REJECT LETTER": a notification made by the
Borrower pursuant to Section 2.4(d) in the form of Exhibit I.
"COMPETITIVE BID LOAN": as defined in Section 2.4(a).
"COMPETITIVE BID NOTE": as defined in Section 2.4(h).
"COMPETITIVE BID RATE": as to any Competitive Bid made by a Lender
pursuant to Section 2.4(b), the fixed rate of interest (which shall be expressed
in the form of a decimal to no more than four decimal places) offered by such
Lender and accepted by the Borrower.
"COMPETITIVE BID REQUEST": a request by the Borrower, in the form of
Exhibit F, for Competitive Bids.
"COMPETITIVE INTEREST PERIOD": as to any Competitive Bid Loan, the
period commencing on the date of such Competitive Bid Loan and ending on the
date requested in the Competitive Bid Request with respect thereto, which shall
not be earlier than 3 days after the date of such Competitive Bid Loan or later
than 180 days after the date of such Competitive Bid Loan; PROVIDED that if any
Competitive Interest Period would end on a day other than a Domestic Business
Day, such Interest Period shall be extended to the next succeeding Domestic
Business Day, unless such next succeeding Domestic Business Day would be a date
on or after the Commitment Termination Date, in which case such Competitive
Interest Period shall end on the next preceding Domestic Business Day. Interest
shall accrue from and including the first day of a Competitive Interest Period
to but excluding the last day of such Competitive Interest Period.
"CONSOLIDATED": the Borrower and the Subsidiaries on a consolidated
basis in accordance with GAAP.
"CONTINGENT OBLIGATION": as to any Person (the "secondary obligor"),
any obligation of such secondary obligor (a) guaranteeing or in effect
guaranteeing any return on any investment made by another Person, or (b)
guaranteeing or in effect guaranteeing any Indebtedness, lease, dividend or
other obligation ("primary obligation") of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, including any
obligation of such secondary obligor, whether or not contingent, (i) to purchase
any such primary obligation or any Property constituting
4
direct or indirect security therefor, (ii) to advance or supply funds (A) for
the purchase or payment of any such primary obligation or (B) to maintain
working capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor, (iii) to purchase
Property, securities or services primarily for the purpose of assuring the
beneficiary of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation, (iv) otherwise to assure or hold
harmless the beneficiary of such primary obligation against loss in respect
thereof, and (v) in respect of the Indebtedness of any partnership in which such
secondary obligor is a general partner, except to the extent that such
Indebtedness of such partnership is nonrecourse to such secondary obligor and
its separate Property; PROVIDED that the term "Contingent Obligation" shall not
include the indorsement of instruments for deposit or collection in the ordinary
course of business.
"CONTINUING DIRECTOR": any member of the board of directors of the
Borrower who (i) is a member of that board of directors on the Effective Date or
(ii) was nominated for election by the board of directors a majority of whom
were directors on the Effective Date or whose election or nomination for
election was previously approved by one or more of such directors.
"CONTROL PERSON": as defined in Section 3.6.
"CONVERT", "CONVERSION" and "CONVERTED": each, a reference to a
conversion pursuant to Section 3.3 of one Type of Revolving Credit Loan into
another Type of Revolving Credit Loan.
"COSTS": as defined in Section 3.6.
"DEFAULT": any of the events specified in Section 9.1, whether any
requirement for the giving of notice, the lapse of time, or both, or any other
condition, has been satisfied.
"DISPOSITION": with respect to any Person, any sale, assignment,
transfer or other disposition by such Person by any means, of:
(a) the Stock of, or other equity interests of, any other Person,
(b) any business, operating entity, division or segment thereof,
or
(c) any other Property of such Person, other than (i) the sale of
inventory (other than in connection with bulk transfers), (ii)
the disposition of equipment and (iii) the sale of cash
investments.
"DIVIDEND RESTRICTIONS": as defined in Section 8.7.
"DOCUMENTATION AGENT": as defined in the preamble.
"DOLLAR OR "$": lawful currency of the United States of America.
"DOMESTIC BUSINESS DAY": any day (other than a Saturday, Sunday or
legal holiday in the State of New York) on which banks are open for business in
New York City.
"EFFECTIVE DATE": as defined in Section 11.20.
5
"ELIGIBLE SPC": a special purpose corporation that (i) is organized
under the laws of the United States or any state thereof, (ii) is engaged in
making, purchasing or otherwise investing in commercial loans in the ordinary
course of its business and (iii) issues (or the parent of which issues)
commercial paper rated at least A-1 or the equivalent thereof by S&P or at least
P-1 or the equivalent thereof by Xxxxx'x.
"EMPLOYEE BENEFIT PLAN": an employee benefit plan, within the meaning
of Section 3(3) of ERISA, maintained, sponsored or contributed to by the
Borrower, any Subsidiary or any ERISA Affiliate.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time, or any successor thereto, and the rules and
regulations issued thereunder, as from time to time in effect.
"ERISA AFFILIATE": when used with respect to an Employee Benefit Plan,
ERISA, the PBGC or a provision of the Internal Revenue Code pertaining to
employee benefit plans, any Person that is a member of any group of
organizations within the meaning of Sections 414(b) or (c) of the Internal
Revenue Code or, solely with respect to the applicable provisions of the
Internal Revenue Code, Sections 414(m) or (o) of the Internal Revenue Code, of
which the Borrower or any Subsidiary is a member.
"ESOP GUARANTY": the guaranty of the 8.52% ESOP Note maturing 2008 in
the aggregate unpaid principal amount, as of December 31, 1998, of $270,700,000.
"EURODOLLAR ADVANCE": a portion of the Revolving Credit Loans selected
by the Borrower to bear interest during a Eurodollar Interest Period selected by
the Borrower at a rate per annum based upon a Eurodollar Rate determined with
reference to such Interest Period, all pursuant to and in accordance with
Section 2.1 or 3.3.
"EURODOLLAR BUSINESS DAY": any Domestic Business Day, other than a
Domestic Business Day on which banks are not open for dealings in Dollar
deposits in the interbank eurodollar market.
"EURODOLLAR INTEREST PERIOD": the period commencing on any Eurodollar
Business Day selected by the Borrower in accordance with Section 2.1 or Section
3.3 and ending one, two, three or six months thereafter, as selected by the
Borrower in accordance with either such Sections, subject to the following:
(i) if any Interest Period would otherwise end on a day which
is not a Eurodollar Business Day, such Interest Period shall be extended to the
immediately succeeding Eurodollar Business Day unless the result of such
extension would be to carry the end of such Interest Period into another
calendar month, in which event such Interest Period shall end on the Eurodollar
Business Day immediately preceding such day; and
(ii) if any Interest Period shall begin on the last Eurodollar
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period),
such Interest Period shall end on the last Eurodollar Business Day of such
latter calendar month.
6
"EURODOLLAR RATE": with respect to each Eurodollar Advance and as
determined by the Administrative Agent, the rate of interest per annum (rounded,
if necessary, to the nearest 1/100 of 1% or, if there is no nearest 1/100 of 1%,
then to the next higher 1/100 of 1%) equal to a fraction, the numerator of which
is the rate per annum quoted by BNY at approximately 11:00 A.M. (or as soon
thereafter as practicable) two Eurodollar Business Days prior to the first day
of such Interest Period to leading banks in the interbank eurodollar market as
the rate at which BNY is offering Dollar deposits in an amount approximately
equal to its Commitment Percentage of such Eurodollar Advance and having a
period to maturity approximately equal to the Interest Period applicable to such
Eurodollar Advance, and the denominator of which is an amount equal to 1.00
MINUS the aggregate of the then stated maximum rates during such Interest Period
of all reserve requirements (including marginal, emergency, supplemental and
special reserves), expressed as a decimal, established by the Board of Governors
of the Federal Reserve System and any other banking authority to which BNY and
other major United States money center banks are subject, in respect of
eurocurrency liabilities.
"EVENT OF DEFAULT": any of the events specified in Section 9.1,
PROVIDED that any requirement for the giving of notice, the lapse of time, or
both, or any other condition has been satisfied.
"EXISTING BANK INDEBTEDNESS": all Indebtedness under the Existing
Credit Agreement and all accrued and unpaid monetary obligations of the Borrower
under the Existing Credit Agreement.
"EXISTING CREDIT AGREEMENT": the 364 Day Credit Agreement, dated as of
June 23, 1999, by and among the Borrower, the lenders party thereto, Fleet
National Bank and BankBoston, N.A., as co-documentation agents, and BNY as
administrative agent thereunder.
"EXPIRATION DATE": the first date, occurring after the Commitments
shall have terminated or been terminated in accordance herewith, upon which
there shall be no Loans outstanding.
"FACILITY FEE": as defined in Section 3.11.
"FEDERAL FUNDS EFFECTIVE RATE": for any period, a fluctuating interest
rate per annum equal for each day during such period 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 Domestic Business Day, for the next preceding Domestic
Business Day) by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day which is a Domestic Business Day, the average (rounded,
if necessary, to the nearest 1/100 of 1% or, if there is no nearest 1/100 of 1%,
then to the next higher 1/100 of 1%) of the quotations for such day on such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by the Administrative Agent.
"FEES": as defined in Section 3.2.
"FINANCIAL STATEMENTS": as defined in Section 4.13.
"GAAP": generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public
7
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or such other principles as may be approved by a significant
segment of the accounting profession, which are applicable to the circumstances
as of the date of determination, consistently applied.
"GOVERNMENTAL AUTHORITY": any foreign, federal, state, municipal or
other government, or any department, commission, board, bureau, agency, public
authority or instrumentality thereof, or any court or arbitrator.
"GRANTING LENDER": as defined in Section 11.7(f).
"HIGHEST LAWFUL RATE": as to any Lender, the maximum rate of interest,
if any, which at any time or from time to time may be contracted for, taken,
charged or received on the Loans or the Notes or which may be owing to such
Lender pursuant to this Agreement under the laws applicable to such Lender and
this Agreement.
"INDEBTEDNESS": as to any Person at a particular time, all items of
such Person which constitute, without duplication, (a) indebtedness for borrowed
money or the deferred purchase price of Property (other than trade payables and
accrued expenses incurred in the ordinary course of business), (b) indebtedness
evidenced by notes, bonds, debentures or similar instruments, (c) indebtedness
with respect to any conditional sale or other title retention agreement, (d)
indebtedness arising under acceptance facilities and the amount available to be
drawn under all letters of credit (excluding for purposes of Sections 8.1 and
8.10 letters of credit obtained in the ordinary course of business by the
Borrower or any Subsidiary) issued for the account of such Person and, without
duplication, all drafts drawn thereunder to the extent such Person shall not
have reimbursed the issuer in respect of the issuer's payment of such drafts,
(e) that portion of any obligation of such Person, as lessee, which in
accordance with GAAP is required to be capitalized on a balance sheet of such
Person, (f) all indebtedness described in (a) - (e) above secured by any Lien on
any Property owned by such Person even though such Person shall not have assumed
or otherwise become liable for the payment thereof (other than carriers',
warehousemen's, mechanics', repairmen's or other like non-consensual Liens
arising in the ordinary course of business), and (g) Contingent Obligations in
respect of any indebtedness described in items (a) - (f) above; PROVIDED that,
for purposes of this definition, Indebtedness shall not include Intercompany
Debt and obligations in respect of interest rate caps, collars, exchanges, swaps
or other, similar agreements.
"INDEMNIFIED LIABILITIES": as defined in Section 11.5.
"INDEMNIFIED PERSON": as defined in Section 11.10.
"INTERCOMPANY DEBT": (i) Indebtedness of the Borrower to one or more of
the Subsidiaries of the Borrower and (ii) demand Indebtedness of one or more of
the Subsidiaries of the Borrower to the Borrower or any one or more of the other
Subsidiaries of the Borrower.
"INTERCOMPANY DISPOSITION": a Disposition by the Borrower or any of the
Subsidiaries of the Borrower to the Borrower or to any of the other Subsidiaries
of the Borrower.
"INTEREST PAYMENT DATE": (i) as to any ABR Advance, the last day of
each March, June, September and December, commencing on the first of such days
to occur after such ABR Advance
8
is made or any Eurodollar Advance is converted to an ABR Advance, (ii) as to any
Eurodollar Advance in respect of which the Borrower has selected a Eurodollar
Interest Period of one, two or three months, the last day of such Eurodollar
Interest Period, (iii) as to any Competitive Bid Loan in respect of which the
Borrower has selected a Competitive Interest Period of 90 days or less the last
day of such Competitive Interest Period and (iv) as to any Eurodollar Advance or
Competitive Bid Loan in respect of which the Borrower has selected an Interest
Period greater than three months or 90 days, as the case may be, the last day of
the third month or the 90th day, as the case may be, of such Interest Period and
the last day of such Interest Period.
"INTEREST PERIOD": a Eurodollar Interest Period or a Competitive
Interest Period, as the case may be.
"INTERNAL REVENUE CODE": the Internal Revenue Code of 1986, as amended
from time to time, or any successor thereto, and the rules and regulations
issued thereunder, as from time to time in effect.
"INVITATION TO BID": an invitation by the Administrative Agent to the
Lenders to make Competitive Bids in the form of Exhibit G.
"LENDER": as defined in the preamble.
"LIEN": any mortgage, pledge, hypothecation, assignment, lien, deposit
arrangement, charge, encumbrance or other security arrangement or security
interest of any kind, or the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement.
"LOAN": a Revolving Credit Loan or a Competitive Bid Loan, as the case
may be.
"LOAN DOCUMENTS": this Agreement and, upon the execution and delivery
thereof, the Notes.
"LOANS": the Revolving Credit Loans and the Competitive Bid Loans.
"MARGIN STOCK": any "margin stock", as said term is defined in
Regulation U of the Board of Governors of the Federal Reserve System, as the
same may be amended or supplemented from time to time.
"MATERIAL ADVERSE": with respect to any change or effect, a material
adverse change in, or effect on, as the case may be, (i) the financial
condition, operations, business, or Property of the Borrower and the
Subsidiaries taken as a whole, (ii) the ability of the Borrower to perform its
obligations under the Loan Documents, or (iii) the ability of the Administrative
Agent or any Lender to enforce the Loan Documents.
"MOODY'S": Xxxxx'x Investors Service, Inc.
"MULTIEMPLOYER PLAN": a Pension Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
9
"NET WORTH": at any date of determination, the sum of all amounts which
would be included under shareholders' equity on a Consolidated balance sheet of
the Borrower and the Subsidiaries determined in accordance with GAAP as at such
date.
"NOTE": a Revolving Credit Note or a Competitive Bid Note, as the case
may be.
"OTHER CREDIT AGREEMENT": the Five Year Credit Agreement, dated as of
May 23, 1997, by and among the Borrower, the lenders party thereto, Fleet
National Bank, as documentation agent, XX Xxxxxx Securities Inc., as syndication
agent, and The Bank of New York, as administrative agent, as amended by
Amendment No. 1, dated as of June 26, 1998, and Amendment No. 2, dated as of
June 23, 1999, and as the same may be further amended, supplemented or otherwise
modified from time to time.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA, or any Governmental Authority succeeding to
the functions thereof.
"PENSION PLAN": at any time, any Employee Benefit Plan (including a
Multiemployer Plan) subject to Section 302 of ERISA or Section 412 of the
Internal Revenue Code, the funding requirements of which are, or at any time
within the six years immediately preceding the time in question, were in whole
or in part, the responsibility of the Borrower, any Subsidiary or an ERISA
Affiliate.
"PERSON": any individual, firm, partnership, limited liability company,
joint venture, corporation, association, business trust, joint stock company,
unincorporated association, trust, Governmental Authority or any other entity,
whether acting in an individual, fiduciary, or other capacity, and for the
purpose of the definition of "ERISA Affiliate", a trade or business.
"PRICING LEVEL": Pricing Level I, Pricing Level II, Pricing Level III,
Pricing Level IV, Pricing Level V, Pricing Level VI or Pricing Level VII, as the
case may be.
"PRICING LEVEL I": any time when the senior unsecured long term debt
rating of the Borrower by (x) S&P is AA- or higher or (y) Xxxxx'x is Aa3 or
higher.
"PRICING LEVEL II": any time when (i) the senior unsecured long term
debt rating of the Borrower by (x) S&P is A+ or higher or (y) Xxxxx'x is A1 or
higher and (ii) Pricing Level I does not apply.
"PRICING LEVEL III": any time when (i) the senior unsecured long term
debt rating of the Borrower by (x) S&P is A or higher or (y) Xxxxx'x is A2 or
higher and (ii) neither Pricing Level I nor II applies.
"PRICING LEVEL IV": any time when (i) the senior unsecured long term
debt rating of the Borrower by (x) S&P is A- or higher or (y) Xxxxx'x is A3 or
higher and (ii) none of Pricing Level I, II or III applies.
"PRICING LEVEL V": any time when (i) the senior unsecured long term
debt rating of the Borrower by (x) S&P is BBB+ or higher or (y) Xxxxx'x is Baa1
or higher and (ii) none of Pricing Level I, II, III or IV applies.
10
"PRICING LEVEL VI": any time when (i) the senior unsecured long term
debt rating of the Borrower by (x) S&P is BBB or higher or (y) Xxxxx'x is Baa2
or higher and (ii) none of Pricing Level I, II, III, IV or V applies.
"PRICING LEVEL VII": any time when none of Pricing Level I, II, III,
IV, V or VI applies.
Notwithstanding each definition of Pricing Level set forth above, if at
any time the senior unsecured long term debt ratings of the Borrower by S&P and
Moody's differ by more than one equivalent rating level, then the applicable
Pricing Level shall be determined based upon the lower such rating adjusted
upwards to the next higher rating level.
"PRINCIPAL OFFICE": from time to time, the principal office of BNY,
located on the date hereof in New York, New York.
"PROHIBITED TRANSACTION": a transaction that is prohibited under
Section 4975 of the Internal Revenue Code or Section 406 of ERISA and not exempt
under Section 4975 of the Internal Revenue Code or Section 408 of ERISA.
"PROPERTY": in respect of any Person, all types of real, personal or
mixed property and all types of tangible or intangible property owned or leased
by such Person.
"REGULATORY CHANGE": (a) the introduction or phasing in of any law,
rule or regulation after the date hereof, (b) the issuance or promulgation after
the date hereof of any directive, guideline or request from any central bank or
United States or foreign Governmental Authority (whether or not having the force
of law), or (c) any change after the date hereof in the interpretation of any
existing law, rule, regulation, directive, guideline or request by any central
bank or United States or foreign Governmental Authority charged with the
administration thereof, in each case applicable to the transactions contemplated
by this Agreement.
"REPLACED LENDER": as defined in Section 3.12.
"REPLACEMENT LENDER": as defined in Section 3.12.
"REPORTABLE EVENT": with respect to any Pension Plan, (a) any event set
forth in Sections 4043(b) (other than a Reportable Event as to which the 30 day
notice requirement is waived by the PBGC under applicable regulations), 4062(e)
or 4063(a) of ERISA, or the regulations thereunder, (b) an event requiring the
Borrower, any Subsidiary or any ERISA Affiliate to provide security to a Pension
Plan under Section 401(a)(29) of the Internal Revenue Code, or (c) the failure
to make any payment required by Section 412(m) of the Internal Revenue Code.
"REQUIRED LENDERS": (a) at any time prior to the Commitment Termination
Date or such earlier date as all of the Commitments shall have terminated or
been terminated in accordance herewith, Lenders having Commitment Amounts equal
to or more than 51% of the Aggregate Commitment Amount, and (b) at all other
times, Lenders holding Notes having an unpaid principal balance equal to or more
than 51% of all Loans outstanding.
"RESTRICTED PAYMENT": with respect to any Person, any of the following,
whether direct or indirect: (a) the declaration or payment by such Person of any
dividend or distribution on any class
11
of Stock of such Person, other than a dividend payable solely in shares of that
class of Stock to the holders of such class, (b) the declaration or payment by
such Person of any distribution on any other type or class of equity interest or
equity investment in such Person, and (c) any redemption, retirement, purchase
or acquisition of, or sinking fund or other similar payment in respect of, any
class of Stock of, or other type or class of equity interest or equity
investment in, such Person.
"RESTRICTIVE AGREEMENT": as defined in Section 8.7.
"REVOLVING CREDIT LOANS": as defined in Section 2.1(a).
"REVOLVING CREDIT NOTE": as defined in Section 2.1(b).
"S&P": Standard and Poor's Rating Services, a division of McGraw Hill,
Inc.
"SOLVENT": with respect to any Person on a particular date, the
condition that on such date, (i) the fair value of the Property of such Person
is greater than the total amount of liabilities, including, without limitation,
contingent liabilities, of such Person, (ii) the present fair salable value of
the assets of such Person is not less than the amount that will be required to
pay the probable liability of such Person on its debts as they become absolute
and matured, (iii) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond such Person's ability to pay as such
debts and liabilities mature, and (iv) such Person is not engaged in business or
a transaction, and is not about to engage in business or a transaction, for
which such Person's Property would constitute an unreasonably small amount of
capital. For purposes of this definition, the amount of any contingent liability
at any time shall be computed as the amount that, in light of all the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability after taking into account
probable payments by co-obligors.
"SPECIAL COUNSEL": Xxxxx Xxxx LLP.
"SUBSIDIARY": at any time and from time to time, any corporation,
association, partnership, limited liability company, joint venture or other
business entity of which the Borrower and/or any Subsidiary of the Borrower,
directly or indirectly at such time, either (a) in respect of a corporation,
owns or controls more than 50% of the outstanding stock having ordinary voting
power to elect a majority of the board of directors or similar managing body,
irrespective of whether a class or classes shall or might have voting power by
reason of the happening of any contingency, or (b) in respect of an association,
partnership, limited liability company, joint venture or other business entity,
is entitled to share in more than 50% of the profits and losses, however
determined.
"SYNDICATION AGENT": as defined in the preamble.
"TANGIBLE NET WORTH": at any date of determination, Net Worth less all
assets of the Borrower and its Subsidiaries included in such Net Worth,
determined on a Consolidated basis at such date, that would be classified as
intangible assets in accordance with GAAP.
"TERMINATION EVENT": with respect to any Pension Plan, (a) a Reportable
Event, (b) the termination of a Pension Plan under Section 4041(c) of ERISA, or
the filing of a notice of intent to
12
terminate a Pension Plan under Section 4041(c) of ERISA, or the treatment of a
Pension Plan amendment as a termination under Section 4041(e) of ERISA (except
an amendment made after such Pension Plan satisfies the requirement for a
standard termination under Section 4041(b) of ERISA), (c) the institution of
proceedings by the PBGC to terminate a Pension Plan under Section 4042 of ERISA,
or (d) the appointment of a trustee to administer any Pension Plan under Section
4042 of ERISA.
"TOTAL CAPITALIZATION": at any date, the sum of the Borrower's
Consolidated Indebtedness and shareholders' equity on such date, determined in
accordance with GAAP.
"TYPE": with respect to any Revolving Credit Loan, the characteristic
of such Loan as an ABR Advance or a Eurodollar Advance, each of which
constitutes a Type of Revolving Credit Loan.
"UNQUALIFIED AMOUNT": as defined in Section 3.4(c).
"UPSTREAM DIVIDENDS": as defined in Section 8.7.
1.2 PRINCIPLES OF CONSTRUCTION
(a) All capitalized terms defined in this Agreement shall have the
meanings given such capitalized terms herein when used in the other Loan
Documents or in any certificate, opinion or other document made or delivered
pursuant hereto or thereto, unless otherwise expressly provided therein.
(b) Unless otherwise expressly provided herein, the word "fiscal" when
used herein shall refer to the relevant fiscal period of the Borrower. As used
in the Loan Documents and in any certificate, opinion or other document made or
delivered pursuant thereto, accounting terms not defined in Section 1.1, and
accounting terms partly defined in Section 1.1, to the extent not defined, shall
have the respective meanings given to them under GAAP.
(c) The words "HEREOF", "HEREIN", "HERETO" and "HEREUNDER" and similar
words when used in each Loan Document shall refer to such Loan Document as a
whole and not to any particular provision of such Loan Document, and Section,
schedule and exhibit references contained therein shall refer to Sections
thereof or schedules or exhibits thereto unless otherwise expressly provided
therein.
(d) All references herein to a time of day shall mean the then
applicable time in New York, New York, unless otherwise expressly provided
herein.
(e) Section headings have been inserted in the Loan Documents for
convenience only and shall not be construed to be a part thereof. Unless the
context otherwise requires, words in the singular number include the plural, and
words in the plural include the singular.
(f) Whenever in any Loan Document or in any certificate or other
document made or delivered pursuant thereto, the terms thereof require that a
Person sign or execute the same or refer to the same as having been so signed or
executed, such terms shall mean that the same shall be, or was, duly signed or
executed by (i) in respect of any Person that is a corporation, any duly
13
authorized officer thereof, and (ii) in respect of any other Person (other than
an individual), any analogous counterpart thereof.
(g) The words "INCLUDE" and "INCLUDING", when used in each Loan
Document, shall mean that the same shall be included "without limitation",
unless otherwise specifically provided.
2. AMOUNT AND TERMS OF LOANS
2.1 Revolving Credit Loans
(a) Subject to the terms and conditions hereof, each Lender
severally (and not jointly) agrees to make loans under this Agreement (each a
"REVOLVING CREDIT LOAN" and, collectively with each other Revolving Credit Loan
of such Lender and/or with each Revolving Credit Loan of each other Lender, the
"REVOLVING CREDIT LOANS") to the Borrower from time to time during the
Commitment Period, during which period the Borrower may borrow, prepay and
reborrow in accordance with the provisions hereof. Immediately after making each
Revolving Credit Loan and after giving effect to all Competitive Bid Loans
repaid on the same date, the Aggregate Credit Exposure will not exceed the
Aggregate Commitment Amount. With respect to each Lender, at the time of the
making of any Revolving Credit Loan, the sum of (I) the principal amount of such
Lender's Revolving Credit Loan constituting a part of the Revolving Credit Loans
to be made and (II) the aggregate principal balance of all other Revolving
Credit Loans (exclusive of Revolving Credit Loans which are repaid with the
proceeds of, and simultaneously with the incurrence of, the Revolving Credit
Loans to be made) then outstanding from such Lender will not exceed the
Commitment of such Lender at such time. During the Commitment Period, the
Borrower may borrow, prepay in whole or in part and reborrow Revolving Credit
Loans under the Commitments, all in accordance with the terms and conditions
hereof. At the option of the Borrower, indicated in a Borrowing Request,
Revolving Credit Loans may be made as ABR Advances or Eurodollar Advances.
(b) Revolving Credit Loans made by each Lender shall be
evidenced by a promissory note of the Borrower, substantially in the form of
Exhibit B-1 (each, as indorsed or modified from time to time, a "REVOLVING
CREDIT NOTE"), payable to the order of such Lender, dated the Effective Date,
and in the maximum stated principal amount equal to such Lender's Commitment
Amount and evidencing the obligation of the Borrower to pay such Commitment
Amount, or, if less, the aggregate unpaid principal balance of the Revolving
Credit Loans made by such Lender, with interest thereon as provided herein.
(c) The aggregate outstanding principal balance of all
Revolving Credit Loans shall be due and payable on the Commitment Termination
Date or on such earlier date upon which all of the Commitments shall have been
voluntarily terminated by the Borrower in accordance with Section 2.6.
14
2.2 [INTENTIONALLY OMITTED]
2.3 NOTICE OF BORROWING-REVOLVING CREDIT LOANS
The Borrower agrees to notify the Administrative Agent, which
notification shall be irrevocable, no later than (a) 10:00 A.M. on the proposed
Borrowing Date in the case of Revolving Credit Loans to consist of ABR Advances
and (b) 10:00 A.M. at least two Eurodollar Business Days prior to the proposed
Borrowing Date in the case of Revolving Credit Loans to consist of Eurodollar
Advances. Each such notice shall specify (i) the aggregate amount requested to
be borrowed under the Commitments, (ii) the proposed Borrowing Date, (iii)
whether a borrowing of Revolving Credit Loans is to be of ABR Advances or
Eurodollar Advances, and the amount of each thereof and (iv) the Interest Period
for such Eurodollar Advances. Each such notice shall be promptly confirmed by
delivery to the Administrative Agent of a Borrowing Request. Each Eurodollar
Advance to be made on a Borrowing Date, when aggregated with all amounts to be
Converted to Eurodollar Advances on such date and having the same Interest
Period as such Eurodollar Advance, shall equal no less than $10,000,000, or an
integral multiple of $1,000,000 in excess thereof. Each ABR Advance made on each
Borrowing Date shall equal no less than $5,000,000 or an integral multiple of
$500,000 in excess thereof. The Administrative Agent shall promptly notify each
Lender (by telephone or otherwise, such notification to be confirmed by fax or
other writing) of each such Borrowing Request. Subject to its receipt of each
such notice from the Administrative Agent and subject to the terms and
conditions hereof, each Lender shall make immediately available funds available
to the Administrative Agent at the address therefor set forth in Section 11.2
not later than 1:00 P.M. on each Borrowing Date in an amount equal to such
Lender's Commitment Percentage of the Revolving Credit Loans requested by the
Borrower on such Borrowing Date.
2.4 COMPETITIVE BID LOANS AND PROCEDURE
(a) Subject to the terms and conditions hereof, the Borrower
may request competitive bid loans under this Agreement (each a "COMPETITIVE BID
LOAN") during the Commitment Period. In order to request Competitive Bids, the
Borrower shall deliver by hand or fax to the Administrative Agent a duly
completed Competitive Bid Request not later than 11:00 A.M., one Domestic
Business Day before the proposed Borrowing Date therefor. A Competitive Bid
Request that does not conform substantially to the format of Exhibit F may be
rejected by the Administrative Agent in the Administrative Agent's reasonable
discretion, and the Administrative Agent shall promptly notify the Borrower of
such rejection by fax and telephone. Each Competitive Bid Request shall specify
(x) the proposed Borrowing Date for the Competitive Bid Loans then being
requested (which shall be a Domestic Business Day) and the aggregate principal
amount thereof and (y) the Competitive Interest Period or Interest Periods
(which shall not exceed ten different Interest Periods in a single Competitive
Bid Request), with respect thereto (which may not end after the Domestic
Business Day immediately preceding the Commitment Termination Date). Promptly
after its receipt of each Competitive Bid Request that is not rejected as
aforesaid, the Administrative Agent shall invite by fax (in the form of Exhibit
G) the Lenders to bid, on the terms and conditions of this Agreement, to make
Competitive Bid Loans pursuant to such Competitive Bid Request.
15
(b) Each Lender, in its sole and absolute discretion, may make
one or more Competitive Bids to the Borrower responsive to a Competitive Bid
Request. Each Competitive Bid by a Lender must be received by the Administrative
Agent not later than 10:00 A.M. on the proposed Borrowing Date for the relevant
Competitive Bid Loan. Multiple bids will be accepted by the Administrative
Agent. Bids to make Competitive Bid Loans that do not conform substantially to
the format of Exhibit H may be rejected by the Administrative Agent after
conferring with, and upon the instruction of, the Borrower, and the
Administrative Agent shall notify the Lender making such nonconforming bid of
such rejection as soon as practicable. Each Competitive Bid shall be irrevocable
and shall specify (x) the principal amount (which (1) shall be in a minimum
principal amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof, and (2) may equal the entire principal amount requested by the
Borrower) of the Competitive Bid Loan or Competitive Bid Loans that the Lender
is willing to make to the Borrower, (y) the Competitive Bid Rate or Rates at
which the Lender is prepared to make such Competitive Bid Loan or Competitive
Bid Loans, and (z) the Competitive Interest Period with respect to each such
Competitive Bid Loan and the last day thereof. If any Lender shall elect not to
make a Competitive Bid, such Lender shall so notify the Administrative Agent by
fax not later than 10:00 A.M. on the proposed Borrowing Date therefor, PROVIDED
that the failure by any Lender to give any such notice shall not obligate such
Lender to make any Competitive Bid Loan in connection with the relevant
Competitive Bid Request.
(c) With respect to each Competitive Bid Request, the
Administrative Agent shall (i) notify the Borrower by fax by 11:00 A.M. on the
proposed Borrowing Date with respect thereto of each Competitive Bid made, the
Competitive Bid Rate applicable thereto and the identity of the Lender that made
such Competitive Bid, and (ii) send a list of all Competitive Bids to the
Borrower for its records as soon as practicable after completion of the bidding
process. Each notice and list sent by the Administrative Agent pursuant to this
Section 2.4(c) shall list the Competitive Bids in ascending yield order.
(d) The Borrower may in its sole and absolute discretion,
subject only to the provisions of this Section 2.4(d), accept or reject any
Competitive Bid made in accordance with the procedures set forth in this Section
2.4, and the Borrower shall notify the Administrative Agent by telephone,
confirmed by fax in the form of a Competitive Bid Accept/Reject Letter, whether
and to what extent it has decided to accept or reject any or all of such
Competitive Bids not later than 12:00 Noon on the proposed Borrowing Date
therefor, PROVIDED that the failure by the Borrower to give such notice shall be
deemed to be a rejection of all such Competitive Bids. In connection with each
acceptance of one or more Competitive Bids by the Borrower:
(1) the Borrower shall not accept a Competitive Bid
made at a particular Competitive Bid Rate if the Borrower has decided to reject
a Competitive Bid made at a lower Competitive Bid Rate unless the acceptance of
such lower Competitive Bid would subject the Borrower to any requirement to
withhold any taxes or deduct any amount from any amounts payable under the Loan
Documents, in which case the Borrower may reject such lower Competitive Bid,
(2) the aggregate amount of the Competitive Bids
accepted by the Borrower shall not exceed the principal amount specified in the
Competitive Bid Request therefor,
16
(3) if the Borrower shall desire to accept a
Competitive Bid made at a particular Competitive Bid Rate, it must accept all
other Competitive Bids at such Competitive Bid Rate, except for any such
Competitive Bid the acceptance of which would subject the Borrower to any
requirement to withhold any taxes or deduct any amount from any amounts payable
under the Loan Documents, PROVIDED that if the acceptance of all such other
Competitive Bids would cause the aggregate amount of all such accepted
Competitive Bids to exceed the amount requested, then such acceptance shall be
made pro rata in accordance with the amount of each such Competitive Bid at such
Competitive Bid Rate,
(4) except pursuant to clause (3) above, no
Competitive Bid shall be accepted unless the Competitive Bid Loan with respect
thereto shall be in a minimum principal amount of $5,000,000 or an integral
multiple of $1,000,000 in excess thereof, and
(5) no Competitive Bid shall be accepted and no
Competitive Bid Loan shall be made, if immediately after giving effect thereto,
the Aggregate Credit Exposure would exceed the Aggregate Commitment Amount.
(e) The Administrative Agent shall promptly fax to each
bidding Lender (with a copy to the Borrower) a Competitive Bid Accept/Reject
Letter advising such Lender whether its Competitive Bid has been accepted (and
if accepted, in what amount and at what Competitive Bid Rate), and each
successful bidder so notified will thereupon become bound, subject to the other
applicable conditions hereof, to make the Competitive Bid Loan in respect of
which each of its Competitive Bids has been accepted by making immediately
available funds available to the Administrative Agent at its address set forth
in Section 11.2 not later than 1:00 P.M. on the Borrowing Date for such
Competitive Bid Loan in the amount thereof.
(f) Anything herein to the contrary notwithstanding, if the
Administrative Agent shall elect to submit a Competitive Bid in its capacity as
a Lender, it shall submit such bid directly to the Borrower not later than 9:30
A.M. on the relevant proposed Borrowing Date.
(g) All notices required by this Section shall be given in
accordance with Section 11.2.
(h) The Competitive Bid Loans made by each Lender shall be
evidenced by a promissory note of the Borrower, substantially in the form of
Exhibit B-2 (each, as indorsed or modified from time to time, a "COMPETITIVE BID
NOTE"), payable to the order of such Lender, dated the Effective Date,
evidencing the obligation of the Borrower to pay the aggregate unpaid principal
balance of all Competitive Bid Loans made by such Lender to the Borrower,
together with interest thereon as provided herein. Each Competitive Bid Loan
shall be due and payable on the last day of the Interest Period applicable
thereto or on such earlier date upon which the Loans shall become due and
payable hereunder, whether by acceleration or otherwise.
2.5 USE OF PROCEEDS
The Borrower agrees that the proceeds of the Loans shall be
used solely for its general corporate purposes not inconsistent with the
provisions hereof, including as a backup for the Borrower's commercial paper.
Notwithstanding anything to the contrary contained in any Loan
17
Document, the Borrower further agrees that no part of the proceeds of any Loan
will be used, directly or indirectly, for a purpose which violates any law, rule
or regulation of any Governmental Authority, including the provisions of
Regulations U or X of the Board of Governors of the Federal Reserve System, as
amended or any provision of this Agreement, including, without limitation, the
provisions of Section 4.9.
2.6 TERMINATION OR REDUCTION OF COMMITMENTS
(a) VOLUNTARY TERMINATION OR REDUCTIONS. At the Borrower's
option and upon at least three Domestic Business Days' prior irrevocable notice
to the Administrative Agent, the Borrower may (i) terminate the Commitments at
any time or (ii) permanently reduce the Aggregate Commitment Amount, in part at
any time and from time to time, PROVIDED that (1) each such partial reduction
shall be in an amount equal to at least $10,000,000 or an integral multiple of
$1,000,000 in excess thereof and (2) immediately after giving effect to each
such reduction, (i) the Aggregate Commitment Amount shall equal or exceed the
sum of the aggregate outstanding principal balance of all Loans, and PROVIDED
FURTHER that a notice of termination of the Commitments delivered by the
Borrower may state that such notice is conditioned upon the effectiveness of
other credit facilities (such notice to specify the proposed effective date), in
which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to such specified effective date) if such
condition is not satisfied and the Borrower shall indemnify the Lenders in
accordance with Section 3.5.
(b) IN GENERAL. Each reduction of the Aggregate Commitment
Amount shall be made by reducing each Lender's Commitment Amount by a sum equal
to such Lender's Commitment Percentage of the amount of such reduction.
2.7 PREPAYMENTS OF LOANS
(a) VOLUNTARY PREPAYMENTS. The Borrower may prepay Revolving
Credit Loans and Competitive Bid Loans, in whole or in part, without premium or
penalty, but subject to Section 3.5 at any time and from time to time, by
notifying the Administrative Agent, which notification shall be irrevocable, at
least two Eurodollar Business Days, in the case of a prepayment of Eurodollar
Advances, two Domestic Business Days, in the case of Competitive Bid Loans, or
one Domestic Business Day, in the case of a prepayment of ABR Advances, prior to
the proposed prepayment date specifying (i) the Loans to be prepaid, (ii) the
amount to be prepaid, and (iii) the date of prepayment. Upon receipt of each
such notice, the Administrative Agent shall promptly notify each Lender thereof.
Each such notice given by the Borrower pursuant to this Section shall be
irrevocable, PROVIDED that, if a notice of prepayment is given in connection
with a conditional notice of termination of the Commitments, as contemplated by
Section 2.6, then such notice of prepayment may be revoked if such notice of
termination is revoked in accordance with Section 2.6, and the Borrower shall
indemnify the Lenders in accordance with Section 3.5. Each partial prepayment
under this Section shall be in a minimum amount of $1,000,000 ($500,000 in the
case of ABR Advances) or an integral multiple of $1,000,000 ($100,000 in the
case of ABR Advances) in excess thereof.
18
(b) IN GENERAL. Simultaneously with each prepayment hereunder,
the Borrower shall prepay all accrued interest on the amount prepaid through the
date of prepayment and indemnify the Lenders in accordance with Section 3.5.
3. PROCEEDS, PAYMENTS, CONVERSIONS, INTEREST, YIELD PROTECTION AND FEES
3.1 DISBURSEMENT OF THE PROCEEDS OF THE LOANS
The Administrative Agent shall disburse the proceeds of the
Loans at its office specified in Section 11.2 by crediting to the Borrower's
general deposit account with the Administrative Agent the funds received from
each Lender. Unless the Administrative Agent shall have received prior notice
from a Lender (by telephone or otherwise, such notice to be confirmed by fax or
other writing) that such Lender will not make available to the Administrative
Agent such Lender's Commitment Percentage of the Revolving Credit Loans, or the
amount of any Competitive Bid Loan, to be made by it on a Borrowing Date, the
Administrative Agent may assume that such Lender has made such amount available
to the Administrative Agent on such Borrowing Date in accordance with this
Section, PROVIDED that, in the case of a Revolving Credit Loan, such Lender
received notice thereof from the Administrative Agent in accordance with the
terms hereof, and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrower on such Borrowing Date a
corresponding amount. If and to the extent such Lender shall not have so made
such amount available to the Administrative Agent, such Lender and the Borrower
severally agree to pay to the Administrative Agent, forthwith on demand, such
corresponding amount (to the extent not previously paid by the other), together
with interest thereon for each day from the date such amount is made available
to the Borrower until the date such amount is paid to the Administrative Agent,
at a rate per annum equal to, in the case of the Borrower, the applicable
interest rate set forth in Section 3.4(a) and, in the case of such Lender, the
Federal Funds Effective Rate from the date such payment is due until the third
day after such date and, thereafter, at the Federal Funds Effective Rate PLUS
2%. Any such payment by the Borrower shall be without prejudice to its rights
against such Lender. If such Lender shall pay to the Administrative Agent such
corresponding amount, such amount so paid shall constitute such Lender's Loan as
part of such Loans for purposes of this Agreement, which Loan shall be deemed to
have been made by such Lender on the Borrowing Date applicable to such Loans.
3.2 PAYMENTS
(a) Each borrowing of Revolving Credit Loans by the Borrower
from the Lenders, any Conversion of Revolving Credit Loans from one Type to
another, and any reduction in the Commitments shall be made pro rata according
to the Commitment Percentage of each Lender. Each payment, including each
prepayment, of principal and interest on the Loans and of the Facility Fee
(collectively, together with all of the other fees to be paid to the
Administrative Agent and the Lenders in connection with the Loan Documents, the
"FEES"), and of all of the other amounts to be paid to the Administrative Agent
and the Lenders in connection with the Loan Documents shall be made by the
Borrower to the Administrative Agent at its office specified in Section 11.2 in
funds immediately available in New York by 3:00 P.M. on the due date for such
payment. The failure of the Borrower to make any such payment by such time shall
not constitute a default hereunder, PROVIDED that such payment is made on such
due date, but any such payment
19
made after 3:00 P.M. on such due date shall be deemed to have been made on the
next Domestic Business Day or Eurodollar Business Day, as the case may be, for
the purpose of calculating interest on amounts outstanding on the Loans. If the
Borrower has not made any such payment prior to 3:00 P.M., the Borrower hereby
authorizes the Administrative Agent to deduct the amount of any such payment
from such account(s) as the Borrower may from time to time designate in writing
to the Administrative Agent, upon which the Administrative Agent shall apply the
amount of such deduction to such payment. Promptly upon receipt thereof by the
Administrative Agent, each payment of principal and interest on the: (i)
Revolving Credit Loans shall be remitted by the Administrative Agent in like
funds as received to each Lender (a) first, pro rata according to the amount of
interest which is then due and payable to the Lenders, and (b) second, pro rata
according to the amount of principal which is then due and payable to the
Lenders and (ii) Competitive Bid Loans shall be remitted by the Administrative
Agent in like funds as received to each applicable Lender. Each payment of the
Fees payable to the Lenders shall be promptly transmitted by the Administrative
Agent in like funds as received to each Lender pro rata according to such
Lender's Commitment Amount or, if the Commitments shall have terminated or been
terminated, according to the outstanding principal amount of such Lender's
Revolving Credit Loans.
(b) If any payment hereunder or under the Loans shall be due
and payable on a day which is not a Domestic Business Day or Eurodollar Business
Day, as the case may be, the due date thereof (except as otherwise provided in
the definition of Eurodollar Interest Period or Competitive Interest Period)
shall be extended to the next Domestic Business Day or Eurodollar Business Day,
as the case may be, and (except with respect to payments in respect of the
Facility Fee) interest shall be payable at the applicable rate specified herein
during such extension.
3.3 CONVERSIONS; OTHER MATTERS
(a) The Borrower may elect at any time and from time to time
to Convert one or more Eurodollar Advances to an ABR Advance by giving the
Administrative Agent at least one Domestic Business Day's prior irrevocable
notice of such election, specifying the amount to be so Converted. In addition,
the Borrower may elect at any time and from time to time to Convert an ABR
Advance to any one or more new Eurodollar Advances or to Convert any one or more
existing Eurodollar Advances to any one or more new Eurodollar Advances by
giving the Administrative Agent at least two Eurodollar Business Days' prior
irrevocable notice, in the case of a Conversion to Eurodollar Advances, of such
election, specifying the amount to be so Converted and the initial Interest
Period relating thereto, PROVIDED that any Conversion of an ABR Advance to
Eurodollar Advances shall only be made on a Eurodollar Business Day. The
Administrative Agent shall promptly provide the Lenders with notice of each such
election. ABR Advances and Eurodollar Advances may be Converted pursuant to this
Section in whole or in part, PROVIDED that the amount to be Converted to each
Eurodollar Advance, when aggregated with any Eurodollar Advance to be made on
such date in accordance with Section 2.1 and having the same Interest Period as
such first Eurodollar Advance, shall equal no less than $10,000,000 or an
integral multiple of $1,000,000 in excess thereof.
(b) Notwithstanding anything in this Agreement to the
contrary, upon the occurrence and during the continuance of a Default or an
Event of Default, the Borrower shall have no right to elect to Convert any
existing ABR Advance to a new Eurodollar Advance or to Convert any existing
Eurodollar Advance to a new Eurodollar Advance. In such event, such ABR Advance
shall be automatically continued as an ABR Advance or such Eurodollar Advance
shall be automatically Converted to an ABR Advance on the last day of the
Interest Period applicable to such Eurodollar Advance. The foregoing shall not
affect any other rights or remedies that the Administrative Agent or any Lender
may have under this Agreement or any other Loan Document.
(c) Each Conversion shall be effected by each Lender by applying the
proceeds of each new ABR Advance or Eurodollar Advance, as the case may be, to
the existing Advance (or portion thereof) being Converted (it being understood
that such Conversion shall not constitute a borrowing for purposes of Sections
4, 5 or 6).
(d) Notwithstanding any other provision of any Loan Document:
(i) if the Borrower shall have failed to elect a Eurodollar
Advance under Section 2.3 or this Section 3.3, as the case may be, in
connection with any borrowing of new Revolving Credit Loans or expiration
of an Interest Period with respect to any existing Eurodollar Advance, the
amount of the Revolving Credit Loans subject to such borrowing or such
existing Eurodollar Advance shall thereafter be an ABR Advance until such
time, if any, as the Borrower shall elect a new Eurodollar Advance pursuant
to this Section 3.3,
(ii) the Borrower shall not be permitted to select a Eurodollar
Advance the Interest Period in respect of which ends later than the
Commitment Termination Date or such earlier date upon which all of the
Commitments shall have been voluntarily terminated by the Borrower in
accordance with Section 2.6, and
(iii) the Borrower shall not be permitted to have more than 10
Eurodollar Advances and Competitive Bid Loans, in the aggregate,
outstanding at any one time, it being understood and agreed that each
borrowing of Eurodollar Advances or Competitive Bid Loans pursuant to a
single Borrowing Request or Competitive Bid Request, as the case may be,
shall constitute the making of one Eurodollar Advance or Competitive Bid
Loan for the purpose of calculating such limitation.
3.4 INTEREST RATES AND PAYMENT DATES
(a) PRIOR TO MATURITY. Except as otherwise provided in Sections
3.4(b) and 3.4(c), the Loans shall bear interest on the unpaid principal balance
thereof at the applicable interest rate or rates per annum set forth below:
------------------------------------------------------ ----------------------------------------------------
LOANS RATE
Revolving Credit Loans Alternate Base Rate applicable
constituting ABR Advances thereto PLUS the Applicable Margin.
Revolving Credit Loans Eurodollar Rate applicable
constituting Eurodollar thereto PLUS the Applicable Margin.
Advances
21
Competitive Bid Fixed rate of interest applicable thereto
Loans accepted by the Borrower pursuant to
Section 2.4(d).
------------------------------------------------------ ----------------------------------------------------
(b) AFTER MATURITY, LATE PAYMENT RATE. After maturity, whether by
acceleration, notice of intention to prepay or otherwise, the outstanding
principal balance of the Loans shall bear interest at the Alternate Base Rate
PLUS 2% per annum until paid (whether before or after the entry of any judgment
thereon). Any payment of principal, interest or any Fees not paid on the date
when due and payable shall bear interest at the Alternate Base Rate PLUS 2% per
annum from the due date thereof until the date such payment is made (whether
before or after the entry of any judgment thereon).
(c) HIGHEST LAWFUL RATE. Notwithstanding anything to the contrary
contained in this Agreement, at no time shall the interest rate payable to any
Lender on any of its Loans, together with the Fees and all other amounts payable
hereunder to such Lender to the extent the same constitute or are deemed to
constitute interest, exceed the Highest Lawful Rate. If in respect of any period
during the term of this Agreement, any amount paid to any Lender hereunder, to
the extent the same shall (but for the provisions of this Section 3.4)
constitute or be deemed to constitute interest, would exceed the maximum amount
of interest permitted by the Highest Lawful Rate during such period (such amount
being hereinafter referred to as an "UNQUALIFIED AMOUNT"), then (i) such
Unqualified Amount shall be applied or shall be deemed to have been applied as a
prepayment of the Loans of such Lender, and (ii) if, in any subsequent period
during the term of this Agreement, all amounts payable hereunder to such Lender
in respect of such period which constitute or shall be deemed to constitute
interest shall be less than the maximum amount of interest permitted by the
Highest Lawful Rate during such period, then the Borrower shall pay to such
Lender in respect of such period an amount (each a "COMPENSATORY INTEREST
PAYMENT") equal to the lesser of (x) a sum which, when added to all such
amounts, would equal the maximum amount of interest permitted by the Highest
Lawful Rate during such period, and (y) an amount equal to the aggregate sum of
all Unqualified Amounts LESS all other Compensatory Interest Payments.
(d) GENERAL. Interest shall be payable in arrears on each Interest
Payment Date, on the Commitment Termination Date and, to the extent provided in
Section 2.7(b), upon each prepayment of the Loans. Any change in the interest
rate on the Loans resulting from an increase or a decrease in the Alternate Base
Rate or any reserve requirement shall become effective as of the opening of
business on the day on which such change shall become effective. The
Administrative Agent shall, as soon as practicable, notify the Borrower and the
Lenders of the effective date and the amount of each change in the BNY Rate, but
any failure to so notify shall not in any manner affect the obligation of the
Borrower to pay interest on the Loans in the amounts and on the dates set forth
herein. Each determination by the Administrative Agent of the Alternate Base
Rate, the Eurodollar Rate and the Competitive Rate pursuant to this Agreement
shall be conclusive and binding on the Borrower absent manifest error. The
Borrower acknowledges that to the extent interest payable on the Loans is based
on the Alternate Base Rate, such rate is only one of the bases for computing
interest on loans made by the Lenders, and by basing interest payable on ABR
Advances on the Alternate Base Rate, the Lenders have not committed to charge,
and the Borrower has not in any way bargained for, interest based on a lower or
the lowest rate at which the Lenders
22
may now or in the future make extensions of credit to other Persons. All
interest (other than interest calculated with reference to the BNY Rate) shall
be calculated on the basis of a 360-day year for the actual number of days
elapsed, and all interest determined with reference to the BNY Rate shall be
calculated on the basis of a 365/366-day year for the actual number of days
elapsed.
3.5 INDEMNIFICATION FOR LOSS
Notwithstanding anything contained herein to the contrary, if: (i) the
Borrower shall fail to borrow a Eurodollar Advance or if the Borrower shall fail
to Convert a Eurodollar Advance after it shall have given notice to do so in
which it shall have requested a Eurodollar Advance pursuant to Section 2.3 or
3.3, as the case may be, (ii) the Borrower shall fail to borrow a Competitive
Bid Loan after it shall have accepted any offer with respect thereto in
accordance with Section 2.4, (iii) a Eurodollar Advance or Competitive Bid Loan
shall be terminated for any reason prior to the last day of the Interest Period
applicable thereto, (iv) any repayment or prepayment of the principal amount of
a Eurodollar Advance or Competitive Bid Loan is made for any reason on a date
which is prior to the last day of the Interest Period applicable thereto, or (v)
the Borrower shall have revoked a notice of prepayment or notice of termination
of the Commitments that was conditioned upon the effectiveness of other credit
facilities pursuant to Section 2.6 or 2.7, the Borrower agrees to indemnify each
Lender against, and to pay on demand directly to such Lender the amount
(calculated by such Lender using any method chosen by such Lender which is
customarily used by such Lender for such purpose) equal to any loss or expense
suffered by such Lender as a result of such failure to borrow or Convert, or
such termination, repayment, prepayment or revocation, including any loss, cost
or expense suffered by such Lender in liquidating or employing deposits acquired
to fund or maintain the funding of such Eurodollar Advance or Competitive Bid
Loan, as the case may be, or redeploying funds prepaid or repaid, in amounts
which correspond to such Eurodollar Advance or Competitive Bid Loan, as the case
may be, and any reasonable internal processing charge customarily charged by
such Lender in connection therewith.
3.6 REIMBURSEMENT FOR COSTS, ETC.
If at any time or from time to time there shall occur a Regulatory
Change and any Lender shall have reasonably determined that such Regulatory
Change (i) shall have had or will thereafter have the effect of reducing (A) the
rate of return on such Lender's capital or the capital of any Person directly or
indirectly owning or controlling such Lender (each a "CONTROL PERSON"), or (B)
the asset value (for capital purposes) to such Lender or such Control Person, as
applicable, of the Loans, or any participation therein, in any case to a level
below that which such Lender or such Control Person could have achieved or would
thereafter be able to achieve but for such Regulatory Change (after taking into
account such Lender's or such Control Person's policies regarding capital), (ii)
will impose, modify or deem applicable any reserve, asset, special deposit or
special assessment requirements on deposits obtained in the interbank eurodollar
market in connection with the Loan Documents (excluding, with respect to any
Eurodollar Advance, any such requirement which is included in the determination
of the rate applicable thereto), (iii) will subject such Lender or such Control
Person, as applicable, to any tax (documentary, stamp or otherwise) with respect
to this Agreement or any Note, or (iv) will change the basis of taxation of
payments to such Lender or such Control Person, as applicable, of principal,
interest or fees payable under the Loan Documents (except, in the case of
clauses (iii) and (iv) above, for any tax or changes in the rate of tax on such
23
Lender's or such Control Person's net income) then, in each such case, within
ten days after demand by such Lender, the Borrower shall pay to such Lender or
such Control Person, as the case may be, such additional amount or amounts as
shall be sufficient to compensate such Lender or such Control Person, as the
case may be, for any such reduction, reserve or other requirement, tax, loss,
cost or expense (excluding general administrative and overhead costs)
(collectively, "COSTS") attributable to such Lender's or such Control Person's
compliance during the term hereof with such Regulatory Change. Each Lender may
make multiple requests for compensation under this Section.
Notwithstanding the foregoing, the Borrower will not be required to
compensate any Lender for any Costs under this Section 3.6 arising prior to 45
days preceding the date of demand, unless the applicable Regulatory Change
giving rise to such Costs is imposed retroactively. In the case of
retroactivity, such notice shall be provided to the Borrower not later than 45
days from the date that such Lender learned of such Regulatory Change. The
Borrower's obligation to compensate such Lender shall be contingent upon the
provision of such timely notice (but any failure by such Lender to provide such
timely notice shall not affect the Borrower's obligations with respect to (i)
Costs incurred from the date as of which such Regulatory Change became effective
to the date that is 45 days after the date such Lender reasonably should have
learned of such Regulatory Change and (ii) Costs incurred following the
provision of such notice).
3.7 ILLEGALITY OF FUNDING
Notwithstanding any other provision hereof, if any Lender shall
reasonably determine that any law, regulation, treaty or directive, or any
change therein or in the interpretation or application thereof, shall make it
unlawful for such Lender to make or maintain any Eurodollar Advance as
contemplated by this Agreement, such Lender shall promptly notify the Borrower
and the Administrative Agent thereof, and (a) the commitment of such Lender to
make such Eurodollar Advances or Convert ABR Advances to such Eurodollar
Advances shall forthwith be suspended, (b) such Lender shall fund its portion of
each requested Eurodollar Advance as an ABR Advance and (c) such Lender's Loans
then outstanding as such Eurodollar Advances, if any, shall be Converted
automatically to an ABR Advance on the last day of the then current Interest
Period applicable thereto or at such earlier time as may be required. If the
commitment of any Lender with respect to Eurodollar Advances is suspended
pursuant to this Section and such Lender shall have obtained actual knowledge
that it is once again legal for such Lender to make or maintain Eurodollar
Advances, such Lender shall promptly notify the Administrative Agent and the
Borrower thereof and, upon receipt of such notice by each of the Administrative
Agent and the Borrower, such Lender's commitment to make or maintain Eurodollar
Advances shall be reinstated. If the commitment of any Lender with respect to
Eurodollar Advances is suspended pursuant to this Section, such suspension shall
not otherwise affect such Lender's Commitment.
3.8 OPTION TO FUND; SUBSTITUTED INTEREST RATE
(a) Each Lender has indicated that, if the Borrower requests a
Eurodollar Advance or a Competitive Bid Loan, such Lender may wish to purchase
one or more deposits in order to fund or maintain its funding of its Commitment
Percentage of such Eurodollar Advance or its Competitive Bid Loan during the
Interest Period with respect thereto; it being understood that the provisions of
this Agreement relating to such funding are included only for the purpose of
determining the rate of interest to be paid in respect of such Eurodollar
Advance or Competitive
24
Bid Loan and any amounts owing under Sections 3.5 and 3.6. Each Lender shall be
entitled to fund and maintain its funding of all or any part of each Eurodollar
Advance and Competitive Bid Loan in any manner it sees fit, but all such
determinations hereunder shall be made as if such Lender had actually funded and
maintained its Commitment Percentage of each Eurodollar Advance or its
Competitive Bid Loan, as the case may be, during the applicable Interest Period
through the purchase of deposits in an amount equal to the amount of its
Commitment Percentage of such Eurodollar Advance or the amount of such
Competitive Bid Loan, as the case may be, and having a maturity corresponding to
such Interest Period. Each Lender may fund its Loans from or for the account of
any branch or office of such Lender as such Lender may choose from time to time,
subject to Section 3.10.
(b) In the event that (i) the Administrative Agent shall have
determined in good faith (which determination shall be conclusive and binding
upon the Borrower) that by reason of circumstances affecting the interbank
eurodollar market either adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate applicable pursuant to Section 2.3 or Section
3.3, or (ii) the Required Lenders shall have notified the Administrative Agent
that they have in good faith determined (which determination shall be conclusive
and binding on the Borrower) that the applicable Eurodollar Rate will not
adequately and fairly reflect the cost to such Lenders of maintaining or funding
loans bearing interest based on such Eurodollar Rate with respect to any portion
of the Loans that the Borrower has requested be made as Eurodollar Advances or
any Eurodollar Advance that will result from the requested conversion of any
portion of the Loans into Eurodollar Advances (each, an "AFFECTED ADVANCE"), the
Administrative Agent shall promptly notify the Borrower and the Lenders (by
telephone or otherwise, to be promptly confirmed in writing) of such
determination on or, to the extent practicable, prior to the requested Borrowing
Date or conversion date for such Affected Advances. If the Administrative Agent
shall give such notice, (A) any Affected Advances shall be made as ABR Advances
(or, subject to the terms and conditions hereof, Competitive Bid Loans), (B) the
Loans (or any portion thereof) that were to have been Converted to Affected
Advances shall be Converted to or continued as ABR Advances (or, subject to the
terms and conditions hereof, Competitive Bid Loans), and (C) any outstanding
Affected Advances shall be Converted, on the last day of the then current
Interest Period with respect thereto, to ABR Advances (or, subject to the terms
and conditions hereof, Competitive Bid Loans). Until any notice under clauses
(i) or (ii), as the case may be, of this Section 3.8(b) has been withdrawn by
the Administrative Agent (by notice to the Borrower) promptly upon either (x)
the Administrative Agent having determined that such circumstances affecting the
relevant market no longer exist and that adequate and reasonable means do exist
for determining the Eurodollar Rate pursuant to Section 2.3 or Section 3.3, or
(y) the Administrative Agent having been notified by such Required Lenders that
circumstances no longer render the Loans (or any portion thereof) Affected
Advances, no further Eurodollar Advances shall be required to be made by the
Lenders nor shall the Borrower have the right to Convert all or any portion of
the Loans to Eurodollar Advances.
3.9 CERTIFICATES OF PAYMENT AND REIMBURSEMENT
Each Lender agrees, in connection with any request by it for payment
or reimbursement pursuant to Section 3.5 or 3.6, to provide the Borrower with a
certificate, signed by an officer of such Lender, setting forth a description in
reasonable detail of any such payment or
25
reimbursement. Each determination by each Lender of such payment or
reimbursement shall be conclusive absent manifest error.
3.10 TAXES; NET PAYMENTS
(a) All payments made by the Borrower under the Loan Documents shall
be made free and clear of, and without reduction for or on account of, any taxes
required by law to be withheld from any amounts payable under the Loan
Documents. In the event that the Borrower is prohibited by law from making such
payments free of deductions or withholdings, then the Borrower shall pay such
additional amounts to the Administrative Agent, for the benefit of the Lenders,
as may be necessary in order that the actual amounts received by the Lenders in
respect of interest and any other amounts payable under the Loan Documents after
deduction or withholding (and after payment of any additional taxes or other
charges due as a consequence of the payment of such additional amounts) shall
equal the amount that would have been received if such deduction or withholding
were not required. In the event that any such deduction or withholding can be
reduced or nullified as a result of the application of any relevant double
taxation convention, the Lenders and the Administrative Agent will, at the
expense of the Borrower, cooperate with the Borrower in making application to
the relevant taxing authorities seeking to obtain such reduction or
nullification, PROVIDED that the Lenders and the Administrative Agent shall have
no obligation to (i) engage in any litigation, hearing or proceeding with
respect thereto or (ii) disclose any tax return or other confidential
information. If the Borrower shall make any payment under this Section or shall
make any deduction or withholding from amounts paid under any Loan Document, the
Borrower shall forthwith forward to the Administrative Agent original or
certified copies of official receipts or other evidence acceptable to the
Administrative Agent establishing each such payment, deduction or withholding,
as the case may be, and the Administrative Agent in turn shall distribute copies
thereof to each Lender. If any payment to any Lender under any Loan Document is
or becomes subject to any withholding, such Lender shall (unless otherwise
required by a Governmental Authority or as a result of any law, rule,
regulation, order or similar directive applicable to such Lender) designate a
different office or branch to which such payment is to be made from that
initially selected thereby, if such designation would avoid such withholding and
would not be otherwise disadvantageous to such Lender in any respect. In the
event that any Lender determines that it received a refund or credit for taxes
paid by the Borrower under this Section, such Lender shall promptly notify the
Administrative Agent and the Borrower of such fact and shall remit to the
Borrower the amount of such refund or credit applicable to the payments made by
the Borrower in respect of such Lender under this Section.
(b) So long as it is lawfully able to do so, each Lender not
incorporated under the laws of the United States or any State thereof shall
deliver to the Borrower such certificates, documents, or other evidence as the
Borrower may reasonably require from time to time as are necessary to establish
that such Lender is not subject to withholding under Section 1441, 1442 or 3406
of the Internal Revenue Code or as may be necessary to establish, under any law
imposing upon the Borrower, hereafter, an obligation to withhold any portion of
the payments made by the Borrower under the Loan Documents, that payments to the
Administrative Agent on behalf of such Lender are not subject to withholding.
Notwithstanding any provision herein to the contrary, the Borrower shall have no
obligation to pay to any Lender any amount which the Borrower is liable to
26
withhold due to the failure of such Lender to file any statement of exemption
required by the Internal Revenue Code.
3.11 FACILITY FEE
The Borrower agrees to pay to the Administrative Agent for the pro
rata account of each Lender a fee (the "FACILITY FEE") during the period
commencing on the Effective Date and ending on the Expiration Date, payable
quarterly in arrears on the last day of each March, June, September and December
of each year, commencing on the last day of the calendar quarter in which the
Effective Date shall have occurred, and on the Expiration Date, at a rate per
annum equal to the Applicable Margin of (a) prior to the Commitment Termination
Date or such earlier date upon which all of the Commitments shall have been
voluntarily terminated by the Borrower in accordance with Section 2.6, the
Commitment Amount of such Lender (whether used or unused), and (b) thereafter,
the outstanding principal balance of all Revolving Credit Loans of such Lender.
Notwithstanding anything to the contrary contained in this Section, on and after
the Commitment Termination Date, the Facility Fee shall be payable upon demand.
In addition, upon each reduction of the Aggregate Commitment Amount, the
Borrower shall pay the Facility Fee accrued on the amount of such reduction
through the date of such reduction. The Facility Fee shall be computed on the
basis of a 360-day year for the actual number of days elapsed.
3.12 REPLACEMENT OF LENDER
If the Borrower is obligated to pay to any Lender any amount under
Section 3.6 or 3.10, the Borrower shall have the right within 90 days
thereafter, in accordance with the requirements of Section 11.7(c), if no
Default or Event of Default shall exist, to replace such Lender (the "REPLACED
LENDER") with one or more other assignees (each a "REPLACEMENT LENDER"),
PROVIDED that (i) at the time of any replacement pursuant to this Section, the
Replacement Lender shall enter into one or more Assignment and Acceptance
Agreements pursuant to Section 11.7(c) (with the Assignment Fee payable pursuant
to said Section 11.7(c) to be paid by the Replacement Lender) pursuant to which
the Replacement Lender shall acquire the Commitment and the outstanding Loans of
the Replaced Lender and, in connection therewith, shall pay the following: (a)
to the Replaced Lender, an amount equal to the sum of (A) an amount equal to the
principal of, and all accrued interest on, all outstanding Loans of the Replaced
Lender and (B) an amount equal to all accrued, but unpaid, fees owing to the
Replaced Lender and (b) to the Administrative Agent an amount equal to all
amounts owed by such Replaced Lender to the Administrative Agent under this
Agreement, including, without limitation, an amount equal to the principal of,
and all accrued interest on, all outstanding Loans of the Replaced Lender, a
corresponding amount of which was made available by the Administrative Agent to
the Borrower pursuant to Section 3.1 and which has not been repaid to the
Administrative Agent by such Replaced Lender or the Borrower, and (ii) all
obligations of the Borrower owing to the Replaced Lender (other than those
specifically described in clause (i) above in respect of which the assignment
purchase price has been, or is concurrently being, paid) shall be paid in full
to such Replaced Lender concurrently with such replacement. Upon the execution
of the respective Assignment and Acceptance Agreements and the payment of
amounts referred to in clauses (i) and (ii) of this Section 3.12, the
Replacement Lender shall become a Lender hereunder and the Replaced Lender shall
cease to constitute a Lender hereunder, except with respect to indemnification
provisions under this Agreement that are intended to survive the termination of
the Commitments.
27
4. REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent and the Lenders to enter into
this Agreement and the Lenders to make the Loans, the Borrower hereby makes the
following representations and warranties to the Administrative Agent and the
Lenders:
4.1 EXISTENCE AND POWER
Each of the Borrower and the Subsidiaries is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or formation (except, in the case of the Subsidiaries, where the
failure to be in such good standing could not reasonably be expected to have a
Material Adverse effect), has all requisite corporate power and authority to own
its Property and to carry on its business as now conducted, and is qualified to
do business as a foreign corporation and is in good standing in each
jurisdiction in which it owns or leases real Property or in which the nature of
its business requires it to be so qualified (except those jurisdictions where
the failure to be so qualified or to be in good standing could not reasonably be
expected to have a Material Adverse effect).
4.2 AUTHORITY
The Borrower has full corporate power and authority to enter into,
execute, deliver and perform the terms of the Loan Documents, all of which have
been duly authorized by all proper and necessary corporate action and are not in
contravention of any applicable law or the terms of its Certificate of
Incorporation and By-Laws. No consent or approval of, or other action by,
shareholders of the Borrower, any Governmental Authority, or any other Person
(which has not already been obtained) is required to authorize in respect of the
Borrower, or is required in connection with the execution, delivery, and
performance by the Borrower of the Loan Documents or is required as a condition
to the enforceability of the Loan Documents against the Borrower.
4.3 BINDING AGREEMENT
The Loan Documents constitute the valid and legally binding
obligations of the Borrower, enforceable in accordance with their respective
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and by equitable principles relating to the
availability of specific performance as a remedy.
4.4 LITIGATION
Except as set forth on Schedule 4.4, there are no actions, suits,
arbitration proceedings or claims (whether purportedly on behalf of the
Borrower, any Subsidiary or otherwise) pending or, to the knowledge of the
Borrower, threatened against the Borrower or any Subsidiary or any of their
respective Properties, or maintained by the Borrower or any Subsidiary, at law
or in equity, before any Governmental Authority which could reasonably be
expected to have a Material Adverse effect. There are no proceedings pending or,
to the knowledge of the Borrower, threatened against the Borrower or any
Subsidiary (a) which call into question the validity or enforceability of any
Loan Document, or otherwise seek to invalidate, any Loan Document, or (b) which
might,
28
individually or in the aggregate, materially and adversely affect any of the
transactions contemplated by any Loan Document.
4.5 NO CONFLICTING AGREEMENTS
(a) Neither the Borrower nor any Subsidiary is in default under any
agreement to which it is a party or by which it or any of its Property is bound
the effect of which could reasonably be expected to have a Material Adverse
effect. No notice to, or filing with, any Governmental Authority is required for
the due execution, delivery and performance by the Borrower of the Loan
Documents.
(b) No provision of any existing material mortgage, material
indenture, material contract or material agreement or of any existing statute,
rule, regulation, judgment, decree or order binding on the Borrower or any
Subsidiary or affecting the Property of the Borrower or any Subsidiary conflicts
with, or requires any consent which has not already been obtained under, or
would in any way prevent the execution, delivery or performance by the Borrower
of the terms of, any Loan Document. The execution, delivery or performance by
the Borrower of the terms of each Loan Document will not constitute a default
under, or result in the creation or imposition of, or obligation to create, any
Lien upon the Property of the Borrower or any Subsidiary pursuant to the terms
of any such mortgage, indenture, contract or agreement.
4.6 TAXES
The Borrower and each Subsidiary has filed or caused to be filed all
tax returns, and has paid, or has made adequate provision for the payment of,
all taxes shown to be due and payable on said returns or in any assessments made
against them, the failure of which to file or pay could reasonably be expected
to have a Material Adverse effect, and no tax Liens (other than Liens permitted
under Section 8.2) have been filed against the Borrower or any Subsidiary and no
claims are being asserted with respect to such taxes which are required by GAAP
to be reflected in the Financial Statements and are not so reflected, except for
taxes which have been assessed but which are not yet due and payable. The
charges, accruals and reserves on the books of the Borrower and each Subsidiary
with respect to all federal, state, local and other taxes are considered by the
management of the Borrower to be adequate, and the Borrower knows of no unpaid
assessment which (a) could reasonably be expected to have a Material Adverse
effect, or (b) is or might be due and payable against it or any Subsidiary or
any Property of the Borrower or any Subsidiary, except such thereof as are being
contested in good faith and by appropriate proceedings diligently conducted, and
for which adequate reserves have been set aside in accordance with GAAP or which
have been assessed but are not yet due and payable.
4.7 COMPLIANCE WITH APPLICABLE LAWS; FILINGS
Neither the Borrower nor any Subsidiary is in default with respect to
any judgment, order, writ, injunction, decree or decision of any Governmental
Authority which default could reasonably be expected to have a Material Adverse
effect. The Borrower and each Subsidiary is complying with all applicable
statutes, rules and regulations of all Governmental Authorities, a violation of
which could reasonably be expected to have a Material Adverse effect. The
Borrower and each Subsidiary has filed or caused to be filed with all
Governmental Authorities all reports,
29
applications, documents, instruments and information required to be filed
pursuant to all applicable laws, rules, regulations and requests which, if not
so filed, could reasonably be expected to have a Material Adverse effect.
4.8 GOVERNMENTAL REGULATIONS
Neither the Borrower nor any Subsidiary nor any corporation
controlling the Borrower or any Subsidiary or under common control with the
Borrower or any Subsidiary is subject to regulation under the Investment Company
Act of 1940, as amended, or is subject to any statute or regulation which
regulates the incurrence of Indebtedness.
4.9 FEDERAL RESERVE REGULATIONS; USE OF PROCEEDS
The Borrower is not engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing or
carrying any margin stock within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System, as amended. No part of the proceeds of
the Loans has been or will be used, directly or indirectly, for a purpose which
violates any law, rule or regulation of any Governmental Authority, including,
without limitation, the provisions of Regulations T, U or X of the Board of
Governors of the Federal Reserve System, as amended. Anything in this Agreement
to the contrary notwithstanding, no Lender shall be obligated to extend credit
to or on behalf of the Borrower in violation of any limitation or prohibition
provided by any applicable law, regulation or statute, including said Regulation
U. Following application of the proceeds of each Loan, not more than 25% (or
such greater or lesser percentage as is provided in the exclusions from the
definition of "Indirectly Secured" contained in said Regulation U as in effect
at the time of the making of such Loan) of the value of the assets of the
Borrower and the Subsidiaries on a Consolidated basis that are subject to
Section 8.2 will be Margin Stock.
4.10 NO MISREPRESENTATION
No representation or warranty contained in any Loan Document and no
certificate or written report furnished by the Borrower to the Administrative
Agent or any Lender contains or will contain, as of its date, a misstatement of
material fact, or omits or will omit to state, as of its date, a material fact
required to be stated in order to make the statements therein contained not
misleading in the light of the circumstances under which made.
4.11 PLANS
Each Employee Benefit Plan of the Borrower, each Subsidiary and each
ERISA Affiliate is in compliance with ERISA and the Internal Revenue Code, where
applicable, except where the failure to so comply would not be material. The
Borrower, each Subsidiary and each ERISA Affiliate have complied with the
material requirements of Section 515 of ERISA with respect to each Pension Plan
which is a Multiemployer Plan, except where the failure to so comply would not
be material. The Borrower, each Subsidiary and each ERISA Affiliate has, as of
the date hereof, made all contributions or payments to or under each such
Pension Plan required by law or the terms of such Pension Plan or any contract
or agreement. No liability to the PBGC has been, or is reasonably expected by
the Borrower, any Subsidiary or any ERISA Affiliate to be, incurred by
30
the Borrower, any Subsidiary or any ERISA Affiliate. Liability, as referred to
in this Section 4.11, includes any joint and several liability, but excludes any
liability for premiums under Section 4007 of ERISA. Each Employee Benefit Plan
which is a group health plan within the meaning of Section 5000(b)(1) of the
Internal Revenue Code is in material compliance with the continuation of health
care coverage requirements of Section 4980B of the Internal Revenue Code.
4.12 ENVIRONMENTAL MATTERS
Neither the Borrower nor any Subsidiary (a) has received written
notice or otherwise learned of any claim, demand, action, event, condition,
report or investigation indicating or concerning any potential or actual
liability which individually or in the aggregate could reasonably be expected to
have a Material Adverse effect, arising in connection with (i) any
non-compliance with or violation of the requirements of any applicable federal,
state or local environmental health or safety statute or regulation, or (ii) the
release or threatened release of any toxic or hazardous waste, substance or
constituent, or other substance into the environment, (b) to the best knowledge
of the Borrower, has any threatened or actual liability in connection with the
release or threatened release of any toxic or hazardous waste, substance or
constituent, or other substance into the environment which individually or in
the aggregate could reasonably be expected to have a Material Adverse effect,
(c) has received notice of any federal or state investigation evaluating whether
any remedial action is needed to respond to a release or threatened release of
any toxic or hazardous waste, substance or constituent or other substance into
the environment for which the Borrower or any Subsidiary is or would be liable,
which liability would reasonably be expected to have a Material Adverse effect,
or (d) has received notice that the Borrower or any Subsidiary is or may be
liable to any Person under the Comprehensive Environmental Response,
Compensation and Liability Act, as amended, 42 U.S.C. Section 9601 ET SEQ., or
any analogous state law, which liability would reasonably be expected to have a
Material Adverse effect. The Borrower and each Subsidiary is in compliance with
the financial responsibility requirements of federal and state environmental
laws to the extent applicable, including those contained in 40 C.F.R., parts 264
and 265, subpart H, and any analogous state law, except in those cases in which
the failure so to comply would not reasonably be expected to have a Material
Adverse effect.
4.13 FINANCIAL STATEMENTS
The Borrower has heretofore delivered to the Lenders through the
Administrative Agent copies of (i) the audited Consolidated Balance Sheet of the
Borrower and its Subsidiaries as of January 1, 2000, and the related
Consolidated Statement of Income and Retained Earnings, and Consolidated
Statement of Cash Flows, for the fiscal year then ended and (ii) the unaudited
Consolidated Balance Sheet of the Borrower and its Subsidiaries as of April 1,
2000 and the related Consolidated Statement of Income and Retained Earnings, and
Consolidated Statement of Cash Flows, for the fiscal quarter then ended. The
financial statements referred to in (i) and (ii) immediately above, including
all related notes and schedules are herein referred to collectively as the
"FINANCIAL STATEMENTS". The Financial Statements fairly present the Consolidated
financial condition and results of the operations of the Borrower and the
Subsidiaries as of the dates and for the periods indicated therein and, except
as noted therein, have been prepared in conformity with GAAP as then in effect.
Neither the Borrower nor any of the Subsidiaries has any obligation or liability
of any kind (whether fixed, accrued, contingent, unmatured or otherwise) which,
in
31
accordance with GAAP as then in effect, should have been disclosed in the
Financial Statements and was not. During the period from January 1, 2000 to and
including the Effective Date there has been no Material Adverse change,
including as a result of any change in law, in the consolidated financial
condition, operations, business or Property of the Borrower and the Subsidiaries
taken as a whole.
5. CONDITIONS OF LENDING - FIRST LOANS ON THE FIRST BORROWING DATE
In addition to the requirements set forth in Section 6, the obligation of
each Lender on the first Borrowing Date to make one or more Revolving Credit
Loans and any Lender to make a Competitive Bid Loan are subject to the
fulfillment of the following conditions precedent prior to or simultaneously
with the Effective Date:
5.1 EVIDENCE OF CORPORATE ACTION
The Administrative Agent shall have received a certificate, dated the
Effective Date, of the Secretary or an Assistant Secretary of the Borrower (i)
attaching a true and complete copy of the resolutions of its Board of Directors
and of all documents evidencing all other necessary corporate action (in form
and substance reasonably satisfactory to the Administrative Agent) taken by the
Borrower to authorize the Loan Documents and the transactions contemplated
thereby, (ii) attaching a true and complete copy of its Certificate of
Incorporation and By-Laws, (iii) setting forth the incumbency of the officer or
officers of the Borrower who may sign the Loan Documents and any other
certificates, requests, notices or other documents now or in the future required
thereunder, and (iv) attaching a certificate of good standing of the Secretary
of State of the State of Delaware.
5.2 NOTES
The Borrower shall have delivered to the Administrative Agent (for
delivery to the Lenders) the Notes, executed by the Borrower.
5.3 EXISTING BANK INDEBTEDNESS
All Existing Bank Indebtedness shall have been paid in full, the
commitments under the Existing Credit Agreement shall have been terminated and
the Administrative Agent shall have received satisfactory evidence of the
foregoing.
5.4 OPINION OF COUNSEL TO THE BORROWER
The Administrative Agent shall have received an opinion of Xxxxx
Xxxxxxxxx, counsel to the Borrower, dated the Effective Date, and in the form of
Exhibit D.
6. CONDITIONS OF LENDING - ALL LOANS
The obligation of each Lender on any Borrowing Date to make each Revolving
Credit Loan and any Lender to make a Competitive Bid Loan are subject to the
fulfillment of the following conditions precedent:
32
6.1 COMPLIANCE
On each Borrowing Date, and after giving effect to the Loans to be
made on such Borrowing Date, (a) there shall exist no Default or Event of
Default, and (b) the representations and warranties contained in this Agreement
shall be true and correct with the same effect as though such representations
and warranties had been made on such Borrowing Date, except those which are
expressly specified to be made as of an earlier date.
6.2 REQUESTS
The Administrative Agent shall have received a Borrowing Request from
the Borrower.
6.3 LOAN CLOSINGS
All documents required by the provisions of this Agreement to have
been executed or delivered by the Borrower to the Administrative Agent or any
Lender on or before the applicable Borrowing Date shall have been so executed or
delivered on or before such Borrowing Date.
7. AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that on and after the Effective Date and
until the later to occur of (a) the Commitment Termination Date and (b) the
payment in full of the Loans, the Fees and all other sums payable under the Loan
Documents, the Borrower will:
7.1 LEGAL EXISTENCE
Except as may otherwise be permitted by Sections 8.3 and 8.4,
maintain, and cause each Subsidiary to maintain, its corporate existence in good
standing in the jurisdiction of its incorporation or formation and in each other
jurisdiction in which the failure so to do could reasonably be expected to have
a Material Adverse effect, except that the corporate existence of Subsidiaries
operating closing or discontinued operations may be terminated.
7.2 TAXES
Pay and discharge when due, and cause each Subsidiary so to do, all
taxes, assessments, governmental charges, license fees and levies upon or with
respect to the Borrower and such Subsidiary, and upon the income, profits and
Property thereof unless, and only to the extent, that either (i)(a) such taxes,
assessments, governmental charges, license fees and levies shall be contested in
good faith and by appropriate proceedings diligently conducted by the Borrower
or such Subsidiary, and (b) such reserve or other appropriate provision as shall
be required by GAAP shall have been made therefor, or (ii) the failure to pay or
discharge such taxes, assessments, governmental charges, license fees and levies
could not reasonably be expected to have a Material Adverse effect.
33
7.3 INSURANCE
Keep, and cause each Subsidiary to keep, insurance with responsible
insurance companies in such amounts and against such risks as is usually carried
by the Borrower or such Subsidiary.
7.4 PERFORMANCE OF OBLIGATIONS
Pay and discharge promptly when due, and cause each Subsidiary so to
do, all lawful Indebtedness, obligations and claims for labor, materials and
supplies or otherwise which, if unpaid, could reasonably be expected to (a) have
a Material Adverse effect, or (b) become a Lien on the Property of the Borrower
or any Subsidiary, except those Liens permitted under Section 8.2, PROVIDED that
neither the Borrower nor such Subsidiary shall be required to pay or discharge
or cause to be paid or discharged any such Indebtedness, obligation or claim so
long as (i) the validity thereof shall be contested in good faith and by
appropriate proceedings diligently conducted by the Borrower or such Subsidiary,
and (ii) such reserve or other appropriate provision as shall be required by
GAAP shall have been made therefor.
7.5 CONDITION OF PROPERTY
Except for ordinary wear and tear, at all times, maintain, protect and
keep in good repair, working order and condition, all material Property
necessary for the operation of its business (other than Property which is
replaced with similar Property) as then being operated, and cause each
Subsidiary so to do.
7.6 OBSERVANCE OF LEGAL REQUIREMENTS
Observe and comply in all material respects, and cause each Subsidiary
so to do, with all laws, ordinances, orders, judgments, rules, regulations,
certifications, franchises, permits, licenses, directions and requirements of
all Governmental Authorities, which now or at any time hereafter may be
applicable to it or to such Subsidiary, a violation of which could reasonably be
expected to have a Material Adverse effect.
7.7 FINANCIAL STATEMENTS AND OTHER INFORMATION
Maintain, and cause each Subsidiary to maintain, a standard system of
accounting in accordance with GAAP, and furnish to each Lender:
(a) As soon as available and, in any event, within 120 days after the
close of each fiscal year, a copy of (x) the Borrower's 10-K in respect of such
fiscal year, and (y) (i) the Borrower's Consolidated Balance Sheet as of the end
of such fiscal year, and (ii) the related Consolidated Statements of Earnings,
Shareholders' Equity and Cash Flows, as of and through the end of such fiscal
year, setting forth in each case in comparative form the corresponding figures
in respect of the previous fiscal year, all in reasonable detail, and
accompanied by a report of the Borrower's auditors, which report shall state
that (A) such auditors audited such financial statements, (B) such audit was
made in accordance with generally accepted auditing standards in
34
effect at the time and provides a reasonable basis for such opinion, and (C)
said financial statements have been prepared in accordance with GAAP;
(b) As soon as available, and in any event within 60 days after the
end of each of the first three fiscal quarters of each fiscal year, a copy of
(x) the Borrower's 10-Q in respect of such fiscal quarter, and (y) (i) the
Borrower's Consolidated Balance Sheet as of the end of such quarter and (ii) the
related Consolidated Statements of Earnings, Shareholders' Equity and Cash Flows
for (A) such quarter and (B) the period from the beginning of the then current
fiscal year to the end of such quarter, in each case in comparable form with the
prior fiscal year, all in reasonable detail and prepared in accordance with GAAP
(without footnotes and subject to year-end adjustments);
(c) Simultaneously with the delivery of the financial statements
required by clauses (a) and (b) above, a certificate of the chief financial
officer or treasurer of the Borrower certifying that no Default or Event of
Default shall have occurred or be continuing or, if so, specifying in such
certificate all such Defaults and Events of Default, and setting forth
computations in reasonable detail demonstrating compliance with Sections 8.1 and
8.10.
(d) Prompt notice upon the Borrower becoming aware of any change in a
Pricing Level;
(e) Promptly upon becoming available, copies of all regular or
periodic reports (including current reports on Form 8-K) which the Borrower or
any Subsidiary may now or hereafter be required to file with or deliver to the
Securities and Exchange Commission, or any other Governmental Authority
succeeding to the functions thereof, and copies of all material news releases
sent to all stockholders;
(f) Prompt written notice of: (i) any citation, summons, subpoena,
order to show cause or other order naming the Borrower or any Subsidiary a party
to any proceeding before any Governmental Authority which could reasonably be
expected to have a Material Adverse effect, and include with such notice a copy
of such citation, summons, subpoena, order to show cause or other order, (ii)
any lapse or other termination of any license, permit, franchise or other
authorization issued to the Borrower or any Subsidiary by any Governmental
Authority, (iii) any refusal by any Governmental Authority to renew or extend
any license, permit, franchise or other authorization, and (iv) any dispute
between the Borrower or any Subsidiary and any Governmental Authority, which
lapse, termination, refusal or dispute, referred to in clause (ii), (iii) or
(iv) above, could reasonably be expected to have a Material Adverse effect;
(g) Prompt written notice of the occurrence of (i) each Default (ii)
each Event of Default and (iii) each Material Adverse change;
(h) Promptly upon receipt thereof, copies of any audit reports and
management letters delivered in connection with the statements referred to in
Section 7.7(a); and
(i) From time to time, such other information regarding the financial
position or business of the Borrower and the Subsidiaries as the Administrative
Agent, at the request of any Lender, may reasonably request.
35
7.8 RECORDS
Upon reasonable notice and during normal business hours, permit
representatives of the Administrative Agent and each Lender to visit the offices
of the Borrower and each Subsidiary, to examine the books and records (other
than tax returns and work papers related to tax returns) thereof and auditors'
reports relating thereto, to discuss the affairs of the Borrower and each
Subsidiary with the respective officers thereof, and to meet and discuss the
affairs of the Borrower and each Subsidiary with the Borrower's auditors.
7.9 AUTHORIZATIONS
Maintain and cause each Subsidiary to maintain, in full force and
effect, all copyrights, patents, trademarks, trade names, franchises, licenses,
permits, applications, reports, and other authorizations and rights, which, if
not so maintained, would individually or in the aggregate have a Material
Adverse effect.
8. NEGATIVE COVENANTS
The Borrower covenants and agrees that on and after the Effective Date and
until the later to occur of (a) the Commitment Termination Date and (b) the
payment in full of the Loans, the Fees and all other sums which are payable
under the Loan Documents, the Borrower will not:
8.1 SUBSIDIARY INDEBTEDNESS
Permit the Indebtedness of all Subsidiaries (excluding the ESOP
Guaranty) to exceed (on a combined basis) 10% of Tangible Net Worth.
8.2 LIENS
Create, incur, assume or suffer to exist any Lien against or on any
Property now owned or hereafter acquired by the Borrower or any of the
Subsidiaries, or permit any of the Subsidiaries so to do, except any one or more
of the following types of Liens: (a) Liens in connection with workers'
compensation, unemployment insurance or other social security obligations (which
phrase shall not be construed to refer to ERISA or the minimum funding
obligations under Section 412 of the Code), (b) Liens to secure the performance
of bids, tenders, letters of credit, contracts (other than contracts for the
payment of Indebtedness), leases, statutory obligations, surety, customs,
appeal, performance and payment bonds and other obligations of like nature, in
each such case arising in the ordinary course of business, (c) mechanics',
workmen's, carriers', warehousemen's, materialmen's, landlords' or other like
Liens arising in the ordinary course of business with respect to obligations
which are not due or which are being contested in good faith and by appropriate
proceedings diligently conducted, (d) Liens for taxes, assessments, fees or
governmental charges the payment of which is not required by Section 7.2, (e)
easements, rights of way, restrictions, leases of Property to others, easements
for installations of public utilities, title imperfections and restrictions,
zoning ordinances and other similar encumbrances affecting Property which in the
aggregate do not materially impair its use for the operation of the business of
the Borrower or such Subsidiary, (f) Liens on Property as set forth on Schedule
8.2 and any renewals thereof, PROVIDED that any such renewals attach only to
such Property, (g) Liens on
36
Property of the Subsidiaries under capital leases and Liens on Property of the
Subsidiaries acquired (whether as a result of purchase, capital lease, merger or
other acquisition) and either existing on such Property when acquired, or
created contemporaneously with or within 12 months of such acquisition to secure
the payment or financing of the purchase price of such Property (including the
construction, development, substantial repair, alteration or improvement
thereof), and any renewals thereof, PROVIDED that such Liens attach only to the
Property so purchased or acquired (including any such construction, development,
substantial repair, alteration or improvement thereof) and PROVIDED FURTHER that
the Indebtedness secured by such Liens is permitted by Section 8.1, (h)
statutory Liens in favor of lessors arising in connection with Property leased
to the Borrower or any of the Subsidiaries, (i) Liens of attachments, judgments
or awards against the Borrower or any of the Subsidiaries with respect to which
an appeal or proceeding for review shall be pending or a stay of execution or
bond shall have been obtained, or which are otherwise being contested in good
faith and by appropriate proceedings diligently conducted, and in respect of
which adequate reserves shall have been established in accordance with GAAP on
the books of the Borrower or such Subsidiary, (j) Liens securing Indebtedness of
a Subsidiary to the Borrower or another Subsidiary, (k) Liens (other than Liens
permitted by any of the foregoing clauses) arising in the ordinary course of its
business which do not secure Indebtedness and do not, in the aggregate,
materially detract from the value of the business of the Borrower and its
Subsidiaries, taken as a whole, and (l) additional Liens securing Indebtedness
of the Borrower and the Subsidiaries in an aggregate outstanding Consolidated
principal amount not exceeding 10% of Tangible Net Worth.
8.3 DISPOSITIONS
Make any Disposition, or permit any of its Subsidiaries so to do, of
all or substantially all of the assets of the Borrower and the Subsidiaries on a
Consolidated basis.
8.4 MERGER OR CONSOLIDATION, ETC.
The Borrower will not consolidate with, be acquired by, or merge into
or with any Person unless (x) immediately after giving effect thereto no Default
or Event of Default shall or would exist and (y) either (i) the Borrower or (ii)
a corporation organized and existing under the laws of one of the States of the
United States of America shall be the survivor of such consolidation or merger,
provided that if the Borrower is not the survivor, the corporation which is the
survivor shall expressly assume, pursuant to an instrument executed and
delivered to the Administrative Agent, and in form and substance satisfactory to
the Administrative Agent, all obligations of the Borrower under the Loan
Documents and the Administrative Agent shall have received such documents,
opinions and certificates as it shall have reasonable requested in connection
therewith.
8.5 ACQUISITIONS
Make any Acquisition, or permit any of the Subsidiaries so to do,
except any one or more of the following: (a) Intercompany Dispositions permitted
by Section 8.3 and (b) Acquisitions by the Borrower or any of the Subsidiaries,
PROVIDED that immediately before and after giving effect to each such
Acquisition no Default or Event of Default shall or would exist.
37
8.6 RESTRICTED PAYMENTS
Make any Restricted Payment or permit any of the Subsidiaries so to
do, except any one or more of the following Restricted Payments: (a) any direct
or indirect Subsidiary may make dividends or other distributions to the Borrower
or to any other direct or indirect Subsidiary, and (b) the Borrower may make
Restricted Payments PROVIDED that, in the case of this clause (b), immediately
before and after giving effect thereto, no Event of Default shall or would
exist. Nothing in this Section 8.6 shall prohibit or restrict the declaration or
payment of dividends in respect of the Series One ESOP Convertible Preferred
Stock of the Borrower.
8.7 LIMITATION ON UPSTREAM DIVIDENDS BY SUBSIDIARIES
Permit or cause any of the Subsidiaries to enter into or agree, or
otherwise be or become subject, to any agreement, contract or other arrangement
(other than this Agreement) with any Person (each a "RESTRICTIVE AGREEMENT")
pursuant to the terms of which (a) such Subsidiary is or would be prohibited
from declaring or paying any cash dividends on any class of its stock owned
directly or indirectly by the Borrower or any of the other Subsidiaries or from
making any other distribution on account of any class of any such stock (herein
referred to as "UPSTREAM DIVIDENDS"), or (b) the declaration or payment of
Upstream Dividends by a Subsidiary to the Borrower or another Subsidiary, on an
annual or cumulative basis, is or would be otherwise limited or restricted
("DIVIDEND RESTRICTIONS"). Notwithstanding the foregoing, nothing in this
Section 8.7 shall prohibit:
(i) Dividend Restrictions set forth in any Restrictive Agreement in
effect on the date hereof and any extensions, refinancings, renewals or
replacements thereof; PROVIDED that the Dividend Restrictions in any such
extensions, refinancings, renewals or replacements are no less favorable in any
material respect to the Lenders than those Dividend Restrictions that are then
in effect and that are being extended, refinanced, renewed or replaced;
(ii) Dividend Restrictions existing with respect to any Person
acquired by the Borrower or any Subsidiary and existing at the time of such
acquisition, which Dividend Restrictions are not applicable to any Person or the
property or assets of any Person other than such Person or its property or
assets acquired, and any extensions, refinancings, renewals or replacements of
any of the foregoing; PROVIDED that the Dividend Restrictions in any such
extensions, refinancings, renewals or replacements are no less favorable in any
material respect to the Lenders than those Dividend Restrictions that are then
in effect and that are being extended, refinanced, renewed or replaced; or
(iii) Dividend Restrictions consisting of customary net worth,
leverage and other financial covenants, customary covenants regarding the merger
of or sale of assets of a Subsidiary, customary restrictions on transactions
with affiliates, and customary subordination provisions governing Indebtedness
owed to the Borrower or any Subsidiary contained in, or required by, any
agreement governing Indebtedness owed to the Borrower or any Subsidiary
contained in, or required by, any agreement governing Indebtedness incurred by a
Subsidiary in accordance with Section 8.1.
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8.8 LIMITATION ON NEGATIVE PLEDGES
Enter into any agreement, other than (i) this Agreement and (ii)
purchase money mortgages or capital leases permitted by this Agreement (in which
cases, any prohibition or limitation shall only be effective against the assets
financed thereby), or permit any Subsidiary so to do, which prohibits or limits
the ability of the Borrower or such Subsidiary to create, incur, assume or
suffer to exist any Lien upon any of its Property or revenues, whether now owned
or hereafter acquired.
8.9 [INTENTIONALLY OMITTED]
8.10 RATIO OF CONSOLIDATED INDEBTEDNESS TO TOTAL CAPITALIZATION
Permit its ratio of Consolidated Indebtedness to Total Capitalization
at the end of any fiscal quarter to exceed 0.6:1.0.
9. DEFAULT
9.1 EVENTS OF DEFAULT
The following shall each constitute an "EVENT OF DEFAULT" hereunder:
(a) The failure of the Borrower to make any payment of principal on
any Loan when due and payable; or
(b) The failure of the Borrower to make any payment of interest on
any Loan or of any Fee on any date when due and payable and such default shall
continue unremedied for a period of 5 Domestic Business Days after the same
shall be due and payable; or
(c) The failure of the Borrower to observe or perform any covenant or
agreement contained in Sections 2.5 and 7.1 or in Section 8; or
(d) The failure of the Borrower to observe or perform any other
covenant or agreement contained in this Agreement, and such failure shall have
continued unremedied for a period of 30 days after the Borrower shall have
become aware of such failure; or
(e) [INTENTIONALLY OMITTED]
(f) Any representation or warranty of the Borrower (or of any of its
officers on its behalf) made in any Loan Document, or made in any certificate,
report, opinion (other than an opinion of counsel) or other document delivered
on or after the date hereof shall in any such case prove to have been incorrect
or misleading (whether because of misstatement or omission) in any material
respect when made; or
(g) (i) Obligations in an aggregate Consolidated amount in excess of
$25,000,000 of the Borrower (other than its obligations hereunder and under the
Notes) and the Subsidiaries, whether as principal, guarantor, surety or other
obligor, for the payment of any Indebtedness or any net liability under interest
rate swap, collar, exchange or cap agreements, (A)
39
shall become or shall be declared to be due and payable prior to the expressed
maturity thereof, or (B) shall not be paid when due or within any grace period
for the payment thereof, or (ii) any holder of any such obligations shall have
the right to declare the Indebtedness evidenced thereby due and payable prior to
its stated maturity; or
(h) The Borrower or any Subsidiary shall (i) suspend or discontinue
its business (except for store closings in the ordinary course of business and
except in connection with a permitted Disposition under Section 8.3 and as may
otherwise be expressly permitted herein), or (ii) make an assignment for the
benefit of creditors, or (iii) generally not be paying its debts as such debts
become due, or (iv) admit in writing its inability to pay its debts as they
become due, or (v) file a voluntary petition in bankruptcy, or (vi) become
insolvent (however such insolvency shall be evidenced), or (vii) file any
petition or answer seeking for itself any reorganization, arrangement,
composition, readjustment of debt, liquidation or dissolution or similar relief
under any present or future statute, law or regulation of any jurisdiction
(including under any law applicable to insurance companies), or (viii) petition
or apply to any tribunal, or any other Governmental Authority, for any receiver,
custodian or any trustee for any substantial part of its Property, or (ix) be
the subject of any proceeding specified in clause (vii) or (viii) filed against
it which remains undismissed for a period of 60 consecutive days, or (x) file
any answer admitting or not contesting the material allegations of any such
petition filed against it, or of any order, judgment or decree approving such
petition in any such proceeding, or (xi) seek, approve, consent to, or acquiesce
in any such proceeding, or in the appointment of any trustee, receiver,
custodian, liquidator, or fiscal agent for it, or any substantial part of its
Property, or an order is entered appointing any such trustee, receiver,
custodian, liquidator or fiscal agent and such order remains unstayed and in
effect for 60 consecutive days, or (xii) take any formal action for the purpose
of effecting any of the foregoing (except as may otherwise be expressly
permitted herein); or
(i) An order for relief is entered under the United States bankruptcy
laws or any other decree or order is entered by a court or other Governmental
Authority having jurisdiction and continues unstayed and in effect for a period
of 60 consecutive days (i) adjudging the Borrower or any Subsidiary bankrupt or
insolvent, or (ii) approving as properly filed a petition seeking
reorganization, liquidation, arrangement, adjustment or composition of, or in
respect of the Borrower or any Subsidiary under the United States bankruptcy
laws or any other applicable Federal or state law, or (iii) appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator (or other
similar official) of the Borrower or any Subsidiary or of substantially all of
the Property of any thereof, or (iv) ordering the winding up or liquidation of
the affairs of the Borrower or any Subsidiary; or
(j) Judgments or decrees in an aggregate Consolidated amount in
excess of $25,000,000 against the Borrower and the Subsidiaries shall remain
unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period
of 60 days; or
(k) After the Effective Date a Change of Control shall occur; or
(l) (i) Any Termination Event shall occur (x) with respect to any
Pension Plan (other than a Multiemployer Plan) or (y) with respect to any other
retirement plan subject to Section 302 of ERISA or Section 412 of the Internal
Revenue Code, which plan, during the five year period prior to such Termination
Event, was the responsibility in whole or in part of the Borrower, any
40
Subsidiary or any ERISA Affiliate, PROVIDED that this clause (y) shall only
apply if, in connection with such Termination Event, it is reasonably likely
that liability under Section 4069 of ERISA in an aggregate Consolidated amount
in excess of $25,000,000 will be imposed upon the Borrower, any Subsidiary or
any ERISA Affiliate; (ii) any Accumulated Funding Deficiency, whether or not
waived, in an aggregate Consolidated amount in excess of $25,000,000 shall exist
with respect to any Pension Plan with respect to any Pension Plan (other than a
Multiemployer Plan); (iii) any Person shall engage in any Prohibited Transaction
involving any Employee Benefit Plan; (iv) the Borrower, any Subsidiary or any
ERISA Affiliate shall fail to pay when due an amount which is payable by it to
the PBGC or to a Pension Plan (including a Multiemployer Plan) under Title IV of
ERISA; (v) the imposition of any tax under Section 4980(B)(a) of the Internal
Revenue Code; or (vi) the assessment of a civil penalty with respect to any
Employee Benefit Plan under Section 502(c) of ERISA; in each case, to the extent
such event or condition would have a Material Adverse effect.
9.2 REMEDIES
(a) Upon the occurrence of an Event of Default or at any time
thereafter during the continuance of an Event of Default, the Administrative
Agent, at the written request of the Required Lenders, shall notify the Borrower
that the Commitments have been terminated and/or that all of the Loans and the
Notes and all accrued and unpaid interest on any thereof and all other amounts
owing under the Loan Documents have been declared immediately due and payable,
PROVIDED that upon the occurrence of an Event of Default under Section 9.1(h) or
(i) with respect to the Borrower, the Commitments shall automatically terminate
and all of the Loans and the Notes and all accrued and unpaid interest on any
thereof and all other amounts owing under the Loan Documents shall become
immediately due and payable without declaration or notice to the Borrower. To
the fullest extent not prohibited by law, except for the notice provided for in
the preceding sentence, the Borrower expressly waives any presentment, demand,
protest, notice of protest or other notice of any kind in connection with the
Loan Documents and its obligations thereunder. To the fullest extent not
prohibited by law, the Borrower further expressly waives and covenants not to
assert any appraisement, valuation, stay, extension, redemption or similar law,
now or at any time hereafter in force which might delay, prevent or otherwise
impede the performance or enforcement of the Loan Documents.
(b) In the event that the Commitments shall have been terminated
or all of the Loans and the Notes shall have been declared due and payable
pursuant to the provisions of this Section, the Administrative Agent and the
Lenders agree, among themselves, that any funds received from or on behalf of
the Borrower under any Loan Document by any Lender (except funds received by any
Lender as a result of a purchase pursuant to the provisions of Section 11.9)
shall be remitted to the Administrative Agent, and shall be applied by the
Administrative Agent in payment of the Loans, and the other obligations of the
Borrower under the Loan Documents in the following manner and order: (1) first,
to reimburse the Administrative Agent and the Lenders, in that order, for any
expenses due from the Borrower pursuant to the provisions of Section 11.5, (2)
second, to the payment of the Fees, (3) third, to the payment of any expenses or
amounts (other than the principal of and interest on the Loans and the Notes)
payable by the Borrower to the Administrative Agent or any of the Lenders under
the Loan Documents, (4) fourth, to the payment, pro rata according to the
outstanding principal balance of the Loans, of interest due on the Loans, (5)
fifth,
41
to the payment, pro rata according to the outstanding principal balance of the
Loans, of the aggregate outstanding principal balance of the Loans, and (6)
sixth, any remaining funds shall be paid to whosoever shall be entitled thereto
or as a court of competent jurisdiction shall direct.
(c) In the event that the Loans and the Notes shall have been
declared due and payable pursuant to the provisions of this Section 9.2, the
Administrative Agent upon the written request of the Required Lenders, shall
proceed to enforce the rights of the holders of the Notes by suit in equity,
action at law and/or other appropriate proceedings, whether for payment or the
specific performance of any covenant or agreement contained in the Loan
Documents. In the event that the Administrative Agent shall fail or refuse so to
proceed, each Lender shall be entitled to take such action as the Required
Lenders shall deem appropriate to enforce its rights under the Loan Documents.
10. AGENT
10.1 APPOINTMENT
Each Lender hereby irrevocably designates and appoints BNY as the
Administrative Agent of such Lender under the Loan Documents and each Lender
irrevocably authorizes the Administrative Agent to take such action on its
behalf under the provisions of the Loan Documents and to exercise such powers
and perform such duties as are expressly delegated to the Administrative Agent
by the terms of the Loan Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained in the Loan Documents, the Administrative Agent shall not have any
duties or responsibilities except those expressly set forth in the Loan
Documents, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into the Loan Documents or otherwise exist against the Administrative
Agent.
10.2 DELEGATION OF DUTIES
The Administrative Agent may execute any of its duties under the Loan
Documents by or through agents or attorneys-in-fact and shall be entitled to
rely upon the advice of counsel concerning all matters pertaining to such
duties, and shall not be liable for any action taken or omitted to be taken in
good faith upon the advice of such counsel.
10.3 EXCULPATORY PROVISIONS
None of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates shall be (i) liable for any
action lawfully taken or omitted to be taken by the Administrative Agent or such
Person under or in connection with the Loan Documents (except the Administrative
Agent for its own gross negligence or willful misconduct), or (ii) responsible
in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by any party contained in the Loan Documents
or in any certificate, report, statement or other document referred to or
provided for in, or received by the Administrative Agent under or in connection
with, the Loan Documents or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of any of the Loan Documents or for any failure of
the Borrower or any other Person to perform its obligations thereunder. The
Administrative Agent
42
shall not be under any obligation to any Lender to ascertain or to inquire into
the observance or performance of any of the covenants or agreements contained
in, or conditions of, the Loan Documents, or to inspect the Property, books or
records of the Borrower or any Subsidiary. The Administrative Agent shall not be
under any liability or responsibility to the Borrower or any other Person as a
consequence of any failure or delay in performance, or any breach, by any Lender
of any of its obligations under any of the Loan Documents. The Lenders
acknowledge that the Administrative Agent shall not be under any duty to take
any discretionary action permitted under the Loan Documents unless the
Administrative Agent shall be requested in writing to do so by the Required
Lenders.
10.4 RELIANCE BY ADMINISTRATIVE AGENT
The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice, request, consent,
certificate, affidavit, opinion, letter, cablegram, telegram, fax, telex or
teletype message, statement, order or other document or conversation reasonably
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including counsel to the Borrower), independent accountants and other experts
selected by the Administrative Agent. The Administrative Agent may treat each
Lender, or the Person designated in the last notice filed under Section 11.7, as
the holder of all of the interests of such Lender in its Loans and Notes until
written notice of transfer, signed by such Lender (or the Person designated in
the last notice filed with the Administrative Agent) and by the Person
designated in such written notice of transfer, in form and substance
satisfactory to the Administrative Agent, shall have been filed with the
Administrative Agent and all requirements of Section 11.7 have been satisfied.
The Administrative Agent shall not be under any duty to examine or pass upon the
validity, effectiveness or genuineness of the Loan Documents or any instrument,
document or communication furnished pursuant thereto or in connection therewith,
and the Administrative Agent shall be entitled to assume that the same are
valid, effective and genuine, have been signed or sent by the proper parties and
are what they purport to be. The Administrative Agent shall be fully justified
in failing or refusing to take any action not expressly required under the Loan
Documents unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate. The Administrative Agent shall in all
cases be fully protected in acting, or in refraining from acting, under the Loan
Documents in accordance with a request of the Required Lenders or, if required
by Section 11.1, all Lenders, and such request and any action taken or failure
to act pursuant thereto shall be binding upon the Borrower, all the Lenders and
all future holders of the Notes.
10.5 NOTICE OF DEFAULT
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default unless the
Administrative Agent shall have received written notice thereof from a Lender or
the Borrower referring to this Agreement, describing such Default or Event of
Default and stating such notice is a "Notice of Default." In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall
promptly give notice thereof to the Lenders. The Administrative Agent shall take
such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders, PROVIDED that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action or give such
directions, or refrain from
43
taking such action or giving such directions, with respect to such Default or
Event of Default as it shall deem to be in the best interests of the Lenders.
10.6 NON-RELIANCE
Each Lender expressly acknowledges that neither the Administrative
Agent nor any of its officers, directors, employees, agents, attorneys-in-fact
or Affiliates has made any representations or warranties to such Lender and that
no act by the Administrative Agent hereafter, including any review of the
affairs of the Borrower or the Subsidiaries, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Lender. Each
Lender represents to the Administrative Agent that such Lender has,
independently and without reliance upon the Administrative Agent or any other
Lender, and based on such documents and information as it has deemed
appropriate, made its own evaluation of and investigation into the business,
operations, Property, financial and other condition and creditworthiness of the
Borrower and the Subsidiaries and has made its own decision to enter into this
Agreement. Each Lender also represents that it will, independently and without
reliance upon the Administrative Agent 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 analysis, evaluations and decisions in taking or not taking
action under the Loan Documents, and to make such investigation as it deems
necessary to inform itself as to the business, operations, Property, financial
and other condition and creditworthiness of the Borrower and the Subsidiaries.
Each Lender acknowledges that a copy of this Agreement and all exhibits and
schedules hereto have been made available to it and its individual counsel for
review, and each Lender acknowledges that it is satisfied with the form and
substance thereof. Except for notices, reports and other documents expressly
required to be furnished to the Lenders by the Administrative Agent hereunder,
the Administrative Agent shall have no duty or responsibility to provide any
Lender with any credit or other information concerning the business, operations,
Property, financial and other condition or creditworthiness of the Borrower or
the Subsidiaries which may come into the possession of the Administrative Agent
or any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
10.7 INDEMNIFICATION
Each Lender agrees to indemnify the Administrative Agent in its
capacity as such (to the extent not promptly reimbursed by the Borrower and
without limiting the obligation of the Borrower to do so), pro rata according to
(i) at any time when no Loans are outstanding, its Commitment Percentage, or if
no Commitments then exist, its Commitment Percentage on the last day on which
Commitments did exist, and (ii) at any time when Loans are outstanding (x) if
the Commitments then exist, its Commitment Percentage or (y) if the Commitments
have been terminated or otherwise no longer exist, the percentage equal to the
fraction (A) the numerator of which is such Lender's share of the Aggregate
Credit Exposure and (B) the denominator of which is the Aggregate Credit
Exposure, from and against any and all liabilities, obligations, claims, losses,
damages, penalties, actions, judgments, suits, costs, expenses and disbursements
of any kind whatsoever, including any amounts paid to the Lenders by or for the
account of the Borrower pursuant to the terms of the Loan Documents that are
subsequently rescinded or avoided (or must otherwise be restored or returned),
which may at any time (including at any time following the payment of the Loans
and the Notes) 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
44
document contemplated by or referred to therein or the transactions contemplated
thereby or any action taken or omitted to be taken by the Administrative Agent
under or in connection therewith; PROVIDED that no Lender shall be liable for
the payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements to the
extent resulting from the gross negligence or willful misconduct of the
Administrative Agent. The agreements in this Section shall survive the payment
of the Loans and the Notes and all other amounts payable under the Loan
Documents. If the Administrative Agent is subsequently reimbursed by the
Borrower for such amounts, the Administrative Agent shall remit to the Lenders
their pro rata shares of such reimbursement to the extent they previously paid
such amounts.
10.8 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY
BNY and each Affiliate thereof, may make loans to, accept deposits
from, issue letters of credit for the account of and generally engage in any
kind of business with the Borrower and the Subsidiaries as though it were not
the Administrative Agent. With respect to the Commitment made or renewed by BNY
and each Note issued to BNY, BNY shall have the same rights and powers under the
Loan Documents as any Lender and may exercise the same as though it were not the
Administrative Agent, and the term "Lender" shall include BNY.
10.9 SUCCESSOR ADMINISTRATIVE AGENT
If at any time the Administrative Agent deems it advisable, in its
sole discretion, it may submit to each Lender a written notification of its
resignation as Administrative Agent under the Loan Documents, such resignation
to be effective on the earlier to occur of (a) the thirtieth day after the date
of such notice, and (b) the date upon which any successor to the Administrative
Agent, in accordance with the provisions of this Section, shall have accepted in
writing its appointment as successor Administrative Agent. Upon any such
resignation, the Required Lenders shall have the right to appoint from among the
Lenders a successor Administrative Agent, which successor Administrative Agent,
provided that no Default or Event of Default shall then exist, shall be
reasonably satisfactory to the Borrower. If no such successor Administrative
Agent shall have been so appointed by the Required Lenders and accepted such
appointment within 30 days after the retiring Administrative Agent's giving of
notice of resignation, then the retiring Administrative Agent may, on behalf of
the Lenders, appoint a successor Administrative Agent, which successor
Administrative Agent shall be a commercial bank organized and licensed under the
laws of the United States of America or of any State thereof and having a
combined capital and surplus of at least $500,000,000. Upon the written
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall automatically
become a party to this Agreement and shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent's rights, powers,
privileges and duties as Administrative Agent under the Loan Documents shall be
terminated. The Borrower and the Lenders shall execute such documents as shall
be necessary to effect such appointment. After any retiring Administrative
Agent's resignation as Administrative Agent, the provisions of this Section 10
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was the Administrative Agent. If at any time there shall not be a duly
appointed and acting Administrative Agent, upon notice duly given, the Borrower
agrees to make each payment when due under the Loan Documents directly to the
Lenders entitled thereto during such time.
45
10.10 DOCUMENTATION AGENT AND SYNDICATION AGENT
The Documentation Agent and Syndication Agent shall have no duties or
obligations under the Loan Documents in their capacity as Documentation Agent
and Syndication Agent respectively.
11. OTHER PROVISIONS
11.1 AMENDMENTS, WAIVERS, ETC.
With the written consent of the Required Lenders, the
Administrative Agent and the Borrower may, from time to time, enter into written
amendments, supplements or modifications of the Loan Documents and, with the
written consent of the Required Lenders, the Administrative Agent on behalf of
the Lenders may execute and deliver to any such parties a written instrument
waiving or consenting to the departure from, on such terms and conditions as the
Administrative Agent may specify in such instrument, any of the requirements of
the Loan Documents or any Default or Event of Default and its consequences,
PROVIDED that no such amendment, supplement, modification, waiver or consent
shall, without the consent of all of the Lenders (i) increase the Commitment
Amount of any Lender (PROVIDED that no waiver of a Default or Event of Default
shall be deemed to constitute such an increase), (ii) extend the Commitment
Period, (iii) reduce the amount, or extend the time of payment, of the Fees,
(iv) reduce the rate, or extend the time of payment of, interest on any
Revolving Credit Loan or any Revolving Credit Note (other than the applicability
of any post-default increase in such rate of interest), (v) reduce the amount,
or extend the time of payment of any payment of any principal on any Revolving
Credit Loan or any Revolving Credit Note, (vi) decrease or forgive the principal
amount of any Revolving Credit Loan or any Revolving Credit Note, (vii) consent
to any assignment or delegation by the Borrower of any of its rights or
obligations under any Loan Document, (viii) change the provisions of this
Section 11.1, (ix) change the definition of Required Lenders, (x) change the
several nature of the obligations of the Lenders, or (xi) change the sharing
provisions among Lenders. Notwithstanding the foregoing, no such amendment,
supplement, modification, waiver or consent shall (A) amend, modify or waive any
provision of Section 10 or otherwise change any of the rights or obligations of
the Administrative Agent under any Loan Document without the written consent of
the Administrative Agent or (B) change the amount or the time of payment of any
Competitive Bid Loan or interest thereon without the written consent of the
Lender holding such Competitive Bid Loan. Any such amendment, supplement,
modification, waiver or consent shall apply equally to each of the Lenders and
shall be binding upon the parties to the applicable Loan Document, the Lenders,
the Administrative Agent and all future holders of the Notes. In the case of any
waiver, the Borrower, the Lenders and the Administrative Agent shall be restored
to their former position and rights under the Loan Documents, but any Default or
Event of Default waived shall not extend to any subsequent or other Default or
Event of Default, or impair any right consequent thereon.
11.2 NOTICES
Except as otherwise expressly provided herein, all notices,
requests and demands to or upon the respective parties hereto to be effective
shall be in writing and, if in writing, shall be deemed to have been duly given
or made (a) when delivered by hand, (b) one Domestic Business Day after having
been sent by overnight courier service at the cost of the sender, (c) five
Domestic
46
Business Days after having been deposited in the mail, first-class postage
prepaid, or (d) in the case of fax notice, when sent, addressed as follows in
the case of the Borrower and the Administrative Agent, and as set forth in
Exhibit A in the case of each of the Lenders, or to such other addresses as to
which the Administrative Agent may be hereafter notified by the respective
parties hereto or any future holders of the Notes:
THE BORROWER:
CVS Corporation
0 XXX Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Xxxxxx X. Xxxxx,
Senior Vice President and Treasurer
Facsimile: (000) 000-0000
Telephone: (000) 000-0000 (Ext. 3508)
with a copy, in the case of a notice of Default
or Event of Default, to:
CVS Corporation
0 XXX Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Legal Department
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
THE ADMINISTRATIVE AGENT:
in the case of each Borrowing Request, each notice of
prepayment under Section 2.7, each Competitive Bid Request,
each Competitive Bid, and each Competitive Bid Accept/Reject
Letter:
The Bank of New York
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxxx,
Agency Function Administration
Facsimile: (000) 000-0000,6366 or 6367
Telephone: (000) 000-0000,
in all other cases:
The Bank of New York
47
Retailing Industry Division
0xx Xxxxx
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx,
Vice President
Facsimile: (000) 000-0000
Telephone: (000) 000-0000,
except that any notice, request or demand by the Borrower to or upon the
Administrative Agent or the Lenders pursuant to Sections 2.3, 2.4, 2.6, 2.7 or
3.3 shall not be effective until received. Any party to a Loan Document may rely
on signatures of the parties thereto which are transmitted by fax or other
electronic means as fully as if originally signed.
11.3 NO WAIVER; CUMULATIVE REMEDIES
No failure to exercise and no delay in exercising, on the part
of the Administrative Agent or any Lender, any right, remedy, power or privilege
under any Loan Document shall operate as a waiver thereof, nor shall any single
or partial exercise of any right, remedy, power or privilege under any Loan
Document preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges under the Loan Documents are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
11.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES
All representations and warranties made in the Loan Documents
and in any document, certificate or statement delivered pursuant thereto or in
connection therewith shall survive the execution and delivery of the Loan
Documents.
11.5 PAYMENT OF EXPENSES AND TAXES; INDEMNIFIED LIABILITIES
The Borrower agrees, promptly upon presentation of a statement
or invoice therefor setting forth in reasonable detail the items thereof, and
whether any Loan is made, (a) to pay or reimburse the Administrative Agent and
its Affiliates for all its reasonable costs and expenses actually incurred in
connection with the development, syndication, preparation and execution of, and
any amendment, waiver, consent, supplement or modification to, the Loan
Documents, any documents prepared in connection therewith and the consummation
of the transactions contemplated thereby, whether such Loan Documents or any
such amendment, waiver, consent, supplement or modification to the Loan
Documents or any documents prepared in connection therewith are executed and
whether the transactions contemplated thereby are consummated, including the
reasonable fees and disbursements of Special Counsel, (b) to pay, indemnify, and
hold the Administrative Agent and the Lenders harmless from any and all
recording and filing fees and any and all liabilities and penalties with respect
to, or resulting from any delay (other than penalties to the extent attributable
to the negligence of the Administrative Agent or the Lenders, as the case may
be, in failing to pay such fees or other liabilities when due) in paying, stamp,
excise and other
48
similar taxes, if any, which may be payable or determined to be payable in
connection with the execution and delivery of, or consummation of any of the
transactions contemplated by, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, the Loan Documents and any such
other documents, and (c) to pay, reimburse, indemnify and hold each Indemnified
Person harmless from and against any and all other liabilities, obligations,
claims, losses, damages, penalties, actions, judgments, suits, costs, expenses
and disbursements of any kind or nature whatsoever (including reasonable counsel
fees and disbursements of counsel (including the allocated costs of internal
counsel) and such local counsel as may be required) actually incurred with
respect to the enforcement, performance of, and preservation of rights under,
the Loan Documents (all the foregoing, collectively, the "INDEMNIFIED
LIABILITIES") and, if and to the extent that the foregoing indemnity may be
unenforceable for any reason, the Borrower agrees to make the maximum payment
permitted under applicable law; PROVIDED that the Borrower shall have no
obligation hereunder to pay Indemnified Liabilities to an Indemnified Person to
the extent arising from its gross negligence or willful misconduct. The
agreements in this Section shall survive the termination of the Commitments and
the payment of the Loans and the Notes and all other amounts payable under the
Loan Documents.
11.6 LENDING OFFICES
Each Lender shall have the right at any time and from time to
time to transfer any Loan to a different office of such Lender, subject to
Section 3.10.
11.7 SUCCESSORS AND ASSIGNS
(a) The Loan Documents shall be binding upon and inure to the
benefit of the Borrower, the Lenders, the Administrative Agent, all future
holders of the Notes and their respective successors and assigns; provided that
the Borrower shall not assign, transfer or delegate any of its rights or
obligations under the Loan Documents without the prior consent of the
Administrative Agent and all of the Lenders.
(b) Notwithstanding Section 11.7(c), but subject to Section
11.7(e), each Lender may at any time assign all or any portion of its rights
under any Loan Document to any Federal Reserve Bank.
(c) In addition to its rights under Section 11.7(b), each
Lender shall have the right, at any time, upon written notice to the
Administrative Agent of its intent to do so, to sell, assign, transfer or
negotiate (each an "ASSIGNMENT") all or any portion of all of its Loans, its
Commitment and its Notes and its interest in the Loan Documents to any
subsidiary or Affiliate of such Lender, to any other Lender or, with the prior
written consent of the Administrative Agent and the Borrower (which consents
shall not be unreasonably withheld and, in the case of the Borrower, shall not
be required if, at the time of such Assignment, an Event of Default shall
exist), to any other bank, insurance company, pension fund, mutual or other
similar fund or other financial institution, PROVIDED that (i) the assigning
Lender shall simultaneously assign to the same assignee the same percentage of
its interest under the Other Credit Agreement, unless otherwise consented to by
the Borrower, (ii) each such Assignment shall be of a constant, and not varying,
percentage of all of the assigning Lender's rights and obligations under the
Loan Documents and be in a minimum amount (together with the simultaneous
assignment made under the Other Credit Agreement) of
49
$5,000,000 (which minimum amount shall not be applicable to an Assignment by a
Lender to a subsidiary or Affiliate of such Lender) or the full amount of such
Lender's Commitment, and (iii) the parties to each such Assignment (excluding
the Borrower if the Borrower is a party to such assignment) shall execute and
deliver to the Administrative Agent an Assignment and Acceptance Agreement,
together with a fee (the "ASSIGNMENT FEE"), payable to the Administrative Agent,
of $1,750 ($3,500 if no simultaneous assignment is being made by such parties
under the Other Credit Agreement). Upon receipt of each such executed Assignment
and Acceptance Agreement together with the Assignment Fee therefor, the
Administrative Agent shall execute the same and, in the event that either the
assignee thereunder is a Lender (or a subsidiary or Affiliate thereof) or the
Borrower shall have consented to such assignment (to the extent that such
consent was not unreasonably withheld and is required as aforesaid), (i) record
the same and execute two copies of such Assignment and Acceptance Agreement in
the appropriate place, deliver one copy to the assignor and one copy to the
assignee, and (ii) request the Borrower to execute and deliver (1) to such
assignee, one or more Notes, in an aggregate principal amount equal to the Loans
assigned to, and Commitment assumed by, such assignee, and (2) to such assignor,
in the event that such assignor shall retain any Loans and Commitment, one or
more Notes in an aggregate principal amount equal to the balance of such
assignor Lender's Loans and Commitment, in each case against receipt of such
assignor Lender's existing Note or Notes, as the case may be, appropriately
marked to indicate their substitution. The Borrower agrees that it shall, upon
each such request of the Administrative Agent, execute and deliver such new
Notes at its own cost and expense. Upon such delivery, acceptance and recording
by the Administrative Agent, from and after the effective date specified in such
Assignment and Acceptance Agreement, the assignee thereunder shall be a party
hereto and shall for all purposes of the Loan Documents be deemed a "Lender"
and, to the extent provided in such Assignment and Acceptance Agreement, the
assignor Lender thereunder shall be released from its obligations under the Loan
Documents.
(d) In addition to the participations provided for in Section
11.9(b), each Lender may grant participations in all or any part of its Loans,
its Notes and its Commitment to one or more banks, insurance companies, pension
funds, mutual funds or other financial institutions, PROVIDED that (i) such
Lender's obligations under the Loan Documents shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties to the Loan
Documents for the performance of such obligations, (iii) the Borrower, the
Administrative Agent and the Lenders shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations under
the Loan Documents, (iv) no sub-participations shall be permitted, and (v) the
voting rights of any holder of any participation shall be limited to decisions
that in accordance with Section 11.1 require the consent of all of the Lenders.
The Borrower acknowledges and agrees that any such participant shall for
purposes of Section 3.5, 3.6, 3.10 and 11.5 be deemed to be a "Lender", provided
that in no event shall the Borrower be liable for any amounts under said
Sections in excess of the amounts for which it would be liable but for such
participation.
(e) No Lender shall, as between and among the Borrower, the
Administrative Agent and such Lender, be relieved of any of its obligations
under the Loan Documents as a result of any assignment of or granting of
participations in, all or any part of its Loans, its Commitment and its Notes,
except that a Lender shall be relieved of its obligations to the extent of any
such assignment of all or any part of its Loans, its Commitment or its Notes
pursuant to Section 11.7(c).
50
(f) Notwithstanding anything to the contrary contained herein,
any Lender (a "GRANTING LENDER") may grant to an Eligible SPC the option to fund
all or any part of any Loan that such Granting Lender would otherwise be
obligated to fund pursuant to this Agreement; PROVIDED THAT (i) such designation
shall not be effective unless the Borrower consents thereto (which consent shall
not be unreasonably withheld), (ii) nothing herein shall constitute a commitment
by any Eligible SPC to fund any Loan, and (iii) if an Eligible SPC elects not to
exercise such option or otherwise fails to fund all or any part of such Loan,
the Granting Lender shall be obligated to fund such Loan pursuant to the terms
hereof. The funding of a Loan by an Eligible SPC hereunder shall utilize the
Commitment of the Granting Lender to the same extent, and as if, such Loan were
funded by such Granting Lender. As to any Loans or portion thereof made by it,
each Eligible SPC shall have all the rights that a Lender making such Loans or
portion thereof would have had under this Agreement and otherwise; provided that
(x) its voting rights under this Agreement shall be exercised solely by its
Granting Lender and (y) its Granting Lender shall remain solely responsible to
the other parties hereto for the performance of such Granting Lender's
obligations under this Agreement, including its obligations in respect of the
Loans or portion thereof made by it. Each Granting Lender shall act as
administrative agent for its Eligible SPC and give and receive notices and other
communications on its behalf. Any payments for the account of any Eligible SPC
shall be paid to its Granting Lender as administrative agent for such Eligible
SPC and neither the Borrower nor the Administrative Agent shall be responsible
for any Granting Lender's application of such payments. Each party hereto hereby
agrees that no Eligible SPC shall be liable for any indemnity or payment under
this Agreement for which a Lender would otherwise be liable for so long as, and
to the extent, the Granting Lender provides such indemnity or makes such
payment. Notwithstanding anything to the contrary contained in this Agreement,
any Eligible SPC may (i) at any time, subject to payment of the Assignment Fee,
assign all or a portion of its interests in any Loans to its Granting Lender
(but nothing contained herein shall be construed in derogation of the obligation
of the Granting Lender to make Loans hereunder), and (ii) disclose on a
confidential basis any non-public information relating to its funding of Loans
to any rating agency, commercial paper dealer or provider of any surety or
guarantee or credit or liquidity enhancements to such Eligible SPC. This Section
may not be amended without the prior written consent of each Granting Lender,
all or any part of whose Loan is being funded by an Eligible SPC at the time of
such amendment.
11.8 COUNTERPARTS
Each of the Loan Documents (other than the Notes) may be
executed on any number of separate counterparts and all of said counterparts
taken together shall be deemed to constitute one and the same agreement. It
shall not be necessary in making proof of any Loan Document to produce or
account for more than one counterpart signed by the party to be charged. A set
of the copies of this Agreement signed by all of the parties hereto shall be
lodged with each of the Borrower and the Administrative Agent. Any party to a
Loan Document may rely upon the signatures of any other party thereto which are
transmitted by fax or other electronic means to the same extent as if originally
signed.
51
11.9 SET-OFF AND SHARING OF PAYMENTS
(a) In addition to any rights and remedies of the Lenders
provided by law, upon the occurrence of an Event of Default under Section 9.1(a)
or (b) or upon the acceleration of the payment of the Notes, each Lender shall
have the right, without prior notice to the Borrower, any such notice being
expressly waived by the Borrower, to set-off and apply against any indebtedness
or other liability, whether matured or unmatured, of the Borrower to such Lender
arising under the Loan Documents, any amount owing from such Lender to the
Borrower. To the extent permitted by applicable law, the aforesaid right of
set-off may be exercised by such Lender against the Borrower or against any
trustee in bankruptcy, custodian, debtor in possession, assignee for the benefit
of creditors, receiver, or execution, judgment or attachment creditor of the
Borrower, or against anyone else claiming through or against the Borrower or
such trustee in bankruptcy, custodian, debtor in possession, assignee for the
benefit of creditors, receivers, or execution, judgment or attachment creditor,
notwithstanding the fact that such right of set-off shall not have been
exercised by such Lender prior to the making, filing or issuance of, service
upon such Lender of, or notice to such Lender of, any petition, assignment for
the benefit of creditors, appointment or application for the appointment of a
receiver, or issuance of execution, subpoena, order or warrant. Each Lender
agrees promptly to notify the Borrower and the Administrative Agent after each
such set-off and application made by such Lender, PROVIDED that the failure to
give such notice shall not affect the validity of such set-off and application.
(b) If any Lender (each a "BENEFITED LENDER") shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of its Loans or its Notes in excess of its pro
rata share (in accordance with the outstanding principal balance of all Loans)
of payments then due and payable on account of the Loans and Notes received by
all the Lenders, such Lender shall forthwith purchase, without recourse, for
cash, from the other Lenders such participations in their Loans and Notes as
shall be necessary to cause such purchasing Lender to share the excess payment
with each of them according to their pro rata share (in accordance with the
outstanding principal balance of all Loans), PROVIDED that if all or any portion
of such excess payment is thereafter recovered from such purchasing Lender, such
purchase from each Lender shall be rescinded and each such Lender shall repay to
the purchasing Lender the purchase price to the extent of such recovery,
together with an amount equal to such Lender's pro rata share (according to the
proportion of (i) the amount of such Lender's required repayment to (ii) the
total amount so recovered from the purchasing Lender) of any interest or other
amount paid or payable by the purchasing Lender in respect of the total amount
so recovered. The Borrower agrees, to the fullest extent permitted by law, that
any Lender so purchasing a participation from another Lender pursuant to this
Section may exercise such rights to payment (including the right of set-off)
with respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation.
11.10 INDEMNITY
The Borrower agrees to indemnify and hold harmless each of the
Administrative Agent, each Lender and their respective Affiliates, officers,
directors, employees, agents and representatives (each an "INDEMNIFIED PERSON")
from and against any loss, cost, liability, damage or expense, including the
reasonable fees and disbursements of counsel (including the allocated costs of
internal counsel) and such local counsel as may be required to represent such
Indemnified Person
52
actually incurred by such Indemnified Person in preparing for, defending
against, or providing evidence, producing documents or taking any other action
in respect of, any litigation, administrative proceeding or investigation under
any federal securities law or any other statute of any jurisdiction, or any
regulation, or at common law or otherwise, which is alleged to arise out of or
is based upon (1) any untrue statement or alleged untrue statement of any
material fact by or on behalf of the Borrower or any Subsidiary, in any document
or schedule executed or filed with any Governmental Authority by or on behalf of
the Borrower or any Subsidiary which relates to the transactions contemplated by
the Loan Documents, (2) any omission or alleged omission by or on behalf of the
Borrower or any Subsidiary to state any material fact required to be stated in
such document or schedule, or necessary to make the statements made therein, in
light of the circumstances under which made, not misleading, (3) any acts,
practices or omissions or alleged acts, practices or omissions of the Borrower
or its agents relating to the use of the proceeds of any Loan which is alleged
to be in violation of Section 2.5, or in violation of any federal securities law
or of any other statute, regulation or other law of any jurisdiction applicable
thereto, or (4) any Loan Document or any other document contemplated by or
referred to therein or the transactions contemplated thereby or any action taken
or omitted to be taken by such Indemnified Person under or in connection with
any of the foregoing. Notwithstanding the above, the Borrower shall have no
liability under clause (4) of this Section to indemnify or hold harmless any
Indemnified Person for any loss, cost, liability, damage or expense relating to
income or withholding taxes or any tax in lieu of such taxes. The indemnity set
forth herein shall be in addition to any other obligations or liabilities of the
Borrower to each Indemnified Person hereunder or at common law or otherwise,
shall include the reasonable fees and disbursements of counsel (including the
allocated costs of internal counsel) and such local counsel as may be required
in connection with establishing liability under this Section or collecting
amounts payable under this Section and shall survive any termination of this
Agreement, the expiration of the Commitments and the payment of all indebtedness
of the Borrower under the Loan Documents, PROVIDED that the Borrower shall not
have any liability under this Section to any Indemnified Person with respect to
indemnified liabilities which are determined by a final and nonappealable
judgment of a court of competent jurisdiction to have arisen primarily from the
gross negligence or willful misconduct of such Indemnified Person.
11.11 GOVERNING LAW
The Loan Documents and the rights and obligations of the
parties thereto shall be governed by, and construed and interpreted in
accordance with, the laws of the State of New York, without regard to principles
of conflict of laws.
11.12 SEVERABILITY
Every provision of the Loan Documents is intended to be
severable, and if any term or provision thereof shall be invalid, illegal or
unenforceable for any reason, the validity, legality and enforceability of the
remaining provisions thereof shall not be affected or impaired thereby, and any
invalidity, illegality or unenforceability in any jurisdiction shall not affect
the validity, legality or enforceability of any such term or provision in any
other jurisdiction.
53
11.13 INTEGRATION
All exhibits to the Loan Documents shall be deemed to be a
part thereof. Each Loan Document embodies the entire agreement and understanding
between or among the parties thereto with respect to the subject matter thereof
and supersedes all prior agreements and understandings between or among the
parties thereto with respect to the subject matter thereof.
11.14 TREATMENT OF CERTAIN INFORMATION
Each Lender and the Administrative Agent agrees to maintain as
confidential and not to disclose, publish or disseminate to any third parties
any financial or other information relating to the business, operations and
condition, financial or otherwise, of the Borrower provided to it, except if and
to the extent that:
(a) such information is in the public domain at the time of
disclosure;
(b) such information is required to be disclosed by subpoena
or similar process or applicable law or regulations;
(c) such information is required or requested to be disclosed
to any regulatory or administrative body or commission to whose jurisdiction it
may be subject;
(d) such information is disclosed to its counsel, auditors or
other professional advisors;
(e) such information is disclosed to (and, unless and until it
receives written objection from the Borrower, the Borrower shall be deemed to
have consented to disclosure of such information to) its affiliates; provided
that such information shall be used in connection with this Agreement and the
transactions contemplated hereby;
(f) such information is disclosed to its officers, directors
and employees;
(g) such information is disclosed with the prior written
consent of the party furnishing the information;
(h) such information is disclosed in connection with any
litigation or dispute involving the Borrower and/or it;
(i) such information is disclosed in connection with the sale
of a participation or other disposition by it of any of its interest in this
Agreement, provided that such information shall not be disclosed unless and
until the party to whom it shall be disclosed shall have agreed to keep such
information confidential as set forth herein;
(j) such information was in its possession or in its
affiliate's possession as shown by clear and convincing evidence prior to any of
the Borrower and/or any or the Borrower's representatives or agents furnishing
such information to it; or
54
(k) such information is received by it, without restriction as
to its disclosure or use, from a Person who, to its knowledge or reasonable
belief, was not prohibited from disclosing such information by any duty of
confidentiality.
Except to the extent prohibited or restricted by law or
Governmental Authority, each Lender shall notify the Borrower promptly of any
disclosures of information made by it as permitted pursuant to (h) above.
11.15 ACKNOWLEDGMENTS
The Borrower acknowledges that (a) it has been advised by
counsel in the negotiation, execution and delivery of the Loan Documents, (b) by
virtue of the Loan Documents, none of the Administrative Agent or any Lender has
any fiduciary relationship to the Borrower, and the relationship between the
Administrative Agent and the Lenders, on the one hand, and the Borrower, on the
other hand, is solely that of debtor and creditor, and (c) by virtue of the Loan
Documents, no joint venture exists among the Lenders or among the Borrower and
the Lenders.
11.16 CONSENT TO JURISDICTION
The Borrower irrevocably submits to the non-exclusive
jurisdiction of any New York State or Federal Court sitting in the City of New
York over any suit, action or proceeding arising out of or relating to the Loan
Documents. The Borrower irrevocably waives, to the fullest extent permitted by
law, any objection which it may now or hereafter have to the laying of the venue
of any such suit, action or proceeding brought in such a court and any claim
that any such suit, action or proceeding brought in such a court has been
brought in an inconvenient forum. The Borrower agrees that a final judgment in
any such suit, action or proceeding brought in such a court, after all
appropriate appeals, shall be conclusive and binding upon it.
11.17 SERVICE OF PROCESS
The Borrower agrees that process may be served against it in
any suit, action or proceeding referred to in Section 11.16 by sending the same
by first class mail, return receipt requested or by overnight courier service,
with receipt acknowledged, to the address of the Borrower set forth in Section
11.2. The Borrower agrees that any such service (i) shall be deemed in every
respect effective service of process upon it in any such suit, action, or
proceeding, and (ii) shall to the fullest extent enforceable by law, be taken
and held to be valid personal service upon and personal delivery to it.
11.18 NO LIMITATION ON SERVICE OR SUIT
Nothing in the Loan Documents or any modification, waiver, or
amendment thereto shall affect the right of the Administrative Agent or any
Lender to serve process in any manner permitted by law or limit the right of the
Administrative Agent or any Lender to bring proceedings against the Borrower in
the courts of any jurisdiction or jurisdictions.
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11.19 WAIVER OF TRIAL BY JURY
THE ADMINISTRATIVE AGENT, THE LENDERS AND THE BORROWER
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT THEY MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN
CONNECTION WITH THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY.
FURTHER, THE BORROWER HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF THE
ADMINISTRATIVE AGENT OR THE LENDERS, OR COUNSEL TO THE ADMINISTRATIVE AGENT OR
THE LENDERS, HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE ADMINISTRATIVE
AGENT OR THE LENDERS WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE
THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. THE BORROWER ACKNOWLEDGES THAT THE
ADMINISTRATIVE AGENT AND THE LENDERS HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, INTER ALIA, THE PROVISIONS OF THIS SECTION.
11.20 EFFECTIVE DATE
This Agreement shall be effective at such time (the "EFFECTIVE
DATE") as the Administrative Agent shall have received executed counterparts
hereof by the Borrower, the Administrative Agent and each Lender and the
conditions set forth in Sections 5.1 through 5.4 have been or simultaneously
will be satisfied, PROVIDED that this Agreement shall not become effective or be
binding on any party hereto unless all of such conditions are satisfied not
later than June 30, 2000.
11.21 NOTICE OF COMMITMENT TERMINATION
The Borrower hereby gives notice that the Borrower wishes to
terminate the commitments under the Existing Credit Agreement, effective as of
the Effective Date. Each Lender that is a party to the Existing Credit
Agreement, by its execution hereof, waives any requirement of prior notice set
forth therein as a condition to the right of the Borrower to terminate the
commitments thereunder.
56
CVS CORPORATION
364 DAY CREDIT AGREEMENT
AS EVIDENCE of the agreement by the parties hereto to the terms and
conditions herein contained, each such party has caused this 364 Day Credit
Agreement to be executed on its behalf.
CVS CORPORATION
By:________________________________
Name:______________________________
Title:_____________________________
CVS CORPORATION
364 DAY CREDIT AGREEMENT
THE BANK OF NEW YORK, in its capacity
as a Lender and in its capacity
as the Administrative Agent
By:________________________________
Name:______________________________
Title:_____________________________
CVS CORPORATION
364 DAY CREDIT AGREEMENT
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By:________________________________
Name:______________________________
Title:_____________________________
CVS CORPORATION
364 DAY CREDIT AGREEMENT
FLEET NATIONAL BANK
By:________________________________
Name:______________________________
Title:_____________________________
CVS CORPORATION
364 DAY CREDIT AGREEMENT
BANK OF AMERICA, N.A.
By:________________________________
Name:______________________________
Title:_____________________________
CVS CORPORATION
364 DAY CREDIT AGREEMENT
FIRST UNION NATIONAL BANK
By:________________________________
Name:______________________________
Title:_____________________________
CVS CORPORATION
364 DAY CREDIT AGREEMENT
CREDIT SUISSE FIRST BOSTON
By:________________________________
Name:______________________________
Title:_____________________________
By:________________________________
Name:______________________________
Title:_____________________________
CVS CORPORATION
364 DAY CREDIT AGREEMENT
KEYBANK NATIONAL ASSOCIATION
By:________________________________
Name:______________________________
Title:_____________________________
CVS CORPORATION
364 DAY CREDIT AGREEMENT
PNC BANK, NATIONAL ASSOCIATION
By:________________________________
Name:______________________________
Title:_____________________________
CVS CORPORATION
364 DAY CREDIT AGREEMENT
WACHOVIA BANK, N.A.
By:________________________________
Name:______________________________
Title:_____________________________
CVS CORPORATION
364 DAY CREDIT AGREEMENT
FIRST HAWAIIAN BANK
By:________________________________
Name:______________________________
Title:_____________________________
CVS CORPORATION
364 DAY CREDIT AGREEMENT
MELLON BANK, N.A.
By:________________________________
Name:______________________________
Title:_____________________________
CVS CORPORATION
364 DAY CREDIT AGREEMENT
SUNTRUST BANK
By:________________________________
Name:______________________________
Title:_____________________________
CVS CORPORATION
364 DAY CREDIT AGREEMENT
COMERICA BANK
By:________________________________
Name:______________________________
Title:_____________________________
CVS CORPORATION
364 DAY CREDIT AGREEMENT
MICHIGAN NATIONAL BANK
By:____________________________
Name:__________________________
Title:_________________________
CVS CORPORATION
364 DAY CREDIT AGREEMENT
FIRSTAR BANK
By:____________________________
Name:__________________________
Title:_________________________
CVS CORPORATION
364 DAY CREDIT AGREEMENT
NATIONAL CITY BANK
By:____________________________
Name:__________________________
Title:_________________________
CVS CORPORATION
364 DAY CREDIT AGREEMENT
THE FIFTH THIRD BANK
By:____________________________
Name:__________________________
Title:_________________________
CVS CORPORATION
364 DAY CREDIT AGREEMENT
ABN AMRO
By:____________________________
Name:__________________________
Title:_________________________
By:____________________________
Name:__________________________
Title:_________________________
CVS CORPORATION
364 DAY CREDIT AGREEMENT
ALLFIRST BANK
By:____________________________
Name:__________________________
Title:_________________________
By:____________________________
Name:__________________________
Title:_________________________
CVS CORPORATION
364 DAY CREDIT AGREEMENT
BANK ONE, NA (Main Office Chicago)
By:____________________________
Name:__________________________
Title:_________________________
CVS CORPORATION
364 DAY CREDIT AGREEMENT
CITIBANK, N.A.
By:____________________________
Name:__________________________
Title:_________________________
CVS CORPORATION
364 DAY CREDIT AGREEMENT
REGIONS BANK
By:____________________________
Name:__________________________
Title:_________________________
CVS CORPORATION
364 DAY CREDIT AGREEMENT
SUMMIT BANK
By:____________________________
Name:__________________________
Title:_________________________
CVS CORPORATION
364 DAY CREDIT AGREEMENT
XXXXX FARGO BANK, N.A.
By:____________________________
Name:__________________________
Title:_________________________
EXHIBIT A
LIST OF COMMITMENTS, APPLICABLE LENDING OFFICES
AND ADDRESSES FOR NOTICES
A. LIST OF COMMITMENTS
Lender Commitment Amount
------ -----------------
THE BANK OF NEW YORK $ 75,000,000
FLEET NATIONAL BANK $ 70,000,000
CREDIT SUISSE FIRST BOSTON $ 70,000,000
BANK OF AMERICA, N.A. $ 60,000,000
BANK ONE, NA (Main Office Chicago) $ 60,000,000
ABN-AMRO $ 35,000,000
FIRST UNION NATIONAL BANK $ 35,000,000
KEYBANK NATIONAL ASSOCIATION $ 35,000,000
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK $ 35,000,000
SUNTRUST BANK $ 35,000,000
CITIBANK, N.A. $ 25,000,000
MELLON BANK, N.A. $ 25,000,000
MICHIGAN NATIONAL BANK $ 25,000,000
NATIONAL CITY BANK $ 25,000,000
PNC BANK, NATIONAL ASSOCIATION $ 25,000,000
SUMMIT BANK $ 25,000,000
ALLFIRST $ 20,000,000
COMERICA BANK $ 20,000,000
FIRSTAR BANK $ 20,000,000
THE FIFTH THIRD BANK $ 15,000,000
FIRST HAWAIIAN BANK $ 15,000,000
REGIONS BANK $ 15,000,000
WACHOVIA BANK, N.A. $ 15,000,000
XXXXX FARGO BANK, N.A. $ 15,000,000
----------
TOTAL $795,000,000
===========
B. LIST OF APPLICABLE LENDING OFFICES AND ADDRESSES FOR NOTICES
THE BANK OF NEW YORK
Applicable Lending Office for each Eurodollar Advance:
The Bank of New York
Xxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Applicable Lending Office for all other Advances:
The Bank of New York
Xxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Address for Notices:
The Bank of New York
Xxx Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx,
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
2
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
Applicable Lending Office for each Eurodollar Advance:
Xxxxxx Guaranty Trust Company of New York
Nassau Bahamas Office
c/o X. X. Xxxxxx Services, Inc.
Loan Operations - 3rd Floor
000 Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Applicable Lending Office for all other Advances:
Xxxxxx Guaranty Trust Company of New York
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Address for Notices:
Xxxxxx Guaranty Trust Company of New York
00 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
3
FLEET NATIONAL BANK
Applicable Lending Office for each Eurodollar Advance:
Fleet National Bank
Xxx Xxxxxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Applicable Lending Office for all other Advances:
Fleet National Bank
Xxx Xxxxxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Address for Notices:
Fleet National Bank
Xxx Xxxxxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
4
BANK OF AMERICA, N.A.
Applicable Lending Office for each Eurodollar Advance:
Bank of America, N.A.
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Managing Director
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Applicable Lending Office for all other Advances:
Bank of America, N.A.
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Managing Director
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Address for Notices:
Bank of America, N.A.
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Managing Director
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
5
CREDIT SUISSE FIRST BOSTON
Applicable Lending Office for each Eurodollar Advance:
Credit Suisse First Boston
00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Applicable Lending Office for all other Advances:
Credit Suisse First Boston
00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Address for Notices:
Credit Suisse First Boston
00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
6
FIRST UNION NATIONAL BANK
Applicable Lending Office for each Eurodollar Advance:
First Union National Bank
One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx, XX0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Applicable Lending Office for all other Advances:
First Union National Bank
One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx, XX0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Address for Notices:
First Union National Bank
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxx Xxxxx Xxxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: 215) 973-7820
7
KEYBANK NATIONAL ASSOCIATION
Applicable Lending Office for each Eurodollar Advance:
KeyBank National Association
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Applicable Lending Office for all other Advances:
KeyBank National Association
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Address for Notices:
KeyBank National Association
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
8
PNC BANK, NATIONAL ASSOCIATION
Applicable Lending Office for each Eurodollar Advance:
PNC Bank, National Association
Xxx Xxxxx Xxxxxx Xxxxxxxxx
Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000
Applicable Lending Office for all other Advances:
PNC Bank, National Association
Xxx Xxxxx Xxxxxx Xxxxxxxxx
Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000
Address for Notices:
PNC Bank, National Association
0 Xxxxx Xxxxxx
Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
9
ABN AMRO
Applicable Lending Office for each Eurodollar Advance:
ABN Amro
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Applicable Lending Office for all other Advances:
ABN Amro
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Address for Notices:
ABN Amro
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
10
FIRST HAWAIIAN BANK
Applicable Lending Office for each Eurodollar Advance:
First Hawaiian Bank
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxx 00000
Applicable Lending Office for all other Advances:
First Hawaiian Bank
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxx 00000
Address for Notices:
First Hawaiian Bank
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
11
MELLON BANK, N.A.
Applicable Lending Office for each Eurodollar Advance :
Mellon Bank, N.A.
Three Mellon Bank Center, Room 1203
Xxxxxxxxxx, XX 00000
Applicable Lending Office for all other Advances:
Mellon Bank, N.A.
Three Mellon Bank Center, Room 1203
Xxxxxxxxxx, XX 00000
Address for Notices:
Mellon Bank, N.A.
One Mellon Bank Center, Room 370
Pittsburgh, PA 15258
Attention: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
12
SUNTRUST BANK
Applicable Lending Office for each Eurodollar Advance :
SunTrust Bank
00 Xxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Applicable Lending Office for all other Advances:
SunTrust Bank
00 Xxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Address for Notices:
SunTrust Bank
000 Xxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
13
COMERICA BANK
Applicable Lending Office for each Eurodollar Advance :
Comerica Bank
One Detroit Center
000 Xxxxxxxx Xxxxxx
Mail Code 3280
Xxxxxxx, Xxxxxxxx 00000
Applicable Lending Office for all other Advances:
Comerica Bank
One Detroit Center
000 Xxxxxxxx Xxxxxx
Mail Code 3280
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Address for Notices:
Comerica Bank
One Detroit Center
000 Xxxxxxxx Xxxxxx
Mail Code 3280
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
14
ALLFIRST BANK
Applicable Lending Office for each Eurodollar Advance :
Allfirst Bank
00 X. Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Applicable Lending Office for all other Advances:
Allfirst Bank
00 X. Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: X. Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Address for Notices:
First National Bank of Maryland
00 X. Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: X. Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
15
MICHIGAN NATIONAL BANK
Applicable Lending Office for each Eurodollar Advance :
Michigan National Bank
00000 Xxxxxxx Xxxx
Xxxxxxxxxx Xxxxx, XX 00000
Applicable Lending Office for all other Advances:
Michigan National Bank
00000 Xxxxxxx Xxxx
Xxxxxxxxxx Xxxxx, XX 00000
Attention: Xxxx XxXxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Address for Notices:
Michigan National Bank
00000 Xxxxxxx Xxxx
Xxxxxxxxxx Xxxxx, XX 00000
Attention: Xxxx XxXxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
16
BANK ONE, NA (MAIN OFFICE CHICAGO)
Applicable Lending Office for each Eurodollar Advance :
Bank One, NA
Xxx Xxxx Xxxxx
Xxxxx XX0-0000
Xxxxxxx, XX 00000
Applicable Lending Office for all other Advances:
Bank One, NA
Xxx Xxxx Xxxxx
Xxxxx XX0-0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Address for Notices:
Bank One, NA
Xxx Xxxx Xxxxx
Xxxxx XX0-0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
17
THE FIFTH THIRD BANK
Applicable Lending Office for each Eurodollar Advance :
The Fifth Third Bank
38 Fountain Square Plaza
Mail Drop 109054
Xxxxxxxxxx, XX 00000
Applicable Lending Office for all other Advances:
The Fifth Third Bank
00 Xxxxxxxx Xxxxxx Xxxxx
Mail Drop 109054
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Address for Notices:
The Fifth Third Bank
00 Xxxxxxxx Xxxxxx Xxxxx
Mail Drop 109054
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
18
NATIONAL CITY BANK
Applicable Lending Office for each Eurodollar Advance :
National City Bank
0000 X. Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Applicable Lending Office for all other Advances:
National City Bank
0000 X. Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx Loc 2077
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Address for Notices:
National City Bank
0000 X. Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
19
REGIONS BANK
Applicable Lending Office for each Eurodollar Advance :
Regions Bank
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Applicable Lending Office for all other Advances:
Regions Bank
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
facsimile: (000) 000-0000
Address for Notices:
Regions Bank
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
facsimile: (000) 000-0000
20
SUMMIT BANK
Applicable Lending Office for each Eurodollar Advance :
Summit Bank
000 Xxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Applicable Lending Office for all other Advances:
Summit Bank
000 Xxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx Medida
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Address for Notices:
Summit Bank
000 Xxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx Medida
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
21
WACHOVIA BANK, N.A.
Applicable Lending Office for each Eurodollar Advance :
Wachovia Bank, N.A.
000 Xxxxxxxxx Xxxxxx XX
XX XX 370
Xxxxxxx, Xxxxxxx 00000
Applicable Lending Office for all other Advances:
Wachovia Bank, N.A.
000 Xxxxxxxxx Xxxxxx XX
XX XX 370
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Address for Notices:
Wachovia Bank, N.A.
000 Xxxxxxxxx Xxxxxx XX
XX XX 370
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
22
XXXXX FARGO BANK, N.A.
Applicable Lending Office for each Eurodollar Advance :
Xxxxx Fargo Bank, N.A.
00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10022
Applicable Lending Office for all other Advances:
Xxxxx Fargo Bank, N.A.
00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Address for Notices:
Xxxxx Fargo Bank, N.A.
00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
23
FIRSTAR BANK
Applicable Lending Office for each Eurodollar Advance :
Firstar Bank
0000 Xxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000
Applicable Lending Office for all other Advances:
Firstar Bank
0000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Address for Notices:
Firstar Bank
0000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxxxx
Telephone(216) 000-0000
Facsimile: (000) 000-0000
24
CITIBANK, N.A.
Applicable Lending Office for each Eurodollar Advance :
Citibank, N.A.
000 Xxxx Xxxxxx,
Xxxx 00
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Applicable Lending Office for all other Advances:
Citibank, N.A.
000 Xxxx Xxxxxx,
Xxxx 00
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Address for Notices:
Citibank, N.A.
000 Xxxx Xxxxxx,
Xxxx 00
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
25
EXHIBIT B-1
FORM OF REVOLVING CREDIT NOTE
$______________. May 26, 0000
Xxx Xxxx, Xxx Xxxx
FOR VALUE RECEIVED, the undersigned, CVS CORPORATION, a
Delaware corporation (the "BORROWER"), hereby promises to pay to the order of
_________________________ (the "LENDER") the lesser of $_________________ or the
outstanding principal balance of the Lender's Revolving Credit Loans, together
with interest thereon, at the rate or rates, in the amounts and at the time or
times set forth in the 364 Day Credit Agreement (as the same may be amended,
supplemented or otherwise modified from time to time, the "CREDIT AGREEMENT"),
dated as of May 26, 2000, by and among the Borrower, the Lenders party thereto,
Fleet National Bank, as Syndication Agent, Credit Suisse First Boston, as
Documentation Agent, and The Bank of New York, as the administrative agent (in
such capacity, the "ADMINISTRATIVE AGENT"), in each case at the office of the
Administrative Agent located at One Wall Street, New York, New York, or at such
other place as the Administrative Agent may specify from time to time, in lawful
money of the United States of America in immediately available funds.
Capitalized terms used herein that are not otherwise defined
herein shall have the respective meanings ascribed thereto in the Credit
Agreement.
The Revolving Credit Loans evidenced by this Revolving Credit
Note are prepayable in the amounts, and on the dates, set forth in the Credit
Agreement. This Revolving Credit Note is one of the Revolving Credit Notes under
the Credit Agreement, and is subject to, and shall be construed in accordance
with, the provisions thereof, and is entitled to the benefits set forth in the
Loan Documents.
The Lender is hereby authorized to record on the schedule
annexed hereto, and any continuation sheets which the Lender may attach thereto
(a) the date and amount of each Revolving Credit Loan made by the Lender, (b)
the character of each Revolving Credit Loan as one or more ABR Advances, one or
more Eurodollar Advances, or a combination thereof, (c) the Interest Period and
Eurodollar Rate applicable to each Eurodollar Advance, and (d) the date and
amount of each Conversion of, and each payment or prepayment of principal of,
each Revolving Credit Loan. The failure to so record or any error in so
recording shall not affect the obligation of the Borrower to repay the Revolving
Credit Loans, together with interest thereon, as provided in the Credit
Agreement.
Except as specifically otherwise provided in the Credit
Agreement, the Borrower hereby waives presentment, demand, notice of dishonor,
protest, notice of protest and all
other demands, protests and notices in connection with the execution, delivery,
performance, collection and enforcement of this Revolving Credit Note.
THIS REVOLVING CREDIT NOTE IS BEING DELIVERED IN, IS INTENDED
TO BE PERFORMED IN, SHALL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH,
AND BE GOVERNED BY THE INTERNAL LAWS OF, THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
This Revolving Credit Note may only be amended by an
instrument in writing executed pursuant to the provisions of Section 11.1 of the
Credit Agreement.
CVS CORPORATION
By:________________________
Name:______________________
Title:_____________________
2
SCHEDULE TO REVOLVING CREDIT NOTE
Type of Amount of
Advance Interest Eurodollar Conversion
Amount of (Eurodollar Period (If Rate (If or Principal
Revolving or ABR Eurodollar Eurodollar Payment or Notation
Date Credit Loan Advance) Advance) Advance) Prepayment Made by
---- ----------- ---------- ---------- ---------- ------------ --------
3
EXHIBIT B-2
FORM OF COMPETITIVE BID NOTE
May 26, 2000
New York, New York
FOR VALUE RECEIVED, the undersigned, CVS CORPORATION, a Delaware
corporation (the "BORROWER"), hereby promises to pay to the order of
_________________________ (the "LENDER") the outstanding principal balance of
the Lender's Competitive Bid Loans, together with the interest due thereon, in
the amounts, at the rate or rates, and at the time or times set forth in the 364
Day Credit Agreement (as the same may be amended, supplemented or otherwise
modified from time to time, the "CREDIT AGREEMENT"), dated as of May 26,2000, by
and among the Borrower, the Lenders party thereto, Fleet National Bank, as
Syndication Agent, Credit Suisse First Boston, as Documentation Agent, and The
Bank of New York, as administrative agent (in such capacity, the "ADMINISTRATIVE
AGENT"), in each case at the office of the Administrative Agent located at One
Wall Street, New York, New York, or at such other place as the Administrative
Agent may specify from time to time, in lawful money of the United States of
America in immediately available funds.
Capitalized terms used herein that are not otherwise defined herein
shall have the respective meanings ascribed thereto in the Credit Agreement.
This Competitive Bid Note is one of the Competitive Bid Notes under the
Credit Agreement, and is subject to, and shall be construed in accordance with,
the provisions thereof, and is entitled to the benefits set forth in the Loan
Documents.
The Lender is hereby authorized to record on the schedule annexed
hereto, and any continuation sheets which the Lender may attach thereto (a) the
date and amount of each Competitive Bid Loan made by the Lender, (b) the
Competitive Interest Period and the Competitive Bid Rate applicable to each such
Competitive Bid Loan, and (c) the date and amount of each payment or prepayment
of principal of each Competitive Bid Loan. The failure to so record or any error
in so recording shall not affect the obligation of the Borrower to repay the
Competitive Bid Loans, together with interest thereon, as provided in the Credit
Agreement.
Except as specifically otherwise provided in the Credit Agreement, the
Borrower hereby waives presentment, demand, notice of dishonor, protest, notice
of protest and all other demands, protests and notices in connection with the
execution, delivery, performance, collection and enforcement of this Competitive
Bid Note.
THIS COMPETITIVE BID NOTE IS BEING DELIVERED IN, IS INTENDED TO BE
PERFORMED IN, SHALL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, AND BE
GOVERNED BY THE INTERNAL LAWS OF, THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS.
This Competitive Bid Note may only be amended by an instrument in
writing executed pursuant to the provisions of Section 11.1 of the Credit
Agreement.
CVS CORPORATION
By:________________________
Name:______________________
Title:_____________________
2
SCHEDULE TO COMPETITIVE BID NOTE
Amount of
Amount of Competitive Principal
Competitive Interest Competitive Payment or Notation
Date Bid Loan Period Bid Rate Prepayment Made By
EXHIBIT C
FORM OF BORROWING REQUEST
[Date]
The Bank of New York, as Administrative Agent
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ______________,
______________
Re: 364 Day Credit Agreement, dated as of May 26, 2000,
by and among CVS Corporation, the Lenders party
thereto, Fleet National Bank, as Syndication Agent,
Credit Suisse First Boston, as Documentation Agent,
and The Bank of New York, as Administrative Agent (as
amended, supplemented or otherwise modified from time
to time, the "CREDIT AGREEMENT")
Capitalized terms used herein that are not otherwise defined herein
shall have the respective meanings ascribed thereto in the Credit Agreement.
Pursuant to Section 2.3 of the Credit Agreement, the Borrower hereby
gives notice of its intention to borrow Revolving Credit Loans in the aggregate
sum of $____________ on ____________, which borrowing shall consist of the
following type or types of Advances:
Type of
Advance(s)
(Abr or Eurodollar) Amount Interest Period
The Borrower hereby certifies that on the Borrowing Date set forth
above, and after giving effect to the Loans requested hereby:
(a) The Borrower shall be in compliance with all of the terms,
covenants and conditions of each Loan Document.
(b) There shall exist no Default or Event of Default.
(c) The representations and warranties contained in the Credit
Agreement shall be true and correct, except those which are expressly specified
to be made as of an earlier date.
IN EVIDENCE of the foregoing, the undersigned has caused this Borrowing
Request to be duly executed on its behalf.
CVS CORPORATION
By:________________________
Name:______________________
Title:_____________________
2
EXHIBIT D
FORM OF OPINION OF
COUNSEL TO THE BORROWER
May 26, 2000
The Lenders, the Syndication Agent,
the Documentation Agent, and
the Administrative Agent Referred to Below
x/x Xxx Xxxx xx Xxx Xxxx,
as Administrative Agent
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
I am general counsel of CVS Corporation, a Delaware corporation (the
"BORROWER"), and have acted as such in connection with the 364-Day Credit
Agreement by and among the Borrower, the lenders party thereto, Fleet National
Bank, as Syndication Agent, Credit Suisse First Boston, as Documentation Agent,
and The Bank of New York, as Administrative Agent, dated as of May 26, 2000 (the
"CREDIT AGREEMENT"). Capitalized terms not otherwise defined herein shall have
the meanings assigned to them in the Credit Agreement.
I have examined originals or copies, certified or otherwise identified
to my satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as I have deemed necessary or advisable for purposes of this
opinion. In rendering my opinions set forth below, I have assumed (i) the due
authorization, execution and delivery by all parties thereto (other than the
Borrower) of the Credit Agreement, (ii) the authenticity of all documents
submitted to me as originals and (iii) the conformity to original documents of
all documents submitted to me as copies.
Based upon the foregoing, I am of the opinion that:
1. The Borrower is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware. The Borrower has
all requisite corporate power and authority to own its Property and to carry on
its business as now conducted.
2. The Borrower is qualified to do business as a foreign corporation
and is in good standing in each jurisdiction in which it owns or leases real
Property or in which the nature of its business requires it to be so qualified
(except those jurisdictions where the failure to be so qualified or to be in
good standing could not reasonably be expected to have a Material Adverse
effect).
3. The execution, delivery and performance by the Borrower of the
Credit Agreement and the Notes are within the Borrower's corporate powers and
have been duly authorized by all necessary corporate action on the part of the
Borrower.
4. The execution, delivery and performance by the Borrower of the
Credit Agreement and Notes do not require any action or approval on the part of
the shareholders of the Borrower or any action by or in respect of, or filing
with, any governmental body, agency or official under United States federal law
or the Delaware General Corporation Law, and do not contravene, or constitute a
default under, any provision of (i) United States federal law or the Delaware
General Corporation Law, (ii) the Certificate of Incorporation or bylaws of the
Borrower or (iii) any existing material mortgage, material indenture, material
contract or material agreement, in each case binding on the Borrower or any
Subsidiary or affecting the Property of the Borrower or any Subsidiary.
5. The Credit Agreement and the Notes delivered by the Borrower on or
prior to the date hereof have been duly executed and delivered by the Borrower
and each constitutes the valid and binding agreement of the Borrower, in each
case enforceable in accordance with their respective terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
from time to time in effect affecting the enforcement of creditors' rights
generally and to general principles of equity.
6. The Borrower is not an "investment company" (as such term is defined
in the United States Investment Company Act of 1940, as amended).
7. Except as set forth on Schedule 4.4 to the Credit Agreement, to the
best of my knowledge, there are no actions, suits, arbitration proceedings or
claims (whether purportedly on behalf of the Borrower, any Subsidiary or
otherwise) pending or threatened against the Borrower or any Subsidiary or any
of their respective Properties, or maintained by the Borrower or any Subsidiary,
at law or in equity, before any Governmental Authority which could reasonably be
expected to have a Material Adverse effect. To the best of my knowledge, there
are no proceedings pending or threatened against the Borrower or any Subsidiary
(a) which call into question the validity or enforceability of, or otherwise
seek to invalidate, any Loan Document or (b) which could reasonably be expected
to, individually or in the aggregate, materially and adversely affect any of the
transactions contemplated by any Loan Document.
8. To the best of my knowledge, the Borrower is not in default under
any agreement to which it is a party or by which it or any of its Property is
bound the effect of which could reasonably be expected to have a Material
Adverse effect.
9. To the best of my knowledge, no provision of any judgment, decree or
order, in each case binding on the Borrower or any Subsidiary or affecting the
Property of the Borrower or any Subsidiary conflicts with, or requires any
consent which has not already been obtained under, or would in any way prevent
the execution, delivery or performance by the Borrower of the terms of, any Loan
Document.
2
The foregoing opinion is subject to the following qualifications:
(a) I express no opinion as to the effect (if any) of any law of
any jurisdiction (except the Commonwealth of Massachusetts) in which
any Lender is located which may limit the rate of interest that such
Lender may charge or collect.
(b) I express no opinion as to provisions in the Credit Agreement
which purport to create rights of set-off in favor of participants or
which provide for set-off to be made otherwise than in accordance with
applicable laws.
(c) I note that public policy considerations or court decisions
may limit the rights of any party to obtain indemnification under the
Credit Agreement.
I am a member of the bar of the Commonwealth of Massachusetts and the
foregoing opinion is limited to the laws of the Commonwealth of Massachusetts,
the federal law of the United States of America and the Delaware General
Corporation Law. For purposes of paragraph 5 of this opinion, I have assumed
that, with your permission and without any research or investigation, the laws
of the State of New York are identical to the law of the Commonwealth of
Massachusetts.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by any other person without my prior written consent, except that
any person that becomes a Lender in accordance with the provisions of the Credit
Agreement may rely upon this opinion as if it were specifically addressed and
delivered to such person on the date hereof.
Very truly yours,
3
EXHIBIT E
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
Assignment and Acceptance Agreement (as the same may be amended,
supplemented or otherwise modified from time to time, this "AGREEMENT"), dated
as of ____________, by and between ____________ (the "ASSIGNOR") and
____________ (the "ASSIGNEE").
RECITALS
I. Reference is made to the 364 Day Credit Agreement, dated as of May
26, 2000, by and among CVS Corporation, the Lenders party thereto, Fleet
National Bank, as Syndication Agent, Credit Suisse First Boston, as
Documentation Agent, and The Bank of New York, as Administrative Agent (as the
same may be amended, supplemented or otherwise modified from time to time, the
"CREDIT AGREEMENT").
II. The Assignor wishes to assign and delegate to the Assignee, and the
Assignee wishes to purchase and assume from the Assignor, some or all of the
Assignor's rights and obligations under the Loan Documents upon the terms, and
subject to the conditions, contained herein.
Therefore, in consideration of the Recitals, the terms and conditions
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Assignor and the Assignee
hereby agree as follows:
1. DEFINED TERMS
(a) Each capitalized term used herein that is not defined
herein shall have the meaning ascribed thereto in the Credit Agreement.
(b) When used in this Agreement, each of the following
capitalized terms shall have the meaning ascribed thereto unless the context
hereof otherwise specifically requires:
"ASSIGNED PERCENTAGE": _____%.
"ASSIGNMENT EFFECTIVE DATE": as defined in Section 5.
"ASSIGNOR RIGHTS AND OBLIGATIONS": as of the Assignment
Effective Date, the Assigned Percentage of all of the Assignor's rights and
obligations under the Loan Documents, including, without limitation, such
percentage of its Loans, its Commitment and its Notes.
"PURCHASE PRICE": an amount equal to the Assigned Percentage
of the aggregate unpaid principal amount of the Assignor's Loans as of the
Assignment Effective Date.
-1-
2. ASSIGNMENT; PAYMENT BY ASSIGNEE
The Assignor hereby assigns and delegates to the Assignee, and
the Assignee hereby purchases and assumes from the Assignor, without recourse
or, except as otherwise specifically provided herein, representation or
warranty, the Assignor Rights and Obligations. The Assignee agrees to pay to the
Assignor the Purchase Price on the Assignment Effective Date.
3. REPRESENTATIONS AND WARRANTIES
(a) ASSIGNOR. The Assignor hereby represents and warrants to
the Assignee as follows:
(i) the aggregate unpaid principal amount of its
Revolving Credit Loans is $___________, and such Revolving Credit Loans are
composed of the following ABR Advances and Eurodollar Advances: (1) ABR
ADVANCES: $__________, and (2) EURODOLLAR ADVANCES: (A) $__________ for [LENGTH
OF INTEREST PERIOD], the last day of which is _______________, (B) $__________
for [LENGTH OF INTEREST PERIOD], the last day of which is _______________,
(ii) the aggregate unpaid principal amount of its
Competitive Bid Loans is $_________, and such Competitive Bid Loans are composed
of the following: (A) $__________ for [LENGTH OF COMPETITIVE INTEREST PERIOD],
the last day of which is _______________, (B) $__________ for [LENGTH OF
COMPETITIVE INTEREST PERIOD], the last day of which is _______________, and
(iii) its Commitment Amount is $_______.
The Assignor makes no representation or warranty with respect
to the validity or enforceability of the Credit Agreement or any other Loan
Document or the financial condition or creditworthiness of the Borrower.
(b) ASSIGNEE. The Assignee hereby represents and warrants to
the Assignor that (i) it is legally authorized to enter into this Agreement,
(ii) it is an "accredited investor" within the meaning of Regulation D, as
amended, promulgated under the Securities Act of 1933, as amended, [AND] (iii)
it has, independently and without reliance upon the Assignor or the
Administrative Agent, and based on such documents and information as it has
deemed appropriate, made its own evaluation of, and investigation into, the
business, operations, Property, financial and other condition and
creditworthiness of the Borrower and made its own decision to enter into this
Agreement [, AND (IV) IT IS A LENDER OR A SUBSIDIARY OR AFFILIATE OF A LENDER].
4. COVENANTS OF THE ASSIGNEE
The Assignee hereby covenants and agrees that it will,
independently and without reliance upon the Assignor or Administrative Agent,
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, evaluations and decisions in
taking or not taking action under the Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, Property,
-2-
financial and other condition and creditworthiness of the Borrower. The Assignee
further agrees to provide to the Administrative Agent any forms required by
Section 3.10 of the Credit Agreement and any administrative questionnaire
reasonably required by the Administrative Agent.
5. EFFECTIVENESS OF THIS AGREEMENT
(a) Section 2 of this Agreement shall not become effective
until such date (the "ASSIGNMENT EFFECTIVE DATE") as all of the following
conditions shall have been fulfilled:
(i) The Administrative Agent shall have executed a
copy of this Agreement and shall have received duly executed counterparts hereof
by each of the Assignor, the Assignee and, if required by the Credit Agreement,
the Borrower;
(ii) The Assignor shall have delivered to the
Assignee (with a copy to the Administrative Agent) a duly completed letter in
the form of Annex A hereto;
(iii) The Assignee shall have confirmed in writing to
the Assignor (with a copy to the Administrative Agent) that, on or before the
Assignment Effective Date, it shall have transferred (in accordance with Section
6 hereof) the Purchase Price to the Assignor. At the time of such confirmation,
the Assignee shall be deemed to have remade the representations and warranties
contained in Section 3(b)(i), (ii) [AND] (iii) [, AND (IV)] hereof on and as of
the date of such confirmation;
(iv) The Administrative Agent shall have received,
for its own account, the assignment fee required to be paid pursuant to Section
11.7 of the Credit Agreement; and
(v) The Administrative Agent shall have received any
forms required by Section 3.10 of the Credit Agreement and any administrative
questionnaire reasonably required by the Administrative Agent.
(b) Upon the Assignment Effective Date, (i) the Administrative
Agent shall record the assignment contemplated hereby, (ii) the Assignee shall
be a Lender, and (iii) the Assignor, to the extent of the assignment provided
for herein, shall be released from its obligations under the Loan Documents.
(c) The Assignee hereby appoints and authorizes the
Administrative Agent to take such action, on and after the Assignment Effective
Date, 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.
(d) From and after the Assignment Effective Date, the
Administrative Agent shall make all payments in respect of the interest assigned
hereby (including payments of principal, interest, fees and other amounts) to
the Assignee. The Assignor and the Assignee shall make all appropriate
adjustments with respect to amounts under the Loan Documents which accrued prior
to the Assignment Effective Date, and which were paid thereafter, directly
between themselves.
6. PAYMENT INSTRUCTIONS
All payments to be made to the Assignor by the Assignee
hereunder shall be made by wire transfer of immediately available funds to the
Assignor at: [WIRE INSTRUCTIONS].
7. NOTICES
All notices, requests and demands to or upon the Assignee in
connection with this Agreement and the Loan Documents are to be sent or
delivered to the place set forth adjacent to its name on the signature page(s)
hereof.
8. MISCELLANEOUS
(a) For purposes of this Agreement, all calculations and
determinations with respect to the outstanding principal amount of the
Assignor's Loans, the Assignor's Commitment Amount and all other similar
calculations and determinations, shall be made and shall be deemed to be made as
of the commencement of business on the date of such calculation or
determination, as the case may be.
(b) Section headings have been inserted herein for convenience
only and shall not be construed to be a part hereof.
(c) This Agreement embodies the entire agreement and
understanding among the parties hereto with respect to the subject matter hereof
and supersedes all other prior arrangements and understandings among the parties
hereto with respect to the subject matter hereof.
(d) This Agreement may be executed in any number of separate
counterparts and all of said counterparts taken together shall be deemed to
constitute one and the same agreement. It shall not be necessary in making proof
of this Agreement to produce or account for more than one counterpart signed by
the party to be charged.
(e) Every provision of this Agreement is intended to be
severable, and if any term or provision hereof shall be invalid, illegal or
unenforceable for any reason, the validity, legality and enforceability of the
remaining provisions hereof shall not be affected or impaired thereby, and any
invalidity, illegality or unenforceability in any jurisdiction shall not affect
the validity, legality or enforceability of any such term or provision in any
other jurisdiction.
(f) This Agreement shall be binding upon and inure to the
benefit of the Assignor and the Assignee and their respective successors and
permitted assigns, except that neither party may assign or transfer any of its
rights or obligations hereunder (i) without the prior written consent of the
other party, and (ii) in contravention of the Credit Agreement.
- 4 -
(g) This Agreement and the rights and obligations of the
parties hereunder shall be governed by, and construed and interpreted in
accordance with, the internal laws of the State of New York without regard to
principles of conflicts of law.
- 5 -
AS EVIDENCE of the agreement by the parties hereto to the terms and
conditions herein contained, each such party has caused this Agreement to be
duly executed on its behalf.
[NAME OF ASSIGNOR]
By:
Name:
Title:
Address for notices: [NAME OF ASSIGNEE]
____________________ By:_______________________________________
____________________ Name:_____________________________________
____________________ Title:____________________________________
Attention: _________
Telephone:_____________
Facsimile:_____________
Consented to and Accepted this __ day
of __________, ____
THE BANK OF NEW YORK, as Administrative Agent
By:_________________________________
Name:_______________________________
Title:______________________________
[CONSENTED TO THIS __ DAY
OF __________, ____
CVS CORPORATION
BY:_________________________________
NAME:_______________________________
TITLE:______________________________]
- 6 -
ANNEX A TO ASSIGNMENT AND
ACCEPTANCE AGREEMENT
FORM OF LETTER
[Assignment Effective Date]
[Name and Address of Assignee]
Attention: _______________,
_______________
Re: Assignment and Acceptance Agreement, dated as of
_______________, by and between _______________ and _________
(as the same may be amended, supplemented or
otherwise modified from time to time, the "Agreement")
-------------------------------------------------------------
Ladies and Gentlemen:
This letter is being delivered pursuant to Section 5(a)(ii) of the
Agreement. Capitalized terms used herein that are not otherwise defined herein
shall have the respective meanings ascribed thereto in the Agreement.
The Assignor hereby represents and warrants to the Assignee as follows:
(i) the aggregate unpaid principal amount of its Revolving Credit Loans
is $___________, and such Revolving Credit Loans are composed of the following
ABR Advances and Eurodollar Advances: (1) ABR ADVANCES: $__________, and (2)
EURODOLLAR ADVANCES: (A) $__________ for [LENGTH OF INTEREST PERIOD], the last
day of which is _______________, (B) $__________ for [LENGTH OF INTEREST
PERIOD], the last day of which is _______________,
(ii) the aggregate unpaid principal amount of its Competitive Bid Loans
is $_________, and such Competitive Bid Loans are composed of the following: (A)
$__________ for [LENGTH OF COMPETITIVE INTEREST PERIOD], the last day of which
is _______________, (B) $__________ for [LENGTH OF COMPETITIVE INTEREST PERIOD],
the last day of which is_______________,
(iii) its Commitment Amount is $_______, and
- 7 -
(iv) it is the legal and beneficial owner of the Assignor Rights and
Obligations free and clear of any adverse claim created by it.
Very truly yours,
[NAME OF ASSIGNOR]
By:________________________________
Name:______________________________
Title:_____________________________
cc: [Name and title
of Administrative Agent contact]
- 8 -
EXHIBIT F
FORM OF COMPETITIVE BID REQUEST
[Date]
The Bank of New York, as Administrative Agent
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ______________,
______________
Re: 364 Day Credit Agreement, dated as of May 26, 2000, by and
among CVS Corporation, the Lenders party thereto, Fleet
National Bank, as Syndication Agent, Credit Suisse First
Boston, as Documentation Agent, and The Bank of New York, as
Administrative Agent (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement")
------------------------------------------------------------
Capitalized terms used herein that are not otherwise defined herein
shall have the respective meanings ascribed thereto in the Credit Agreement.
Pursuant to Section 2.4 of the Credit Agreement, the Borrower
hereby gives notice of its request to borrow Competitive Bid Loans in the
aggregate sum of $____________ on ____________, which borrowing shall consist
of the following:
Competitive
Amount Interest Period
------ ---------------
The Borrower hereby certifies that on the Borrowing Date set forth
above, and after giving effect to the Competitive Bid Loans requested hereby:
(a) The Borrower shall be in compliance with all of the terms,
covenants and conditions of each Loan Document.
(b) There shall exist no Default or Event of Default.
(c) The representations and warranties contained in the Credit
Agreement shall be true and correct, except those which are expressly specified
to be made as of an earlier date.
IN EVIDENCE of the foregoing, the undersigned has caused this
Competitive Bid Request to be duly executed on its behalf.
CVS CORPORATION
By:________________________________
Name:______________________________
Title:_____________________________
2
EXHIBIT G
FORM OF INVITATION TO BID
[Date]
To the Lenders party
from time to time to the
captioned Credit Agreement
Re: 364 Day Credit Agreement, dated as of May 26, 2000, by and
among CVS Corporation, the Lenders party thereto, Fleet
National Bank, as Syndiction Agent, Credit Suisse First
Boston, as Documentation Agent, and The Bank of New York, as
Administrative Agent (as amended, supplemented or otherwise
modified from time to time, "Credit Agreement")
------------------------------------------------------------
Capitalized terms used herein that are not otherwise defined
herein shall have the respective meanings ascribed thereto in the Credit
Agreement.
Pursuant to a Competitive Bid Request, the Borrower
gave notice of its request to borrow Competitive Bid Loans in the aggregate
sum of $____________ on ____________, which borrowing would consist of the
following type or types of Competitive Advances:
Competitive
Amount Interest Period
------ ---------------
The Lenders are hereby invited to bid, pursuant to the terms
and conditions of the Credit Agreement, on such requested Competitive Bid Loans.
THE BANK OF NEW YORK,
as Administrative Agent
By:________________________
Name:______________________
Title:_____________________
EXHIBIT H
FORM OF COMPETITIVE BID
[Date]
The Bank of New York, as Administrative Agent
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: _________________,
_________________
Re: 364 Day Credit Agreement, dated as of May 26, 2000, by and
among CVS Corporation, the Lenders party thereto, Fleet
National Bank, as Syndication Agent, Credit Suisse First
Boston, as Documentation Agent, and The Bank of New York, as
Administrative Agent (as amended, supplemented or otherwise
modified from time to time, the "credit agreement")
______________________________________________________________
Capitalized terms used herein that are not otherwise defined herein
shall have the respective meanings ascribed thereto in the Credit Agreement.
In response to a Competitive Bid Request, the undersigned Lender
hereby offers to make Competitive Loan(s) in the aggregate sum of $____________
on ____________:
Competitive
Interest Competitive
Amount Period Bid Rate
------ ------------ ------------
[fixed rate]
[LENDER]
By:________________________________
Name:______________________________
Title:_____________________________
EXHIBIT I
FORM OF COMPETITIVE BID ACCEPT/REJECT LETTER
[Date]
The Bank of New York, as Administrative Agent
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ______________,
______________
Re: 364 Day Credit Agreement, dated as of May 26, 2000, by and
among CVS Corporation, the Lenders party thereto, Fleet
National Bank, as Syndication Agent, Credit Suisse First
Boston, as Documentation Agent, and The Bank of New York, as
Administrative Agent (as amended, supplemented or otherwise
modified from time to time, the "credit agreement")
______________________________________________________________
Capitalized terms used herein that are not otherwise defined herein
shall have the respective meanings ascribed thereto in the Credit Agreement.
Pursuant to Section 2.4(d) of the Credit Agreement, the Borrower hereby
gives notice of its acceptance of the following Competitive Bids:
_____________ _______________
_____________ _______________,
and its rejection of all other Competitive Bids, in each case made pursuant to
the Competitive Bid Request, dated _______________.
IN EVIDENCE of the foregoing, the undersigned has caused this
Competitive Bid Accept/Reject Letter to be duly executed on its behalf.
CVS CORPORATION
By:_________________________________
Name:_______________________________
Title:______________________________
SCHEDULE 4.4
LIST OF LITIGATION
NONE
SCHEDULE 8.2
LIST OF LIENS
-------------
NONE
