Exhibit 10.2
EXECUTION COPY
FIVE YEAR CREDIT AGREEMENT
by and among
CVS CORPORATION,
THE LENDERS PARTY HERETO,
BANK OF AMERICA, N.A., CREDIT SUISSE FIRST BOSTON, and
WACHOVIA SECURITIES, INC.,
as Co-Syndication Agents,
ABN AMRO BANK N.V.,
as Documentation Agent,
and
THE BANK OF NEW YORK,
as Administrative Agent
-----------------------------
Dated as of June 11, 2004
-----------------------------
BNY CAPITAL MARKETS, INC.
as Lead Arranger and Book Runner
TABLE OF CONTENTS
1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION....................................................1
1.1 Definitions...........................................................................1
1.2 Principles of Construction...........................................................17
2. AMOUNT AND TERMS OF LOANS....................................................................17
2.1 Revolving Credit Loans...............................................................17
2.2 Swing Line Loans.....................................................................18
2.3 Notice of Borrowing Revolving Credit Loans and Swing Line Loans......................20
2.4 Competitive Bid Loans and Procedure..................................................21
2.5 Use of Proceeds......................................................................23
2.6 Termination or Reduction of Commitments..............................................23
2.7 Prepayments of Loans.................................................................24
2.8 Letter of Credit Sub-facility........................................................24
2.9 Letter of Credit Participation.......................................................25
2.10 Absolute Obligation with respect to Letter of Credit Payments........................26
2.11 Notes................................................................................27
3. PROCEEDS, PAYMENTS, CONVERSIONS, INTEREST, YIELD PROTECTION AND FEES.........................27
3.1 Disbursement of the Proceeds of the Loans............................................27
3.2 Payments.............................................................................28
3.3 Conversions; Other Matters...........................................................28
3.4 Interest Rates and Payment Dates.....................................................30
3.5 Indemnification for Loss.............................................................31
3.6 Reimbursement for Costs, Etc.........................................................32
3.7 Illegality of Funding................................................................33
3.8 Option to Fund; Substituted Interest Rate............................................33
3.9 Certificates of Payment and Reimbursement............................................34
3.10 Taxes; Net Payments..................................................................35
3.11 Fees.................................................................................36
3.12 Letter of Credit Participation Fee...................................................36
3.13 Replacement of Lender................................................................37
4. REPRESENTATIONS AND WARRANTIES...............................................................37
4.1 Existence and Power..................................................................38
4.2 Authority............................................................................38
4.3 Binding Agreement....................................................................38
4.4 Litigation...........................................................................38
4.5 No Conflicting Agreements............................................................39
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4.6 Taxes................................................................................39
4.7 Compliance with Applicable Laws; Filings.............................................39
4.8 Governmental Regulations.............................................................40
4.9 Federal Reserve Regulations; Use of Proceeds.........................................40
4.10 No Misrepresentation.................................................................40
4.11 Plans................................................................................40
4.12 Environmental Matters................................................................41
4.13 Financial Statements.................................................................41
5. CONDITIONS OF LENDING - FIRST LOANS AND LETTERS OF CREDIT ON THE FIRST BORROWING DATE........42
5.1 Evidence of Corporate Action.........................................................42
5.2 Notes................................................................................42
5.3 Opinion of Counsel to the Borrower...................................................42
6. CONDITIONS OF LENDING - ALL LOANS AND LETTERS OF CREDIT......................................43
6.1 Compliance...........................................................................43
6.2 Requests.............................................................................43
6.3 Loan Closings........................................................................43
7. AFFIRMATIVE COVENANTS........................................................................43
7.1 Legal Existence......................................................................43
7.2 Taxes................................................................................44
7.3 Insurance............................................................................44
7.4 Performance of Obligations...........................................................44
7.5 Condition of Property................................................................44
7.6 Observance of Legal Requirements.....................................................44
7.7 Financial Statements and Other Information...........................................45
7.8 Records..............................................................................46
7.9 Authorizations.......................................................................46
7.10 Existing Five Year
Credit Agreement..................................................46
8. NEGATIVE COVENANTS...........................................................................46
8.1 Subsidiary Indebtedness..............................................................47
8.2 Liens................................................................................47
8.3 Dispositions.........................................................................48
8.4 Merger or Consolidation, Etc.........................................................48
8.5 Acquisitions.........................................................................48
8.6 Restricted Payments..................................................................48
8.7 Limitation on Upstream Dividends by Subsidiaries.....................................48
8.8 Limitation on Negative Pledges.......................................................49
8.9 Ratio of Consolidated Indebtedness to Total Capitalization...........................49
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9. DEFAULT......................................................................................50
9.1 Events of Default....................................................................50
9.2 Remedies.............................................................................52
10. AGENT........................................................................................53
10.1 Appointment..........................................................................53
10.2 Delegation of Duties.................................................................53
10.3 Exculpatory Provisions...............................................................53
10.4 Reliance by Administrative Agent.....................................................54
10.5 Notice of Default....................................................................54
10.6 Non-Reliance.........................................................................55
10.7 [Intentionally Omitted]..............................................................55
10.8 Administrative Agent in Its Individual Capacity......................................55
10.9 Successor Administrative Agent.......................................................55
10.10 Co-Syndication Agents and Documentation Agent........................................56
11. OTHER PROVISIONS.............................................................................56
11.1 Amendments, Waivers, Etc.............................................................56
11.2 Notices..............................................................................57
11.3 No Waiver; Cumulative Remedies.......................................................59
11.4 Survival of Representations and Warranties...........................................59
11.5 Payment of Expenses and Taxes; Indemnified Liabilities...............................59
11.6 Lending Offices......................................................................60
11.7 Successors and Assigns...............................................................60
11.8 Counterparts.........................................................................63
11.9 Set-off and Sharing of Payments......................................................63
11.10 Indemnity............................................................................64
11.11 Governing Law........................................................................65
11.12 Severability.........................................................................65
11.13 Integration..........................................................................66
11.14 Treatment of Certain Information.....................................................66
11.15 Acknowledgments......................................................................67
11.16 Consent to Jurisdiction..............................................................67
11.17 Service of Process...................................................................67
11.18 No Limitation on Service or Suit.....................................................67
11.19 WAIVER OF TRIAL BY JURY..............................................................68
11.20 Effective Date.......................................................................68
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EXHIBITS
Exhibit A List of Commitments
Exhibit B Form of Note
Exhibit C Form of Borrowing Request
Exhibit D-1 Form of Opinion of Counsel to the Borrower
Exhibit D-2 Form of Opinion of Special 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
Exhibit J Form of Letter of Credit Request
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FIVE YEAR
CREDIT AGREEMENT, dated as of June 11, 2004, 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"),
BANK OF AMERICA, N.A., CREDIT SUISSE FIRST BOSTON, and WACHOVIA SECURITIES,
INC., as co-syndication agents (in such capacity, each a "CO-SYNDICATION
AGENT"), ABN AMRO BANK N.V., as documentation agent (in such capacity, a
"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.
"ADMINISTRATIVE QUESTIONNAIRE": an Administrative Questionnaire in a form
supplied by the Administrative Agent.
"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.
"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 l/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", (iii) with respect to the Facility Fee, the applicable
percentage set forth below in the column entitled "Facility Fee", (iv) with
respect to the Letter of Credit Participation Fee, the applicable percentage set
forth below in the column entitled "Participation Fee", and (v) with respect to
the Utilization Fee, the applicable percentage set forth below in the column
entitled "Utilization Fee", in each case opposite the applicable Pricing Level:
ABR EURODOLLAR FACILITY PARTICIPATION UTILIZATION
PRICING LEVEL ADVANCES ADVANCES FEE FEE FEE
------------------------------------------------------------------------------------------------------------------
Pricing Level I 0% 0.130% 0.070% 0.130% 0.050%
Pricing Level II 0% 0.170% 0.080% 0.170% 0.050%
Pricing Level III 0% 0.215% 0.085% 0.215% 0.050%
Pricing Level IV 0% 0.275% 0.100% 0.275% 0.050%
Pricing Level V 0% 0.325% 0.125% 0.325% 0.100%
Pricing Level VI 0% 0.400% 0.150% 0.400% 0.100%
Pricing Level VII 0% 0.4625% 0.1875% 0.4625% 0.100%
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
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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.
"APPROVED FUND": with respect to any Lender that is a fund that invests in
commercial loans, any other fund that invests in commercial loans and is managed
or advised by the same investment advisor as such Lender or by an Affiliate of
such investment advisor.
"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 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.
"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 or
pursuant to a Mandatory Borrowing, (ii) in respect of Competitive Bid Loans, any
Domestic Business Day on which a Lender shall make a Competitive Bid Loan
pursuant to a Competitive Bid Request, (iii) in respect of Swing Line Loans, any
Domestic Business Day on which the Swing Line Lender shall make a Swing Line
Loan pursuant to a Borrowing Request and (iv) in respect of Letters of Credit,
any Domestic Business Day on which the Issuer shall issue a Letter of Credit
pursuant to a Letter of Credit Request.
"BORROWING REQUEST": a request for Revolving Credit Loans or Swing Line
Loans in the form of Exhibit C.
"BRIDGE FACILITY
CREDIT AGREEMENT": the Bridge Facility
Credit Agreement,
dated as of June 11, 2004, by and among the Borrower, the lenders party thereto,
Bank of America, N.A., Credit Suisse First Boston, and Wachovia Securities,
Inc., as co-syndication agents, and BNY, as administrative agent, as the same
may be amended, supplemented or otherwise modified from time to time.
"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
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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.
"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 June 11, 2009 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 (a) the outstanding principal balance of such Lender's
Revolving Credit Loans, (b) the Swing Line exposure of such Lender and (c) the
Letter of Credit Exposure of such Lender.
"COMPENSATORY INTEREST PAYMENT": as defined in Section 3.4(c).
"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 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.
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"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 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.
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"CO-SYNDICATION AGENTS": as defined in the preamble.
"CREDIT EXPOSURE": with respect to any Lender at any time, the sum at such
time of (a) the Committed Credit Exposure of such Lender at such time under this
Agreement and (b) the outstanding principal balance of all Competitive Bid Loans
of such Lender at such time under this Agreement.
"CREDIT PARTIES" means the Administrative Agent, the Co-Syndication Agents,
the Documentation Agent, the Swing Line Lender, the Issuer and the Lenders.
"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.
"ECKERD": Eckerd Corporation, a Delaware corporation.
"ECKERD ACQUISITION": the acquisition by the Borrower from Eckerd of
approximately 1260 drugstores located mainly in the southern United States,
including Texas and Florida, as well as Eckerd's mail order, specialty pharmacy
and pharmacy benefits management businesses pursuant to the Eckerd Asset
Purchase Agreement.
"ECKERD ASSET PURCHASE AGREEMENT": the Asset Purchase Agreement, dated as
of April 4, 2004, between the Borrower, CVS Pharmacy, Inc. and X.X. Penney
Company, Inc. and certain of its subsidiaries, including Eckerd (as amended,
supplemented or otherwise modified from time to time).
"EFFECTIVE DATE": as defined in Section 11.20.
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"ELIGIBLE ASSIGNEE": (i) any commercial bank, investment bank, trust
company, banking association, financial institution, mutual fund, pension fund
or any Approved Fund or (ii) any Lender or any Affiliate or any Approved Fund of
such Lender.
"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.
"ENVIRONMENTAL LAWS": all laws, rules, regulations, codes, ordinances,
orders, decrees, judgments, injunctions, notices or binding agreements issued,
promulgated or entered into by any Governmental Authority, relating in any way
to the environment, preservation or reclamation of natural resources, the
management, release or threatened release of any Hazardous Material or to health
and safety matters.
"ENVIRONMENTAL LIABILITY": as to any Person, any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of such Person directly or
indirectly resulting from or based upon (i) violation of any Environmental Law,
(ii) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (iii) exposure to any Hazardous Materials,
(iv) the release or threatened release of any Hazardous Materials into the
environment or (v) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"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 January 3, 2004, of $163,200,000.
"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.
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"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.
"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.
"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 or Letters of Credit outstanding.
"EXISTING FIVE YEAR BANK INDEBTEDNESS": all Indebtedness under the Existing
Five Year
Credit Agreement and all accrued and unpaid monetary obligations of
the Borrower under the Existing Five Year
Credit Agreement.
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"EXISTING FIVE YEAR
CREDIT AGREEMENT": the Five Year
Credit Agreement,
dated as of May 21, 2001, by and among the Borrower, the lenders party thereto,
Credit Suisse First Boston and First Union National Bank, as co-documentation
agents, and BNY, as administrative agent thereunder, as amended.
"FACILITY FEE": as defined in Section 3.11(a).
"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.
"FOREIGN LENDER": any Lender that is organized under the laws of a
jurisdiction other than the United States of America, any State thereof or the
District of Columbia.
"GAAP": generally accepted accounting principles set forth in the opinions
and pronouncements of the Accounting Principles Board and the American Institute
of Certified Public 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(h).
"HAZARDOUS MATERIALS": all explosive or radioactive substances or wastes
and all hazardous or toxic substances, wastes or other pollutants, including
petroleum or petroleum distillates, asbestos or asbestos containing materials,
polychlorinated biphenyls, radon gas, infectious or medical wastes and all other
substances or wastes of any nature regulated pursuant to any Environmental Law.
"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.
9
"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
8.9 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 is made or any Eurodollar Advance is converted to
an ABR Advance, (ii) as to any Swing Line Loan, the day on which the outstanding
principal balance of such Swing Line Loan shall become due and payable in
accordance with Section 2.2(a), (iii) 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, (iv) 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 (v) 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, a Swing Line Interest
Period or a Competitive Interest Period, as the case may be.
10
"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.
"ISSUE" OR "ISSUANCE": when used with respect to a Letter of Credit, shall
be deemed to include any increase in the amount of such Letter of Credit.
"ISSUER": BNY.
"LENDER": as defined in the preamble; such term to also include the Swing
Line Lender and the Issuer where the context hereof requires or permits such
inclusion.
"LETTER OF CREDIT": as defined in Section 2.8.
"LETTER OF CREDIT COMMITMENT": the commitment of the Issuer to issue
Letters of Credit in accordance with the terms hereof in an aggregate
outstanding face amount not exceeding $150,000,000 (or, if less, the Aggregate
Commitment Amount) at any time, as the same may be reduced pursuant to Section
2.6.
"LETTER OF CREDIT EXPOSURE": at any time, (a) in respect of all Lenders,
the sum, without duplication, of (i) the maximum aggregate amount which may be
drawn under all unexpired Letters of Credit at such time (whether the conditions
for drawing thereunder have or may be satisfied), (ii) the aggregate amount, at
such time, of all unpaid drafts (which have not been dishonored) drawn under all
Letters of Credit, and (iii) the aggregate unpaid principal amount of the
Reimbursement Obligations at such time, and (b) in respect of any Lender, an
amount equal to such Lender's Commitment Percentage at such time multiplied by
the amount determined under clause (a) of this definition.
"LETTER OF CREDIT PARTICIPATION": with respect to each Lender, its
obligations to the Issuer under Section 2.9.
"LETTER OF CREDIT PARTICIPATION FEE": as defined in Section 3.12.
"LETTER OF CREDIT REQUEST": a request in the form of Exhibit J.
"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, a Competitive Bid Loan or a Swing Line
Loan, as the case may be.
11
"LOAN DOCUMENTS": this Agreement and, upon the execution and delivery
thereof, the Notes, if any, and the Reimbursement Agreements.
"LOANS": the Revolving Credit Loans, the Competitive Bid Loans and the
Swing Line Loans.
"MANDATORY BORROWING": as defined in Section 2.2(b).
"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, the Issuer 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.
"NEGOTIATED RATE": with respect to each Swing Line Loan, the rate per annum
agreed to in writing by the Borrower and the Swing Line Lender as the interest
rate which such Swing Line Loan shall bear.
"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": with respect to each Lender that has requested one, a promissory
note evidencing such Lender's Loans payable to the order of such Lender (or, if
required by such Lender, to such Lender and its registered assigns),
substantially in the form of Exhibit B.
"OTHER CREDIT AGREEMENT": the 364 Day Credit Agreement, dated as of June
11, 2004, by and among the Borrower, the lenders party thereto, Bank of America,
N.A., Credit Suisse First Boston, and Wachovia Securities, Inc., as
co-syndication agents, SunTrust Bank, as documentation agent, and BNY, as
administrative agent, as the same may be amended, supplemented, replaced or
otherwise modified from time to time.
"PARTICIPANT": as defined in Section 11.7(e).
"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.
12
"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.
"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.
13
"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.
"REIMBURSEMENT AGREEMENT": as defined in Section 2.8(b).
"REIMBURSEMENT OBLIGATIONS": all obligations and liabilities of the
Borrower due and to become due (a) under the Reimbursement Agreements and (b)
hereunder in respect of Letters of Credit.
"RELATED PARTIES": with respect to any specified Person, such Person's
Affiliates and the respective directors, officers, employees, agents and
advisors of such Person and such Person's Affiliates.
"REPLACED LENDER": as defined in Section 3.13.
"REPLACEMENT LENDER": as defined in Section 3.13.
"REPORTABLE EVENT": with respect to any Pension Plan, (a) any event set
forth in Sections 4043(c) (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 having Credit Exposure equal to or more than 51% of the Aggregate
Credit Exposure.
"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 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,
14
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).
"S&P": Standard & Poor's, a division of The XxXxxx-Xxxx Companies, 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": such counsel as the Administrative Agent may engage from
time to time.
"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.
"SWING LINE COMMITMENT": the commitment of the Swing Line Lender to make
Swing Line Loans in accordance with the terms hereof in an aggregate outstanding
principal amount not exceeding $100,000,000 (or, if less, the Aggregate
Commitment Amount) at any time, as the same may be reduced pursuant to Section
2.6.
"SWING LINE COMMITMENT PERIOD": the period from the Effective Date to, but
excluding, the Swing Line Termination Date.
"SWING LINE EXPOSURE": at any time, in respect of any Lender, an amount
equal to the aggregate principal balance of Swing Line Loans at such time
multiplied by such Lender's Commitment Percentage at such time.
15
"SWING LINE INTEREST PERIOD": as to any Swing Line Loan, the period
commencing on the date of such Swing Line loan and ending on the date set forth
by the Borrower in the Borrowing Request with respect to such Swing Line Loan,
PROVIDED that the last day of any Swing Line Interest Period shall not be
earlier than one day after the date of such Swing Line Loan or later than 7 days
after the date of such Swing Line Loan and in no event later than the Swing Line
Termination Date, and PROVIDED FURTHER that if any Swing Line 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.
"SWING LINE LENDER": BNY.
"SWING LINE LOAN" and "SWING LINE LOANS": as defined in Section 2.2(a).
"SWING LINE MATURITY DATE": as defined in Section 2.2(a).
"SWING LINE PARTICIPATION AMOUNT": as defined in Section 2.2(c).
"SWING LINE TERMINATION DATE": the date which is 7 Domestic Business Days
prior to the Commitment Termination Date.
"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 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.
"UTILIZATION FEE": as defined in Section 3.11(b).
16
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
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
17
reborrow in accordance with the provisions hereof. Immediately after making each
Revolving Credit Loan and after giving effect to all Swing Line Loans and
Competitive Bid Loans repaid and all Reimbursement Obligations paid 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, (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 incidence of, the Revolving Credit Loans to be made)
then outstanding from such Lender and (III) the product of (A) such Lender's
Commitment Percentage and (B) the sum of (1) the aggregate principal balance of
all Swing Line Loans (exclusive of Swing Line Loans which are repaid with the
proceeds of, and simultaneously with the incurrence of, the Revolving Credit
Loans to be made) then outstanding and (2) the Letter of Credit Exposure of all
Lenders, will not exceed the Commitment of such Lender at such time. At the
option of the Borrower, indicated in a Borrowing Request, Revolving Credit Loans
may be made as ABR Advances or Eurodollar Advances.
(b) 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.
2.2 SWING LINE LOANS
(a) Subject to the terms and conditions hereof, the Swing Line
Lender agrees to make loans under this Agreement (each a "SWING LINE LOAN" and,
collectively, the "SWING LINE LOANS") to the Borrower from time to time during
the Swing Line Commitment Period. Swing Line Loans (i) may be repaid and
reborrowed in accordance with the provisions hereof, (ii) shall not, immediately
after giving effect thereto, result in the Aggregate Credit Exposure exceeding
the Aggregate Commitment Amount, and (iii) shall not, immediately after giving
effect thereto, result in the aggregate outstanding principal balance of all
Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender
shall not be obligated to make any Swing Line Loan at a time when any Lender
shall be in default of its obligations under this Agreement unless the Swing
Line Lender has entered into arrangements satisfactory to it and the Borrower to
eliminate the Swing Line Lender's risk with respect to such defaulting Lender's
participation in such Swing Line Loan. The Swing Line Lender will not make a
Swing Line Loan if the Administrative Agent, or any Lender by notice to the
Swing Line Lender and the Borrower no later than one Domestic Business Day prior
to the Borrowing Date with respect to such Swing Line Loan, shall have
determined that the conditions set forth in Sections 5 and/or 6, as applicable,
have not been satisfied and such conditions remain unsatisfied as of the
requested time of the making of such Loan. Each Swing Line Loan shall be due and
payable on the day (the "SWING LINE MATURITY DATE") being the earliest of the
last day of the Swing Line Interest Period applicable thereto, the date on which
the Swing Line Commitment shall have been voluntarily terminated by the Borrower
in accordance with Section 2.6, and the date on which the Loans shall become due
and payable pursuant to the provisions hereof, whether by acceleration or
otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate
applicable thereto.
18
The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its
office designated in Section 11.2 by crediting such proceeds to an account of
the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business Day, the Swing Line Lender may, in its
sole discretion, give notice to the Lenders and the Borrower that such
outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit
Loans (PROVIDED that such notice shall be deemed to have been automatically
given upon the occurrence of a Default or an Event of Default under Sections
9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as
ABR Advances (each such borrowing, a "MANDATORY BORROWING"), shall be made by
all Lenders PRO RATA based on each such Lender's Commitment Percentage on the
Domestic Business Day immediately succeeding the giving of such notice. The
proceeds of each Mandatory Borrowing shall be remitted directly to the Swing
Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably
agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in
the amount and in the manner specified in the preceding sentence and on the date
specified in writing by the Swing Line Lender notwithstanding: (i) whether the
amount of such Mandatory Borrowing complies with the minimum amount for Loans
otherwise required hereunder, (ii) whether any condition specified in Section 6
is then unsatisfied, (iii) whether a Default or an Event of Default then exists,
(iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal
amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such
time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice from the Administrative
Agent, such Lender shall purchase unconditionally, irrevocably, and severally
(and not jointly) from the Swing Line Lender a participation in the outstanding
Swing Line Loans (including accrued interest thereon) in an amount equal to the
product of its Commitment Percentage and the outstanding balance of the Swing
Line Loans (each, a "SWING LINE PARTICIPATION AMOUNT"). Each Lender shall also
be liable for an amount equal to the product of its Commitment Percentage and
any amounts paid by the Borrower pursuant to this Section that are subsequently
rescinded or avoided, or must otherwise be restored or returned. Such
liabilities shall be unconditional and without regard to the occurrence of any
Default or Event of Default or the compliance by the Borrower with any of its
obligations under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender
of notice from the Administrative Agent, such Lender shall promptly make
available to the Administrative Agent for the account of the Swing Line Lender
its Swing Line Participation Amount at the office of the Administrative Agent
specified in Section 11.2, in lawful money of the United States and in
immediately available funds. The Administrative Agent shall deliver the payments
made by each Lender pursuant to the immediately preceding sentence to the Swing
Line Lender promptly upon receipt thereof in like funds as received. Each Lender
hereby indemnifies and agrees to hold harmless the Administrative Agent and the
Swing Line Lender from and against any and all losses, liabilities (including
liabilities for penalties), actions, suits, judgments, demands, costs and
expenses resulting from any failure on the part of such Lender to pay, or from
any delay in paying, the Administrative Agent any amount such Lender is required
by notice from the Administrative Agent to pay in accordance with this Section
(except in respect of
19
losses, liabilities or other obligations suffered by the Administrative Agent or
the Swing Line Lender, as the case may be, resulting from the gross negligence
or willful misconduct of the Administrative Agent or the Swing Line Lender, as
the case may be), and such Lender shall pay interest to the Administrative Agent
for the account of the Swing Line Lender from the date such amount was due until
paid in full, on the unpaid portion thereof, at a rate of interest per annum,
whether before or after judgment, equal to (i) from the date such amount was due
until the third day therefrom, the Federal Funds Effective Rate, and (ii)
thereafter, the Federal Funds Effective Rate PLUS 2%, payable upon demand by the
Swing Line Lender. The Administrative Agent shall distribute such interest
payments to the Swing Line Lender upon receipt thereof in like funds as
received.
(e) Whenever the Administrative Agent is reimbursed by the Borrower
for the account of the Swing Line Lender for any payment in connection with
Swing Line Loans and such payment relates to an amount previously paid by a
Lender pursuant to this Section, the Administrative Agent will promptly remit
such payment to such Lender.
2.3 NOTICE OF BORROWING REVOLVING CREDIT LOANS AND SWING LINE LOANS
The Borrower agrees to notify the Administrative Agent (and with
respect to a Swing Line Loan, the Swing Line Lender), which notification shall
be irrevocable, no later than (a) 12:00 Noon on the proposed Borrowing Date in
the case of Swing Line Loans, (b) 10:00 A.M. on the proposed Borrowing Date in
the case of Revolving Credit Loans to consist of ABR Advances and (c) 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 or the Swing Line Commitment, (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 (iv) the Interest Period for
such Eurodollar Advances and (v) the Swing Line Interest Period for, and the
amount of, each Swing Line Loan. Each such notice shall be promptly confirmed by
delivery to the Administrative Agent (and, with respect to a Swing Line Loan,
the Swing Line Lender) 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. Each Swing Line Loan made on each Borrowing Date
shall equal no less than $1,000,000 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, (A) 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 and/or (B) the Swing Line Lender shall make immediately
available funds available to the Borrower on such Borrowing Date in an amount
equal to the Swing Line Loan requested by the Borrower.
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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.
(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
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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,
(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
22
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.
2.5 USE OF PROCEEDS
The Borrower agrees that the proceeds of the Loans and Letters of
Credit shall be used solely for its general corporate purposes not inconsistent
with the provisions hereof, including as a backup for commercial paper issued by
the Borrower. Notwithstanding anything to the contrary contained in any Loan
Document, the Borrower further agrees that no part of the proceeds of any Loan
or Letter of Credit will be used, directly or indirectly, and whether
immediately, incidentally or ultimately (i) 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 and (ii) to make a loan to any director or
executive officer of the Borrower or any Subsidiary.
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, the Swing
Line Commitment and the Letter of Credit Commitment, at any time, or (ii)
permanently reduce the Aggregate Commitment Amount, the Swing Line Commitment or
the Letter of Credit Commitment, 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 (A) in the case of the Aggregate Commitment Amount $10,000,000 or an
integral multiple of $1,000,000 in excess thereof, (B) in the case of the Swing
Line Commitment, $1,000,000, or an integral multiple of $1,000,000 in excess
thereof, and (C) in the case of the Letter of Credit Commitment, $1,000,000, or
an integral multiple of $1,000,000 in excess thereof, and (2) immediately after
giving effect to each such reduction, (A) the Aggregate Commitment Amount shall
equal or exceed the Aggregate Credit Exposure, (B) the Swing Line Commitment
shall equal or exceed the aggregate outstanding principal balance of all Swing
Line Loans and (C) the Letter of Credit Commitment shall equal or exceed the
Letter of Credit Exposure of all Lenders, and PROVIDED FURTHER that a notice of
termination of the Commitments, the Swing Line Commitment and the Letter of
Credit Commitment 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.
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(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, Competitive Bid Loans and Swing Line 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 Swing
Line Loans and 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, the Swing Line Commitment and the Letter of Credit Commitment
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 and Swing Line Loans) or an integral
multiple of $1,000,000 ($100,000 in the case of ABR Advances and Swing Line
Loans) in excess thereof.
(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.
2.8 LETTER OF CREDIT SUB-FACILITY
(a) Subject to the terms and conditions hereof and the payment by
the Borrower to the Issuer of such fees as the Borrower and the Issuer shall
have agreed in writing, the Issuer agrees, in reliance on the agreement of the
other Lenders set forth in Section 2.9, to issue standby letters of credit (each
a "LETTER OF CREDIT" and, collectively, the "LETTERS OF CREDIT") during the
Commitment Period for the account of the Borrower, PROVIDED that immediately
after the issuance of each Letter of Credit (i) the Letter of Credit Exposure of
all Lenders shall not exceed the Letter of Credit Commitment, and (ii) the
Aggregate Credit Exposure shall not exceed the Aggregate Commitment Amount. Each
Letter of Credit shall have an expiration date which shall be not later than the
earlier to occur of one year from the date of issuance thereof or 5 days prior
to the Commitment Termination Date. No Letter of Credit shall be issued if the
Administrative Agent, or any Lender by notice to the Administrative Agent and
the Issuer no later than 3:00 P.M. one Domestic Business Day prior to the
requested date of issuance of such Letter of Credit, shall have determined that
the conditions set forth in Sections 5 and/or 6, as applicable have not been
satisfied.
24
(b) Each Letter of Credit shall be issued for the account of the
Borrower in support of an obligation of the Borrower in favor of a beneficiary
who has requested the Issuance of such Letter of Credit as a condition to a
transaction entered into in connection with the Borrower's ordinary course of
business. The Borrower shall give the Administrative Agent a Letter of Credit
Request for the issuance of each Letter of Credit by 12:00 Noon at least two
Domestic Business Days prior to the requested date of issuance. Such Letter of
Credit Request shall be accompanied by the Issuer's standard Application and
Agreement for Standby Letter of Credit (each a "REIMBURSEMENT AGREEMENT")
executed by the Borrower, and shall specify (i) the beneficiary of such Letter
of Credit and the obligations of the Borrower in respect of which such Letter of
Credit is to be issued, (ii) the Borrower's proposal as to the conditions under
which a drawing may be made under such Letter of Credit and the documentation to
be required in respect thereof, (iii) the maximum amount to be available under
such Letter of Credit, and (iv) the requested date of issuance. Upon receipt of
such Letter of Credit Request from the Borrower, the Administrative Agent shall
promptly notify the Issuer and each other Lender thereof. The Issuer shall, on
the proposed date of issuance and subject to the other terms and conditions of
this Agreement, issue the requested Letter of Credit. Each Letter of Credit
shall be in form and substance reasonably satisfactory to the Issuer, with such
provisions with respect to the conditions under which a drawing may be made
thereunder and the documentation required in respect of such drawing as the
Issuer shall reasonably require. Each Letter of Credit shall be used solely for
the purposes described therein.
(c) Each payment by the Issuer of a draft drawn under a Letter of
Credit shall give rise to the obligation of the Borrower to immediately
reimburse the Issuer for the amount thereof. The Issuer shall promptly notify
the Borrower of such payment by the Issuer of a draft drawn under a Letter of
Credit, but any failure to so notify shall not in any manner affect the
obligation of the Borrower to make reimbursement when due. In lieu of such
notice, if the Borrower has not made reimbursement prior to the end of the
Domestic Business Day when due, the Borrower hereby authorizes the Issuer to
deduct the amount of any such reimbursement from such account(s) as the Borrower
may from time to time designate in writing to the Issuer, upon which the Issuer
shall apply the amount of such deduction to such reimbursement. If all or any
portion of any reimbursement obligation in respect of a Letter of Credit shall
not be paid when due (whether at the stated maturity thereof, by acceleration or
otherwise), such overdue amount shall bear interest, payable upon demand, at a
rate per annum equal to the Alternate Base Rate PLUS the Applicable Margin
applicable to ABR Advances PLUS 2%, from the date of such nonpayment until paid
in full (whether before or after the entry of a judgment thereon).
2.9 LETTER OF CREDIT PARTICIPATION
(a) Each Lender hereby unconditionally and irrevocably, severally
(and not jointly) takes an undivided participating interest in the obligations
of the Issuer under and in connection with each Letter of Credit in an amount
equal to such Lender's Commitment Percentage of the amount of such Letter of
Credit. Each Lender shall be liable to the Issuer for its Commitment Percentage
of the unreimbursed amount of any draft drawn and honored under each Letter of
Credit. Each Lender shall also be liable for an amount equal to the product of
its Commitment Percentage and any amounts paid by the Borrower pursuant to
Sections 2.8 and 2.10 that are subsequently rescinded or avoided, or must
otherwise be restored or returned. Such
25
liabilities shall be unconditional and without regard to the occurrence of any
Default or Event of Default or the compliance by the Borrower with any of its
obligations under the Loan Documents.
(b) The Issuer shall promptly notify the Administrative Agent, and
the Administrative Agent shall promptly notify each Lender (which notice shall
be promptly confirmed in writing), of the date and the amount of each draft paid
under each Letter of Credit with respect to which full reimbursement payment
shall not have been made by the Borrower as provided in Section 2.8(c), and
forthwith upon receipt of such notice, such Lender shall promptly make available
to the Administrative Agent for the account of the Issuer its Commitment
Percentage of the amount of such unreimbursed draft at the office of the
Administrative Agent specified in Section 11.2 in lawful money of the United
States and in immediately available funds. The Administrative Agent shall
distribute the payments made by each Lender pursuant to the immediately
preceding sentence to the Issuer promptly upon receipt thereof in like funds as
received. Each Lender shall indemnify and hold harmless the Administrative Agent
and the Issuer from and against any and all losses, liabilities (including
liabilities for penalties), actions, suits, judgments, demands, costs and
expenses (including, without limitation, reasonable attorneys' fees and
expenses) resulting from any failure on the part of such Lender to provide, or
from any delay in providing, the Administrative Agent with such Lender's
Commitment Percentage of the amount of any payment made by the Issuer under a
Letter of Credit in accordance with this clause (b) above (except in respect of
losses, liabilities or other obligations suffered by the Administrative Agent or
the Issuer, as the case may be, resulting from the gross negligence or willful
misconduct of the Administrative Agent or the Issuer, as the case may be). If a
Lender does not make available to the Administrative Agent when due such
Lender's Commitment Percentage of any unreimbursed payment made by the Issuer
under a Letter of Credit, such Lender shall be required to pay interest to the
Administrative Agent for the account of the Issuer on such Lender's Commitment
Percentage of such payment at a rate of interest per annum equal to (i) from the
date such Lender should have made such amount available until the third day
therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal
Funds Effective Rate PLUS 2%, in each case payable upon demand by the Issuer.
The Administrative Agent shall distribute such interest payments to the Issuer
upon receipt thereof in like funds as received.
(c) Whenever the Administrative Agent is reimbursed by the
Borrower, for the account of the Issuer, for any payment under a Letter of
Credit and such payment relates to an amount previously paid by a Lender in
respect of its Commitment Percentage of the amount of such payment under such
Letter of Credit, the Administrative Agent (or the Issuer, if such payment by a
Lender was paid by the Administrative Agent to the Issuer) will promptly pay
over such payment to such Lender.
2.10 ABSOLUTE OBLIGATION WITH RESPECT TO LETTER OF CREDIT PAYMENTS
The Borrower's obligation to reimburse the Administrative Agent for
the account of the Issuer for each payment under or in respect of each Letter of
Credit shall be absolute and unconditional under any and all circumstances and
irrespective of any set-off, counterclaim or defense to payment which the
Borrower may have or have had against the beneficiary of such Letter
26
of Credit, the Administrative Agent, the Issuer, the Swing Line Lender, any
Lender or any other Person, including, without limitation, any defense based on
the failure of any drawing to conform to the terms of such Letter of Credit, any
drawing document proving to be forged, fraudulent or invalid, or the legality,
validity, regularity or enforceability of such Letter of Credit, PROVIDED that,
with respect to any Letter of Credit, the foregoing shall not relieve the Issuer
of any liability it may have to the Borrower for any actual damages sustained by
the Borrower arising from a wrongful payment (or failure to pay) under such
Letter of Credit made as a result of the Issuer's gross negligence or willful
misconduct.
2.11 NOTES
Any Lender may request that the Loans made by it be evidenced by a
Note. In such event, the Borrower shall prepare, execute and deliver to such
Lender a Note payable to the order of such Person or, if requested by such
Person, such Person and its registered assigns. Thereafter, all Loans evidenced
by such Note and interest thereon shall at all times (including after assignment
pursuant to Section 11.7) be represented by a Note in like form payable to the
order of the payee named therein and its registered assigns.
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
(other than the Swing Line 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
27
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 payment, including each prepayment, of principal and
interest on the Loans and of the Facility Fee, the Utilization Fee and the
Letter of Credit Participation Fee (collectively, together with all of the other
fees to be paid to the Administrative Agent, the Lenders, the Issuer and the
Swing Line Lender 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 without setoff,
deduction or counterclaim 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 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, (ii) Competitive Bid Loans shall be remitted by the Administrative
Agent in like funds as received to each applicable Lender and (iii) Swing Line
Loans shall be remitted by the Administrative Agent in like funds as received to
the Swing Line 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, the Utilization Fee and the Letter of Credit Participation 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
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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 no
later than 10:00 a.m. 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. Each
Conversion of Loans from one Type to another shall be made pro rata according to
the outstanding principal amount of the Loans of each Lender. 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
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(iii) the Borrower shall not be permitted to have more than 15
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 thereto PLUS the Applicable Margin.
constituting ABR Advances
Revolving Credit Loans constituting Eurodollar Rate applicable thereto PLUS the Applicable Margin.
Eurodollar Advances
Competitive Bid Loans Fixed rate of interest applicable thereto accepted by the Borrower
pursuant to Section 2.4(d).
Swing Line Loans Negotiated Rate applicable thereto as provided in Section 2.2(a).
(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
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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 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 or a Swing Line Loan after it shall have agreed to a
Negotiated Rate with respect thereto in accordance with Section 2.2(a), (iii) a
Eurodollar Advance, Competitive Bid Loan or Swing Line Loan shall be terminated
for any reason prior to the last day of the Interest Period applicable thereto
(other than the termination of a Swing Line Loan resulting from a Mandatory
Borrowing at a time when no Default or Event of Default shall exist), (iv) any
repayment or prepayment of the principal amount of a Eurodollar Advance,
Competitive Bid Loan or Swing Line Loan is made for any reason on a date which
is prior to the last day of the Interest Period applicable thereto (other than
the repayment or prepayment of a Swing Line Loan resulting from a Mandatory
Borrowing at a time when no Default or Event of Default shall exist), or (v) the
Borrower shall have revoked a
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notice of prepayment or notice of termination of the Commitments, the Swing Line
Commitment and the Letter of Credit Commitment 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, Competitive Bid Loan or Swing Line Loan, as the case may be, or
redeploying funds prepaid or repaid, in amounts which correspond to such
Eurodollar Advance, Competitive Bid Loan or Swing Line 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 the Issuer or 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 the Issuer's or such Lender's capital or the
capital of any Person directly or indirectly owning or controlling the Issuer or
such Lender (each a "CONTROL PERSON"), or (B) the asset value (for capital
purposes) to the Issuer, such Lender or such Control Person, as applicable, of
the Reimbursement Obligations, or any participation therein, or the Loans, or
any participation therein, in any case to a level below that which the Issuer,
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 the
Issuer's, 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 the Issuer,
such Lender or such Control Person, as applicable, to any tax (documentary,
stamp or otherwise) with respect to this Agreement, any Note, or any
Reimbursement Agreement, or (iv) will change the basis of taxation of payments
to the Issuer, 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 the
Issuer's, such Lender's or such Control Person's net income) then, in each such
case, within ten days after demand by the Issuer or such Lender, as applicable,
the Borrower shall pay to the Issuer, such Lender or such Control Person, as the
case may be, such additional amount or amounts as shall be sufficient to
compensate the Issuer, 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 the Issuer's, such Lender's or such Control Person's compliance
during the term hereof with such Regulatory Change. The Issuer and 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
32
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
Swing Line Loan, 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 Swing Line Loan
or 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 Swing Line Loan, Eurodollar Advance or Competitive Bid Loan
and any amounts owing under Sections 3.5 and 3.6. The Swing Line Lender and each
Lender shall be entitled to fund and maintain its funding of all or any part of
each Swing Line Loan, 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 Swing Line Loan or 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 Swing Line Loan or Competitive Bid Loan, as the
case may be, and having a maturity corresponding to such
33
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 Issuer and 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 the Issuer or such
Lender, as the case may be, setting forth a description in reasonable detail of
any such payment or reimbursement. Each determination by the Issuer and each
Lender of such payment or reimbursement shall be conclusive absent manifest
error.
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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 Issuer
and the Lenders, as may be necessary in order that the actual amounts received
by the Issuer and 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, the Issuer
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,
the Issuer 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 the Issuer and each Lender. If
any payment to the Issuer or any Lender under any Loan Document is or becomes
subject to any withholding, the Issuer or such Lender, as the case may be, shall
(unless otherwise required by a Governmental Authority or as a result of any
law, rule, regulation, order or similar directive applicable to the Issuer or
such Lender, as the case may be) 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 the Issuer or such Lender, as the case may be, in any
respect. In the event that the Issuer or any Lender determines that it received
a refund or credit for taxes paid by the Borrower under this Section, the Issuer
or such Lender, as the case may be, 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 the Issuer or such Lender, as the case may be, under this Section.
(b) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under the Loan Documents shall deliver to the Borrower (with
a copy to the Administrative Agent), at the time or times prescribed by
applicable law, such properly completed and executed documentation prescribed by
applicable law or reasonably requested by the Borrower as will permit such
payments to be made without withholding or at a reduced rate. 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 withhold due to the
failure of such Lender to file any statement of exemption required by the
Internal Revenue Code.
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3.11 FEES
(a) 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 sum of (i) the outstanding principal balance of all Revolving
Credit Loans of such Lender, (ii) such Lender's Swing Line Exposure and (iii)
such Lender's Letter of Credit Exposure. 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.
(b) UTILIZATION FEE. The Borrower agrees to pay to the
Administrative Agent for the pro rata account of each Lender a fee (the
"UTILIZATION FEE") for each day during the period commencing on the Effective
Date and ending on the Expiration Date (or, if later, the date when the
Committed Credit Exposure of such Lender is $0) that the sum of the Aggregate
Credit Exposure plus the Aggregate Credit Exposure (as defined in the Other
Credit Agreement) on such date exceeds 50% of the sum of the Aggregate
Commitment Amount plus the Aggregate Commitment Amount (as defined in the Other
Credit Agreement) on such date, payable on each Interest Payment Date (other
than an Interest Payment Date applicable solely to Competitive Bid Loans) or if
Letters of Credit are outstanding, but no Revolving Credit Loans or Swing Line
Loans are outstanding, payable on each date that the Letter of Credit
Participation Fee is payable, at a rate per annum equal to the Applicable Margin
of the Committed Credit Exposure of such Lender on such date. Notwithstanding
anything to the contrary contained in this Section, on and after the Commitment
Termination Date, the Utilization Fee shall be payable upon demand. The
Utilization Fee shall be computed on the basis of a 360-day year for the actual
number of days elapsed.
3.12 LETTER OF CREDIT PARTICIPATION FEE
The Borrower agrees to pay to the Administrative Agent for the pro
rata account of each Lender a fee (the "LETTER OF CREDIT PARTICIPATION FEE")
with respect to the Letters of Credit during the period commencing on the
Effective Date and ending on the Commitment Termination Date or, if later, the
date when the Letter of Credit Exposure of all Lenders is $0, 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 last date of such period, at a rate per
annum equal to the Applicable Margin of the average daily aggregate amount which
may be drawn under the Letters of Credit during such period (whether or not the
conditions for drawing thereunder have or may be satisfied) multiplied by such
Lender's
36
Commitment Percentage. The Letter of Credit Participation Fee shall be computed
on the basis of a 360-day year for the actual number of days elapsed.
3.13 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(b), 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"),
reasonably acceptable to the Swing Line Lender and the Issuer, 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(b) (with the processing and recordation fee referred to in Section
11.7(b) payable pursuant to said Section 11.7(b) to be paid by the Replacement
Lender) pursuant to which the Replacement Lender shall acquire the Commitment,
the outstanding Loans, the Swing Line Exposure and the Letter of Credit Exposure
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 and Swing
Line Participation Amounts of the Replaced Lender, (B) an amount equal to all
drawings on all Letters of Credit that have been funded by (and not reimbursed
to) such Replaced Lender, together with all then unpaid interest with respect
thereto at such time, and (C) an amount equal to all accrued, but unpaid, fees
owing to the Replaced Lender, (b) to the Issuer, an amount equal to such
Replaced Lender's Commitment Percentage of all drawings (which at such time
remain unpaid drawings) to the extent such amount was not funded by such
Replaced Lender, (c) to the Swing Line Lender, an amount equal to such Replaced
Lender's Commitment Percentage of any Mandatory Borrowing to the extent such
amount was not funded by such Replaced Lender, and (d) 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 3.13, 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 and the repayment of the Loans.
4. REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent, the Lenders and the
Issuer to enter into this Agreement, the Lenders to make the Loans and the
Issuer to issue Letters of Credit, the Borrower hereby makes the following
representations and warranties to the Administrative Agent, the Lenders and the
Issuer:
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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
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, individually or in the
aggregate, materially and adversely affect any of the transactions contemplated
by any Loan Document (it being understood that the Eckerd Acquisition is not a
transaction contemplated by any Loan Document for purposes of this clause (b)).
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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, applications, documents, instruments and
information required to be filed pursuant to all applicable
39
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 or the Letters of Credit has been or will be used, directly or
indirectly, and whether immediately, incidentally or ultimately, 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, neither the Issuer nor any 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 and the issuance of each Letter of Credit, 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 or issuance of such Letter of Credit) 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. In addition, no part
of the proceeds of any Loan or Letter of Credit will be used, whether directly
or indirectly, and whether immediately, incidentally or ultimately, to make a
loan to any director or executive officer of the Borrower or any Subsidiary.
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 pursuant to any Loan Document 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 (it being understood that the Borrower makes no representation
or warranty hereunder with respect to any projections or other forward looking
information).
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
40
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 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 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 current or, to the extent it represents
future liability in the ordinary course, any future 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 and with the portability,
nondiscrimination and other requirements of Sections 9801, 9802, 9803, 9811 and
9812 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 3, 2004, and the related
Consolidated Statements of Operations, Shareholders' Equity and Cash Flows for
the fiscal year then ended, and (ii) the unaudited Consolidated Balance Sheet of
41
the Borrower and its Subsidiaries as of April 3, 2004, and the related
Consolidated Statements of Operations, Shareholders' Equity and 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 accordance with GAAP as
then in effect, should have been disclosed in the Financial Statements and was
not. During the period from January 3, 2004 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 AND LETTERS OF CREDIT 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, the Swing Line Lender to make one or more Swing Line
Loans, the Issuer to issue one or more Letters of Credit 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 Administrative Agent shall have received a Note for each Lender
that shall have requested one, executed by the Borrower.
5.3 OPINION OF COUNSEL TO THE BORROWER
The Administrative Agent shall have received:
(a) an opinion of Xxxxx Xxxxxxxxx, counsel to the Borrower, dated
the Effective Date, and in the form of Exhibit D-1; and
42
(b) an opinion of Xxxxx Xxxx & Xxxxxxxx, special counsel to the
Borrower, dated the Effective Date, and in the form of Exhibit D-2.
6. CONDITIONS OF LENDING - ALL LOANS AND LETTERS OF CREDIT
The obligation of each Lender on any Borrowing Date to make each
Revolving Credit Loan (other than a Revolving Credit Loan constituting a
Mandatory Borrowing), the Swing Line Lender to make each Swing Line Loan, the
Issuer to issue each Letter of Credit and any Lender to make a Competitive Bid
Loan are subject to the fulfillment of the following conditions precedent:
6.1 COMPLIANCE
On each Borrowing Date, and after giving effect to the Loans to be
made or the Letters of Credit to be issued 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 either or both, as
applicable, of a Borrowing Request or a Letter of Credit 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, any
Lender or the Issuer 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 Reimbursement Obligations, 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.
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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.
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.
44
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
Operations, 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
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 Operations, 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
8.9.
(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,
45
(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
delivered in connection with the statements referred to in Section 7.7(a);
(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; and
(j) Prompt written notice of such other information with
documentation required by bank regulatory authorities under applicable "know
your customer" and Anti-Money Laundering rules and regulations (including,
without limitation, the USA Patriot Act), as from time to time may be reasonably
requested by the Administrative Agent or any Lender.
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.
7.10 EXISTING FIVE YEAR CREDIT AGREEMENT
Cause all Existing Five Year Bank Indebtedness to have been paid in
full, cause the commitments under the Existing Five Year Credit Agreement to
have been terminated and deliver satisfactory evidence of the foregoing to the
Administrative Agent on or before September 30, 2004 if the Eckerd Acquisition
shall not close on or before September 30, 2004.
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
46
Reimbursement Obligations, 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 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, (g) statutory Liens in favor
of lessors arising in connection with Property leased to the Borrower or any of
the Subsidiaries, (h) 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, (i) Liens securing Indebtedness of a Subsidiary to
the Borrower or another Subsidiary, (j) 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 (k) additional Liens securing
47
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
(including the Eckerd Acquisition), PROVIDED that immediately before and after
giving effect to each such Acquisition no Default or Event of Default shall or
would exist.
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
48
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;
(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, in each case contained in, or required
by, any agreement governing Indebtedness incurred by a Subsidiary in accordance
with Section 8.1; or
(iv) Dividend Restrictions contained in any other credit
agreement so long as such Dividend Restrictions are no more restrictive than
those contained in this Agreement (including Dividend Restrictions contained in
the Other Credit Agreement and the Bridge Facility Credit Agreement).
8.8 LIMITATION ON NEGATIVE PLEDGES
Enter into any agreement, other than (i) this Agreement, (ii) the
Other Credit Agreement, (iii) the Bridge Facility Credit Agreement, (iv) any
other credit agreement that is substantially similar to this Agreement, and (v)
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 to secure the obligations of the Borrower hereunder.
8.9 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.
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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 or any reimbursement payment in respect of any Letter of Credit 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, 7.1 or 7.10 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) An Event of Default (as defined in any Reimbursement Agreement)
shall occur under any Reimbursement Agreement; or
(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) 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) An involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other relief
in respect of the Borrower or any Subsidiary or its debts, or of a substantial
part of its assets, under any federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar official
for the Borrower or any Subsidiary or for a substantial part of its assets, and,
in any such case, such proceeding or petition shall continue undismissed for 60
days or an order or decree approving or ordering any of the foregoing shall be
entered; or
50
(i) The Borrower or any Subsidiary shall (i) voluntarily commence
any proceeding or file any petition seeking liquidation, reorganization or other
relief under any federal, state or foreign bankruptcy, insolvency, receivership
or similar law now or hereafter in effect, (ii) consent to the institution of,
or fail to contest in a timely and appropriate manner, any proceeding or
petition described in clause (h) of this Article, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Borrower or any Subsidiary or for a substantial part of
its assets, (iv) file an answer admitting the material allegations of a petition
filed against it in any such proceeding, (v) make a general assignment for the
benefit of creditors or (vi) take any action for the purpose of effecting any of
the foregoing; or
(j) 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) generally not be paying its
debts as such debts become due, or (iii) admit in writing its inability to pay
its debts as they become due; or
(k) 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 during which execution shall not be effectively stayed, or any action
shall be legally taken by a judgment creditor to attach or levy upon any assets
of the Borrower or any Subsidiary to enforce any such judgment; or
(l) After the Effective Date a Change of Control shall occur; or
(m) (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
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 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 (other than that portion of a Multiemployer Plan's Accumulated
Funding Deficiency to the extent such Accumulated Funding Deficiency is
attributable to employers other than Borrower, any Subsidiary or any ERISA
Affiliate); (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.
51
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, the Swing Line Commitment and the Letter of Credit
Commitment have been terminated and/or that all of the Loans, the Notes and the
Reimbursement Obligations 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), (i) or (j) with respect to the Borrower, the Commitments, the
Swing Line Commitment and the Letter of Credit Commitment shall automatically
terminate and all of the Loans, the Notes and the Reimbursement Obligations 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, the Swing Line Commitment
and the Letter of Credit Commitment shall have been terminated or all of the
Loans, the Notes and the Reimbursement Obligations shall have been declared due
and payable pursuant to the provisions of this Section, (i) the Borrower shall
forthwith deposit an amount equal to the Letter of Credit Exposure in a cash
collateral account with and under the exclusive control of the Administrative
Agent, and (ii) the Administrative Agent, the Issuer and the Lenders agree,
among themselves, that any funds received from or on behalf of the Borrower
under any Loan Document by the Issuer or any Lender (except funds received by
the Issuer or any Lender as a result of a purchase from the Issuer or such
Lender, as the case may be, pursuant to the provisions of Section 11.9(b)) shall
be remitted to the Administrative Agent, and shall be applied by the
Administrative Agent in payment of the Loans, the Reimbursement Obligations and
the other obligations of the Borrower under the Loan Documents in the following
manner and order: (1) first, to reimburse the Administrative Agent, the Issuer
and the Lenders, in that order, for any expenses due from the Borrower pursuant
to the provisions of Section 11.5 and the Reimbursement Agreements, (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 and the
Reimbursement Obligations) payable by the Borrower to the Administrative Agent,
the Issuer 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
and the Letter of Credit Exposure of each Lender, of interest due on the Loans
and the Reimbursement Obligations, (5) fifth, to the payment, pro rata according
to the sum of (A) the aggregate outstanding principal balance of the Loans of
each Lender PLUS (B) the aggregate outstanding balance of the Reimbursement
Obligations of each Lender, of the aggregate outstanding principal balance of
the Loans and the aggregate outstanding balance of the Reimbursement
Obligations, and (6) sixth, any remaining funds shall be paid to whosoever shall
be entitled thereto or as a court of competent jurisdiction shall direct.
52
(c) In the event that the Loans and the Notes and the Reimbursement
Obligations 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 Reimbursement Obligations and the
rights of the holders of the Loans and 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, the
Issuer and 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 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
53
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
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 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.
54
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 [INTENTIONALLY OMITTED]
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 (if any), 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, the Issuer and the Swing Line Lender, 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
55
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 or 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.
10.10 CO-SYNDICATION AGENTS AND DOCUMENTATION AGENT
The Co-Syndication Agents and the Documentation Agent shall have no
duties or obligations under the Loan Documents in their capacities as
Co-Syndication Agents or Documentation 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 (i) increase the Commitment Amount of any Lender without the consent of
such 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
without the consent of each Lender directly affected thereby, (iii) reduce the
amount, or extend the time of payment, of the Fees without the consent of each
Lender directly affected thereby, (iv) reduce the rate, or extend the time of
payment of, interest on any Revolving Credit Loan, any Note or any Reimbursement
Obligation (other than the applicability of any post-default increase in such
rate of interest) without
56
the consent of each Lender directly affected thereby, (v) reduce the amount, or
extend the time of payment of any payment of any Reimbursement Obligation or
principal on any Revolving Credit Loan or any Note without the consent of each
Lender directly affected thereby, (vi) decrease or forgive the principal amount
of any Revolving Credit Loan, any Note or any Reimbursement Obligation without
the consent of each Lender directly affected thereby, (vii) consent to any
assignment or delegation by the Borrower of any of its rights or obligations
under any Loan Document without the consent of each Lender, (viii) change the
provisions of this Section 11.1 without the consent of each Lender, (ix) change
the definition of Required Lenders without the consent of each Lender, (x)
change the several nature of the obligations of the Lenders without the consent
of each Lender, (xi) change the sharing provisions among Lenders without the
consent of each Lender, or (xii) extend the expiration date of a Letter of
Credit beyond the Commitment Termination Date without the consent of each
Lender. 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, the Issuer or the Swing Line Lender under any Loan
Document without the written consent of the Administrative Agent, the Issuer or
the Swing Line Lender, as the case may be, (B) change the Letter of Credit
Commitment, change the amount or the time of payment of the Letter of Credit
Commissions, or change any other term or provision which relates to the Letter
of Credit Commitment or the Letters of Credit without the written consent of the
Issuer, (C) change the Swing Line Commitment, change the amount or the time of
payment of the Swing Line Loans or interest thereon or change any other term or
provision which relates to the Swing Line Commitment or the Swing Line Loans
without the written consent of the Swing Line Lender or (D) 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
Loans and the Notes and the Reimbursement Obligations. 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 in the case of notices and other communications expressly
permitted to be given by telephone, all notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by
facsimile, as follows:
57
IF TO 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
IF TO THE ADMINISTRATIVE AGENT, THE SWING LINE LENDER AND THE ISSUER:
in the case of each Borrowing Request, each notice of prepayment
under Section 2.7, each Letter of Credit Request, 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: Xxxxxx Xxxxxxxx,
Agency Function Administration
Facsimile: (000) 000-0000, 6366 or 6367
Telephone: (000) 000-0000,
and in all other cases:
The Bank of New York
Retailing Industry Division
0xx Xxxxx
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx,
Vice President
Facsimile: (000) 000-0000
Telephone: (212) 000- 0000,
IF TO ANY LENDER: to it at its address (or facsimile number) set forth in
its Administrative Questionnaire.
58
Any party hereto may change its address or facsimile number for notices and
other communications hereunder by notice to the other parties hereto (or, in the
case of any Lender, by notice to the Administrative Agent and the Borrower). All
notices and other communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have been given on the date
of receipt. 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, any Lender or the Issuer, 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 or Letter of Credit is issued, (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, the Lenders and the
Issuer 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, the Lenders or the Issuer, as the case may be, in failing
to pay such fees or other liabilities when due) in paying, stamp, excise and
other 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,
59
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 provisions of the Loan Documents shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that the Borrower may not assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of each Lender (and any attempted assignment or transfer by the Borrower
without such consent shall be null and void). Nothing in the Loan Documents,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby
and, to the extent expressly contemplated hereby, the Related Parties of each
Credit Party) any legal or equitable right, remedy or claim under or by reason
of any Loan Document.
(b) Any Lender may assign all or a portion of its rights and
obligations under the Loan Documents (including all or a portion of its
Commitment or obligations in respect of its Letter of Credit Exposure or Swing
Line Exposure and the applicable Loans at the time owing to it), to an Eligible
Assignee, PROVIDED that (i) except in the case of an assignment to a Lender or
an Affiliate of a Lender, each of the Borrower and the Administrative Agent
(and, in the case of an assignment of all or any portion of its Commitment or
obligations in respect of its Letter of Credit Exposure or Swing Line Exposure,
the Issuing Bank and/or the Swing Line Lender, as the case may be) must give its
prior written consent to such assignment (which consent shall not be
unreasonably withheld or delayed), (ii) except in the case of an assignment to a
Lender or an Affiliate or an Approved Fund of a Lender or an assignment of the
entire remaining amount of the assigning Lender's Commitment, the amount of the
Commitment of the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Acceptance Agreement with respect to such
assignment is delivered to the Administrative Agent) shall not be less than
$5,000,000, unless the Borrower and the Administrative Agent otherwise consent
(which consent shall not be unreasonably withheld or delayed) and shall be for a
pro rata portion of such Lender's Commitment and such Lender's then outstanding
Revolving Credit Loans, (iii) no assignments to the Borrower or any of its
Affiliates shall be permitted (and any attempted assignment or transfer to the
Borrower or any of its Affiliates shall be null and void), (iv) the
60
parties to each assignment shall execute and deliver to the Administrative Agent
an Assignment and Acceptance Agreement together with, unless otherwise agreed by
the Administrative Agent, a processing and recordation fee of $3,500, and (v)
the assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire, and PROVIDED FURTHER that any consent of
the Borrower otherwise required under this subsection shall not be required if
an Event of Default has occurred and is continuing. Subject to acceptance and
recording thereof pursuant to subsection (d) of this Section, from and after the
effective date specified in each Assignment and Acceptance Agreement, the
assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance Agreement, have the rights and
obligations of a Lender under the Loan Documents, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance Agreement, be released from its obligations under the Loan Documents
(and, in the case of an Assignment and Acceptance Agreement covering all of the
assigning Lender's rights and obligations under the Loan Documents, such Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 3.5, 3.6, 3.7, 3.10 and 11.10). Except as otherwise
provided under clause (iii) of this subsection, any assignment or transfer by a
Lender of rights or obligations under the Loan Documents that does not comply
with this subsection shall be treated for purposes of the Loan Documents as a
sale by such Lender of a participation in such rights and obligations in
accordance with subsection (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an agent
of the Borrower, shall maintain a copy of each Assignment and Acceptance
Agreement delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitments of, and principal amount of the
Loans owing to, each Lender pursuant to the terms hereof from time to time (the
"REGISTER"). The entries in the Register shall be conclusive absent clearly
demonstrable error, and the Borrower and each Credit Party may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrower and any
Credit Party, at any reasonable time and from time to time upon reasonable prior
notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
Agreement executed by an assigning Lender and an assignee, the assignee's
completed Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in subsection
(b) of this Section and any written consent to such assignment required by
subsection (b) of this Section, the Administrative Agent shall accept such
Assignment and Acceptance Agreement and record the information contained therein
in the Register. No assignment shall be effective for purposes of this Agreement
unless it has been recorded in the Register as provided in this subsection.
(e) Any Lender may, without the consent of the Borrower or any
Credit Party, sell participations to Eligible Assignees (each a "PARTICIPANT")
in all or a portion of such Lender's rights and obligations under the Loan
Documents (including all or a portion of its Commitments, Letter of Credit
Exposure, Swing Line Exposure and outstanding Loans owing to it), 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 hereto for
the
61
performance of such obligations, (iii) the Borrower and the Credit Parties shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under the Loan Documents and (iv) no
participations to the Borrower or any of its Affiliates shall be permitted (and
any attempted participation to the Borrower or any of its Affiliates shall be
null and void). Any agreement or instrument pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain the sole right
to enforce the Loan Documents and to approve any amendment, modification or
waiver of any provision of any Loan Documents, PROVIDED that such agreement or
instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in the
proviso to Section 11.1 that affects such Participant. Subject to subsection (f)
of this Section, the Borrower agrees that each Participant shall be entitled to
the benefits of Sections 3.5, 3.6, 3.7 and 3.10 to the same extent as if it were
a Lender and had acquired its interest by assignment pursuant to subsection (b)
of this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 10.8 as though it were a Lender, PROVIDED
that such Participant agrees to be subject to Section 2.10(c) as though it were
a Lender.
(f) A Participant shall not be entitled to receive any greater
payment under Section 3.6, 3.7 or 3.10 than the Lender that sold the
participation to such Participant would have been entitled to receive with
respect to the interest in the Loan Documents subject to the participation sold
to such Participant, unless the sale of the participation to such Participant is
made with the Borrower's prior written consent. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of
Section 3.10 unless the Borrower is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the Borrower, to
comply with Section 3.10(b) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under the Loan Documents to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest, PROVIDED that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations under the Loan Documents or substitute any such pledgee or assignee
for such Lender as a party hereto.
(h) 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
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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 processing and recordation fee referred to in Section
11.7(b), 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) or to any financial
institutions providing liquidity and/or credit support to or for the account of
such Eligible SPC to support the funding or maintenance of Loans, 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 Loans 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.
11.9 SET-OFF AND SHARING OF PAYMENTS
(a) In addition to any rights and remedies of the Lenders and the
Issuer provided by law, upon the occurrence of an Event of Default under Section
9.1(a) or (b) or upon the acceleration of the Loans, each Lender and the Issuer
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 or the Issuer arising under the Loan Documents, any amount owing
from such Lender or the Issuer to the Borrower. To the extent permitted by
applicable law, the aforesaid right of set-off may be exercised by such Lender
or the Issuer against the Borrower or against any trustee in bankruptcy,
custodian, debtor in
63
possession, assignee for the benefit of creditors, receiver, or execution,
judgment or attachment creditor, notwithstanding the fact that such right of
set-off shall not have been exercised by such Lender or the Issuer prior to
the making, filing or issuance of, service upon such Lender or the Issuer of,
or notice to such Lender or the Issuer 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
and the Issuer agree promptly to notify the Borrower and the Administrative
Agent after each such set-off and application made by such Lender or the
Issuer, PROVIDED that the failure to give such notice shall not affect the
validity of such set-off and application.
(b) If any Lender or the Issuer (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 or the
Reimbursement Obligations in excess of its pro rata share (in accordance with
the outstanding principal balance of all Loans or the Reimbursement Obligations)
of payments then due and payable on account of the Loans and Notes received by
all the Lenders or the Reimbursement Obligations, such Lender or the Issuer, as
the case may be, shall forthwith purchase, without recourse, for cash, from the
other Lenders such participations in their Loans and Notes or the Reimbursement
Obligations as shall be necessary to cause such purchasing Lender or the Issuer
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 or the
Reimbursement Obligations), PROVIDED that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender or the Issuer, such
purchase from each Lender shall be rescinded and each such Lender shall repay to
the purchasing Lender or the Issuer 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 or
the Issuer) 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 or the Issuer 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 or the Issuer were the direct creditor
of the Borrower in the amount of such participation.
11.10 INDEMNITY
(a) The Borrower shall indemnify each Credit Party and each Related
Party thereof (each such Person being called an "INDEMNIFIED PERSON") against,
and hold each Indemnified Person harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the reasonable fees,
charges and disbursements of any counsel for any Indemnified Person, incurred by
or asserted against any Indemnified Person arising out of, in connection with,
or as a result of (i) the execution or delivery of any Loan Document or any
agreement or instrument contemplated thereby, the performance by the parties to
the Loan Documents of their respective obligations thereunder or the
consummation of the transactions contemplated hereby or any other transactions
contemplated thereby (including the Eckerd Acquisition), (ii) any Loan or Letter
of Credit or the use of the proceeds thereof, (iii) any actual or alleged
presence or release of Hazardous Materials on or from any property owned or
operated
64
by the Borrower or any of the Subsidiaries, or any Environmental Liability
related in any way to the Borrower or any of the Subsidiaries or (iv) any actual
or prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnified Person is a party thereto, PROVIDED that
such indemnity shall not, as to any Indemnified Person, be available to the
extent that such losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted primarily from the gross negligence or willful
misconduct of such Indemnified Person. Notwithstanding the above, the Borrower
shall have no liability under clause (i) of this Section to indemnify or hold
harmless any Indemnified Person for any losses, claims, damages, liabilities and
related expenses relating to income or withholding taxes or any tax in lieu of
such taxes.
(b) To the extent that the Borrower fails to promptly pay any
amount required to be paid by it to the Administrative Agent under subsection
(a) of this Section, each Lender severally agrees to pay to the Administrative
Agent an amount equal to the product of such unpaid amount MULTIPLIED BY (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 the sum of such Lender's Credit Exposure
and (B) the denominator of which is the sum of the Aggregate Credit Exposure (in
each case determined as of the time that the applicable unreimbursed expense or
indemnity payment is sought), PROVIDED that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as applicable,
was incurred by or asserted against the Administrative Agent in its capacity as
such.
(c) The obligations of the Borrower and the Lenders under this
Section 11.10 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.
(d) To the extent permitted by applicable law, the Borrower shall
not assert, and hereby waives, any claim against any Indemnified Person, on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct and actual damages) arising out of, in connection with, or
as a result of, any Loan Document or any agreement, instrument or other document
contemplated thereby, the transactions contemplated hereby or any Loan or any
Letter of Credit or the use of the proceeds thereof.
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.
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
65
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.
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, the Issuer 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 (and its
affiliates' officers, directors and employees), 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;
66
(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
(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, the Issuer, or any Lender
has any fiduciary relationship to the Borrower, and the relationship between the
Administrative Agent, the Issuer, 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, the Issuer
or any Lender to serve process in any
67
manner permitted by law or limit the right of the Administrative Agent, the
Issuer or any Lender to bring proceedings against the Borrower in the courts of
any jurisdiction or jurisdictions.
11.19 WAIVER OF TRIAL BY JURY
THE ADMINISTRATIVE AGENT, THE ISSUER, 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, THE ISSUER, OR THE LENDERS, OR COUNSEL TO THE
ADMINISTRATIVE AGENT, THE ISSUER, OR THE LENDERS, HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT THE ADMINISTRATIVE AGENT, THE ISSUER, 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, THE
ISSUER, 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, the Issuer, and each Lender
and the conditions set forth in Sections 5.1 through 5.3 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 25, 2004.
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CVS CORPORATION
5 YEAR CREDIT AGREEMENT
AS EVIDENCE of the agreement by the parties hereto to the terms and
conditions herein contained, each such party has caused this Five Year Credit
Agreement to be executed on its behalf.
CVS CORPORATION
By:
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Treasurer
FIVE YEAR CREDIT AGREEMENT
EXHIBIT A
LIST OF COMMITMENTS
Lender Commitment Amount
----------------------------------------- -----------------
The Bank of New York $ 57,500,000
Bank of America, N.A. $ 55,000,000
Credit Suisse First Boston $ 55,000,000
Wachovia Bank, National Association $ 55,000,000
ABN AMRO Bank N.V. $ 40,000,000
SunTrust Bank $ 40,000,000
Keybank National Association $ 32,500,000
HSBC Bank USA $ 32,500,000
Branch Banking and Trust Company $ 22,500,000
Comerica Bank $ 22,500,000
Xxxxx Fargo Bank, National Association $ 22,500,000
Barclays Bank PLC $ 22,500,000
Sumitomo Mitsui Banking Corp., New York $ 22,500,000
US Bank, National Association $ 22,500,000
Manufacturers and Traders Trust Company $ 15,000,000
Fifth Third Bank $ 15,000,000
Sovereign Bank $ 15,000,000
Union Bank of California, N.A. $ 15,000,000
Regions Bank $ 12,500,000
Mellon Bank, N.A. $ 12,500,000
Union Planters Bank, NA $ 12,500,000
Citizens Bank of Rhode Island $ 12,500,000
PNC Bank, National Association $ 12,500,000
The Northern Trust Company $ 12,500,000
National City Bank $ 12,500,000
Bank One $ 12,500,000
UMB Bank, N.A. $ 7,500,000
Hibernia National Bank $ 5,000,000
-----------------
TOTAL $ 675,000,000
FIVE YEAR CREDIT AGREEMENT
EXHIBIT B
FORM OF NOTE
June 11, 2004
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 Loans, together with interest thereon, at the rate or rates, in the
amounts and at the time or times set forth in the Five Year Credit Agreement (as
the same may be amended, supplemented or otherwise modified from time to time,
the "CREDIT AGREEMENT"), dated as of June 11, 2004, by and among the Borrower,
the Lenders party thereto, the co-syndication agents named therein, the
documentation agent named therein, 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.
The Loans evidenced by this Note are prepayable in the amounts, and on
the dates, set forth in the Credit Agreement. This Note is one of the 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, Competitive Bid Loan and Swing
Line Loan made by the Lender, (b) the Interest Period for each Revolving Credit
Loan (Eurodollar Advance only), Competitive Bid Loan and Swing Line Loan made by
the Lender, (c) the Type of each Revolving Credit Loan made by the Lender as one
or more ABR Advances, one or more Eurodollar Advances, or a combination thereof,
(d) the Eurodollar Rate applicable to each Revolving Credit Loan (Eurodollar
Advance only), the Competitive Bid Rate applicable to each Competitive Bid Loan
and the Negotiated Rate applicable to each Swing Line Loan made by the Lender
and (d) the date and amount of each Conversion of each Revolving Credit Loan
made by the Lender, and each payment or prepayment of principal of, each Loan
made by the Lender. The failure to so record or any error in so recording shall
not affect the obligation of the Borrower to repay the 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 Note.
THIS NOTE IS BEING DELIVERED IN, IS INTENDED TO BE PERFORMED IN, SHALL
BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, AND BE GOVERNED BY THE LAWS OF,
THE STATE OF NEW YORK.
This 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:
-------------------------------
SCHEDULE TO NOTE
Interest Type of Interest
Period (If Revolving Rate (If Date and Date and
Type other Credit other Amount of Amount of
Date and than an Loan than an Conversion of Principal
of Amount ABR (ABR or ABR Revolving Payment or Notation
Loan of Loan Advance) Eurodollar) Advance) Credit Loan Prepayment Made by
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
FIVE YEAR CREDIT AGREEMENT
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: Five Year Credit Agreement, dated as of June 11, 2004, by and
among
CVS Corporation, the Lenders party thereto, the
co-syndication agents named therein, the documentation agent
named therein, 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 ____________, and/or a Swing Line Loan in the sum of
$____________ on ____________, which borrowing shall consist of the following:
Revolving Credit Loans
(ABR Advance or Eurodollar Interest Period
Advance) or Swing Line Loan Amount (Other Than ABR)
--------------------------- ------ ----------------
The Borrower hereby certifies that on the Borrowing Date set forth above, and
after giving effect to the Loans requested hereby:
(a) There shall exist no Default or Event of Default.
(b) 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:
-----------------------------
FIVE YEAR CREDIT AGREEMENT
EXHIBIT D-1
FORM OF OPINION OF
COUNSEL TO THE BORROWER
June 11, 2004
The Lenders, the Co-Syndication Agents,
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 Five Year Credit
Agreement, dated as of June 11, 2004, by and among the Borrower, the lenders
party thereto, Bank of America, N.A., Credit Suisse First Boston and Wachovia
Securities, Inc., as Co-Syndication Agents, ABN AMRO Bank N.V., as Documentation
Agent, and The Bank of New York, as Administrative Agent (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. 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 (it being understood that the Eckerd Acquisition is not a transaction
contemplated by any Loan Document for purposes of this clause (b)).
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.
2
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.
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
FIVE YEAR CREDIT AGREEMENT
EXHIBIT D-2
FORM OF OPINION OF
SPECIAL COUNSEL TO THE BORROWER
June 11, 2004
The Co-Syndication Agents,
the Documentation Agent
the Administrative Agent
and the lenders party
to the Credit Agreement referred to below
x/x Xxx Xxxx xx Xxx Xxxx,
as Administrative Agent
Re: CVS Corporation
Ladies and Gentlemen:
We have acted as special New York counsel to CVS Corporation, a Delaware
corporation (the "COMPANY"), in connection with the 5 Year Credit Agreement
dated as of June 11, 2004 among the Company, the lenders listed on the signature
pages thereof (the "LENDERS"), Bank of America, N.A., Credit Suisse First
Boston, and Wachovia Securities, Inc., as Co-Syndication Agents, ABN AMRO Bank
N.V., as Documentation Agent and The Bank of New York, as Administrative Agent
(in such capacity, the "ADMINISTRATIVE AGENT") (as in effect on the date hereof,
the "CREDIT AGREEMENT"). Capitalized terms defined in the Credit Agreement and
not otherwise defined herein are used herein as therein defined.
We have reviewed an executed copy of the Credit Agreement. In addition, we
have examined originals or copies, certified or otherwise identified to our
satisfaction, of such documents, corporate records, certificates of public
officials and other instruments, and have conducted such other investigations of
fact and law, as we have deemed necessary or advisable for purposes of this
opinion.
-2-
June 11, 2004
Based upon the foregoing, and subject to the qualifications and assumptions
set forth herein, we are of the opinion that (i) the Credit Agreement
constitutes a valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms, and (ii) the execution, delivery and
performance by the Company of the Credit Agreement (x) require no consent or
other action by or in respect of, or filing with, any governmental body, agency
or official under New York State law, and (y) do not contravene, or constitute a
default under, any provision of New York State law or regulation that in our
experience is normally applicable to general business corporations in relation
to transactions of the type contemplated by the Credit Agreement.
The foregoing opinions are subject to the following qualifications and
assumptions:
(a) Our opinions are subject to the effects of applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally and
equitable principles of general applicability, and the enforceability of
indemnification provisions may be limited by Federal or State laws or
policies underlying such laws.
(b) As to various provisions in the Credit Agreement that grant the
Administrative Agent or the Lenders certain rights to make determinations
or take actions in their discretion, we assume that such discretion will be
exercised in good faith and in a commercially reasonable manner.
(c) We express no opinion as to the effect (if any) of any law of any
jurisdiction (except the State of New York) in which any Lender is located
that may limit the rate of interest that such Lender may charge or collect.
(d) We express no opinion as to the effect of Section 548 of the
United States Bankruptcy Code or any similar provisions of State law.
(e) We have assumed, with your permission and without independent
investigation, that (i) the Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of
Delaware, (ii) the execution, delivery and performance by the Company of
the Credit Agreement are within its corporate powers and have been duly
authorized by all necessary corporate and other action, and (iii) the
execution, delivery and performance by the Company of the Credit Agreement
(x) require no consent or other 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 (y) do not contravene, or
constitute a default under, any provision of (a) United States federal law
or regulation or the Delaware
-3-
June 11, 2004
General Corporation Law, or (b) the certificate of incorporation or bylaws
of the Company.
We are members of the bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York.
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 (other than an assignee permitted under Section
11.7 of the Credit Agreement) without our prior written consent.
Very truly yours,
FIVE YEAR CREDIT AGREEMENT
EXHIBIT E
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
Reference is made to the Five Year Credit Agreement, dated as of June 11,
2004 (as amended and in effect on the date hereof, the "CREDIT AGREEMENT"), by
and among CVS Corporation, the Lenders party thereto, the co-syndication agents
named therein, the documentation agent named therein, and The Bank of New York,
as Administrative Agent. Capitalized terms used herein that are not otherwise
defined herein shall have the respective meanings ascribed thereto in the Credit
Agreement.
The Assignor named below hereby sells and assigns, without recourse, to the
Assignee named below, and the Assignee hereby purchases and assumes, without
recourse, from the Assignor, effective as of the Assignment Date (defined
below), the interests set forth below (the "ASSIGNED INTEREST") in the
Assignor's rights and obligations under the Credit Agreement, including, without
limitation, the interests set forth below in the Commitment and the Revolving
Credit Loans and Competitive Bid Loans owing to the Assignor that are
outstanding on the Assignment Date, together with, in the case of such
Commitment, all of the related participations held by the Assignor in respect of
the Letters of Credit (including its LC Exposure) and Swingline Loans (including
its Swingline Exposure), but excluding accrued interest and fees to and
excluding the Assignment Date. The Assignee hereby acknowledges receipt of a
copy of the Credit Agreement. From and after the Assignment Date, (i) the
Assignee shall be a party to and be bound by the provisions of the Credit
Agreement and, to the extent of the Assigned Interest, have the rights and
obligations of a Lender under the Loan Documents and (ii) the Assignor shall, to
the extent of the Assigned Interest, relinquish its rights and be released from
its obligations under the Loan Documents.
This Assignment and Acceptance is being delivered to the Administrative
Agent, together with (i) if the Assignee is a Foreign Lender, any documentation
required to be delivered by the Assignee pursuant to Section 3.10(b) of the
Credit Agreement, duly completed and executed by the Assignee, and (ii) if the
Assignee is not already a Lender under the Credit Agreement, an Administrative
Questionnaire in the form supplied by the Administrative Agent, duly completed
by the Assignee. The [ASSIGNEE/ASSIGNOR](1) shall pay the fee payable to the
Administrative Agent pursuant to Section 11.7(b) of the Credit Agreement.
THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Date of Assignment:
Legal Name of Assignor:
----------
(1) DELETE INAPPLICABLE TERM.
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of
Assignment (the "ASSIGNMENT DATE"):
Commitment Assigned:
Principal Amount of Revolving Credit Loans Assigned:
Principal Amount of each Competitive Bid Loan Assigned:
[SIGNATURE PAGE FOLLOWS]
The terms set forth above are hereby agreed to:
[NAME OF ASSIGNOR], as Assignor
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
[NAME OF ASSIGNEE], as Assignee
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
The undersigned hereby consent to the within assignment:
CVS CORPORATION
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
THE BANK OF NEW YORK,
as Administrative Agent
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
FIVE YEAR CREDIT AGREEMENT
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: Five Year Credit Agreement, dated as of June 11, 2004, by and among
CVS Corporation, the Lenders party thereto, the co-syndication agents
named therein, the documentation agent named therein, 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) There shall exist no Default or Event of Default.
(b) 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:
----------------------------
FIVE YEAR CREDIT AGREEMENT
EXHIBIT G
FORM OF INVITATION TO BID
[Date]
To the Lenders party
from time to time to the
captioned Credit Agreement
Re: Five Year Credit Agreement, dated as of June 11, 2004, by and among
CVS Corporation, the Lenders party thereto, the co-syndication agents
named therein, the documentation agent named therein, 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:
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:
----------------------------
FIVE YEAR CREDIT AGREEMENT
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: Five Year Credit Agreement, dated as of June 11, 2004, by and among
CVS Corporation, the Lenders party thereto, the co-syndication agents
named therein, the documentation agent named therein, 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 Bid Loan(s) in the aggregate sum of $____________ on
____________, which borrowing would consist of the following:
Competitive
Interest Competitive
Amount Period Bid Rate
------ ------ --------
[fixed rate]
[LENDER]
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
FIVE YEAR CREDIT AGREEMENT
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: Five Year Credit Agreement, dated as of June 11, 2004, by and among
CVS Corporation, the Lenders party thereto, the co-syndication agents
named therein, the documentation agent named therein, 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:
----------------------------
FIVE YEAR CREDIT AGREEMENT
EXHIBIT J
FORM OF LETTER OF CREDIT REQUEST
[Date]
The Bank of New York, as Administrative Agent
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: _____________,
_____________
Re: Five Year Credit Agreement, dated as of June 11, 2004, by and among
CVS Corporation, the Lenders party thereto, the co-syndication agents
named therein, the documentation agent named therein, 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 2.8(b) of the Credit Agreement, the Borrower
hereby gives notice of its request for the issuance by the Issuer of a Letter of
Credit for the account of the Borrower and for the benefit of
____________________ on _______________ in connection with ___________________
in the maximum amount of $_____________. A drawing may be made under such Letter
of Credit under the following conditions:
_______________________________________.
The Borrower hereby certifies that on the above requested date of
issuance of such Letter of Credit, and after giving effect to the issuance of
such Letter of Credit:
(a) There shall exist no Default or Event of Default.
(b) 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 Letter of
Credit Request to be duly executed on its behalf.
CVS CORPORATION
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
