Exhibit 10.03
CARDINAL HEALTH, INC.
FIVE-YEAR CREDIT AGREEMENT
DATED AS OF MARCH 27, 2003
THE SUBSIDIARY BORROWERS PARTY HERETO,
THE LENDERS PARTY HERETO
AND
BANK ONE, NA, AS ADMINISTRATIVE AGENT
BANK OF AMERICA N.A., AS SYNDICATION AGENT
WACHOVIA BANK, NATIONAL ASSOCIATION, AS SYNDICATION AGENT
BARCLAYS BANK PLC, AS DOCUMENTATION AGENT
CREDIT SUISSE FIRST BOSTON, AS DOCUMENTATION AGENT
DEUTSCHE BANK SECURITIES, INC., AS DOCUMENTATION AGENT
BANC ONE CAPITAL MARKETS, INC., AS LEAD ARRANGER AND BOOK MANAGER
TABLE OF CONTENTS
Article I. DEFINITIONS................................................................................ 1
Article II. THE CREDITS............................................................................... 17
2.1 Commitments of the Lenders and Swing Line Facility.................................. 17
2.2 Determination of Dollar Amounts; Termination........................................ 21
2.3 Ratable Loans....................................................................... 21
2.4 Types of Advances................................................................... 21
2.5 Facility Fee; Reductions in Aggregate Commitment; Utilization Fee................... 21
2.6 Minimum Amount of Each Advance...................................................... 22
2.7 Prepayments......................................................................... 22
2.8 Method of Selecting Types and Interest Periods for New Advances..................... 23
2.9 Conversion and Continuation of Outstanding Advances................................. 23
2.10 Method of Borrowing................................................................. 24
2.11 Changes in Interest Rate, etc....................................................... 25
2.12 Rates Applicable After Default...................................................... 25
2.13 Method of Payment................................................................... 25
2.14 Noteless Agreement; Evidence of Indebtedness........................................ 26
2.15 Telephonic Notices.................................................................. 27
2.16 Interest Payment Dates; Interest and Fee Basis...................................... 27
2.17 Notification of Advances, Interest Rates, Prepayments and Commitment Reductions..... 27
2.18 Lending Installations............................................................... 28
2.19 Non-Receipt of Funds by the Administrative Agent.................................... 28
2.20 Facility LCs........................................................................ 29
2.21 Market Disruption................................................................... 33
2.22 Judgment Currency................................................................... 33
2.23 Payment Provisions Relating to the Euro............................................. 33
2.24 Redenomination and Alternative Currencies........................................... 34
2.25 Replacement of Lender............................................................... 34
2.26 Application of Payments with Respect to Defaulting Lenders.......................... 35
Article III. YIELD PROTECTION; TAXES.................................................................. 35
3.1 Yield Protection.................................................................... 35
3.2 Changes in Capital Adequacy Regulations............................................. 36
3.3 Availability of Types of Advances................................................... 37
3.4 Funding Indemnification............................................................. 37
3.5 Taxes............................................................................... 37
3.6 Lender Statements; Survival of Indemnity............................................ 39
Article IV. CONDITIONS PRECEDENT...................................................................... 39
4.1 Initial Credit Extension............................................................ 39
4.2 Each Credit Extension............................................................... 41
Article V. REPRESENTATIONS AND WARRANTIES............................................................. 41
5.1 Existence and Standing.............................................................. 41
5.2 Authorization and Validity.......................................................... 42
5.3 No Conflict; Government Consent..................................................... 42
5.4 Financial Statements................................................................ 42
5.5 Material Adverse Change............................................................. 42
5.6 Taxes............................................................................... 42
5.7 Litigation and Contingent Obligations............................................... 43
5.8 Subsidiaries........................................................................ 43
5.9 ERISA............................................................................... 43
5.10 Accuracy of Information............................................................. 44
5.11 Regulation U........................................................................ 44
5.12 Maintenance of Property............................................................. 44
5.13 Insurance........................................................................... 44
5.14 Plan Assets; Prohibited Transactions................................................ 44
5.15 Environmental Matters............................................................... 44
5.16 Investment Company Act.............................................................. 45
5.17 Public Utility Holding Company Act.................................................. 45
5.18 Default............................................................................. 45
5.19 Reportable Transaction.............................................................. 45
Article VI. COVENANTS................................................................................. 45
6.1 Financial Reporting................................................................. 45
6.2 Use of Proceeds..................................................................... 46
6.3 Notice of Default................................................................... 46
6.4 Conduct of Business; Maintenance of Property........................................ 46
6.5 Taxes............................................................................... 47
6.6 Insurance........................................................................... 47
6.7 Compliance with Laws................................................................ 47
6.8 Inspection.......................................................................... 47
6.9 Merger.............................................................................. 47
6.10 Sale of Assets...................................................................... 47
6.11 Investments......................................................................... 48
6.12 Liens............................................................................... 48
6.13 Subsidiary Indebtedness. ........................................................... 50
6.14 Limitation on Restrictions on Significant Subsidiary Distributions. ................ 51
6.15 Contingent Obligations.............................................................. 51
6.16 Minimum Net Worth................................................................... 52
Article VII. DEFAULTS................................................................................. 52
Article VIII. ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES.......................................... 53
8.1 Acceleration; Facility LC Collateral Account........................................ 53
8.2 Amendments.......................................................................... 54
8.3 Preservation of Rights.............................................................. 55
Article IX. GENERAL PROVISIONS........................................................................ 56
9.1 Survival of Representations......................................................... 56
9.2 Governmental Regulation............................................................. 56
9.3 Headings............................................................................ 56
9.4 Entire Agreement.................................................................... 56
9.5 Several Obligations; Benefits of this Agreement..................................... 56
9.6 Expenses; Indemnification........................................................... 56
9.7 Numbers of Documents................................................................ 57
9.8 Accounting.......................................................................... 57
9.9 Severability of Provisions.......................................................... 57
9.10 Nonliability of Lenders............................................................. 57
9.11 Confidentiality; Disclosure......................................................... 58
9.12 Nonreliance......................................................................... 58
Article X. THE AGENT.................................................................................. 58
10.1 Appointment; Nature of Relationship................................................. 58
10.2 Powers.............................................................................. 59
10.3 General Immunity.................................................................... 59
10.4 No Responsibility for Loans, Recitals, etc.......................................... 59
10.5 Action on Instructions of Lenders................................................... 59
10.6 Employment of Agents and Counsel.................................................... 60
10.7 Reliance on Documents; Counsel...................................................... 60
10.8 Administrative Agent's Reimbursement and Indemnification............................ 60
10.9 Notice of Default................................................................... 61
10.10 Rights as a Lender.................................................................. 61
10.11 Lender Credit Decision.............................................................. 61
10.12 Successor Administrative Agent...................................................... 61
10.13 Administrative Agent's Fee.......................................................... 62
10.14 Delegation to Affiliates............................................................ 62
10.15 Administrative Agent, Syndication Agents, Documentation Agents, Lead Arranger, etc.. 62
Article XI. SETOFF; RATABLE PAYMENTS.................................................................. 62
11.1 Setoff.............................................................................. 62
11.2 Ratable Payments.................................................................... 63
Article XII. BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS........................................ 63
12.1 Successors and Assigns.............................................................. 63
12.2 Participations...................................................................... 63
12.3 Assignments......................................................................... 64
12.4 Dissemination of Information........................................................ 65
12.5 Tax Treatment....................................................................... 65
12.6 Transfer to an SPC.................................................................. 66
Article XIII. NOTICES................................................................................. 66
13.1 Notices............................................................................. 66
13.2 Change of Address................................................................... 67
Article XIV. COUNTERPARTS............................................................................. 67
Article XV. CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY
TRIAL......................................................................................... 67
15.1 CHOICE OF LAW....................................................................... 67
15.2 CONSENT TO JURISDICTION............................................................. 67
15.3 WAIVER OF JURY TRIAL................................................................ 68
Exhibits:
Exhibit A Form of Opinion
Exhibit B Compliance Certificate
Exhibit C Assignment Agreement
Exhibit D Loan/Credit Related Money Transfer instructions
Exhibit E Note
Exhibit F Swingline Note
Schedules:
Pricing Schedule
Schedule 1 Subsidiary and Other Investments
Schedule 3 Euro currency Payment Offices of the Agent
Schedule 4 Lending Installations
Schedule 5 Alternate Currency Commitment
Schedule 6 Multicurrency Commitment
Schedule 7 Litigation/Contingent Liabilities
Schedule 8 Persons Authorized to Give Telephone Instructions
FIVE-YEAR CREDIT AGREEMENT
This Agreement, dated as of March 27, 2003, is among Cardinal Health,
Inc. (the "Company"), certain Subsidiaries of the Company (the "Subsidiary
Borrowers", and together with the Company, the "Borrowers"), the lenders party
hereto from time to time (the "Lenders"), and Bank One, NA, a national banking
association having its principal office in Chicago, Illinois, as Administrative
Agent and as LC Issuer. The parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
As used in this Agreement:
"364-Day Credit Agreement" means the 364-Day Credit Agreement dated the
date hereof between the Company, the Subsidiary Borrowers party thereto, the
Lenders and the Administrative Agent, as Administrative Agent, as such agreement
may be amended, restated or extended from time to time.
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Company or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any firm, corporation or limited liability
company, or division thereof, whether through purchase of assets, merger or
otherwise or (ii) directly or indirectly acquires (in one transaction or as the
most recent transaction in a series of transactions) at least a majority (in
number of votes) of the securities of a corporation which have ordinary voting
power for the election of directors (other than securities having such power
only by reason of the happening of a contingency) or a majority (by percentage
or voting power) of the outstanding ownership interests of a partnership or
limited liability company.
"Adjusted Tangible Net Worth" means, as of any date, (i) the amount of
any capital stock, paid in capital and similar equity accounts plus (or minus in
the case of a deficit) the capital surplus and retained earnings of the Company
and its consolidated Subsidiaries, but excluding the amount of any foreign
currency translation adjustment account shown as a capital account, less (ii)
the net book value of all items of the following character which are included in
the assets of the Company and its consolidated Subsidiaries: (a) goodwill,
including, without limitation, the excess of cost over book value of any asset,
(b) organization or experimental expenses, (c) unamortized debt discount and
expense, (d) patents, trademarks, trade names and copyrights, (e) treasury
stock, (f) franchises, licenses and permits, and (g) other assets which are
deemed intangible assets under Agreement Accounting Principles.
"Administrative Agent" means Bank One, NA in its capacity as
contractual representative of the Lenders pursuant to Article X, and not in its
individual capacity as a Lender, and any successor Administrative Agent
appointed pursuant to Article X.
"Advance" means a borrowing hereunder, (i) made by one or more Lenders
on the same Borrowing Date, or (ii) converted or continued by the Lenders on the
same date of conversion or continuation, consisting, in either case, of the
aggregate amount of the several Loans of the same Type and, in the case of
Eurocurrency Loans, in the same Agreed Currency and for the same Interest
Period. The term "Advance" shall include Swingline Loans unless otherwise
expressly provided.
1
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
"Aggregate Commitment" means the aggregate of the Commitments of all
the Lenders, as reduced from time to time pursuant to the terms hereof. As of
the date of this Agreement, the original Aggregate Commitment was $750,000,000.
"Aggregate Dollar Commitments" means at any date of determination with
respect to all Lenders, an amount equal to the Dollar Commitments of all Lenders
on such date.
"Aggregate Dollar Outstanding Credit Exposure" means as at any date of
determination with respect to any Lender, the sum of (i) aggregate unpaid
principal amount of such Lender's Dollar Loans on such date, plus (ii) an amount
equal to its Pro Rata Share of the LC Obligations on such date, plus (iii) an
amount equal to its Pro Rata Share of the aggregate principal amount of
Swingline Loans outstanding on such date.
"Aggregate Multicurrency Commitments" means at any date of
determination with respect to all Multicurrency Lenders, an amount equal to the
Multicurrency Commitments of all Multicurrency Lenders on such date.
"Aggregate Multicurrency Outstanding Credit Exposure" means as at any
date of determination with respect to any Lender, the Equivalent Amount of the
aggregate unpaid principal amount of such Lender's Multicurrency Loans and
Alternate Currency Loans on such date.
"Aggregate Outstanding Credit Exposure" means as at any date of
determination with respect to any Lender, the sum of such Lender's Aggregate
Dollar Outstanding Credit Exposure and Aggregate Multicurrency Outstanding
Credit Exposure on such date.
"Agreed Currencies" means (i) Dollars, and (ii) so long as such
currencies remain Eligible Currencies, (A) with respect to any Multicurrency
Commitment, the Euro and British Pounds Sterling, (B) with respect to any
Alternate Currency Commitment, any Alternate Currency and (C) with respect to
the Swingline Commitment, Euros, Australian Dollars, Canadian Dollars and any
other Eligible Currency acceptable to the Swingline Lender.
"Agreement" means this credit agreement, as it may be amended or
modified and in effect from time to time.
"Agreement Accounting Principles" means generally accepted accounting
principles in the United States of America in effect from time to time, applied
in a manner consistent with that used in preparing the financial statements
referred to in Section 5.4; provided, however, that if any change in Agreement
Accounting Principles from those applied in preparing such financial statements
affects the calculation of any financial covenant contained in this Agreement,
the Borrowers and the Administrative Agent hereby agree to negotiate in good
faith towards making appropriate amendments acceptable to the Required Lenders
to the provisions of this Agreement to reflect as nearly as possible the effect
of the financial covenants as in effect on the date hereof.
2
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the Prime Rate for such day and (ii) the sum of the
Federal Funds Effective Rate for such day plus 1/2% per annum.
"Alternate Currency" means any Eligible Currency which the Company
requests the Administrative Agent to include as an Alternate Currency hereunder
and which is acceptable to one or more of the applicable Alternate Currency
Lenders, and with respect to which an Alternate Currency Addendum has been
executed among the Company, a Subsidiary Borrower, one or more Alternate
Currency Lenders and the Administrative Agent in connection therewith.
"Alternate Currency Addendum" means a schedule and addendum entered
into among the Company, a Subsidiary Borrower, one or more Alternate Currency
Lenders and the Administrative Agent, in form and substance satisfactory to the
Administrative Agent, the Company, such Subsidiary Borrower and such Alternate
Currency Lenders party thereto.
"Alternate Currency Commitment" means a portion of the Multicurrency
Commitment equal to, for each Alternate Currency Lender and for each Alternate
Currency, the obligation of such Alternate Currency Lender to make Alternate
Currency Loans not exceeding the Equivalent Amount set forth in Schedule 5 or
the applicable Alternate Currency Addendum, as such amount may be modified from
time to time pursuant to the terms of this Agreement and the applicable
Alternate Currency Addendum.
"Alternate Currency Lender" means any Lender (including any Lending
Installation) party to an Alternate Currency Addendum.
"Alternate Currency Loan" means any Loan denominated in an Alternate
Currency made by the Administrative Agent or one or more of the Alternate
Currency Lenders to a Borrower pursuant to this Agreement and the applicable
Alternate Currency Addendum.
"Alternate Currency Rate" means, with respect to any Alternate Currency
Loan, such publicly announced interbank rate as is customary for prime bank
deposits or loans in the currency of such Alternate Currency Loan and in the
financial center where the Alternate Currency Lenders would fund such Loan, or
such other rate as may be set forth in the applicable Alternate Currency
Addendum.
"Alternate Currency Share" means, with respect to any Alternate
Currency Lender for any particular Alternate Currency, the percentage obtained
by dividing (a) such Alternate Currency Lender's Alternate Currency Commitment
at such time as set forth in the applicable Alternate Currency Addendum by (b)
the aggregate of the Alternate Currency Commitments at such time of all
Alternate Currency Lenders with respect to such Alternate Currency as set forth
in the applicable Alternate Currency Addendum.
"Applicable Fee Rate" means, at any time, the percentage rate per annum
at which Facility Fees are accruing on the Aggregate Commitment (without regard
to usage) at such time as set forth in the Pricing Schedule.
"Applicable Margin" means, with respect to any Eurocurrency Loan,
Floating Rate Loan, the Facility Fee or the LC Fee, as the case may be at any
time, the applicable percentage which is applicable at such time set forth in
the Pricing Schedule provided that upon the occurrence and during the
continuation of a Default, the Applicable Margin shall be the highest Applicable
Margin set forth in the Pricing Schedule.
3
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Australian Dollars" or "AUS$" shall mean the lawful currency of the
Commonwealth of Australia.
"Authorized Officer" means any of the Chairman, Chief Executive
Officer, President, Vice Chairman, Chief Financial Officer, Controller, or
Treasurer of a Borrower, or their equivalent, acting singly.
"Available Dollar Commitment" means at any date of determination with
respect to any Lender, the amount of such Lender's Dollar Commitment in effect
on such date reduced by the Aggregate Dollar Outstanding Credit Exposure of such
Lender on such date.
"Available Multicurrency Commitment" means at any date of determination
with respect to any Multicurrency Lender, the amount of such Multicurrency
Lender's Multicurrency Commitment in effect on such date reduced by the sum of
(i) the Equivalent Amount of any unused Alternate Currency Commitment of such
Multicurrency Lender on such date, and (ii) the Aggregate Multicurrency
Outstanding Credit Exposure of such Multicurrency Lender on such date.
"Bank One" means Bank One, NA, in its individual capacity, and its
successors.
"Borrowers" means the Company and the Subsidiary Borrowers, and
"Borrower" means any of them, as the context may require.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" is defined in Section 2.8.
"British Pounds Sterling" or "(pound)" means the lawful currency of the
United Kingdom of Great Britain.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Eurocurrency Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in Chicago and New York for the conduct of
substantially all of their commercial lending activities and on which dealings
in the Agreed Currencies of the relevant Eurocurrency Advances are carried on in
the London interbank market and (and, if the Advances which are the subject of
such borrowing, payment or rate selection are denominated in Euros, a day upon
which a clearing system as determined by the Administrative Agent to be suitable
for clearing or settlement of the Euro is open for business), and (ii) for all
other purposes, a day (other than a Saturday or Sunday) on which banks generally
are open in Chicago for the conduct of substantially all of their commercial
lending activities.
"Canadian Dollars" or "C$" shall mean the lawful currency of the
Dominion of Canada.
"Capitalized Lease" of a Person means any lease of Property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
4
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Cash Equivalent Investments" means (i) short-term obligations of, or
fully guaranteed by, the United States of America, (ii) commercial paper rated
A-1 or better by S&P or P-1 or better by Moody's, (iii) demand deposit accounts
maintained in the ordinary course of business, (iv) certificates of deposit
issued by and time deposits with commercial banks (whether domestic or foreign)
having capital and surplus in excess of $100,000,000, (v) banker's acceptances,
(vi) money-market funds, provided that such funds invest solely in securities
otherwise described in this definition, (vii) variable rate demand notes, (viii)
municipal preferred stock, (ix) cash market preferred stock, and (x) short term
municipal notes; provided in each case that the same provides for payment of
both principal and interest (and not principal alone or interest alone) and is
not subject to any contingency regarding the payment of principal or interest.
"Change in Control" means the acquisition by any Person, or two or more
Persons acting in concert, of beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities Exchange
Act of 1934) of 30% or more of the outstanding shares of voting stock of the
Company, provided, however, that the acquisitions by or on behalf of a Plan, an
employee stock purchase plan of the Company, or by Persons who before such
acquisition were officers, directors, employees or who held in the aggregate not
less than 5% of the outstanding shares of voting stock of the Company shall not
be included in determining whether a Change in Control shall have occurred.
"Closing Date" shall mean March 27, 2003.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Collateral Shortfall Amount" is defined in Section 8.1.
"Commitment" means, for each Lender, the obligation of such Lender to
make Loans to, and participate in Swingline Loans and Facility LCs issued upon
the application of, a Borrower in an aggregate amount not exceeding the amount
set forth opposite its signature below or as set forth in any assignment that
has become effective pursuant to Section 12.3.2, as such amount may be modified
from time to time pursuant to the terms hereof.
"Commitment Percentage" means as to any Lender, the percentage which
such Lender's Commitment then constitutes of the Aggregate Commitment (or, if
the Commitments have terminated or expired, the percentage which (a) the
Aggregate Outstanding Credit Exposure of such Lender at such time constitutes of
(b) the Aggregate Outstanding Credit Exposure of all Lenders at such time).
"Company" means Cardinal Health, Inc., an Ohio corporation, and it
successors and assigns.
"Computation Date" is defined in Section 2.2.
"Consolidated or "consolidated" means, when used with reference to any
financial term in this Agreement, the aggregate for two or more Persons of the
amounts signified by such term for all such Persons determined on a consolidated
basis in accordance with Agreement Accounting Principles.
5
"Contingent Obligation" of a Person means any agreement, undertaking or
arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person for
Indebtedness, or agrees to maintain the net worth or working capital or other
financial condition of any other Person, or otherwise assures any creditor of
such other Person against loss, including, without limitation, any comfort
letter, operating agreement, take-or-pay contract, operating lease,
securitization transaction or the obligations of any such Person as general
partner of a partnership with respect to the liabilities of the partnership,
provided, however, that any assumption, guaranty, endorsement or undertaking
with respect to any liability of any of its Subsidiaries to any other of its
Subsidiaries shall not be a Contingent Obligation of the Company.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Company or any of its Subsidiaries, are
treated as a single employer under Section 414 of the Code.
"Conversion/Continuation Notice" is defined in Section 2.9.
"Cost Rate" means
1. The cost of compliance with existing requirements of the Bank
of England and/or the Financial Services Authority (or any authority which
replaces all or any of their functions) in respect of Advances denominated in
British Pounds Sterling will be calculated by the Administrative Agent in
relation to each Advance on the basis of rates supplied by the Administrative
Agent by reference to the circumstances existing on the first day of each
Interest Period in respect of such Advance and, if any such Interest Period
exceeds three months, at three calendar monthly intervals from the first day of
such Interest Period during its duration in accordance with the following
formula:
AB +C(B-D) + E x 0.01 per cent per annum
100 - (A+C)
Where:
A. is the percentage of eligible liabilities (assuming these to
be in excess of any stated minimum) which the Administrative Agent is from time
to time required to maintain as an interest free cash ratio deposit with the
Bank of England to comply with cash ratio requirements.
B. is the percentage rate per annum at which British Pounds
Sterling deposits are offered by the Administrative Agent in accordance with its
normal practice, for a period equal to (a) the relevant Interest Period (or, as
the case may be, remainder of such Interest Period) in respect of the relevant
Advance of (b) three months, whichever is the shorter, to a leading bank in the
London Interbank Market at or about 11:00 a.m. in a sum approximately equal to
the amount of such Advance.
C. is the percentage of eligible liabilities which the
Administrative Agent is required from time to time to maintain as interest
bearing special deposits with the Bank of England.
D. is the percentage rate per annum payable by the Bank of
England to the Administrative Agent on interest bearing special deposits.
E. is the rate payable by the Administrative Agent to the
Financial Services Authority pursuant to the Fees Regulations (but, for this
purpose, the figure at paragraph [2.02b]/[2.03b] of the Fees
6
Regulations shall be deemed to be zero) and expressed in pounds per
L1,000,000 of the Fee Base of the Administrative Agent.
2. For the purposes of this definition:
(a) "eligible liabilities" and "special deposits" shall bear the
meanings ascribed to them from time to time under or pursuant to the Bank of
England Act 1998 or (as appropriate) by the Bank of England;
(b) "Fees Regulations" shall mean the Banking Supervision (Fees)
Regulations 1998 or such other regulations as may be in force from time to time
in respect of the payment of fees for banking supervision; and
(c) "Fee Base" shall bear the meaning ascribed to it, and shall be
calculated in accordance with, the Fees Regulations.
3. The percentages used in A and C above shall be those required
to be maintained on the first day of the relevant period as determined in
accordance with B above.
4. In application of the above formula, A, B, C and D will be
included in the formula as figures and not as percentages e.g. if A is 0.5 per
cent and B is 12 per cent, AB will be calculated as 0.5 x 12 and not as 0.5 per
cent x 12 per cent.
5. Calculations will be made on the basis of a 365 day year (or,
if market practice differs, in accordance with market practice).
6. A negative result obtained by subtracting D from B shall be
taken as zero.
7. The resulting figures shall be rounded upwards, if not already
such a multiple, to the nearest whole multiple of one-thirty second of one
percent per annum.
8. Additional amounts calculated in accordance with this
definition are payable at the same time that accrued interest is payable for the
Interest Period to which they relate.
9. The determination of the Cost Rate by the Administrative Agent
in relation to any period shall, in the absence of manifest error, be conclusive
and binding on all of the parties hereto.
10. The Administrative Agent may from time to time, after
consultation with the Company and the Lenders, determine and notify to all
parties any amendments or variations which are required to be made to the
formula set out above in order to comply with any requirements from time to time
imposed by the Bank of England or the Financial Services Authority (or any other
authority which replaces all or any of their functions) in relation to Advances
denominated in British Pounds Sterling (including any requirements relating to
sterling primary liquidity) and, any such determination shall, in the absence of
manifest error, be conclusive and binding on all the parties hereto.
"Credit Extension" means the making of an Advance or the issuance of a
Facility LC hereunder.
"Credit Extension Date" means the Borrowing Date for an Advance or the
issuance date for a Facility LC.
"Default" means an event described in Article VII.
7
"Defaulting Lender" means any Lender that (a) on any Borrowing Date
fails to make available to the Administrative Agent such Lender's Loans required
to be made to a Borrower on such Borrowing Date or any payment required to be
made pursuant to Section 2.1(a)(iv), (b) shall not have made a payment to the
Swingline Lender pursuant to Section 2.1(b)(iii), or (c) shall not have made
available to the Administrative Agent its proportionate share of the Unpaid
Amount as required pursuant to Section 2.19(b). Once a Lender becomes a
Defaulting Lender, such Lender shall continue as a Defaulting Lender until such
time as such Defaulting Lender makes available to the Administrative Agent the
amount of such Defaulting Lender's Loans together with all other amounts
required to be paid to the Administrative Agent, the Swingline Lender or any
other Lender pursuant to this Agreement.
"Documentation Agents" means Credit Suisse First Boston, Deutsche Bank
Securities, Inc. and Barclays Bank PLC.
"Dollar Advance" means a borrowing hereunder (or continuation or a
conversion thereof) consisting of the several Dollar Loans made on the same
Borrowing Date (or date of conversion or continuation) by the Lenders to a
Borrower of the same Type and for the same Interest Period.
"Dollar Amount" of any currency at any date shall mean (i) the amount
of such currency if such currency is Dollars or (ii) the Equivalent Amount of
Dollars if such currency is any currency other than Dollars, calculated on the
basis of the arithmetical mean of the buy and sell spot rates of exchange of the
Administrative Agent for such currency on the London market at 11:00 a.m.,
London time, on or as of the most recent Computation Date provided for in
Section 2.2.
"Dollar Commitment" means for each Lender the aggregate amount set
forth opposite its name on Schedule 6, provided, however that the Aggregate
Dollar Commitments of the Lenders shall not exceed $650,000,000.
"Dollar Commitment Percentage" means as to any Lender, the percentage
which such Lender's Dollar Commitment then constitutes of the aggregate Dollar
Commitments of all Lenders (or, if the Commitments have terminated or expired,
the percentage which (a) the Aggregate Dollar Outstanding Credit Exposure of
such Lender at such time constitutes of (b) the Aggregate Dollar Outstanding
Credit Exposure of all Lenders at such time).
"Dollar Loans" means, with respect to a Lender, such Lender's Loans
made pursuant to Section 2.1(a)(i).
"Dollars" and "$" shall mean the lawful currency of the United States
of America.
"Eligible Currency" means any currency (i) that is readily available,
(ii) that is freely traded, (iii) in which deposits are customarily offered to
banks in the London interbank market, (iv) which is convertible into Dollars in
the international interbank market and (v) as to which an Equivalent Amount may
be readily calculated. If, after the designation of any currency as an Agreed
Currency, (x) currency control or other exchange regulations are imposed in the
country in which such currency is issued with the result that different types of
such currency are introduced, (y) such currency is, in the determination of the
Administrative Agent, no longer readily available or freely traded or (z) in the
determination of the Administrative Agent, an Equivalent Amount of such currency
is not readily calculable, the Administrative Agent shall promptly notify the
Lenders and the Borrowers, and such currency shall no longer be an Agreed
Currency until such time as the requisite Lenders agree to reinstate such
currency as an Agreed Currency and promptly, but in any event within five
Business Days of receipt of such notice from the Administrative Agent, the
Borrowers shall repay all Loans in such affected currency or convert such Loans
into Loans in Dollars or another Agreed Currency, subject to the other terms set
forth in Article II.
8
"EMU Legislation" means legislative measures of the European Union for
the introduction of, changeover to or operation of the Euro in one or more
member states.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
(i) the protection of the environment, (ii) the effect of the environment on
human health, (iii) emissions, discharges or releases of pollutants,
contaminants, hazardous substances or wastes into surface water, ground water or
land, or (iv) the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants, contaminants, hazardous
substances or wastes or the clean-up or other remediation thereof.
"Equivalent Amount" of any currency with respect to any amount of
Dollars at any date shall mean the equivalent in such currency of such amount of
Dollars, calculated on the basis of the arithmetical mean of the buy and sell
spot rates of exchange of the Administrative Agent for such other currency at
11:00 a.m., London time, on the date on or as of which such amount is to be
determined.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Euro" and/or "EUR" means euro referred to in Council Regulation (EC)
No. 1103/97 dated June 17, 1997 passed by the Council of the European Union, or,
if different, the then lawful currency of the member states of the European
Union that participate in the third stage of Economic and Monetary Union.
"Eurocurrency" means any Agreed Currency.
"Eurocurrency Advance" means an Advance comprised of Eurocurrency
Loans.
"Eurocurrency Loan" means a Loan which, except as otherwise provided in
Section 2.12, bears interest at the applicable Eurocurrency Rate.
"Eurocurrency Payment Office" of the Administrative Agent shall mean,
for each of the Agreed Currencies, the office, branch, affiliate or
correspondent bank of the Administrative Agent specified as the "Eurocurrency
Payment Office" for such currency in Schedule 3 hereto or such other office,
branch, affiliate or correspondent bank of the Administrative Agent as it may
from time to time specify to the Borrowers and each Lender as its Eurocurrency
Payment Office.
"Eurocurrency Rate" means, with respect to a Eurocurrency Advance for
the relevant Interest Period, the sum of (i) the quotient of (a) the
Eurocurrency Reference Rate applicable to such Interest Period, divided by (b)
one minus the Reserve Requirement (expressed as a decimal) applicable to such
Interest Period, plus (ii) the Applicable Margin. The Eurocurrency Rate shall be
expressed as a percentage rounded to four decimal places.
"Eurocurrency Reference Rate" means, with respect to each Interest
Period for a Multicurrency Advance:
(a) the rate per annum quoted at or about 11:00 a.m. (London time)
on the Quotation Date for such period on that page of the Telerate Screen,
Reuters or Bloombergs which displays British Bankers Association Interest
Settlement Rates for deposits in the relevant Agreed Currency for such period
or, if such page or service shall cease to be available, such other page or such
other service (as the
9
case may be) for the purpose of displaying British Bankers Association Interest
Settlement Rates for such currency as the Administrative Agent, in its
discretion, shall select.
(b) If no such rate is displayed for the relevant currency and the
relevant period and there is no alternative service on which two or more such
quotations for the Agreed Currency are displayed, "Eurocurrency Reference Rate"
will be the rate at which deposits in the Agreed Currency of that amount are
offered by the Administrative Agent for that period to prime banks in the London
interbank market at or about 11:00 a.m. (London time) on the Quotation Date for
such period.
Plus, in each case, the Cost Rate; and with respect to a Dollar Advance
for the relevant Interest Period, the rate determined by the Administrative
Agent to be the rate at which Bank One offers to place Eurodollar deposits with
first-class banks in the London interbank market at 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period in the approximate
amount of the relevant Dollar Loan of Bank One and having a maturity equal to
such Interest Period.
"Excluded Taxes" means, in the case of each Lender or applicable
Lending Installation and the Administrative Agent, taxes imposed on its overall
net income, and franchise taxes (and any interest, fees or penalties for late
payment thereof) imposed on it by (i) the jurisdiction under the laws of which
such Lender or the Administrative Agent is incorporated or organized or (ii) the
jurisdiction in which the Administrative Agent's or such Lender's principal
executive office or such Lender's applicable Lending Installation is located.
"Exhibit" refers to an exhibit to this Agreement, unless another
document is specifically referenced.
"Facility LC" is defined in Section 2.20.1.
"Facility LC Application" is defined in Section 2.20.3.
"Facility LC Collateral Account" is defined in Section 2.20.11.
"Facility Termination Date" means March 27, 2008, or any earlier date
on which the Aggregate Commitment is reduced to zero or otherwise terminated
pursuant to the terms hereof.
"Federal Funds Effective Rate" means, for any day, an interest 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, as published for such day (or, if such day is not a Business Day,
for the immediately preceding Business Day) by the Federal Reserve Bank of New
York, or, if such rate is not so published for such day, the average of the
quotations at approximately 10:00 a.m. (Chicago time) on such day on such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by the Administrative Agent in its sole
discretion.
"Financial Contract" of a Person means (a) any exchange-traded or over
the counter futures, forward, swap or option contract or other financial
instrument with similar characteristics or (b) any Rate Hedging Agreement.
"Floating Rate" means, for any day, a rate per annum equal to the
Alternate Base Rate for such day in each case changing when and as the Alternate
Base Rate changes.
"Floating Rate Advance" means an Advance comprised of Floating Rate
Loans.
10
"Floating Rate Loan" means a Dollar Loan which, except as otherwise
provided in Section 2.12, bears interest at the Floating Rate.
"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.
"Guarantor" means the Company and its successors and assigns.
"Guaranty" means that certain Guaranty dated the date hereof executed
by the Guarantor in favor of the Administrative Agent, for the ratable benefit
of the Lenders, as it may be amended or modified and in effect from time to
time.
"Indebtedness" of a Person means, as of any date, such Person's (i)
obligations for borrowed money or evidenced by bonds, notes, acceptances,
debentures or similar instruments or letters of credit (or reimbursement
agreements in respect thereof) or bankers' acceptances, (ii) obligations
representing the deferred purchase price of Property or services (other than
accounts payable arising in the ordinary course of such Person's business
payable on terms customary in the trade), (iii) obligations, whether or not
assumed, secured by Liens or payable out of the proceeds or production from
Property now or hereafter owned or acquired by such Person, (iv) obligations of
such Person to purchase securities or other Property arising out of or in
connection with the sale of the same or substantially similar securities or
Property, (v) Capitalized Lease Obligations, (vi) any other obligation for
borrowed money or other financial accommodation which in accordance with
Agreement Accounting Principles would be shown as a liability on the
consolidated balance sheet of such Person, (vii) any Rate Hedging Obligations of
such Person, and (viii) all Contingent Obligations of such Person with respect
to or relating to the indebtedness, obligations and liabilities of others
similar in character to those described in clauses (i) through (vii) of this
definition.
"Interest Period" means, with respect to a Eurocurrency Advance, a
period of one, two, three or six months (or such longer or shorter period
requested by the Borrower and acceptable to all of the Lenders), commencing on a
Business Day selected by the Borrower pursuant to this Agreement. Such Interest
Period shall end on the day which corresponds numerically to such date one, two,
three or six months thereafter (or such longer or shorter period requested by
the Borrower and acceptable to all of the Lenders), provided, however, that if
there is no such numerically corresponding day in such next, second, third or
sixth succeeding month, such Interest Period shall end on the last Business Day
of such next, second, third or sixth succeeding month. If an Interest Period
would otherwise end on a day which is not a Business Day, such Interest Period
shall end on the next succeeding Business Day, provided, however, that if said
next succeeding Business Day falls in a new calendar month, such Interest Period
shall end on the immediately preceding Business Day.
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in the
ordinary course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in the
trade) or contribution of capital by such Person; stocks, bonds, mutual funds,
partnership interests, notes, debentures or other securities owned by such
Person; any certificate of deposit owned by such Person; and structured notes,
derivative financial instruments and other similar instruments or contracts
owned by such Person.
"LC Fee" is defined in Section 2.20.4.
"LC Issuer" means Bank One (or any subsidiary or affiliate of Bank One
designated by Bank One) in its capacity as issuer of Facility LCs hereunder.
11
"LC Obligations" means, at any time, the sum, without duplication, of
(i) the aggregate undrawn stated amount under all Facility LCs outstanding at
such time plus (ii) the aggregate unpaid amount at such time of all
Reimbursement Obligations.
"LC Payment Date" is defined in Section 2.20.5.
"Lead Arranger" means Banc One Capital Markets, Inc., a Delaware
corporation, and its successors.
"Lenders" means the lending institutions listed on the signature pages
of this Agreement and their respective successors and assigns.
"Lending Installation" means, with respect to a Lender or the
Administrative Agent, the office, branch, subsidiary or Affiliate of such Lender
or the Administrative Agent with respect to each Agreed Currency listed on
Schedule 4, or otherwise selected by such Lender and the Administrative Agent
pursuant to Section 2.18.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement).
"Loan" means, with respect to a Lender, such Lender's loan made
pursuant to Article II (or any conversion or continuation thereof).
"Loan Documents" means this Agreement, the Facility LC Applications,
the Notes, the Guaranty and any other instrument or document executed in
connection with any of the foregoing at any time.
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, condition (financial or otherwise), results of operations,
or prospects of the Company and its Subsidiaries taken as a whole, (ii) the
ability of the Company to perform its obligations under the Loan Documents to
which it is a party, or (iii) the validity or enforceability of any of the Loan
Documents or the rights or remedies of the Administrative Agent, the LC Issuer
or the Lenders thereunder.
"Modify" and "Modification" are defined in Section 2.20.1.
"Moody's" means Moody's Investors Service, Inc.
"Multicurrency Advance" means a borrowing hereunder (or continuation or
a conversion thereof) consisting of the several Multicurrency Loans made on the
same Borrowing Date (or date of conversion or continuation) by the Lenders to a
Borrower of the same Type and for the same Interest Period.
"Multicurrency Commitment" means for each Lender the aggregate amount
set forth as its Multicurrency Commitment on Schedule 6 or as set forth in any
assignment that has become effective pursuant to Section 12.3.2, as such amount
shall be modified from time to time pursuant to the terms hereof, provided,
however that the Aggregate Multicurrency Commitments of the Lenders shall not
exceed the Equivalent Amount of $100,000,000.
12
"Multicurrency Commitment Percentage" means as to any Multicurrency
Lender, the percentage which such Multicurrency Lender's Multicurrency
Commitment then constitutes of the Aggregate Multicurrency Commitments (or, if
the Multicurrency Commitments have terminated or expired, the percentage which
(a) the Aggregate Multicurrency Outstanding Credit Exposure of such
Multicurrency Lender at such time constitutes of (b) the Aggregate Multicurrency
Outstanding Credit Exposure of all Multicurrency Lenders at such time).
"Multicurrency Lender" means each Lender having a Multicurrency
Commitment.
"Multicurrency Loans" means, with respect to a Multicurrency Lender,
such Lender's Loans made pursuant to Section 2.1(a)(ii).
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Company is a party to
which more than one employer is obligated to make contributions.
"National Currency Unit" means the unit of currency (other than a Euro)
of a Participating Member State.
"Net Worth" means at any time the consolidated stockholder's equity of
the Company and its Subsidiaries calculated on a consolidated basis as of such
time in accordance with Agreement Accounting Principles.
"Non-U.S. Borrower" is defined in Section 3.1(b).
"Non-U.S. Lender" is defined in Section 3.5(iv).
"Note" means any promissory note issued at the request of a Lender
pursuant to Section 2.14 in the form of Exhibit E.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Loans, all Reimbursement Obligations, all accrued and unpaid
fees and all expenses, reimbursements, indemnities and other obligations of the
Borrowers to the Lenders or to any Lender, the LC Issuer, the Administrative
Agent or any indemnified party arising under the Loan Documents.
"Other Taxes" is defined in Section 3.5(ii).
"Overdue Rate" means a per annum rate that is equal to the sum of two
percent (2%) plus the Alternate Base Rate, changing as and when the Alternate
Base Rate changes or, with respect to any Alternate Currency Loan, such other
overdue rate, if any, as specified in the applicable Alternate Currency
Addendum.
"Participants" is defined in Section 12.2.1.
"Participating Member State" means any member state of the European
Union which has the Euro as its lawful currency.
"Payment Date" means the last day of each calendar quarter, commencing
June 30, 2003.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
13
"Person" means any natural person, corporation, firm, joint venture,
partnership, limited liability company, association, enterprise, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412 of the
Code and as to which the Company or any member of the Controlled Group may have
any liability.
"Pricing Schedule" means the Schedule attached hereto identified as
such.
"Prime Rate" means a rate per annum equal to the prime rate of interest
announced from time to time by Bank One or its parent (which is not necessarily
the lowest rate charged to any customer), changing when and as said prime rate
changes.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned
or leased by such Person.
"Pro Rata Share" means, with respect to a Lender, (i) in reference to
the Dollar Commitment, a portion equal to a fraction the numerator of which is
such Lender's Dollar Commitment and the denominator of which is the Aggregate
Dollar Commitment, (ii) in reference to the Multicurrency Commitment, a portion
equal to a fraction the numerator of which is such Lender's Multicurrency
Commitment and the denominator of which is the Aggregate Multicurrency
Commitment, and (iii) in reference to the Aggregate Commitment, a portion equal
to a fraction the numerator of which is such Lender's Commitment and the
denominator of which is the Aggregate Commitment.
"Purchasers" is defined in Section 12.3.1.
"Quotation Date" in relation to any period for which a Eurocurrency
Reference Rate for an Agreed Currency other than Dollars is to be determined
hereunder, means the date on which quotations would ordinarily be given by prime
lenders in the London inter-bank market for deposits in the Agreed Currency in
relation to which such rate is to be determined for delivery on the first day of
that period, provided that, if, for such period, quotations would ordinarily be
given on more than one date, the Quotation Date for that period shall be the
last of those dates.
"Rate Hedging Agreement" means an agreement, device or arrangement
providing for payments which are related to fluctuations of interest rates,
exchange rates or forward rates, including, but not limited to,
dollar-denominated or cross-currency interest rate exchange agreements, forward
currency exchange agreements, interest rate cap or collar protection agreements,
forward rate currency or interest rate options, puts and warrants.
"Rate Hedging Obligations" of a Person means any and all obligations of
such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (a) any and all Rate
Hedging Agreements, and (b) any and all cancellations, buy backs, reversals,
terminations or assignments of any Rate Hedging Agreement.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
14
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying margin
stocks applicable to member banks of the Federal Reserve System.
"Reimbursement Obligations" means, at any time, the aggregate of all
obligations of the Borrowers then outstanding under Section 2.20 to reimburse
the LC Issuer for amounts paid by the LC Issuer in respect of any one or more
drawings under Facility LCs.
"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC has by regulation waived
the requirement of Section 4043(a) of ERISA that it be notified within 30 days
of the occurrence of such event, provided, however, that a failure to meet the
minimum funding standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
"Required Lenders" means Lenders in the aggregate having at least 51%
of the Aggregate Commitment or, if the Aggregate Commitment has been terminated,
Lenders in the aggregate holding at least 51% of the Aggregate Outstanding
Credit Exposure.
"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on Eurocurrency
liabilities.
"Significant Subsidiary" means any Subsidiary of the Company that would
be a "significant subsidiary" within the meaning of Rule 1-02 of the Securities
and Exchange Commission's Regulation S-X if 5% were substituted for 10% wherever
it occurs in such Rule.
"S&P" means Standard and Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc.
"Schedule" refers to a specific schedule to this Agreement, unless
another document is specifically referenced.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Single Employer Plan" means a Plan maintained by the Company or any
member of the Controlled Group for employees of the Company or any member of the
Controlled Group.
"Subsequent Participant" means any member state of the European Union
that adopts the Euro as its lawful currency after the date of this Agreement.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, limited liability company, association, joint venture or
similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.
Unless otherwise expressly provided, all references herein to a "Subsidiary"
shall mean a Subsidiary of the Company.
15
"Subsidiary Borrower" means each Subsidiary of the Company listed as a
Subsidiary Borrower on Schedule 1 as amended from time to time in accordance
with Section 5.8.
"Substantial Portion" means, with respect to the Property of the
Company and its Subsidiaries, Property which (i) represents more than 20% of the
consolidated assets of the Company and its Subsidiaries as would be shown in the
consolidated financial statements of the Company and its Subsidiaries as at the
beginning of the twelve-month period ending with the month in which such
determination is made, or (ii) is responsible for more than 20% of the
consolidated net sales or of the consolidated net income of the Company and its
Subsidiaries as reflected in the financial statements referred to in clause (i)
above.
"Swingline Commitment" means the obligation of the Swingline Lender to
make Swingline Loans up to a maximum principal amount of $50,000,000 at any one
time outstanding.
"Swingline Lender" means Bank One or such other Lender which may
succeed to its rights and obligations as Swingline Lender pursuant to the terms
of this Agreement.
"Swingline Loan" means any borrowing under Section 2.8 evidenced by the
Swingline Note and made by the Swingline Lender pursuant to Section 2.1(b).
"Swingline Note" means the promissory note of the Company evidencing
the Swingline Loans, in substantially the same form as Exhibit F hereto, as
amended or modified at the time such Swingline Loan is made to the Company.
"Syndication Agents" means Bank of America N.A. and Wachovia Bank,
National Association.
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and any and all liabilities with
respect to the foregoing, but excluding Excluded Taxes.
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Advance, its nature as a Floating
Rate Advance or a Eurocurrency Advance.
"Unfunded Liabilities" means the amount (if any) by which the present
value of all vested and unvested accrued benefits under all Single Employer
Plans exceeds the fair market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plans using PBGC actuarial assumptions for single employer plan terminations.
"Unpaid Amount" is defined in Section 2.19(b).
"Unmatured Default" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization 100% of the
ownership interests having ordinary voting power of which shall at the time be
so owned or controlled.
16
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
ARTICLE II.
THE CREDITS
2.1 Commitments of the Lenders and Swing Line Facility.
(a) Revolving Credit Advances.
(i) From and including the date of this Agreement and prior to the
Facility Termination Date, each Lender severally agrees, for itself only,
subject to the terms and conditions set forth in this Agreement, to (i) make
Loans to the Borrowers in Dollars from time to time and (ii) participate in (A)
Facility LCs denominated in Dollars issued upon the request of a Borrower and
(B) Swingline Loans, in aggregate amounts not to exceed in the aggregate at any
one time outstanding the amount of its Dollar Commitment. Each Dollar Advance of
Loans pursuant to this Section 2.1(a)(i) shall consist of Dollar Loans made by
each Lender ratably in proportion to such Lender's respective Available Dollar
Commitment divided by the aggregate Available Dollar Commitments of all Lenders
at such time. The LC Issuer will issue Facility LCs hereunder on the terms and
conditions set forth in Section 2.20.
(ii) From and including the date of this Agreement and prior to the
Facility Termination Date, each Multicurrency Lender agrees, for itself only,
subject to the terms and conditions set forth in this Agreement, to make
Multicurrency Loans to the Borrowers in Agreed Currencies from time to time
prior to the Facility Termination Date so long as after giving effect thereto
and any concurrent repayment or prepayment of Loans (x) the Available
Multicurrency Commitment of each Multicurrency Lender is greater than or equal
to zero, (y) the Equivalent Amount of the Aggregate Multicurrency Outstanding
Credit Exposure of all Lenders does not exceed $100,000,000 and (z) the
Aggregate Outstanding Credit Exposure of all Lenders does not exceed the
Aggregate Commitment; provided, however, that the Borrowers shall not request,
and the Multicurrency Lenders shall not make Multicurrency Loans in Dollars at
any time that Available Dollar Commitment exists. Each Multicurrency Advance
shall consist of Multicurrency Loans made by each Multicurrency Lender ratably
in proportion to such Multicurrency Lender's respective Available Multicurrency
Commitment divided by the aggregate Available Multicurrency Commitments of all
Multicurrency Lenders at such time.
(iii) Subject to the terms of this Agreement, the Borrowers may
borrow, repay and reborrow at any time prior to the Facility Termination Date.
The Commitments to lend hereunder shall expire on the Facility Termination Date.
(iv) Immediately and automatically upon the occurrence of a Default
under Sections 7.2, 7.6 or 7.7, (A) each Lender shall be deemed to have
unconditionally and irrevocably purchased from each Multicurrency Lender,
without recourse or warranty, an undivided interest in and participation in each
Multicurrency Loan ratably in accordance with such Lender's Commitment
Percentage, (B) immediately and automatically all Multicurrency Loans
outstanding in Agreed Currencies other than Dollars shall be converted to and
redenominated in Dollars equal to the Equivalent Amount of each such
Multicurrency Loan determined as of the date of such conversion, (C) each
Multicurrency Lender shall be deemed to have unconditionally and
17
irrevocably purchased from each Dollar Lender, without recourse or warranty, an
undivided interest in and participation in each Dollar Loan ratably in
accordance with such Multicurrency Lender's Commitment Percentage. Each of the
Lenders shall pay to the applicable Multicurrency Lender not later than two (2)
Business Days following a request for payment from such Lender, in Dollars, an
amount equal to the undivided interest in and participation in the Multicurrency
Loan purchased by such Lender pursuant to this Section 2.1(a)(iv), and each of
the Multicurrency Lenders shall pay to the applicable Dollar Lender not later
than two (2) Business Days following a request for payment from such Lender, in
Dollars, an amount equal to the undivided interest in and participation in the
Dollar Loan purchased by such Multicurrency Lender pursuant to this Section
2.1(a)(iv), it being the intent of the Lenders that following such equalization
payments, each Lender shall hold its Commitment Percentage of the Aggregate
Outstanding Credit Exposure.
(b) Swingline Loans.
(i) Subject to the terms and conditions of this Agreement, the
Swingline Lender agrees to make Swingline Loans to the Borrowers from time to
time on any Business Day during the period from the date hereof to but excluding
the Facility Termination Date in the aggregate principal outstanding amount not
to exceed the Swingline Commitment, provided that after giving effect to such
Swingline Loan the Equivalent Amount of the Aggregate Outstanding Credit
Exposure at any time shall not exceed the Aggregate Commitment, and provided
further that at no time shall the Equivalent Amount of the Aggregate Outstanding
Credit Exposure of the Swingline Lender exceed the Aggregate Commitment of the
Swingline Lender. Swingline Loans may be denominated in any Agreed Currency,
provided, that the obligation of the Swingline Lender to make Swingline Loans in
any Agreed Currency other than Dollars shall be in the Swingline Lender's sole
discretion, and any such Swingline Loans shall be deemed to utilize the
Swingline Lender's Multicurrency Commitment. Each Lender's Commitment shall be
deemed utilized by an amount equal to such Lender's Commitment Percentage of the
Dollar Amount of each Swingline Loan for purposes of determining the amount of
Loans required to be made by such Lender. All Swingline Loans shall bear
interest at the Alternate Base Rate or such other rate as shall be agreed
between the relevant Borrower and the Swingline Lender with respect to any
Swingline Loan at the time such Swingline Loan is made. If any Swingline Loan is
not repaid by the Borrower on the date when due, each Lender will make a
Floating Rate Loan the proceeds of which will be used to repay the Swingline
Loan as described in Section 2.1(b)(ii).
(ii) The Swingline Lender may at any time in its sole and absolute
discretion require that any Swingline Loan be refunded by a Floating Rate
Advance from the Lenders, and upon written notice thereof by the Swingline
Lender to the Administrative Agent, the Lenders and the relevant Borrower, such
Borrower shall be deemed to have requested a Floating Rate Advance in an amount
equal to the Dollar Amount of such Swingline Loan and such Floating Rate Advance
shall be made to refund such Swingline Loan. Any Swingline Loan outstanding in
an Agreed Currency other than Dollars, shall, upon the giving of such notice by
the Swingline Lender, immediately and automatically be converted to and
redenominated in Dollars equal to the Equivalent Amount of each such Swingline
Loan determined as of the date of such conversion. Each Lender shall be
absolutely and unconditionally obligated to fund its Commitment Percentage of
such Floating Rate Advance or, if applicable, to purchase a participation
interest in the Swingline Loans pursuant to Section 2.1(b)(iii) and such
obligation shall not be affected by any circumstance, including, without
limitation, (A) any set-off, counterclaim, recoupment, defense or other right
which such Lender has or may have against the Administrative Agent or any
Borrower or any of their respective Subsidiaries or anyone else for any reason
whatsoever
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(including without limitation any failure to comply with the requirements of
Section 4.2, other than the Swingline Lender making a Swingline Loan when it had
actual knowledge of the existence of a Default); (B) the occurrence or
continuance of a Default, subject to Section 2.1(b)(iii); (C) any adverse change
in the condition (financial or otherwise) of the Company or any of its
Subsidiaries; (D) any breach of this Agreement by any Borrower or any of their
respective Subsidiaries or any other Lender; or (E) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing
(including without limitation any Borrower's failure to satisfy any conditions
contained in Article IV or any other provision of this Agreement).
(iii) If, for any reason (including without limitation as a result
of the occurrence of a Default with respect to any Borrower pursuant to Article
VII) Floating Rate Loans may not be made by the Lenders as described in Section
2.1(b)(ii), then (A) each Borrower agrees that each Swingline Loan not paid
pursuant to Section 2.1(b)(ii) shall bear interest, payable on demand by the
Swingline Lender, at the Overdue Rate, (B) each Borrower agrees that each
Swingline Loan outstanding in an Agreed Currency other than Dollars shall be
immediately and automatically converted to and redenominated in Dollars equal to
the Equivalent Amount of each such Swingline Loan determined as of the date of
such conversion, and (C) effective on the date each such Floating Rate Loan
would otherwise have been made, each Lender severally agrees that it shall
unconditionally and irrevocably, without regard to the occurrence of any
Default, in lieu of deemed disbursement of loans, to the extent of such Lender's
Commitment, purchase a participation interest in the Swingline Loans by paying
its Commitment Percentage thereof, provided, however, that no Lender shall be
obligated to purchase such participation in a Swingline Loan made by the
Swingline Lender when it had actual knowledge of the existence of a Default.
Each Lender will immediately transfer to the Swingline Lender, in same day
funds, the amount of its participation. Each Lender shall share based on its
Commitment Percentage in any interest which accrues thereon and in all
repayments thereof. If and to the extent that any Lender shall not have so made
the amount of such participating interest available to the Swingline Lender,
such Lender and the Borrowers severally agree to pay to the Swingline Lender
forthwith on demand such amount together with interest thereon, for each day
from the date of demand by the Swingline Lender until the date such amount is
paid to the Swingline Lender, at (x) in the case of the Company, at the interest
rate specified above and (y) in the case of such Lender, the Federal Funds
Effective Rate.
(c) Alternate Currency Loans.
(i) Subject to the terms and conditions of this Agreement and the
applicable Alternate Currency Addendum, from and including the later of the date
of this Agreement and the date of execution of the applicable Alternate Currency
Addendum and prior to the Facility Termination Date (unless an earlier
termination date shall be specified in the applicable Alternate Currency
Addendum), the Administrative Agent and the applicable Alternate Currency
Lenders agree, on the terms and conditions set forth in this Agreement and in
the applicable Alternate Currency Addendum, to make Alternate Currency Loans
under such Alternate Currency Addendum to the applicable Borrower party to such
Alternate Currency Addendum from time to time in the applicable Alternate
Currency, in an amount not to exceed each such Alternate Currency Lender's
applicable Alternate Currency Commitment; provided, however, (i) at no time
shall the outstanding principal amount of all Alternate Currency Loans exceed
the Alternate Currency Commitment for such currency, (ii) at not time shall the
Aggregate Multicurrency Outstanding Credit Exposure exceed the Aggregate
Multicurrency Commitments, (iii) at no time shall the aggregate outstanding
principal amount of the Alternate Currency Loans for any specific
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Alternate Currency exceed the amount specified as the maximum amount for such
Alternate Currency in the applicable Alternate Currency Addendum and (iv) at no
time shall the aggregate Alternate Currency Commitments exceed $50,000,000. The
Equivalent Amount of any Alternate Currency Commitment of an Alternate Currency
Lender shall be deemed to utilize such Lender's Multicurrency Commitment. Each
Alternate Currency Loan shall consist of Alternate Currency Loans made by each
applicable Alternate Currency Lender ratably in proportion to such Alternate
Currency Lender's respective Alternate Currency Share. Subject to the terms of
this Agreement and the applicable Alternate Currency Addendum, the Borrowers may
borrow, repay and reborrow Alternate Currency Loans at any time prior to the
Facility Termination Date. On the Facility Termination Date, the outstanding
principal balance of the Alternate Currency Loans shall be paid in full by the
applicable Borrower and prior to the Facility Termination Date prepayments of
the Alternate Currency Loans shall be made by the applicable Borrower if and to
the extent required by this Agreement. Subject to the applicable Alternate
Currency Addendum, each Alternate Currency Loan shall have a maturity of one,
two, three or six months and bear interest at the Alternate Currency Rate for
such period plus the Applicable Margin as if such Loan were a Eurocurrency Loan.
(ii) The Company may, by written notice to the Administrative Agent
request the establishment of additional Alternate Currency Commitments in
additional Alternate Currencies provided the Equivalent Amount of the Alternate
Currency Commitment requested together with the Aggregate Multicurrency
Outstanding Credit Exposure does not exceed the Aggregate Multicurrency
Commitments ("Request for a New Alternate Currency Facility"). The
Administrative Agent will promptly forward to the Multicurrency Lenders any
Request for a New Alternate Currency Facility received from the Company;
provided each Lender shall be deemed not to have agreed to such request unless
its written consent thereto has been received by the Administrative Agent within
ten (10) Business Days from the date of such notification by the Administrative
Agent to such Lender (or such shorter period as shall be specified by the
Company in the Request for a New Alternate Currency Facility). In the event that
one or more Multicurrency Lenders consent to such Request for a New Alternate
Currency Facility and agree to make Alternate Currency Loans in such Alternate
Currency in an amount not less than that requested by the Company, upon
execution of the applicable Alternate Currency Addendum and the other documents,
instruments and agreements required pursuant to this Agreement and such
Alternate Currency Addendum, the Alternate Currency Loans with respect thereto
may be made.
(iii) Except as otherwise required by applicable law, in no event
shall the Administrative Agent or Alternate Currency Lenders have the right to
accelerate the Alternate Currency Loans outstanding under any Alternate Currency
Addendum or to terminate their Alternate Currency Commitments (if any)
thereunder to make Alternate Currency Loans prior to the stated termination date
in respect thereof, except that such Administrative Agent and Alternate Currency
Lenders shall, in each case, have such rights upon an acceleration of the Loans
and a termination of the Commitments pursuant to Section 8.1.
(iv) Immediately and automatically upon the occurrence of a Default
under Sections 7.2, 7.6 or 7.7, each Lender shall be deemed to have
unconditionally and irrevocably purchased from each Alternate Currency Lender,
without recourse or warranty, an undivided interest in and participation in each
Alternate Currency Loan ratably in accordance with such Lender's Commitment
Percentage, and immediately and automatically all Alternate Currency Loans shall
be converted to and redenominated in Dollars equal to the Equivalent Amount of
each such Alternate Currency Loan determined as of the date of such conversion.
Each of the Lenders shall pay to the applicable Alternate Currency Lender not
later than two (2) Business Days following a
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request for payment from such Lender, in Dollars, an amount equal to the
undivided interest in and participation in the Alternate Currency Loan purchased
by such Lender pursuant to this Section 2.1(c)(iv).
2.2 Determination of Dollar Amounts; Termination.
(i) The Administrative Agent will determine the Dollar Amount of:
(a) each Advance as of the date two Business Days prior
to the Borrowing Date or, if applicable, date of conversion/continuation of such
Advance,
(b) all outstanding Advances, LC Obligations and
Alternate Currency Loans on and as of the last day of each Interest Period (but
not less frequently than quarterly), on receipt of any notice from the Company
as to the reduction of the Aggregate Commitment, and on any other Business Day
elected by the Administrative Agent in its discretion or upon instruction by the
Required Lenders; and
(c) all outstanding Advances, LC Obligations and
Alternate Currency Loans on each Business Day during which Aggregate Dollar
Outstanding Credit Exposure together with outstanding Swingline Loans exceed
$600,000,000 (or such ratable amount of any reduced Aggregate Dollar
Commitments) or Aggregate Multicurrency Outstanding Credit Exposure exceeds
$75,000,000 (or such ratable amount of any reduced Aggregate Multicurrency
Commitments).
Each day upon or as of which the Administrative Agent determines Dollar
Amounts as described in the preceding clauses (a), (b) and (c) is herein
described as a "Computation Date" with respect to each Advance for which a
Dollar Amount is determined on or as of such day.
(ii) Any outstanding Advances together with any other unpaid
Obligations then due and payable shall be paid in full by the Borrowers on the
Facility Termination Date.
2.3 Ratable Loans.
Other than Alternate Currency Loans, each Multicurrency Advance
hereunder shall consist of Multicurrency Loans made from the several
Multicurrency Lenders ratably in proportion to such Multicurrency Lenders'
respective Available Multicurrency Commitment divided by the aggregate Available
Multicurrency Commitments of all Multicurrency Lenders at such time, and each
Dollar Advance hereunder shall consist of Dollar Loans made from the Lenders
ratably according to their Dollar Commitment Percentage.
2.4 Types of Advances.
The Advances may be Floating Rate Advances or Eurocurrency Advances, on
the one hand, and Dollar Advances or Multicurrency Advances on the other hand,
or a combination thereof, selected by the relevant Borrowers in accordance with
Sections 2.8 and 2.9, provided, however, that a Floating Rate Advance must also
be a Dollar Advance or a Multicurrency Advance denominated in Dollars.
2.5 Facility Fee; Reductions in Aggregate Commitment; Utilization
Fee.
The Company agrees to pay to the Administrative Agent for the account
of each Lender a facility fee, determined in accordance with the Pricing
Schedule, calculated on the Aggregate Commitment, whether used or unused,
payable quarterly in arrears for the ratable benefit of the Lenders from the
date of this Agreement until the Facility Termination Date. The Aggregate
Commitment may permanently and ratably be reduced by the Company in multiples of
$10,000,000 upon three Business Days' prior written
21
notice. Any such reduction shall be allocated ratably between the Dollar
Commitment and the Multicurrency Commitment. For each day on which the Aggregate
Outstanding Credit Exposure exceeds 50% of the Aggregate Commitment, a
utilization fee at the per annum rate set forth on the Pricing Schedule will
accrue on the aggregate principal amount of outstanding Advances for the ratable
benefit of the Lenders, payable in arrears on each Payment Date until the
Facility Termination Date.
2.6 Minimum Amount of Each Advance.
Each Eurocurrency Advance shall be in the minimum Equivalent Amount of
$5,000,000 (and in multiples of Equivalent Amounts of $1,000,000 in excess
thereof, or in the case of a Multicurrency Advance, such other lesser multiple
as the Administrative Agent deems appropriate), and each Floating Rate Advance
(other than an Advance to repay Swingline Loans) shall be in the minimum amount
of $5,000,000 (and in multiples of $1,000,000 if in excess thereof), provided,
however, that any Floating Rate Advance may be in the amount of the unused
Aggregate Commitment. Each Swingline Loan denominated in Dollars shall be in the
minimum amount of $5,000,000 (and in multiples of $500,000 if in excess thereof)
or in the case of Swingline Loans demoninated in any currency other than
Dollars, such other minimum amounts and multiples as the Swingline Lender shall
determine, provided however, that any Swingline Loan may be in the amount of the
unused Swingline Commitment. Alternate Currency Loans shall be in such minimum
amounts as are set forth in the applicable Alternate Currency Addendum.
2.7 Prepayments.
(a) The Borrowers may from time to time pay, without
penalty or premium, all outstanding Floating Rate Advances, or, in a minimum
aggregate amount of $5,000,000 or any integral multiple of $1,000,000 in excess
thereof, any portion of the outstanding Floating Rate Advances upon one Business
Days' prior notice to the Administrative Agent, who shall give prompt notice
thereof to the Lenders.
(b) The Borrowers may from time to time pay, subject to
the payment of any funding indemnification amounts required by Section 3.4 but
without penalty or premium, all outstanding Eurocurrency Advances, or, in a
minimum aggregate Equivalent Amount of $5,000,000 or any integral multiple
Equivalent Amount of $1,000,000 in excess thereof, or in the case of a
Multicurrency Advance, such other lesser multiple as the Administrative Agent
deems appropriate, any portion of the outstanding Eurocurrency Advances upon
three Business Days' prior notice to the Administrative Agent, who shall give
prompt notice thereof to the Lenders.
(c) If at any time, for any reason, the Aggregate
Outstanding Credit Exposure of all Lenders shall exceed the Aggregate Commitment
then in effect, the Borrowers shall, without notice or demand, immediately
prepay the Dollar Loans and/or Multicurrency Loans such that the sum of the
aggregate principal amount of Dollar Loans so prepaid and the Equivalent Amount
of the aggregate principal amount of Multicurrency Loans so prepaid, at least
equals the amount of such excess.
(d) If, at any time for any reason, either (i) the
Aggregate Multicurrency Outstanding Credit Exposure of all Multicurrency Lenders
exceed the Aggregate Multicurrency Commitments of the Multicurrency Lenders or
(ii) the Aggregate Dollar Outstanding Credit Exposure of all Lenders exceed the
aggregate Dollar Commitments of all Lenders, the Borrowers shall, without notice
or demand, immediately prepay the Multicurrency Loans in the Equivalent Amount
at least equal to the excess referred to in (i) and the Dollar Loans in an
amount at least equal to the excess referred to in (ii).
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(e) Each prepayment pursuant to this Section 2.7 shall be
accompanied by accrued and unpaid interest on the amount prepaid to the date of
prepayment and any amounts payable under Section 3.4 in connection with such
payment.
(f) Notwithstanding the foregoing, mandatory prepayments
of Multicurrency Loans that would otherwise be required pursuant to this Section
2.7 solely as a result of fluctuations in exchange rates from time to time shall
only be required to be made pursuant to this Section 2.7 on a Computation Date
on the basis of the exchange rates in effect on such Computation Date.
2.8 Method of Selecting Types and Interest Periods for New
Advances.
The Company or the relevant Borrower shall select the Type of Advance
and, in the case of each Eurocurrency Advance, the Interest Period and Agreed
Currency applicable thereto from time to time. The Company or the relevant
Borrower shall give the Administrative Agent irrevocable notice (a "Borrowing
Notice") not later than 10:00 a.m. (Chicago time) on the Borrowing Date of each
Floating Rate Advance (other than Swingline Loans), not later than 11:00 a.m.
(Chicago time) three Business Days before the Borrowing Date for each
Eurocurrency Advance in Dollars, and not later than 11:00 a.m. (London time)
three Business Days before the Borrowing Date for each Multicurrency Advance in
an Agreed Currency other than Dollars, specifying:
(i) the Borrower,
(ii) the Borrowing Date, which shall be a Business Day, of
such Advance,
(iii) the aggregate amount of such Advance,
(iv) the Type of Advance selected,
(v) in the case of each Eurocurrency Advance, the
Interest Period, and Agreed Currency applicable
thereto, and
(vi) details relating to funds transfer for such Advance.
The Company or the relevant Borrower shall give the Administrative
Agent notice of its request not later than 2:00 p.m. Chicago time on the same
Business Day such Swingline Loan is requested to be made for each Swingline Loan
in Dollars and not later than 2:00 p.m. London time on the same Business Day
such Swingline Loan is requested to be made for each Swingline Loan in any
Agreed Currency other than Dollars. Not later than noon (Chicago time) on each
Borrowing Date, each Lender shall make available its Loan or Loans in funds
immediately available to the Administrative Agent at its address specified
pursuant to Article XIII. The Administrative Agent will make the funds so
received from the Lenders available to the Borrower at the Administrative
Agent's aforesaid address.
2.9 Conversion and Continuation of Outstanding Advances.
Floating Rate Advances shall continue as Floating Rate Advances unless
and until such Floating Rate Advances are converted into Eurocurrency Advances
pursuant to this Section 2.9 or are repaid in accordance with Section 2.7. Each
Eurocurrency Advance shall continue as a Eurocurrency Advance until the end of
the then applicable Interest Period therefor, at which time:
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(i) each such Eurocurrency Advance denominated in Dollars shall be
automatically converted into a Floating Rate Advance unless (x) such
Eurocurrency Advance is or was repaid in accordance with Section 2.7 or (y) the
Borrower shall have given the Administrative Agent a Conversion/Continuation
Notice (as defined below) requesting that, at the end of such Interest Period,
such Eurocurrency Advance either continue as a Eurocurrency Advance for the same
or another Interest Period or be converted into a Floating Rate Advance; and
(ii) each such Multicurrency Advance shall automatically continue
as a Multicurrency Advance in the same Agreed Currency with an Interest Period
of one month unless (x) such Multicurrency Advance is or was repaid in
accordance with Section 2.7 or (y) the Borrower shall have given the
Administrative Agent a Conversion/Continuation Notice (as defined below)
requesting that, at the end of such Interest Period, such Multicurrency Advance
continue as a Multicurrency Advance for the same or another Interest Period.
Subject to the terms of Section 2.6, the Borrower may elect from time
to time to convert all or any part of an Advance of any Type into any other Type
or Types of Advances denominated in the same or any other Agreed Currency (other
than an Alternate Currency); provided that any conversion of any Eurocurrency
Advance shall be made on, and only on, the last day of the Interest Period
applicable thereto. The Borrower shall give the Administrative Agent irrevocable
notice (a "Conversion/Continuation Notice") of each conversion of an Advance or
continuation of a Eurocurrency Advance not later than 10:00 a.m. (Chicago time)
at least one Business Day, in the case of a conversion into a Floating Rate
Advance, three Business Days, in the case of a conversion into or continuation
of a Eurocurrency Advance denominated in Dollars, or four Business Days, in the
case of a conversion into or continuation of a Multicurrency Advance, prior to
the date of the requested conversion or continuation, specifying:
i. the requested date, which shall be a Business Day, of such
conversion or continuation, and
ii. the Agreed Currency, amount and Type(s) of Advance(s) into
which such Advance is to be converted or continued and, in the
case of a conversion into or continuation of a Eurocurrency
Advance, the duration of the Interest Period applicable
thereto.
2.10 Method of Borrowing.
On each Borrowing Date, each Lender shall make available its Loan or
Loans, if any, (i) if such Loan is a Dollar Loan or a Multicurrency Loan
denominated in Dollars, not later than noon, Chicago time, in Federal or other
funds immediately available to the Administrative Agent, in Chicago, Illinois at
its address specified in or pursuant to Article XIII and, (ii) if such Loan is a
Multicurrency Loan, denominated in Agreed Currency other than Dollars and
subject to any applicable Alternate Currency Addendum, not later than noon,
local time, in the city of the Administrative Agent's Eurocurrency Payment
Office for such currency, in such funds as may then be customary for the
settlement of international transactions in such currency in the city of and at
the address of the Administrative Agent's Eurocurrency Payment Office for such
currency. Unless the Administrative Agent determines that any applicable
condition specified in Article IV has not been satisfied, the Administrative
Agent will make the funds so received from the Lenders available to the relevant
Borrower at the Administrative Agent's aforesaid address. Notwithstanding the
foregoing provisions of this Section 2.10, to the extent that a Loan made by a
Lender matures on the Borrowing Date of a requested Loan in the same currency,
such Lender shall apply the proceeds of the Loan it is then making to the
repayment of principal of the maturing Loan.
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2.11 Changes in Interest Rate, etc.
Each Floating Rate Advance shall bear interest on the outstanding
principal amount thereof, for each day from and including the date such Advance
is made or is converted from a Eurocurrency Advance into a Floating Rate Advance
pursuant to Section 2.9 to but excluding the date it becomes due or is converted
into a Eurocurrency Advance pursuant to Section 2.9 hereof, at a rate per annum
equal to the Floating Rate for such day. Changes in the rate of interest on that
portion of any Advance maintained as a Floating Rate Advance will take effect
simultaneously with each change in the Alternate Base Rate. Each Eurocurrency
Advance shall bear interest on the outstanding principal amount thereof from and
including the first day of the Interest Period applicable thereto to (but not
including) the last day of such Interest Period at the interest rate determined
by the Administrative Agent as applicable to such Eurocurrency Advance based
upon the Borrower's selections under Sections 2.8 and 2.9 and otherwise in
accordance with the terms hereof. No Interest Period may end after the Facility
Termination Date.
2.12 Rates Applicable After Default.
Notwithstanding anything to the contrary contained in Section 2.8 or
2.9, during the continuance of a Default or Unmatured Default the Required
Lenders may, at their option, by notice to the Borrowers (which notice may be
revoked at the option of the Required Lenders notwithstanding any provision of
Section 8.2 requiring unanimous consent of the Lenders to changes in interest
rates), declare that no Advance may be made as, converted into or continued as a
Eurocurrency Advance. During the continuance of a Default the Required Lenders
may, at their option, by notice to the Borrowers (which notice may be revoked at
the option of the Required Lenders notwithstanding any provision of Section 8.2
requiring unanimous consent of the Lenders to changes in interest rates),
declare that (i) each Eurocurrency Advance shall bear interest for the remainder
of the applicable Interest Period at the rate otherwise applicable to such
Interest Period plus 2% per annum and (ii) each Floating Rate Advance shall bear
interest at a rate per annum equal to the Floating Rate in effect from time to
time plus 2% per annum, and (iii) the LC Fee shall be increased by 2% per annum,
provided that, during the continuance of a Default under Section 7.6 or 7.7, the
interest rates set forth in clauses (i) and (ii) above and the increase in the
LC Fee set forth in clause (iii) above shall be applicable to all Credit
Extensions without any election or action on the part of the Administrative
Agent or any Lender.
2.13 Method of Payment.
(i) Each Advance shall be repaid and each payment of interest
thereon shall be paid in the currency in which such Advance was made or
converted into. All payments of the Obligations hereunder shall be made, without
setoff, deduction, or counterclaim, in immediately available funds by wire
transfer to the Administrative Agent at (except as set forth in the next
sentence) the Administrative Agent's address specified pursuant to Article XIII,
or at any other Lending Installation of the Administrative Agent specified in
writing by the Administrative Agent to the Borrower, by noon (local time) on the
date when due and (except for payments on Swingline Loans and Alternate Currency
Loans and except in the case of Reimbursement Obligations for which the LC
Issuer has not been fully indemnified by the Lenders or except as otherwise
specifically required hereunder), shall be applied ratably by the Administrative
Agent among the Lenders. All payments to be made by the Borrowers hereunder in
any currency other than Dollars shall be made in such currency on the date due
in such funds as may then be customary for the settlement of international
transactions in such currency for the account of the Administrative Agent, at
its Eurocurrency Payment Office for such currency and, except for payments of
Alternate Currency Loans, shall be applied ratably by the Administrative Agent
among the Lenders. Each payment delivered to the Administrative Agent for the
account of any Lender shall be delivered promptly by the Administrative Agent to
such Lender in the same type of funds that the Administrative Agent received at,
(a) with respect to Floating Rate Loans and
25
Eurocurrency Loans denominated in Dollars, its address specified pursuant to
Article XIII or at any Lending Installation specified in a notice received by
the Administrative Agent from such Lender and (b) with respect to Eurocurrency
Loans denominated in an Agreed Currency other than Dollars, in the funds
received from the Borrower at the address of the Administrative Agent's
Eurocurrency Payment Office for such currency. In relation to the payment of any
amount of Euro, such amount shall be made available to the Administrative Agent
in immediately available, freely transferable, cleared funds to such account
with such bank in London (or such other principal financial center in such
Participating Member State as the Administrative Agent may from time to time
nominate for this purpose) as the Administrative Agent shall from time to time
nominate for this purpose.
(ii) Notwithstanding the foregoing provisions of this Section, if,
after the making of any Advance in any currency other than Dollars, currency
control or exchange regulations are imposed in the country which issues such
currency with the result that the type of currency in which the Advance was made
(the "Original Currency") no longer exists or the relevant Borrower is not able
to make payment to the Administrative Agent for the account of the Lenders in
such Original Currency, then all payments to be made by the Borrowers hereunder
in such currency shall instead be made when due in Dollars in an amount equal to
the Dollar Amount (as of the date of repayment) of such payment due, it being
the intention of the parties hereto that the Borrowers take all risks of the
imposition of any such currency control or exchange regulations. For purposes of
this Section 2.13(ii), the commencement of the third stage of European Economic
and Monetary Union shall not constitute the imposition of currency control or
exchange regulations.
2.14 Noteless Agreement; Evidence of Indebtedness.
(i) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of each Borrower to
such Lender resulting from each Loan made by such Lender from time to time,
including the amounts of principal and interest payable and paid to such Lender
from time to time hereunder.
(ii) The Administrative Agent shall maintain accounts in which it
will record (a) the amount of each Loan made hereunder, the Agreed Currency and
Type thereof and, if applicable, the Interest Period with respect thereto, (b)
the amount of any principal or interest due and payable or to become due and
payable from each Borrower to each Lender hereunder, (c) the original stated
amount of each Facility LC and the amount of LC Obligations outstanding at any
time, and (d) the amount of any sum received by the Administrative Agent
hereunder from the Borrowers and each Lender's share thereof.
(iii) The entries maintained in the accounts maintained pursuant to
paragraphs (i) and (ii) above shall be prima facie evidence of the existence and
amounts of the Obligations therein recorded; provided, however, that the failure
of the Administrative Agent or any Lender to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrowers to repay
the Obligations in accordance with their terms.
(iv) Any Lender may request that its Loans be evidenced by a
promissory note (a "Note"). In such event, the relevant Borrower shall prepare,
execute and deliver to such Lender a Note payable to the order of such Lender in
a form supplied by the Administrative Agent and reasonably acceptable to the
Company. Thereafter, the Loans evidenced by such Note and interest thereon shall
at all times (including after any assignment pursuant to Section 12.3) be
26
represented by one or more Notes (but not more than one Note for each Agreed
Currency) payable to the order of the payee named therein or any assignee
pursuant to Section 12.3, except to the extent that any such Lender or assignee
subsequently returns any such Note for cancellation and requests that such Loans
once again be evidenced as described in paragraphs (i) and (ii) above.
2.15 Telephonic Notices.
The Borrowers hereby authorize the Lenders and the Administrative Agent
to extend, convert or continue Advances, effect selections of Agreed Currencies
and Types of Advances and to transfer funds based on telephonic notices given to
the Administrative Agent by any person or persons listed on Schedule 8, as such
Schedule may be revised by the Company from time to time in accordance with
Section 13.1, it being understood that the foregoing authorization is
specifically intended to allow Borrowing Notices and Conversion/Continuation
Notices to be given telephonically. The Borrowers agree to deliver promptly to
the Administrative Agent a written confirmation, if such confirmation is
requested by the Administrative Agent or any Lender, of each telephonic notice
signed by an Authorized Officer. If the written confirmation differs in any
material respect from the action taken by the Administrative Agent and the
Lenders, the records of the Administrative Agent regarding the telephonic notice
shall govern absent manifest error.
2.16 Interest Payment Dates; Interest and Fee Basis.
Interest accrued on each Floating Rate Advance shall be payable on each
Payment Date, commencing with the first such date to occur after the date
hereof, on any date on which the Floating Rate Advance is prepaid, whether due
to acceleration or otherwise, and at maturity. Interest on Floating Rate Loans
shall be calculated for actual days elapsed on the basis of a 365 or 366-day
year, as appropriate. Interest accrued on that portion of the outstanding
principal amount of any Floating Rate Advance converted into a Eurocurrency
Advance on a day other than a Payment Date shall be payable on the date of
conversion. Interest accrued on each Eurocurrency Advance shall be payable in
arrears on the last day of its applicable Interest Period, on any date on which
the Eurocurrency Advance is prepaid, whether by acceleration or otherwise, and
at maturity, and with respect to any Alternate Currency Loan, the date specified
as the date on which interest is payable in the applicable Alternate Currency
Addendum. Interest accrued on each Eurocurrency Advance having an Interest
Period longer than three months shall also be payable on the last day of each
three-month interval during such Interest Period. Interest, facility fees and LC
Fees shall be calculated for actual days elapsed on the basis of a 360-day year,
except for interest on Loans denominated in British Pounds Sterling which shall
be calculated for actual days elapsed on the basis of a 365-day year. Interest
shall be payable for the day an Advance is made but not for the day of any
payment on the amount paid if payment is received prior to noon (local time) at
the place of payment. If any payment of principal of or interest on an Advance
shall become due on a day which is not a Business Day, such payment shall be
made on the next succeeding Business Day and, in the case of a principal
payment, such extension of time shall be included in computing interest in
connection with such payment.
2.17 Notification of Advances, Interest Rates, Prepayments and Commitment
Reductions.
Promptly after receipt thereof, the Administrative Agent will notify
each Lender of the contents of each Aggregate Commitment reduction notice,
Borrowing Notice, Conversion/Continuation Notice, and repayment notice received
by it hereunder. Promptly after notice from the LC Issuer, the Administrative
Agent shall notify each Lender of the contents of each request for issuance of a
Facility LC hereunder. The Administrative Agent will notify each Lender, the
Company and the relevant Borrower of the interest rate applicable to each
Eurocurrency Advance promptly upon determination of
27
such interest rate and will give each Lender and the Company prompt notice of
each change in the Alternate Base Rate.
2.18 Lending Installations.
Each Lender will book its Loans and its participation in LC Obligations
and the LC Issuer may book the Facility LCs at the appropriate Lending
Installation listed on Schedule 4 or such other Lending Installation designated
by such Lender or the LC Issuer in accordance with the final sentence of this
Section 2.18. All terms of this Agreement shall apply to any such Lending
Installation and the Loans, Facility LCs, participation in LC Obligations and
any Notes issued hereunder shall be deemed held by each Lender or the LC Issuer,
as the case may be, for the benefit of any such Lending Installation. Each
Lender and the LC Issuer may, by not less than one days' prior written notice to
the Administrative Agent and the Borrowers in accordance with Article XIII,
designate replacement or additional Lending Installations through which Loans
will be made by it or Facility LCs will be issued by it and for whose account
Loan payments or payments with respect to Facility LCs are to be made.
2.19 Non-Receipt of Funds by the Administrative Agent.
(a) Unless the relevant Borrower or a Lender, as the case may be,
notifies the Administrative Agent prior to the date on which it is scheduled to
make payment to the Administrative Agent of (i) in the case of a Lender, the
proceeds of a Loan or any payment by such Lender pursuant to Sections
2.1(a)(iv), 2.1(b)(iii) or 2.1(c)(iv), or (ii) in the case of such Borrower, a
payment of principal, interest or fees to the Administrative Agent for the
account of the Lenders, that it does not intend to make such payment, the
Administrative Agent may assume that such payment has been made. The
Administrative Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption. If
such Lender or the Borrower, as the case may be, has not in fact made such
payment to the Administrative Agent, the recipient of such payment shall, on
demand by the Administrative Agent, repay to the Administrative Agent the amount
so made available together with interest thereon in respect of each day during
the period commencing on the date such amount was so made available by the
Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to (x) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day or such other rate which is customary
for the settlement of overnight interbank transactions in the currency of such
payment, or (y) in the case of payment by the Borrower, the interest rate
applicable to the relevant Loan. With respect to Multicurrency Advances, a
payment shall be deemed to have been made by the Administrative Agent on the
date on which it is required to be made under this Agreement if the
Administrative Agent has, on or before that date, taken all relevant steps to
make that payment. With respect to the payment of any amount denominated in
Euro, the Administrative Agent shall not be liable to any Borrower or any of the
Lenders in any way whatsoever for any delay, or the consequences of any delay,
in the crediting to any account of any amount required by this Agreement to be
paid by the Administrative Agent if the Administrative Agent shall have taken
all relevant steps to achieve, on the date required by this Agreement, the
payment of such amount in immediately available, freely transferable, cleared
funds in Euros to the account with the bank in the principal financial center in
the Participating Member State which the relevant Borrower or, as the case may
be, any Lender shall have specified for such purpose. In this Section 2.19, "all
relevant steps" means all such steps as may be prescribed from time to time by
the regulations or operating procedures of such clearing or settlement system as
the Administrative Agent may from time to time determine for the purpose of
clearing or settling payments of Euros.
(b) The failure of any Lender to make the Loan to be made by it as
part of any Advance shall not relieve any other Lender of its obligation
hereunder to make its Loan on the date of such Advance, but no Lender, except as
otherwise provided in the next sentence of this Section 2.19(b), shall be
responsible for the failure of a Defaulting Lender to make the Loan to be made
by such Defaulting
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Lender on the date of any Advance. Notwithstanding the foregoing sentence, but
otherwise subject to the terms and conditions of this Agreement, the
Administrative Agent shall notify each Lender of the failure by a Defaulting
Lender to make a Dollar Loan required to be made by it hereunder (the amount not
made available being the "Unpaid Amount"), and each Lender shall immediately
transfer to the Administrative Agent on such date the lesser of such Lender's
proportionate share (based on its Dollar Commitment divided by the Dollar
Commitments of all Lenders that have not so failed to fund their Loans) of the
Unpaid Amount and its unused Commitment. Any such transfer shall be deemed to be
a Floating Rate Loan by such Lender. Each Defaulting Lender shall pay on demand
to each other Lender that makes a payment under this Section 2.19(b) the amount
paid by such other Lender to cover such failure, together with interest thereon,
for each day from the date such payment was made until the date such other
Lender has been paid such amount in full, at a rate per annum equal to the
Federal Funds Effective Rate plus two percent (2%).
2.20 Facility LCs.
2.20.1. Issuance. The LC Issuer hereby agrees, on the terms
and conditions set forth in this Agreement, to issue commercial and
standby letters of credit (each, a "Facility LC") and to renew, extend,
increase, decrease or otherwise modify each Facility LC ("Modify," and
each such action a "Modification"), from time to time from and
including the date of this Agreement and prior to the Facility
Termination Date upon the request of a Borrower; provided that
immediately after each such Facility LC is issued or Modified, (i) the
aggregate amount of the outstanding LC Obligations shall not exceed
$150,000,000, (ii) the Aggregate Dollar Outstanding Credit Exposure
shall not exceed the Aggregate Dollar Commitments, and (iii) the
Aggregate Outstanding Credit Exposure shall not exceed the Aggregate
Commitment. No Facility LC shall have an expiry date later than the
earlier of (x) the fifth Business Day prior to the Facility Termination
Date and (y) one year after its issuance.
2.20.2. Participations. Upon the issuance or Modification by
the LC Issuer of a Facility LC in accordance with this Section 2.20,
the LC Issuer shall be deemed, without further action by any party
hereto, to have unconditionally and irrevocably sold to each Lender,
and each Lender shall be deemed, without further action by any party
hereto, to have unconditionally and irrevocably purchased from the LC
Issuer, a participation in such Facility LC (and each Modification
thereof) and the related LC Obligations in proportion to its Pro Rata
Share.
2.20.3. Notice. Subject to Section 2.20.1, a Borrower shall
give the LC Issuer notice prior to 10:00 a.m. (Chicago time) at least
three Business Days prior to the proposed date of issuance or
Modification of each Facility LC, specifying the beneficiary, the
proposed date of issuance (or Modification) and the expiry date of such
Facility LC, and describing the proposed terms of such Facility LC and
the nature of the transactions proposed to be supported thereby. Upon
receipt of such notice, the LC Issuer shall promptly notify the
Administrative Agent, and the Administrative Agent shall promptly
notify each Lender, of the contents thereof (including whether it is a
standby or commercial letter of credit) and of the amount of such
Lender's participation in such proposed Facility LC. The issuance or
Modification by the LC Issuer of any Facility LC shall, in addition to
the conditions precedent set forth in Article IV (the satisfaction of
which the LC Issuer shall have no duty to ascertain), be subject to the
conditions precedent that such Facility LC shall be satisfactory to the
LC Issuer and that the Borrower shall have executed and delivered such
application agreement and/or such other instruments and agreements
relating to such Facility LC as the LC Issuer shall have reasonably
requested (each, a "Facility LC Application"). In the event of any
conflict between the terms of this Agreement and the terms of any
Facility LC Application, the terms of this Agreement shall control.
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2.20.4. LC Fees. The Borrower shall pay to the Administrative
Agent, for the account of the Lenders ratably in accordance with their
respective Pro Rata Shares, (i) with respect to each standby Facility
LC, a letter of credit fee at a per annum rate equal to the Applicable
Margin in effect from time to time on the average daily undrawn stated
amount under such standby Facility LC, such fee to be payable in
arrears on each Payment Date and (ii) with respect to each commercial
Facility LC, a one-time letter of credit fee in an amount agreed upon
between the LC Issuer and the Borrower at the time of issuance
calculated on the initial stated amount (or, with respect to any
Modification of any such commercial Facility LC which increases the
stated amount thereof, such increase in the stated amount) thereof,
such fee to be payable on the date of such issuance of increase (such
fee described in this sentence an "LC Fee"). The Borrower shall also
pay to the LC Issuer for its own account (x) at the time of issuance of
each Facility LC, a fronting fee (A) in the amount of 0.125% per annum
calculated on the stated amount of each standby Facility LC, and (B) in
an amount to be agreed upon between the LC Issuer and the Borrower with
respect to each commercial Facility LC, and (y) documentary and
processing charges in connection with the issuance or Modification of
and draws under Facility LCs in accordance with the LC Issuer's
standard schedule for such charges as in effect from time to time.
2.20.5. Administration; Reimbursement by Lenders. Upon
receipt from the beneficiary of any Facility LC of any demand for
payment under such Facility LC, the LC Issuer shall notify the
Administrative Agent and the Administrative Agent shall promptly notify
the Borrower and each other Lender as to the amount to be paid by the
LC Issuer as a result of such demand and the proposed payment date (the
"LC Payment Date"). The responsibility of the LC Issuer to the Borrower
and each Lender shall be only to determine that the documents
(including each demand for payment) delivered under each Facility LC in
connection with such presentment shall be in conformity in all material
respects with such Facility LC. The LC Issuer shall endeavor to
exercise the same care in the issuance and administration of the
Facility LCs as it does with respect to letters of credit in which no
participations are granted, it being understood that in the absence of
any gross negligence or willful misconduct by the LC Issuer, each
Lender shall be unconditionally and irrevocably liable without regard
to the occurrence of any Default or any condition precedent whatsoever,
to reimburse the LC Issuer on demand for (i) such Lender's Pro Rata
Share of the amount of each payment made by the LC Issuer under each
Facility LC to the extent such amount is not reimbursed by the Borrower
pursuant to Section 2.20.6 below, plus (ii) interest on the foregoing
amount to be reimbursed by such Lender, for each day from the date of
the LC Issuer's demand for such reimbursement (or, if such demand is
made after 11:00 a.m. (Chicago time) on such date, from the next
succeeding Business Day) to the date on which such Lender pays the
amount to be reimbursed by it, at a rate of interest per annum equal to
the Federal Funds Effective Rate for the first three days and,
thereafter, at a rate of interest equal to the rate applicable to
Floating Rate Advances.
2.20.6. Reimbursement by Borrowers. The Borrower shall be
irrevocably and unconditionally obligated to reimburse the LC Issuer on
or before the applicable LC Payment Date for any amounts to be paid by
the LC Issuer upon any drawing under any Facility LC issued for such
Borrower's account, without presentment, demand, protest or other
formalities of any kind; provided that neither any Borrower nor any
Lender shall hereby be precluded from asserting any claim for direct
(but not consequential) damages suffered by such Borrower or such
Lender to the extent, but only to the extent, caused by (i) the willful
misconduct or gross negligence of the LC Issuer in determining whether
a request presented under any Facility LC issued by it complied with
the terms of such Facility LC or (ii) the LC Issuer's failure to pay
under any Facility LC issued by it after the presentation to it of a
request strictly complying with the terms and conditions of such
Facility LC. All such amounts paid by the LC Issuer and remaining
unpaid by a Borrower shall bear interest, payable on demand, for each
day until paid at a rate per
30
annum equal to (x) the rate applicable to Floating Rate Advances for
such day if such day falls on or before the applicable LC Payment Date
and (y) the sum of 2% plus the rate applicable to Floating Rate
Advances for such day if such day falls after such LC Payment Date. The
LC Issuer will pay to each Lender ratably in accordance with its Pro
Rata Share all amounts received by it from a Borrower for application
in payment, in whole or in part, of the Reimbursement Obligation in
respect of any Facility LC issued by the LC Issuer, but only to the
extent such Lender has made payment to the LC Issuer in respect of such
Facility LC pursuant to Section 2.20.5. Subject to the terms and
conditions of this Agreement (including without limitation the
submission of a Borrowing Notice in compliance with Section 2.8 and the
satisfaction of the applicable conditions precedent set forth in
Article IV), a Borrower may request an Advance hereunder for the
purpose of satisfying any Reimbursement Obligation.
2.20.7. Obligations Absolute. Each Borrower's obligations
under this Section 2.20 shall be absolute and unconditional under any
and all circumstances and irrespective of any setoff, counterclaim or
defense to payment which a Borrower may have or have had against the LC
Issuer, any Lender or any beneficiary of a Facility LC. Each Borrower
further agrees with the LC Issuer and the Lenders that the LC Issuer
and the Lenders shall not be responsible for, and the Borrower's
Reimbursement Obligation in respect of any Facility LC shall not be
affected by, among other things, the validity or genuineness of
documents or of any endorsements thereon, even if such documents should
in fact prove to be in any or all respects invalid, fraudulent or
forged, or any dispute between or among the Borrower, any of its
Affiliates, the beneficiary of any Facility LC or any financing
institution or other party to whom any Facility LC may be transferred
or any claims or defenses whatsoever of the Borrower or of any of its
Affiliates against the beneficiary of any Facility LC or any such
transferee. The LC Issuer shall not be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any
message or advice, however transmitted, in connection with any Facility
LC. Each Borrower agrees that any action taken or omitted by the LC
Issuer or any Lender under or in connection with each Facility LC and
the related drafts and documents, if done without gross negligence or
willful misconduct, shall be binding upon the Borrower and shall not
put the LC Issuer or any Lender under any liability to the Borrower.
Nothing in this Section 2.20.7 is intended to limit the right of a
Borrower to make a claim against the LC Issuer for damages as
contemplated by the proviso to the first sentence of Section 2.20.6.
2.20.8. Actions of LC Issuer. The LC Issuer shall be entitled
to rely, and shall be fully protected in relying, upon any Facility LC,
draft, writing, resolution, notice, consent, certificate, affidavit,
letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document 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, independent
accountants and other experts selected by the LC Issuer. The LC Issuer
shall be fully justified in failing or refusing to take any action
under this Agreement unless it shall first have received such advice or
concurrence of the Required Lenders or all Lenders, as the case may be
in accordance with Section 8.2.2, as it reasonably deems appropriate or
it shall first be indemnified to its reasonable 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.
Notwithstanding any other provision of this Section 2.20, the LC Issuer
shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement in accordance with a request of the
Required Lenders or, if required pursuant to Section 8.2.2, all
Lenders, and such request and any action taken or failure to act
pursuant thereto shall be binding upon the Lenders and any future
holders of a participation in any Facility LC.
2.20.9. Indemnification. Each Borrower hereby agrees to
indemnify and hold harmless each Lender, the LC Issuer and the
Administrative Agent, and their respective directors, officers,
31
agents and employees from and against any and all claims and damages,
losses, liabilities, costs or expenses which such Lender, the LC Issuer
or the Administrative Agent may incur (or which may be claimed against
such Lender, the LC Issuer or the Administrative Agent by any Person
whatsoever) by reason of or in connection with the issuance, execution
and delivery or transfer of or payment or failure to pay under any
Facility LC or any actual or proposed use of any Facility LC,
including, without limitation, any claims, damages, losses,
liabilities, costs or expenses which the LC Issuer may incur by reason
of or in connection with (i) the failure of any other Lender to fulfill
or comply with its obligations to the LC Issuer hereunder (but nothing
herein contained shall affect any rights the Borrower may have against
any defaulting Lender) or (ii) by reason of or on account of the LC
Issuer issuing any Facility LC which specifies that the term
"Beneficiary" included therein includes any successor by operation of
law of the named Beneficiary, but which Facility LC does not require
that any drawing by any such successor Beneficiary be accompanied by a
copy of a legal document, satisfactory to the LC Issuer, evidencing the
appointment of such successor Beneficiary; provided that the Borrower
shall not be required to indemnify any Lender, the LC Issuer or the
Administrative Agent for any claims, damages, losses, liabilities,
costs or expenses to the extent, but only to the extent, caused by (x)
the willful misconduct or gross negligence of the LC Issuer in
determining whether a request presented under any Facility LC complied
with the terms of such Facility LC or (y) the LC Issuer's failure to
pay under any Facility LC after the presentation to it of a request
strictly complying with the terms and conditions of such Facility LC.
Nothing in this Section 2.20.9 is intended to limit the obligations of
the Borrower under any other provision of this Agreement.
2.20.10. Lenders' Indemnification. Each Lender shall, ratably
in accordance with its Pro Rata Share, indemnify the LC Issuer, its
affiliates and their respective directors, officers, agents and
employees (to the extent not reimbursed by the Borrower) against any
cost, expense (including reasonable counsel fees and disbursements),
claim, demand, action, loss or liability (except such as result from
such indemnitees' gross negligence or willful misconduct or the LC
Issuer's failure to pay under any Facility LC after the presentation to
it of a request strictly complying with the terms and conditions of the
Facility LC) that such indemnitees may suffer or incur in connection
with this Section 2.20 or any action taken or omitted by such
indemnitees hereunder.
2.20.11. Facility LC Collateral Account. Each Borrower agrees
that it will, upon the request of the Administrative Agent or the
Required Lenders and until the final expiration date of any Facility LC
and thereafter as long as any amount is payable to the LC Issuer or the
Lenders in respect of any Facility LC, maintain a special collateral
account pursuant to arrangements satisfactory to the Administrative
Agent (the "Facility LC Collateral Account") at the Administrative
Agent's office at the address specified pursuant to Article XIII, in
the name of such Borrower but under the sole dominion and control of
the Administrative Agent, for the benefit of the Lenders and in which
such Borrower shall have no interest other than as set forth in Section
8.1. Each Borrower hereby pledges, assigns and grants to the
Administrative Agent, on behalf of and for the ratable benefit of the
Lenders and the LC Issuer, a security interest in all of the Borrower's
right, title and interest in and to all funds which may from time to
time be on deposit in the Facility LC Collateral Account to secure the
prompt and complete payment and performance of the Obligations. The
Administrative Agent will invest any funds on deposit from time to time
in the Facility LC Collateral Account in certificates of deposit of
Bank One having a maturity not exceeding 30 days. Nothing in this
Section 2.20.11 shall either obligate the Administrative Agent to
require the Borrower to deposit any funds in the Facility LC Collateral
Account, obligate the Borrower to deposit any funds in the Facility LC
Collateral Account or limit the right of the Administrative Agent to
release any funds held in the Facility LC Collateral Account in each
case other than as required by Section 8.1.
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2.20.12. Rights as a Lender. In its capacity as a Lender, the
LC Issuer shall have the same rights and obligations as any other
Lender
2.21 Market Disruption.
Notwithstanding the satisfaction of all conditions referred to in
Article II and Article IV with respect to any Advance in any Agreed Currency
other than Dollars, if there shall occur on or prior to the date of such Advance
any change in national or international financial, political or economic
conditions or currency exchange rates or exchange controls which would in the
reasonable opinion of the Administrative Agent or the Required Lenders make it
impracticable for the Eurocurrency Loans comprising such Advance to be
denominated in the Agreed Currency specified by the relevant Borrower, then the
Administrative Agent shall forthwith give notice thereof to the Borrowers and
the Lenders, and such Loans shall not be denominated in such Agreed Currency but
shall be made on such Borrowing Date in Dollars, in an aggregate principal
amount equal to the Dollar Amount of the aggregate principal amount specified in
the related Borrowing Notice or Conversion/Continuation Notice, as the case may
be, as Floating Rate Loans, unless the relevant Borrower notifies the
Administrative Agent at least two Business Days before such date that (i) it
elects not to borrow on such date or (ii) it elects to borrow on such date in a
different Agreed Currency, as the case may be, in which the denomination of such
Loans would in the opinion of the Administrative Agent and the Required Lenders
be practicable and in an aggregate principal amount equal to the Dollar Amount
of the aggregate principal amount specified in the related Borrowing Notice or
Conversion/Continuation Notice, as the case may be.
2.22 Judgment Currency.
If for the purposes of obtaining judgment in any court it is necessary
to convert a sum due from any Borrower hereunder in the currency expressed to be
payable herein (the "specified currency") into another currency, the parties
hereto agree, to the fullest extent that they may effectively do so, that the
rate of exchange used shall be that at which in accordance with normal banking
procedures the Administrative Agent could purchase the specified currency with
such other currency at the Administrative Agent's main Chicago office on the
Business Day preceding that on which final, non-appealable judgment is given.
The obligations of the Borrowers in respect of any sum due to any Lender or the
Administrative Agent hereunder shall, notwithstanding any judgment in a currency
other than the specified currency, be discharged only to the extent that on the
Business Day following receipt by such Lender or the Administrative Agent (as
the case may be) of any sum adjudged to be so due in such other currency such
Lender or the Administrative Agent (as the case may be) may in accordance with
normal, reasonable banking procedures purchase the specified currency with such
other currency. If the amount of the specified currency so purchased is less
than the sum originally due to such Lender or the Administrative Agent, as the
case may be, in the specified currency, the Borrowers agree, to the fullest
extent that they may effectively do so, as a separate obligation and
notwithstanding any such judgment, to indemnify such Lender or the
Administrative Agent, as the case may be, against such loss, and if the amount
of the specified currency so purchased exceeds (a) the sum originally due to any
Lender or the Administrative Agent, as the case may be, in the specified
currency and (b) any amounts shared with other Lenders as a result of
allocations of such excess as a disproportionate payment to such Lender under
Section 12.2, such Lender or the Administrative Agent, as the case may be,
agrees to remit such excess to the relevant Borrower.
2.23 Payment Provisions Relating to the Euro.
(a) Any amount payable by the Administrative Agent to the
Lenders under this Agreement in the currency of a Participating Member State
shall be paid in the Euro.
33
(b) If, in relation to the currency of any Subsequent
Participant, the basis of accrual of interest or fees expressed in this
Agreement with respect to such currency shall be inconsistent with any
convention or practice in the London Interbank Market or, as the case may be,
the Paris Interbank Market for the basis of accrual of interest or fees in
respect of the Euro, such convention or practice shall replace such expressed
basis effective as of and from the date on which such Subsequent Participant
becomes a Participating Member State; provided, that if any Loan in the currency
of such Subsequent Participant is outstanding immediately prior to such date,
such replacement shall take effect, with respect to such Loan, at the end of the
then current Interest Period.
(c) Without prejudice and in addition to any method of
conversion or rounding prescribed by any EMU legislation and (i) without
prejudice to the respective liabilities for indebtedness of the Borrowers to the
Lenders and the Lenders to the Borrowers under or pursuant to this Agreement and
(ii) without increasing the Multicurrency Commitment of any Lender:
(y) each reference in this Agreement to a minimum amount
(or an integral multiple thereof) in a national currency denomination
of a Subsequent Participant to be paid to or by the Administrative
Agent shall, immediately upon such Subsequent Participant becoming a
Participating Member State, be replaced by a reference to such
reasonably comparable and convenient amount (or an integral multiple
thereof) in Euros as the Administrative Agent may from time to time
specify; and
(z) except as expressly provided in this Section 2.23,
each provision of this Agreement shall be subject to such reasonable
changes of construction as the Administrative Agent may from time to
time specify to be necessary or appropriate.
2.24 Redenomination and Alternative Currencies.
Each obligation under this Agreement of a party to this Agreement which
has been denominated in the national currency unit of a Subsequent Participant
state shall be redenominated into the Euro in accordance with EMU legislation
immediately upon such Subsequent Participant becoming a Participating Member
State (but otherwise in accordance with EMU Legislation).
2.25 Replacement of Lender.
If any Borrower is required pursuant to Section 3.1, 3.2 or 3.5 to make
any additional payment to any Lender or if any Lender's obligation to make or
continue, or to convert Floating Rate Advances into, Eurocurrency Advances shall
be suspended pursuant to Section 3.3, or if any Lender shall become a Defaulting
Lender (any Lender so affected an "Affected Lender"), the Company may elect, if
such amounts continue to be charged or such suspension is still effective, to
replace such Affected Lender as a Lender party to this Agreement, provided that
no Default or Unmatured Default shall have occurred and be continuing at the
time of such replacement, and provided further that, concurrently with such
replacement, (i) another bank or other entity which is reasonably satisfactory
to the Company and the Administrative Agent shall agree, as of such date, to
purchase for cash the Advances and other Obligations due to the Affected Lender
pursuant to an assignment substantially in the form of Exhibit C and to become a
Lender for all purposes under this Agreement and to assume all obligations of
the Affected Lender to be terminated as of such date and to comply with the
requirements of Section 12.3 applicable to assignments, and (ii) the Borrowers
shall pay to such Affected Lender in same day funds on the day of such
replacement all interest, fees and other amounts then accrued but unpaid to such
Affected Lender by the Borrowers hereunder to and including the date of
termination, including without limitation payments due to such Affected Lender
under Sections 3.1, 3.2 and 3.5. Nothing herein shall release any Defaulting
Lender from any obligation it may have to any Borrower, the Administrative Agent
or any other Lender.
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2.26 Application of Payments with Respect to Defaulting Lenders.
No payments of principal, interest or fees delivered to the
Administrative Agent for the account of any Defaulting Lender shall be delivered
by the Administrative Agent to such Defaulting Lender. Instead, such payments
shall, for so long as such Defaulting Lender shall be a Defaulting Lender, be
held by the Administrative Agent, and the Administrative Agent is hereby
authorized and directed by all parties hereto to hold such funds in escrow and
apply such funds as follows:
(a) First, if applicable to any payments due to the
Swingline Lender under Section 2.1(b)(iii); and
(b) Second, to Loans required to be made by such
Defaulting Lender on any Borrowing Date to the extent such Defaulting
Lender fails to make such Loans.
Notwithstanding the foregoing, upon the termination of the Commitments
and the payment and performance of all of the Obligations (other than those
owing to a Defaulting Lender), any funds then held in escrow by the
Administrative Agent pursuant to the preceding sentence shall be distributed to
each Defaulting Lender, pro rata in proportion to amounts that would be due to
each Defaulting Lender but for the fact that it is a Defaulting Lender.
ARTICLE III.
YIELD PROTECTION; TAXES
3.1 Yield Protection.
(a) If, on or after the date of this Agreement, the
adoption of any law or any governmental or quasi-governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law), or any
change in the interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender or
applicable Lending Installation or the LC Issuer with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency:
(i) subjects any Lender or any applicable Lending Installation or
the LC Issuer to any Taxes, or changes the basis of taxation of payments (other
than with respect to Excluded Taxes) to any Lender or the LC Issuer in respect
of its Eurocurrency Loans, Facility LCs or participations therein, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement against
assets of, deposits with or for the account of, or credit extended by, any
Lender or any applicable Lending Installation or the LC Issuer (other than
reserves and assessments taken into account in determining the interest rate
applicable to Eurocurrency Advances), or
(iii) imposes any other condition the result of which is to increase
the cost to any Lender or any applicable Lending Installation or the LC Issuer
of maintaining its Commitment or making, funding or maintaining its Eurocurrency
Loans (including, without limitation, any conversion of any Loan denominated in
an Agreed Currency other than Euro into a Loan denominated in Euro), or of
issuing or participating in Facility LCs, or reduces any amount
35
receivable by any Lender or any applicable Lending Installation or the LC Issuer
in connection with its Eurocurrency Loans, Facility LCs or participations
therein, or requires any Lender or any applicable Lending Installation or the LC
Issuer to make any payment calculated by reference to its Commitment or the
amount of Eurocurrency Loans, Facility LCs or participations therein held or
interest or LC fees received by it, by an amount deemed material by such Lender
or the LC Issuer as the case may be,
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation or the LC Issuer, as the case may be, of making
or maintaining its Eurocurrency Loans (including, without limitation, any
conversion of any Loan denominated in an Agreed Currency other than Euro into a
Loan denominated in Euro) or Commitment or of issuing or participating in
Facility LCs or to reduce the return received by such Lender or applicable
Lending Installation or the LC Issuer, as the case may be, in connection with
such Eurocurrency Loan, or Commitment, Facility LCs or participations therein,
then, within 30 days of demand by such Lender or the LC Issuer, as the case may
be, the relevant Borrower shall pay such Lender or the LC Issuer, as the case
may be, such additional amount or amounts as will compensate such Lender or the
LC Issuer for such increased cost or reduction in amount received.
(b) Non-U.S. Reserve Costs or Fees With Respect to Loans
to Non-U.S. Borrowers. If any law or any governmental or quasi-governmental
rule, regulation, policy, guideline or directive of any jurisdiction outside of
the United States of America or any subdivision thereof (whether or not having
the force of law) imposes or deems applicable any reserve requirement against or
fee with respect to assets of, deposits with or for the account of, or credit
extended by, any Lender or any applicable Lending Installation or the LC Issuer,
and the result of the foregoing is to increase the cost to such Lender or
applicable Lending Installation or the LC Issuer of making or maintaining its
Eurocurrency Loans or of issuing or participating in Facility LCs to any
Borrower that is not incorporated under the laws of the United States of America
or a state thereof (each a "Non-U.S. Borrower") or its Commitment to any
Non-U.S. Borrower or to reduce the return received by such Lender or applicable
Lending Installation or the LC Issuer in connection with such Eurocurrency
Loans, Facility LCs or participations therein to any Non-U.S. Borrower or
Commitment to any Non-U.S. Borrower, then, within 30 days of demand by such
Lender or the LC Issuer, such Non-U.S. Borrower shall pay such Lender or the LC
Issuer such additional amount or amounts as will compensate such Lender or the
LC Issuer, as the case may be, for such increased cost or reduction in amount
received, provided that such Non-U.S. Borrower shall not be required to
compensate any Lender or the LC Issuer for such non-U.S. reserve costs or fees
to the extent that an amount equal to such reserve costs or fees is received by
such Lender or LC Issuer as a result of the calculation of the interest rate
applicable to Eurocurrency Advances pursuant to clause (i)(b) of the definition
of "Eurocurrency Rate."
3.2 Changes in Capital Adequacy Regulations.
If a Lender or the LC Issuer determines the amount of capital required
or expected to be maintained by such Lender or the LC Issuer, any Lending
Installation of such Lender or the LC Issuer or any corporation controlling such
Lender or the LC Issuer is increased as a result of a Change (as defined below),
then, within 15 days of demand by such Lender or the LC Issuer, the Company
shall pay such Lender or the LC Issuer the amount necessary to compensate for
any shortfall in the rate of return on the portion of such increased capital
which such Lender or the LC Issuer determines is attributable to this Agreement,
its Outstanding Credit Exposure or its Commitment to make Loans and issue or
participate in Facility LCs, as the case may be, hereunder (after taking into
account such Lender's or the LC Issuer's policies as to capital adequacy).
"Change" means (i) any change after the date of this Agreement in the Risk-Based
Capital Guidelines or (ii) any adoption of or change in any other law,
governmental or quasi-governmental rule, regulation, policy, guideline,
interpretation, or directive (whether or not having the force of law) after the
date of this Agreement which affects the amount of capital required or expected
to
36
be maintained by any Lender or the LC Issuer or any Lending Installation or any
corporation controlling any Lender or the LC Issuer. "Risk-Based Capital
Guidelines" means (i) the risk-based capital guidelines in effect in the United
States on the date of this Agreement, including transition rules, and (ii) the
corresponding capital regulations promulgated by regulatory authorities outside
the United States implementing the July 1988 report of the Basle Committee on
Banking Regulation and Supervisory Practices Entitled "International Convergence
of Capital Measurements and Capital Standards," including transition rules, and
any amendments to such regulations adopted prior to the date of this Agreement.
3.3 Availability of Types of Advances.
If any Lender determines that maintenance of its Eurocurrency Loans at
a suitable Lending Installation would violate any applicable law, rule,
regulation, or directive, whether or not having the force of law, or if the
Required Lenders determine that (i) deposits of a type, currency and maturity
appropriate to match fund Eurocurrency Advances are not available or (ii) the
interest rate applicable to Eurocurrency Advances does not accurately reflect
the cost of making or maintaining Eurocurrency Advances, then the Administrative
Agent shall suspend the availability of Eurocurrency Advances and require any
affected Eurocurrency Advances to be repaid or converted to Floating Rate
Advances at the end of the then current Interest Period for the affected
Eurocurrency Advance.
3.4 Funding Indemnification.
If any payment of a Eurocurrency Advance occurs on a date which is not
the last day of the applicable Interest Period, whether because of acceleration,
prepayment or otherwise, or a Eurocurrency Advance is not made on the date
specified by a Borrower for any reason other than default by the Lenders, the
Borrowers will indemnify each Lender for any loss or cost incurred by it
resulting therefrom, including, without limitation, any loss or cost in
liquidating or employing deposits acquired to fund or maintain such Eurocurrency
Advance.
3.5 Taxes.
(i) All payments by the Borrowers to or for the account of any
Lender, the LC Issuer or the Administrative Agent hereunder or under any Note or
Facility LC Application shall be made free and clear of and without deduction
for any and all Taxes. If any Borrower shall be required by law to deduct any
Taxes from or in respect of any sum payable hereunder to any Lender, the LC
Issuer or the Administrative Agent, (a) 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 3.5) such Lender, the
LC Issuer or the Administrative Agent (as the case may be) receives an amount
equal to the sum it would have received had no such deductions been made, (b)
the Borrower shall make such deductions, (c) the Borrower shall pay the full
amount deducted to the relevant authority in accordance with applicable law and
(d) the Borrower shall furnish to the Administrative Agent the original copy of
a receipt evidencing payment thereof within 30 days after such payment is made.
(ii) In addition, the Borrowers hereby agree to pay any present or
future stamp or documentary taxes and any other excise or property taxes,
charges or similar levies which arise from any payment made hereunder or under
any Note or Facility LC Application or from the execution or delivery of, or
otherwise with respect to, this Agreement or any Note or Facility LC Application
("Other Taxes").
(iii) The Borrowers hereby agree to indemnify the Administrative
Agent, the LC Issuer and each Lender for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed on amounts
payable under this Section 3.5) paid by
37
the Administrative Agent, the LC Issuer or such Lender and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto. Payments due under this indemnification shall be made within 30 days of
the date the Administrative Agent, the LC Issuer or such Lender makes demand
therefor pursuant to Section 3.6.
(iv) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof (each a "Non-U.S. Lender") agrees
that it will, not less than ten Business Days after the date of this Agreement,
(i) deliver to each of the Company and the Administrative Agent two duly
completed copies of United States Internal Revenue Service Form W-8BEN or
W-8ECI, certifying in either case that such Lender is entitled to receive
payments under this Agreement from the Company and any other Borrower that is
not a Non-U.S. Borrower without deduction or withholding of any United States
federal income taxes, or (ii) deliver to each of the Company and the
Administrative Agent a United States Internal Revenue Form W-8 or W-9, as the
case may be, and certify that it is entitled to an exemption from United States
backup withholding tax. Each Non-U.S. Lender further undertakes to deliver to
each of the Company and the Administrative Agent (x) renewals or additional
copies of such form (or any successor form) on or before the date that such form
expires or becomes obsolete, and (y) after the occurrence of any event requiring
a change in the most recent forms so delivered by it, such additional forms or
amendments thereto as may be reasonably requested by the Company or the
Administrative Agent. All forms or amendments described in the preceding
sentence shall certify that such Lender is entitled to receive payments under
this Agreement without deduction or withholding of any United States federal
income taxes, unless an event (including without limitation any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form or amendment with respect to it and such Lender advises the Company and the
Administrative Agent that it is not capable of receiving payments from the
Company and any other Borrower other than a Non-U.S. Borrower without any
deduction or withholding of United States federal income tax.
(v) For any period during which a Non-U.S. Lender has failed to
provide the Company with an appropriate form pursuant to clause (iv), above
(unless such failure is due to a change in treaty, law or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, occurring subsequent to the date on which a form originally was
required to be provided), such Non-U.S. Lender shall not be entitled to
indemnification under this Section 3.5 with respect to Taxes imposed by the
United States; provided that, should a Non-U.S. Lender which is otherwise exempt
from or subject to a reduced rate of withholding tax become subject to Taxes
because of its failure to deliver a form required under clause (iv), above, the
Company shall take such steps as such Non-U.S. Lender shall reasonably request
to assist such Non-U.S. Lender to recover such Taxes.
(vi) Any Lender that is entitled to an exemption from or reduction
of withholding tax with respect to payments under this Agreement or any Note
pursuant to the law of any relevant jurisdiction or any treaty shall deliver to
the Company (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate. Each Multicurrency Lender which is neither a
resident of the United Kingdom nor a bank carrying on a bona fide banking
business in the United Kingdom agrees to furnish, on or before the date such
Lender makes a Loan to a Borrower in the United Kingdom or denominated in
British Pounds Sterling, to the Administrative Agent, the Company and any
relevant Subsidiary Borrower evidence satisfactory to the Administrative Agent
and the
38
Company that such Lender has filed with the United Kingdom Inland Revenue a
"Claim on Behalf of a United States Domestic Corporation to Relief from United
Kingdom Income Tax on Interest and Royalties Arising in the United Kingdom" or
other appropriate form or forms of exemption from withholding tax and received
from the Inland Revenue authority that payments to such Lender by the relevant
Borrower hereunder may be made gross; provided that such Lender's failure to
furnish such evidence shall not relieve the Company or any Subsidiary Borrower
of any of their respective obligations under this Agreement, except as otherwise
provided in this Section 3.5.
(vii) If the U.S. Internal Revenue Service or any other governmental
authority of the United States or any other country or any political subdivision
thereof asserts a claim that the Administrative Agent did not properly withhold
tax from amounts paid to or for the account of any Lender (because such Lender
failed to notify the Administrative Agent of a change in circumstances which
rendered its exemption from withholding ineffective), such Lender shall
indemnify the Administrative Agent fully for all amounts paid, directly or
indirectly, by the Administrative Agent as tax, withholding therefor, or
otherwise, including penalties and interest, and including taxes imposed by any
jurisdiction on amounts payable to the Administrative Agent under this
subsection, together with all costs and expenses related thereto (including
attorneys fees and time charges of attorneys for the Administrative Agent, which
attorneys may be employees of the Administrative Agent). The obligations of the
Lenders under this Section 3.5(vii) shall survive the payment of the Obligations
and termination of this Agreement.
3.6 Lender Statements; Survival of Indemnity.
To the extent reasonably possible, each Lender shall designate an
alternate Lending Installation with respect to its Eurocurrency Loans to reduce
any liability of the Borrowers to such Lender under Sections 3.1, 3.2 and 3.5 or
to avoid the unavailability of Eurocurrency Advances under Section 3.3, so long
as such designation is not, in the judgment of such Lender, disadvantageous to
such Lender. Each Lender shall deliver a written statement of such Lender to the
Borrowers (with a copy to the Administrative Agent) as to the amount due, if
any, under Section 3.1, 3.2, 3.4 or 3.5. Such written statement shall set forth
in reasonable detail the calculations upon which such Lender determined such
amount and shall be final, conclusive and binding on the Borrowers in the
absence of manifest error. Determination of amounts payable under such Sections
in connection with a Eurocurrency Loan shall be calculated as though each Lender
funded its Eurocurrency Loan through the purchase of a deposit of the type,
currency and maturity corresponding to the deposit used as a reference in
determining the Eurocurrency Rate applicable to such Loan, whether in fact that
is the case or not. Unless otherwise provided herein, the amount specified in
the written statement of any Lender shall be payable on demand after receipt by
the Borrowers of such written statement. The obligations of the Borrowers under
Sections 3.1, 3.2, 3.4 and 3.5 shall survive payment of the Obligations and
termination of this Agreement.
ARTICLE IV.
CONDITIONS PRECEDENT
4.1 Initial Credit Extension.
The Lenders shall not be required to make the initial Credit Extension
hereunder unless the Borrowers have satisfied the following conditions:
39
(a) Each Borrower has furnished to the Administrative
Agent with sufficient copies for the Lenders:
(i) Copies of the articles or certificate of incorporation of such
Borrower, together with all amendments, and a certificate of good standing, each
certified by the appropriate governmental officer in its jurisdiction of
incorporation.
(ii) Copies, certified by the Secretary or Assistant Secretary of
such Borrower, of its by-laws or code of regulations and of its Board of
Directors' resolutions and of resolutions or actions of any other body
authorizing the execution of the Loan Documents to which such Borrower is a
party.
(iii) An incumbency certificate, executed by the Secretary or
Assistant Secretary of such Borrower, which shall identify by name and title and
bear the signatures of the Authorized Officers and any other officers of such
Borrower authorized to sign the Loan Documents to which such Borrower is a
party, upon which certificate the Administrative Agent and the Lenders shall be
entitled to rely until informed of any change in writing by such Borrower.
(iv) A certificate, signed by the Chief Financial Officer or
Treasurer of such Borrower, stating that on the initial Credit Extension Date no
Default or Unmatured Default has occurred and is continuing.
(v) A written opinion of such Borrower's counsel, addressed to the
Lenders in substantially the form of Exhibit A.
(vi) Any Notes requested by a Lender pursuant to Section 2.14
payable to the order of each such requesting Lender.
(vii) Written money transfer instructions, in substantially the form
of Exhibit D, addressed to the Administrative Agent and signed by an Authorized
Officer, together with such other related money transfer authorizations as the
Administrative Agent may have reasonably requested.
(viii) A pro forma covenant compliance certificate in form and
substance reasonably satisfactory to the Administrative Agent from the Chief
Financial Officer or Treasurer of the Company.
(ix) The Guaranty, duly executed by the Company.
(x) If the initial Credit Extension will be the issuance of a
Facility LC, a properly completed Facility LC Application.
(xi) Such other documents as any Lender or its counsel may have
reasonably requested.
(b) The presentation of evidence satisfactory to the
Administrative Agent that the Five-Year Credit Agreement dated as of March 31,
1999 among the Borrowers, and the lenders party
40
thereto and the agent named therein shall terminate and all indebtedness,
liabilities, and obligations outstanding thereunder shall be paid in full or
will be paid from the proceeds of the initial Advance.
(c) The presentation of evidence satisfactory to the
Administrative Agent that the 364-Day Credit Agreement dated March 28, 2002,
among the Borrowers and the lenders party thereto and the agent named therein
shall have been terminated and all indebtedness, liabilities, and obligations
outstanding thereunder shall have been paid in full or will be paid from the
proceeds of the initial Advance.
(d) Payment of the fees described in the letter agreement
referred to in Section 10.13.
4.2 Each Credit Extension
The Lenders shall not be required to make, continue or convert any
Credit Extension, and the Swingline Lender shall not be required to make any
Swingline Loan, unless on the applicable Credit Extension Date or date of
conversion or continuation:
(i) There exists no Default or Unmatured Default.
(ii) The representations and warranties contained in Article V
(other than Section 5.5, 5.7 and 5.15) are true and correct in all material
respects as of such Credit Extension Date except to the extent any such
representation or warranty is stated to relate solely to an earlier date, in
which case such representation or warranty shall have been true and correct on
and as of such earlier date.
(iii) All legal matters incident to the making of such Credit
Extension shall be satisfactory to the Lenders and their counsel.
(iv) Each Borrowing Notice or request for the issuance of a
Facility LC with respect to each such Credit Extension shall constitute a
representation and warranty by the Borrower that the conditions contained in
Sections 4.2(i) and (ii) have been satisfied.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
The Company and each of the Borrowers represents and warrants to the
Lenders that:
5.1 Existence and Standing.
Each of the Company and its Significant Subsidiaries is a corporation,
partnership (in the case of Subsidiaries only) or limited liability company duly
and properly incorporated or organized, as the case may be, validly existing and
(to the extent such concept applies to such entity) in good standing under the
laws of its jurisdiction of incorporation or organization and has all requisite
authority to conduct its business in each jurisdiction in which its business is
conducted, except where the failure to do so could not reasonably be expected to
have a Material Adverse Effect.
41
5.2 Authorization and Validity.
Each Borrower has the power and authority and legal right to execute
and deliver the Loan Documents to which it is a party and to perform its
obligations thereunder. The execution and delivery by each Borrower of the Loan
Documents to which it is a party and the performance of its obligations
thereunder have been duly authorized by proper corporate or other proceedings,
and the Loan Documents to which such Borrower is a party constitute legal, valid
and binding obligations of such Borrower enforceable against such Borrower in
accordance with their terms, except as enforceability may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally.
5.3 No Conflict; Government Consent.
Neither the execution and delivery by the Borrowers of the Loan
Documents to which they are a party, nor the consummation of the transactions
therein contemplated, nor compliance with the provisions thereof will violate
(i) any law, rule, regulation, order, writ, judgment, injunction, decree or
award binding on any Borrower or (ii) any Borrower's articles or certificate of
incorporation, partnership agreement, certificate of partnership, articles or
certificate of organization, by-laws, code or regulations, or operating or other
management agreement, as the case may be, or (iii) the provisions of any
indenture, instrument or agreement to which any Borrower is a party or is
subject, or by which it, or its Property, is bound, or conflict with or
constitute a default thereunder, or result in, or require, the creation or
imposition of any Lien in, of or on the Property of any Borrower pursuant to the
terms of any such indenture, instrument or agreement. No order, consent,
adjudication, approval, license, authorization, or validation of, or filing,
recording or registration with, or exemption by, or other action in respect of
any governmental or public body or authority, or any subdivision thereof, which
has not been obtained by a Borrower, is required to be obtained by any Borrower
in connection with the execution and delivery of the Loan Documents, the
borrowings under this Agreement, the payment and performance by such Borrower of
the Obligations or the legality, validity, binding effect or enforceability of
any of the Loan Documents.
5.4 Financial Statements.
The following consolidated financial statements heretofore delivered to
the Lenders were prepared in accordance with Agreement Accounting Principles in
effect on the date such statements were prepared and fairly present the
consolidated financial condition and operations of the Company and its
Subsidiaries at such date and the consolidated results of their operations for
the period then ended, subject, in the case of such interim statements, to
routine year-end audit adjustments:
(i) June 30, 2002 audited consolidated financial statements of the
Company and its Subsidiaries; and;
(ii) December 31, 2002 unaudited interim consolidated financial
statements of the Company and its Subsidiaries.
5.5 Material Adverse Change.
Since June 30, 2002 there has been no change in the business, Property,
prospects, condition (financial or otherwise) or results of operations of the
Company and its Subsidiaries which could reasonably be expected to have a
Material Adverse Effect.
5.6 Taxes.
The Company and its Subsidiaries have filed all United States federal
tax returns and all other tax returns which are required to be filed and have
paid all taxes due pursuant to said returns or pursuant to any assessment
received by the Company or any of its Subsidiaries, except such taxes, if any,
as are being
42
contested in good faith and as to which adequate reserves have been provided in
accordance with Agreement Accounting Principles and as to which no Lien exists.
No tax liens have been filed and no claims are being asserted with respect to
any such taxes which could reasonably be expected to have a Material Adverse
Effect. The charges, accruals and reserves on the books of the Company and its
Subsidiaries in respect of any taxes or other governmental charges are adequate.
5.7 Litigation and Contingent Obligations.
Except as set forth on Schedule 7, there is no litigation, arbitration,
governmental investigation, proceeding or inquiry pending or, to the knowledge
of any of their officers, threatened against or affecting the Company or any of
its Subsidiaries which could reasonably be expected to have a Material Adverse
Effect or which seeks to prevent, enjoin or delay the making of any Credit
Extensions. As of the date of this Agreement, other than any liability incident
to any litigation, arbitration or proceeding which (i) could not reasonably be
expected to have a Material Adverse Effect or (ii) is set forth on Schedule 7,
the Company has no material Contingent Obligations not provided for or disclosed
in the financial statements referred to in Section 5.4.
5.8 Subsidiaries.
Schedule 1 contains an accurate list of all Subsidiaries of the Company
(other than immaterial or inactive Subsidiaries) and each Subsidiary Borrower as
of the date of this Agreement, setting forth their respective jurisdictions of
organization and the percentage of their respective capital stock or other
ownership interests owned by the Company or other Subsidiaries. All of the
issued and outstanding shares of capital stock or other ownership interests of
such Subsidiaries have been (to the extent such concepts are relevant with
respect to such ownership interests) duly authorized and issued and are fully
paid and non-assessable, except to the extent that the lack of such status could
not reasonably be expected to have a Material Adverse Effect. The Company may
amend Schedule 1 from time to time by delivering to the Administrative Agent an
updated list of Subsidiaries, and the Company may designate any Subsidiary
thereon which is directly or indirectly 80% (or, in the case of R.P. Scherer
S.A., 75%) or more owned by the Company as a Subsidiary Borrower hereunder so
long as (a) the Company guarantees the obligations of such new Subsidiary
Borrower pursuant to the terms of the Guaranty, (b) such new Subsidiary Borrower
delivers all corporate or organizational documents and authorizing resolutions
and legal opinions reasonably requested by the Administrative Agent and (c) such
new Subsidiary Borrower agrees to the terms and conditions of this Agreement and
the Borrowers and the new Subsidiary Borrower execute all agreements and take
such other action reasonably requested by Administrative Agent. Schedule 1 may
be amended to remove any Subsidiary as a Subsidiary Borrower upon (i) written
notice by the Company to the Administrative Agent to such effect and (ii)
repayment in full of all outstanding Loans of such Subsidiary Borrower.
5.9 ERISA.
The Unfunded Liabilities of all Single Employer Plans do not in the
aggregate exceed 2% of Adjusted Tangible Net Worth. Each Single Employer Plan
complies in all material respects with all applicable requirements of law and
regulations where the failure to so comply could reasonably be expected to have
a Material Adverse Effect. No Reportable Event has occurred with respect to any
Plan where such occurrence could reasonably be expected to have a Material
Adverse Effect. Neither the Company or any of its Significant Subsidiaries has
withdrawn from any Plan or initiated steps to do so, and no steps have been
taken to reorganize or terminate any Single Employer Plan where in either
instance a liability in excess of 2% of Adjusted Tangible Net Worth could
reasonably be expected to result.
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5.10 Accuracy of Information.
No information, exhibit or report furnished by the Company or any of
its Subsidiaries to the Administrative Agent or to any Lender in connection with
the negotiation of, or compliance with, the Loan Documents contained any
material misstatement of fact or omitted to state a material fact or any fact
necessary to make the statements contained therein not misleading; provided,
however, that to the extent any such information, exhibits or reports include or
incorporate by reference any forward-looking statement (each, a "Forward-Looking
Statement") which reflects the Company's current view (as of the date such
Forward-Looking Statement is made) with respect to future events, prospects,
projections or financial performance, such Forward-Looking Statement is subject
to uncertainties and other factors which could cause actual results to differ
materially from such Forward-Looking Statement.
5.11 Regulation U.
Margin stock (as defined in Regulation U) constitutes less than 25% of
the value of those assets of the Company and its Subsidiaries which are subject
to any limitation on sale, pledge, or other restriction hereunder.
5.12 Maintenance of Property.
The Company and its Subsidiaries, maintain all Property and
keep such Property in good repair, working order and condition in accordance
with customary and prudent business practices for similar businesses, except
where the failure to do so could not reasonably be expected to cause a Material
Adverse Effect.
5.13 Insurance.
The Company, and each Significant Subsidiary, maintains as part of a
self-insurance program or with financially sound and reputable insurance
companies insurance on all their Property in such amounts (with such customary
deductibles, exclusions and self-insurance) and covering such risks as is
consistent with sound business practice.
5.14 Plan Assets; Prohibited Transactions.
The Company is not an entity deemed to hold "plan assets" within the
meaning of 29 C.F.R. Section 2510.3-101 of an employee benefit plan (as defined
in Section 3(3) of ERISA) which is subject to Title I of ERISA or any plan
(within the meaning of Section 4975 of the Code), and neither the execution of
this Agreement nor the making of Credit Extensions hereunder gives rise to a
prohibited transaction within the meaning of Section 406 of ERISA or Section
4975 of the Code.
5.15 Environmental Matters.
In the ordinary course of its business, the officers of the Company
consider the effect of Environmental Laws on the business of the Company and its
Subsidiaries, in the course of which they identify and evaluate potential risks
and liabilities accruing to the Company due to Environmental Laws. On the basis
of this consideration, the Company has concluded that Environmental Laws cannot
reasonably be expected to have a Material Adverse Effect. Neither the Company
nor any Subsidiary has received any notice to the effect that its operations are
not in material compliance with any of the requirements of applicable
Environmental Laws or are the subject of any federal or state investigation
evaluating whether any remedial action is needed to respond to a release of any
toxic or hazardous waste or substance into the environment, which non-compliance
or remedial action could reasonably be expected to have a Material Adverse
Effect.
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5.16 Investment Company Act.
Neither the Company nor any Subsidiary is an "investment company" or a
company "controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
5.17 Public Utility Holding Company Act.
Neither the Company nor any Subsidiary is a "holding company" or a
"subsidiary company" of a "holding company", or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company", within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
5.18 Default.
There exists no Default or Unmatured Default under Article VII of this
Agreement.
5.19 Reportable Transaction.
Neither the Company nor any Subsidiary intends to treat the Advances
and related transactions as being a "reportable transaction" (within the meaning
of Treasury Regulation Section 1.6011-4). In the event the Company or any
Subsidiary determines to take any action inconsistent with such intention, it
will promptly notify the Administrative Agent thereof.
ARTICLE VI.
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1 Financial Reporting.
The Company will maintain, for itself and each Subsidiary, a system of
accounting established and administered in accordance with Agreement Accounting
Principles, and furnish to the Lenders:
(i) Within 120 days after the close of each of its fiscal years,
an unqualified (except for qualifications relating to changes in accounting
principles or practices reflecting changes in Agreement Accounting Principles
and required or approved by the Company's independent certified public
accountants) audit report certified by independent certified public accountants
reasonably acceptable to the Lenders, prepared in accordance with Agreement
Accounting Principles on a consolidated basis for itself and its Subsidiaries,
including balance sheets as of the end of such period, related profit and loss
statements, and a statement of cash flows.
(ii) Within 60 days after the close of each of the first three
quarterly periods of each fiscal year, for itself and its Subsidiaries,
consolidated unaudited balance sheets as at the close of each such period and
consolidated unaudited profit and loss statements and a consolidated unaudited
statement of cash flows for the period from the beginning of such fiscal year to
the end of such quarter, all certified by its Chief Financial Officer,
Controller, or Treasurer.
(iii) Together with the financial statements required under Sections
6.1(i) and (ii), a compliance certificate in substantially the form of Exhibit B
signed by its Chief Financial Officer,
45
Controller, or Treasurer and stating that no Default or Unmatured Default
exists, or if any Default or Unmatured Default exists, stating the nature and
status thereof.
(iv) As soon as possible and in any event within 10 Business Days
after the Company knows that any Reportable Event has occurred with respect to
any Plan, a statement, signed by the Chief Financial Officer, Controller, or
Treasurer of the Company, describing said Reportable Event and the action which
the Company proposes to take with respect thereto.
(v) As soon as possible and in any event within 10 Business Days
after receipt by the Company, a copy of (a) any notice or claim to the effect
that the Company or any of its Subsidiaries is or may be liable to any Person as
a result of the release by the Company, any of its Subsidiaries, or any other
Person of any toxic or hazardous waste or substance into the environment, and
(b) any notice alleging any violation of any federal, state or local
environmental, health or safety law or regulation by the Company or any of its
Subsidiaries, which, in either case, could reasonably be expected to have a
Material Adverse Effect.
(vi) Such other information (including non-financial information)
as the Administrative Agent or any Lender may from time to time reasonably
request.
6.2 Use of Proceeds.
The Company will, and will cause each Subsidiary to, use the proceeds
of the Credit Extensions for general corporate purposes, including Acquisitions.
The Company will not, nor will it permit any Subsidiary to, use any of the
proceeds of the Advances to purchase or carry any "margin stock" (as defined in
Regulation U).
6.3 Notice of Default.
The Company will, and will cause each Borrower and Significant
Subsidiary to, give prompt notice in writing to the Administrative Agent of the
occurrence of any Default or Unmatured Default and of any other development,
financial or otherwise, which could reasonably be expected to have a Material
Adverse Effect.
6.4 Conduct of Business; Maintenance of Property.
The Company will, and will cause each Significant Subsidiary to, carry
on and conduct its business in substantially the same manner and in
substantially the same fields of enterprise as it is presently conducted or
fields related thereto (except that the Company and its Significant Subsidiaries
shall have no duty to renew or extend contracts which expire by their terms) and
do all things necessary to remain duly incorporated or organized, validly
existing and (to the extent such concept applies to such entity) in good
standing as a domestic corporation, partnership or limited liability company in
its jurisdiction of incorporation or organization, as the case may be, and
maintain all requisite authority to conduct its business in each jurisdiction in
which its business is conducted, unless the failure to do so could not
reasonably be expected to have a Material Adverse Effect. The Company will, and
will cause each Significant Subsidiary, to maintain, preserve and protect all
Property and keep such property in good repair, working order and condition and
from time to time make, or cause to be made all needful and proper repairs,
renewals, additions, improvements and replacements thereto necessary in order
that the business carried on in connection therewith may be properly conducted
at all times in accordance with customary and prudent business practices for
similar businesses, except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect.
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6.5 Taxes.
The Company will, and will cause each Significant Subsidiary to, timely
file complete and correct United States federal and applicable foreign, state
and local tax returns required by law and pay when due all taxes, assessments
and governmental charges and levies upon it or its income, profits or Property,
except those which are being contested in good faith by appropriate proceedings
and with respect to which adequate reserves have been set aside in accordance
with Agreement Accounting Principles, except where the failure to do so could
not reasonably be expected to have a Material Adverse Effect.
6.6 Insurance.
The Company will, and will cause each Significant Subsidiary to,
maintain as part of a self-insurance program or with financially sound and
reputable insurance companies insurance on all their Property in such amounts
(with such customary deductibles, exclusions and self-insurance) and covering
such risks as is consistent with sound business practice.
6.7 Compliance with Laws.
The Company will, and will cause each Significant Subsidiary to, comply
with all laws, rules, regulations, orders, writs, judgments, injunctions,
decrees or awards to which it may be subject including, without limitation, all
Environmental Laws, except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect.
6.8 Inspection.
The Company will, and will cause each Significant Subsidiary to, permit
the Administrative Agent and the Lenders, by their respective representatives
and agents, to inspect any of the Property, books and financial records of the
Company and each Significant Subsidiary, to examine and make copies of the books
of accounts and other financial records of the Company and each Significant
Subsidiary, and to discuss the affairs, finances and accounts of the Company and
each Significant Subsidiary with, and to be advised as to the same by, their
respective officers upon reasonable prior notice at such reasonable times and
intervals as the Administrative Agent or any Lender may designate, provided that
neither the Company nor any of its Subsidiaries shall be responsible for the
costs and expenses incurred by the Administrative Agent, any Lender, or their
representatives in connection with such inspection prior to the occurrence and
continuation of a Default.
6.9 Merger.
The Company will not, nor will it permit any Significant Subsidiary to,
merge or consolidate with or into any other Person, except that, provided that
no Default or Unmatured Default shall have occurred and be continuing or would
result therefrom on a pro forma basis reasonably acceptable to the
Administrative Agent, the Company may merge or consolidate with any other U.S.
corporation and each Significant Subsidiary may merge or consolidate with any
other Person, provided, further, that (i) in the case of any such merger or
consolidation involving the Company, the Company is the surviving corporation
and (ii) in the case of any such merger or consolidation involving a Significant
Subsidiary which is a Subsidiary Borrower, the surviving corporation assumes all
of such Borrower's obligations under this Agreement and remains or becomes a
Subsidiary Borrower.
6.10 Sale of Assets.
The Company will not, nor will it permit any Significant Subsidiary to,
lease, sell or otherwise dispose of its Property, to any other Person (other
than the Company or another Subsidiary), except:
(i) Sales of inventory in the ordinary course of business.
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(ii) Sales or other dispositions in the ordinary course of business
of fixed assets for the purpose of replacing such fixed assets, provided that
such fixed assets are replaced within 360 days of such sale or other disposition
with other fixed assets which have a fair market value not materially less than
the fixed assets sold or otherwise disposed of.
(iii) Sales or other dispositions outside the ordinary course of
business of accounts receivable, lease receivables, leases or equipment which
had been leased by the Company or such Significant Subsidiary, provided that any
such sale or other disposition is for reasonably equivalent value and could not
reasonably be expected to have a Material Adverse Effect.
(iv) Other leases, sales (including sale-leasebacks) or other
dispositions of its Property that, together with all other Property of the
Company and its Subsidiaries previously leased, sold or disposed of (other than
as provided in clauses (i), (ii) and (iii) above) as permitted by this Section
during the twelve-month period ending with the month prior to the month in which
any such lease, sale or other disposition occurs, do not constitute a
Substantial Portion of the Property of the Company and its Subsidiaries, or
together with all other Property of the Company and its Subsidiaries previously
leased, sold or disposed of (other than as provided in clauses (i) and (ii)
above) as permitted by this Section during the period from the date of this
Agreement to the end of the month prior to the month in which any such lease,
sale or other disposition occurs, do not constitute 35% of the consolidated
assets of the Company and its Subsidiaries as would be shown in the consolidated
financial statements of the Company and its Subsidiaries as at the beginning of
the fiscal year in which any such lease, sale or other disposition occurs.
Notwithstanding anything in this Section 6.10 to the contrary, (a) no
such leases, sales or other dispositions of property may be made (other than
pursuant to clause (i) above) if any Default or Unmatured Default has occurred
and is continuing, and (b) all leases, sales and other dispositions of Property
at any time shall be for not less than the fair market value of such Property as
determined in good faith by the Company.
6.11 Investments.
The Company will not, nor will it permit any Significant Subsidiary to,
make or suffer to exist any Investments, or commitments therefor, or to create
any Subsidiary or to become or remain a partner in any partnership or joint
venture, except:
(i) Cash Equivalent Investments.
(ii) Investments in Subsidiaries.
(iii) other Investments in existence on the date hereof.
(iv) Other Investments provided that the aggregate amount of such
Investments made in any fiscal year does not exceed 25% of Adjusted Tangible Net
Worth as of the beginning of such fiscal year.
6.12 Liens.
The Company will not, nor will it permit any Significant Subsidiary to,
create, incur, or suffer to exist any Lien in, of or on the Property of the
Company or any of its Significant Subsidiaries, except:
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(i) Liens for taxes, assessments or governmental charges or levies
on its Property if the same shall not at the time be delinquent or thereafter
can be paid without penalty, or are being contested in good faith and by
appropriate proceedings and for which adequate reserves in accordance with
Agreement Accounting Principles shall have been set aside on its books.
(ii) Liens imposed by law, such as landlord's, carriers',
warehousemen's and mechanics' liens and other similar liens arising in the
ordinary course of business which secure payment of obligations not more than 60
days past due or which are being contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with Agreement
Accounting Principles shall have been set aside on its books.
(iii) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions, or other social
security or retirement benefits, or similar legislation (other than Liens in
favor of the PGBC).
(iv) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature generally
existing with respect to properties of a similar character and which do not in
any material way affect the marketability of the same or interfere with the use
thereof in the business of the Company or its Subsidiaries.
(v) Liens existing on the date hereof.
(vi) Liens on any assets which exist at the time of acquisition of
such assets by the Company or any of its Subsidiaries, or liens to secure the
payment of all of any part of the purchase price of such assets upon the
acquisition of such assets by the Company or any of its Subsidiaries or to
secure any Indebtedness incurred or guaranteed by the Company or any of its
Subsidiaries prior to, at the time, of or within 360 days after, such
acquisition (or, in the case of real property, the completion of construction
(including any improvements on an existing asset) or commencement of full
operation of such asset, whichever is later), which Indebtedness is incurred or
guaranteed for the purpose of financing all or any part of the purchase price
thereof or, in the case of real property, construction or improvements thereon,
provided, however, that in the case of any such acquisition, construction or
improvement, the Lien shall not apply to such assets theretofore owned by the
Company or any of its Subsidiaries other than, in the case of any such
construction or improvement, any real property on which the property so
constructed, or the improvement, is located, provided further, however, that the
aggregate outstanding principal amount of Indebtedness secured by Liens
permitted by this Section 6.12(vi) shall not at any time exceed 10% of Adjusted
Tangible Net Worth.
(vii) Liens in favor of the United States of America or any State
thereof, or any department, agency or instrumentality or political subdivision
of the United States of America or any State thereof, or in favor of any other
country or any political subdivision thereof, to secure partial, progress,
advance or other payments pursuant to any contract or statute or to secure any
Indebtedness incurred or guaranteed for the purpose of financing all or any part
of the purchase price (or, in the case of real property, the cost of
construction), of the assets subject to such liens (including without limitation
liens incurred in connection with pollution control, industrial revenue or
similar financings).
(viii) Any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part of any Lien referred
to in the foregoing clauses, provided,
49
however, that the principal amount of Indebtedness secured thereby shall not
exceed the principal amount of Indebtedness so secured prior to such extension,
renewal or replacement and that such extension, renewal or replacement Lien
shall be limited to all or a part of the assets which secured the Lien so
extended, renewed or replaced (plus improvements and construction on such real
property).
(ix) So long as no Default under Section 7.9 would occur in
connection therewith, Liens created by or resulting from any litigation or other
proceeding which is being contested in good faith by appropriate proceedings,
including Liens arising out of judgments or awards against the Company or any of
its Subsidiaries with respect to which the Company or such Subsidiary is in good
faith prosecuting an appeal or proceeding for review or for which the time to
make an appeal has not yet expired; or final unappealable judgment Liens which
are satisfied within 15 days of the date of judgment; or Liens incurred by the
Company or any of its Subsidiaries for the purpose of obtaining a stay or
discharge in the course of any litigation or other proceeding to which the
Company or such Subsidiary is a party.
(x) Liens securing Indebtedness described in Section 6.15(iv) and
(v).
(xi) Liens securing Indebtedness and not otherwise permitted by the
foregoing provisions of this Section 6.12, provided that the aggregate
outstanding principal amount of the Indebtedness secured by all such Liens shall
not at any time exceed 25% of Adjusted Tangible Net Worth.
6.13 Subsidiary Indebtedness.
The Company will not permit any Subsidiary to create, incur or suffer
to exist any Indebtedness, except:
(i) The Loans and the Reimbursement Obligations.
(ii) Indebtedness outstanding on the date of this Agreement or
incurred pursuant to commitments in existence on the date of this Agreement.
(iii) Indebtedness of any Subsidiary to the Company or any other
Subsidiary.
(iv) Indebtedness of any Person that becomes a Subsidiary after the
date hereof; provided that such Indebtedness existed at the time such Person
becomes a Subsidiary and is not created in contemplation of or in connection
with such Person becoming a Subsidiary.
(v) Any refunding or refinancing of any Indebtedness referred to
in clauses (i) through (iv) above, provided that any such refunding or
refinancing of Indebtedness referred to in clause (ii), (iii) or (iv) does not
increase the principal amount thereof.
(vi) Indebtedness arising from (a) the endorsement of negotiable
instruments for deposit or collection or similar transactions in the ordinary
course of business, or (b) the honoring by a bank or other financial institution
of a check, draft or similar instrument inadvertently (except in the case of
daylight overdrafts) drawn against insufficient funds in the ordinary course of
business.
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(vii) Indebtedness arising from guarantees of loans and advances by
third parties to employees and officers of a Subsidiary in the ordinary course
of business for bona fide business purposes, provided that the aggregate
outstanding principal amount of such Indebtedness does not at any time exceed
$100,000,000.
(viii) Indebtedness of a Subsidiary arising from agreements providing
for indemnification, adjustment of purchase price or similar obligations or from
guarantees, letters of credit, surety bonds or performance bonds securing any
obligations of the Company or any of its Subsidiaries incurred or assumed in
connection with the disposition of any business, property or Subsidiary.
(ix) Indebtedness arising from Rate Hedging Obligations.
(x) Contingent Obligations.
(xi) Indebtedness outstanding under investment grade commercial
paper programs.
(xii) Other Indebtedness; provided that, at the time of the
creation, incurrence or assumption of such other Indebtedness and after giving
effect thereto, the aggregate amount of all such other Indebtedness of the
Subsidiaries does not exceed an amount equal to 25% of Adjusted Tangible Net
Worth at such time.
6.14 Limitation on Restrictions on Significant Subsidiary
Distributions.
The Company will not, and will not permit any Significant Subsidiary
to, enter into or suffer to exist or become effective any consensual encumbrance
or restriction on the ability of any Significant Subsidiary of the Company to
(i) pay dividends or make any other distributions in respect of any capital
stock of such Subsidiary held by, or pay any Indebtedness owed to, the Company
or any other Subsidiary of the Company, (ii) make loans or advances to the
Company or any other Subsidiary of the Company or (iii) transfer any of its
assets to the Company or any other Subsidiary of the Company, except for such
encumbrances or restrictions existing under or by reason of (a) any restrictions
existing under the Loan Documents, (b) any restrictions with respect to a
Significant Subsidiary imposed pursuant to an agreement which has been entered
into in connection with the disposition of all or substantially all of the
capital stock or assets of such Subsidiary, and (c) any restrictions with
respect to assets encumbered by a Lien permitted by Section 6.12 so long as such
restriction applies only to the asset encumbered by such permitted Lien.
6.15 Contingent Obligations.
The Company will not, nor will it permit any Subsidiary to, make or
suffer to exist any Contingent Obligation (including, without limitation, any
Contingent Obligation with respect to the obligations of a Subsidiary), except
(i) by endorsement of instruments for deposit or collection in the ordinary
course of business, (ii) the Reimbursement Obligations, (iii) the Guaranty, (iv)
Contingent Obligations of special-purpose finance Subsidiaries, provided that no
Person has recourse against the Company or any Significant Subsidiary for such
Contingent Obligations, (v) Contingent Obligations arising from the sale by
Pyxis Corporation of lease receivables, leases or equipment, provided that the
aggregate amount of such Contingent Obligations do not at any time exceed 10% of
Adjusted Tangible Net Worth, (vi) Contingent Obligations arising out of
operating or synthetic leases entered into by Subsidiaries of the Company,
provided that the aggregate amount of such Contingent Obligations do not at any
time exceed 25% of Adjusted Tangible Net Worth, and (vii) Contingent Obligations
in addition to,
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and including additional amounts of, those described in (i)-(vi) above, provided
that the aggregate amount of such additional Contingent Obligations (without
duplication) do not at any time exceed 25% of Adjusted Tangible Net Worth.
6.16 Minimum Net Worth.
The Company shall not permit its Net Worth to be less than
$4,100,000,000 at any time.
ARTICLE VII.
DEFAULTS
The occurrence of any one or more of the following events shall
constitute a Default:
7.1. Any representation or warranty made or deemed made by or on
behalf of the Company or any of its Subsidiaries to the Lenders or the
Administrative Agent under or in connection with this Agreement, any Credit
Extension, or any certificate or information delivered in connection with this
Agreement or any other Loan Document shall be materially false on the date as of
which made.
7.2. Nonpayment of principal of any Loan within one Business Day
after the same becomes due, nonpayment of any Reimbursement Obligation within
one Business Day after the same becomes due, or nonpayment of interest upon any
Loan or of any facility fee, LC Fee or other Obligations under any of the Loan
Documents within five days after the same becomes due.
7.3. The breach by the Company of Sections 6.3, 6.9, 6.10, 6.13,
6.15, or 6.16.
7.4. The breach by any Borrower (other than a breach which
constitutes a Default under another Section of this Article VII) of any of the
terms or provisions of this Agreement which is not remedied within thirty days
after written notice from the Administrative Agent or any Lender.
7.5. Failure of the Company or any of its Significant Subsidiaries
to pay when due any principal, interest or other amounts, subject to any
applicable grace period, or the default by the Company or any of its Significant
Subsidiaries in the performance beyond the applicable grace period with respect
thereto, if any, of any term, provision or condition contained in the 364-Day
Credit Agreement or any agreement or agreements under which any Indebtedness in
excess of 2% of Adjusted Tangible Net Worth was created or is governed, or any
other event shall occur or condition exist, the effect of which default or event
is to cause, or to permit the holder or holders of such Indebtedness to cause,
such Indebtedness to become due prior to its stated maturity; or any such
Indebtedness of the Company or any of its Subsidiaries shall be declared to be
due and payable or required to be prepaid or repurchased (other than by a
regularly scheduled payment) prior to the stated maturity thereof; or the
Company or any of its Significant Subsidiaries shall not pay, or admit in
writing its inability to pay, its debts generally as they become due.
7.6. The Company or any of its Significant Subsidiaries shall (i)
have an order for relief entered with respect to it under the Federal bankruptcy
laws as now or hereafter in effect, (ii) make an assignment for the benefit of
creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment
of a receiver, custodian, trustee, examiner, liquidator or similar official for
it or any Substantial Portion of its Property, (iv) institute any proceeding
seeking an order for relief under the Federal bankruptcy laws as now or
hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or
seeking dissolution, winding up, liquidation, reorganization, arrangement,
adjustment or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors or fail to file an
answer or other pleading denying the material allegations of any such proceeding
filed against it, (v) take any
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corporate or partnership action to authorize or effect any of the foregoing
actions set forth in this Section 7.6 or (vi) fail to contest in good faith any
appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of the Company or
any of its Significant Subsidiaries, a receiver, trustee, examiner, liquidator
or similar official shall be appointed for the Company or any of its Significant
Subsidiaries or any Substantial Portion of its Property, or a proceeding
described in Section 7.6(iv) shall be instituted against the Company or any of
its Significant Subsidiaries and such appointment continues undischarged or such
proceeding continues undismissed or unstayed for a period of 60 consecutive
days.
7.8. Any court, government or governmental agency shall condemn,
seize or otherwise appropriate, or take custody or control of, all or any
portion of the Property of the Company and its Subsidiaries which, when taken
together with all other Property of the Company and its Subsidiaries so
condemned, seized, appropriated, or taken custody or control of, during the
twelve-month period ending with the month in which any such action occurs,
constitutes a Substantial Portion.
7.9. The Company or any of its Significant Subsidiaries shall fail
within 60 days to pay, bond or otherwise discharge one or more (i) judgments or
orders for the payment of money (not covered by insurance)in excess of 2% of
Adjusted Tangible Net Worth (or the equivalent thereof in currencies other than
U.S. Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect, which judgment(s), in either such case, is/are not
stayed on appeal or otherwise being appropriately contested in good faith.
7.10. Any member of the Controlled Group shall fail to pay when due
an amount or amounts aggregating in excess of 2% of Adjusted Tangible Net Worth
which it shall have become liable to pay under Title IV of ERISA; or notice of
intent to terminate a Single Employer Plan with Unfunded Liabilities in excess
of $50,000,000 (a "Material Plan") shall be filed under Section 4041(c) of ERISA
by any member of the Controlled Group, any plan administrator or any combination
of the foregoing; or PBGC shall institute proceedings under which it is likely
to prevail under Title IV of ERISA to terminate, to impose liability (other than
for premiums under Section 4007 of ERISA) in respect of, or to cause a trustee
to be appointed to administer any Material Plan; or a condition shall exist by
reason of which the PBGC would be entitled to obtain a decree adjudicating that
any Material Plan must be terminated; or there shall occur a complete or partial
withdrawal from, or a default, within the meaning of Section 4219(c)(5) of
ERISA, with respect to, one or more Multiemployer Plans which causes one or more
members of the Controlled Group to incur a current payment obligation in excess
of 2% of Adjusted Tangible Net Worth.
7.11. Any Change in Control shall occur.
7.12. The Guaranty shall fail to remain in full force or effect or
any action shall be taken to discontinue or to assert the invalidity or
unenforceability of the Guaranty, or the Company shall fail to comply with any
of the terms or provisions of the Guaranty, or the Company shall deny that it
has any further liability under the Guaranty, or shall give notice to such
effect.
ARTICLE VIII.
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1 Acceleration; Facility LC Collateral Account.
(i) If any Default described in Section 7.6 or 7.7 occurs with respect
to the Company or any of its Significant Subsidiaries, the obligations of the
Lenders to make Loans hereunder and the obligation and
53
power of the LC Issuer to issue Facility LCs shall automatically terminate and
the Obligations shall immediately become due and payable without any election or
action on the part of the Administrative Agent, the LC Issuer or any Lender and
the Borrowers will be and become thereby unconditionally obligated, without any
further notice, act or demand, to pay to the Administrative Agent an amount in
immediately available funds, which funds shall be held in the Facility LC
Collateral Account, equal to the difference of (x) the amount of LC Obligations
at such time, less (y) the amount on deposit in the Facility LC Collateral
Account at such time which is free and clear of all rights and claims of third
parties and has not been applied against the Obligations (such difference, the
"Collateral Shortfall Amount"). If any other Default occurs and is continuing,
the Required Lenders (or the Administrative Agent with the consent of the
Required Lenders) may (a) terminate or suspend the obligations of the Lenders to
make Loans hereunder and the obligation and power of the LC Issuer to issue
Facility LCs, or declare the Obligations to be due and payable, or both,
whereupon the Obligations shall become immediately due and payable, without
presentment, demand, protest or notice of any kind, all of which the Company
hereby expressly waives and (b) upon notice to the Borrowers and in addition to
the continuing right to demand payment of all amounts payable under this
Agreement, make demand on the Borrowers to pay, and the Borrowers will,
forthwith upon such demand and without any further notice or act, pay to the
Administrative Agent the Collateral Shortfall Amount, which funds shall be
deposited in the Facility LC Collateral Account.
(ii) If at any time while any Default is continuing, the
Administrative Agent determines that the Collateral Shortfall Amount at such
time is greater than zero, the Administrative Agent may make demand on the
Borrowers to pay, and the Borrowers will, forthwith upon such demand and without
any further notice or act, pay to the Administrative Agent the Collateral
Shortfall Amount, which funds shall be deposited in the Facility LC Collateral
Account.
(iii) The Administrative Agent may at any time or from time to
time after funds are deposited in the Facility LC Collateral Account, apply such
funds to the payment of the Obligations and any other amounts as shall from time
to time have become due and payable by the Borrowers to the Lenders or the LC
Issuer under the Loan Documents.
(iv) At any time while any Default is continuing, neither any
Borrower nor any Person claiming on behalf of or through any Borrower shall have
any right to withdraw any of the funds held in the Facility LC Collateral
Account. After all of the Obligations have been indefeasibly paid in full and
the Aggregate Commitment has been terminated, any funds remaining in the
Facility LC Collateral Account shall be returned by the Administrative Agent to
the Borrowers or paid to whomever may be legally entitled thereto at such time.
(v) If, within 60 days after acceleration of the maturity of
the Obligations or termination of the obligations of the Lenders to make Loans
and the obligation and power of the LC Issuer to issue Facility LCs hereunder as
a result of any Default (other than any Default as described in Section 7.6 or
7.7 with respect to the Company) and before any judgment or decree for the
payment of the Obligations due shall have been obtained or entered, the Required
Lenders (in their sole discretion) shall so direct, the Administrative Agent
shall, by notice to the Company, rescind and annul such acceleration and/or
termination.
8.2 Amendments.
Subject to the provisions of this Article VIII, the Required Lenders
(or the Administrative Agent with the consent in writing of the Required
Lenders) and the Borrowers may enter into written agreements supplemental hereto
for the purpose of adding or modifying any provisions to the Loan Documents or
changing in any manner the rights of the Lenders or the Borrowers hereunder or
waiving any Default hereunder; provided, however, that no such supplemental
written agreement shall, without the consent of all of the Lenders:
54
(i) Extend the final maturity of any Loan, or extend the expiry
date of any Facility LC to a date after the Facility Termination Date or
postpone any regularly scheduled payment of principal of any Loan or forgive all
or any portion of the principal amount thereof, any Reimbursement Obligation
related thereto or any accrued interest or accrued fees, or reduce the rate or
extend the time of payment of interest or fees thereon or Reimbursement
Obligation related thereto.
(ii) Reduce the percentage specified in the definition of Required
Lenders or any provision that requires the unanimous consent or pro rata
treatment of Lenders.
(iii) Extend the Facility Termination Date or reduce the amount or
extend the payment date for, the mandatory payments required under Section 2.2,
or increase the amount of the Aggregate Commitment or of the Commitment of any
Lender hereunder or the commitment to issue Facility LCs, or permit any Borrower
to assign its rights under this Agreement (other than as may be permitted
pursuant to Section 6.9).
(iv) Amend this Section 8.2.
(v) Release the Company as guarantor of any Advance.
No amendment of any provision of this Agreement relating to the
Administrative Agent shall be effective without the written consent of the
Administrative Agent, and no amendment of any provisions relating to the LC
Issuer shall be effective without the written consent of the LC Issuer, and no
amendment of any provision of this Agreement relating to the Swingline Loans
shall be effective without the written consent of the Swingline Lender. The
Administrative Agent may waive payment of the fee required under Section 12.3.2
without obtaining the consent of any other party to this Agreement.
Notwithstanding anything herein to the contrary, no Defaulting Lender
shall be entitled to vote (whether to consent or to withhold its consent) with
respect to any amendment, modification, termination or waiver requiring the
consent of the Required Lenders, and, for purposes of determining the Required
Lenders, the Commitments and the Loans of each Defaulting Lender shall be
disregarded.
8.3 Preservation of Rights
No delay or omission of the Lenders, the LC Issuer or the
Administrative Agent to exercise any right under the Loan Documents shall impair
such right or be construed to be a waiver of any Default or an acquiescence
therein, and the making of a Credit Extension notwithstanding the existence of a
Default or the inability of a Borrower to satisfy the conditions precedent to
such Loan shall not constitute any waiver or acquiescence. Any single or partial
exercise of any such right shall not preclude other or further exercise thereof
or the exercise of any other right, and no waiver, amendment or other variation
of the terms, conditions or provisions of the Loan Documents whatsoever shall be
valid unless in writing signed by the Lenders required pursuant to Section 8.2,
and then only to the extent in such writing specifically set forth. All remedies
contained in the Loan Documents or by law afforded shall be cumulative and all
shall be available to the Administrative Agent, the LC Issuer and the Lenders
until the Obligations have been paid in full.
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ARTICLE IX.
GENERAL PROVISIONS
9.1 Survival of Representations.
All representations and warranties of the Borrowers contained in this
Agreement shall survive the making of the Credit Extensions herein contemplated.
9.2 Governmental Regulation.
Anything contained in this Agreement to the contrary notwithstanding,
neither the LC Issuer nor any Lender shall be obligated to extend credit to the
Borrowers in violation of any limitation or prohibition provided by any
applicable statute or regulation.
9.3 Headings.
Section headings in the Loan Documents are for convenience of reference
only, and shall not govern the interpretation of any of the provisions of the
Loan Documents.
9.4 Entire Agreement.
The Loan Documents embody the entire agreement and understanding among
the Borrowers, the Administrative Agent, the LC Issuer and the Lenders and
supersede all prior agreements and understandings among the Borrowers, the
Administrative Agent, the LC Issuer and the Lenders relating to the subject
matter thereof other than the fee letter described in Section 10.13.
9.5 Several Obligations; Benefits of this Agreement.
The respective obligations of the Lenders hereunder are several and not
joint and no Lender shall be the partner or agent of any other (except to the
extent to which the Administrative Agent is authorized to act as such). The
failure of any Lender to perform any of its obligations hereunder shall not
relieve any other Lender from any of its obligations hereunder. This Agreement
shall not be construed so as to confer any right or benefit upon any Person
other than the parties to this Agreement and their respective successors and
assigns, provided, however, that the parties hereto expressly agree that the
Lead Arranger shall enjoy the benefits of the provisions of Sections 9.6, 9.10
and 10.11 to the extent specifically set forth therein and shall have the right
to enforce such provisions on its own behalf and in its own name to the same
extent as if it were a party to this Agreement.
9.6 Expenses; Indemnification.
(i) The Borrowers shall reimburse the Administrative Agent and the
Lead Arranger for any reasonable costs, internal charges and out-of-pocket
expenses (including reasonable attorneys' fees and time charges of attorneys for
the Administrative Agent, which attorneys may be employees of the Administrative
Agent), paid or incurred by the Administrative Agent or the Lead Arranger in
connection with the preparation, investigation, negotiation, execution,
delivery, syndication, review, amendment, modification, and administration of
the Loan Documents, whether incurred prior to or subsequent to closing. The
Borrowers also agree to reimburse the Administrative Agent, the Lead Arranger,
the LC Issuer and the Lenders for any costs, internal charges and out-of-pocket
expenses (including reasonable attorneys' fees and time charges of attorneys for
the Administrative Agent, the Lead Arranger, the LC Issuer and the Lenders,
which attorneys may be employees of the Administrative Agent, the Lead Arranger,
the LC Issuer or the
56
Lenders) paid or incurred by the Administrative Agent, the Lead Arranger, the LC
Issuer or any Lender in connection with the collection and enforcement of the
Loan Documents.
(ii) The Company hereby further agrees to indemnify the
Administrative Agent, the Lead Arranger, the LC Issuer and each Lender, its
directors, officers and employees against all losses, claims, damages,
penalties, judgments, liabilities and expenses (including, without limitation,
all reasonable expenses of litigation or preparation therefor whether or not the
Administrative Agent, the Lead Arranger, the LC Issuer or any Lender is a party
thereto) which any of them may pay or incur arising out of or relating to this
Agreement, the other Loan Documents, the transactions contemplated hereby or the
direct or indirect application or proposed application of the proceeds of any
Credit Extension hereunder except to the extent that they are determined in a
final non-appealable judgment by a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of the party seeking
indemnification. The obligations of the Company under this Section 9.6 shall
survive the termination of this Agreement.
9.7 Numbers of Documents.
All statements, notices, closing documents, and requests hereunder
shall be furnished to the Administrative Agent with sufficient counterparts so
that the Administrative Agent may furnish one to each of the Lenders.
9.8 Accounting.
Except as provided to the contrary herein, all accounting terms used
herein shall be interpreted and all accounting determinations hereunder shall be
made in accordance with Agreement Accounting Principles except that any
calculation or determination which is to be made on a consolidated basis shall
be made for the Company and all its Subsidiaries, including those Subsidiaries,
if any, which are unconsolidated on the Company's audited financial statements.
9.9 Severability of Provisions.
Any provision in any Loan Document that is held to be inoperative,
unenforceable, or invalid in any jurisdiction shall, as to that jurisdiction, be
inoperative, unenforceable, or invalid without affecting the remaining
provisions in that jurisdiction or the operation, enforceability, or validity of
that provision in any other jurisdiction, and to this end the provisions of all
Loan Documents are declared to be severable.
9.10 Nonliability of Lenders.
The relationship between the Company on the one hand and the Lenders,
the LC Issuer and the Administrative Agent on the other hand shall be solely
that of borrower and lender. Neither the Administrative Agent, the Lead
Arranger, the LC Issuer nor any Lender shall have any fiduciary responsibilities
to the Company solely by reason of being a party to this Agreement. Neither the
Administrative Agent, the Lead Arranger, the LC Issuer nor any Lender undertakes
any responsibility to the Company to review or inform the Company of any matter
in connection with any phase of the Company's business or operations. The
Company agrees that neither the Administrative Agent, the Lead Arranger, the LC
Issuer nor any Lender shall have liability to the Company (whether sounding in
tort, contract or otherwise) for losses suffered by the Company in connection
with, arising out of, or in any way related to, the transactions contemplated
and the relationship established by the Loan Documents, or any act, omission or
event occurring in connection therewith, unless it is determined in a final
non-appealable judgment by a court of competent jurisdiction that such losses
resulted from the gross
57
negligence or willful misconduct of the party from which recovery is sought.
Neither the Administrative Agent, the Lead Arranger, the LC Issuer nor any
Lender shall have any liability with respect to, and the Company hereby waives,
releases and agrees not to sue for, any special, indirect or consequential
damages suffered by the Company in connection with, arising out of, or in any
way related to the Loan Documents or the transactions contemplated thereby.
9.11 Confidentiality; Disclosure.
Each of the Administrative Agent and each Lender agrees to hold any
confidential information which it may receive from the Company pursuant to this
Agreement in confidence, except for disclosure (i) to its Affiliates and to
other Lenders and their respective Affiliates, (ii) to legal counsel,
accountants, and other professional advisors to such Lender or the
Administrative Agent or, subject to Section 12.4, to a Transferee, (iii) to
regulatory officials, (iv) to any Person as required by law, regulation, or
legal process, (v) to any Person in connection with any legal proceeding to
which such Lender is a party or in connection with any legal proceeding related
to this facility, (vi) to such Lender's contractual counterparties in swap
agreements or to legal counsel, accountants and other professional advisors to
such counterparties, (vii) permitted by Section 12.4, and (viii) to rating
agencies if requested or required by such agencies in connection with a rating
relating to the Advances hereunder, provided that reasonable advance written
notice is given to the Company. Neither the Administrative Agent nor any Lender
will make any press release or other public announcement regarding this
Agreement or the transactions contemplated hereby without the Company's express
prior written consent, except with respect to league table submissions in
connection with this Agreement, as required under applicable law or by any
governmental agency, in which case the party required to make the press release
or public announcement shall use commercially reasonable efforts to obtain the
prior approval of the Company as to the form, nature and extent of the press
release or public announcement prior to issuing the press release or making the
public announcement. Notwithstanding anything herein to the contrary,
confidential information shall not include, and the Administrative Agent and
each Lender (and each employee, representative or other agent of the
Administrative Agent and any Lender) may disclose to any and all Persons,
without limitation of any kind, the "tax treatment" and "tax structure" (in each
case, within the meaning of Treasury Regulation Section 1.6011-4) of the
transactions contemplated hereby and all materials of any kind (including
opinions or other tax analyses) that are or have been provided to the
Administrative Agent or any Lender relating to such "tax treatment" or "tax
structure"; provided that with respect to any document or similar item that in
either case contains information concerning the "tax treatment" or "tax
structure" of the transactions contemplated hereby as well as other information,
this sentence shall only apply to such portions of the document or similar item
that relate to the "tax treatment" or "tax structure" of the transactions
contemplated hereby.
9.12 Nonreliance.
Each Lender hereby represents that it is not relying on or looking to
any margin stock (as defined in Regulation U of the Board of Governors of the
Federal Reserve System) for the repayment of the Credit Extensions provided for
herein.
ARTICLE X.
THE AGENT
10.1 Appointment; Nature of Relationship.
Bank One, NA is hereby appointed by each of the Lenders as its
contractual representative (herein referred to as the "Administrative Agent")
hereunder and under each other Loan Document, and
58
each of the Lenders irrevocably authorizes the Administrative Agent to act as
the contractual representative of such Lender with the rights and duties
expressly set forth herein and in the other Loan Documents. The Administrative
Agent agrees to act as such contractual representative upon the express
conditions contained in this Article X. Notwithstanding the use of the defined
term "Administrative Agent," it is expressly understood and agreed that the
Administrative Agent shall not have any fiduciary responsibilities to any Lender
by reason of this Agreement or any other Loan Document and that the
Administrative Agent is merely acting as the contractual representative of the
Lenders with only those duties as are expressly set forth in this Agreement and
the other Loan Documents. In its capacity as the Lenders' contractual
representative, the Administrative Agent (i) does not hereby assume any
fiduciary duties to any of the Lenders, (ii) is a "representative" of the
Lenders within the meaning of Section 9-105 of the Uniform Commercial Code and
(iii) is acting as an independent contractor, the rights and duties of which are
limited to those expressly set forth in this Agreement and the other Loan
Documents. Each of the Lenders hereby agrees to assert no claim against the
Administrative Agent on any agency theory or any other theory of liability for
breach of fiduciary duty, all of which claims each Lender hereby waives.
10.2 Powers.
The Administrative Agent shall have and may exercise such powers under
the Loan Documents as are specifically delegated to the Administrative Agent by
the terms of each thereof, together with such powers as are reasonably
incidental thereto. The Administrative Agent shall have no implied duties to the
Lenders, or any obligation to the Lenders to take any action thereunder except
any action specifically provided by the Loan Documents to be taken by the
Administrative Agent.
10.3 General Immunity.
Neither the Administrative Agent nor any of its directors, officers,
agents or employees shall be liable to the Company, the Lenders or any Lender
for any action taken or omitted to be taken by it or them hereunder or under any
other Loan Document or in connection herewith or therewith except to the extent
such action or inaction is determined in a final non-appealable judgment by a
court of competent jurisdiction to have arisen from the gross negligence or
willful misconduct of such Person.
10.4 No Responsibility for Loans, Recitals, etc.
Neither the Administrative Agent nor any of its directors, officers,
agents or employees shall be responsible for or have any duty to ascertain,
inquire into, or verify (a) any statement, warranty or representation made in
connection with any Loan Document or any borrowing hereunder; (b) the
performance or observance of any of the covenants or agreements of any obligor
under any Loan Document, including, without limitation, any agreement by an
obligor to furnish information directly to each Lender; (c) the satisfaction of
any condition specified in Article IV, except receipt of items required to be
delivered solely to the Administrative Agent; (d) the existence or possible
existence of any Default or Unmatured Default; (e) the validity, enforceability,
effectiveness, sufficiency or genuineness of any Loan Document or any other
instrument or writing furnished in connection therewith; (f) the value,
sufficiency, creation, perfection or priority of any Lien in any collateral
security; or (g) the financial condition of the Company or any guarantor of any
of the Obligations or of any of the Company's or any such guarantor's respective
Subsidiaries. The Administrative Agent shall have no duty to disclose to the
Lenders information that is not required to be furnished by the Company to the
Administrative Agent at such time, but is voluntarily furnished by the Company
to the Administrative Agent (either in its capacity as Administrative Agent or
in its individual capacity).
10.5 Action on Instructions of Lenders.
The Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, hereunder and under any other Loan
Document in accordance with written instructions signed by
59
the Required Lenders, and such instructions and any action taken or failure to
act pursuant thereto shall be binding on all of the Lenders. The Lenders hereby
acknowledge that the Administrative Agent shall be under no duty to take any
discretionary action permitted to be taken by it pursuant to the provisions of
this Agreement or any other Loan Document unless it shall be requested in
writing to do so by the Required Lenders. The Administrative Agent shall be
fully justified in failing or refusing to take any action hereunder and under
any other Loan Document unless it shall first be indemnified to its satisfaction
by the Lenders pro rata against any and all liability, cost and expense that it
may incur by reason of taking or continuing to take any such action.
10.6 Employment of Agents and Counsel.
The Administrative Agent may execute any of its duties as
Administrative Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Administrative Agent shall be entitled
to advice of counsel concerning the contractual arrangement between the
Administrative Agent and the Lenders and all matters pertaining to the
Administrative Agent's duties hereunder and under any other Loan Document.
10.7 Reliance on Documents; Counsel.
The Administrative Agent shall be entitled to rely upon any Note,
notice, consent, certificate, affidavit, letter, telegram, statement, paper or
document believed by it to be genuine and correct and to have been signed or
sent by the proper person or persons, and, in respect to legal matters, upon the
opinion of counsel selected by the Administrative Agent, which counsel may be
employees of the Administrative Agent.
10.8 Administrative Agent's Reimbursement and Indemnification.
The Lenders agree to reimburse and indemnify the Administrative Agent
ratably in proportion to their respective Commitments (or, if the Commitments
have been terminated, in proportion to their Commitments immediately prior to
such termination) (i) for any amounts not reimbursed by the Company for which
the Administrative Agent is entitled to reimbursement by the Company under the
Loan Documents (other than the fee payable pursuant to Section 10.13), (ii) for
any other expenses incurred by the Administrative Agent on behalf of the
Lenders, in connection with the preparation, execution, delivery, administration
and enforcement of the Loan Documents (including, without limitation, for any
expenses incurred by the Administrative Agent in connection with any dispute
between the Administrative Agent and any Lender or between two or more of the
Lenders) and (iii) for any liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind and
nature whatsoever which may be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of the Loan Documents
or any other document delivered in connection therewith or the transactions
contemplated thereby (including, without limitation, for any such amounts
incurred by or asserted against the Administrative Agent in connection with any
dispute between the Administrative Agent and any Lender or between two or more
of the Lenders), or the enforcement of any of the terms of the Loan Documents or
of any such other documents, provided that (i) no Lender shall be liable for any
of the foregoing to the extent any of the foregoing is found in a final
non-appealable judgment by a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of the Administrative Agent and
(ii) any indemnification required pursuant to Section 3.5(vii) shall,
notwithstanding the provisions of this Section 10.8, be paid by the relevant
Lender in accordance with the provisions thereof. The obligations of the Lenders
under this Section 10.8 shall survive payment of the Obligations and termination
of this Agreement.
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10.9 Notice of Default.
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Unmatured Default hereunder, except
with respect to defaults in the payment of principal, interest and fees required
to be paid to the Administrative Agent on the account of the Lenders, unless the
Administrative Agent has received written notice from a Lender or the Company
referring to this Agreement describing such Default or Unmatured Default and
stating that such notice is a "notice of default". In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall give
prompt notice thereof to the Lenders.
10.10 Rights as a Lender.
In the event the Administrative Agent is a Lender, the Administrative
Agent shall have the same rights and powers hereunder and under any other Loan
Document with respect to its Commitment and its Loans as any Lender and may
exercise the same as though it were not the Administrative Agent, and the term
"Lender" or "Lenders" shall, at any time when the Administrative Agent is a
Lender, unless the context otherwise indicates, include the Administrative Agent
in its individual capacity. The Administrative Agent and its Affiliates may
accept deposits from, lend money to, and generally engage in any kind of trust,
debt, equity or other transaction, in addition to those contemplated by this
Agreement or any other Loan Document, with the Company or any of its
Subsidiaries in which the Company or such Subsidiary is not restricted hereby
from engaging with any other Person. The Administrative Agent, in its individual
capacity, is not obligated to remain a Lender.
10.11 Lender Credit Decision.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent, the Lead Arranger or any other Lender
and based on the financial statements prepared by the Company and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and the other Loan Documents.
Each Lender also acknowledges that it will, independently and without reliance
upon the Administrative Agent, the Lead Arranger 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
this Agreement and the other Loan Documents.
10.12 Successor Administrative Agent.
The Administrative Agent may resign at any time by giving written
notice thereof to the Lenders and the Company, such resignation to be effective
upon the appointment of a successor Administrative Agent or, if no successor
Administrative Agent has been appointed, forty-five days after the retiring
Administrative Agent gives notice of its intention to resign. The Administrative
Agent may be removed at any time with or without cause by written notice
received by the Administrative Agent from the Required Lenders, such removal to
be effective on the date specified by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint, on
behalf of the Company and the Lenders, a successor Administrative Agent, which
successor Administrative Agent shall (unless a Default shall have occurred and
be continuing) be approved by the Company (which approval shall not be
unreasonably withheld or delayed). If no successor Administrative Agent shall
have been so appointed by the Required Lenders within thirty days after the
resigning Administrative Agent's giving notice of its intention to resign, then
the resigning Administrative Agent may appoint, on behalf of the Company and the
Lenders, a successor Administrative Agent. Notwithstanding the previous
sentence, without the consent of any Lender but upon thirty days prior written
notice to the Lenders and the Company, the Administrative Agent may appoint any
of its Affiliates which is a commercial bank as a successor Administrative Agent
hereunder, which successor Administrative Agent shall (unless a Default shall
have occurred and be continuing) be approved by the Company (which approval
shall not be
61
unreasonably withheld or delayed). If the Administrative Agent has resigned or
been removed and no successor Administrative Agent has been appointed, the
Lenders may perform all the duties of the Administrative Agent hereunder and the
Company shall make all payments in respect of the Obligations to the applicable
Lender and for all other purposes shall deal directly with the Lenders. No
successor Administrative Agent shall be deemed to be appointed hereunder until
such successor Administrative Agent has accepted the appointment. Any such
successor Administrative Agent shall be a commercial bank having capital and
retained earnings of at least $5,000,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the resigning or
removed Administrative Agent. Upon the effectiveness of the resignation or
removal of the Administrative Agent, the resigning or removed Administrative
Agent shall be discharged from its duties and obligations hereunder and under
the Loan Documents. After the effectiveness of the resignation or removal of an
Administrative Agent, the provisions of this Article X shall continue in effect
for the benefit of such Administrative Agent in respect of any actions taken or
omitted to be taken by it while it was acting as the Administrative Agent
hereunder and under the other Loan Documents. In the event that there is a
successor to the Administrative Agent by merger, or the Administrative Agent
assigns its duties and obligations to an Affiliate pursuant to this Section
10.12, then the term "Prime Rate" as used in this Agreement shall mean the prime
rate, base rate or other analogous rate of the new Administrative Agent.
10.13 Administrative Agent's Fee.
The Company agrees to pay to the Administrative Agent, for its own
account, the fees agreed to by the Company and the Administrative Agent pursuant
to that certain letter agreement dated February 12, 2003 or as otherwise agreed
from time to time.
10.14 Delegation to Affiliates.
The Company and the Lenders agree that the Administrative Agent may
delegate any of its duties under this Agreement to any of its Affiliates. Any
such Affiliate (and such Affiliate's directors, officers, agents and employees)
which performs duties in connection with this Agreement shall be entitled to the
same benefits of the indemnification, waiver and other protective provisions to
which the Administrative Agent is entitled under Articles IX and X.
10.15 Administrative Agent, Syndication Agents, Documentation
Agents, Lead Arranger, etc.
Neither the Syndication Agents, the Documentation Agents nor the Lead
Arranger shall have any right, power, obligation, liability, responsibility or
duty under this Agreement other than those applicable to all Lenders as such.
Without limiting the foregoing, none of such Lenders or the Administrative Agent
shall have or be deemed to have a fiduciary relationship with any Lender. Each
Lender hereby makes the same acknowledgments with respect to such Lenders as it
makes with respect to the Administrative Agent in Section 10.11.
ARTICLE XI.
SETOFF; RATABLE PAYMENTS
11.1 Setoff.
In addition to, and without limitation of, any rights of the Lenders
under applicable law, if any Borrower becomes insolvent, however evidenced, or
any Default occurs and is continuing, any and all deposits (including all
account balances, whether provisional or final and whether or not collected or
62
available) and any other Indebtedness at any time held or owing by any Lender or
any Affiliate of any Lender to or for the credit or account of any Borrower may
be offset and applied toward the payment of the Obligations owing to such
Lender, whether or not the Obligations, or any part hereof, shall then be due.
11.2 Ratable Payments.
If any Lender, whether by setoff or otherwise, has payment made to it
upon its Outstanding Credit Exposure (other than payments received pursuant to
Section 3.1, 3.2, 3.4 or 3.5 or payments of Alternate Currency Loans) in a
greater proportion than that received by any other Lender, such Lender agrees,
promptly upon demand, to purchase a portion of the Outstanding Credit Exposure
held by the other Lenders so that after such purchase each Lender will hold its
Pro Rata Share of the Aggregate Outstanding Credit Exposure. If any Lender,
whether in connection with setoff or amounts which might be subject to setoff or
otherwise, receives collateral or other protection for its Obligations or such
amounts which may be subject to setoff, such Lender agrees, promptly upon
demand, to take such action necessary such that all Lenders share in the
benefits of such collateral ratably in proportion to their respective Pro Rata
Shares of the Aggregate Outstanding Credit Exposure. In case any such payment is
disturbed by legal process, or otherwise, appropriate further adjustments shall
be made.
If an amount to be setoff is to be applied to Indebtedness of the
Company to a Lender other than Indebtedness comprised of Loans made by such
Lender, such amount shall be applied ratably to such other Indebtedness and to
the Indebtedness comprised of such Loans.
ARTICLE XII.
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1 Successors and Assigns.
The terms and provisions of the Loan Documents shall be binding upon
and inure to the benefit of the Borrowers and the Lenders and their respective
successors and assigns, except that (i) the Borrowers shall not have the right
to assign their rights or obligations under the Loan Documents and (ii) any
assignment by any Lender must be made in compliance with Section 12.3.
Notwithstanding clause (ii) of this Section, any Lender may at any time, without
the consent of the Borrowers or the Administrative Agent, assign all or any
portion of its rights under this Agreement and any Note to a Federal Reserve
Bank; provided, however, that no such assignment to a Federal Reserve Bank shall
release the transferor Lender from its obligations hereunder. The Administrative
Agent may treat the Person which made any Loan or which holds any Note as the
owner thereof for all purposes hereof unless and until such Person complies with
Section 12.3 in the case of an assignment thereof or, in the case of any other
transfer, a written notice of the transfer is filed with the Administrative
Agent. Any assignee or transferee of the rights to any Loan or any Note agrees
by acceptance of such transfer or assignment to be bound by all the terms and
provisions of the Loan Documents. Any request, authority or consent of any
Person, who at the time of making such request or giving such authority or
consent is the owner of the rights to any Loan (whether or not a Note has been
issued in evidence thereof), shall be conclusive and binding on any subsequent
holder, transferee or assignee of the rights to such Loan.
12.2 Participations.
12.2.1. Permitted Participants; Effect.
63
Any Lender may, in its sole discretion, in the ordinary course of its
business and in accordance with applicable law, at any time sell to one or more
banks or other entities ("Participants") participating interests in any
Outstanding Credit Exposure of such Lender, any Note held by such Lender, any
Commitment of such Lender or any other interest of such Lender under the Loan
Documents. In the event of any such sale by a Lender of participating interests
to a Participant, such Lender's obligations under the Loan Documents shall
remain unchanged, such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, such Lender shall remain
the owner of its Outstanding Credit Exposure and the holder of any Note issued
to it in evidence thereof for all purposes under the Loan Documents, all amounts
payable by the Borrowers under this Agreement shall be determined as if such
Lender had not sold such participating interests, and the Borrowers and the
Administrative Agent shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under the Loan
Documents.
12.2.2. Voting Rights.
Each Lender shall retain the sole right to approve, without the consent
of any Participant, any amendment, modification or waiver of any provision of
the Loan Documents other than any amendment, modification or waiver with respect
to any Credit Extension or Commitment in which such Participant has an interest
which forgives principal, interest or fees or reduces the interest rate or fees
payable with respect to any such Credit Extension or Commitment, extends the
Facility Termination Date, postpones any date fixed for any regularly-scheduled
payment of principal of, or interest or fees on, any such Credit Extension or
Commitment, releases the Company as guarantor of any such Loan or releases any
of the collateral, if any, securing any such Credit Extension.
12.2.3. Benefit of Setoff.
The Company agrees that each Participant shall be deemed to have the
right of setoff provided in Section 11.1 in respect of its participating
interest in amounts owing under the Loan Documents to the same extent as if the
amount of its participating interest were owing directly to it as a Lender under
the Loan Documents, provided that each Lender shall retain the right of setoff
provided in Section 11.1 with respect to the amount of participating interests
sold to each Participant. The Lenders agree to share with each Participant, and
each Participant, by exercising the right of setoff provided in Section 11.1,
agrees to share with each Lender, any amount received pursuant to the exercise
of its right of setoff, such amounts to be shared in accordance with Section
11.2 as if each Participant were a Lender.
12.3 Assignments.
12.3.1. Permitted Assignments.
Any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time assign to one or more financial
institutions, mutual funds, insurance companies or other entities engaged in the
business of extending credit for borrowed money ("Purchasers") all or any part
of its rights and obligations under the Loan Documents. Such assignment shall be
substantially in the form of Exhibit C or in such other form as may be agreed to
by the parties thereto. The consent of the Company and the Administrative Agent
and the LC Issuer shall be required prior to an assignment becoming effective
with respect to a Purchaser which is not a Lender or an Affiliate thereof or an
Approved Fund; provided, however, that if a Default has occurred and is
continuing, the consent of the Company shall not be required. Such consent shall
not be unreasonably withheld or delayed. The assignor shall give prompt written
notice to the Company of any assignment becoming effective without the consent
of the Company. The Administrative Agent shall give written notice to each
Lender of any assignment
64
becoming effective to an assignor other than a Lender or an Affiliate thereof.
Each such assignment with respect to a Purchaser which is not a Lender or an
Affiliate thereof shall (unless each of the Company and the Administrative Agent
otherwise consents) be in an amount not less than the lesser of (i) $5,000,000
and in multiples of $1,000,000 or (ii) the remaining amount of the assigning
Lender's Commitment (calculated as at the date of such assignment) or
outstanding Loans (if the applicable Commitment has been terminated). If any
Lender assigns a part of its rights and obligations in respect of its Dollar
Loans and/or its Dollar Commitment under this Agreement to a Purchaser other
than a Lender or an Affiliate thereof, such Lender shall assign proportionate
interests in its respective Multicurrency Loans and Multicurrency Commitment and
other related rights and obligations hereunder to such Purchaser, and if any
Lender assigns a part of its rights and obligations under this Agreement in
respect of its Multicurrency Loans and/or Multicurrency Commitments to a
Purchaser other than a Lender or an Affiliate thereof, such Lender shall assign
proportionate interests in its Dollar Loans and Dollar Commitments to such
Purchaser. Any assignment of an Alternate Currency Loan shall be for the entire
amount of such Alternate Currency Loan of such Lender.
12.3.2. Effect; Effective Date.
Upon (i) delivery to the Administrative Agent of an assignment,
together with any consents required by Section 12.3.1, and (ii) payment of a
$3,500 fee to the Administrative Agent for processing such assignment (unless
such fee is waived by the Administrative Agent), such assignment shall become
effective on the effective date specified in such assignment. The assignment
shall contain a representation by the Purchaser to the effect that none of the
consideration used to make the purchase of the Commitment and Outstanding Credit
Exposure under the applicable assignment agreement constitutes "plan assets" as
defined under ERISA and that the rights and interests of the Purchaser in and
under the Loan Documents will not be "plan assets" under ERISA. On and after the
effective date of such assignment, such Purchaser shall for all purposes be a
Lender party to this Agreement and any other Loan Document executed by or on
behalf of the Lenders and shall have all the rights and obligations of a Lender
under the Loan Documents, to the same extent as if it were an original party
hereto, and no further consent or action by the Company, the Lenders or the
Administrative Agent shall be required to release the transferor Lender with
respect to the percentage of the Aggregate Commitment and Outstanding Credit
Exposure assigned to such Purchaser. Upon the consummation of any assignment to
a Purchaser pursuant to this Section 12.3.2, the transferor Lender, the
Administrative Agent and the Borrowers shall, if the transferor Lender or the
Purchaser desires that its Loans be evidenced by Notes, make appropriate
arrangements so that new Notes or, as appropriate, replacement Notes are issued
to such transferor Lender and new Notes or, as appropriate, replacement Notes,
are issued to such Purchaser, in each case in principal amounts reflecting their
respective Commitments, as adjusted pursuant to such assignment.
12.4 Dissemination of Information.
The Company authorizes each Lender to disclose to any Participant or
Purchaser or any other Person acquiring an interest in the Loan Documents by
operation of law (each a "Transferee") and any prospective Transferee any and
all information in such Lender's possession concerning the creditworthiness of
the Company and its Subsidiaries, provided that each Transferee and prospective
Transferee agrees in writing to be bound by Section 9.11 of this Agreement.
12.5 Tax Treatment.
If any interest in any Loan Document is transferred to any Transferee
which is organized under the laws of any jurisdiction other than the United
States or any State thereof, the transferor Lender shall cause such Transferee,
concurrently with the effectiveness of such transfer, to comply with the
provisions of Section 3.5(iv).
65
12.6 Transfer to an SPC.
Notwithstanding anything to the contrary contained herein, any Lender
(a "Granting Lender") may grant to a special purpose funding vehicle (an "SPC"),
identified as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Company, the option to provide to the Borrowers all
or any part of any Loan (other than an Alternate Currency Loan) that such
Granting Lender would otherwise be obligated to make to the Borrower pursuant to
this Agreement; provided that (i) nothing herein shall constitute a commitment
by any SPC to make any Loan and (ii) if an SPC elects not to exercise such
option or otherwise fails to provide all or any part of such Loan, the Granting
Lender shall be obligated to make such Loan pursuant to the terms hereof. The
making of a Loan by an SPC hereunder shall utilize the Commitment of the
Granting Lender to the same extent, and as if, such Loan were made by such
Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for
any indemnity or similar payment obligation under this Agreement (all liability
for which shall remain with the 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 indebtedness 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 proceedings under the laws of the United
States or any State thereof. In addition, notwithstanding anything to the
contrary in this Section 12.6, any SPC may (i) with notice to, but without the
prior written consent of, the Company and the Administrative Agent and without
paying any processing fee therefor, assign all or a portion of its interests in
any Loans to the Granting Lender or to any financial institutions (consented to
by the Company and the Administrative Agent) providing liquidity and/or credit
support to or for the account of such SPC to support the funding or maintenance
of Loans and (ii) disclose on a confidential basis any non-public information
relating to its Loans to any rating agency, commercial paper dealer or provider
of any surety, guarantee or credit or liquidity enhancement to such SPC. As this
Section applies to any particular SPC, this section may not be amended without
the written consent of such SPC.
ARTICLE XIII.
NOTICES
13.1 Notices.
Except as otherwise permitted by Section 2.15 with respect to borrowing
notices, all notices, requests and other communications to any party hereunder
shall be in writing (including electronic transmission, facsimile transmission
or similar writing) and shall be given to such party: (x) in the case of the
Borrowers or the Administrative Agent, at its address or facsimile number set
forth on the signature pages hereof, (y) in the case of any Lender, at its
address or facsimile number set forth below its signature hereto or (z) in the
case of any party, at such other address or facsimile number as such party may
hereafter specify for the purpose by notice to the Administrative Agent and the
Borrowers in accordance with the provisions of this Section 13.1. Each such
notice, request or other communication shall be effective (i) if given by
facsimile transmission, when transmitted to the facsimile number specified in
this Section and confirmation of receipt is received, (ii) if given by mail, 72
hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid, or (iii) if given by any other means,
when delivered (or, in the case of electronic transmission, received) at the
address specified in this Section; provided that notices to the Administrative
Agent under Article II shall not be effective until received.
66
13.2 Change of Address.
The Borrowers, the Administrative Agent and any Lender may each change
the address for service of notice upon it by 5 days' prior written notice to the
other parties hereto.
ARTICLE XIV.
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Borrowers, the
Administrative Agent, the LC Issuer and the Lenders and each party has notified
the Administrative Agent by facsimile transmission or telephone that it has
taken such action.
ARTICLE XV.
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
15.1 CHOICE OF LAW.
THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A CONTRARY EXPRESS
CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS
(INCLUDING, WITHOUT LIMITATION, 735 ILCS SECTION 105/5-1 ET SEQ, BUT OTHERWISE
WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
15.2 CONSENT TO JURISDICTION.
EACH BORROWER HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE COURT SITTING IN
CHICAGO, ILLINOIS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY
LOAN DOCUMENTS AND EACH BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN
RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH
COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO
THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT
SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE
AGENT, THE LC ISSUER OR ANY LENDER TO BRING PROCEEDINGS AGAINST ANY BORROWER IN
THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY ANY BORROWER
AGAINST THE AGENT, THE LC ISSUER OR ANY LENDER OR ANY AFFILIATE OF THE AGENT,
THE LC ISSUER OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY
WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE
BROUGHT ONLY IN A COURT IN CHICAGO, ILLINOIS.
67
15.3 WAIVER OF JURY TRIAL.
THE BORROWERS, THE AGENT, THE LC ISSUER AND EACH LENDER HEREBY WAIVE
TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT
OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP
ESTABLISHED THEREUNDER.
68
IN WITNESS WHEREOF, the Borrowers, the Lenders, the LC Issuer and the
Administrative Agent have executed this Agreement as of the date first above
written.
CARDINAL HEALTH, INC.
By: /s/ Donna Brandin
--------------------------------------
Title: Senior Vice President and Treasurer
7000 Cardinal Place
Dublin, Ohio 43017
Attention: Laura Warren
Telephone: (614) 757-5391
FAX: (614) 757-4724
69
Commitment:
$67,500,000 BANK ONE, NA,
Individually and as Administrative Agent
and LC Issuer
By: /s/ Richard J. Johnsen
------------------------------------
Title: Managing Director
1111 Polaris Parkway
Suite 3-A
OH1-1085
Columbus, OH 43240
Attention: Paul A. Harris
Telephone: (614) 213-4047
FAX: (614) 213-3135
70
Commitment:
$58,750,000 BANK OF AMERICA, N.A., Individually and as
Syndication Agent
By: /s/ Richard Nichols
--------------------------------------
Title: Managing Director
100 N. Tryon Street
NC1-007-17-11
Charlotte, NC 28255-0001
Attention: Russ Matthews
Telephone: (704) 386-3894
FAX: (704) 386-3893
71
Commitment:
$58,750,000 WACHOVIA BANK, NATIONAL ASSOCIATION,
Individually and as Syndication Agent
By: /s/ Jeanette A. Griffin
--------------------------------------
Title: Director
1339 Chestnut Street, PA4152 (12th Floor)
Philadelphia, Pennsylvania 19107
Attention: Jeanette Griffin
Telephone: (267) 321-6615
FAX: (267) 321-6702
72
Commitment:
$58,750,000 CREDIT SUISSE FIRST BOSTON, acting through its
Cayman Islands Branch,
Individually and as Documentation Agent
By: /s/ Joseph Adipietro
---------------------------------------
Title: Director
By: /s/ Jennifer A. Pieza
---------------------------------------
Title: Associate
One Madison Avenue, 8th Floor
New York, NY 10010-3629
Attention: Loan Administration
Telephone: (212) 538-3386
FAX: (212) 538-6851
73
Commitment:
$58,750,000 BARCLAYS BANK PLC, Individually and as
Documentation Agent
By: /s/ Douglas Bernegger
--------------------------------------
Title: Director
200 Park Avenue - 4th Floor
New York, NY 10166
Attention: Russell Johnson
Telephone: 212-412-2895
FAX: 212-412-7511
74
Commitment:
$58,750,000 DEUTSCHE BANK AG - NEW YORK BRANCH
By: /s/ Iain Stewart
--------------------------------------
Title: Director
By: /s/ Thomas A. Foley
-------------------------------------
Title: Vice President
31 W. 52nd Street, 23rd Floor
New York, NY 10019
Attention: Iain Stewart
Telephone: (212) 469-8279
FAX: (212) 469-8701
75
Commitment:
$58,750,000 UBS AG CAYMAN ISLANDS BRANCH
By: /s/ Wilfred V. Saint
-------------------------------------
Title: Associate Director
By: /s/ Thomas R. Salzano
-------------------------------------
Title: Director
677 Washington Boulevard
Stamford, CT 06901
Attention: Marie Haddad
Telephone: (203) 719-5609
FAX: (203) 719-3888
76
Commitment:
$50,000,000 THE BANK OF TOKYO-MITSUBISHI, LTD
By: /s/ Shinichiro Munechika
-------------------------------------
Title: Deputy General Manager
227 West Monroe Street, Suite 2700
Chicago, Illinois 60606
Attention: William J. Murray
Telephone: 312-696-4653
FAX: 312-696-4535
77
Commitment:
$50,000,000 FLEET NATIONAL BANK
By: /s/ Robert J. Milas
-------------------------------------
Title: Vice President
300 Broad Hollow Road
Melville, NY 11747
Attention: Mr. Robert J. Milas
Telephone: (631) 547-7857
FAX: (631)547-7815
78
Commitment:
$42,500,000 THE BANK OF NOVA SCOTIA
By: /s/ Carolyn A. Calloway
-------------------------------------
Title: Managing Director
600 Peachtree Street, Suite 2700
Atlanta, Georgia 30308
Attention: Dana Maloney
Telephone: (404) 877-1524
FAX: (404) 888-8998
79
Commitment:
$32,500,000 SUNTRUST BANK
By: /s/ William D. Priester
------------------------------------
Title: Director
201 4th Avenue North, 3rd Floor
Nashville, TN 37219
Attention: Bill Priester
Telephone: (615) 748-5969
FAX: (615) 748-5269
80
Commitment:
$32,500,000 PNC BANK, NATIONAL ASSOCIATION
By: /s/ Jeffrey L. Stein
------------------------------------
Title: Vice President
201 East Fifth Street
Cincinnati, OH 45202
Attention: Jeffrey L. Stein
Telephone: (513) 651-8692
FAX: (513) 651-8951
81
Commitment:
$25,000,000 NATIONAL CITY BANK
By: /s/ Thomas E. Redmond
------------------------------------
Title: Vice President
155 East Broad Street
Columbus, Ohio 43251-0077
Attention: Thomas E. Redmond
Telephone: (614) 463-8540
FAX: (614) 463-8572
82
Commitment:
$15,000,000 BANCO BILBAO VIZCAYA ARGENTARIA S.A.
By: /s/ Jay Levit
-------------------------------------
Title: Vice President
By: /s/ Salustiano Machado
-------------------------------------
Title: Vice President
1345 Avenue of the Americas, 45th Floor
New York, New York 10105
Attention: Francesc Alvarez
Telephone: (212) 728-1634
FAX: (212) 333-2904
83
Commitment:
$15,000,000 BANCA INTESA S.P.A.
By: /s/ C. Dougherty
-------------------------------------
Title: Vice President
By: /s/ F. Maffei
-------------------------------------
Title: Vice President
1 William Street
New York, New York
Attention: Frank Maffei
Telephone: (212) 607-3880
FAX: (212) 809-2124
84
Commitment:
$15,000,000 THE BANK OF NEW YORK
By: /s/ David C. Judge
Title: Senior Vice President
One Wall Street
New York, New York
Attention: Patrick Vatel
Telephone: (212) 635-7882
FAX: (212) 635-1481
85
Commitment:
$12,500,000 ABN AMRO BANK N.V.
By: /s/ James S. Kreitler
------------------------------------
Title: Senior Vice President
By: /s/ Todd J. Miller
------------------------------------
Title: Assistant Vice President
55 E. 52nd St., 7th Floor
New York, NY 10055
Attention: Michele Costello
Telephone: (212) 409-1481
FAX: (212) 409-1641
86
Commitment:
$12,500,000 FIFTH THIRD BANK (CENTRAL OHIO)
By: /s/ Kim Dennis
------------------------------------
Title: Assistant Vice President
21 East State Street
Columbus, Ohio
Attention: John Beardslee
Telephone: (614) 223-3982
FAX: (614) 341-2606
87
Commitment:
$12,500,000 U.S. BANK NATIONAL ASSOCIATION
By: /s/ Celia V. Conlon
-------------------------------------
Title: Vice President
175 South Third Street, 4th Floor
Columbus, Ohio 43215
Attention: J. Todd Price
Telephone: (614) 232-8040
FAX: (614) 232-8098
88
Commitment:
$7,500,000 ALLIED IRISH BANKS p.l.c.
By: /s/ Cathal O'Connor
------------------------------------
Title: Vice President
AIB International Corporate Banking
Block C1, Bankcentre, Ballsbridge
Dublin, Ireland
Attention: Cathal O'Connor
Telephone: 011 353 1 6414812
FAX: 011 353 1 6682508
89
Commitment:
$7,500,000 CREDIT LYONNAIS-S.A.
By: /s/ Serge Giannechini
-------------------------------------
Title: Directeur Regional Entreprises
DIRECTION REGIONALE ENTREPRISES
ILE DE FRANCE SUD OUEST
122 AVENUE DU GENERAL LECLERC
92100 BOULOGNE BILLANCOURT-FRANCE
Attention: Serge Giannechini
Telephone: 011-331-46842304
FAX: 011-331-48259130
90
PRICING SCHEDULE
The Applicable Margin shall be as determined by the matrix below:
Level I Level II Level III Level IV Level V
Status Status Status Status Status
- --------------------------------------------------------------------------------------------------------------------
BBB+ or < than = to BBB or
Reference Rating > than = to A+ or A1 A or A2 A- or A3 Baa1 Baa2
- --------------------------------------------------------------------------------------------------------------------
Facility Fee 7.0 8.0 9.0 12.5 15.0
- --------------------------------------------------------------------------------------------------------------------
Eurocurrency Rate
Applicable Margin 18.0 22.0 31.0 37.5 47.5
and LC Fee
- --------------------------------------------------------------------------------------------------------------------
Utilization fee > 10.0 10.0 10.0 12.5 12.5
50%
- --------------------------------------------------------------------------------------------------------------------
For the purposes of this Schedule, the following terms have the
following meanings, subject to the final paragraph of this Schedule:
"Level I Status" exists at any date if, on such date, the Company's
Moody's Rating is A1 or better or the Company's S&P Rating is A+ or better.
"Level II Status" exists at any date if, on such date, (i) the Company
has not qualified for Level I Status and (ii) the Company's Moody's Rating is A2
or better or the Company's S&P Rating is A or better.
"Level III Status" exists at any date if, on such date, (i) the Company
has not qualified for Level I Status or Level II Status and (ii) the Company's
Moody's Rating is A3 or better or the Company's S&P Rating is A- or better.
"Level IV Status" exists at any date if, on such date, (i) the Company
has not qualified for Level I Status, Level II Status or Level III Status and
(ii) the Company's Moody's Rating is Baa1 or better or the Company's S&P rating
is BBB+ or better.
"Level V Status" exists at any date if, on such date, the Company has
not qualified for Level I Status, Level II Status, Level III Status or Level IV
Status.
"Moody's Rating" means, at any time, the rating issued by Moody's
Investors Service, Inc. and then in effect with respect to the Company's senior
unsecured long-term debt securities without third-party credit enhancement.
"S&P Rating" means, at any time, the rating issued by Standard and
Poor's Rating Services, a division of The McGraw Hill Companies, Inc., and then
in effect with respect to the Company's senior unsecured long-term debt
securities without third-party credit enhancement.
"Status" means either Level I Status, Level II Status, Level III
Status, Level IV Status or Level V Status.
91
The Applicable Margin shall be determined in accordance with the
foregoing table based on the Company's Status as determined from its
then-current Moody's and S&P Ratings. The credit rating in effect on any date
for the purposes of this Schedule is that in effect at the close of business on
such date. If at any time the Company has no Moody's Rating or no S&P Rating,
Level V Status shall exist.
Notwithstanding the foregoing, if at any time there exists a difference
of more than one level between the Moody's Rating and the S&P Rating, the
Company's Status shall be determined as if the higher rating were one level
above the lower of the two ratings.
92
EXHIBIT A
FORM OF OPINION
March 27, 2003
The Administrative Agent and the Lenders who are
parties to the Credit Agreement described below.
Subject: CARDINAL HEALTH, INC. -- FIVE-YEAR CREDIT AGREEMENT
Gentlemen/Ladies:
I am counsel for Cardinal Health, Inc., an Ohio corporation (the
"COMPANY"), and have represented the Company in connection with its execution
and delivery of a Five-Year Credit Agreement dated as of March 27, 2003 (the
"AGREEMENT"), among the Company, the Subsidiary Borrowers, the Lenders named
therein, and Bank One, NA, as Administrative Agent, providing for Advances in an
aggregate principal amount not exceeding $750,000,000 at any one time
outstanding. All capitalized terms used in this opinion and not otherwise
defined herein shall have the meanings attributed to them in the Agreement. This
opinion is being delivered to you pursuant to Section 4.1(a)(v) of the
Agreement.
In connection with the issuance of this opinion letter, I have examined
the following documents:
(a) A copy of the Agreement executed by the Company;
(b) The Company's Articles of Incorporation;
(c) The Company's Code of Regulations;
(d) A certificate of good standing of the Company issued
by the Ohio Secretary of State;
(e) Resolutions of the Company's board of directors;
93
(f) An executed copy of a $_________ Note from the
Company to ___________________, dated March 27, 2003,
an executed copy of a $_________ Note from the
Company to ______________ [RESERVED];
(g) An executed copy of the Guaranty Agreement of the
Company dated as of March 27, 2003;
(h) Certificates of certain officers of the Company as to
certain factual matters; and
(i) Such other documents and matters of law as I deemed
necessary or advisable in order to render the
opinions set forth in this letter.
The documents referenced in items (a), (f), and (g) are sometimes
referred to hereinafter as the "LOAN DOCUMENTS."
In my review and in rendering the opinions expressed herein, I have
assumed, without independent verification, the following: (I) the genuineness of
all signatures, the legal capacity of all natural persons, the authenticity of
all documents submitted to me as originals, the conformity to original documents
of all documents submitted to me as certified, facsimile, or photostatic copies,
the completeness and correctness of any representations and certifications made
to me by officers of the Company, and the completeness and correctness of any
representations and certificates of public officials and public filing records;
(II) that the Loan Documents have been duly and validly authorized, executed,
and delivered by all parties thereto other than the Company, and that the Loan
Documents are binding and legally enforceable against all of the parties
thereto, other than the Company; (III) all parties to the Loan Documents other
than the Company have received adequate consideration for their execution and
delivery of, and performance of their respective obligations under, the Loan
Documents to which each of them is a party; and (IV) all conditions and other
transactions contemplated by the Agreement to have occurred at or prior to the
funding of the initial Loans have occurred or have been waived by the
appropriate parties and Loans in the amount of the Aggregate Commitment will be
fully available pursuant to the terms of the Agreement.
Based upon the foregoing, and subject to the qualifications set forth
below, I am of the opinion that:
1. The Company is a corporation validly existing and in good
standing under the laws of the State of Ohio.
94
2. The execution and delivery by the Company of the Loan
Documents to which it is a party and the performance by the
Company of its obligations thereunder have been duly
authorized by proper corporate proceedings on the part of the
Company and will not:
(a) Require any consent of the Company's shareholders;
(b) (i) Violate (A) any order, judgment, or decree of any
court or governmental agency binding on the Company
and known to me, (B) any statute of the State of Ohio
or the United States, or any written regulation
thereunder, (C) the Company's articles of
incorporation or code of regulations, or (D) the
provisions of any indenture, instrument, or agreement
to which the Company is a party or is subject, or by
which it, or its Property, is bound, and which is
filed or incorporated by reference as an exhibit to
the Company's periodic reports under the Securities
Exchange Act of 1934, pursuant to item 601(b)(l0) of
Regulation S-K of the Securities and Exchange
Commission, or (ii) conflict with or constitute a
default under any such indenture, instrument, or
agreement; or
(c) Result in, or require, the creation or imposition of
any Lien in or on the Property of the Company
pursuant to the terms of any indenture, instrument or
agreement binding upon the Company, and which is
filed or incorporated by reference as an exhibit to
the Company's periodic reports under the Securities
Exchange Act of 1934, pursuant to item 601(b)(10) of
Regulation S-K of the Securities and Exchange
Commission.
3. The Loan Documents to which the Company is a party have been
duly executed and delivered by the Company and, except for the
"choice of law" provisions of the Loan Documents, constitute
legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their
terms. Set forth later in this opinion letter is an opinion
regarding the enforceability of the "choice of law" provisions
of the Loan Documents.
4. To the best of my knowledge and except as set forth in
Schedule 7 of the Agreement, there is no litigation,
arbitration, governmental investigation, proceeding, or
inquiry pending or threatened against the Company which, if
adversely determined, could reasonably be expected to have a
Material Adverse Effect.
5. No authorization or approval of, or filing with, any
governmental agency of the United States or of the State of
Ohio which has not been obtained or made is necessary for the
execution and delivery of, and performance of the Company's
obligations under the Loan Documents.
95
In addition to any other qualification set forth herein, my opinions
are qualified as
(A) I wish to advise you that I do not express any
opinion with respect to: (1) the power or authority
of the Lenders to make the loans contemplated by the
Agreement; (2) compliance by the Lenders with any
federal or state banking law, rule, regulation, or
restriction; or (3) compliance by the Lenders with
any federal, state, or foreign law, rule, regulation,
or restriction which is or was required to be
complied with by the Lenders (as opposed to
compliance therewith by the Company) in order to
enforce any rights or remedies of the Lenders under
the Loan Documents. Accordingly, all of the foregoing
opinions expressed by me are qualified to the extent
set forth in the preceding sentence.
(B) To the extent that the foregoing opinions are stated
to be to the best of my knowledge, or relate to
matters which are known to me, I have, with your
consent, relied on one or more certificates of
officers of the Company as to factual matters, and I
have neither independently investigated nor attempted
to verify any of such matters.
(C) I have made no examination of and express no opinion
as to: (1) the right, title, or interest of any
person to any property; (2) the accuracy or
sufficiency of the description in the Loan Documents
of any real or personal property; or (3) the
existence of or freedom of any property from any
liens, security interests, or other encumbrances.
(D) My opinions are subject to and affected by: (1) any
bankruptcy, insolvency, avoidance, fraudulent
conveyance, reorganization, moratorium, or similar
laws affecting the rights and remedies of creditors
generally; and (2) general principles of equity
(whether considered in a proceeding in equity or at
law).
(E) I express no opinion as to whether a court would
limit the exercise or enforcement of rights or
remedies by the Lenders under the Loan Documents: (1)
in the event of any default by the Company, if it is
determined that such default is not material or if
such exercise or enforcement is not reasonably
necessary for the protection of the Lenders; or (2)
if the exercise or enforcement thereof under the
circumstances would violate an implied covenant of
good faith and fair dealing.
(F) Certain waivers and exculpatory clauses contained in
the Loan Documents may be limited or unenforceable.
96
(G) No opinion is expressed with respect to the validity
or enforceability of those provisions of the Loan
Documents which purport by their terms to relieve any
party of, or to indemnify such party against, any
liability for such party's own negligence, gross
negligence, or willful misconduct, or to obligate the
Company to bear the legal and other expenses of any
other party.
(H) I am authorized to practice law in Ohio, and no
opinion is expressed herein other than as to the laws
of the State of Ohio and federal law. With your
permission, for purposes of the opinion set forth in
paragraph 3, I have assumed that the substantive laws
of the State of Ohio, except for conflict of laws
principles, would govern the Loan Documents.
In addition to the foregoing opinions, you have also requested my
opinion regarding whether an Ohio court would enforce the "choice of law"
provisions of the Loan Documents (the "CHOICE OF LAW PROVISIONS") against the
Company.
In Schulke Radio Prod. v. Midwestern Broadcast, 453 N.E. 2d 683 (Ohio
1983), the Ohio Supreme Court held that the rule set forth in the Restatement of
Law 2d (1971) 561, Conflict of Laws, Section 187, is to be applied in
determining whether or not a contractual choice of law provision will be
enforced by an Ohio court. The relevant part of Section 187 is set forth below:
"(2) The law of the state chosen by the parties to govern
their contractual rights and duties will be applied, even if the
particular issue is one which the parties could not have resolved by an
explicit provision in their agreement directed to that issue, unless
either
(a) the chosen state has no substantial
relationship to the parties or the transaction and there is no
other reasonable basis for the parties' choice, or
(b) application of the law of the chosen state
would be contrary to a fundamental policy of a state which has
a materially greater interest than the chosen state in the
determination of the particular issue and which, under the
rule of Section 188, would be the state of the applicable law
in the absence of an effective choice of law by the parties."
In Schulke, the agreement at issue included a term providing that it
was to be governed by New York law. One of the parties to the agreement was
located in New York and executed the
97
agreement in New York. In addition, performance under the agreement also took
place in New York. Based upon the foregoing, the Ohio Supreme Court concluded
that New York did bear a substantial relationship to the parties and the
agreement. Schulke, 453 N.E. 2d 686. Similarly, Comment (f) to Section 187 of
the Restatement states that a substantial relationship exists when the state of
choice is where performance by one of the parties is to take place or where one
of the parties has its principal place of business.
In rendering the following opinion, I have assumed, with your approval
and without independent verification, that the following facts and statements
are true and accurate in all respects:
(i) The Administrative Agent's principal office is located in
Illinois;
(ii) The terms of the Loan Documents were negotiated by certain
representatives of the Administrative Agent from Illinois;
(iii) The Loan Documents are being executed by certain of the
Lenders in Illinois and are being delivered to the
Administrative Agent in Illinois;
(iv) In selecting the laws of the State of Illinois to govern the
Loan Documents, the parties acted in good faith and without an
intent to evade the law; and
(v) The application of the laws of the State of Illinois to the
Loan Documents will not be contrary to any fundamental policy
of any state which has a materially greater interest than the
State of Illinois in the determination of any particular
right, duty, or obligation of any party under the Loan
Documents.
Based upon the foregoing, and subject to the qualifications and
assumptions set forth herein, I am of the opinion that it would be more likely
than not that an Ohio court would enforce the Choice of Law Provisions based
upon a determination by such court that the Loan Documents and the parties
thereto have a substantial relationship with the State of Illinois.
The opinions set forth herein are given as of the date hereof, and I
disclaim any obligation to notify you or any other person or entity if any
change in fact or law, or both (whether statutory, regulatory, regulatory
interpretation or judicial interpretation), should change my opinion with
respect to any matter set forth herein. This opinion may be relied upon and is
solely for the benefit of the Addressees at the beginning of this opinion (and
also any Purchasers, but not any Participants), and it is not to be made
available to or relied upon by any other party or communicated or disclosed to
any other person without my prior written consent.
98
Sincerely,
Brian V. Pero
Assistant General Counsel-Finance and Real Estate
99
EXHIBIT B
COMPLIANCE CERTIFICATE
Date: ______________________________
_______________
Bank One, NA
_______________
_______________
Dear _________:
This notice serves to confirm that, to the best of my
knowledge, Cardinal Health, Inc. (the "Company") has observed or performed in
all material respects all of the covenants, conditions and agreements contained
in the Five-Year Credit Agreement and the 364-Day Credit Agreement, each dated
March 27, 2003 and each among the Company, certain subsidiaries of the Company
named therein, Bank One, NA, as Administrative Agent and LC Issuer, and the
lenders named therein.
Detailed calculations are attached.
In addition, please find enclosed a copy of our most recent
financial statements as filed with the Securities and Exchange Commission.
Sincerely,
________________________________________________
[Chief Financial Officer/Controller/Treasurer]
100
Section 6.16, Minimum Net Worth.
[INSERT CALCULATION]
101
EXHIBIT C
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement")
between (the "Assignor") and (the "Assignee") is dated as of _____________,
200_. The parties hereto agree as follows:
1) PRELIMINARY STATEMENT. The Assignor is a party to a
Five-Year Credit Agreement dated as of March 27, 2003 (the "Agreement")
among the Company, the Subsidiary Borrowers, the Lenders named therein,
and Bank One, NA, as Administrative Agent (which, as it may be amended,
modified, renewed or extended from time to time is herein called the
"Credit Agreement") described in Item 1 of Schedule 1 attached hereto
("Schedule 1"). Capitalized terms used herein and not otherwise defined
herein shall have the meanings attributed to them in the Credit
Agreement.
2) ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells
and assigns to the Assignee, and the Assignee hereby purchases and
assumes from the Assignor, an interest in and to the Assignor's rights
and obligations under the Credit Agreement and the other Loan
Documents, such that after giving effect to such assignment the
Assignee shall have purchased pursuant to this Assignment Agreement the
percentage interest specified in Item 3 of Schedule 1 of all
outstanding rights and obligations under the Credit Agreement and the
other Loan Documents relating to the facilities listed in Item 3 of
Schedule 1. The aggregate Commitment (or Outstanding Credit Exposure,
if the applicable Commitment has been terminated) purchased by the
Assignee hereunder is set forth in Item 4 of Schedule 1.
3) EFFECTIVE DATE. The effective date of this Assignment
Agreement (the "Effective Date") shall be the later of the date
specified in Item 5 of Schedule 1 or two Business Days (or such shorter
period agreed to by the Administrative Agent) after this Assignment
Agreement, together with any consents required under the Credit
Agreement, are delivered to the Administrative Agent. In no event will
the Effective Date occur if the payments required to be made by the
Assignee to the Assignor on the Effective Date are not made on the
proposed Effective Date.
4) PAYMENT OBLIGATIONS. In consideration for the sale
and assignment of Outstanding Credit Exposure hereunder, the Assignee
shall pay the Assignor, on the Effective Date, the amount agreed to by
the Assignor and the Assignee. On and after the Effective Date, the
Assignee shall be entitled to receive from the Administrative Agent all
payments of principal, interest, Reimbursement Obligations and fees
with respect to the interest assigned hereby. The Assignee will
promptly remit to the Assignor any interest on Loans and fees received
from the Administrative Agent which relate to the portion of the
Commitment or Outstanding Credit Exposure assigned to the Assignee
hereunder for periods prior to the Effective Date and not previously
paid by the Assignee to the Assignor. In the event that either party
hereto receives any payment to which the other party hereto is entitled
under this Assignment Agreement, then the party receiving such amount
shall promptly remit it to the other party hereto.
102
5) RECORDATION FEE. The Assignor and Assignee each agree
to pay one-half of the recordation fee required to be paid to the
Administrative Agent in connection with this Assignment Agreement
unless otherwise specified in Item 6 of Schedule 1.
6) REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE
ASSIGNOR'S LIABILITY. The Assignor represents and warrants that (i) it
is the legal and beneficial owner of the interest being assigned by it
hereunder, (ii) such interest is free and clear of any adverse claim
created by the Assignor and (iii) the execution and delivery of this
Assignment Agreement by the Assignor is duly authorized. It is
understood and agreed that the assignment and assumption hereunder are
made without recourse to the Assignor and that the Assignor makes no
other representation or warranty of any kind to the Assignee. Neither
the Assignor nor any of its officers, directors, employees, agents or
attorneys shall be responsible for (i) the due execution, legality,
validity, enforceability, genuineness, sufficiency or collectability of
any Loan Document, including without limitation, documents granting the
Assignor and the other Lenders a security interest in assets of the
Company or any guarantor, (ii) any representation, warranty or
statement made in or in connection with any of the Loan Documents,
(iii) the financial condition or creditworthiness of the Company or any
guarantor, (iv) the performance of or compliance with any of the terms
or provisions of any of the Loan Documents, (v) inspecting any of the
property, books or records of the Company, (vi) the validity,
enforceability, perfection, priority, condition, value or sufficiency
of any collateral securing or purporting to secure the Loans or (vii)
any mistake, error of judgment, or action taken or omitted to be taken
in connection with the Loans or the Loan Documents.
7) REPRESENTATIONS AND UNDERTAKINGS OF THE ASSIGNEE. The
Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements requested
by the Assignee and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to
enter into this Assignment Agreement, (ii) agrees that it will,
independently and without reliance upon the Administrative Agent, the
Assignor or any other Lender and based on such documents and
information at it shall deem appropriate at the time, continue to make
its own credit decisions in taking or not taking action under the Loan
Documents, (iii) appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers
under the Loan Documents as are delegated to the Administrative Agent
by the terms thereof, together with such powers as are reasonably
incidental thereto, (iv) confirms that the execution and delivery of
this Assignment Agreement by the Assignee is duly authorized, (v)
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender, (vi) agrees that its payment instructions
and notice instructions are as set forth in the attachment to Schedule
1, (vii) confirms that none of the funds, monies, assets or other
consideration being used to make the purchase and assumption hereunder
are "plan assets" as defined under ERISA and that its rights, benefits
and interests in and under the Loan Documents will not be "plan assets"
under ERISA, (viii) agrees to indemnify and hold the Assignor harmless
against all losses, costs and expenses (including, without limitation,
reasonable attorneys' fees) and liabilities incurred by the Assignor in
connection with or arising in any manner from the Assignee's
non-performance of the obligations assumed under this Assignment
Agreement, and (ix) if applicable, attaches the forms prescribed by the
Internal Revenue Service of the United States certifying that the
Assignee is entitled to receive payments under the Loan Documents
without deduction or withholding of any United States federal income
taxes.
103
8) GOVERNING LAW. This Assignment Agreement shall be
governed by the internal law, and not the law of conflicts, of the
State of Illinois.
9) NOTICES. Notices shall be given under this Assignment
Agreement in the manner set forth in the Credit Agreement. For the
purpose hereof, the addresses of the parties hereto (until notice of a
change is delivered) shall be the address set forth in the attachment
to Schedule 1.
10) COUNTERPARTS; DELIVERY BY FACSIMILE. This Assignment
Agreement may be executed in counterparts. Transmission by facsimile of
an executed counterpart of this Assignment Agreement shall be deemed to
constitute due and sufficient delivery of such counterpart and such
facsimile shall be deemed to be an original counterpart of this
Assignment Agreement.
IN WITNESS WHEREOF, the duly authorized officers of the parties hereto
have executed this Assignment Agreement by executing Schedule 1 hereto as of the
date first above written.
104
SCHEDULE 1
TO ASSIGNMENT AGREEMENT
1) Description and Date of Credit Agreement:
2) Date of Assignment Agreement: , 200_
3) Amounts (As of Date of Item 2 above):
Facility Facility Facility Facility
1* 2 3* 4*
________ _________ ________ _______
*
______ ________ _________ ________
a. Assignee's
percentage of
each Facility
purchased
under the
Assignment
Agreement
***, **** ____% ____% ____% _____%
b. Amount of
each Facility
purchased
under the
Assignment
Agreement
***, ****t $____ $____ $____ $
4) Assignee's Commitment (or
Outstanding Credit Exposure with
respect to terminated Commitments)
purchased hereunder: $______________________________
5) Proposed Effective Date: ___________________________
N/A
6) Non-standard Recordation Fee
Arrangement [Assignor/Assignee to pay 100% of fee]
[Fee waived by Administrative Agent]
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: _____________________ By: _________________________
105
Title: __________________ Title: ______________________
ACCEPTED AND CONSENTED TO BY: ACCEPTED AND CONSENTED TO BY
[NAME OF COMPANY] [NAME OF AGENT]
By: ____________________ By: _________________________
Title: _________________ Title: ______________________
*Insert specific facility names per Credit Agreement
**Percentage taken to 10 decimal places
***If fee is split 50-50, pick N/A as option
****Assignments must be pro rata
106
Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT
ADMINISTRATIVE INFORMATION SHEET
Attach Assignor's Administrative Information Sheet, which must include
notice addresses for the Assignor and the Assignee
(Sample form shown below)
ASSIGNOR INFORMATION
CONTACT:
Name: ___________________ Telephone No.: ___________________
Fax No.: ________________ Telex No.: _______________________
Answerback: ______________________
PAYMENT INFORMATION:
Name & ABA # of Destination Bank: _____________________________________
Account Name & Number for Wire Transfer: ______________________________
____________________________________
Other Instructions: _________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Address for Notices for Assignor: _________________________________
________________________________________________________________________________
________________________________________________________________________________
ASSIGNEE INFORMATION
CREDIT CONTACT:
Name: ___________________ Telephone No.: ___________________
Fax No.: ________________ Telex No.: _______________________
Answerback: ______________________
KEY OPERATIONS CONTACTS:
Booking Installation: _________ Booking Installation:
Name: _________________________ Name: ____________________________
Telephone No.: ________________ Telephone No.: ___________________
107
Fax No.: ______________________ Fax No.: _________________________
Telex No.: ____________________ Telex No.: _______________________
Answerback: __________________ Answerback: ______________________
PAYMENT INFORMATION:
Name & ABA # of Destination Bank: ____________________________________
Account Name & Number for Wire Transfer: _____________________________
________________________________________________________________________________
________________________________________________________________________________
Other Instructions: ___________________________________________________
Address for Notices for Assignee: _____________________________________
108
EXHIBIT D
LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
To Bank One, NA,
as Administrative Agent (the "Administrative Agent") under the Credit
Agreement
Described Below.
Re: Credit Agreement, dated March 27, 2003 (as the same may be amended or
modified, the "Credit Agreement"), among Cardinal Health, Inc. (the
"Company"), the Lenders named therein, the LC Issuer and the
Administrative Agent. Capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned thereto in the Credit
Agreement.
The Administrative Agent is specifically authorized and directed to act
upon the following standing money transfer instructions with respect to the
proceeds of Advances or other extensions of credit from time to time until
receipt by the Administrative Agent of a specific written revocation of such
instructions by the Company, provided, however, that the Administrative Agent
may otherwise transfer funds as hereafter directed in writing by the Company in
accordance with Section 13.1 of the Credit Agreement or based on any telephonic
notice made in accordance with Section 2.14 of the Credit Agreement.
Facility Identification Number(s)______________________________________
Customer/Account Name ________________________________________________
Transfer Funds To _____________________________________________________
________________________________________________________________________________
________________________________________________________________________________
For Account No. _______________________________________________________
Reference/Attention To ________________________________________________
Authorized Officer (Customer Representative) Date
_______________________________ ________________________
(Please Print) Signature
Bank Officer Name Date
_______________________________ ________________________
(Please Print) Signature
109
EXHIBIT E
NOTE
[Date]
Cardinal Health, Inc., an Ohio corporation (the "Borrower"), promises
to pay to the order of ____________________________________ (the "Lender") the
aggregate unpaid principal amount of all Loans made by the Lender to the
Borrower pursuant to Article II of the Agreement (as hereinafter defined), in
immediately available funds at the place specified pursuant to Article II of the
Agreement together with interest on the unpaid principal amount hereof at the
rates and on the dates set forth in the Agreement. The Borrower shall pay the
principal of and accrued and unpaid interest on the Loans in full on the
Facility Termination Date.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Loan and the date and amount of each principal
payment hereunder.
This Note is one of the Notes issued pursuant to, and is entitled to
the benefits of, the Five-Year Credit Agreement dated as of March 27, 2003
(which, as it may be amended or modified and in effect from time to time, is
herein called the "Agreement"), among the Borrower, the lenders party thereto,
including the Lender, the LC Issuer and Bank One, NA, as Administrative Agent,
to which Agreement reference is hereby made for a statement of the terms and
conditions governing this Note, including the terms and conditions under which
this Note may be prepaid or its maturity date accelerated. This Note is
guaranteed pursuant to the Guaranty, as more specifically described in the
Agreement, and reference is made thereto for a statement of the terms and
provisions thereof. Capitalized terms used herein and not otherwise defined
herein are used with the meanings attributed to them in the Agreement.
By: ______________________________
Print Name: ______________________
Title: ___________________________
110
EXHIBIT F
SWINGLINE NOTE
March __, 2003
_________, ___________
FOR VALUE RECEIVED, CARDINAL HEALTH INC., an Ohio corporation (the
"Borrower"), hereby unconditionally promises to pay to the order of Bank One, NA
(the "Lender"), at the principal banking office of the Administrative Agent in
lawful money of the United States of America and in immediately available funds,
the unpaid principal amount of the Swingline Loans as evidenced by the books and
records of the Lender, on the Facility Termination Date or such earlier date as
the Lender may require under the Credit Agreement referred to below, when the
entire outstanding principal amount of the Swingline Loans evidenced hereby, and
all accrued interest thereon, shall be due and payable; and to pay interest on
the unpaid principal balance hereof from time to time outstanding, in like money
and funds, for the period from the date hereof until the Swingline Loans
evidenced hereby shall be paid in full, at the rates per annum on and the dates
provided in the Credit Agreement referred to below.
The Lender is hereby authorized by the Borrower to record on its books
and records the date, currency and the amount of each Swingline Loan, the
applicable interest rate, the amount of each payment or prepayment of principal
thereon, and the other information provided for in such books and records, which
books and records shall constitute prime facie evidence of the information so
recorded, provided, however, that any failure by the Lender to record any such
notation shall not relieve the Borrower of its obligation to repay the
outstanding principal amount of this Swingline Note, all accrued interest hereon
and any amount payable with respect hereto in accordance with the terms of this
Swingline Note and the Credit Agreement.
The Borrower waives presentment, protest, notice of dishonor and any
other formality in connection with this Swingline Note. Should the indebtedness
evidenced by this Swingline Note or any part thereof be collected in any
proceeding or be placed in the hands of attorneys for collection, the Borrower
agrees to pay, in addition to the principal, interest and other sums due and
payable hereon, all costs of collecting this Swingline Note, including
reasonable attorneys' fees and expenses.
This Swingline Note evidences Swingline Loans made under a Five-Year
Credit Agreement, dated as of March 27, 2003 (as amended or modified from time
to time, the "Credit Agreement"), by and among the Borrower, the Lenders
(including the Lender) named therein, the LC Issuer and Bank One, NA, as
Administrative Agent for the Lenders, to which reference is hereby made for a
statement of the circumstances under which this Swingline Note is subject to
prepayment and under which its due date may be accelerated. Capitalized terms
used but not defined in this Swingline Note shall have the respective meanings
assigned to them in the Credit Agreement.
This Swingline Note is made under, and shall be governed by and
construed in accordance with, the Laws of the State of Illinois in the same
manner applicable to contracts made and to be performed entirely within such
State and without giving effect to choice of law principles of such State.
CARDINAL HEALTH INC.
By: ________________________
Its:
111
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF ______________,
DATED ______________,
Principal Maturity of Principal Unpaid
Date Amount of Loan Interest Period Amount Paid Balance
- ---------------------------------------------------------------------------------------------
112
SCHEDULE 1
LIST OF CARDINAL HEALTH, INC. SUBSIDIARIES
(In Alphabetical Order - as of January 31, 2003)
(See Sections 5.8 and 6.11)
% OF OWNERSHIP BY
CARDINAL HEALTH, INC.
(*Unless otherwise indicated, the ownership
STATE / JURISDICTION OF shall be directly or indirectly 100% owned
NO. SUBSIDIARY NAME INCORPORATION by Cardinal Health, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
1. Abilene Nuclear, LLC Texas - Cardinal Health, Inc.indirectly
owns 80%
- ----------------------------------------------------------------------------------------------------------------------------------
2. Alcon - Building Branch Puerto Rico *
- ----------------------------------------------------------------------------------------------------------------------------------
3. Allcaps Weichgelatinkapseln GmbH & Co. KG Germany *
- ----------------------------------------------------------------------------------------------------------------------------------
4. Allcaps Weichgelatinkapseln Verwaltungs Germany *
GmbH
- ----------------------------------------------------------------------------------------------------------------------------------
5. Allegiance (BVI) Holdings Co. Ltd. British Virgin Islands *
- ----------------------------------------------------------------------------------------------------------------------------------
6. Allegiance AB Sweden *
- ----------------------------------------------------------------------------------------------------------------------------------
7. Allegiance B.V. Netherlands *
- ----------------------------------------------------------------------------------------------------------------------------------
8. Allegiance Corporation Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
9. Allegiance De Mexico, S.A. De C.V. Mexico *
- ----------------------------------------------------------------------------------------------------------------------------------
10. Allegiance Healthcare (Labuan) Pte. Ltd. Malaysia *
- ----------------------------------------------------------------------------------------------------------------------------------
11. Allegiance Healthcare (Thailand) Ltd. Thailand *
- ----------------------------------------------------------------------------------------------------------------------------------
12. Allegiance Healthcare Canada Inc. Canada *
- ----------------------------------------------------------------------------------------------------------------------------------
13. Allegiance Healthcare Deutschland GmbH Germany *
- ----------------------------------------------------------------------------------------------------------------------------------
14. Allegiance Healthcare Deutschland Holding Germany *
GmbH
- ----------------------------------------------------------------------------------------------------------------------------------
113
% OF OWNERSHIP BY
CARDINAL HEALTH, INC.
(*Unless otherwise indicated, the ownership
STATE / JURISDICTION OF shall be directly or indirectly 100% owned
NO. SUBSIDIARY NAME INCORPORATION by Cardinal Health, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
15. Allegiance Healthcare Distribution GmbH Austria *
- ----------------------------------------------------------------------------------------------------------------------------------
16. Allegiance Healthcare GmbH Switzerland *
- ----------------------------------------------------------------------------------------------------------------------------------
17. Allegiance Healthcare Holding B.V. Netherlands *
- ----------------------------------------------------------------------------------------------------------------------------------
18. Allegiance Healthcare International GmbH Austria *
- ----------------------------------------------------------------------------------------------------------------------------------
19. Allegiance Healthcare Limited United Kingdom *
- ----------------------------------------------------------------------------------------------------------------------------------
20. Allegiance International Manufacturing Bermuda *
(Bermuda) Ltd.
- ----------------------------------------------------------------------------------------------------------------------------------
21. Allegiance K. K. Japan *
- ----------------------------------------------------------------------------------------------------------------------------------
22. Allegiance Labuan Holdings Pte. Ltd. Malaysia *
- ----------------------------------------------------------------------------------------------------------------------------------
23. Allegiance Medica S.R.L. Italy *
- ----------------------------------------------------------------------------------------------------------------------------------
24. Allegiance S.L. Spain *
- ----------------------------------------------------------------------------------------------------------------------------------
25. Allegiance S.P.R.L. Belgium *
- ----------------------------------------------------------------------------------------------------------------------------------
26. Allegiance Sante S.A.S. France *
- ----------------------------------------------------------------------------------------------------------------------------------
27. Allegiance Trading GmbH Switzerland *
- ----------------------------------------------------------------------------------------------------------------------------------
28. Alsyn Corporativos, S.A. de C.V. Mexico *
- ----------------------------------------------------------------------------------------------------------------------------------
29. Anem-IX S.A.R.L. France *
- ----------------------------------------------------------------------------------------------------------------------------------
114
% OF OWNERSHIP BY
CARDINAL HEALTH, INC.
(*Unless otherwise indicated, the ownership
STATE / JURISDICTION OF shall be directly or indirectly 100% owned
NO. SUBSIDIARY NAME INCORPORATION by Cardinal Health, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
30. Arclight Systems LLC Delaware - Cardinal indirectly has a
36.2% equity ownership. This
ownership % will decrease over
time (ultimately to 20%.)
- Several other retail
drugstore chains own the rest
of the units.
- ----------------------------------------------------------------------------------------------------------------------------------
31. Armand Scott, Inc. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
32. Axiom Healthcare Services Pty. Ltd. Australia *
- ----------------------------------------------------------------------------------------------------------------------------------
33. Bauer Branc Dominican Republic *
- ----------------------------------------------------------------------------------------------------------------------------------
34. Becquerel & Sievert Co., Ltd. Taiwan *
- ----------------------------------------------------------------------------------------------------------------------------------
35. Beijing Syncor Medicine Corporation, Ltd. China - Cardinal Health, Inc.
indirectly owns 89.5%
- ----------------------------------------------------------------------------------------------------------------------------------
36. Beijing Syncor Star Medicine Technology Co., Ltd. China *
- ----------------------------------------------------------------------------------------------------------------------------------
37. BLP-Dover Acquisition Corp. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
38. BLP-Liberty Acquisition Corp. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
39. Boron LePore, Inc. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
40. C. International, Inc. Ohio *
- ----------------------------------------------------------------------------------------------------------------------------------
41. Cardal, Inc. Ohio *
- ----------------------------------------------------------------------------------------------------------------------------------
42. Cardinal Distribution Holding Corporation - I Nevada *
- ----------------------------------------------------------------------------------------------------------------------------------
43. Cardinal Distribution Holding Corporation - II Nevada *
- ----------------------------------------------------------------------------------------------------------------------------------
115
% OF OWNERSHIP BY
CARDINAL HEALTH, INC.
(*Unless otherwise indicated, the ownership
STATE / JURISDICTION OF shall be directly or indirectly 100% owned
NO. SUBSIDIARY NAME INCORPORATION by Cardinal Health, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
44. Cardinal Health (Europe) GmbH Switzerland *
- ----------------------------------------------------------------------------------------------------------------------------------
45. Cardinal Health 100, Inc. Indiana *
(f/k/a Bindley Western Industries, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
46. Cardinal Health 101, Inc. Delaware *
(f/k/a Cardinal Health Provider Pharmacy
Services, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
47. Cardinal Health 102, Inc. Ohio *
(f/k/a Cardinal Health Staffing Network, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
48. Cardinal Health 103, Inc. Mississippi *
(f/k/a Cardinal Southeast, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
49. Cardinal Health 104 LP Ohio *
(f/k/a Cardinal Distribution LP)
- ----------------------------------------------------------------------------------------------------------------------------------
50. Cardinal Health 105, Inc. Ohio *
(f/k/a CORD Logistics, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
51. Cardinal Health 106, Inc. Massachusetts *
(f/k/a James W. Daly, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
52. Cardinal Health 107, Inc. Ohio *
(f/k/a National Pharmpak Services, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
53. Cardinal Health 108, Inc. Tennessee *
(f/k/a National Specialty Services, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
54. Cardinal Health 109, Inc. Texas *
(f/k/a Owen Healthcare, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
55. Cardinal Health 110, Inc. Delaware *
(f/k/a Whitmire Distribution Corporation)
- ----------------------------------------------------------------------------------------------------------------------------------
56. Cardinal Health 2, Inc. Nevada *
(f/k/a The Griffin Group, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
57. Cardinal Health 200, Inc. Delaware *
(f/k/a Allegiance Healthcare Corporation)
- ----------------------------------------------------------------------------------------------------------------------------------
58. Cardinal Health 201, Inc. Delaware *
(f/k/a Allegiance Healthcare International, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
116
% OF OWNERSHIP BY
CARDINAL HEALTH, INC.
(*Unless otherwise indicated, the ownership
STATE / JURISDICTION OF shall be directly or indirectly 100% owned
NO. SUBSIDIARY NAME INCORPORATION by Cardinal Health, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
59. Cardinal Health 3, Inc. Nevada *
(f/k/a Red Wing Data Corporation)
- ----------------------------------------------------------------------------------------------------------------------------------
60. Cardinal Health 301, Inc. Delaware *
(f/k/a Pyxis Corporation)
- ----------------------------------------------------------------------------------------------------------------------------------
61. Cardinal Health 400, Inc. Illinois *
(f/k/a Automatic Liquid Packaging, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
62. Cardinal Health 401, Inc. Delaware *
(f/k/a Boron, LePore & Associates, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
63. Cardinal Health 402, Inc. Delaware *
(f/k/a Cardinal Health Pharmaceutical
Technologies & Services Center, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
64. Cardinal Health 403, Inc. Delaware *
(f/k/a Enhanced Derm Technologies, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
65. Cardinal Health 404, Inc. Delaware *
(f/k/a International Processing Corporation)
- ----------------------------------------------------------------------------------------------------------------------------------
66. Cardinal Health 405, Inc. North Carolina *
(f/k/a Magellan Pharmaceutical Development, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
67. Cardinal Health 406, Inc. Pennsylvania *
(f/k/a Packaging Coordinators, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
68. Cardinal Health 407, Inc. Delaware *
(f/k/a PCI Services, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
69. Cardinal Health 408, Inc. New Jersey *
(f/k/a PCI, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
70. Cardinal Health 409, Inc. Delaware *
(f/k/a R.P. Scherer Corporation)
- ----------------------------------------------------------------------------------------------------------------------------------
71. Cardinal Health 410, Inc. Delaware *
(f/k/a R.P. Scherer West, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
72. Cardinal Health 411, Inc. Ohio *
(f/k/a RedKey, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
73. Cardinal Health 412, Inc. Georgia *
(f/k/a Central Pharmacy Services, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
117
% OF OWNERSHIP BY
CARDINAL HEALTH, INC.
(*Unless otherwise indicated, the ownership
STATE / JURISDICTION OF shall be directly or indirectly 100% owned
NO. SUBSIDIARY NAME INCORPORATION by Cardinal Health, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
74. Cardinal Health 413, Inc. Delaware *
(f/k/a PCI West, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
75. Cardinal Health 414, Inc. Delaware *
(f/k/a Syncor International Corporation)
- ----------------------------------------------------------------------------------------------------------------------------------
76. Cardinal Health 415, Inc. Delaware *
(f/k/a Syncor Management Corporation)
- ----------------------------------------------------------------------------------------------------------------------------------
77. Cardinal Health 416, Inc. Delaware *
(f/k/a PCI Services II, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
78. Cardinal Health 417, Inc. Delaware *
(f/k/a PCI Services III, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
79. Cardinal Health Australia 200 Pty Ltd Australia *
(f/k/a Allegiance Healthcare Pty Ltd)
- ----------------------------------------------------------------------------------------------------------------------------------
80. Cardinal Health Brasil 402 Ltda. Brazil *
(f/k/a R.P. Scherer do Brasil Encapsulacoes,
Ltda.)
- ----------------------------------------------------------------------------------------------------------------------------------
81. Cardinal Health Canada 301, Inc. Canada *
(f/k/a H.E.N. Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
82. Cardinal Health Canada 302, Inc. Canada *
(f/k/a Pyxis Healthcare Systems, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
83. Cardinal Health Canada 403, Inc. Canada *
(f/k/a R.P. Scherer Canada Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
84. Cardinal Health Capital Corporation Ohio *
- ----------------------------------------------------------------------------------------------------------------------------------
85. Cardinal Health Finance United Kingdom *
- ----------------------------------------------------------------------------------------------------------------------------------
86. Cardinal Health Funding, LLC Nevada *
- ----------------------------------------------------------------------------------------------------------------------------------
87. Cardinal Health GbR Germany *
- ----------------------------------------------------------------------------------------------------------------------------------
88. Cardinal Health Germany GmbH Germany *
- ----------------------------------------------------------------------------------------------------------------------------------
118
% OF OWNERSHIP BY
CARDINAL HEALTH, INC.
(*Unless otherwise indicated, the ownership
STATE / JURISDICTION OF shall be directly or indirectly 100% owned
NO. SUBSIDIARY NAME INCORPORATION by Cardinal Health, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
89. Cardinal Health Holding GmbH Germany *
- ----------------------------------------------------------------------------------------------------------------------------------
90. Cardinal Health Holding International, Inc. New Jersey *
- ----------------------------------------------------------------------------------------------------------------------------------
91. Cardinal Health Holding Pty Ltd Australia *
- ----------------------------------------------------------------------------------------------------------------------------------
92. Cardinal Health Holdings Ltd. United Kingdom *
- ----------------------------------------------------------------------------------------------------------------------------------
93. Cardinal Health I, Inc. Nevada *
- ----------------------------------------------------------------------------------------------------------------------------------
94. Cardinal Health International Ventures, Ltd. Barbados *
- ----------------------------------------------------------------------------------------------------------------------------------
95. Cardinal Health Ireland 406 Ltd. Ireland *
(f/k/a Cardinal Health Technologies Ltd.)
- ----------------------------------------------------------------------------------------------------------------------------------
96. Cardinal Health Japan 408 K.K. Japan *
(f/k/a R.P. Scherer K.K.)
- ----------------------------------------------------------------------------------------------------------------------------------
97. Cardinal Health Lease Funding 2002A LLC Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
98. Cardinal Health Lease Funding 2002AQ LLC Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
99. Cardinal Health Malaysia 211 Sdn. Bhd. Malaysia *
(f/k/a Allegiance Healthcare Sdn. Bhd.)
- ----------------------------------------------------------------------------------------------------------------------------------
100. Cardinal Health Manufacturing Services B. V. The Netherlands *
- ----------------------------------------------------------------------------------------------------------------------------------
101. Cardinal Health N.Z. 217 Limited New Zealand *
[f/k/a Cardinal Health (N.Z.) Limited]
- ----------------------------------------------------------------------------------------------------------------------------------
102. Cardinal Health P.R. 218, Inc. Puerto Rico *
(f/k/a Allegiance PRO, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
103. Cardinal Health P.R. 410, Inc. Puerto Rico *
(f/k/a PCI Services I, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
104. Cardinal Health PTS, Inc. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
119
% OF OWNERSHIP BY
CARDINAL HEALTH, INC.
(*Unless otherwise indicated, the ownership
STATE / JURISDICTION OF shall be directly or indirectly 100% owned
NO. SUBSIDIARY NAME INCORPORATION by Cardinal Health, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
105. Cardinal Health Systems, Inc. Ohio *
- ----------------------------------------------------------------------------------------------------------------------------------
106. Cardinal Health Technologies, LLC Nevada *
- ----------------------------------------------------------------------------------------------------------------------------------
107. Cardinal Health, Inc. Ohio *
- ----------------------------------------------------------------------------------------------------------------------------------
108. Cardinal.com Holdings, Inc. Nevada *
- ----------------------------------------------------------------------------------------------------------------------------------
109. Cascade Development, Inc. Nevada *
- ----------------------------------------------------------------------------------------------------------------------------------
110. CDI Investments, Inc. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
111. Central Source, Inc. Alabama *
- ----------------------------------------------------------------------------------------------------------------------------------
112. Cheng du Syncor Pharmaceutical Co., Ltd. China *
- ----------------------------------------------------------------------------------------------------------------------------------
113. Cirmex de Chihuahua S.A. de C.V. Mexico *
- ----------------------------------------------------------------------------------------------------------------------------------
114. Cirpro de Delicias S.A. de C.V. Mexico *
- ----------------------------------------------------------------------------------------------------------------------------------
115. CMI Net, Inc. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
116. Comprehensive Medical Imaging Centers, Inc. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
117. Comprehensive Medical Imaging, Inc. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
118. Comprehensive Medical Imaging--Anaheim Delaware *
Hills, Inc.
- ----------------------------------------------------------------------------------------------------------------------------------
119. Comprehensive Medical Imaging--Apple Delaware *
Valley, Inc
- ----------------------------------------------------------------------------------------------------------------------------------
120. Comprehensive Medical Imaging--Bakersfield, Delaware *
Inc.
- ----------------------------------------------------------------------------------------------------------------------------------
120
% OF OWNERSHIP BY
CARDINAL HEALTH, INC.
(*Unless otherwise indicated, the ownership
STATE / JURISDICTION OF shall be directly or indirectly 100% owned
NO. SUBSIDIARY NAME INCORPORATION by Cardinal Health, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
121. Comprehensive Medical Imaging--Biltmore, Delaware *
Inc.
- ----------------------------------------------------------------------------------------------------------------------------------
122. Comprehensive Medical Imaging--Boynton Delaware *
Beach, Inc.
- ----------------------------------------------------------------------------------------------------------------------------------
123. Comprehensive Medical Imaging--Downey, Delaware *
Inc.
- ----------------------------------------------------------------------------------------------------------------------------------
124. Comprehensive Medical Imaging--Encino, Inc. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
125. Comprehensive Medical Imaging--Fairfax, Inc. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
126. Comprehensive Medical Imaging--Fort Delaware *
Lauderdale, Inc.
- ----------------------------------------------------------------------------------------------------------------------------------
127. Comprehensive Medical Imaging--Fremont, Delaware *
Inc.
- ----------------------------------------------------------------------------------------------------------------------------------
128. Comprehensive Medical Imaging--Hesperia, Delaware *
Inc.
- ----------------------------------------------------------------------------------------------------------------------------------
129. Comprehensive Medical Imaging--Huntington Delaware *
Beach, Inc.
- ----------------------------------------------------------------------------------------------------------------------------------
130. Comprehensive Medical Imaging--Palm Delaware *
Beach Gardens, Inc.
- ----------------------------------------------------------------------------------------------------------------------------------
131. Comprehensive Medical Imaging--Palm Delaware *
Springs, Inc.
- ----------------------------------------------------------------------------------------------------------------------------------
132. Comprehensive Medical Imaging--Rancho Delaware *
Cucamonga, Inc.
- ----------------------------------------------------------------------------------------------------------------------------------
133. Comprehensive Medical Imaging--Rancho Delaware *
Mirage, Inc.
- ----------------------------------------------------------------------------------------------------------------------------------
134. Comprehensive Medical Imaging--Salisbury, Delaware *
Inc.
- ----------------------------------------------------------------------------------------------------------------------------------
135. Comprehensive Medical Imaging--San Delaware *
Francisco, Inc.
- ----------------------------------------------------------------------------------------------------------------------------------
136. Comprehensive Medical Imaging--Santa Delaware *
Maria, Inc.
- ----------------------------------------------------------------------------------------------------------------------------------
121
% OF OWNERSHIP BY
CARDINAL HEALTH, INC.
(*Unless otherwise indicated, the ownership
STATE / JURISDICTION OF shall be directly or indirectly 100% owned
NO. SUBSIDIARY NAME INCORPORATION by Cardinal Health, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
137. Comprehensive Medical Imaging--Sherman Delaware *
Oaks, Inc.
- ----------------------------------------------------------------------------------------------------------------------------------
138. Comprehensive Medical Imaging--Tempe, Inc. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
139. Comprehensive Medical Imaging--Van Nuys, Inc. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
140. Comprehensive Medical Imaging--Victorville, Delaware *
Inc.
- ----------------------------------------------------------------------------------------------------------------------------------
141. Comprehensive Medical Imaging--Westlake Delaware *
Village, Inc.
- ----------------------------------------------------------------------------------------------------------------------------------
142. Comprehensive OPEN MRI - Carmichael, Inc. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
143. Comprehensive OPEN MRI- California *
Carmichael/Folsom, LLC
- ----------------------------------------------------------------------------------------------------------------------------------
144. Comprehensive OPEN MRI--East Mesa, Inc. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
145. Comprehensive OPEN MRI--Folsom, Inc. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
146. Comprehensive OPEN MRI--Fullerton, Inc. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
147. Comprehensive OPEN MRI--Garland, Inc. Texas *
- ----------------------------------------------------------------------------------------------------------------------------------
148. Comprehensive OPEN MRI--Laguna Hills, Inc. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
149. Comprehensive OPEN MRI--Sacramento, Inc. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
150. Consumer2Patient, Inc. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
151. Converters Branch Dominican Republic *
- ----------------------------------------------------------------------------------------------------------------------------------
152. Convertors de Mexico S.A. de C.V. Mexico *
- ----------------------------------------------------------------------------------------------------------------------------------
122
% OF OWNERSHIP BY
CARDINAL HEALTH, INC.
(*Unless otherwise indicated, the ownership
STATE / JURISDICTION OF shall be directly or indirectly 100% owned
NO. SUBSIDIARY NAME INCORPORATION by Cardinal Health, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
153. Corona Regional Medical Imaging, LLC California *
- ----------------------------------------------------------------------------------------------------------------------------------
154. Desert PET, LLC California - Cardinal Health, Inc. indirectly
owns 99%
- ----------------------------------------------------------------------------------------------------------------------------------
155. Diagnostic Purchasing Group, Inc. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
156. Diversicor International Ltd. Bahamas *
(This company is being dissolved)
- ----------------------------------------------------------------------------------------------------------------------------------
157. Dutch American Manufacturers (D.A.M.) B.V. Netherlands *
- ----------------------------------------------------------------------------------------------------------------------------------
158. EGIS Holdings, Inc. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
159. Ellipticare, LLC Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
160. Eon Media Inc. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
161. EPIC Insurance Company Vermont *
- ----------------------------------------------------------------------------------------------------------------------------------
162. Eurovac Limited Malta *
- ----------------------------------------------------------------------------------------------------------------------------------
163. F&F Holding GmbH Germany *
- ----------------------------------------------------------------------------------------------------------------------------------
164. Gala Design, Inc. Delaware - Cardinal Health, Inc. owns
60.8%
- ----------------------------------------------------------------------------------------------------------------------------------
165. Global Healthcare Exchange, LLC Delaware - A Delaware limited liability
company of which HealthNexis LLC
acquired a 20% equity interest.
Cardinal Health, Inc. owns
approximately 6%
- ----------------------------------------------------------------------------------------------------------------------------------
166. Greenville MRI, Ltd. Texas - Cardinal Health, Inc.
indirectly owns 62.72%
- ----------------------------------------------------------------------------------------------------------------------------------
167. Griffin Capital, LLC Nevada *
- ----------------------------------------------------------------------------------------------------------------------------------
123
% OF OWNERSHIP BY
CARDINAL HEALTH, INC.
(*Unless otherwise indicated, the ownership
STATE / JURISDICTION OF shall be directly or indirectly 100% owned
NO. SUBSIDIARY NAME INCORPORATION by Cardinal Health, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
168. Griffin Group Document Management Nevada *
Services, Inc.
- ----------------------------------------------------------------------------------------------------------------------------------
169. Heartland Diagnostic Services, Inc. Wisconsin *
- ----------------------------------------------------------------------------------------------------------------------------------
170. Herd Mundy Richardson (Holdings) Limited United Kingdom *
- ----------------------------------------------------------------------------------------------------------------------------------
171. Herd Mundy Richardson Limited United Kingdom *
- ----------------------------------------------------------------------------------------------------------------------------------
172. IMI Diagnostic Center, Inc. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
173. IMI of Arlington, Inc. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
174. IMI of Boca Raton, Inc. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
175. IMI of Kansas City, Inc. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
176. IMI of Miami, Inc. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
177. IMI of North Miami Beach, Inc. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
178. IMI-NET, Inc. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
179. InGel Technologies Ltd. United Kingdom - Cardinal Health, Inc.
indirectly owns 5%.
- ----------------------------------------------------------------------------------------------------------------------------------
180. Inland Empire Regional PET Center, LLC California - Cardinal Health, Inc.
indirectly owns 50%
- ----------------------------------------------------------------------------------------------------------------------------------
181. InteCardia-TN East Catheterization, LLC Tennessee - Cardinal Health, Inc.
indirectly owns 75%
- ----------------------------------------------------------------------------------------------------------------------------------
182. InteCardia-TN East Diagnostic, LLC North Carolina *
- ----------------------------------------------------------------------------------------------------------------------------------
183. International Capsule Company S.r.l. Italy *
- ----------------------------------------------------------------------------------------------------------------------------------
124
% OF OWNERSHIP BY
CARDINAL HEALTH, INC.
(*Unless otherwise indicated, the ownership
STATE / JURISDICTION OF shall be directly or indirectly 100% owned
NO. SUBSIDIARY NAME INCORPORATION by Cardinal Health, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
184. International Medical Products B.V. Netherlands *
- ----------------------------------------------------------------------------------------------------------------------------------
185. Jefferson MRI, JV Texas *
- ----------------------------------------------------------------------------------------------------------------------------------
186. Jefferson MRI--Bala, JV Texas *
- ----------------------------------------------------------------------------------------------------------------------------------
187. Killilea Development Company, Ltd. Ohio *
- ----------------------------------------------------------------------------------------------------------------------------------
188. Lake Charles Pharmaceutical and Medical Louisiana - Cardinal Health, Inc. has
Equipment Supply Company, L.L.C. indirect partial ownership.
- ----------------------------------------------------------------------------------------------------------------------------------
189. Leader Drugstores, Inc. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
190. Los Gatos Imaging Center, JV Texas *
- ----------------------------------------------------------------------------------------------------------------------------------
191. Managed Pharmacy Benefits, Inc. Missouri *
- ----------------------------------------------------------------------------------------------------------------------------------
192. Medcon S.A. Luxembourg *
- ----------------------------------------------------------------------------------------------------------------------------------
193. Medical Diagnostic Leasing, Inc. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
194. Medical Education Systems, Inc. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
195. Medical Media Communications, Inc. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
196. Medicine Shoppe Capital Corporation Nevada *
- ----------------------------------------------------------------------------------------------------------------------------------
197. Medicine Shoppe International, Inc. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
198. Medicine Shoppe Internet, Inc. Missouri *
- ----------------------------------------------------------------------------------------------------------------------------------
199. MediQual Systems, Inc. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
125
% OF OWNERSHIP BY
CARDINAL HEALTH, INC.
(*Unless otherwise indicated, the ownership
STATE / JURISDICTION OF shall be directly or indirectly 100% owned
NO. SUBSIDIARY NAME INCORPORATION by Cardinal Health, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
200. Meditrol Automation Systems, Inc. Texas *
- ----------------------------------------------------------------------------------------------------------------------------------
201. Meditrol, Inc. Nevada *
- ----------------------------------------------------------------------------------------------------------------------------------
202. Mesa MRI, JV Texas *
- ----------------------------------------------------------------------------------------------------------------------------------
203. Moresville, Limited United Kingdom - Cardinal Heath, Inc. indirectly
owns 50%
- ----------------------------------------------------------------------------------------------------------------------------------
204. Mountain View MRI, JV Texas *
- ----------------------------------------------------------------------------------------------------------------------------------
205. MRI Equipment Partners, Ltd. Texas - Cardinal Health, Inc. indirectly
owns 59.16%
- ----------------------------------------------------------------------------------------------------------------------------------
206. MRI of Woodbridge, JV Texas *
- ----------------------------------------------------------------------------------------------------------------------------------
207. Multi-Medica S.A. Belgium *
- ----------------------------------------------------------------------------------------------------------------------------------
208. NewHealthCo LLC Delaware - Cardinal Health, Inc. owns
31.029%
- ----------------------------------------------------------------------------------------------------------------------------------
209. Orange County Regional PET Center-Irvine, LLC California - Cardinal Health, Inc. indirectly
owns 50%
- ----------------------------------------------------------------------------------------------------------------------------------
210. Owen Healthcare Building, Inc. Texas *
- ----------------------------------------------------------------------------------------------------------------------------------
211. Owen Shared Services, Inc. Texas *
- ----------------------------------------------------------------------------------------------------------------------------------
212. PCI Holdings (UK) Co. United Kingdom *
- ----------------------------------------------------------------------------------------------------------------------------------
213. PCI/Acquisition III, Inc. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
214. Pharmaceutical and Diagnostic Services, Inc. Utah - Cardinal Health, Inc. indirectly
owns 50%
- ----------------------------------------------------------------------------------------------------------------------------------
215. Pharmacy Automated Systems Incorporated Sdn Bhd Malaysia - Amend: Cardinal Health, Inc.
indirectly owns 5%
- ----------------------------------------------------------------------------------------------------------------------------------
126
% OF OWNERSHIP BY
CARDINAL HEALTH, INC.
(*Unless otherwise indicated, the ownership
STATE / JURISDICTION OF shall be directly or indirectly 100% owned
NO. SUBSIDIARY NAME INCORPORATION by Cardinal Health, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
216. Pharmacy Operations of New York, Inc. New York *
- ----------------------------------------------------------------------------------------------------------------------------------
217. Pharmacy Operations, Inc. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
218. Pharmatopes (Proprietary) Limited South Africa *
- ----------------------------------------------------------------------------------------------------------------------------------
219. Phillipi Holdings, Inc. Ohio *
- ----------------------------------------------------------------------------------------------------------------------------------
220. Phoenix Regional PET Center-Thunderbird, Arizona - Cardinal Health, Inc. indirectly
LLC owns 50%
- ----------------------------------------------------------------------------------------------------------------------------------
221. PhR Staffing, Inc. Texas *
- ----------------------------------------------------------------------------------------------------------------------------------
222. Physicians Purchasing, Inc. Nevada *
- ----------------------------------------------------------------------------------------------------------------------------------
223. Pinnacle Intellectual Property Services Nevada *
International, Inc.
- ----------------------------------------------------------------------------------------------------------------------------------
224. Pinnacle Intellectual Property Services, Inc. Nevada *
- ----------------------------------------------------------------------------------------------------------------------------------
225. Princeton Diagnostic Isotopes, Inc. West Virginia *
- ----------------------------------------------------------------------------------------------------------------------------------
226. Productos Urologos de Mexico S.A. de C.V Mexico *
- ----------------------------------------------------------------------------------------------------------------------------------
227. Professional Health-Care Resources, Inc. Texas *
- ----------------------------------------------------------------------------------------------------------------------------------
228. Pyxis Funding II, LLC Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
229. Pyxis Funding, LLC Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
230. Quiroproductos de Cuauhtemoc S.A. de C.V. Mexico *
- ----------------------------------------------------------------------------------------------------------------------------------
231. R. P. Scherer Limited United Kingdom *
- ----------------------------------------------------------------------------------------------------------------------------------
127
% OF OWNERSHIP BY
CARDINAL HEALTH, INC.
(*Unless otherwise indicated, the ownership
STATE / JURISDICTION OF shall be directly or indirectly 100% owned
NO. SUBSIDIARY NAME INCORPORATION by Cardinal Health, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
232. R.P. Scherer (Europe) AG Switzerland *
- ----------------------------------------------------------------------------------------------------------------------------------
233. R.P. Scherer (Spain) S.A. Spain *
- ----------------------------------------------------------------------------------------------------------------------------------
234. R.P. Scherer Argentina S.A.I.C. Argentina *
- ----------------------------------------------------------------------------------------------------------------------------------
235. R.P. Scherer DDS B.V. Netherlands *
- ----------------------------------------------------------------------------------------------------------------------------------
236. R.P. Scherer Egypt Egypt - Cardinal Health, Inc. indirectly
owns 10%
- ----------------------------------------------------------------------------------------------------------------------------------
237. R.P. Scherer GmbH & Co. KG Germany *
- ----------------------------------------------------------------------------------------------------------------------------------
238. R.P. Scherer Holdings II Limited United Kingdom *
- ----------------------------------------------------------------------------------------------------------------------------------
239. R.P. Scherer Holdings Limited United Kingdom *
- ----------------------------------------------------------------------------------------------------------------------------------
240. R.P. Scherer Holdings Pty. Ltd. Australia *
- ----------------------------------------------------------------------------------------------------------------------------------
241. R.P. Scherer Inc. New Jersey *
- ----------------------------------------------------------------------------------------------------------------------------------
242. R.P. Scherer Production S.A. France *
- ----------------------------------------------------------------------------------------------------------------------------------
243. R.P. Scherer S.A. France *
- ----------------------------------------------------------------------------------------------------------------------------------
244. R.P. Scherer S.p.A. Italy *
- ----------------------------------------------------------------------------------------------------------------------------------
245. R.P. Scherer Technologies, Inc. Nevada *
- ----------------------------------------------------------------------------------------------------------------------------------
246. R.P. Scherer Verwaltungs GmbH Germany o Cardinal Health, Inc. indirectly
owns 51%
- ----------------------------------------------------------------------------------------------------------------------------------
247. Radiopharmacy of Boise, Inc. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
128
% OF OWNERSHIP BY
CARDINAL HEALTH, INC.
(*Unless otherwise indicated, the ownership
STATE / JURISDICTION OF shall be directly or indirectly 100% owned
NO. SUBSIDIARY NAME INCORPORATION by Cardinal Health, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
248. Radiopharmacy of Lafayette, Inc. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
249. Radiopharmacy of Northern California, Inc. California *
- ----------------------------------------------------------------------------------------------------------------------------------
250. Ransdell Surgical, Inc. Kentucky *
- ----------------------------------------------------------------------------------------------------------------------------------
251. Riverside MRI, JV Texas *
- ----------------------------------------------------------------------------------------------------------------------------------
252. RPS Technical Services, Inc. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
253. R(x)ealTIME, Inc. Nevada *
- ----------------------------------------------------------------------------------------------------------------------------------
254. Sacramento High Field OPEN MRI, LLC California - Cardinal Health, Inc. indirectly
owns 51%
- ----------------------------------------------------------------------------------------------------------------------------------
255. San Fernando Valley Regional PET Center, LLC California - Cardinal Health, Inc. indirectly
owns 50%
- ----------------------------------------------------------------------------------------------------------------------------------
256. Santa Cruz Comprehensive Imaging LLC California - Cardinal Health, Inc. indirectly
owns 57%
- ----------------------------------------------------------------------------------------------------------------------------------
257. Santa Maria MRI, LLC California - Cardinal Health, Inc. indirectly
owns 50%
- ----------------------------------------------------------------------------------------------------------------------------------
258. Scela, Inc. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
259. Scherer DDS Limited United Kingdom *
- ----------------------------------------------------------------------------------------------------------------------------------
260. Shanghai Syncor Pharmaceutical Co., Ltd. China - Cardinal Health, Inc. indirectly
owns 83.67%
- ----------------------------------------------------------------------------------------------------------------------------------
261. Sierra Radiopharmacy, LLC Nevada - Cardinal Health, Inc. indirectly
owns 51%
- ----------------------------------------------------------------------------------------------------------------------------------
262. SOS Medical System S.A.R.L. France *
- ----------------------------------------------------------------------------------------------------------------------------------
263. Source Medical Corporation Canada - Cardinal Health, Inc. indirectly
owns 50% of common shares & 100% of
preferred share (1 share)
- ----------------------------------------------------------------------------------------------------------------------------------
129
% OF OWNERSHIP BY
CARDINAL HEALTH, INC.
(*Unless otherwise indicated, the ownership
STATE / JURISDICTION OF shall be directly or indirectly 100% owned
NO. SUBSIDIARY NAME INCORPORATION by Cardinal Health, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
264. STI Deutschland GmbH Surgical Germany *
Technologies
- ----------------------------------------------------------------------------------------------------------------------------------
265. Strategic Implications International, Inc. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
266. Supplyline Technologies Limited Ireland *
- ----------------------------------------------------------------------------------------------------------------------------------
267. Surgical Technologies B.V. Netherlands *
- ----------------------------------------------------------------------------------------------------------------------------------
268. Surgi-Tech Europa Divisione Surgi-Tech Italia SRL Italy *
- ----------------------------------------------------------------------------------------------------------------------------------
269. Syncor (Nanjing) Medical Science Company, Ltd. China *
- ----------------------------------------------------------------------------------------------------------------------------------
270. Syncor (Nanjing) Medical Science Company, China *
Ltd. Beijing Branch
Branch of Syncor (Nanjing)
- ----------------------------------------------------------------------------------------------------------------------------------
271. Syncor (Trinidad & Tobago) Unlimited Trinidad & Tobago *
- ----------------------------------------------------------------------------------------------------------------------------------
272. Syncor Advanced Isotopes, LLC Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
273. Syncor Australia Pty Ltd. Australia *
- ----------------------------------------------------------------------------------------------------------------------------------
274. Syncor Belgium SPRL Belgium *
- ----------------------------------------------------------------------------------------------------------------------------------
275. Syncor Cardiology Services, LLC Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
276. Syncor de Colombia Ltda. Colombia *
- ----------------------------------------------------------------------------------------------------------------------------------
277. Syncor de Mexico S. de R.L. de C.V. Mexico *
- ----------------------------------------------------------------------------------------------------------------------------------
278. Syncor Diagnostics Bakersfield, LLC California *
- ----------------------------------------------------------------------------------------------------------------------------------
130
% OF OWNERSHIP BY
CARDINAL HEALTH, INC.
(*Unless otherwise indicated, the ownership
STATE / JURISDICTION OF shall be directly or indirectly 100% owned
NO. SUBSIDIARY NAME INCORPORATION by Cardinal Health, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
279. Syncor Diagnostics Dallas, LLC Texas *
- ----------------------------------------------------------------------------------------------------------------------------------
280. Syncor Diagnostics Encino, LLC California *
- ----------------------------------------------------------------------------------------------------------------------------------
281. Syncor Diagnostics Fullerton LLC California *
- ----------------------------------------------------------------------------------------------------------------------------------
282. Syncor Diagnostics Laguna Hills LLC California *
- ----------------------------------------------------------------------------------------------------------------------------------
283. Syncor Diagnostics Plano, LLC Texas *
- ----------------------------------------------------------------------------------------------------------------------------------
284. Syncor Diagnostics Sacramento LLC California *
- ----------------------------------------------------------------------------------------------------------------------------------
285. Syncor do Brasil Ltda. Brazil *
- ----------------------------------------------------------------------------------------------------------------------------------
286. Syncor Financing Corporation Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
287. Syncor Guyana Inc. Guyana *
- ----------------------------------------------------------------------------------------------------------------------------------
288. Syncor Hong Kong Limited Hong Kong *
- ----------------------------------------------------------------------------------------------------------------------------------
289. Syncor International (Thailand) Co., Ltd. Thailand *
- ----------------------------------------------------------------------------------------------------------------------------------
290. Syncor Italy s.r.l. Italy *
- ----------------------------------------------------------------------------------------------------------------------------------
291. Syncor Korea, Inc. South Korea *
- ----------------------------------------------------------------------------------------------------------------------------------
292. Syncor Midland, Inc. Texas *
- ----------------------------------------------------------------------------------------------------------------------------------
293. Syncor New Zealand Limited New Zealand *
- ----------------------------------------------------------------------------------------------------------------------------------
294. Syncor Overseas Ltd. British Virgin Islands *
- ----------------------------------------------------------------------------------------------------------------------------------
131
% OF OWNERSHIP BY
CARDINAL HEALTH, INC.
(*Unless otherwise indicated, the ownership
STATE / JURISDICTION OF shall be directly or indirectly 100% owned
NO. SUBSIDIARY NAME INCORPORATION by Cardinal Health, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
295. Syncor Pharmaceuticals, Inc. Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
296. Syncor Philippines, Inc. Philippines *
- ----------------------------------------------------------------------------------------------------------------------------------
297. Syncor Radiation Management, LLC Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
298. Syncor Radiofarmacos, S.L. Spain *
- ----------------------------------------------------------------------------------------------------------------------------------
299. Syncor St. Lucia, Inc. Saint Lucia *
- ----------------------------------------------------------------------------------------------------------------------------------
300. Syncor Taiwan, Inc. Taiwan *
- ----------------------------------------------------------------------------------------------------------------------------------
301. Syncor Trinidad & Tobago Trinidad & Tobago *
(Branch of Syncor Overseas)
- ----------------------------------------------------------------------------------------------------------------------------------
302. Syncor Unidad Central de Radiofarmacia de Spain - Cardinal Health, Inc. indirectly
Galicia, S.L. owns 70%
- ----------------------------------------------------------------------------------------------------------------------------------
303. Syncor-Caribe Puerto Rico *
- ----------------------------------------------------------------------------------------------------------------------------------
304. TME Arizona, Inc. Texas *
- ----------------------------------------------------------------------------------------------------------------------------------
305. Unipack, Ltd. United Kingdom *
- ----------------------------------------------------------------------------------------------------------------------------------
306. Valencia MRI, LLC California - Cardinal Health, Inc. indirectly
owns 50%
- ----------------------------------------------------------------------------------------------------------------------------------
307. Vallejo Open MRI, LLC California - Cardinal Health, Inc. indirectly
owns 50%
- ----------------------------------------------------------------------------------------------------------------------------------
308. Virginia Imaging Center, LLC Virginia - Cardinal Health, Inc. indirectly
owns 90%
- ----------------------------------------------------------------------------------------------------------------------------------
309. Vistant Corporation Delaware *
- ----------------------------------------------------------------------------------------------------------------------------------
310. Vistant Holdings, Inc. Nevada *
- ----------------------------------------------------------------------------------------------------------------------------------
132
% OF OWNERSHIP BY
CARDINAL HEALTH, INC.
(*Unless otherwise indicated, the ownership
STATE / JURISDICTION OF shall be directly or indirectly 100% owned
NO. SUBSIDIARY NAME INCORPORATION by Cardinal Health, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------------
311. West Texas Nuclear Pharmacy Partners Texas - Cardinal Health, Inc. indirectly
owns 50%
- ----------------------------------------------------------------------------------------------------------------------------------
133
SCHEDULE 1
CONTINUED
SUBSIDIARY BORROWERS
None as of the Effective Date.
134
SCHEDULE 3
EUROCURRENCY PAYMENT OFFICES OF THE AGENT
Currency Eurocurrency Payment Office
- --------- ---------------------------
Dollars Bank One, NA
Chicago, Illinois
British Pounds Sterling Bank One, NA
London Branch
Euros Bank One, NA
London Branch
135
SCHEDULE 4
LENDING INSTALLATIONS
Lender Floating Rate Loans Eurocurrency Loans (list all)
------ ------------------- -----------------
Bank One, NA Bank One, NA, Chicago, Illinois Bank One, NA, Chicago, Illinois
Bank One, NA, London Branch
(for Multicurrency Loans)
Bank of America, N.A. Bank of America, N.A. Bank of America, N.A.
Deutsche Bank AG New York Deutsche Bank AG New York Deutsche Bank AG New York
Branch Branch Branch
Barclays Bank PLC Barclays Bank PLC Barclays Bank PLC
Wachovia Bank, National Wachovia Bank, National Association Wachovia Bank, National Association
Association
Credit Suisse First Boston, acting Credit Suisse First Boston, acting Credit Suisse First Boston, acting
through its Cayman Islands through its Cayman Islands through its Cayman Islands
Branch Branch Branch
UBS AG Cayman Islands Branch UBS AG Cayman Islands Branch UBS AG Cayman Islands Branch
The Bank of Tokyo-Mitsubishi., The Bank of Tokyo-Mitsubishi, LTD., The Bank of Tokyo-Mitsubishi,
LTD., Chicago Branch Chicago Branch LTD., Chicago Branch
Fleet National Bank Fleet National Bank Fleet National Bank
The Bank of Nova Scotia The Bank of Nova Scotia The Bank of Nova Scotia
SunTrust Bank SunTrust Bank SunTrust Bank
PNC Bank, National Association PNC Bank, National Association PNC Bank, National Association
National City Bank National City Bank National City Bank
Banco Bilbao Vizcaya Argentaria Banco Bilbao Vizcaya Argentaria S.A. Banco Bilbao Vizcaya Argentaria S.A.
S.A.
Banca Intesa S.P.A. Banca Intesa S.P.A. Banca Intesa S.P.A.
The Bank of New York The Bank of New York The Bank of New York
ABN AMRO Bank N.V. ABN AMRO Bank N.V. ABN AMRO Bank N.V.
Fifth Third Bank (Central Ohio) Fifth Third Bank (Central Ohio) Fifth Third Bank (Central Ohio)
U.S. Bank National Association U.S. Bank National Association U.S. Bank National Association
Allied Irish Banks p.l.c. Allied Irish Banks p.l.c. Allied Irish Banks p.l.c.
Credit Lyonnais-S.A. Credit Lyonnais-S.A. Credit Lyonnais-S.A.
136
SCHEDULE 5
ALTERNATE CURRENCY COMMITMENT
No Alternate Currency Commitments as of the Effective Date.
137
SCHEDULE 6
MULTICURRENCY COMMITMENT
Commitments
Lender Multi Currency Dollar
------ -------------- ------
Bank One, NA $ 25,000,000 $ 42,500,000
Bank of America, N.A. $ 25,000,000 $ 33,750,000
Deutsche Bank AG New York Branch $ 25,000,000 $ 33,750,000
Barclays Bank PLC $ 25,000,000 $ 33,750,000
Wachovia Bank, National Association $ 0 $ 58,750,000
Credit Suisse First Boston $ 0 $ 58,750,000
UBS AG Cayman Islands Branch $ 0 $ 58,750,000
The Bank of Tokyo-Mitsubishi, Ltd. $ 0 $ 50,000,000
Fleet National Bank $ 0 $ 50,000,000
The Bank of Nova Scotia $ 0 $ 42,500,000
SunTrust Bank $ 0 $ 32,500,000
PNC Bank, National Association $ 0 $ 32,500,000
National City Bank $ 0 $ 25,000,000
Banco Bilbao Vizcaya Argentaria S.A. $ 0 $ 15,000,000
Banca Intesa S.p.A. $ 0 $ 15,000,000
The Bank of New York $ 0 $ 15,000,000
ABN AMRO Bank N.V. $ 0 $ 12,500,000
Fifth Third Bank (Central Ohio) $ 0 $ 12,500,000
U.S. Bank National Association $ 0 $ 12,500,000
Allied Irish Banks p.l.c. $ 0 $ 7,500,000
Credit Lyonnais $ 0 $ 7,500,000
138
SCHEDULE 7
LITIGATION/CONTINGENT OBLIGATIONS
Those litigation/contingent liabilities items disclosed in Part II, Item I of
the Company's Form 10-Q for the quarter ended December 31, 2002 filed with the
Securities and Exchange Commission on February 14, 2003.
139
SCHEDULE 8
PERSONS AUTHORIZED TO GIVE TELEPHONE INSTRUCTIONS
Donna Brandin, SVP and Treasurer
Alex Choi, VP and Asst. Treasurer
Jared Poff, Director - Finance and Investments
140