EXHIBIT 10.42
CUSTODIAL AGREEMENT ACKNOWLEDGMENT
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This CUSTODIAL AGREEMENT ACKNOWLEDGMENT (this "Agreement") is entered
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into as of August 31, 1995 among Macfor International Finance Company, a
Delaware corporation (the "Company"), Bank of America National Trust and Savings
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Association, a national banking association (the "Custodian") in its capacity as
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Custodian under the Custodial Agreement (as hereinafter defined), and Bank of
America National Trust and Savings Association, as agent (in such capacity, the
"Agent") for the several financial institutions (the "Banks") from time to time
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party to the Credit Agreement (as hereinafter defined).
RECITALS
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A. The Company and the Custodian have entered into a Custody
Agreement dated as of August 14, 1995 (the "Custodial Agreement") pursuant to
which, among other things, the Custodian has established the Restricted
Custodial Account (as hereinafter defined) on behalf of the Company to hold and
maintain certain securities, distributions with respect thereto and other
property.
B. The Agent and the Banks have entered into a Credit Agreement
dated as of March 31, 1995 with McKesson Corporation (the owner of 100% of the
stock of the Company) ("McKesson"), Medis Health and Pharmaceutical Services
Inc. ("Medis"), Chemical Bank, as Co-Agent, and Bank of America Canada, as
Canadian Administrative Agent, as amended by that certain First Amendment to
Credit Agreement dated as of August 31, 1995 (as so amended, and as further
amended, restated, extended, renewed or supplemented from time to time, the
"Credit Agreement"), pursuant to which the Banks have made certain commitments,
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subject to the terms and conditions set forth in the Credit Agreement, to extend
certain credit facilities to McKesson and Medis.
C. Pursuant to the terms of the Credit Agreement the Company and
the Agent have entered into a Pledge and Security Agreement dated as of August
31, 1995 (the "Pledge Agreement") pursuant to which the Company has granted a
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security interest in favor of the Agent in the Collateral (as defined in the
Pledge Agreement), including, without limitation, the Restricted Custodial
Account and the securities and other property therein.
D. The Agent has required that the Company and the Custodian enter
into this Agreement to, among other things, set forth the terms on which the
Custodian shall operate the Restricted Custodial Account and hold the
Collateral.
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties agree as follows:
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ARTICLE I
DEFINITIONS AND REFERENCES
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1.01 General Definitions. All capitalized terms used in this
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Agreement (including in the recitals hereof) and not otherwise defined herein
shall have the meanings assigned to them in the Pledge Agreement. As used in
this Agreement, the following terms shall have the following meanings:
"Business Day" means any day other than a Saturday, Sunday or other day on
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which commercial banks in New York City or San Francisco are authorized or
required by law to close.
"CFR" means the United States Code of Federal Regulations, as from time to
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time amended.
"Investments" means those investments, if any, made by the Custodian upon
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direction from the Company or the Agent, as the case may be, with amounts on
deposit in the Restricted Custodial Account pursuant to Article III.
"Person" means an individual, partnership, corporation, business trust,
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joint stock company, trust, unincorporated association, or governmental
authority.
"U.S. Government Securities" means securities issued or directly and
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unconditionally guaranteed as to interest and principal by the United States
Government or its agencies identified specifically by type on Schedule A, as
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supplemented from time to time in accordance with subsection 3.01(f).
1.02 Other Interpretive Provisions. (a) The meanings of defined terms are
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equally applicable to the singular and plural forms of the defined terms.
(b) The words "hereof", "herein", "hereunder" and similar words refer
to this Agreement as a whole and not to any particular provision of this
Agreement; and subsection, Section, Schedule and Exhibit references are to this
Agreement unless otherwise specified.
(c) (i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other writings,
however evidenced.
(ii) The term "including" is not limiting and means "including
without limitation."
(iii) In the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and including"; the
words "to" and "until" each mean "to but excluding", and the word "through"
means "to and including."
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(d) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement) and other contractual instruments shall be
deemed to include all subsequent amendments and other modifications thereto, but
only to the extent such amendments and other modifications are not prohibited by
the terms of this Agreement, and (ii) references to any statute or regulation
are to be construed as including all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting the statute or
regulation.
(e) The captions and headings of this Agreement are for convenience of
reference only and shall not affect the interpretation of this Agreement.
(f) This Agreement is the result of negotiations among and have been
reviewed by counsel to the Agent, the Company and the Custodian and is the
product of all parties. Accordingly, it shall not be construed against the
Banks or the Agent merely because of the Agent's or Banks' involvement in its
preparation.
ARTICLE II
OPERATION OF RESTRICTED CUSTODIAL ACCOUNT
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2.01 Restricted Custodial Account. The Company hereby authorizes and
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directs the Custodian to maintain at its office at 1455 Market Street, San
Francisco, CA 94103, as a restricted account in the name of the Company but
pledged to and under the dominion and control of the Agent as provided herein,
an investment account designated as Account No. 197427561 (Ref: "Macfor
International Finance Collateral Account") (the "Restricted Custodial Account").
2.02 Operation of Restricted Custodial Account. (a) The Restricted
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Custodial Account shall be operated, and all Investments shall be purchased and
registered or held (as applicable), in accordance with the terms of the
Custodial Agreement except as specifically set forth in this Agreement.
(b) Anything contained herein to the contrary notwithstanding, the
Restricted Custodial Account shall be subject to such applicable laws, and such
applicable regulations of the Board of Governors of the Federal Reserve System
and of any other appropriate banking or governmental authority, as may now or
hereafter be in effect.
(c) The Custodian shall send the Agent and the Company written account
statements with respect to the Restricted Custodial Account upon the written
request of the Agent.
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(d) The obligations and liabilities of the Company and the Custodian
with respect to the Restricted Custodial Account shall be governed by the
Custodial Agreement, except as specifically provided otherwise in this
Agreement.
ARTICLE III
PERMITTED INVESTMENTS OF AMOUNTS
IN THE RESTRICTED CUSTODIAL ACCOUNT
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3.01 Permitted Investments. (a) Cash held by the Custodian in the
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Restricted Custodial Account shall not be (i) invested or reinvested or (ii)
transferred from the Restricted Custodial Account, in either case except as
provided in this Article III.
(b) So long as the Custodian shall not have received written notice
from the Agent suspending the Company's right to direct the investment of funds
on deposit in the Restricted Custodial Account, the Custodian shall, in
accordance with the Company's instructions with respect to the purchase and sale
of Investments, given to the Custodian from time to time in accordance with the
Custodial Agreement, make such purchase or sale of Investments, in the
Custodian's name and as custodian under this Agreement and the Custodial
Agreement. If the Custodian has received notice from the Agent suspending the
Company's right to direct such investments under this subsection 3.01(b), such
suspension of the Company's rights may be reversed by a subsequent written
notice by the Agent to the Custodian to that effect.
(c) Promptly upon the purchase of any Investment, the Custodian shall
take all steps that it customarily takes in the ordinary course of its business
to ensure that such Investment is transferred on its books to the Company,
subject to a first priority security interest in favor of the Agent, and to
ensure that such Investment is held in the Restricted Custodial Account.
Without limiting the generality of the foregoing, the Custodian shall promptly
identify in its records, by book entry or otherwise, that the Restricted
Custodial Account and any Investments therein belong to the Company, subject to
a first priority security interest in favor of the Agent.
(d) Anything contained herein or in the Custodial Agreement to the
contrary notwithstanding, the Custodian shall, if and as directed in writing by
the Agent, (i) transfer any or all of the Collateral constituting cash to an
account designated by the Agent or transfer any or all of the Collateral to an
account established in the Agent's name (whether at the Agent or the Custodian
or otherwise), (ii) otherwise deal with the Collateral as directed by the Agent
in writing; provided, that, as between the Agent and the Company, the terms of
the Pledge Agreement shall control such directions of the Agent.
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(e) Subject to Section 3.01(d), any interest, cash dividends or other
cash distributions received in respect of any Investments (other than proceeds
from the sale of an Investment) shall be promptly transferred in accordance with
the provisions of the Custodial Agreement or to an account designated by the
Company. Any distribution of property other than cash in respect of any
Investment shall be held in the Restricted Custodial Account and the net
proceeds of any sale or payment of any Investments shall be held in the
Restricted Custodial Account pending investment subject to the Company's rights
under Section 3.06 of the Pledge Agreement.
(f) The Company and the Agent may, from time to time, supplement
Schedule A by written instructions signed by both of them. The Agent may
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condition its execution of such written instructions upon receiving such
opinions of counsel with respect to perfection of its security interest in
investments named in such supplement as it may require.
(g) Custodian shall hold all Investments in U.S. Government
Securities directly or through a Federal Reserve Bank of the United States.
3.02 Transfer of Collateral. In the event that the Company delivers a
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notice to release Designated Collateral pursuant to Section 3.05 of the Pledge
Agreement and the Custodian shall not have received a notice from the Agent
suspending the Company's right to release Collateral as provided in Section
3.05(b) of the Pledge Agreement by 9:00 a.m. (San Francisco time) on the date
specified for the release of the Designated Collateral in the Company's notice,
the Custodian shall be entitled to transfer Collateral designated by the Company
from the Restricted Custodial Account in accordance with the Company's written
instructions.
ARTICLE IV
VALUATION OF COLLATERAL; REPORTS BY THE CUSTODIAN
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4.01 Valuation of Collateral. The Custodian shall determine the Market
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Value of all Eligible Collateral and deliver Valuation Reports to the Agent as
provided in Section 3.04 of the Pledge Agreement. The Company and the Agent each
acknowledge that the Custodian employs one or more nationally recognized pricing
services, financial periodicals and publications to ascribe market values to
some or all of the Collateral. The Company and the Agent each acknowledge that
these ascribed values may not equal the actual market value of the Collateral
and that neither the Custodian nor any vendor from whom the Custodian receives
pricing information, guarantees their accuracy.
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ARTICLE V
ACKNOWLEDGEMENT OF SECURITY INTEREST
IN FAVOR OF AGENT; WAIVER OF SET-OFF
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(a) The Custodian hereby confirms that it has received a copy of the
Pledge Agreement and acknowledges the security interest granted by the Company
in favor of the Agent in the Collateral.
(b) The Custodian hereby further acknowledges that it holds the
Restricted Custodial Account, and all other Collateral registered to or held
therein, for the benefit of, and subject to such security interest in favor of,
the Agent. The Custodian shall, by book entry or otherwise, identify the
Restricted Custodial Account, and all other Collateral registered to or held
therein, as being subject to such security interest in favor of the Agent.
(c) The Company, the Custodian and the Agent hereby agree that in the
event any dispute arises with respect to the payment, ownership or right to
possession of the Restricted Custodial Account or any other Collateral
registered to or held therein, the Custodian shall take such actions and shall
refrain from taking such actions with respect thereto as may be directed by the
Agent, regardless of the rights of the Company under the Custodial Agreement.
This paragraph (c) shall not affect or limit the Company's rights or remedies
against the Agent if the Agent directs the Custodian to take any action which
the Agent is not entitled to direct or take under the Credit Agreement or the
other Loan Documents.
(d) The Custodian shall not exercise any right of set-off, banker's
lien, counterclaim or similar right against any of the Collateral; provided that
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the Custodian may deduct, from (i) the Collateral, or otherwise from the
Restricted Custodial Account, any amount necessary to settle any security
transaction related thereto, in accordance with the Custodial Agreement, and
(ii) any payments or cash distributions on or with respect to any Investments,
any usual and ordinary transaction and administration fees payable in connection
with the administration and operation of the Restricted Custodial Account.
Notwithstanding anything herein, in the Credit Agreement, in the Pledge
Agreement or any related documents to the contrary, the Agent and the Company
hereby agree that the continuing lien and pledge on, and security interest in,
the Collateral granted to the Custodian by the Company pursuant to the Custodial
Agreement shall be equal to the security interest of the Agent but only to the
extent that such lien, pledge and security interest of the Custodian secures the
obligations of the Company to the Custodian under the Custodial Agreement and
that such lien, pledge and security interest of the Custodian shall be junior to
the security interest of the Agent to the extent such lien, pledge and security
interest secures obligations of the Company to the
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Custodian other than those arising under the Custodial Agreement.
ARTICLE VI
EXCULPATION AND INDEMNIFICATION OF CUSTODIAN
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6.01 Custodian's Duties. The Custodian's duties hereunder are only those
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specifically provided herein and no implied duties shall be read into this
Agreement, and the Custodian shall incur no liability whatsoever for any actions
or omissions hereunder except for any such liability arising out of or in
connection with the Custodian's gross negligence or willful misconduct. The
Custodian shall be fully protected and shall suffer no liability in acting in
accordance with any written instructions reasonably believed by it to have been
given (a) by the Agent with respect to any aspect of the operation of the
Restricted Custodial Account (including any such instructions relating to any
investments of any amounts on deposit therein) or (b) by the Company, to the
extent provided in Section 3.01, with respect to any investments of any amounts
on deposit in the Restricted Custodial Account or in Section 3.02, with respect
to the transfer of Collateral. The Custodian shall have no obligation to
determine whether or not an Event of Default under the Credit Agreement shall
have occurred. The Custodian shall not be liable or deemed to be in default
hereunder for any failure or delay in performance of any duty in whole or in
part arising out of or caused by circumstances beyond its control including,
without limitation, acts of God, interruption, delay in, or loss (partial or
complete) of electrical power or of computer (hardware or software) or
communication services; act of civil or military authority; sabotage, war or
other government action; civil disturbance or riot; strike or other industrial
dispute; national emergency; epidemic; flood, earthquake, fire, or other
catastrophe; government, judicial, or self-regulatory organization order, rule,
or regulation; energy or natural resource difficulty or shortage; and inability
to obtain or timely to obtain materials, equipment, or transportation.
6.02 Indemnification. The Company agrees to indemnify the Custodian from
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and against any and all claims, losses, liabilities and expenses (including
reasonable attorneys' fees and expenses and the reasonable allocated charges of
internal counsel) in any way relating to, growing out of or resulting from this
Agreement or the performance of its obligations hereunder, except to the extent
arising out of or in connection with the Custodian's gross negligence or willful
misconduct. The Custodian agrees to indemnify the Company, the Agent and the
Banks from and against any and all claims, losses, liabilities and expenses
(including reasonable attorneys' fees and expenses and the reasonable allocated
charges of internal counsel) in any way relating to, growing out of or resulting
from any actions taken by the Custodian under this Agreement amounting to gross
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negligence or willful misconduct of the Custodian or its officers or employees,
except for consequential damages caused thereby. The Agent, for itself and on
behalf of the Banks, agrees to indemnify the Custodian from and against any and
all claims, losses, liabilities and expenses (including reasonable attorneys'
fees and expenses and the reasonable allocated charges of internal counsel) in
any way relating to, growing out of or resulting from any actions taken by the
Agent or its officers or employees under this Agreement or the Pledge Agreement
amounting to negligence or willful misconduct, except for consequential damages
caused thereby. The Company agrees to release, indemnify and defend against, and
each of the Company and the Agent, for itself and on behalf of the Banks, agrees
to hold the Custodian harmless against, any risk, loss, claim, liability,
demand, damage or expense resulting from and/or related to the ascribed market
value of the Collateral, including without limitation, claims made against the
Company or the Agent by any third party. The provisions of this Article shall
survive termination of this Agreement.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES BY THE CUSTODIAN
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The Custodian hereby represents and warrants to the Company and the Agent
as follows:
(a) The Custodian has all necessary corporate power and authority to
enter into and perform this Agreement.
(b) The execution, delivery and performance of this Agreement by the
Custodian have been duly authorized by all necessary corporate action on the
part of the Custodian. This Agreement constitutes the valid, legal and binding
agreement of the Custodian, enforceable in accordance with its terms.
(c) The Custodian is (i) a national banking association and (ii)
eligible to maintain custodial book entry accounts with a Federal Reserve Bank
under Sections 306.115 through 306.122 of Title 31 of the CFR. In the ordinary
course of its business, the Custodian accepts for deposit items similar to the
Eligible Investments as a service for its customers, and maintains securities
accounts in the names of such customers reflecting ownership of or interests in
such items. The Custodian is a "financial intermediary" (as that term is
defined in Section 8-313 of the Uniform Commercial Code as in effect in the
State of California) and is acting in such capacity for purposes of this
Agreement.
(d) At the time any Collateral is valued in any Valuation Report, the
Custodian's Custody Unit located at the address set forth in Section 10.05(b)
will not have received, acknowledged or accepted any notice, order, registration
or other
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document which purports to constitute any pledge, claim, security interest,
lien, encumbrance or adverse claim of any kind with respect to such Collateral,
other than the pledge and security interest in favor of the Agent pursuant to
the Pledge Agreement, or been served with legal process with respect to such
Collateral. The Custodian has not sold, transferred, assigned, pledged or
granted, and after the date hereof the Custodian will not, except as specified
in Article III, paragraph (d) of Article V or subsection 9.03(d), sell,
transfer, assign, pledge or grant a security interest in, the Collateral, or any
part thereof, to any Person, including the Federal Reserve Bank of New York, any
other Federal Reserve Bank, the United States Treasury or any other transferee
or pledgee eligible to maintain a book-entry account in its name with a Federal
Reserve Bank.
ARTICLE VIII
TERMINATION
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This Agreement shall terminate, and all rights to the Restricted
Custodial Account and all other Collateral registered to or held therein shall
revert to the Company, upon the Custodian's receipt of written notice, signed by
an authorized officer of the Agent, that the Pledge Agreement has terminated.
ARTICLE IX
RESIGNATION AND REMOVAL OF THE CUSTODIAN
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9.01 Removal. The Custodian may be removed at any time by written notice
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given by the Agent to the Custodian and the Company, but such removal shall not
become effective until a successor Custodian shall have been appointed in
accordance with Section 9.03 and shall have accepted such appointment in
writing.
9.02 Resignation. The Custodian may resign at any time by giving not less
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than thirty days' written notice to the Agent and the Company, but such
resignation shall not become effective until a successor Custodian shall have
been appointed in accordance with Section 9.03 and shall have accepted such
appointment in writing. If an instrument of acceptance by a successor Custodian
shall not have been delivered to the resigning Custodian within thirty days
after the giving of any such notice of resignation, the resigning Custodian may,
at the expense of the Company, petition any court of competent jurisdiction for
the appointment of a successor Custodian.
9.03 Successor Custodian. (a) If the Custodian resigns or is removed
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hereunder or becomes incapable of acting or is adjudged a bankrupt or insolvent,
or if a receiver, liquidator or conservator of the Custodian, or of its
property, shall be appointed, or if any public officer shall take charge or
control
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of the Custodian, or of its property or affairs, the Company may appoint an
Approved Custodian as successor hereunder or, with the consent of the Agent and
Majority Banks, may appoint another entity complying with Section 9.03(b) as
successor hereunder.
(b) Any Custodian appointed under the provisions of Section 9.03(a) in
succession to the Custodian shall be either (i) an Approved Custodian or (ii) a
bank or trust company or banking association in good standing having capital
stock and surplus aggregating at least $1,000,000,000, which, in the case of
either (i) or (ii), shall be authorized by law to perform all the duties imposed
upon it by this Agreement and able to make the representations contained in
subsections (a), (b) and (c) of Article VII.
(c) Any company into which the Custodian may be merged or converted or
with which it may be consolidated or any company resulting from any merger,
conversion or consolidation to which it shall be a party, or any company to
which the Custodian may sell or transfer all or substantially all of its custody
business shall be the successor to the Custodian hereunder without the execution
or filing of any paper or the performance of any further act, if and only if
such company shall be either (i) an Approved Custodian or (ii) a bank or trust
company or banking association in good standing having capital stock and surplus
aggregating at least $1,000,000,000, which, in the case of either (i) or (ii),
shall be authorized by law to perform all the duties imposed upon it by this
Agreement and able to make the representations contained in clauses (a), (b) and
(c) of Article VII.
(d) Upon the appointment of a successor Custodian and its acceptance
of such appointment and upon payment of all Obligations (as defined in the
Custodial Agreement) and all fees and expenses owed to the Custodian hereunder,
the resigning or removed Custodian shall transfer all items of Collateral held
by it to such successor (which items of Collateral shall be deposited in a new
Restricted Custodial Account established and maintained by such successor) and
the original Custodian shall deliver a certificate in the form of Exhibit A with
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respect to all Collateral so transferred. Following such appointment all
references herein to the Custodian shall be deemed a reference to such
successor; provided that the provisions of Article VI hereof and of Section 8 of
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the Custodial Agreement shall continue to inure to the benefit of the resigning
or removed Custodian with respect to any actions taken or omitted to be taken by
it under this Agreement while it was the Custodian hereunder.
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ARTICLE X
MISCELLANEOUS
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10.01 Amendments; Conflicts With Custodial Agreement. No amendment or
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waiver of any provision of this Agreement or the Custodial Agreement and no
consent with respect to any departure by the Company or the Custodian therefrom,
shall be effective unless the same shall be in writing and signed by the Agent,
the Company, and the Custodian, and then any such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given. In the event of a conflict between the terms of this Agreement and the
terms of the Custodial Agreement, the terms of this Agreement shall prevail.
10.02 Successors and Assigns. The provisions of this Agreement shall be
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binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that neither the Company nor the Custodian
(except as provided in Section 9.03(c)) may assign or transfer any of its rights
or obligations under this Agreement without the prior written consent of each of
the other parties hereto.
10.03 Governing Law. (a) THIS AGREEMENT SHALL BE GOVERNED BY, AND
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CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA WITHOUT
REFERENCE TO PRINCIPLES OF CONFLICTS OF LAWS, EXCEPT AS REQUIRED BY MANDATORY
PROVISIONS OF LAW AND TO THE EXTENT THE VALIDITY OR PERFECTION OF THE LIENS
HEREUNDER IN RESPECT OF ANY COLLATERAL ARE GOVERNED BY THE LAW OF A JURISDICTION
OTHER THAN CALIFORNIA.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY
BE BROUGHT IN THE COURTS OF THE STATE OF CALIFORNIA OR OF THE UNITED STATES FOR
THE NORTHERN DISTRICT OF CALIFORNIA, AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, EACH OF THE COMPANY, THE AGENT (FOR ITSELF AND ON BEHALF OF THE
BANKS) AND THE CUSTODIAN CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO
THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE COMPANY, THE AGENT
(FOR ITSELF AND ON BEHALF OF THE BANKS) AND THE CUSTODIAN IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
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BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS
AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE COMPANY, THE AGENT (FOR ITSELF
AND ON BEHALF OF THE BANKS) AND THE CUSTODIAN EACH WAIVES PERSONAL SERVICE OF
ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS
PERMITTED BY CALIFORNIA LAW.
10.04 Waiver of Jury Trial. THE COMPANY, THE AGENT (FOR ITSELF AND ON
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BEHALF OF THE BANKS) AND THE CUSTODIAN EACH WAIVES THEIR RESPECTIVE RIGHTS TO A
TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR
RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN
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ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE
PARTIES AGAINST ANY OTHER PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT
CLAIMS, OR OTHERWISE. THE COMPANY, THE AGENT (FOR ITSELF AND ON BEHALF OF THE
BANKS) AND THE CUSTODIAN EACH AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION
SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING,
THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS
WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER
PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR
ENFORCEABILITY OF THIS AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO
THIS AGREEMENT.
10.05 Notices; Written Instructions.
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(a) All written instructions, notices, requests and other
communications shall be in writing (including, unless the context expressly
otherwise provides, by facsimile transmission, provided that any matter
transmitted by facsimile shall be followed promptly by delivery of a hard copy
original thereof) and mailed, faxed or delivered, to the address or facsimile
number specified for notices below; or to such other address as shall be
designated by any party in a written notice to the other parties.
(b) All such notices, requests and communications shall, when
transmitted by overnight delivery, or faxed, be effective when delivered for
overnight (next-day) delivery, or transmitted in legible form by facsimile
machine, respectively, or if mailed, upon the third Business Day after the date
deposited into the U.S. mail, or if delivered, upon delivery.
Address of the Agent:
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Bank of America National Trust and
Savings Association
1455 Market Street, 12th Floor
San Francisco, CA 94103
Attention: Ivo Bakovic
Vice President
Agency Management Services #5596
Facsimile Number: (415) 622-4894
Address of the Company:
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Macfor International Finance Company
c/o McKesson Corporation
One Post Street
San Francisco, CA 94104
Attention: Alan Pearce
Facsimile: (415) 983-8464
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Address of the Custodian:
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Bank of America National Trust and
Savings Association
1455 Market Street, 16th Floor
San Francisco, CA 94103
Attention: Rick Hawkins
Facsimile: (415) 622-5167
10.06 Counterparts. This Agreement may be executed in any number of
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separate counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument.
10.07 No Waiver; Cumulative Remedies. No failure to exercise and no delay
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in exercising, on the part of the Agent, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights and remedies of the parties provided herein are cumulative
and are in addition to, and not exclusive of, any rights or remedies provided by
law.
10.08 Severability. The illegality or unenforceability of any provision
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of this Agreement or any instrument or agreement required hereunder shall not in
any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement or any instrument or agreement required hereunder.
10.09 No Third Parties Benefited. This Agreement is made and entered into
--------------------------
for the sole protection and legal benefit of the Custodian, the Company, the
Agent, and the Banks for which the Agent acts as the Agent, and their permitted
successors and assigns, and no other Person shall be a direct or indirect
beneficiary of, or have any direct or indirect cause of action or claim in
connection with, this Agreement.
10.10 Entire Agreement. This Agreement embodies the entire agreement and
----------------
understanding among the Custodian, on one hand, and the Company and the Agent,
on the other, and supersedes all prior or contemporaneous agreements and
understandings of such parties, verbal or written, relating to the subject
matter hereof.
13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the day
and year first above written.
The Company: MACFOR INTERNATIONAL FINANCE COMPANY
By:________________________________
Its:_______________________________
The Agent: BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By:________________________________
Its:_______________________________
The Custodian: BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By:________________________________
Its:_______________________________
By:________________________________
Its:_______________________________
14
Schedule A
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U.S. GOVERNMENT SECURITIES
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United States Treasury Bills
United States Treasury Bonds
United States Treasury Notes
1
EXHIBIT A
RE: ____________ Restricted Custodial Account
CERTIFICATION OF THE CUSTODIAN UPON TRANSFER
Reference is made to the Custodial Agreement Acknowledgment dated as of
August 31, 1995 (the "Agreement") among Macfor International Finance Company
(the "Company"), Bank of America National Trust and Savings Association (the
"Custodian") and Bank of America National Trust and Savings Association, as
Agent ("Agent"). Terms which are defined in the Agreement are used herein with
the meanings given them in the Agreement.
Pursuant to the terms of the Agreement, the Custodian hereby represents and
warrants to the Agent that:
(a) The person signing this instrument on behalf of the Custodian is the
duly elected, qualified and acting officer of the Custodian as indicated below
such officer's signature hereto, having all necessary authority to act for the
Custodian in making the certification herein contained.
(b) The Collateral described below represents all Collateral contained in
the Restricted Custodial Account:
[Investments to be described here by Issuer, Par Amount, Coupon and
Maturity; other Collateral to be described by dollar amount and type]
(c) The representations and warranties of the Custodian set forth in
Article VII of the Agreement are true and correct on and as of the date hereof
with respect to all Collateral, with the same effect as though such
representations and warranties had been made on and as of the date hereof.
(d) Except to the extent waived in writing by the Agent, the Custodian has
performed and complied with all agreements and conditions in the Agreement
required to be performed or complied with by the Custodian on or before the date
hereof.
A-1
In accordance with the instructions of the Company and the Agent, the
Custodian agrees to transfer all Collateral immediately after its execution of
this Certificate to account number __________ at [the successor custodian].
IN WITNESS WHEREOF, this instrument is executed as
of ____________________, ________.
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By:______________________________
Name: ________________________
Title: _______________________
A-2