Exhibit 10.1
as Documentation Agents,
as Syndication Agents,
as Administrative Agent and
as Administrative Agent
as Joint Lead Arrangers and Bookrunners
Page | |||
ARTICLE I Definitions | 1 | ||
SECTION 1.1. | Defined Terms | 1 | |
SECTION 1.2. | Classification of Loans and Borrowings | 14 | |
SECTION 1.3. | Terms Generally | 14 | |
SECTION 1.4. | Accounting Terms; GAAP | 15 | |
SECTION 1.5. | Other Interpretive Provisions | 15 | |
ARTICLE II The Credits | 15 | ||
SECTION 2.1. | Commitments | 15 | |
SECTION 2.2. | Loans and Borrowings | 15 | |
SECTION 2.3. | Requests for Borrowings | 16 | |
SECTION 2.4. | [Reserved] | 16 | |
SECTION 2.5. | Term-Out Option | 16 | |
SECTION 2.6. | Funding of Borrowings | 17 | |
SECTION 2.7. | Interest Elections | 17 | |
SECTION 2.8. | Termination and Reduction of Commitments | 18 | |
SECTION 2.9. | Repayment of Loans; Evidence of Debt | 19 | |
SECTION 2.10. | Prepayment of Loans | 19 | |
SECTION 2.11. | Fees | 20 | |
SECTION 2.12. | Interest | 20 | |
SECTION 2.13. | Alternate Rate of Interest | 21 | |
SECTION 2.14. | Increased Costs | 21 | |
SECTION 2.15. | Break Funding Payments | 22 | |
SECTION 2.16. | Taxes | 23 | |
SECTION 2.17. | Payments Generally; Pro Rata Treatment; Sharing of Set-offs | 26 | |
SECTION 2.18. | Mitigation Obligations; Replacement of Lenders | 27 | |
SECTION 2.19. | Borrowing Subsidiaries | 27 | |
SECTION 2.20. | [Reserved] | 29 | |
SECTION 2.21. | Defaulting Lenders | 29 | |
ARTICLE III Representations and Warranties | 29 | ||
SECTION 3.1. | Organization; Powers | 29 | |
SECTION 3.2. | Authorization | 29 | |
SECTION 3.3. | Enforceability | 30 | |
SECTION 3.4. | Governmental Approvals | 30 | |
SECTION 3.5. | Financial Statements; No Material Adverse Effect | 30 | |
SECTION 3.6. | Litigation; Compliance with Laws | 30 | |
SECTION 3.7. | Federal Reserve Regulations | 30 | |
SECTION 3.8. | Use of Proceeds | 31 | |
SECTION 3.9. | Taxes | 31 | |
SECTION 3.10. | Employee Benefit Plans | 31 | |
SECTION 3.11. | Environmental and Safety Matters | 31 | |
SECTION 3.12. | Properties | 31 | |
SECTION 3.13. | Investment and Holding Company Status | 32 | |
SECTION 3.14. | Sanctions, Anti-Corruption, and Anti-Money Laundering Laws | 32 |
ARTICLE IV Conditions | 32 | ||
SECTION 4.1. | Effective Date | 32 | |
SECTION 4.2. | Each Credit Event | 33 | |
SECTION 4.3. | Initial Borrowing by Each Borrowing Subsidiary | 33 | |
ARTICLE V Covenants | 33 | ||
SECTION 5.1. | Existence | 34 | |
SECTION 5.2. | Business and Properties | 34 | |
SECTION 5.3. | Financial Statements, Reports, Etc. | 34 | |
SECTION 5.4. | Insurance | 35 | |
SECTION 5.5. | Obligations and Taxes | 35 | |
SECTION 5.6. | Litigation and Other Notices | 35 | |
SECTION 5.7. | Books and Records | 35 | |
SECTION 5.8. | Ratings | 35 | |
SECTION 5.9. | Compliance with Laws | 35 | |
SECTION 5.10. | Consolidations, Mergers, and Sales of Assets | 35 | |
SECTION 5.11. | Liens | 36 | |
SECTION 5.12. | Limitation on Sale and Leaseback Transactions | 37 | |
SECTION 5.13. | Sanctions | 37 | |
SECTION 5.14. | Anti-Corruption Laws | 38 | |
SECTION 5.15. | Guaranties | 38 | |
ARTICLE VI Events of Default | 39 | ||
ARTICLE VII The Administrative Agents | 41 | ||
ARTICLE VIII Miscellaneous | 45 | ||
SECTION 8.1. | Notices | 45 | |
SECTION 8.2. | Survival of Agreement | 46 | |
SECTION 8.3. | Binding Effect | 47 | |
SECTION 8.4. | Successors and Assigns | 47 | |
SECTION 8.5. | Expenses; Indemnity | 50 | |
SECTION 8.6. | Applicable Law | 51 | |
SECTION 8.7. | Waivers; Amendment | 51 | |
SECTION 8.8. | Entire Agreement | 52 | |
SECTION 8.9. | Severability | 52 | |
SECTION 8.10. | Counterparts | 52 | |
SECTION 8.11. | Headings | 52 | |
SECTION 8.12. | Right of Setoff | 52 | |
SECTION 8.13. | Jurisdiction; Consent to Service of Process | 52 | |
SECTION 8.14. | Waiver of Jury Trial | 53 | |
SECTION 8.15. | [Reserved] | 53 | |
SECTION 8.16. | Guaranty | 53 | |
SECTION 8.17. | [Reserved] | 55 | |
SECTION 8.18. | Confidentiality | 55 | |
SECTION 8.19. | USA PATRIOT Act | 55 | |
SECTION 8.20. | No Fiduciary Duty | 56 | |
SECTION 8.21. | Acknowledgement and Consent to Bail-In of EEA Financial Institutions | 56 |
SCHEDULES | |
Schedule 2.1 | Commitments |
EXHIBITS | |
Exhibit A | Form of Borrowing Request |
Exhibit B | Form of Assignment and Assumption |
Exhibit C | [Reserved] |
Exhibit D | Form of Borrowing Subsidiary Agreement |
Exhibit E | Form of Borrowing Subsidiary Termination |
Exhibits F1-F4 | Forms of U.S. Tax Certificates |
Definitions
Company’s Rating Level (S&P or Moody’s) | Applicable Margin | Applicable Revolver Commitment Fee Rate | |
ABR Revolving Loans | LIBOR Revolving Loans | ||
Rating Level 1: ³ A+ / A1 | 0 bps | 62.5 bps | 3 bps |
Rating Level 2: A / A2 | 0 bps | 75 bps | 4 bps |
Rating Level 3: A- / A3 | 0 bps | 87.5 bps | 6 bps |
Rating Level 4: < BBB+ / Baa1 | 0 bps | 100 bps | 9 bps |
The Credits
Representations and Warranties
Conditions
Covenants
Events of Default
The Administrative Agents
(i) such Lender is not using “plan assets” (within the meaning of the Plan Asset Regulations) of one or more Benefit Plans in connection with the Loans or the Commitments;
(ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable and the conditions are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement;
(iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement; or
(iv) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agents, in their sole discretion, and such Lender.
Miscellaneous
(i) if to the Company, to Bristol-Myers Squibb Company, Route 206 & Province Line Road, Princeton, New Jersey 08543, Attention of the Treasurer (email: jeffrey.galik@bms.com or any successor email address) and Bristol-Myers Squibb Company, 345 Park Avenue, New York, New York 10154, Attention of the Corporate Secretary (email: Katherine.kelly@bms.com or any successor email address);
(ii) if to the Paying Agent, (1) for notices concerning operational matters, to Citibank, N.A., c/o Agency Operations, 1615 Brett Road, OPS 3, New Castle, DE 19720 (Telecopy No. (646) 274-5080; email: glagentofficeops@citi.com or any successor email address) or (2) for notices concerning credit matters, to Citibank, N.A., 388 Greenwich Street, New York, New York 10013, Attention of Pranjal Gambhir (Telecopy No. (646) 291-1089; email: pranjal.gambhir@citi.com or any successor email address);
(iii) if to a Lender, to it at its address (or telecopy number or electronic mail address) set forth in Schedule 2.1 or in the Assignment and Assumption pursuant to which such Lender became a party hereto; and
BRISTOL-MYERS SQUIBB COMPANY, as the Company | ||
By: | /s/ Jeffrey Galik | |
Name: Jeffrey Galik | ||
Title: Senior Vice President and Treasurer | ||
By: | ||
Name: Katherine Kelly | ||
Title: Corporate Secretary |
[Signature Page to 364-Day Revolving Loan Credit Facility]
BRISTOL-MYERS SQUIBB COMPANY, as the Company | ||
By: | ||
Name: Jeffrey Galik | ||
Title: Senior Vice President and Treasurer | ||
By: | /s/ Katherine Kelly | |
Name: Katherine Kelly | ||
Title: Corporate Secretary |
CITIBANK, N.A., as Administrative Agent | ||
By: | /s/ Pranjal Gambhir | |
Name: Pranjal Gambhir | ||
Title: Vice President |
JPMORGAN CHASE BANK, N.A., as Administrative Agent | ||
By: | /s/ Joseph McShane | |
Name: Joseph McShane | ||
Title: Vice President |
[Signature Page to 364-Day Revolving Loan Credit Facility]
CITIBANK, N.A., as a Lender | ||
By: | /s/ Pranjal Gambhir | |
Name: Pranjal Gambhir | ||
Title: Vice President |
JPMORGAN CHASE BANK, N.A., as a Lender | ||
By: | /s/ Joseph McShane | |
Name: Joseph McShane | ||
Title: Vice President |
MORGAN STANLEY BANK, N.A., as a Lender | ||
By: | /s/ Anish Shah | |
Name: Anish Shah | ||
Title: Authorized Signatory |
DEUTSCHE BANK AG NEW YORK BRANCH. as a Lender | ||
By: | /s/ Ming K. Chu | |
Name: Ming K. Chu | ||
Title: Director | ||
By: | /s/ Virginia Cosenza | |
Name: Virginia Cosenza | ||
Title: Vice President |
U.S. Bank National Association, as a Lender | ||
By: | /s/ Ryan M. Black | |
Name: Ryan M. Black | ||
Title: Vice President |
MUFG BANK, LTD., as a Lender | ||
By: | /s/ David Meisner | |
Name: David Meisner | ||
Title: Vice President |
SOCIETE GENERALE, as a Lender | ||
By: | /s/ Kimberly Metzger | |
Name: Kimberly Metzger | ||
Title: Director |
The Northern Trust Company, as a Lender | ||
By: | /s/ Andrew D. Holtz | |
Name: Andrew D. Holtz | ||
Title: Senior Vice President |
BNP Paribas, as a Lender | ||
By: | /s/ Christopher Sked | |
Name: Christopher Sked | ||
Title: Managing Director | ||
By: | /s/ Ade Adedeji | |
Name: Ade Adedeji | ||
Title: Vice President |
Sumitomo Mitsui Banking Corporation, as a Lender | ||
By: | /s/ Katsuyuki Kubo | |
Name: Katsuyuki Kubo | ||
Title: Managing Director |
HSBC Bank USA, N.A., as a Lender | ||
By: | /s/ Iain Stewart | |
Name: Iain Stewart | ||
Title: Managing Director |
PNC BANK, NATIONAL ASSOCIATION, as a Lender | ||
By: | /s/ Robert Novak | |
Name: Robert Novak | ||
Title: Vice President |
Mizuho Bank, Ltd., as a Lender | ||
By: | /s/ Tracy Rahn | |
Name: Tracy Rahn | ||
Title: Authorized Signatory |
THE BANK OF NOVA SCOTIA, as a Lender | ||
By: | /s/ Michelle C. Phillips | |
Name: Michelle C. Phillips | ||
Title: Managing Director |
BARCLAYS BANK PLC, as a Lender | ||
By: | /s/ Ronnie Glenn | |
Name: Ronnie Glenn | ||
Title: Director |
Santander Bank, N.A., as a Lender | ||
By: | /s/ Andres Barbosa | |
Name: Andres Barbosa | ||
Title: Executive Director | ||
By: | /s/ Daniel Kostman | |
Name: Daniel Kostman | ||
Title: Executive Director |
THE BANK OF NEW YORK MELLON, as a Lender | ||
By: | /s/ Clifford A. Mull | |
Name: Clifford A. Mull | ||
Title: Director |
WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Lender | ||
By: | /s/ Jordan Harris | |
Name: Jordan Harris | ||
Title: Director |
CREDIT SUISSE AG, Cayman Islands Branch, as a Lender | ||
By: | /s/ John Toronto | |
Name: John Toronto | ||
Title: Authorized Signatory | ||
By: | /s/ Emerson Almeida | |
Name: Emerson Almeida | ||
Title: Authorized Signatory |
Standard Chartered Bank, as a Lender | |||
By: | /s/ Daniel Mattern | ||
Name: Daniel Mattern | |||
Title: | Associate Director Standard Chartered Bank |
Lender | Commitment | |
Morgan Stanley Bank, N.A. | 125,000,000 | |
MUFG Bank, Ltd. | 125,000,000 | |
Citibank, N.A. | 125,000,000 | |
JPMorgan Chase Bank, N.A. | 125,000,000 | |
Barclays Bank PLC | 125,000,000 | |
BNP Paribas | 125,000,000 | |
Credit Suisse AG, Cayman Islands Branch | 125,000,000 | |
Deutsche Bank, AG New York Branch | 125,000,000 | |
HSBC Bank USA, N.A. | 125,000,000 | |
Mizuho Bank, Ltd. | 125,000,000 | |
Sumitomo Mitsui Banking Corporation | 125,000,000 | |
Wells Fargo Bank, National Association | 125,000,000 | |
Société Générale | 87,500,000 | |
Standard Chartered Bank | 87,500,000 | |
U.S. Bank National Association | 87,500,000 | |
Bank of New York Mellon | 50,000,000 | |
PNC Bank, National Association | 50,000,000 | |
Santander Bank, N.A. | 50,000,000 | |
The Bank of Nova Scotia | 50,000,000 | |
The Northern Trust Company | 37,500,000 | |
Total | $2,000,000,000 |
as Administrative Agent
for the Lenders referred to below,
c/o Citibank, N.A.
388 Greenwich Street
New York, NY 10013
Date of Borrowing1 | |
Principal amount of Borrowing2 | |
Interest rate basis3 | |
Interest Period and the last day thereof4 |
1 | Must be a Business Day. |
2 | Not less than $10,000,000 (and in integral multiples of $1,000,000) and not greater than the total Commitments then available. |
3 | Eurocurrency Loan or ABR Loan. |
4 | Which shall be subject to the definition of “Interest Period” and end not later than the Maturity Date. |
Very truly yours, | ||
BRISTOL-MYERS SQUIBB COMPANY | ||
By: | ||
Name | ||
Title: |
1. | Assignor: | ||
2. | Assignee: | ||
[and is an existing Lender / an Affiliate of an existing Lender ([identify Lender])1] | |||
3. | Borrower(s): | ||
4. | Administrative Agents: | Citibank, N.A. and JPMorgan Chase Bank, N.A., as Administrative Agents under the Credit Agreement | |
5. | Credit Agreement: | The 364-Day Revolving Credit Facility Agreement, dated as of January 25, 2019 (as it may hereafter be amended, modified, extended or restated from time to time, the “Credit Agreement”), among Bristol-Myers Squibb Company (the “Company”), the |
1 | Select as applicable. |
Borrowing Subsidiaries,the Lenders named therein, Citibank, N.A. and JPMorgan Chase Bank, N.A., as Administrative Agents, and the Agents party thereto from time to time. | ||
6. | Assigned Interest: |
Aggregate Amount of Commitment/Loans for all Lenders | Amount of Commitment/Loans Assigned | Percentage Assigned of Commitment/Loans2 |
$ | $ | % |
$ | $ | % |
$ | $ | % |
ASSIGNOR | |
NAME OF ASSIGNOR |
By: | ||
Title: |
ASSIGNEE | |
NAME OF ASSIGNEE |
By: | ||
Title: |
[Consented to and]3 Accepted: | ||
CITIBANK, N.A., as Administrative Agent | ||
By | ||
Title: | ||
[Consented to:]4 | ||
By | ||
Title: |
3 | To be added only if the consent of the Administrative Agents is required by the terms of the Credit Agreement. |
4 | To be added only if the consent of the Company and/or other parties is required by the terms of the Credit Agreement. |
as Administrative Agent
for the Lenders referred to below,
c/o Citibank, N.A.
388 Greenwich Street
New York, NY 10013
[Name of Borrowing Subsidiary] |
[Address] |
Taxpayer ID: [ ] |
Very truly yours, | ||
BRISTOL-MYERS SQUIBB COMPANY | ||
By: | ||
Name | ||
Title: | ||
[DESIGNATED BORROWING SUBSIDIARY] | ||
By: | ||
Name | ||
Title: |
By: | ||
Name | ||
Title: |
as Administrative Agent
for the Lenders referred to below,
c/o Citibank, N.A.
388 Greenwich Street
New York, NY 10013
Very truly yours, | ||
BRISTOL-MYERS SQUIBB COMPANY | ||
By: | ||
Name | ||
Title: |
U.S. TAX CERTIFICATE
By: | ||
Name: | ||
Title: |
U.S. TAX CERTIFICATE
By: | ||
Name: | ||
Title: |
U.S. TAX CERTIFICATE
By: | ||
Name: | ||
Title: |
U.S. TAX CERTIFICATE
By: | ||
Name: | ||
Title: |