EXHIBIT 10.40
EXECUTION VERSION
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CREDIT AGREEMENT
Dated as of September 30, 2002
among
McKESSON CORPORATION,
BANK OF AMERICA, N.A.,
as Administrative Agent,
JPMORGAN CHASE BANK,
as Syndication Agent,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Documentation Agent,
BANK ONE, NA,
as Documentation Agent,
and
The Other Lenders Party Hereto
BANC OF AMERICA SECURITIES LLC,
as
Sole Lead Arranger and Sole Book Manager
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TABLE OF CONTENTS
SECTION PAGE
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Article I. DEFINITIONS AND ACCOUNTING TERMS........................................................ 1
1.01 Defined Terms........................................................................... 1
1.02 Other Interpretive Provisions........................................................... 15
1.03 Accounting Terms........................................................................ 15
1.04 Rounding................................................................................ 15
1.05 References to Agreements and Laws....................................................... 16
1.06 Times of Day............................................................................ 16
Article II. THE COMMITMENTS AND CREDIT EXTENSIONS................................................... 16
2.01 Committed Loans......................................................................... 16
2.02 Borrowings, Conversions and Continuations of Committed Loans............................ 16
2.03 Prepayments............................................................................. 17
2.04 Termination or Reduction of Commitments................................................. 18
2.05 Repayment of Loans...................................................................... 18
2.06 Interest................................................................................ 18
2.07 Fees.................................................................................... 19
2.08 Computation of Interest and Fees........................................................ 20
2.09 Evidence of Debt........................................................................ 20
2.10 Payments Generally...................................................................... 20
2.11 Sharing of Payments..................................................................... 22
2.12 Increase in Commitments................................................................. 23
2.13 Conversion of Loans to Term Loans....................................................... 24
Article III. TAXES, YIELD PROTECTION AND ILLEGALITY.................................................. 25
3.01 Taxes................................................................................... 25
3.02 Illegality.............................................................................. 26
3.03 Inability to Determine Rates............................................................ 26
3.04 Increased Cost and Reduced Return; Capital Adequacy..................................... 27
3.05 Funding Losses.......................................................................... 27
3.06 Matters Applicable to all Requests for Compensation..................................... 28
3.07 Survival................................................................................ 28
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Article IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS............................................... 28
4.01 Conditions of Initial Credit Extension.................................................. 28
4.02 Conditions to all Credit Extensions..................................................... 30
Article V. REPRESENTATIONS AND WARRANTIES.......................................................... 30
5.01 Corporate Existence and Power........................................................... 30
5.02 Corporate Authorization; No Contravention............................................... 31
5.03 Governmental Authorization.............................................................. 31
5.04 Binding Effect.......................................................................... 31
5.05 Litigation.............................................................................. 31
5.06 No Default.............................................................................. 32
5.07 Use of Proceeds; Margin Regulations..................................................... 32
5.08 Financial Condition..................................................................... 32
5.09 Regulated Entities...................................................................... 33
5.10 No Burdensome Restrictions.............................................................. 33
5.11 Subsidiaries and Certain Liens As of the Closing Date................................... 33
5.12 Disclosed Matters....................................................................... 33
Article VI. AFFIRMATIVE COVENANTS................................................................... 33
6.01 Financial Statements.................................................................... 33
6.02 Certificates; Other Information......................................................... 34
6.03 Notices................................................................................. 35
6.04 Preservation of Existence, Etc.......................................................... 36
6.05 Maintenance of Insurance................................................................ 36
6.06 Payment of Taxes........................................................................ 36
6.07 Compliance with Laws.................................................................... 36
6.08 Books and Records....................................................................... 36
6.09 Inspection Rights....................................................................... 36
6.10 Use of Proceeds......................................................................... 37
Article VII. NEGATIVE COVENANTS...................................................................... 37
7.01 Liens................................................................................... 37
7.02 Consolidations and Mergers.............................................................. 38
7.03 Use of Proceeds......................................................................... 38
7.04 Maximum Debt to Capitalization Ratio.................................................... 39
7.05 Swap Contracts.......................................................................... 39
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Article VIII. EVENTS OF DEFAULT AND REMEDIES.......................................................... 39
8.01 Events of Default....................................................................... 39
8.02 Remedies Upon Event of Default.......................................................... 40
8.03 Application of Funds.................................................................... 41
Article IX. ADMINISTRATIVE AGENT.................................................................... 42
9.01 Appointment and Authorization of Administrative Agent................................... 42
9.02 Delegation of Duties.................................................................... 42
9.03 Liability of Administrative Agent....................................................... 42
9.04 Reliance by Administrative Agent........................................................ 42
9.05 Notice of Default....................................................................... 43
9.06 Credit Decision; Disclosure of Information by Administrative Agent...................... 43
9.07 Indemnification of Administrative Agent................................................. 44
9.08 Administrative Agent in Its Individual Capacity......................................... 44
9.09 Successor Administrative Agent.......................................................... 45
9.10 Administrative Agent May File Proofs of Claim........................................... 45
9.11 Other Agents; Arrangers and Managers.................................................... 46
Article X. MISCELLANEOUS........................................................................... 46
10.01 Amendments, Etc......................................................................... 46
10.02 Notices and Other Communications; Facsimile Copies...................................... 47
10.03 No Waiver; Cumulative Remedies.......................................................... 48
10.04 Attorney Costs, Expenses and Taxes...................................................... 48
10.05 Indemnification by the Company.......................................................... 49
10.06 Payments Set Aside...................................................................... 49
10.07 Successors and Assigns.................................................................. 50
10.08 Confidentiality......................................................................... 53
10.09 Set-off................................................................................. 54
10.10 Interest Rate Limitation................................................................ 54
10.11 Counterparts............................................................................ 54
10.12 Integration............................................................................. 54
10.13 Survival of Representations and Warranties.............................................. 55
10.14 Severability............................................................................ 55
10.15 Tax Forms............................................................................... 55
10.16 Replacement of Lenders.................................................................. 57
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10.17 Governing Law........................................................................... 57
10.18 Waiver of Right to Trial by Jury........................................................ 58
SCHEDULES
2.01 Commitments and Pro Rata Shares
5.11 Subsidiaries and Indebtedness Secured by Liens
10.02 Administrative Agent's Office, Certain Addresses for Notices
EXHIBITS
FORM OF
A Committed Loan Notice
B Note
C Opinion Matters
D Compliance Certificate
E Assignment and Assumption
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CREDIT AGREEMENT
This CREDIT AGREEMENT ("Agreement") is entered into as of September 30,
2002, among McKESSON CORPORATION, a Delaware corporation (the "Company"), each
lender from time to time party hereto (collectively, the "Lenders" and
individually, a "Lender") and BANK OF AMERICA, N.A., as Administrative Agent.
The Company has requested that the Lenders provide a revolving credit
facility, and the Lenders are willing to do so on the terms and conditions set
forth herein.
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01 DEFINED TERMS. As used in this Agreement, the following terms
shall have the meanings set forth below:
"Administrative Agent" means Bank of America, N.A. in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
"Administrative Agent's Office" means the Administrative Agent's
address and, as appropriate, account as set forth on Schedule 10.02, or such
other address or account as the Administrative Agent may from time to time
notify the Company and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire in
a form supplied by the Administrative Agent.
"Affiliate" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified. "Control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise. "Controlling" and
"Controlled" have meanings correlative thereto.
"Agent-Related Persons" means the Administrative Agent and any
successor agent arising under Section 9.09, together with their respective
Affiliates (including, in the case of Bank of America in its capacity as the
Administrative Agent, the Arranger), and the officers, directors, employees,
agents and attorneys-in-fact of such Persons and Affiliates.
"Aggregate Commitments" means the aggregate Commitments of all the
Lenders.
"Agreement" means this Credit Agreement.
"Applicable Maturity Date" means, in the case of Revolving Loans, the
Revolving Loan Maturity Date and, in the case of Term Loans, the Term Loan
Maturity Date.
"Applicable Rate" means, from time to time, the rate, expressed in
basis points per annum, corresponding to the applicable Debt Rating as set forth
below:
DEBT RATINGS
PRICING S&P/ FACILITY EURODOLLAR
LEVEL MOODY'S FEE RATE + BASE RATE +
- --------------------------------------------------------------------------------------
1 A/A2 or higher 8 42 0
2 A-/A3 9 46 0
3 BBB+/Baa1 11 51.5 0
4 BBB/Baa2 12.5 62.5 0
5 BBB-/Baa3 17.5 82.5 0
6 less than BBB-/Baa3 22.5 102.5 0
"Debt Rating" means, as of any date of determination, the
ratings as determined by S&P and Moody's (collectively, the "Debt
Ratings") of the Company's non-credit-enhanced, senior unsecured
long-term debt; provided that, if the Debt Ratings result in two
different Pricing Levels, the higher of such Debt Ratings shall apply
(with the Debt Rating for Pricing Level 1 being the highest and the
Debt Rating for Pricing Level 6 being the lowest), unless there is a
split in Debt Ratings of more than one level, in which case the Pricing
Level that is one level higher than the Pricing Level of the lower Debt
Rating shall apply.
Initially, the Applicable Rate shall be determined based upon the Debt Rating
specified in the certificate delivered pursuant to Section 4.01(a)(vi).
Thereafter, each change in the Applicable Rate resulting from a publicly
announced change in the Debt Rating shall be effective, in the case of an
upgrade, during the period commencing on the date of delivery by the Company to
the Administrative Agent of notice thereof pursuant to Section 6.03(e) and
ending on the date immediately preceding the effective date of the next such
change and, in the case of a downgrade, during the period commencing on the date
of the public announcement thereof and ending on the date immediately preceding
the effective date of the next such change.
"Applicable Term Loan Margin" means, from time to time, (i) 25.0 basis
points per annum at any time the Debt Rating is BBB/Baa2 or higher and (ii) 37.5
basis points per annum at any time the Debt Rating is lower than BBB/Baa2, in
each case as determined in accordance with the definition of "Applicable Rate,"
including in the event of a split in the Debt Ratings.
"Arranger" means Banc of America Securities LLC, in its capacity as
sole lead arranger and sole book manager.
"Assignment and Assumption" means an Assignment and Assumption
substantially in the form of Exhibit E.
"Attorney Costs" means and includes all fees, expenses and
disbursements of any law firm or other external counsel and, without
duplication, the allocated cost of internal legal services and all expenses and
disbursements of internal counsel; provided that no fees, expenses
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or disbursements shall qualify as Attorney Costs unless written evidence
substantiating such fees, expenses and disbursements is available to the Company
upon request.
"Attributable Indebtedness" means, on any date, (a) in respect of any
capital lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of
the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease.
"Audited Financial Statements" means the audited consolidated balance
sheet of the Company and its Subsidiaries for the fiscal year ended March 31,
2002, and the related consolidated statements of operations, shareholders'
equity and cash flows for such fiscal year of the Company and its Subsidiaries,
including the notes thereto.
"Availability Period" means the period from and including the Closing
Date to the earliest of (a) the Revolving Loan Maturity Date, (b) the date of
termination of the Aggregate Commitments pursuant to Section 2.04, and (c) the
date of termination of the commitment of each Lender to make Loans pursuant to
Section 8.02.
"Bank of America" means Bank of America, N.A. and its successors.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." The "prime rate" is a rate set by Bank of America
based upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by Bank of America shall take effect at
the opening of business on the day specified in the public announcement of such
change.
"Base Rate Committed Loan" means a Committed Loan that is a Base Rate
Loan.
"Base Rate Loan" means a Loan that bears interest based on the Base
Rate.
"Borrowing" means a borrowing consisting of simultaneous Committed
Loans of the same Type and, in the case of Eurodollar Rate Loans, having the
same Interest Period made by each of the Lenders pursuant to Section 2.01 or
Section 2.13.
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks are authorized to close under the Laws of, or are in
fact closed in, Charlotte, North Carolina or San Francisco, California and, if
such day relates to any Eurodollar Rate Loan, means any such day on which
dealings in Dollar deposits are conducted by and between banks in the London
interbank eurodollar market.
"Closing Date" means the first date all the conditions precedent in
Section 4.01 are satisfied or waived in accordance with Section 4.01 (or, in the
case of Section 4.01(b), waived by the Person entitled to receive the applicable
payment).
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"Code" means the Internal Revenue Code of 1986.
"Commitment" means, as to each Lender, its obligation to make Revolving
Loans to the Company pursuant to Section 2.01, in an aggregate principal amount
at any one time outstanding not to exceed the amount set forth opposite such
Lender's name on Schedule 2.01 or in the Assignment and Assumption pursuant to
which such Lender becomes a party hereto, as applicable, as such amount may be
adjusted from time to time in accordance with this Agreement; provided that if
the Term Loans are made, "Commitment" means the Lender's Pro Rata Share of the
aggregate principal amount of Term Loans outstanding on such date. The
Commitment for any Lender that has an Affiliate is a single value for such
Lender and its Affiliate taken together.
"Committed Loan" means a Revolving Loan or, to the extent any are made
pursuant to Section 2.13, a Term Loan.
"Committed Loan Notice" means a notice of (a) (i) a Borrowing, (ii) a
conversion of Committed Loans from one Type to the other, (iii) a continuation
of Eurodollar Rate Loans, pursuant to Section 2.02(a), or (b) a request for Term
Loans, pursuant to Section 2.13(b), which, if in writing, shall be substantially
in the form of Exhibit A.
"Company" has the meaning specified in the introductory clause hereto.
"Compliance Certificate" means a certificate substantially in the form
of Exhibit D.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" has the meaning specified in the definition of "Affiliate."
"Credit Extension" means a Borrowing.
"Debt Rating" has the meaning set forth in the definition of
"Applicable Rate."
"Debtor Relief Laws" means the Bankruptcy Code of the United States and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"Default" means any event or condition that constitutes an Event of
Default or that, with the giving of any notice, the passage of time, or both,
would be an Event of Default.
"Default Rate" means an interest rate equal to (a) the Base Rate plus
(b) the Applicable Rate and, with respect to any Term Loan, the Applicable Term
Loan Margin, applicable to Base Rate Loans plus (c) 1% per annum; provided,
however, that with respect to a Eurodollar Rate Loan, the Default Rate shall be
an interest rate equal to the interest rate (including any Applicable Rate and,
with respect to any Term Loan, the Applicable Term Loan Margin)
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otherwise applicable to such Loan plus 1% per annum, in each case to the fullest
extent permitted by applicable Laws.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Committed Loans required to be funded by it hereunder within one
Business Day of the date required to be funded by it hereunder, (b) has
otherwise failed to pay over to the Administrative Agent or any other Lender any
other amount required to be paid by it hereunder within one Business Day of the
date when due, unless the subject of a good faith dispute, or (c) has been
deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.
"Disclosed Matters" means (i) those matters described in the Company's
press release dated April 28, 1999 (the "Press Release"), (ii) litigation which
(A) is related to the matters disclosed in the Press Release and (B) has been
disclosed to the Administrative Agent and the Lenders prior to the Closing Date,
and (iii) other matters related to the matters disclosed in the Press Release
which have been publicly disclosed by the Company in its filings with the SEC
prior to the Closing Date.
"Dollar" and "$" mean lawful money of the United States.
"Eligible Assignee" has the meaning specified in Section 10.07(g).
"Environmental Laws" means any and all Federal, state, municipal,
local, and foreign statutes, laws, regulations, ordinances, rules, judgments,
orders, decrees, permits, concessions, grants, franchises, licenses, agreements
or governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including
those related to hazardous substances or wastes, air emissions and discharges to
waste or public systems.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Company within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for
purposes of provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by the Company or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Company or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon the Company or
any ERISA Affiliate.
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"Eurodollar Base Rate" has the meaning set forth in the definition of
Eurodollar Rate.
"Eurodollar Rate" means for any Interest Period with respect to any
Eurodollar Rate Loan, a rate per annum determined by the Administrative Agent
pursuant to the following formula:
Eurodollar Base Rate
Eurodollar Rate = ------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Base Rate" means, for such Interest Period:
(a) the rate per annum equal to the rate determined by
the Administrative Agent to be the offered rate that appears on the
page of the Telerate screen (or any successor thereto) that displays an
average British Bankers Association Interest Settlement Rate for
deposits in Dollars (for delivery on the first day of such Interest
Period) with a term equivalent to such Interest Period, determined as
of approximately 11:00 a.m. (London time) two Business Days prior to
the first day of such Interest Period, or
(b) if the rate referenced in the preceding clause (a)
does not appear on such page or service or such page or service shall
not be available, the rate per annum equal to the rate determined by
the Administrative Agent to be the offered rate on such other page or
other service that displays an average British Bankers Association
Interest Settlement Rate for deposits in Dollars (for delivery on the
first day of such Interest Period) with a term equivalent to such
Interest Period, determined as of approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest Period,
or
(c) if the rates referenced in the preceding clauses (a)
and (b) are not available, the rate per annum determined by the
Administrative Agent as the rate of interest at which deposits in
Dollars for delivery on the first day of such Interest Period in same
day funds in the approximate amount of the Eurodollar Rate Loan being
made, continued or converted by Bank of America and with a term
equivalent to such Interest Period would be offered by Bank of
America's London Branch to major banks in the London interbank
eurodollar market at their request at approximately 4:00 p.m. (London
time) two Business Days prior to the first day of such Interest Period.
"Eurodollar Reserve Percentage" means, for any day during any
Interest Period the reserve percentage (expressed as a decimal, carried
out to five decimal places) in effect on such day, whether or not
applicable to any Lender, under regulations issued from time to time by
the FRB for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) with
respect to Eurocurrency funding (currently referred to as "Eurocurrency
liabilities"). The Eurodollar Rate for each outstanding Eurodollar Rate
Loan shall be adjusted automatically as of the effective date of any
change in the Eurodollar Reserve Percentage.
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"Eurodollar Rate Loan" means a Committed Loan that bears interest at a
rate based on the Eurodollar Rate.
"Event of Default" has the meaning specified in Section 8.01.
"Existing Credit Agreements" means (a) that certain Credit Agreement,
dated as of November 10, 1998, among the Company, Medis Health and
Pharmaceutical Services, Inc. (now known as McKesson Canada Corporation), Bank
of America, as agent, Bank of America Canada, as Canadian administrative agent,
and the lenders party thereto as amended to date and (b) that certain Credit
Agreement, dated as of October 22, 1999, among the Company, Bank of America, as
agent, and the lenders party thereto, as amended.
"Exposure" means (a) prior to the termination of the Commitment, such
Lender's Commitment and (b) after the termination of the Commitment, the Total
Outstandings for such Lender.
"Federal Funds Rate" means, for any day, the rate per annum equal to
the weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank on the Business Day next
succeeding such day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (b) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the weighted average rate (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of
America on such day on such transactions as determined by the Administrative
Agent.
"Fee Letter" means the letter agreement, dated August 28, 2002, among
the Company, the Administrative Agent and the Arranger.
"Foreign Lender" has the meaning specified in Section 10.15(a)(i).
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"GAAP" means generally accepted accounting principles in the United
States 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 in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"Granting Lender" has the meaning specified in Section 10.07(h).
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"Guarantee" means, as to any Person, any (a) any obligation, contingent
or otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation, or (iv) entered into for the
purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or
(b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person. The amount of any Guarantee shall be
deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is
made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by the guaranteeing Person in good
faith. The term "Guarantee" as a verb has a corresponding meaning.
"Indebtedness" means, as to any Person at a particular time, without
duplication, all of the following:
(a) all obligations of such Person for borrowed money;
(b) all obligations of such Person to pay the deferred
purchase price of property or services (other than trade accounts
payable in the ordinary course of business);
(c) all non-contingent reimbursement or payment
obligations of such Person arising under letters of credit (including
standby and commercial), bankers' acceptances, bank guaranties,
shipside bonds, surety bonds and similar instruments;
(d) all obligations of such Person evidenced by bonds,
debentures, notes, loan agreements or other similar instruments;
(e) capital leases and Synthetic Lease Obligations;
(f) net obligations of such Person under any Swap
Contract;
(g) all indebtedness created or arising under any
conditional sale or other title retention agreement, or incurred as
financing, in either case with respect to property acquired by the
Person (even though the rights and remedies of the seller or bank under
such agreement in the event of default are limited to repossession or
sale of such property); and
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(h) all indebtedness referred to in clauses (a) through
(g) above (excluding prepaid interest thereon) secured by a Lien on
property owned or being purchased by such Person, whether or not such
indebtedness shall have been assumed by such Person or is limited in
recourse.
For all purposes hereof, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person. The amount of any net obligation under any
Swap Contract on any date shall be deemed to be the Swap Termination Value
thereof as of such date. The amount of any capital lease or Synthetic Lease
Obligation as of any date shall be deemed to be the amount of Attributable
Indebtedness in respect thereof as of such date.
"Indemnified Liabilities" has the meaning set forth in Section 10.05.
"Indemnitees" has the meaning set forth in Section 10.05.
"Insolvency Proceeding" means (a) any case, action or proceeding before
any court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution, winding-up
or relief of debtors, or (b) any general assignment for the benefit of
creditors, composition, marshalling of assets for creditors, or other similar
arrangement in respect of its creditors generally or any substantial portion of
its creditors; undertaken under U.S. Federal, state or foreign law, including
the Bankruptcy Code of the United States.
"Interest Payment Date" means, (a) as to any Loan other than a Base
Rate Loan, the last day of each Interest Period applicable to such Loan and the
Applicable Maturity Date; provided, however, that if any Interest Period for a
Eurodollar Rate Loan exceeds three months, the respective dates that fall every
three months after the beginning of such Interest Period shall also be Interest
Payment Dates; and (b) as to any Base Rate Loan, (i) the fifth Business Day
following the end of each calendar quarter and (ii) the Applicable Maturity
Date.
"Interest Period" means, as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or converted to or
continued as a Eurodollar Rate Loan and ending on the date one, two, three or
six months thereafter, as selected by the Company in its Committed Loan Notice;
provided that:
(i) any Interest Period that would otherwise end on a day
that is not a Business Day shall be extended to the next succeeding
Business Day unless such Business Day falls in another calendar month,
in which case such Interest Period shall end on the next preceding
Business Day;
(ii) any Interest Period that begins on the last 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) shall end on the last Business Day of the calendar month at the
end of such Interest Period; and
9
(iii) no Interest Period for any Loan shall extend beyond
(A) in the case of Loans made pursuant to Section 2.01, until a
Committed Loan Notice has been received by the Administrative Agent in
accordance with Section 2.13(b), the Revolving Loan Maturity Date;
provided that once such Committed Loan Notice has been received by the
Administrative Agent in accordance with Section 2.13(b), the limitation
in subpart (B) of this paragraph shall apply to Loans made pursuant to
Section 2.01, and (B) the Term Loan Maturity Date, in the case of the
Term Loans.
"IRS" means the United States Internal Revenue Service.
"Laws" means, collectively, all international, foreign, Federal, state,
municipal and local statutes, treaties, rules, guidelines, regulations,
ordinances, codes and administrative or judicial precedents or authorities,
including the interpretation or administration thereof by any Governmental
Authority charged with the enforcement, interpretation or administration
thereof, and all applicable administrative orders, directed duties, requests,
licenses, authorizations and permits of, and agreements with, any Governmental
Authority, in each case whether or not having the force of law.
"Lender" has the meaning specified in the introductory paragraph
hereto.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as its "Lending Office" or "Eurodollar Lending Office," as the
case may be, in such Lender's Administrative Questionnaire, or such other office
or offices as a Lender may from time to time notify the Company and the
Administrative Agent.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest of any kind or nature whatsoever (including
any conditional sale or other title retention agreement, and any financing lease
having substantially the same economic effect as any of the foregoing, but not
including the interest of a lessor under an operating lease or the sale of
accounts receivable).
"Loan" means an extension of credit by a Lender to the Company under
Article II in the form of a Committed Loan.
"Loan Documents" means this Agreement, any Notes, the Fee Letter and
all other documents delivered to the Administrative Agent or any Lender in
connection herewith.
"Margin Stock" means "margin stock" as such term is defined in
Regulation T, U or X of the FRB.
"Master Agreement" has the meaning set forth in the definition of "Swap
Contract."
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, condition
(financial or otherwise) or prospects of the Company and its Subsidiaries taken
as a whole or any Material Subsidiary; (b) a material impairment of the ability
of the Company to perform its obligations under any Loan Document
10
to which it is a party; or (c) a material adverse effect upon the legality,
validity, binding effect or enforceability against the Company of any Loan
Document to which it is a party.
"Material Subsidiary" means, at any time, any Subsidiary having at such
time 10% or more of the Company's consolidated total (gross) revenues for the
preceding four fiscal quarter period, as of the last day of the preceding fiscal
quarter based upon the Company's most recent annual or quarterly financial
statements delivered to the Administrative Agent under Section 6.01.
"Moody's" means Moody's Investors Service, Inc. and any successor
thereto.
"Multiemployer Plan" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA, to which the Company or any ERISA
Affiliate makes or is obligated to make contributions, or during the preceding
five plan years, has made or been obligated to make contributions.
"Net Worth" means the sum of the capital stock and additional paid in
capital plus retained earnings (or minus accumulated deficits) of the Company
and its Subsidiaries determined on a consolidated basis in conformity with GAAP
on such date.
"Note" means a promissory note executed by the Company in favor of a
Lender pursuant to Section 2.09, substantially in the form of Exhibit B.
"Obligations" means all advances to, and debts, liabilities,
obligations, covenants and duties of, the Company arising under any Loan
Document or otherwise with respect to any Loan, whether direct or indirect
(including those acquired by assumption), absolute or contingent, due or to
become due, now existing or hereafter arising and including interest and fees
that accrue after the commencement by or against the Company or any Affiliate
thereof of any proceeding under any Debtor Relief Laws naming such Person as the
debtor in such proceeding, regardless of whether such interest and fees are
allowed claims in such proceeding.
"Organization Documents" means, with respect to any corporation, the
certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction).
"Other Taxes" has the meaning specified in Section 3.01(b).
"Outstanding Amount" means on any date, the aggregate outstanding
principal amount of Committed Loans outstanding after giving effect to any
borrowings and prepayments or repayments of Committed Loans occurring on such
date.
"Participant" has the meaning specified in Section 10.07(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as such term
is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Company or
any ERISA Affiliate or to which the
11
Company or any ERISA Affiliate contributes or has an obligation to contribute,
or in the case of a multiple employer or other plan described in Section 4064(a)
of ERISA, has made contributions at any time during the immediately preceding
five plan years.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Company or, with respect to any such
plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.
"Press Release" has the meaning specified in the definition of
"Disclosed Matters" set forth herein.
"Pro Rata Share" means, with respect to each Lender at any time, a
fraction (expressed as a percentage, carried out to the ninth decimal place),
the numerator of which is the amount of the Commitment of such Lender at such
time and the denominator of which is the amount of the Aggregate Commitments at
such time; provided that if the Commitment of each Lender to make Loans has been
terminated pursuant to Section 8.02, then the Pro Rata Share of each Lender
shall be determined based on the Pro Rata Share of such Lender immediately prior
to such termination and after giving effect to any subsequent assignments made
pursuant to the terms hereof. The initial Pro Rata Share of each Lender is set
forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and
Assumption pursuant to which such Lender becomes a party hereto, as applicable.
"Proceedings" has the meaning set forth in Section 6.03(c).
"Register" has the meaning set forth in Section 10.07(c).
"Reportable Event" means any of the events set forth in Section 4043(c)
of ERISA, other than events for which the 30 day notice period has been waived.
"Required Lenders" means, as of any date of determination, Lenders
having more than 50% of the Aggregate Commitments or, if the Commitment of each
Lender to make Loans has been terminated pursuant to Section 8.02, Lenders
holding in the aggregate more than 50% of the Total Outstandings; provided that
the Commitment of, and the portion of the Total Outstandings held or deemed held
by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Lenders.
"Requirement of Law" means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination, decree or order of an
arbitrator or of a Governmental Authority, in each case applicable to or binding
upon the Person or any of its property or to which the Person or any of its
property is subject, including but not limited to any Environmental Law.
"Responsible Officer" means the chief executive officer, president,
chief financial officer, corporate vice president or the treasurer of the
Company. Any document delivered hereunder that is signed by a Responsible
Officer of the Company shall be conclusively
12
presumed to have been authorized by all necessary corporate, partnership and/or
other action on the part of the Company and such Responsible Officer shall be
conclusively presumed to have acted on behalf of the Company.
"Revolving Loan Maturity Date" means September 29, 2003.
"Revolving Loan" means a Loan made pursuant to Section 2.01.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc. and any successor thereto.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"SPC" has the meaning specified in Section 10.07(h).
"Subsidiary" of a Person means a corporation, partnership, joint
venture, limited liability company, unlimited liability company or other
business entity of which a majority of the shares of securities or other
interests having ordinary voting power for the election of directors or other
governing body (other than securities or interests having such power only by
reason of the happening of a contingency) are at the time beneficially owned, or
the management of which is otherwise controlled, directly, or indirectly through
one or more intermediaries, or both, by such Person. Unless otherwise specified,
all references herein to a "Subsidiary" or to "Subsidiaries" shall refer to a
Subsidiary or Subsidiaries of the Company.
"Swap Contract" means (a) any and all rate swap transactions, basis
swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index
swaps or options, bond or bond price or bond index swaps or options or forward
bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency
rate swap transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement relating to any of the
foregoing (any such master agreement, together with any related schedules, a
"Master Agreement"), including any such obligations or liabilities under any
Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
mark-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or
13
other readily available quotations provided by any recognized dealer in such
Swap Contracts (which may include a Lender or any Affiliate of a Lender).
"Synthetic Lease Obligation" means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations that
do not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).
"Taxes" has the meaning specified in Section 3.01(a).
"Term Loans" has the meaning specified in Section 2.13.
"Term Loan Maturity Date" means September 27, 2004.
"Three-Year Credit Facility" means that certain Credit Agreement dated
as of September 30, 2002, by and among the Company, McKesson Canada Corporation,
Bank of America, as administrative agent, Bank of America (acting through its
Canadian branch), as Canadian administrative agent, Wachovia Bank, National
Association, as L/C Issuer, and the financial institutions listed on the
signature pages thereof, as such agreement may be amended, modified or
supplemented from time to time.
"Total Capitalization" means, on any date, the sum of (a) Total Debt
and (b) the Net Worth on such date.
"Total Debt" means, on any date, all Indebtedness of the Company and
its Subsidiaries determined on a consolidated basis on such date.
"Total Outstandings" means (i) as to all Lenders at any date of
determination, the Outstanding Amount of all Loans, and (ii) as to any Lender at
any date of determination, the Outstanding Amount of all Loans of such Lender or
its Affiliates.
"Type" means a Loan's character as a Base Rate Loan or a Eurodollar
Rate Loan.
"Unfunded Pension Liability" means the excess of a Pension Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the current value
of that Pension Plan's assets, determined in accordance with the assumptions
used for funding the Pension Plan pursuant to Section 412 of the Code for the
applicable plan year.
"United States" and "U.S." mean the United States of America.
"Wholly-Owned Subsidiary" means any Subsidiary in which (other than
directors' qualifying shares required by law) 100% of the capital stock of each
class or other interests having ordinary voting power, and 100% of the capital
stock of every other class or other interests, in each case, at the time as of
which any determination is being made, is owned, beneficially and of record, by
the Company, or by one or more of the other Wholly-Owned Subsidiaries, or both.
14
1.02 OTHER INTERPRETIVE PROVISIONS. With reference to this
Agreement and each other Loan Document, unless otherwise specified herein or in
such other Loan Document:
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) (i) The words "herein," "hereto," "hereof" and
"hereunder" and words of similar import when used in any Loan Document shall
refer to such Loan Document as a whole and not to any particular provision
thereof.
(ii) Article, Section, Exhibit and Schedule references are
to the Loan Document in which such reference appears.
(iii) The term "including" is by way of example and not
limitation.
(iv) The term "documents" includes any and all
instruments, documents, agreements, certificates, notices, reports,
financial statements and other writings, however evidenced, whether in
physical or electronic form.
(c) 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."
(d) Section headings herein and in the other Loan Documents are
included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
1.03 ACCOUNTING TERMS. (a) All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations)
required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, as in effect from time to
time, applied in a manner consistent with that used in preparing the Audited
Financial Statements, except as otherwise specifically prescribed herein.
(b) If at any time any change in GAAP would affect the computation
of any financial ratio or requirement set forth in any Loan Document, and either
the Company or the Required Lenders shall so request, the Administrative Agent,
the Lenders and the Company shall negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of such change in
GAAP (subject to the approval of the Required Lenders); provided that, until so
amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Company shall
provide to the Administrative Agent and the Lenders financial statements and
other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.
1.04 ROUNDING. Any financial ratios required to be maintained by
the Company pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such
15
ratio is expressed herein and rounding the result up or down to the nearest
number (with a rounding-up if there is no nearest number).
1.05 REFERENCES TO AGREEMENTS AND LAWS. Unless otherwise expressly
provided herein, (a) references to Organization Documents, agreements (including
the Loan Documents) and other contractual instruments shall be deemed to include
all subsequent amendments, restatements, extensions, supplements and other
modifications thereto, but only to the extent that such amendments,
restatements, extensions, supplements and other modifications are not prohibited
by any Loan Document; and (b) references to any Law shall include all statutory
and regulatory provisions consolidating, amending, replacing, supplementing or
interpreting such Law.
1.06 TIMES OF DAY. Unless otherwise specified, all references
herein to times of day shall be references to Pacific time (daylight or
standard, as applicable).
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 COMMITTED LOANS. Subject to the terms and conditions set forth
herein, each Lender severally agrees to make Revolving Loans denominated in
Dollars to the Company from time to time, on any Business Day during the
Availability Period, in an aggregate amount not to exceed at any time
outstanding the amount of such Lender's Commitment; provided, however, that
after giving effect to any Borrowing, (i) the Total Outstandings shall not
exceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount of
the Committed Loans of any Lender shall not exceed such Lender's Commitment.
Within the limits of each Lender's Commitment, and subject to the other terms
and conditions hereof, the Company may borrow under this Section 2.01, prepay
under Section 2.03, and reborrow under this Section 2.01. Revolving Loans may be
Base Rate Loans or Eurodollar Rate Loans, as further provided herein.
2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF COMMITTED LOANS.
(a) Each Borrowing, each conversion of Committed Loans from one
Type to the other, and each continuation of Eurodollar Rate Loans shall be made
upon the Company's irrevocable notice to the Administrative Agent, which may be
given by telephone. Each such notice must be received by the Administrative
Agent not later than 9:00 a.m. (i) three Business Days prior to the requested
date of any Borrowing of, conversion to or continuation of Eurodollar Rate Loans
or of any conversion of Eurodollar Rate Loans to Base Rate Committed Loans, and
(ii) on the requested date of any Borrowing of Base Rate Committed Loans. Each
telephonic notice by the Company pursuant to this Section 2.02(a) must be
confirmed promptly by delivery to the Administrative Agent of a written
Committed Loan Notice, appropriately completed and signed by a Responsible
Officer of the Company. Each Borrowing, conversion or continuation of Committed
Loans shall be in a principal amount of $5,000,000 or a whole multiple of
$1,000,000 in excess thereof. Each Committed Loan Notice (whether telephonic or
written) shall specify (i) whether the Company is requesting a Borrowing, a
conversion of Committed Loans from one Type to the other, or a continuation of
Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion or
continuation, as the case may be (which shall be a Business Day), (iii) the
principal amount of Committed Loans to be borrowed, converted or
16
continued, (iv) the Type of Committed Loans to be borrowed or to which existing
Committed Loans are to be converted and (v) if applicable, the duration of the
Interest Period with respect thereto. If the Company fails to specify a Type of
Committed Loan in a Committed Loan Notice or if the Company fails to give a
timely notice requesting a conversion or continuation, then the applicable
Committed Loans shall be made as, or converted to, Base Rate Loans. Any such
automatic conversion to Base Rate Loans shall be effective as of the last day of
the Interest Period then in effect with respect to the applicable Eurodollar
Rate Loans. If the Company requests a Borrowing of, conversion to, or
continuation of Eurodollar Rate Loans in any such Committed Loan Notice, but
fails to specify an Interest Period, it will be deemed to have specified an
Interest Period of one month.
(b) Following receipt of a Committed Loan Notice for Committed
Loans, the Administrative Agent shall promptly notify each Lender of the amount
of its Pro Rata Share of the applicable Committed Loans, and if no timely notice
of a conversion or continuation is provided by the Company, the Administrative
Agent shall notify each Lender of the details of any automatic conversion to
Base Rate Loans described in Section 2.02(a). In the case of a Borrowing, each
Lender shall make the amount of its Committed Loan available to the
Administrative Agent in immediately available funds at the Administrative
Agent's Office not later than 11:00 a.m., on the Business Day specified in the
applicable Committed Loan Notice. Upon satisfaction of the applicable conditions
set forth in Section 4.02 (and, if such Borrowing is the initial Credit
Extension, Section 4.01), the Administrative Agent shall make all funds so
received available to the Company in like funds as received by the
Administrative Agent either by (i) crediting the account of the Company on the
books of Bank of America with the amount of such funds or (ii) wire transfer of
such funds, in each case in accordance with instructions provided to (and
reasonably acceptable to) the Administrative Agent by the Company.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan
may be continued or converted only on the last day of an Interest Period for
such Eurodollar Rate Loan. During the existence of a Default, no Loans may be
requested as, converted to or continued as Eurodollar Rate Loans without the
consent of the Required Lenders.
(d) The Administrative Agent shall promptly notify the Company and
the Lenders of the interest rate applicable to any Interest Period for
Eurodollar Rate Loans upon determination of such interest rate. The
determination of the Eurodollar Rate by the Administrative Agent shall be
conclusive in the absence of manifest error. At any time that Base Rate Loans
are outstanding, the Administrative Agent shall notify the Company and the
Lenders of any change in Bank of America's prime rate used in determining the
Base Rate promptly following the public announcement of such change.
(e) After giving effect to all Borrowings, all conversions of
Committed Loans from one Type to the other, and all continuations of Committed
Loans as the same Type, there shall not be more than ten Interest Periods in
effect at any time with respect to Committed Loans.
2.03 PREPAYMENTS.
(a) The Company may, upon notice to the Administrative Agent, at
any time or from time to time voluntarily prepay Committed Loans in whole or in
part without premium or
17
penalty; provided that (i) such notice must be received by the Administrative
Agent not later than 9:00 a.m., (A) three Business Days prior to any date of
prepayment of Eurodollar Rate Loans and (B) on the date of prepayment of Base
Rate Committed Loans and (ii) any prepayment of Committed Loans shall be in a
principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess
thereof or, if less, the entire principal amount thereof then outstanding. Each
such notice shall specify the date and amount of such prepayment and the Type(s)
of Committed Loans to be prepaid. The Administrative Agent will promptly notify
each Lender of its receipt of each such notice, and of the amount of such
Lender's Pro Rata Share of such prepayment. If such notice is given by the
Company, it shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein. Any prepayment of
a Eurodollar Rate Loan shall be accompanied by all accrued interest thereon,
together with any additional amounts required pursuant to Section 3.05. Each
such prepayment shall be applied to the Committed Loans of the Lenders in
accordance with their respective Pro Rata Shares.
(b) If for any reason the Total Outstandings at any time exceed
the Aggregate Commitments then in effect, the Company shall immediately prepay
Loans in an aggregate amount equal to such excess.
2.04 TERMINATION OR REDUCTION OF COMMITMENTS. The Company may, upon
notice to the Administrative Agent, terminate the Aggregate Commitments, or from
time to time permanently reduce the Aggregate Commitments; provided that (i) any
such notice shall be received by the Administrative Agent not later than 9:00
a.m., five Business Days prior to the date of termination or reduction, (ii) any
such partial reduction shall be in an aggregate amount of $10,000,000 or any
whole multiple of $1,000,000 in excess thereof and (iii) the Company shall not
terminate or reduce the Aggregate Commitments if, after giving effect thereto
and to any concurrent prepayments hereunder, the Total Outstandings would exceed
the Aggregate Commitments. The Administrative Agent will promptly notify the
Lenders of any such notice of termination or reduction of the Aggregate
Commitments. Any reduction of the Aggregate Commitments shall be applied to the
Commitment of each Lender according to its Pro Rata Share. All facility and
utilization fees accrued until the effective date of any termination of the
Aggregate Commitments shall be paid on the effective date of such termination.
2.05 REPAYMENT OF LOANS. Except as provided in Section 2.13, the
Company shall repay to the Lenders on the Revolving Loan Maturity Date the
aggregate principal amount of its Committed Loans outstanding on such date.
2.06 INTEREST.
(a) Subject to the provisions of Section 2.06(b), (i) each
Eurodollar Rate Loan shall bear interest on the outstanding principal amount
thereof for each Interest Period at a rate per annum equal to the Eurodollar
Rate for such Interest Period plus the Applicable Rate and (ii) each Base Rate
Committed Loan shall bear interest on the outstanding principal amount thereof
from the applicable borrowing date at a rate per annum equal to the Base Rate
plus the Applicable Rate; provided that any Term Loans shall bear interest on
the outstanding principal amount thereof from the Revolving Loan Maturity Date
at a rate per annum equal to (A) the rate
18
provided in the immediately preceding subclause (i) or (ii), as the case may be,
plus (B) the Applicable Term Loan Margin.
(b) If any amount payable by the Company under any Loan Document
is not paid when due (without regard to any applicable grace periods), whether
at stated maturity, by acceleration or otherwise, such amount shall thereafter
bear interest at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws. Furthermore,
upon the request of the Required Lenders, while any Event of Default exists, the
Company shall pay interest on the principal amount of all outstanding
Obligations hereunder at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable Laws.
Accrued and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on
each Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
2.07 FEES.
(a) Facility Fee. The Company shall pay to the Administrative'
Agent for the account of each Lender in accordance with its Pro Rata Share, a
facility fee on the later of the fifth Business Day following the end of each
calendar quarter or the fifth Business Day after the Company has received from
the Administrative Agent a notice setting forth the amount of such fee, which
shall be equal to the Applicable Rate times the actual daily amount of the
Aggregate Commitments (or, if the Aggregate Commitments have terminated, on the
Outstanding Amount of all Committed Loans), regardless of usage. The facility
fee shall accrue at all times from the Closing Date to the Revolving Loan
Maturity Date or, if the Term Loans are made, the Term Loan Maturity Date (and
thereafter so long as any Committed Loans remain outstanding), including at any
time during which one or more of the conditions in Article IV are not met, and
shall be due and payable quarterly in arrears on each date specified above
following the end of each calendar quarter, commencing with the first such date
to occur after the Closing Date, through the Applicable Maturity Date (and, if
applicable, thereafter on demand). The facility fee shall be calculated
quarterly in arrears, and if there is any change in the Applicable Rate during
any quarter, the actual daily amount shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect.
(b) Utilization Fee. The Company shall pay to the Administrative
Agent for the account of each Lender in accordance with its Pro Rata Share, a
utilization fee of .15% per annum times the Total Outstandings on each day that
either (i) the sum of (A) the Total Outstandings existing on such date and (B)
the Total Outstandings (as such term is defined in the Three-Year Credit
Facility) on such day, exceeds 30% of the sum of (X) the Aggregate Commitments
(as defined herein) existing on such day and (Y) the Aggregate Commitments (as
such term is defined in the Three-Year Credit Facility) existing on such day, or
(ii) any Term Loans are outstanding. The utilization fee shall be due and
payable quarterly in arrears on the fifth Business Day following the end of each
calendar quarter, commencing with the first such
19
date to occur after the Closing Date, and on the Applicable Maturity Date. The
utilization fee shall be calculated quarterly in arrears. The utilization fee
shall accrue at all times as set forth in this Section 2.07(b), including at any
time during which one or more of the conditions in Article IV are not met.
(c) Other Fees. (i) The Company shall pay to the Arranger and the
Administrative Agent for their own respective accounts fees in the amounts and
at the times specified in the Fee Letter. Such fees shall be fully earned when
paid and shall not be refundable for any reason whatsoever.
(ii) The Company shall pay to the Lenders such fees as
shall have been separately agreed upon in writing in the amounts and at the
times so specified. Such fees shall be fully earned when paid and shall not be
refundable for any reason whatsoever.
2.08 COMPUTATION OF INTEREST AND FEES. All computations of interest
for Base Rate Loans when the Base Rate is determined by Bank of America's "prime
rate" shall be made on the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed. All other computations of fees and interest shall
be made on the basis of a 360-day year and actual days elapsed (which results in
more fees or interest, as applicable, being paid than if computed on the basis
of a 365-day year). Interest shall accrue on each Loan for the day on which the
Loan is made, and shall not accrue on a Loan, or any portion thereof, for the
day on which the Loan or such portion is paid, provided that any Loan that is
repaid on the same day on which it is made shall, subject to Section 2.10(a),
bear interest for one day.
2.09 EVIDENCE OF DEBT. The Credit Extensions made by each Lender
shall be evidenced by one or more accounts or records maintained by such Lender
and by the Administrative Agent in the ordinary course of business. The accounts
or records maintained by the Administrative Agent and each Lender shall be
conclusive absent manifest error of the amount of the Credit Extensions made by
the Lenders to the Company and the interest and payments thereon. Any failure to
so record or any error in doing so shall not, however, limit or otherwise affect
the obligation of the Company hereunder to pay any amount owing with respect to
the Obligations. In the event of any conflict between the accounts and records
maintained by any Lender and the accounts and records of the Administrative
Agent in respect of such matters, the accounts and records of the Administrative
Agent shall control in the absence of manifest error. Upon the request of any
Lender made through the Administrative Agent, the Company shall execute and
deliver to such Lender (through the Administrative Agent) a Note, which shall
evidence such Lender's Loans in addition to such accounts or records. Each
Lender may attach schedules to its Note and endorse thereon the date, Type (if
applicable), amount and maturity of its Loans and payments with respect thereto.
2.10 PAYMENTS GENERALLY.
(a) All payments to be made by the Company shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by the Company
hereunder shall be made to the Administrative Agent, for the account of the
Lenders, at the Administrative Agent's Office in Dollars not later than 12:00
noon on the date specified herein in immediately available funds. The
Administrative
20
Agent will promptly distribute to each Lender its Pro Rata Share (or other
applicable share as provided herein) of such payment in like funds as received
by wire transfer to such Lender's Lending Office. All payments received by the
Administrative Agent after the applicable time specified in this Section 2.10(a)
shall be deemed received on the next succeeding Business Day and any applicable
interest or fee shall continue to accrue.
(b) If any payment to be made by the Company shall come due on a
day other than a Business Day, payment shall be made on the next following
Business Day, and such extension of time shall be reflected in computing
interest or fees, as the case may be.
(c) Unless the Company or any Lender has notified the
Administrative Agent, prior to the date any payment is required to be made by it
to the Administrative Agent hereunder, that the Company or such Lender, as the
case may be, will not make such payment, the Administrative Agent may assume
that the Company or such Lender, as the case may be, has timely made such
payment and may (but shall not be so required to), in reliance thereon, make
available a corresponding amount to the Person entitled thereto. If and to the
extent that such payment was not in fact made to the Administrative Agent in
immediately available funds, then:
(i) if the Company failed to make such payment, each
Lender shall forthwith on demand repay to the Administrative Agent the
portion of such assumed payment, if any, that was made available to
such Lender in immediately available funds, together with interest
thereon in respect of each day from and including the date such amount
was made available by the Administrative Agent to such Lender to the
date such amount is repaid to the Administrative Agent in immediately
available funds at the Federal Funds Rate from time to time in effect;
and
(ii) subject to the provisions of Section 2.01(b), if any
Lender failed to make such payment, such Lender shall forthwith on
demand pay to the Administrative Agent the amount thereof in
immediately available funds, together with interest thereon for the
period from the date such amount was made available by the
Administrative Agent to the Company to the date such amount is
recovered by the Administrative Agent (the "Compensation Period") at a
rate per annum equal to the Federal Funds Rate from time to time in
effect. If such Lender pays such amount to the Administrative Agent,
then such amount shall constitute such Lender's Committed Loan included
in the applicable Borrowing. If such Lender does not pay such amount
forthwith upon the Administrative Agent's demand therefor, the
Administrative Agent may make a demand therefor upon the Company, and
the Company shall pay such amount to the Administrative Agent, together
with interest thereon for the Compensation Period at a rate per annum
equal to the rate of interest applicable to the applicable Borrowing.
Nothing herein shall be deemed to relieve any Lender from its
obligation to fulfill its Commitment or to prejudice any rights which
the Administrative Agent or the Company may have against any Lender as
a result of any default by such Lender hereunder.
A notice of the Administrative Agent to any Lender or the Company with
respect to any amount owing under this Section 2.10(c) shall be conclusive,
absent manifest error.
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(d) If any Lender makes available to the Administrative Agent
funds for any Loan to be made by such Lender as provided in the foregoing
provisions of this Article II, and such funds are not made available to the
Company by the Administrative Agent because the conditions to the applicable
Credit Extension set forth in Article IV are not satisfied or waived in
accordance with the terms hereof, the Administrative Agent shall return such
funds (in like funds as received from such Lender) to such Lender, without
interest.
(e) The obligations of the Lenders hereunder to make Committed
Loans are several and not joint. The failure of any Lender to make any Committed
Loan on any date required hereunder shall not relieve any other Lender of its
corresponding obligation to do so on such date, and no Lender shall be
responsible for the failure of any other Lender to so make its Committed Loan.
(f) Nothing herein shall be deemed to obligate any Lender to
obtain the funds for any Loan in any particular place or manner or to constitute
a representation by any Lender that it has obtained or will obtain the funds for
any Loan in any particular place or manner.
2.11 SHARING OF PAYMENTS. If, other than as expressly provided
elsewhere herein, any Lender shall obtain on account of the Committed Loans made
by it any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) in excess of its ratable share (or other share
contemplated hereunder) thereof, such Lender shall immediately (a) notify the
Administrative Agent of such fact, and (b) purchase from the other Lenders such
participations in the Committed Loans made by them as shall be necessary to
cause such purchasing Lender to share the excess payment in respect of such
Committed Loans pro rata with each of them; provided, however, that if all or
any portion of such excess payment is thereafter recovered from the purchasing
Lender under any of the circumstances described in Section 10.06 (including
pursuant to any settlement entered into by the purchasing Lender in its
discretion), such purchase shall to that extent be rescinded and each other
Lender shall repay to the purchasing Lender the purchase price paid therefor,
together with an amount equal to such paying Lender's ratable share (according
to the proportion of (i) the amount of such paying Lender's required repayment
to (ii) the total amount so recovered from the purchasing Lender) of any
interest or other amount paid or payable by the purchasing Lender in respect of
the total amount so recovered, without further interest thereon. The Company
agrees that any Lender so purchasing a participation from another Lender may, to
the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off, but subject to Section 10.09) with respect to
such participation as fully as if such Lender were the direct creditor of the
Company in the amount of such participation. The Administrative Agent will keep
records (which shall be conclusive and binding in the absence of manifest error)
of participations purchased under this Section 2.11 and will in each case notify
the Lenders following any such purchases or repayments. Each Lender that
purchases a participation pursuant to this Section 2.11 shall from and after
such purchase have the right to give all notices, requests, demands, directions
and other communications under this Agreement with respect to the portion of the
Obligations purchased to the same extent as though the purchasing Lender were
the original owner of the Obligations purchased.
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2.12 INCREASE IN COMMITMENTS.
(a) Provided there exists no Default, upon notice to the
Administrative Agent (which shall promptly notify the Lenders), the Company may
from time to time, request an increase in the Aggregate Commitments (as such
term is defined in this Agreement) and the Aggregate Commitments (as such term
is defined in the Three-Year Credit Facility) collectively by an aggregate
amount (for all such requests) not exceeding $400,000,000; provided, however,
that any such increase in the Commitments shall (i) prior to the Revolving Loan
Maturity Date, be allocated between the Commitments (as such term is defined in
the Three-Year Credit Facility) and the Commitments (as such term is defined in
this Agreement) on a pro rata basis such that the proportions of each such type
of Commitment as a portion of the total Commitments are equal; and (ii) on or
after the Revolving Loan Maturity Date, be allocated entirely to the Commitments
(as such term is defined in the Three-Year Credit Facility). At the time of
sending such notice, the Company (in consultation with the Administrative Agent)
shall specify the time period within which each Lender is requested to respond
(which shall in no event be less than ten Business Days from the date of
delivery of such notice to the Lenders). Each Lender shall notify the
Administrative Agent within such time period whether or not it agrees to
increase its Commitment and, if so, whether by an amount equal to, greater than,
or less than its Pro Rata Share of such requested increase. Any Lender not
responding within such time period shall be deemed to have declined to increase
its Commitment. The Administrative Agent shall notify the Company and each
Lender of the Lenders' responses to each request made hereunder. To achieve the
full amount of a requested increase, the Company may also invite additional
Eligible Assignees to become Lenders pursuant to a joinder agreement in form and
substance satisfactory to the Administrative Agent and its counsel.
Notwithstanding the foregoing provisions of this Section 2.12(a), during the
first 90 days following the Closing Date, the Company may invite Eligible
Assignees to become Lenders under this Agreement in connection with a requested
increase without first providing any Lender with the opportunity to increase its
Commitment as provided above.
(b) If the Aggregate Commitments are increased in accordance with
this Section 2.12, the Administrative Agent and the Company shall determine the
effective date (the "Increase Effective Date") and the final allocation of such
increase. The Administrative Agent shall promptly notify the Company and the
Lenders of the final allocation of such increase and the Increase Effective
Date. As a condition precedent to such increase, the Company shall deliver to
the Administrative Agent a certificate of the Company dated as of the Increase
Effective Date signed by a Responsible Officer of the Company (i) certifying and
attaching the resolutions adopted by the Company approving or consenting to such
increase, and (ii) certifying that, before and after giving effect to such
increase, (A) the representations and warranties contained in Article V and the
other Loan Documents are true and correct on and as of the Increase Effective
Date, except to the extent that such representations and warranties specifically
refer to an earlier date, in which case they are true and correct as of such
earlier date, and except that, for purposes of this Section 2.12, (1) the
representation and warranty contained in Section 5.08(a) shall be deemed to
refer to the most recent statements furnished pursuant to Sections 6.01(a) and
(b), respectively, and (2) the reference to the Closing Date in Section 5.05(b)
and Section 5.08(b) shall be deemed to refer to the Increase Effective Date and
(B) no Default exists. The Company shall prepay any Committed Loans outstanding
on the Increase Effective Date (and pay any additional amounts required pursuant
to Section 3.05) to the extent necessary to keep the
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outstanding Committed Loans ratable with any revised Pro Rata Shares arising
from any nonratable increase in the Commitments under this Section 2.12.
(c) In the event of an increase in Commitments pursuant to this
Section 2.12, the provisions of this Section 2.12 shall govern any conflicts
with provisions in Sections 2.11 or 10.01.
2.13 CONVERSION OF LOANS TO TERM LOANS.
(a) Each Lender severally agrees on the terms and conditions set
forth in this Agreement to advance to the Company (upon request of the Company
pursuant to this Agreement) on the Revolving Loan Maturity Date an amount up to
the sum of (i) the outstanding principal amount of the Committed Loans made by
such Lender pursuant to Section 2.01 and outstanding as of the opening of
business on the Revolving Loan Maturity Date plus (ii) the amount available to
be borrowed from such Lender pursuant to this Agreement as of the opening of
business on the Revolving Loan Maturity Date. The aggregate of such advances is
collectively called the "Term Loans" and shall be made by each Lender in
accordance with its Pro Rata Share. The Term Loans will mature and are due and
payable on the Term Loan Maturity Date. Amounts borrowed under this Section 2.13
and subsequently repaid or prepaid may not be reborrowed.
(b) The Term Loans shall be made upon the irrevocable written
notice (including notice via facsimile confirmed immediately by a telephone
call) of the Company in the form of a Committed Loan Notice (which notice must
be received by the Administrative Agent not later than 12:00 noon not less than
three Business Days prior to the Revolving Loan Maturity Date) and upon
satisfaction of the conditions set forth in Section 4.02, specifying: (A) the
amount of the Term Loans which shall be in a principal amount not more than the
sum of (i) the aggregate principal amount of the Committed Loans which will be
outstanding as of the opening of business on the Revolving Loan Maturity Date,
plus (ii) the amount available to be borrowed from the Lenders pursuant to this
Agreement as of the opening of business on the Revolving Loan Maturity Date; (B)
whether the Term Loans shall be comprised of Base Rate Loans or Eurodollar Rate
Loans; and (C) the Interest Period applicable to any Eurodollar Rate Loans
included in such notice.
(c) The proceeds of the Term Loans will first be used to pay the
principal amount of the Revolving Loans made pursuant to Section 2.01 which are
outstanding at the time the Term Loans are made and then in accordance with
Sections 6.10 and 7.03. The Company shall not be required to pay any additional
amounts in compensation pursuant to Section 3.05(a) solely as a result of the
repayment of Revolving Loans that are Eurodollar Rate Loans with proceeds of the
Term Loans in accordance with the foregoing sentence.
(d) Upon conversion of the Revolving Loans to Term Loans, each
Lender's obligation to make Revolving Loans to the Company hereunder shall
terminate.
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ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Any and all payments by the Company to or for the account of
the Administrative Agent or any Lender under any Loan Document shall be made
free and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, in the case of the
Administrative Agent and each Lender, taxes imposed on or measured by its net
income, taxable income or similar measure and franchise taxes imposed on it (in
lieu of net income taxes), by the jurisdiction (or any political subdivision
thereof) under the Laws of which the Administrative Agent or such Lender, as the
case may be, is organized or maintains a lending office or carries on business
through a permanent establishment (all such non-excluded taxes, duties, levies,
imposts, deductions, assessments, fees, withholdings or similar charges, and
liabilities being hereinafter referred to as "Taxes"). If the Company shall be
required by any Laws to deduct any Taxes from or in respect of any sum payable
under any Loan Document to the Administrative Agent or any Lender, (i) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 3.01), each of the Administrative Agent and such Lender receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) the Company shall make such deductions, (iii) the Company shall pay the
full amount deducted to the relevant taxation authority or other authority in
accordance with applicable Laws, and (iv) within 30 days after the date of such
payment, the Company shall furnish to the Administrative Agent (which shall
forward the same to such Lender) the original or a certified copy of a receipt
evidencing payment thereof.
(b) In addition, the Company agrees to pay any and all present or
future stamp, court or documentary taxes and any other excise or property taxes
or charges or similar levies which arise from any payment made under any Loan
Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as "Other Taxes").
(c) If the Company shall be required to deduct or pay any Taxes or
Other Taxes from or in respect of any sum payable under any Loan Document to the
Administrative Agent or any Lender, the Company shall also pay to the
Administrative Agent or to such Lender, as the case may be, at the time interest
is paid, such additional amount that the Administrative Agent or such Lender
specifies is necessary to preserve the after-tax yield (after factoring in all
taxes, including taxes imposed on or measured by net income) that the
Administrative Agent or such Lender would have received if such Taxes or Other
Taxes had not been imposed.
(d) The Company agrees to indemnify the Administrative Agent and
each Lender for (i) the full amount of Taxes and Other Taxes (including any
Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts payable
under this Section 3.01) paid by the Administrative Agent and such Lender, (ii)
amounts payable under Section 3.01(c) and (iii) any liability (including
additions to tax, penalties, interest and expenses) arising therefrom or with
respect thereto, in each case whether or not such Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority.
Payment under this Section
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3.01(d) shall be made within 30 days after the date the Lender or the
Administrative Agent makes a demand therefor.
(e) If any Lender or the Administrative Agent, as applicable,
receives a refund (whether by way of a direct payment or by offset) of any Taxes
or Other Taxes paid by the Company under this Section 3.01 which, in the
reasonable good faith judgment of such Lender or the Administrative Agent, as
the case may be, is allocable to such payment, the amount of such refund (net of
all reasonable out-of-pocket expenses of such Lender or the Administrative
Agent, as the case may be) shall be paid to the Company if (i) payment of the
Taxes or Other Taxes being refunded has been made in full as and when required
pursuant to this Section 3.01 and (ii) the Company agrees in writing to repay
the amount of such refund, together with interest thereon, to the applicable
Lender or the Administrative Agent, as the case may be, in the event such Lender
or the Administrative Agent is required to repay such refund to the Governmental
Authority that imposed the Tax or Other Tax being refunded.
3.02 ILLEGALITY.
(a) If any Lender determines that any Law has made it unlawful, or
that any Governmental Authority has asserted that it is unlawful, for any Lender
or its applicable Lending Office to make, maintain or fund Eurodollar Rate
Loans, or to determine or charge interest rates based upon the Eurodollar Rate,
then, on notice thereof by such Lender to the Company through the Administrative
Agent, any obligation of such Lender to make or continue Eurodollar Rate Loans
or to convert Base Rate Committed Loans to Eurodollar Rate Loans shall be
suspended until such Lender notifies the Administrative Agent and the Company
that the circumstances giving rise to such determination no longer exist. Upon
receipt of such notice, the Company shall, upon demand from such Lender (with a
copy to the Administrative Agent), prepay or, if applicable, convert all
Eurodollar Rate Loans of such Lender to Base Rate Loans either on the last day
of the Interest Period therefor, if such Lender may lawfully continue to
maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender
may not lawfully continue to maintain such Eurodollar Rate Loans. Upon any such
prepayment or conversion, the Company shall also pay accrued interest on the
amount so prepaid or converted. Each Lender agrees to designate a different
Lending Office if such designation will avoid the need for such notice and will
not, in the good faith judgment of such Lender, otherwise be materially
disadvantageous to such Lender.
(b) Upon any Lender's giving notice and suspending its obligations
relating to Eurodollar Rate Loans in accordance with Section 3.02(a), the
Company may replace such Lender in accordance with Section 10.16.
3.03 INABILITY TO DETERMINE RATES. If the Required Lenders
determine that for any reason adequate and reasonable means do not exist for
determining the Eurodollar Base Rate for any requested Interest Period with
respect to a proposed Eurodollar Rate Loan, or that the Eurodollar Base Rate for
any requested Interest Period with respect to a proposed Eurodollar Rate Loan
does not adequately and fairly reflect the cost to such Lenders of funding such
Loan, the Administrative Agent will promptly so notify the Company and each
Lender. Thereafter, the obligation of the Lenders to make or maintain Eurodollar
Rate Loans shall be suspended until the Administrative Agent (upon the
instruction of the Required Lenders) revokes such notice. Upon
26
receipt of such notice, the Company may revoke any pending request for a
Borrowing of, conversion to or continuation of Eurodollar Rate Loans or, failing
that, will be deemed to have converted such request into a request for a
Borrowing of Base Rate Loans in the amount specified therein.
3.04 INCREASED COST AND REDUCED RETURN; CAPITAL ADEQUACY.
(a) If any Lender determines that as a result of the introduction
of or any change in or in the interpretation of any Law, or such Lender's
compliance therewith, in either case after the Closing Date, there shall be any
increase in the cost to such Lender of agreeing to make or making, funding or
maintaining Eurodollar Rate Loans or a reduction in the amount received or
receivable by such Lender in connection with any of the foregoing (excluding for
purposes of this Section 3.04(a) any such increased costs or reduction in amount
resulting from (i) Taxes or Other Taxes (as to which Section 3.01 shall govern),
(ii) changes in the basis of taxation of overall net income or overall gross
income by the United States or any foreign jurisdiction or any political
subdivision of either thereof under the Laws of which such Lender is organized
or has its Lending Office, and (iii) reserve requirements utilized in the
determination of the Eurodollar Rate), then from time to time upon demand of
such Lender (with a copy of such demand to the Administrative Agent), the
Company shall pay to such Lender such additional amounts as will compensate such
Lender for such increased cost or reduction; provided that no Lender shall be
entitled to receive additional amounts with respect to any period prior to six
months prior to making such demand.
(b) If any Lender determines that the introduction of any Law
regarding capital adequacy or any change therein or in the interpretation
thereof, in either case after the Closing Date, or compliance by such Lender (or
its Lending Office) therewith, has the effect of reducing the rate of return on
the capital of such Lender or any corporation controlling such Lender as a
consequence of such Lender's obligations hereunder (taking into consideration
its policies with respect to capital adequacy and such Lender's desired return
on capital), then from time to time upon demand of such Lender (with a copy of
such demand to the Administrative Agent), the Company shall pay to such Lender
such additional amounts as will compensate such Lender for such reduction;
provided that no Lender shall be entitled to receive additional amounts with
respect to any period prior to six months prior to making such demand.
3.05 FUNDING LOSSES. Upon demand of any Lender (with a copy to the
Administrative Agent) from time to time, the Company shall promptly compensate
such Lender for and hold such Lender harmless from any loss, cost or expense
incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any
Eurodollar Rate Loan on a day other than the last day of the Interest Period for
such Loan (whether voluntary, mandatory, automatic, by reason of acceleration,
or otherwise);
(b) any failure by the Company (for a reason other than the
failure of such Lender to make a Loan) to prepay, borrow, continue or convert
any Eurodollar Rate Loan on the date or in the amount notified by the Company;
or
27
(c) any assignment of a Eurodollar Rate Loan on a day other than
the last day of the Interest Period therefor as a result of a request by the
Company pursuant to Section 10.16;
including any loss of anticipated profits and any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain such Loan or
from fees payable to terminate the deposits from which such funds were obtained.
For purposes of calculating amounts payable by the Company to the Lenders under
this Section 3.05, each Lender shall be deemed to have funded each Eurodollar
Rate Loan made by it at the Eurodollar Base Rate used in determining the
Eurodollar Rate for such Loan by a matching deposit or other borrowing in the
London interbank eurodollar market for a comparable amount and for a comparable
period, whether or not such Eurodollar Rate Loan was in fact so funded.
3.06 MATTERS APPLICABLE TO ALL REQUESTS FOR COMPENSATION.
(a) A certificate of the Administrative Agent or any Lender
claiming compensation under this Article III and setting forth the additional
amount or amounts to be paid to it hereunder shall be conclusive in the absence
of manifest error. In determining such amount, the Administrative Agent or such
Lender may use any reasonable averaging and attribution methods.
(b) Upon any Lender's making a claim for compensation under
Section 3.04 or if the Company is required to pay amounts to any Lender under
Section 3.01 as a result of any Taxes or Other Taxes, in each case the Company
may replace such Lender in accordance with Section 10.16.
3.07 SURVIVAL. All of the Company's obligations under this Article
III shall survive termination of the Aggregate Commitments and repayment of all
other Obligations hereunder.
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 CONDITIONS OF INITIAL CREDIT EXTENSION. The obligation of each
Lender to make its initial Credit Extension hereunder is subject to satisfaction
of the following conditions precedent:
(a) The Administrative Agent's receipt of the following, each of
which shall be originals or facsimiles (followed promptly by originals) unless
otherwise specified, each properly executed by a Responsible Officer of the
Company, each dated the Closing Date (or, in the case of certificates of
governmental officials, a recent date before the Closing Date) and each in form
and substance satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement, sufficient
in number for distribution to the Administrative Agent each Lender and
the Company;
(ii) if requested by any Lender at least two Business Days
before the Closing Date, a Note executed by the Company in favor of
each Lender so requesting a Note;
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(iii) such certificates of resolutions or other action,
incumbency certificates and/or other certificates of Responsible
Officers or the corporate secretary or assistant secretary of the
Company as the Administrative Agent may require evidencing the
identity, authority and capacity of each Responsible Officer thereof
authorized to act as a Responsible Officer in connection with this
Agreement and the other Loan Documents to which the Company is a party;
(iv) each of the following documents:
(1) the articles or certificate of incorporation
and the bylaws of the Company as in effect on the Closing
Date, certified by the Secretary or Assistant Secretary of the
Company as of the Closing Date; and
(2) a good standing and tax good standing
certificate for the Company from the applicable Secretary of
State (or similar, applicable Governmental Authority) of the
States of Delaware and California dated as of a recent date;
(v) a favorable opinion, addressed to the Administrative
Agent and the Lenders, of Ivan D. Meyerson, Senior Vice President and
General Counsel of the Company, as to the matters set forth in Exhibit
C and such other matters as the Administrative Agent may reasonably
request;
(vi) a certificate signed by a Responsible Officer of the
Company:
(1) certifying that:
(a) the representations and warranties
contained in Article V and the other Loan Documents are true
and correct on and as of such date, as though made on and as
of such date;
(b) no Default or Event of Default
exists or would result from the initial Borrowing;
(c) there has occurred since March 31,
2002, no event or circumstance that has resulted or could
reasonably be expected to result in a Material Adverse Effect;
(2) designating the Closing Date; and
(3) indicating the Debt Ratings;
(vii) evidence that the Existing Credit Agreements have
been or concurrently with the Closing Date are being terminated and any
amounts outstanding thereunder have been paid in full; and
(viii) such other assurances, certificates, documents,
consents or opinions as the Administrative Agent or the Required
Lenders reasonably may require.
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(b) Any fees required by the Loan Documents to be paid to the
Administrative Agent or any Lender on or before the Closing Date shall have been
paid.
(c) Unless waived by the Administrative Agent, the Company shall
have paid all Attorney Costs of the Administrative Agent to the extent invoiced
prior to or on the Closing Date, plus such additional amounts of Attorney Costs
as shall constitute its reasonable estimate of Attorney Costs incurred or to be
incurred by it through the closing proceedings (provided that such estimate
shall not thereafter preclude a final settling of accounts between the Company
and the Administrative Agent).
(d) The Closing Date shall have occurred on or before October 31,
2002.
4.02 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of each
Lender to honor any Committed Loan Notice (other than a Committed Loan Notice
requesting only a conversion of Committed Loans to the other Type, or a
continuation of Eurodollar Rate Loans) is subject to the following conditions
precedent:
(a) The representations and warranties of the Company contained in
Article V or any other Loan Document, or which are contained in any document
furnished at any time under or in connection herewith or therewith, shall be
true and correct on and as of the date of such Credit Extension, except to the
extent that such representations and warranties specifically refer to an earlier
date, in which case they shall be true and correct as of such earlier date, and
except that for purposes of this Section 4.02, the representations and
warranties contained in Section 5.08(a) shall be deemed to refer to the most
recent statements furnished pursuant Sections 6.01(a) and (b), respectively.
(b) No Default shall exist, or would result from such proposed
Credit Extension.
(c) The Administrative Agent shall have received a Committed Loan
Notice in accordance with the requirements hereof.
Each Committed Loan Notice (other than a Committed Loan Notice
requesting only a conversion of Committed Loans to the other Type or a
continuation of Eurodollar Rate Loans) submitted by the Company shall be deemed
to be a representation and warranty that the conditions specified in Sections
4.02(a) and (b) have been satisfied on and as of the date of the applicable
Credit Extension.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Administrative Agent and
each Lender that:
5.01 CORPORATE EXISTENCE AND POWER. The Company and each of its
Subsidiaries:
(a) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation or organization;
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(b) has the power and authority and all required governmental
licenses, authorizations, consents and approvals to own its assets, carry on its
business and to execute, deliver, and perform its obligations under the Loan
Documents to which it is a party;
(c) is duly qualified and is licensed and in good standing under
the laws of each jurisdiction where its ownership, lease or operation of
property or the conduct of its business requires such qualification or license;
and
(d) is in compliance with all Requirements of Law;
except, (i) with respect to Subsidiaries of the Company other than Material
Subsidiaries, to the extent that the failure to do so could not reasonably be
expected to have a Material Adverse Effect and (ii) with respect to the Company
and its Material Subsidiaries (A) in each case referred to in clause (c) or
clause (d), to the extent that the failure to do so could not reasonably be
expected to have a Material Adverse Effect and (B) in each case referred to in
clause (d), the Disclosed Matters.
5.02 CORPORATE AUTHORIZATION; NO CONTRAVENTION. The execution,
delivery and performance by the Company of this Agreement and each other Loan
Document to which the Company is party, and any Borrowing as of the date of such
Borrowing have been duly authorized by all necessary corporate action, and do
not and will not:
(a) contravene the terms of the Company's Organization Documents;
(b) conflict with or result in any breach or contravention of, or
the creation of any Lien under, any document evidencing any Contractual
Obligation to which the Company is a party or any order, injunction, writ or
decree of any Governmental Authority to which the Company or its property is
subject; or
(c) violate any Requirement of Law.
5.03 GOVERNMENTAL AUTHORIZATION. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, the Company of
the Agreement or any other Loan Document.
5.04 BINDING EFFECT. This Agreement and each other Loan Document to
which the Company is a party constitute the legal, valid and binding obligations
of the Company, enforceable against the Company in accordance with their
respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the enforcement of creditors'
rights generally or by equitable principles relating to enforceability.
5.05 LITIGATION.
Except as disclosed in the Company's Annual Report on Form 10-K for the
fiscal year ended March 31, 2002 and the Company's Quarterly Report on Form 10-Q
for the quarter ended June 30, 2002, each as filed with the SEC (including but
not limited to the Disclosed Matters), there are no actions, suits, proceedings,
claims or disputes pending, or to the best knowledge of
31
the Company, threatened or contemplated, at law, in equity, in arbitration or
before any Governmental Authority, against the Company, or its Subsidiaries or
any of their respective properties which:
(a) purport to affect or pertain to this Agreement or any other
Loan Document, or any of the transactions contemplated hereby or thereby; or
(b) if determined adversely to the Company or its Subsidiaries,
would reasonably be expected to have a Material Adverse Effect as of the Closing
Date. No injunction, writ, temporary restraining order or any order of any
nature has been issued by any court or other Governmental Authority purporting
to enjoin or restrain the execution, delivery or performance of this Agreement
or any other Loan Document, or directing that the transactions provided for
herein or therein not be consummated as herein or therein provided.
5.06 NO DEFAULT. No Default or Event of Default exists or would
result from the incurring of any Obligations by the Company. As of the Closing
Date, neither the Company nor any Subsidiary is in default under or with respect
to any Contractual Obligation in any respect which, individually or together
with all such defaults, could reasonably be expected to have a Material Adverse
Effect as of the Closing Date, or that would, if such default had occurred after
the Closing Date, create an Event of Default under Section 8.01(e).
5.07 USE OF PROCEEDS; MARGIN REGULATIONS. The proceeds of the Loans
are to be used solely for the purposes set forth in Section 6.10. Neither the
Company nor any Subsidiary is generally engaged in the business of purchasing or
selling Margin Stock or extending credit for the purpose of purchasing or
carrying Margin Stock.
5.08 FINANCIAL CONDITION.
(a) The (i) Audited Financial Statements and (ii) unaudited
consolidated financial statements of the Company and its Subsidiaries dated June
30, 2002, and the related consolidated statements of operations, shareholders'
equity and cash flows for the three months ended on that date:
(A) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise
expressly noted therein, subject in the case of the unaudited
statements to ordinary, good faith year end audit adjustments;
(B) fairly present the financial condition of the Company
and its Subsidiaries as of the date thereof and results of operations
for the period covered thereby; and
(C) show all material indebtedness and other liabilities,
direct or contingent, of the Company and its consolidated Subsidiaries
as of the date thereof required to be shown in accordance with GAAP.
(b) As of the Closing Date, since March 31, 2002, there has been
no Material Adverse Effect.
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5.09 REGULATED ENTITIES. None of the Company, any Person
controlling the Company, or any Subsidiary, is an "investment company" within
the meaning of the Investment Company Act of 1940. The Company is not subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, the Interstate Commerce Act, any state public utilities code, or any
other Federal, state or other statute or regulation limiting its ability to
incur Indebtedness.
5.10 NO BURDENSOME RESTRICTIONS. Neither the Company nor any
Subsidiary is a party to or bound by any Contractual Obligation, or subject to
any restriction in any Organization Document, or any Requirement of Law, which
could reasonably be expected to have a Material Adverse Effect.
5.11 SUBSIDIARIES AND CERTAIN LIENS AS OF THE CLOSING DATE. As of
the Closing Date, the Company has no Subsidiaries other than those listed in
part (a) of Schedule 5.11 hereto. As of the Closing Date, part (b) of Schedule
5.11 describes all outstanding Indebtedness of the Company and its Subsidiaries
for borrowed money in excess of $25,000,000 that is secured by a Lien existing
on property of the Company or any of its Subsidiaries.
5.12 DISCLOSED MATTERS. As of the Closing Date, based on
information available to the Company on the Closing Date, it is unlikely that,
prior to the Term Loan Maturity Date, any actions, suits, proceedings or
governmental investigations, pending or threatened, comprising or resulting from
the Disclosed Matters would materially and adversely affect the ability of the
Company to perform its obligations under any Loan Document.
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation (other than Obligations under Section 10.05 that remain
contingent after termination of the Commitments and payment of all other
Obligations) hereunder shall remain unpaid or unsatisfied, unless the Required
Lenders waive compliance in writing:
6.01 FINANCIAL STATEMENTS. The Company shall deliver to the
Administrative Agent, in form and detail satisfactory to the Administrative
Agent and the Required Lenders:
(a) as soon as available, but in any event within 90 days after
the end of each fiscal year of the Company, a consolidated balance sheet of the
Company and its Subsidiaries as at the end of such fiscal year, and the related
consolidated statements of operations, shareholders' equity and cash flows for
such fiscal year, setting forth in each case in comparative form the figures for
the previous fiscal year, all in reasonable detail and prepared in accordance
with GAAP, audited and accompanied by a report and opinion of Deloitte & Touche
LLP or another nationally-recognized independent certified public accountant,
which report and opinion shall be prepared in accordance with GAAP and shall not
be subject to any "going concern" or like qualification or exception or any
qualification or exception as to the scope of such audit; and
(b) as soon as available, but in any event within 60 days after
the end of each of the first three fiscal quarters of each fiscal year of the
Company, beginning with the fiscal quarter
33
ending September 30, 2002, a consolidated balance sheet of the Company and its
Subsidiaries as at the end of such fiscal quarter, and the related consolidated
statements of operations, shareholders' equity and cash flows for such fiscal
quarter and for the portion of the Company's fiscal year then ended, setting
forth in each case in comparative form the figures for the corresponding fiscal
quarter of the previous fiscal year and the corresponding portion of the
previous fiscal year, all in reasonable detail and certified by a Responsible
Officer of the Company as fairly presenting the financial condition, results of
operations, shareholders' equity and cash flows of the Company and its
Subsidiaries in accordance with GAAP, subject only to normal year-end audit
adjustments and the absence of footnotes.
As to any information contained in materials furnished pursuant to Section
6.02(b), the Company shall not be separately required to furnish such
information under clause (a) or (b) above, but the foregoing shall not be in
derogation of the obligation of the Company to furnish the information and
materials described in Sections 6.01(a) and (b) at the times specified therein.
6.02 CERTIFICATES; OTHER INFORMATION. The Company shall deliver to
the Administrative Agent:
(a) concurrently with the delivery of the financial statements
referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate
signed by a Responsible Officer of the Company;
(b) promptly after the same are available, copies of each annual
report, proxy or financial statement or other report or communication sent to
the stockholders of the Company, and copies of all annual, regular, periodic and
special reports and registration statements which the Company may file or be
required to file with the SEC under Section 13 or 15(d) of the Securities
Exchange Act of 1934, and not otherwise required to be delivered to the
Administrative Agent pursuant hereto; and
(c) promptly, such additional information regarding the business,
financial or corporate affairs of the Company or any Subsidiary or compliance
with the terms of the Loan Documents, as the Administrative Agent or any Lender
may from time to time reasonably request.
Documents required to be delivered pursuant to Section 6.01(a) or (b)
or Section 6.02(b) (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on which the
Company posts such documents, or provides a link thereto on the Company's
website on the Internet at the website address listed on Schedule 10.02; or (ii)
on which such documents are posted on the Company's behalf on
IntraLinks/IntraAgency or another relevant website, if any, to which each Lender
and the Administrative Agent have access (whether a commercial, third-party
website or whether sponsored by the Administrative Agent); provided that: (i)
upon request of the Administrative Agent or any Lender, the Company shall
deliver to such Person paper copies of such documents and (ii) the Company shall
notify (which may be by facsimile or electronic mail) the Administrative Agent
and each Lender of the posting of any such documents and provide to the
Administrative Agent by electronic mail electronic versions (i.e., soft copies)
of such documents. Notwithstanding anything contained herein, in
34
every instance the Company shall be required to provide paper copies of the
Compliance Certificates required by Section 6.02(a) to the Administrative Agent.
Except for such Compliance Certificates, the Administrative Agent shall have no
obligation to request the delivery or to maintain copies of the documents
referred to above, and in any event shall have no responsibility to monitor
compliance by the Company with any such request for delivery, and each Lender
shall be solely responsible for requesting delivery to it or maintaining its
copies of such documents.
6.03 NOTICES. The Company shall promptly notify the Administrative
Agent and each Lender:
(a) of the occurrence of any Default;
(b) of any matter that has resulted or could reasonably be
expected to result in a Material Adverse Effect;
(c) promptly upon any Responsible Officer of the Company obtaining
knowledge thereof of (i) the institution of, or non-frivolous threat of, any
action, suit, proceeding (whether administrative, judicial or otherwise),
governmental investigation or arbitration against or affecting the Company or
any of its Subsidiaries or any property of the Company or any of its
Subsidiaries (collectively "Proceedings") not previously disclosed in writing by
the Company to the Lenders or (ii) any material development in any Proceeding
that, in the case of clause (i) or (ii) above, (1) if adversely determined, has
a reasonable possibility of giving rise to a Material Adverse Effect; or (2)
seeks to enjoin or otherwise prevent the consummation of, or to recover any
damages or obtain relief as a result of, the transactions contemplated hereby,
together with such other information as may be reasonably available to Company
that the Administrative Agent requests to enable the Administrative Agent and
the Lenders to evaluate such matters.
(d) of any material change in accounting policies or financial
reporting practices by the Company or any Subsidiary;
(e) of any announcement by Moody's or S&P of any change or
possible change in a Debt Rating; and
(f) of (i) the occurrence of any ERISA Event with respect to a
Pension Plan or Multiemployer Plan which has resulted or could reasonably be
expected to result in liability of the Company or any of its Subsidiaries in an
aggregate amount in excess of $15,000,000 during the term of this Agreement, or
(ii) the existence of an amount of unfunded benefit liabilities (as defined in
Section 4001(a)(18) of ERISA), individually or in the aggregate for all Pension
Plans (excluding for purposes of such computation any Pension Plans with respect
to which assets exceed benefit liabilities), which exceeds 3% of Net Worth.
Each notice pursuant to this Section 6.03 shall be accompanied by a
statement of a Responsible Officer of the Company setting forth details of the
occurrence referred to therein and stating what action the Company has taken and
proposes to take with respect thereto. Each notice pursuant to Section 6.03(a)
shall describe with particularity any and all provisions of this Agreement and
any other Loan Document that have been breached.
35
6.04 PRESERVATION OF EXISTENCE, ETC. The Company shall, and shall
cause each of its Material Subsidiaries to, (a) preserve, renew and maintain in
full force and effect its legal existence and good standing under the Laws of
the jurisdiction of its organization except in a transaction permitted by
Section 7.02 and (b) take all reasonable action to maintain all governmental
rights, privileges, permits, licenses and franchises necessary in the normal
conduct of its business, except in connection with transactions permitted by
Section 7.02 and except to the extent that failure to do so could not reasonably
be expected to have a Material Adverse Effect.
6.05 MAINTENANCE OF INSURANCE. The Company shall, and shall cause
each of its Material Subsidiaries to, maintain with financially sound and
reputable insurance companies, insurance (including self-insurance) with respect
to its properties and business against loss or damage of the kinds customarily
insured against by Persons engaged in the same or similar business, of such
types and in such amounts as the Company reasonably deems prudent from time to
time.
6.06 PAYMENT OF TAXES. The Company shall, and shall cause each of
its Material Subsidiaries to, pay and discharge as the same shall become due and
payable, all tax liabilities, assessments and governmental charges or levies
upon it or its properties or assets (other than obligations that a Responsible
Officer is not aware of or are of a nominal amount), unless the same are being
contested in good faith by appropriate proceedings diligently conducted and
adequate reserves in accordance with GAAP are being maintained by the Company or
such Subsidiary.
6.07 COMPLIANCE WITH LAWS. The Company shall, and shall cause each
of its Material Subsidiaries to, comply in all material respects with the
Requirements of Law applicable to it or to its business, except in such
instances in which (a) a Requirement of Law is being contested in good faith by
appropriate proceedings diligently conducted; or (b) the failure to comply
therewith could not reasonably be expected to have a Material Adverse Effect.
6.08 BOOKS AND RECORDS. The Company shall, and shall cause each of
its Material Subsidiaries to, maintain in all material respects proper books of
record and account, in which full, true and correct entries in conformity with
GAAP consistently applied shall be made of all financial transactions and
matters involving the assets and business of the Company and such Subsidiary, as
the case may be.
6.09 INSPECTION RIGHTS. The Company shall, and shall cause each of
its Material Subsidiaries to, permit representatives and independent contractors
of the Administrative Agent and each Lender to visit and inspect any of its
properties, to examine its corporate, financial and operating records, and make
copies thereof or abstracts therefrom, and to discuss its affairs, finances and
accounts with its directors, officers, and independent public accountants, all
at such reasonable times during normal business hours and as often as may be
reasonably desired, upon reasonable advance notice to the Company; provided,
however, that when an Event of Default exists the Administrative Agent or any
Lender (or any of their respective representatives or independent contractors)
may do any of the foregoing at the reasonable expense of the Company at any time
during normal business hours and without advance notice.
36
6.10 USE OF PROCEEDS. The Company shall use the proceeds of the
Credit Extensions for general corporate purposes (including the refinancing of
existing indebtedness, acquisitions and commercial paper back-up) not in
contravention of any Law or of any Loan Document.
ARTICLE VII.
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation (other than Obligations under Section 10.05 that remain
contingent after termination of the Commitments and payment of all other
Obligations) hereunder shall remain unpaid or unsatisfied, unless the Required
Lenders waive compliance in writing:
7.01 LIENS. The Company shall not, and shall not suffer or permit
any of its Subsidiaries to, directly or indirectly, create, incur, assume or
suffer to exist any Lien upon any of its property, whether now owned or
hereafter acquired, other than the following ("Permitted Liens"):
(a) any Lien existing on property of the Company or any Subsidiary
on the Closing Date securing Indebtedness outstanding on such date;
(b) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other governmental
charges not yet due or which are being contested in good faith and by
appropriate proceedings diligently conducted, if adequate reserves with respect
thereto are maintained on the books of the applicable Person in accordance with
GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's,
landlords', repairmen's or other like Liens arising in the ordinary course of
business which are not delinquent or remain payable without penalty;
(e) pledges or deposits required in the ordinary course of
business in connection with workers' compensation, unemployment insurance and
other social security legislation, other than any Lien imposed by ERISA;
(f) Liens on the property of the Company or any Subsidiary
securing (i) the non-delinquent performance of bids, trade contracts (other than
for borrowed money), leases, statutory obligations, (ii) contingent obligations
on surety and appeal bonds, and (iii) other non-delinquent obligations of a like
nature; in each case, incurred in the ordinary course of business, provided all
such Liens in the aggregate would not (even if enforced) cause a Material
Adverse Effect;
(g) easements, rights-of-way, restrictions and other similar
encumbrances which, in the aggregate, are not substantial in amount, and which
do not in any case materially detract from the value of the property subject
thereto or materially interfere with the ordinary conduct of the business of the
applicable Person;
37
(h) Liens arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of set-off or similar rights and
remedies as to deposit accounts or other funds maintained with a creditor
depository institution; provided that (i) such deposit account is not a
dedicated cash collateral account and is not subject to restrictions against
access by the Company in excess of those set forth by regulations promulgated by
the FRB, and (ii) such deposit account is not intended by the Company or any
Subsidiary to provide collateral to the depository institution;
(i) Any other Liens (other than any Lien imposed by ERISA or any
Lien for taxes, fees, assessments or other governmental charges that is not
expressly permitted under Section 7.01(c));
provided that the aggregate amount of all Permitted Liens shall not exceed at
any time 25% of Net Worth.
7.02 CONSOLIDATIONS AND MERGERS. The Company shall not, and shall
not suffer or permit any of its Material Subsidiaries to, directly or
indirectly, liquidate, dissolve, merge, amalgamate, consolidate with or into, or
convey, transfer, lease or otherwise dispose of (whether in one transaction or
in a series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to or in favor of any Person, except:
(a) any Subsidiary may merge with the Company, provided that the
Company shall be the continuing or surviving corporation, or with any one or
more Subsidiaries, provided that if any transaction shall be between a
Subsidiary and a Wholly-Owned Subsidiary, the Wholly-Owned Subsidiary shall be
the continuing or surviving corporation;
(b) McKesson Canada Corporation or any Subsidiary of McKesson
Canada Corporation may amalgamate with McKesson Canada Corporation or with any
one or more of the Company's Subsidiaries and any of the Company's Subsidiaries
may amalgamate with any one or more of the Company's Subsidiaries;
(c) any Subsidiary may sell, transfer or exchange all or
substantially all of its assets (upon voluntary liquidation or otherwise) to the
Company or another Wholly-Owned Subsidiary; and
(d) the Company may merge with another Person provided that the
Company shall be the continuing or surviving corporation and no Default or Event
of Default is in effect immediately prior to or on the date of or would result
from such merger.
7.03 USE OF PROCEEDS. The Company shall not, and shall not suffer
or permit any of its Subsidiaries to, use any Credit Extension, directly or
indirectly, (i) to purchase or carry Margin Stock, (ii) to repay or otherwise
refinance indebtedness of the Company or others incurred to purchase or carry
Margin Stock, (iii) to extend credit for the purpose of purchasing or carrying
any Margin Stock, or (iv) to acquire any security in any transaction that is
subject to Section 13 or 14 of the Securities Exchange Act of 1934.
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7.04 MAXIMUM DEBT TO CAPITALIZATION RATIO. The Company shall not
permit the ratio of Total Debt to Total Capitalization as at the last day of any
calendar month to exceed 0.565 to 1.00.
7.05 SWAP CONTRACTS. The Company shall, and shall cause each of its
Subsidiaries to, enter into Swap Contracts only in the ordinary course of
business and not for any purpose other than for hedging an underlying agreement.
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01 EVENTS OF DEFAULT. Any of the following shall constitute an
Event of Default:
(a) Non-Payment. The Company fails to pay (i) when and as required
to be paid herein, any amount of principal of any Loan or (ii) within five days
after the same becomes due, any interest on any Loan, or any facility,
utilization or other fee due hereunder, or any other amount payable hereunder or
under any other Loan Document; or
(b) Specific Covenants. The Company fails to perform or observe
any term, covenant or agreement contained in any of Section 6.04(a) or Article
VII; or
(c) Other Defaults. The Company fails to perform or observe any
other covenant or agreement (not specified in Section 8.01(a) or (b)) contained
in any Loan Document on its part to be performed or observed and such failure
continues for 20 days after the earlier of (i) in the case of any provision in
Article VI, the date upon which a Responsible Officer knew of such failure or
(ii) the date upon which written notice thereof is given to the Company by the
Administrative Agent or any Lenders; or
(d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of the
Company herein, in any other Loan Document, or in any document delivered in
connection herewith or therewith shall be incorrect or misleading in any
material respect when made or deemed made; or
(e) Cross-Default. (i) The Company or any Subsidiary (A) fails to
make any payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee
(other than Indebtedness hereunder and Indebtedness under Swap Contracts) having
an aggregate principal amount (including undrawn committed or available amounts
and including amounts owing to all creditors under any combined or syndicated
credit arrangement) of more than $25,000,000 and such failure continues after
the applicable grace or notice period, if any, specified in the relevant
document on the date of such failure, or (B) fails to observe or perform any
other agreement or condition relating to any Indebtedness or Guarantee (other
than Indebtedness hereunder and Indebtedness under Swap Contracts) having an
aggregate principal amount (including undrawn committed or available amounts and
including amounts owing to all creditors under any combined or syndicated credit
arrangement) of more than $25,000,000 or contained in any instrument or
agreement evidencing, securing or relating thereto, and such failure continues
after the applicable grace or notice period, if any, specified in the relevant
document on the date of such failure, or any other event occurs,
39
the effect of which default or other event is to cause, or to permit the holder
or holders of such Indebtedness or the beneficiary or beneficiaries of such
Guarantee (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice if required,
such Indebtedness to be demanded or to become due or to be repurchased, prepaid,
defeased or redeemed (automatically or otherwise), or an offer to repurchase,
prepay, defease or redeem such Indebtedness to be made, prior to its stated
maturity, or such Guarantee to become payable or cash collateral in respect
thereof to be demanded, or (ii) there occurs under any Swap Contract an Early
Termination Date (as defined in such Swap Contract) resulting from (A) any event
of default under such Swap Contract as to which the Company or any Subsidiary is
the Defaulting Party (as defined in such Swap Contract) or (B) any Termination
Event (as so defined) under such Swap Contract as to which the Company or any
Subsidiary is an Affected Party (as so defined) and, in either event, the Swap
Termination Value owed by the Company or such Subsidiary as a result thereof is
greater than $25,000,000; or
(f) Insolvency; Voluntary Proceedings. The Company or any Material
Subsidiary (i) ceases or fails to be solvent, or generally fails to pay, or
admits in writing its inability to pay, its debts as they become due, subject to
applicable grace periods, if any, whether at stated maturity or otherwise; (ii)
voluntarily ceases to conduct its business in the ordinary course; (iii)
commences any Insolvency Proceeding with respect to itself; or (iv) takes any
action to effectuate or authorize any of the foregoing; or
(g) Involuntary Proceedings. (i) Any involuntary Insolvency
Proceeding is commenced or filed against the Company or any Material Subsidiary,
or any writ, judgment, warrant of attachment, execution or similar process, is
issued or levied against a substantial part of the Company's or any Material
Subsidiary's properties, and any such proceeding or petition shall not be
dismissed, or such writ, judgment, warrant of attachment, execution or similar
process shall not be released, vacated or fully bonded within sixty (60) days
after commencement, filing or levy; (ii) the Company or any Material Subsidiary
admits the material allegations of a petition against it in any Insolvency
Proceeding, or an order for relief (or similar order under non-U.S. law) is
ordered in any Insolvency Proceeding; or (iii) the Company or any Material
Subsidiary acquiesces in the appointment of a receiver, trustee, custodian,
conservator, liquidator, mortgagee in possession (or agent therefor), or other
similar Person for itself or a substantial portion of its property or business;
or
(h) ERISA. (i) An ERISA Event occurs with respect to a Pension
Plan or Multiemployer Plan which has resulted or could reasonably be expected to
result in liability of the Company or any of its Subsidiaries in an aggregate
amount in excess of $25,000,000 during the term of this Agreement, or (ii) there
shall exist an amount of unfunded benefit liabilities (as defined in Section
4001(a)(18) of ERISA), individually or in the aggregate for all Pension Plans
(excluding for purposes of such computation any Pension Plans with respect to
which assets exceed benefit liabilities), which exceeds 5% of Net Worth.
8.02 REMEDIES UPON EVENT OF DEFAULT. If any Event of Default occurs
and is continuing, the Administrative Agent shall, at the request of, or may,
with the consent of, the Required Lenders, take any or all of the following
actions:
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(a) declare the commitment of each Lender to make Loans to be
terminated, whereupon such commitments shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans,
all interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Company; and
(c) exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan Documents or applicable
law;
provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Company under the Bankruptcy Code of the
United States, except in the case of Section 8.01(g)(i), in which case upon the
expiration of the 60-day period mentioned therein if the curative action
mentioned in such clause is not taken, the obligation of each Lender to make
Loans shall automatically terminate and the unpaid principal amount of all
outstanding Loans and all interest and other amounts as aforesaid shall
automatically become due and payable, in each case without further act of the
Administrative Agent or any Lender.
8.03 APPLICATION OF FUNDS. After the exercise of remedies provided
for in Section 8.02 (or after the Loans and other Obligations have automatically
become immediately due and payable as set forth in the proviso to Section 8.02),
any amounts received on account of the Obligations shall be applied by the
Administrative Agent in the following order:
First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including Attorney Costs and amounts
payable under Article III) payable to the Administrative Agent in its capacity
as such;
Second, to payment of that portion of the Obligations constituting
fees, indemnities and other amounts (other than principal and interest) payable
to the Lenders (including Attorney Costs and amounts payable under Article III),
ratably among them in proportion to the amounts described in this clause Second
payable to them;
Third, to payment of that portion of the Obligations constituting
accrued and unpaid interest on the Loans, ratably among the Lenders in
proportion to the respective amounts described in this clause Third payable to
them;
Fourth, to payment of that portion of the Obligations constituting
unpaid principal of the Loans, ratably among the Lenders in proportion to the
respective amounts described in this clause Fourth held by them; and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Company or as otherwise required by Law.
41
ARTICLE IX.
ADMINISTRATIVE AGENT
9.01 APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT. Each
Lender hereby irrevocably appoints, designates and authorizes the Administrative
Agent to take such action on its behalf under the provisions of this Agreement
and each other Loan Document and to exercise such powers and perform such duties
as are expressly delegated to it by the terms of this Agreement or any other
Loan Document, together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere herein or in
any other Loan Document, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall the
Administrative Agent have or be deemed to have any fiduciary relationship with
any Lender or participant, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing sentence,
the use of the term "agent" herein and in the other Loan Documents with
reference to the Administrative Agent is not intended to connote any fiduciary
or other implied (or express) obligations arising under agency doctrine of any
applicable Law. Instead, such term is used merely as a matter of market custom,
and is intended to create or reflect only an administrative relationship between
independent contracting parties.
9.02 DELEGATION OF DUTIES. The Administrative Agent may execute any
of its duties under this Agreement or any other Loan Document by or through
agents, employees or attorneys-in-fact and shall be entitled to advice of
counsel and other consultants or experts concerning all matters pertaining to
such duties. The Administrative Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects in the
absence of gross negligence or willful misconduct.
9.03 LIABILITY OF ADMINISTRATIVE AGENT. No Agent-Related Person
shall (a) be liable for any action taken or omitted to be taken by any of them
under or in connection with this Agreement or any other Loan Document or the
transactions contemplated hereby (except for its own gross negligence or willful
misconduct in connection with its duties expressly set forth herein), or (b) be
responsible in any manner to any Lender or participant for any recital,
statement, representation or warranty made by the Company or any officer
thereof, contained herein or in any other Loan Document, 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, this Agreement or any
other Loan Document, or the validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Loan Document, or for any failure
of the Company or any other party to any Loan Document to perform its
obligations hereunder or thereunder. No Agent-Related Person shall be under any
obligation to any Lender or participant to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the properties,
books or records of the Company or any Affiliate thereof.
9.04 RELIANCE BY ADMINISTRATIVE AGENT.
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(a) The Administrative Agent shall be entitled to rely, and shall
be fully protected in relying, upon any writing, communication, signature,
resolution, representation, notice, consent, certificate, affidavit, letter,
telegram, facsimile, telex or telephone message, electronic mail message,
statement or other document or conversation 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
Company), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under any Loan Document unless it shall
first receive such advice or concurrence of the Required Lenders as it deems
appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement or any other Loan Document in
accordance with a request or consent of the Required Lenders (or such greater
number of Lenders as may be expressly required hereby in any instance) and such
request and any action taken or failure to act pursuant thereto shall be binding
upon all the Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 4.01, each Lender that has signed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless the Administrative Agent shall
have received notice from such Lender prior to the proposed Closing Date
specifying its objection thereto.
9.05 NOTICE OF DEFAULT. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default, except with
respect to defaults in the payment of principal, interest and fees required to
be paid to the Administrative Agent for the account of the Lenders, unless the
Administrative Agent shall have received written notice from a Lender or the
Company referring to this Agreement, describing such Default and stating that
such notice is a "notice of default." The Administrative Agent will notify the
Lenders of its receipt of any such notice. The Administrative Agent shall take
such action with respect to such Default as may be directed by the Required
Lenders in accordance with Article VIII; provided, however, that unless and
until the Administrative Agent has received any such direction, the
Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default as it shall deem
advisable or in the best interest of the Lenders.
9.06 CREDIT DECISION; DISCLOSURE OF INFORMATION BY ADMINISTRATIVE
AGENT. Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereafter taken, including any consent to and acceptance of any assignment or
review of the affairs of the Company or any Affiliate thereof, shall be deemed
to constitute any representation or warranty by any Agent-Related Person to any
Lender as to any matter, including whether Agent-Related Persons have disclosed
material information in their possession. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
43
creditworthiness of the Company and its Subsidiaries, and all applicable bank
or other regulatory Laws relating to the transactions contemplated hereby, and
made its own decision to enter into this Agreement and to extend credit to the
Company hereunder. Each Lender also represents that it will, independently and
without reliance upon any Agent-Related Person and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigations as
it deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of the Company.
Except for notices, reports and other documents expressly required to be
furnished to the Lenders by the Administrative Agent herein, the Administrative
Agent shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, prospects, operations,
property, financial and other condition or creditworthiness of the Company or
any of its Affiliates which may come into the possession of any Agent-Related
Person.
9.07 INDEMNIFICATION OF ADMINISTRATIVE AGENT. Whether or not the
transactions contemplated hereby are consummated, the Lenders shall indemnify
upon demand each Agent-Related Person (to the extent not reimbursed by or on
behalf of the Company and without limiting the obligation of the Company to do
so), pro rata, and hold harmless each Agent-Related Person from and against any
and all Indemnified Liabilities incurred by it; provided, however, that no
Lender shall be liable for the payment to any Agent-Related Person of any
portion of such Indemnified Liabilities to the extent determined in a final,
nonappealable judgment by a court of competent jurisdiction to have resulted
from such Agent-Related Person's own gross negligence or willful misconduct;
provided, however, that no action taken in accordance with the directions of the
Required Lenders shall be deemed to constitute gross negligence or willful
misconduct for purposes of this Section 9.07. Without limitation of the
foregoing, each Lender shall reimburse the Administrative Agent upon demand for
its ratable share of any costs or out-of-pocket expenses (including Attorney
Costs) incurred by the Administrative Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, any other
Loan Document, or any document contemplated by or referred to herein, to the
extent that the Administrative Agent is not reimbursed for such expenses by or
on behalf of the Company. The undertaking in this Section 9.07 shall survive
termination of the Aggregate Commitments, the payment of all other Obligations
and the resignation of the Administrative Agent.
9.08 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. Bank of
America and its Affiliates may make loans to, issue letters of credit for the
account of, accept deposits from, acquire equity interests in and generally
engage in any kind of banking, trust, financial advisory, underwriting or other
business with the Company and its Affiliates as though Bank of America were not
the Administrative Agent hereunder and without notice to or consent of the
Lenders. The Lenders acknowledge that, pursuant to such activities, Bank of
America or one of its Affiliates may receive information regarding the Company
or its Affiliates (including information that may be subject to confidentiality
obligations in favor of the Company or such Affiliate) and acknowledge that
Administrative Agent shall be under no obligation to provide such information to
them. With respect to its Loans, Bank of America shall have the same rights and
powers under this Agreement as any other Lender and may exercise such rights and
powers
44
as though Bank of America were not the Administrative Agent hereunder, and the
terms "Lender" and "Lenders" include Bank of America in its individual capacity.
9.09 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may
resign as Administrative Agent upon 30 days' notice to the Lenders. If the
Administrative Agent resigns under this Agreement, the Required Lenders shall
appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall be consented to by the Company at all times other than
during the existence of an Event of Default (which consent of the Company shall
not be unreasonably withheld or delayed). If no successor agent is appointed
prior to the effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and the
Company, a successor agent from among the Lenders. Upon the acceptance of its
appointment as successor agent hereunder, the Person acting as such successor
agent shall succeed to all the rights, powers and duties of the retiring
Administrative Agent and the term "Administrative Agent" shall mean such
successor administrative agent and the retiring Administrative Agent's
appointment, powers and duties as Administrative Agent shall be terminated.
After the retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article IX and Sections 10.04 and
10.05 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Administrative Agent under this Agreement. If no successor
agent has accepted appointment as Administrative Agent by the date which is 30
days following the retiring Administrative Agent's notice of resignation, the
retiring Administrative Agent's resignation shall nevertheless thereupon become
effective and the Lenders shall perform all of the duties of the Administrative
Agent hereunder until such time, if any, as the Required Lenders appoint a
successor agent as provided for above.
9.10 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company, the Administrative Agent (irrespective of
whether the principal of any Loan shall then be due and payable as herein
expressed or by declaration or otherwise and irrespective of whether the
Administrative Agent shall have made any demand on the Company) shall be
entitled and empowered, by intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Loans and all other
Obligations that are owing and unpaid and to file such other documents as may be
necessary or advisable in order to have the claims of the Lenders and the
Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders and the Administrative Agent
and their respective agents and counsel and all other amounts due the Lenders
and the Administrative Agent under Sections 2.07 and 10.04) allowed in such
judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for
45
the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.07 and 10.04.
Nothing contained herein shall be deemed to authorize the
Administrative Agent to authorize or consent to or accept or adopt on behalf of
any Lender any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lender or to authorize the
Administrative Agent to vote in respect of the claim of any Lender in any such
proceeding.
9.11 OTHER AGENTS; ARRANGERS AND MANAGERS. None of the Lenders or
other Persons identified on the facing page or signature pages of this Agreement
as a "syndication agent," "documentation agent," "co-agent," "book manager,"
"lead manager," "arranger," "lead arranger" or "co-arranger" shall have any
right, power, obligation, liability, responsibility or duty under this Agreement
other than, in the case of such Lenders, those applicable to all Lenders as
such. Without limiting the foregoing, none of the Lenders or other Persons so
identified shall have or be deemed to have any fiduciary relationship with any
Lender. Each Lender acknowledges that it has not relied, and will not rely, on
any of the Lenders or other Persons so identified in deciding to enter into this
Agreement or in taking or not taking action hereunder.
ARTICLE X.
MISCELLANEOUS
10.01 AMENDMENTS, ETC. No amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent to any departure by
the Company therefrom, shall be effective unless in writing signed by the
Required Lenders and the Company, and acknowledged by the Administrative Agent,
and each such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given; provided, however, that no such
amendment, waiver or consent shall:
(a) waive any condition set forth in Section 4.01(a) (other than
any condition pursuant to Section 4.01(a)(viii)) without the written consent of
each Lender;
(b) extend or increase the Commitment of any Lender (or reinstate
any Commitment terminated pursuant to Section 8.02) except as permitted by
Section 2.12 without the written consent of such Lender;
(c) postpone any date fixed by this Agreement or any other Loan
Document for any payment of principal, interest, fees or other amounts due to
the Lenders (or any of them) hereunder or under any other Loan Document without
the written consent of each Lender directly affected thereby;
(d) reduce the principal of, or the rate of interest specified
herein on, any Loan, or (subject to clause (iii) of the second proviso to this
Section 10.01) any fees or other amounts payable hereunder or under any other
Loan Document without the written consent of each Lender directly affected
thereby; provided, however, that only the consent of the Required
46
Lenders shall be necessary to amend the definition of "Default Rate" or to waive
any obligation of the Company to pay interest at the Default Rate;
(e) change Section 2.11 or Section 8.03 in a manner that would
alter the pro rata sharing of payments required thereby without the written
consent of each Lender; or
(f) change any provision of this Section 10.01 or the definition
of "Required Lenders" or any other provision hereof specifying the number or
percentage of Lenders required to amend, waive or otherwise modify any rights
hereunder or make any determination or grant any consent hereunder, without the
written consent of each Lender;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Lenders
required above, affect the rights or duties of the Administrative Agent under
this Agreement or any other Loan Document; (ii) Section 10.07(h) may not be
amended, waived or otherwise modified without the consent of each Granting
Lender all or any part of whose Loans are being funded by an SPC at the time of
such amendment, waiver or other modification; and (iii) the Fee Letter may be
amended, or rights or privileges thereunder waived, only in a writing executed
by the parties thereto. Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment,
waiver or consent hereunder, except that the Commitment of such Lender may not
be increased or extended without the consent of such Lender.
10.02 NOTICES AND OTHER COMMUNICATIONS; FACSIMILE COPIES.
(a) General. Unless otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including by facsimile transmission). All such written notices shall be mailed,
faxed or delivered to the applicable address, facsimile number or (subject to
Section 10.02(c)) electronic mail address, and all notices and other
communications expressly permitted hereunder to be given by telephone shall be
made to the applicable telephone number, as follows:
(i) if to the Company or the Administrative Agent, to the
address, facsimile number, electronic mail address or telephone number
specified for such Person on Schedule 10.02 or to such other address,
facsimile number, electronic mail address or telephone number as shall
be designated by such party in a notice to the other parties; and
(ii) if to any other Lender, to the address, facsimile
number, electronic mail address or telephone number specified in its
Administrative Questionnaire or to such other address, facsimile
number, electronic mail address or telephone number as shall be
designated by such party in a notice to the Company and the
Administrative Agent.
All such notices and other communications shall be deemed to be given or made
upon the earlier to occur of (i) actual receipt by the relevant party hereto and
(ii) (A) if delivered by hand or by courier, when signed for by or on behalf of
the relevant party hereto; (B) if delivered by mail, four Business Days after
deposit in the mails, postage prepaid; (C) if delivered by facsimile, when sent
and receipt has been confirmed by telephone; and (D) if delivered by electronic
mail (which form of delivery is subject to the provisions of Section 10.02(c)),
when delivered;
47
provided, however, that notices and other communications to the Administrative
Agent pursuant to Article II shall not be effective until actually received by
the Administrative Agent. In no event shall a voicemail message be effective as
a notice, communication or confirmation hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. Loan
Documents may be transmitted and/or signed by facsimile. The effectiveness of
any such documents and signatures shall, subject to applicable Law, have the
same force and effect as manually-signed originals and shall be binding on the
Company, the Administrative Agent and the Lenders. The Administrative Agent may
also require that any such documents and signatures be confirmed by a
manually-signed original thereof; provided, however, that the failure to request
or deliver the same shall not limit the effectiveness of any facsimile document
or signature.
(c) Limited Use of Electronic Mail. Electronic mail and Internet
and intranet websites may be used only to distribute routine communications,
such as financial statements and other information as provided in Section 6.02,
and to distribute Loan Documents for execution by the parties thereto, and may
not be used for any other purpose.
(d) Reliance by the Administrative Agent and Lenders. The
Administrative Agent and each Lender shall be entitled to rely and act upon any
notices (including telephonic Committed Loan Notices) purportedly given by or on
behalf of the Company which the Administrative Agent or such Lender, as the case
may be, believes in good faith to have been given by a duly authorized officer
or other person authorized to borrow on behalf of the Company even if (i) such
notices were not made in a manner specified herein, were incomplete or were not
preceded or followed by any other form of notice specified herein, or (ii) the
terms thereof, as understood by the recipient, varied from any confirmation
thereof. The Company shall indemnify each Agent-Related Person and each Lender
from all losses, costs, expenses and liabilities resulting from the reliance by
such Person on each notice purportedly given by or on behalf of the Company. All
telephonic notices to and other communications with the Administrative Agent may
be recorded by the Administrative Agent, and each of the parties hereto hereby
consents to such recording.
10.03 NO WAIVER; CUMULATIVE REMEDIES. No failure by any Lender or
the Administrative Agent to exercise, and no delay by any such Person in
exercising, 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,
remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.
10.04 ATTORNEY COSTS, EXPENSES AND TAXES. The Company agrees (a) to
pay or reimburse the Administrative Agent for all costs and expenses incurred in
connection with the development, preparation, negotiation and execution of this
Agreement and the other Loan Documents and any amendment, waiver, consent or
other modification of the provisions hereof and thereof (whether or not the
transactions contemplated hereby or thereby are consummated), and the
consummation and administration of the transactions contemplated hereby and
thereby, including all Attorney Costs, and (b) to pay or reimburse the
Administrative Agent and each
48
Lender for all costs and expenses incurred in connection with the enforcement,
attempted enforcement, or preservation of any rights or remedies under this
Agreement or the other Loan Documents (including all such costs and expenses
incurred during any "workout" or restructuring in respect of the Obligations and
during any legal proceeding, including any proceeding under any Debtor Relief
Law), including all Attorney Costs. The foregoing costs and expenses shall
include all search, filing, recording, title insurance and appraisal charges and
fees and taxes related thereto, and other out-of-pocket expenses incurred by the
Administrative Agent and the cost of independent public accountants and other
outside experts retained by the Administrative Agent or any Lender. All amounts
due under this Section 10.04 shall be payable within 20 Business Days after
demand therefor. The agreements in this Section 10.04 shall survive the
termination of the Aggregate Commitments and repayment of all other Obligations.
10.05 INDEMNIFICATION BY THE COMPANY. Whether or not the
transactions contemplated hereby are consummated, the Company shall jointly and
severally indemnify and hold harmless each Agent-Related Person, each Lender and
their respective Affiliates, directors, officers, employees, counsel, agents and
attorneys-in-fact (collectively the "Indemnitees") from and against any and all
liabilities, obligations, losses, damages, penalties, claims, demands, actions,
judgments, suits, costs, expenses and disbursements (including Attorney Costs)
of any kind or nature whatsoever which may at any time be imposed on, incurred
by or asserted against any such Indemnitee in any way relating to or arising out
of or in connection with (a) the execution, delivery, enforcement, performance
or administration of any Loan Document or any other agreement, letter or
instrument delivered in connection with the transactions contemplated thereby or
the consummation of the transactions contemplated thereby, (b) any Commitment,
Loan or the use or proposed use of the proceeds therefrom or (c) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory (including
any investigation of, preparation for, or defense of any pending or threatened
claim, investigation, litigation or proceeding) and regardless of whether any
Indemnitee is a party thereto (all the foregoing, collectively, the "Indemnified
Liabilities"); provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such liabilities, obligations, losses, damages,
penalties, claims, demands, actions, judgments, suits, costs, expenses or
disbursements which (i) are determined by a court of competent jurisdiction by
final and nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Indemnitee or (ii) result from claims by a Borrower
against such Indemnitee that are successful on the merits as determined by a
court of competent jurisdiction. No Indemnitee shall be liable for any damages
arising from the use by others of any information or other materials obtained
through IntraLinks or other similar information transmission systems in
connection with this Agreement, nor shall any Indemnitee have any liability for
any indirect or consequential damages relating to this Agreement or any other
Loan Document or arising out of its activities in connection herewith or
therewith (whether before or after the Closing Date). All amounts due under this
Section 10.05 shall be payable within 20 Business Days after demand therefor.
The agreements in this Section 10.05 shall survive the resignation of the
Administrative Agent, the replacement of any Lender, the termination of the
Aggregate Commitments and the repayment, satisfaction or discharge of all the
other Obligations.
10.06 PAYMENTS SET ASIDE. To the extent that any payment by or on
behalf of the Company is made to the Administrative Agent or any Lender, or the
Administrative Agent or any Lender exercises its right of set-off, and such
payment or the proceeds of such set-off or any
49
part thereof is subsequently invalidated, declared to be fraudulent or
preferential, set aside or required (including pursuant to any settlement
entered into by the Administrative Agent or such Lender in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of
such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such set-off had not occurred, and (b) each Lender
severally agrees to pay to the Administrative Agent upon demand its applicable
share of any amount so recovered from or repaid by the Administrative Agent,
plus interest thereon from the date of such demand to the date such payment is
made at a rate per annum equal to the Federal Funds Rate from time to time in
effect.
10.07 SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that the Company may not assign or otherwise
transfer any of their rights or obligations hereunder without the prior written
consent of each Lender and no Lender may assign or otherwise transfer any of its
rights or obligations hereunder except (i) to an Eligible Assignee in accordance
with the provisions of Section 10.07(b), (ii) by way of participation in
accordance with the provisions of Section 10.07(d), (iii) by way of pledge or
assignment of a security interest subject to the restrictions of Sections
10.07(f) and (i), or (iv) to an SPC in accordance with the provisions of Section
10.07(h) (and any other attempted assignment or transfer by any party hereto
shall be null and void). Nothing in this Agreement, expressed or implied, shall
be construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the extent
provided in Section 10.07(d) and, to the extent expressly contemplated hereby,
the Indemnitees) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
(b) Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at the time owing to
it); provided that (i) except in the case of an assignment of the entire
remaining amount of the assigning Lender's Commitment and the Loans at the time
owing to it or in the case of an assignment to a Lender or an Affiliate of a
Lender, the aggregate amount of the Commitment (which for this purpose includes
Loans outstanding thereunder) subject to each such assignment, determined as of
the date the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent or, if "Trade Date" is specified in the
Assignment and Assumption, as of the Trade Date, shall not be less than
$5,000,000 unless each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Company otherwise consents (each
such consent not to be unreasonably withheld or delayed); (ii) each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations under this Agreement with respect to
the Loans or the Commitment assigned, (iii) any assignment of a Commitment must
be approved by the Administrative Agent unless the Person that is the proposed
assignee is itself a Lender (whether or not the proposed assignee would
otherwise qualify as an Eligible Assignee); and (iv) the parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Assumption, together with a processing and recordation fee of $3,500.
Subject to acceptance and recording thereof by the Administrative Agent pursuant
to Section
50
10.07(c), from and after the effective date specified in each Assignment and
Assumption, the Eligible Assignee thereunder shall be a party to this Agreement
and, to the extent of the interest assigned by such Assignment and Assumption,
have the rights and obligations of a Lender under this Agreement, and the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of the
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 3.01, 3.04, 3.05, 10.04 and 10.05 with respect to facts and
circumstances occurring prior to the effective date of such assignment). Upon
request, the Company (at its expense) shall execute and deliver a Note to the
assignee Lender. Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this Section 10.07(b) shall be
treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with Section
10.07(d).
(c) The Administrative Agent, acting solely for this purpose as an
agent of the Company, shall maintain at the Administrative Agent's Office a copy
of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts 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, and the Company, the Administrative Agent and the Lenders 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 Company
and any Lender, at any reasonable time and from time to time upon reasonable
prior notice.
(d) Any Lender may at any time, without the consent of, or notice
to, the Administrative Agent, sell participations to any Person (other than a
natural person or the Company or any of the Company's Affiliates or
Subsidiaries) (each, a "Participant") in all or a portion of such Lender's
rights and/or obligations under this Agreement (including all or a portion of
its Commitment and/or the Loans owing to it); provided that (i) unless a Default
or Event of Default has occurred and is continuing, the Company shall have
approved the sale of participations to such Person (such approval not to be
unreasonably withheld or delayed); (ii) such Lender's obligations under this
Agreement shall remain unchanged, (iii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iv) the Company, the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement. 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 this Agreement and to
approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any amendment,
waiver or other modification described in the first proviso to Section 10.01
that directly affects such Participant. Subject to Section 10.07(e), the Company
agree that each Participant shall be entitled to the benefits of Sections 3.01,
3.04 and 3.05 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to Section 10.07(b). To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 10.09 as
though it were a Lender, provided such Participant agrees to be subject to
Section 2.11 as though it were a Lender.
51
(e) A Participant shall not be entitled to receive any greater
payment under Section 3.01 or 3.04 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Company'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 3.01 unless
the Company is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Company, to comply with Section 10.15
as though it were a Lender.
(f) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement (including
under its Note, if any) to secure obligations of such Lender, including any
pledge or assignment to secure obligations to a Federal Reserve Bank; provided
that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
(g) As used herein, the following terms have the following
meanings:
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a
Lender; and (c) any other Person (other than a natural person) approved
by (i) the Administrative Agent, and (ii) unless a Default or an Event
of Default has occurred and is continuing, the Company (each such
approval not to be unreasonably withheld or delayed); provided that
notwithstanding the foregoing, "Eligible Assignee" shall not include
the Company or any of its Affiliates or Subsidiaries.
(h) Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Lender") may grant to a special purpose funding vehicle
identified as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Company (an "SPC") the option to provide all or any
part of any Committed Loan that such Granting Lender would otherwise be
obligated to make pursuant to this Agreement; provided that (i) nothing herein
shall constitute a commitment by any SPC to fund any Committed Loan, and (ii) if
an SPC elects not to exercise such option or otherwise fails to make all or any
part of such Committed Loan, the Granting Lender shall be obligated to make such
Committed Loan pursuant to the terms hereof; provided further that no such grant
to an SPC shall impose Taxes or Other Taxes on the Company. Each party hereto
hereby agrees that (i) neither the grant to any SPC nor the exercise by any SPC
of such option shall increase the costs or expenses or otherwise increase or
change the obligations of the Company under this Agreement (including its
obligations under Section 3.04), (ii) no SPC shall be liable for any indemnity
or similar payment obligation under this Agreement for which a Lender would be
liable, and (iii) the Granting Lender shall for all purposes, including the
approval of any amendment, waiver or other modification of any provision of any
Loan Document, remain the lender of record hereunder. The making of a Committed
Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to
the same extent, and as if, such Committed Loan were made by such Granting
Lender. In furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Agreement) that, prior to the
date that is one year and one day after the payment in full of all outstanding
commercial paper or other senior debt of any SPC, it will not institute against,
or join any other Person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency, or liquidation proceeding under the
laws of the United
52
States or any State thereof. Notwithstanding anything to the contrary contained
herein, any SPC may (i) with notice to, but without prior consent of the Company
and the Administrative Agent and without paying any processing fee therefor,
assign all or any portion of its right to receive payment with respect to any
Committed Loan to the Granting Lender and (ii) disclose on a confidential basis
any non-public information relating to its funding of Committed Loans to any
rating agency, commercial paper dealer or provider of any surety or Guarantee or
credit or liquidity enhancement to such SPC.
(i) Notwithstanding anything to the contrary contained herein, any
Lender that is a Fund may create a security interest in all or any portion of
the Loans owing to it and the Note, if any, held by it to the trustee for
holders of obligations owed, or securities issued, by such Fund as security for
such obligations or securities, provided that unless and until such trustee
actually becomes a Lender in compliance with the other provisions of this
Section 10.07, (i) no such pledge shall release the pledging Lender from any of
its obligations under the Loan Documents and (ii) such trustee shall not be
entitled to exercise any of the rights of a Lender under the Loan Documents even
though such trustee may have acquired ownership rights with respect to the
pledged interest through foreclosure or otherwise. For purposes of this Section
10.07(i), "Fund" means any Person (other than a natural person) that is (or will
be) engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
10.08 CONFIDENTIALITY. Each of the Administrative Agent and the
Lenders agree to maintain, and to cause its Affiliates (including any
Agent-Related Persons) to maintain, the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential); (b) to the
extent requested by any regulatory authority having jurisdiction over such
Person; (c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process; (d) to any other party to this Agreement; (e)
to the extent reasonably required, in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder; (f) subject to an agreement containing
provisions substantially the same as those of this Section 10.08, to (i) any
Eligible Assignee of or Participant in, or any prospective Eligible Assignee of
or Participant in, any of its rights or obligations under this Agreement or (ii)
any direct or indirect contractual counterparty or prospective counterparty (or
such contractual counterparty's or prospective counterparty's professional
advisor) to any credit derivative transaction relating to obligations of the
Company under the Loan Documents; (g) with the consent of the Company; or (h) to
the extent such Information (i) becomes publicly available other than as a
result of a breach of this Section 10.08 or (ii) becomes available to the
Administrative Agent or any Lender on a nonconfidential basis from a source
other than the Company; provided, however, that to the extent permitted by
applicable law or regulation, each of the Administrative Agent and the Lenders
agree to notify the Company prior to (if reasonably practicable) or concurrently
with its disclosure of such information to any third party pursuant to clauses
(c) and (f). In addition, the Administrative Agent and the Lenders may disclose
the existence of this Agreement and public information about this Agreement to
market data collectors, similar service providers to the lending industry, and
service providers to the Administrative Agent and the Lenders in
53
connection with the administration and management of this Agreement, the other
Loan Documents, the Commitments, and the Credit Extensions. For the purposes of
this Section 10.08, "Information" means all information received from the
Company relating to the Company or its business, other than any such information
that is available to the Administrative Agent or any Lender on a nonconfidential
basis prior to disclosure by the Company; provided that, in the case of
information received from the Company after the date hereof, such information is
clearly identified at the time of delivery as confidential. Any Person required
to maintain the confidentiality of Information as provided in this Section 10.08
shall be considered to have complied with its obligation to do so if such Person
has exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
10.09 SET-OFF. In addition to any rights and remedies of the Lenders
provided by law, upon the occurrence and during the continuance of any Event of
Default, each Lender is authorized at any time and from time to time, without
prior notice to the Company, any such notice being waived by the Company to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held by,
and other indebtedness at any time owing by, such Lender to or for the credit or
the account of the Company against any and all Obligations owing to such Lender
hereunder or under any other Loan Document, now or hereafter existing,
irrespective of whether or not the Administrative Agent or such Lender shall
have made demand under this Agreement or any other Loan Document and although
such Obligations may be contingent or unmatured or denominated in a currency
different from that of the applicable deposit or indebtedness. Each Lender
agrees promptly to notify the Company and the Administrative Agent after any
such set-off and application made by such Lender; provided, however, that the
failure to give such notice shall not affect the validity of such set-off and
application.
10.10 INTEREST RATE LIMITATION. Notwithstanding anything to the
contrary contained in any Loan Document, the interest paid or agreed to be paid
under the Loan Documents shall not exceed the maximum rate of non-usurious
interest permitted by applicable Law (the "Maximum Rate"). If the Administrative
Agent or any Lender shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal of the Loans or, if
it exceeds such unpaid principal, refunded to the Company. In determining
whether the interest contracted for, charged, or received by the Administrative
Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent
permitted by applicable Law, (a) characterize any payment that is not principal
as an expense, fee, or premium rather than interest, (b) exclude voluntary
prepayments and the effects thereof, and (c) amortize, prorate, allocate, and
spread in equal or unequal parts the total amount of interest throughout the
contemplated term of the Obligations hereunder.
10.11 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.12 INTEGRATION. This Agreement, together with the other Loan
Documents, comprises the complete and integrated agreement of the parties on the
subject matter hereof and thereof and supersedes all prior agreements, written
or oral, on such subject matter. In the event
54
of any conflict between the provisions of this Agreement and those of any other
Loan Document, the provisions of this Agreement shall control; provided that the
inclusion of supplemental rights or remedies in favor of the Administrative
Agent or the Lenders in any other Loan Document shall not be deemed a conflict
with this Agreement. Each Loan Document was drafted with the joint participation
of the respective parties thereto and shall be construed neither against nor in
favor of any party, but rather in accordance with the fair meaning thereof.
10.13 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made hereunder and in any other Loan Document or
other document delivered pursuant hereto or thereto or in connection herewith or
therewith shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied.
10.14 SEVERABILITY. If any provision of this Agreement or the other
Loan Documents is held to be illegal, invalid or unenforceable, (a) the
legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired thereby
and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10.15 TAX FORMS. (a) (i) Each Lender that is not a "United States
person" within the meaning of Section 7701(a)(30) of the Code (a "Foreign
Lender") shall deliver to the Administrative Agent, prior to receipt of any
payment subject to withholding under the Code (or upon accepting an assignment
of an interest herein), two duly signed completed copies of either IRS Form
W-8BEN or any successor thereto (relating to such Foreign Lender and entitling
it to an exemption from, or reduction of, withholding tax on all payments to be
made to such Foreign Lender by the Company pursuant to this Agreement) or IRS
Form W-8ECI or any successor thereto (relating to all payments to be made to
such Foreign Lender by the Company pursuant to this Agreement) or such other
evidence satisfactory to the Company and the Administrative Agent that such
Foreign Lender is entitled to an exemption from, or reduction of, U.S.
withholding tax, including any exemption pursuant to Section 881(c) of the Code.
Thereafter and from time to time, each such Foreign Lender shall (A) promptly
submit to the Administrative Agent such additional duly completed and signed
copies of one of such forms (or such successor forms as shall be adopted from
time to time by the relevant United States taxing authorities) as may then be
available under then current United States laws and regulations to avoid, or
such evidence as is satisfactory to the Company and the Administrative Agent of
any available exemption from or reduction of, United States withholding taxes in
respect of all payments to be made to such Foreign Lender by the Company
pursuant to this Agreement, (B) promptly notify the Administrative Agent of any
change in circumstances which would modify or render invalid any claimed
exemption or reduction, and (C) take such steps as shall not be materially
disadvantageous to it, in the reasonable judgment of such Lender, and as may be
reasonably
55
necessary (including the re-designation of its Lending Office) to avoid any
requirement of applicable Laws that the Company make any deduction or
withholding for taxes from amounts payable to such Foreign Lender.
(ii) Each Foreign Lender, to the extent it does not act or ceases
to act for its own account with respect to any portion of any sums paid or
payable to such Lender under any of the Loan Documents (for example, in the case
of a typical participation by such Lender), shall deliver to the Administrative
Agent on the date when such Foreign Lender ceases to act for its own account
with respect to any portion of any such sums paid or payable, and at such other
times as may be necessary in the determination of the Administrative Agent (in
the reasonable exercise of its discretion), (A) two duly signed completed copies
of the forms or statements required to be provided by such Lender as set forth
above, to establish the portion of any such sums paid or payable with respect to
which such Lender acts for its own account that is not subject to U.S.
withholding tax, and (B) two duly signed completed copies of IRS Form W-8IMY (or
any successor thereto), together with any information such Lender chooses to
transmit with such form, and any other certificate or statement of exemption
required under the Code, to establish that such Lender is not acting for its own
account with respect to a portion of any such sums payable to such Lender.
(iii) The Company shall not be required to pay any additional amount
to any Foreign Lender under Section 3.01 (A) with respect to any Taxes required
to be deducted or withheld on the basis of the information, certificates or
statements of exemption such Lender transmits with an IRS Form W-8IMY pursuant
to this Section 10.15(a) or (B) if such Lender shall have failed to satisfy the
foregoing provisions of this Section 10.15(a); provided that if such Lender
shall have satisfied the requirement of this Section 10.15(a) on the date such
Lender became a Lender or ceased to act for its own account with respect to any
payment under any of the Loan Documents, nothing in this Section 10.15(a) shall
relieve the Company of its obligation to pay any amounts pursuant to Section
3.01 in the event that, as a result of any subsequent change in any applicable
law, treaty or governmental rule, regulation or order, or any subsequent change
in the interpretation, administration or application thereof, such Lender is no
longer properly entitled to deliver forms, certificates or other evidence at a
subsequent date establishing the fact that such Lender or other Person for the
account of which such Lender receives any sums payable under any of the Loan
Documents is not subject to withholding or is subject to withholding at a
reduced rate.
(iv) The Administrative Agent may, without reduction, withhold any
Taxes required to be deducted and withheld from any payment under any of the
Loan Documents with respect to which the Company is not required to pay
additional amounts under this Section 10.15(a).
(b) Upon the request of the Administrative Agent, each Lender that
is a "United States person" within the meaning of Section 7701(a)(30) of the
Code shall deliver to the Administrative Agent two duly signed completed copies
of IRS Form W-9. If such Lender fails to deliver such forms, then the
Administrative Agent may withhold from any interest payment to such Lender an
amount equivalent to the applicable back-up withholding tax imposed by the Code,
without reduction.
56
(c) If any Governmental Authority asserts that the Administrative
Agent did not properly withhold or backup withhold, as the case may be, any tax
or other amount from payments made to or for the account of any Lender, such
Lender shall indemnify the Administrative Agent therefor, including all
penalties and interest, any taxes imposed by any jurisdiction on the amounts
payable to the Administrative Agent under this Section 10.15, and costs and
expenses (including Attorney Costs) of the Administrative Agent. The obligation
of the Lenders under this Section 10.15 shall survive the termination of the
Aggregate Commitments, repayment of all other Obligations hereunder and the
resignation of the Administrative Agent.
10.16 REPLACEMENT OF LENDERS. Under any circumstances set forth
herein providing that the Company shall have the right to replace a Lender as a
party to this Agreement, or if the Administrative Agent and the Company have
mutually determined that a Lender is a Defaulting Lender, in either case the
Company may, upon notice to such Lender and the Administrative Agent, replace
such Lender by causing such Lender to assign its Commitment (with the assignment
fee to be paid by the Company in such instance) pursuant to Section 10.07(b) to
one or more other Lenders or Eligible Assignees procured by the Company;
provided, however, that if the Company elects to exercise such right with
respect to any Lender pursuant to Section 3.06(b), it shall be obligated to
replace all Lenders that have made similar requests for compensation pursuant to
Section 3.01 or 3.04. The Company shall (i) pay in full all principal, interest,
fees and other amounts owing to such Lender through the date of replacement
(including any amounts payable pursuant to Section 3.05), and (ii) release such
Lender from its obligations under the Loan Documents. Any Lender being replaced
shall execute and deliver an Assignment and Assumption with respect to such
Lender's Commitment and outstanding Loans.
10.17 GOVERNING LAW.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, the LAW OF THE STATE OF CALIFORNIA applicable to agreements
made and to be performed entirely within such State; PROVIDED THAT THE
ADMINISTRATIVE AGENT AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER
FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF
CALIFORNIA OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF SUCH STATE, AND
BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE COMPANY, THE ADMINISTRATIVE
Agent AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO
THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE COMPANY, THE ADMINISTRATIVE
Agent AND EACH LENDER 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 BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO.
THE COMPANY, THE ADMINISTRATIVE Agent AND EACH LENDER WAIVES PERSONAL SERVICE OF
ANY SUMMONS, COMPLAINT OR OTHER
57
PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH
STATE.
10.18 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT
OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS SECTION 10.18 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT
OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
58
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
MCKESSON CORPORATION
By: /s/ William R. Graber
---------------------------------------------------
Name: William R. Graber
Title: Sr. Vice President & Chief Financial Officer
and
By: /s/ Nicholas A. Loiacono
---------------------------------------------------
Name: Nicholas A. Loiacono
Title: Vice President and Treasurer
BANK OF AMERICA, N.A., as
Administrative Agent
By: /s/ Kevin Ahart
---------------------------------------------------
Name: Kevin Ahart
Title: Agency Management Officer
BANK OF AMERICA, N.A., as a Lender
By: /s/ Richard L. Nichols Jr.
---------------------------------------------------
Name: Richard L. Nichols Jr.
Title: Managing Director
JPMORGAN CHASE BANK, as
a Lender
By: /s/ William Rindfuss
---------------------------------------------------
Name: William Rindfuss
Title: Vice President
WACHOVIA BANK, NATIONAL
ASSOCIATION, as
a Lender
By: /s/ Jeanette A. Griffin
---------------------------------------------------
Name: Jeanette A. Griffin
Title: Vice President
BANK ONE, NA, as a Lender
By: /s/ Kandis A. Jaffrey
---------------------------------------------------
Name: Kandis A. Jaffrey
Title: Director
US BANK NATIONAL ASSOCIATION, as
a Lender
By: /s/ Douglas A. Rich
---------------------------------------------------
Name: Douglas A. Rich
Title: Vice President
TORONTO DOMINION (TEXAS), INC., as
a Lender
By: /s/ Jano Nixon
---------------------------------------------------
Name: Jano Nixon
Title: Vice President
THE BANK OF NOVA SCOTIA, as
a Lender
By: /s/ Jon Burckin
---------------------------------------------------
Name: Jon Burckin
Title: Managing Director
LEHMAN BROTHERS BANK, FSB, as
a Lender
By: /s/ Gary T. Taylor
---------------------------------------------------
Name: Gary T. Taylor
Title: Vice President
WELLS FARGO BANK, NA, as a Lender
By: /s/ Lauren Downum
---------------------------------------------------
Name: Lauren Downum
Title: Vice President
THE BANK OF NEW YORK, as
a Lender
By: /s/ Rebecca K. Levine
---------------------------------------------------
Name: Rebecca K. Levine
Title: Vice President
SUNTRUST BANK, as a Lender
By: /s/ William D. Priester
---------------------------------------------------
Name: William D. Priester
Title: Vice President
FIFTH THIRD BANK, as
a Lender
By: /s/ Jeff Assenmacher
---------------------------------------------------
Name: Jeff Assenmacher
Title: Large Corporate Officer
SCHEDULE 2.01
COMMITMENTS AND PRO RATA SHARES
LENDER TOTAL COMMITMENT TOTAL PRO RATA SHARE
- -----------------------------------------------------------------------------------
Bank of America, N.A. $ 105,000,000.00 19.090909091%
JPMorgan Chase Bank $ 100,000,000.00 18.181818182%
Wachovia Bank, National Association $ 87,500,000.00 15.909090909%
Bank One, NA $ 62,500,000.00 11.363636364%
US Bank National Association $ 37,500,000.00 6.818181818%
Toronto Dominion (Texas), Inc. $ 37,500,000.00 6.818181818%
The Bank of Nova Scotia $ 37,500,000.00 6.818181818%
Lehman Brothers Bank, FSB $ 25,000,000.00 4.545454545%
Wells Fargo Bank, NA $ 20,000,000.00 3.636363636%
The Bank of New York $ 12,500,000.00 2.272727273%
SunTrust Bank $ 12,500,000.00 2.272727273%
Fifth Third Bank $ 12,500,000.00 2.272727273%
TOTALS: $ 550,000,000.00 100.000000000%
1
SCHEDULE 5.11
SUBSIDIARIES
AND INDEBTEDNESS SECURED BY LIENS
Part (a). Subsidiaries.
1258741 Ontario Inc.
3068312 Nova Scotia ULC
646543 B.C. Ltd
650032 B.C. Ltd.
Access Health UK Ltd.
A.L.I. Holdings LLC
A.L.I. Imaging Systems Corp.
A.L.I. Technologies (Deutschland) GmbH
A.L.I. Technologies (Europe) B.V.
A.L.I. Technologies (International) LLC
A.L.I. Technologies Inc.
Beldere Corporation
California Golden State Finance Company
CGSF Funding Corporation
CPG Industries, Inc.
Crocker Plaza Company
Data-Med Computer Services Ltd.
DC Land Company
DCAZ Land Company
Foremost Homes Hawaii, Ltd.
Foremost Iran Corporation
Foremost Shir, Inc.
Foremost Tehran, Inc.
Golden State Insurance Company Limited
Good Neighbour Pharmacy Ltd.
Goodman Manufacturing Company
HBO & Company (ST&SW) Ltd.
HBO & Company (VI), Inc.
HBOC Medical Ltd.
Health Mart Systems, Inc.
HF Land Company
J. Knipper and Company, Inc. *
KWS & P, Inc.
KWS & P / SFA, Inc.
* Sale pending
1
MCK Acquisition Corp.
McKesson (Cayman Islands) Inc.
McKesson Asia-Pacific PTY Limited
McKesson Automation Canada Inc.
McKesson Automation Inc.
McKesson Automation Systems Inc.
McKesson BioServices Corporation
McKesson Canada Alberta Limited
McKesson Canada Corporation
McKesson Canada Health Care Partners Ltd.
McKesson Canada Inc.
McKesson Canada Limited
McKesson Capital Corp.
McKesson Development Corp.
McKesson Finance Company of Canada
McKesson Financial Holdings Limited
McKesson Health Solutions Arizona Inc.
McKesson Health Solutions Canada Inc.
McKesson Health Solutions Holdings Inc.
McKesson Health Solutions LLC
McKesson Health Solutions Puerto Rico Inc.
McKesson Health Solutions Texas Inc.
McKesson Information Solutions Canada Ltd.
McKesson Information Solutions Capital S.a.r.l.
McKesson Information Solutions Finance S.a.r.l.
McKesson Information Solutions France SA
McKesson Information Solutions (Gibraltar) Ltd.
McKesson Information Solutions Holdings France S.a.r.l.
McKesson Information Solutions Holdings Limited
McKesson Information Solutions Holdings S.a.r.l.
McKesson Information Solutions Inc.
McKesson Information Solutions International S.a.r.l.
McKesson Information Solutions Ireland Limited
McKesson Information Solutions (Netherlands) B.V.
McKesson Information Solutions UK Limited
McKesson International Capital S.a.r.l.
McKesson (International) (Gibraltar) Limited
McKesson International Finance S.a.r.l.
McKesson International Holdings II S.a.r.l.
McKesson International Holdings III S.a.r.l.
McKesson International Holdings Limited
McKesson International Holdings S.a.r.l.
McKesson International Holdings SRL
McKesson International S.a.r.l.
McKesson International SRL
McKesson International Ireland Limited
McKesson International LLC
McKesson International Nova Scotia ULC
McKesson Medical-Surgical FDT Inc.
McKesson Medical-Surgical Holdings Inc.
McKesson Medical-Surgical Inc.
McKesson Medical-Surgical Iowa Inc.
McKesson Medical-Surgical Iowa Supply Inc.
McKesson Medical-Surgical Maine Inc.
McKesson Medical-Surgical MediMart Inc.
McKesson Medical-Surgical MediNet Inc.
2
McKesson Medical-Surgical Minnesota Inc.
McKesson Medical-Surgical Minnesota Supply Inc.
McKesson Medical-Surgical TBC Inc.
McKesson Medication Management Holdings Inc.
McKesson Medication Management LLC
McKesson Medication Management Puerto Rico Inc.
McKesson New Zealand Limited
McKesson Property Company, Inc.
McKesson Services Inc.
McKesson Specialty Corporation
McKesson Specialty Pharmaceuticals LLC
McKesson Trading Company
McKesson Transportation Systems, Inc.
McKessonHBOC (Gibraltar) Limited
Medical Imaging SRL
Penn-Chem Corporation
Pharmaceutical Support Services, Inc.
Purchasing Alliance for Clinical Therapeutics, LLC
Roth Medical Services, Inc.
VPI Gezondheidszorg B.V.
Zee Medical Canada, Inc.
Zee Medical, Inc.
Part (b). Indebtedness in Excess of $25,000,000 Secured by Liens.
As of August 31, 2002, the Company and its Subsidiaries had an
outstanding debt of approximately $16,186,500 for borrowed money with respect to
the Company's headquarters building at One Post Street in San Francisco,
California (the "Building"). This constitutes 50% of the total amount
outstanding (approximately $32,373,000) under the mortgage on the Building. The
Company's wholly owned subsidiary, Crocker Plaza Company, owns an undivided 50%
interest in the property that is subject to the mortgage and, under the terms of
the mortgage documents, is liable for 50% of the mortgage debt. However, the
related Lien (securing the obligations of both Crocker Plaza Company and the
co-owner) attaches to the entire property and, as a result, the total amount
outstanding under the mortgage is "Indebtedness" of the Company and its
Subsidiaries pursuant to clause (h) of the definition of that term in this
Agreement, notwithstanding that neither the Company nor its Subsidiary is
obligated to pay the 50% portion of the mortgage debt that is owed by the
property's co-owner.
3
SCHEDULE 10.02
ADMINISTRATIVE AGENT'S OFFICE,
CERTAIN ADDRESSES FOR NOTICES
COMPANY:
McKesson Corporation
One Post Street
San Francisco, CA 94104-5296 U.S.A.
Attention: Nicholas A. Loiacono, Vice President and Treasurer
Telephone: (415) 983-9339
Facsimile: (415) 983-8826
Electronic mail: nicholas.loiacono@mckesson.com
Website address: www.mckesson.com
ADMINISTRATIVE AGENT:
Administrative Agent's Contact for Payments and Requests for Credit Extensions:
Bank of America, N.A.
101 N. Tryon Street
Mail Code: NC1-001-15-04
Charlotte, North Carolina 28255-0001
Attention: Wade Duncan
Telephone: (704) 388-2374
Facsimile: (704) 409-0619
Electronic Mail: wade.duncan@bankofamerica.com
Account No.: 1366212250600
Ref: McKesson Corp
ABA# 053000196
Other Notices as Administrative Agent:
Bank of America, N.A.
Agency Management
1455 Market Street
Mail Code: CA5-701-05-19
San Francisco, CA 94103
Attention: Kevin Ahart
Telephone: (415) 436-2750
Facsimile: (415) 503-5000
Electronic Mail: kevin.ahart@bankofamerica.com
1
EXHIBIT A
FORM OF COMMITTED LOAN NOTICE
Date: ___________, _____
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of
September 30, 2002 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the "Agreement;" the terms defined
therein being used herein as therein defined), among McKesson Corporation, a
Delaware corporation, the Lenders from time to time party thereto, and Bank of
America, N.A., as Administrative Agent.
The undersigned hereby requests (select one):
[ ] A Borrowing of Revolving Loans [ ] A conversion of Loans
[ ] A continuation of Loans [ ] Borrowing of Term Loans
1. On ___________________________________(a Business Day).
2. In the amount of $___________________.
3. Comprised of [Eurodollar Rate Loans] [Base Rate Loans]. [Type
of Committed Loan requested]
4. For Eurodollar Rate Loans: with an Interest Period of________
months.
[The Borrowing requested herein complies with the proviso to the first
sentence of Section 2.01 of the Agreement.]
MCKESSON CORPORATION
By: _______________________
Name: _____________________
Title: ____________________
A-1
EXHIBIT B
FORM OF NOTE
__________________
FOR VALUE RECEIVED, the undersigned (the "Company"), hereby promises to
pay to _____________________ or registered assigns (the "Lender"), in accordance
with the provisions of the Agreement (as hereinafter defined), the principal
amount of each Loan from time to time made by the Lender to the Company under
that certain Credit Agreement, dated as of September 30, 2002 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to
time, the "Agreement;" the terms defined therein being used herein as therein
defined), among the Company, the Lenders from time to time party thereto, and
Bank of America, N.A., as Administrative Agent.
The Company promises to pay interest on the unpaid principal amount of
each Loan from the date of such Loan until such principal amount is paid in
full, at such interest rates and at such times as provided in the Agreement. All
payments of principal and interest shall be made to the Administrative Agent for
the account of the Lender in Dollars in immediately available funds at the
Administrative Agent's Office. If any amount is not paid in full when due
hereunder, such unpaid amount shall bear interest, to be paid upon demand, from
the due date thereof until the date of actual payment (and before as well as
after judgment) computed at the per annum rate set forth in the Agreement.
This Note is one of the Notes referred to in the Agreement, is entitled
to the benefits thereof and may be prepaid in whole or in part subject to the
terms and conditions provided therein. Upon the occurrence and continuation of
one or more of the Events of Default specified in the Agreement, all amounts
then remaining unpaid on this Note shall become, or may be declared to be,
immediately due and payable all as provided in the Agreement. Loans made by the
Lender shall be evidenced by one or more loan accounts or records maintained by
the Lender in the ordinary course of business. The Lender may also attach
schedules to this Note and endorse thereon the date, amount and maturity of its
Loans and payments with respect thereto.
The Company, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this Note.
B-1
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF CALIFORNIA.
MCKESSON CORPORATION
By: _______________________
Name: _____________________
Title: ____________________
B-2
LOANS AND PAYMENTS WITH RESPECT THERETO
AMOUNT OF
PRINCIPAL OR OUTSTANDING
END OF INTEREST PRINCIPAL
TYPE OF AMOUNT OF INTEREST PAID THIS BALANCE NOTATION
DATE LOAN MADE LOAN MADE PERIOD DATE THIS DATE MADE BY
- ------------------------------------------------------------------------------------------------------------------------------
__________ __________ __________ __________ __________ __________ __________
__________ __________ __________ __________ __________ __________ __________
__________ __________ __________ __________ __________ __________ __________
__________ __________ __________ __________ __________ __________ __________
__________ __________ __________ __________ __________ __________ __________
__________ __________ __________ __________ __________ __________ __________
__________ __________ __________ __________ __________ __________ __________
__________ __________ __________ __________ __________ __________ __________
__________ __________ __________ __________ __________ __________ __________
__________ __________ __________ __________ __________ __________ __________
__________ __________ __________ __________ __________ __________ __________
__________ __________ __________ __________ __________ __________ __________
__________ __________ __________ __________ __________ __________ __________
__________ __________ __________ __________ __________ __________ __________
__________ __________ __________ __________ __________ __________ __________
__________ __________ __________ __________ __________ __________ __________
__________ __________ __________ __________ __________ __________ __________
__________ __________ __________ __________ __________ __________ __________
EXHIBIT C
OPINION MATTERS
Consistent with opinions under the Existing Agreements, the matters
contained in the following Sections of the Agreement should be covered by the
legal opinion:
- Section 5.01(a) and (b)
- Section 5.02
- Section 5.03
- Section 5.04
- Section 5.05
- Section 5.07
- Section 5.09
C-1
EXHIBIT D
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date: _______,
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of
September 30, 2002 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the "Agreement;" the terms defined
therein being used herein as therein defined), among McKesson Corporation, a
Delaware corporation (the "Company"), the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent.
The undersigned Responsible Officer hereby certifies as of the date
hereof that he/she is the__________________________ of the Company, and that, as
such, he/she is authorized to execute and deliver this Certificate to the
Administrative Agent on the behalf of the Company, and that:
[Use following paragraph 1 for fiscal YEAR-END financial statements]
1. Attached hereto as Schedule 1 are the year-end audited
financial statements required by Section 6.01(a) of the Agreement for the fiscal
year of the Company ended as of the above date, together with the report and
opinion of an independent certified public accountant required by such section.
[Use following paragraph 1 for fiscal QUARTER-END financial statements]
1. Attached hereto as Schedule 1 are the unaudited financial
statements required by Section 6.01(b) of the Agreement for the fiscal quarter
of the Company ended as of the above date. Such financial statements fairly
present the financial condition, results of operations and cash flows of the
Company and its Subsidiaries in accordance with GAAP as at such date and for
such period, subject only to normal year-end audit adjustments and the absence
of footnotes.
2. The undersigned has reviewed and is familiar with the terms of
the Agreement and has made, or has caused to be made under his/her supervision,
a detailed review of the transactions and condition (financial or otherwise) of
the Company during the accounting period covered by the attached financial
statements.
3. A review of the activities of the Company during such fiscal
period has been made under the supervision of the undersigned with a view to
determining whether during such fiscal period the Company performed and observed
all its Obligations under the Loan Documents, and
[SELECT ONE:]
D-1
[TO THE BEST KNOWLEDGE OF THE UNDERSIGNED DURING SUCH FISCAL PERIOD,
THE COMPANY PERFORMED AND OBSERVED EACH COVENANT AND CONDITION OF THE LOAN
DOCUMENTS APPLICABLE TO IT.]
--OR--
[THE FOLLOWING COVENANTS OR CONDITIONS HAVE NOT BEEN PERFORMED OR
OBSERVED AND THE FOLLOWING IS A LIST OF EACH SUCH DEFAULT AND ITS NATURE AND
STATUS:]
4. The representations and warranties of the Company contained in
Article V of the Agreement, or which are contained in any document furnished at
any time under or in connection with the Loan Documents, are true and correct on
and as of the date hereof, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they are true
and correct as of such earlier date, and except for purposes of this Compliance
Certificate, the representations and warranties contained in Section 5.08(a) of
the Agreement shall be deemed to refer to the most recent statements furnished
pursuant to clauses (a) and (b) respectively, of Section 6.01 of the Agreement,
including the statements in connection with which the Compliance Certificate is
delivered.
5. The financial covenant analyses and information set forth on
Schedule 2 attached hereto are true and accurate on and as of the date of this
Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of __________________ , ____________.
MCKESSON CORPORATION
By: _______________________
Name: _____________________
Title: ____________________
D-2
For the Quarter/Year ended ___________________("Statement Date")
SCHEDULE 2
to the Compliance Certificate
($ in 000's)
Section 7.04:
Maximum Total Debt to
Capitalization Ratio
1. Total Capitalization
(a) Total Debt $________
(b) Capital stock and additional paid-in-capital $________
(c) Retained earnings (accumulated deficits) $________
(d) Sum of (a), (b) and (c): $________
2. Ratio of Total Debt (Item 1(a)) to
Total Capitalization (Item 1(d)): _____:_____
3. Maximum Ratio Permitted under Section 7.04: 0.565:1.00
D-3
EXHIBIT E
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this "Assignment and Assumption") is
dated as of the Effective Date set forth below and is entered into by and
between [Insert name of Assignor] (the "Assignor") and [Insert name of Assignee]
(the "Assignee"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (the "Credit
Agreement"), receipt of a copy of which is hereby acknowledged by the Assignee.
The Standard Terms and Conditions set forth in Annex 1 attached hereto are
hereby agreed to and incorporated herein by reference and made a part of this
Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
the Administrative Agent as contemplated below (i) all of the Assignor's rights
and obligations as a Lender under the Credit Agreement and any other documents
or instruments delivered pursuant thereto to the extent related to the amount
and percentage interest identified below of all of such outstanding rights and
obligations of the Assignor under the respective facilities identified below
(including, without limitation, Guarantees included in such facilities) and (ii)
to the extent permitted to be assigned under applicable law, all claims, suits,
causes of action and any other right of the Assignor (in its capacity as a
Lender) against any Person, whether known or unknown, arising under or in
connection with the Credit Agreement, any other documents or instruments
delivered pursuant thereto or the loan transactions governed thereby or in any
way based on or related to any of the foregoing, including, but not limited to,
contract claims, tort claims, malpractice claims, statutory claims and all other
claims at law or in equity related to the rights and obligations sold and
assigned pursuant to clause (i) above (the rights and obligations sold and
assigned pursuant to clauses (i) and (ii) above being referred to herein
collectively as, the "Assigned Interest"). Such sale and assignment is without
recourse to the Assignor and, except as expressly provided in this Assignment
and Assumption, without representation or warranty by the Assignor.
1. Assignor: ______________________________
2. Assignee: ______________________________ [and is an
Affiliate of [identify Lender]]
3. Borrower: McKesson Corporation
4. Administrative Agent: Bank of America, N.A., as the administrative
agent under the Credit Agreement
5. Credit Agreement: The Credit Agreement, dated as of September 30, 2002,
among McKesson Corporation, the Lenders parties
thereto, Bank of America, N.A., as Administrative
Agent, and the other agents parties thereto
E-1
6. Assigned Interest:
Aggregate
Amount of Amount of Percentage
Commitment Commitment Assigned of
for all Lenders* Assigned* Commitment(1)
- ---------------------------------------------------------------------------
$________________ $________________ ______________%
$________________ $________________ ______________%
$________________ $________________ ______________%
[7. Trade Date: __________________](2)
Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT
AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed
to:
ASSIGNOR
[NAME OF ASSIGNOR]
By: _____________________________
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By: _____________________________
Title:
- --------------
* Amount to be adjusted by the counterparties to take into account
any payments or prepayments made between the Trade Date and the Effective Date.
(1) Set forth, to at least 9 decimals, as a percentage of the
Commitment of all Lenders thereunder.
(2) To be completed if the Assignor and the Assignee intend that the
minimum assignment amount is to be determined as of the Trade Date.
E-2
Consented to and Accepted:
Bank of America, N.A., as
Administrative Agent
By: _________________________________
Title:
Consented to:
McKesson Corporation
By: _________________________________
Title:
E-3
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
CREDIT AGREEMENT
DATED AS OF SEPTEMBER 30, 2002
AMONG
MCKESSON CORPORATION, THE LENDERS PARTY THERETO AND BANK OF
AMERICA, N.A., AS ADMINISTRATIVE AGENT
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1. Assignor. The Assignor (a) represents and warrants
that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the
Assigned Interest is free and clear of any lien, encumbrance or other adverse
claim and (iii) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and Assumption and to
consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or representations
made in or in connection with the Credit Agreement or any other Loan Document,
(ii) the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of the Company, any of its Subsidiaries or Affiliates or any other
Person obligated in respect of any Loan Document or (iv) the performance or
observance by the Company, any of its Subsidiaries or Affiliates or any other
Person of any of their respective obligations under any Loan Document.
1.2. Assignee. The Assignee (a) represents and warrants
that (i) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby and to become a Lender under the Credit
Agreement, (ii) it meets all requirements of an Eligible Assignee under the
Credit Agreement (subject to receipt of such consents as may be required under
the Credit Agreement), (iii) from and after the Effective Date, it shall be
bound by the provisions of the Credit Agreement as a Lender thereunder and, to
the extent of the Assigned Interest, shall have the obligations of a Lender
thereunder, (iv) it has received a copy of the Credit Agreement, together with
copies of the most recent financial statements delivered pursuant to Section
6.01 thereof, as applicable, and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Assumption and to purchase the Assigned Interest on the
basis of which it has made such analysis and decision independently and without
reliance on the Administrative Agent or any other Lender, and (v) if it is a
Foreign Lender, attached hereto is any documentation required to be delivered by
it pursuant to the terms of the Credit Agreement, duly completed and executed by
the Assignee; and (b) agrees that (i) it will, independently and without
reliance on the Administrative Agent, the Assignor or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in accordance with their
terms all of the
Annex-1
obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender.
2. Payments. From and after the Effective Date, the
Administrative Agent shall make all payments in respect of the Assigned interest
(including payments of principal, interest, fees and other amounts) to the
Assignee whether such amounts have accrued prior to or on or after the Effective
Date. The Assignor and the Assignee shall make all appropriate adjustments in
payments by the Administrative Agent for periods prior to the Effective Date or
with respect to the making of this assignment directly between themselves.
3. General Provisions. This Assignment and Assumption
shall be binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns. This Assignment and Assumption may be
executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a
manually executed counterpart of this Assignment and Assumption. This Assignment
and Assumption shall be governed by, and construed in accordance with, the law
of the State of California.
Annex-2