EXHIBIT 99.01
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CARDINAL HEALTH, INC.
2004 FIVE-YEAR CREDIT AGREEMENT
dated as of March 23, 2004
THE SUBSIDIARY BORROWERS PARTY HERETO,
THE LENDERS PARTY HERETO
and
WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative Agent
BANK ONE, N.A., as Syndication Agent
BANK OF AMERICA, N.A., as Syndication Agent
BARCLAYS BANK PLC, as Documentation Agent
DEUTSCHE BANK SECURITIES, INC., as Documentation Agent
WACHOVIA CAPITAL MARKETS, LLC, as Lead Arranger and Book Manager
BANC ONE CAPITAL MARKETS, INC., as Lead Arranger and Book Manager
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TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS.............................................................................. 1
ARTICLE II. THE CREDITS............................................................................. 11
2.1 Commitments of the Lenders; Revolving Credit Advances............................. 11
2.2 Termination....................................................................... 12
2.3 Ratable Loans..................................................................... 12
2.4 Types of Advances................................................................. 12
2.5 Facility Fee; Reductions in Aggregate Commitment; Utilization Fee................. 12
2.6 Minimum Amount of Each Advance.................................................... 12
2.7 Prepayments....................................................................... 12
2.8 Method of Selecting Types and Interest Periods for New Advances................... 13
2.9 Conversion and Continuation of Outstanding Advances............................... 13
2.10 Method of Borrowing............................................................... 14
2.11 Changes in Interest Rate, etc..................................................... 14
2.12 Rates Applicable After Default.................................................... 14
2.13 Method of Payment................................................................. 15
2.14 Noteless Agreement; Evidence of Indebtedness...................................... 15
2.15 Telephonic Notices................................................................ 16
2.16 Interest Payment Dates; Interest and Fee Basis.................................... 16
2.17 Notification of Advances, Interest Rates, Prepayments and Commitment Reductions... 17
2.18 Lending Installations............................................................. 17
2.19 Non-Receipt of Funds by the Administrative Agent.................................. 17
2.20 Replacement of Lender............................................................. 18
2.21 Application of Payments with Respect to Defaulting Lenders........................ 18
ARTICLE III. YIELD PROTECTION; TAXES................................................................ 19
3.1 Yield Protection.................................................................. 19
3.2 Changes in Capital Adequacy Regulations........................................... 20
3.3 Availability of Types of Advances................................................. 20
3.4 Funding Indemnification........................................................... 21
3.5 Taxes............................................................................. 21
3.6 Lender Statements; Survival of Indemnity.......................................... 23
ARTICLE IV. CONDITIONS PRECEDENT.................................................................... 23
4.1 Initial Advance................................................................... 23
4.2 Each Advance...................................................................... 24
ARTICLE V. REPRESENTATIONS AND WARRANTIES........................................................... 25
5.1 Existence and Standing............................................................ 25
5.2 Authorization and Validity........................................................ 25
5.3 No Conflict; Government Consent................................................... 25
5.4 Financial Statements.............................................................. 26
5.5 Material Adverse Change........................................................... 26
5.6 Taxes............................................................................. 26
5.7 Litigation and Contingent Obligations............................................. 27
5.8 Subsidiaries...................................................................... 27
5.9 ERISA............................................................................. 27
5.10 Accuracy of Information........................................................... 28
5.11 Regulation U...................................................................... 28
5.12 Maintenance of Property........................................................... 28
5.13 Insurance......................................................................... 28
5.14 Plan Assets; Prohibited Transactions.............................................. 28
5.15 Environmental Matters............................................................. 29
5.16 Investment Company Act............................................................ 29
5.17 Public Utility Holding Company Act................................................ 29
5.18 Default........................................................................... 29
ARTICLE VI. COVENANTS............................................................................... 29
6.1 Financial Reporting............................................................... 29
6.2 Use of Proceeds................................................................... 30
6.3 Notice of Default................................................................. 30
6.4 Conduct of Business; Maintenance of Property...................................... 31
6.5 Taxes............................................................................. 31
6.6 Insurance......................................................................... 31
6.7 Compliance with Laws.............................................................. 31
6.8 Inspection........................................................................ 31
6.9 Merger............................................................................ 32
6.10 Sale of Assets.................................................................... 32
6.11 Investments....................................................................... 33
6.12 Liens............................................................................. 33
6.13 Subsidiary Indebtedness........................................................... 35
6.14 Limitation on Restrictions on Significant Subsidiary Distributions................ 36
6.15 Contingent Obligations............................................................ 36
6.16 Minimum Net Worth................................................................. 37
ARTICLE VII. DEFAULTS............................................................................... 37
ARTICLE VIII. ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES........................................ 39
8.1 Acceleration...................................................................... 39
8.2 Amendments........................................................................ 39
8.3 Preservation of Rights............................................................ 40
ARTICLE IX. GENERAL PROVISIONS...................................................................... 41
9.1 Survival of Representations....................................................... 41
9.2 Governmental Regulation........................................................... 41
9.3 Headings.......................................................................... 41
9.4 Entire Agreement.................................................................. 41
9.5 Several Obligations; Benefits of this Agreement................................... 41
9.6 Expenses; Indemnification......................................................... 41
9.7 Numbers of Documents.............................................................. 42
9.8 Accounting........................................................................ 42
9.9 Severability of Provisions........................................................ 42
9.10 Nonliability of Lenders........................................................... 42
9.11 Confidentiality; Disclosure....................................................... 43
9.12 Nonreliance....................................................................... 43
ARTICLE X. THE AGENT................................................................................ 44
10.1 Appointment; Nature of Relationship............................................... 44
10.2 Powers............................................................................ 44
10.3 General Immunity.................................................................. 44
10.4 No Responsibility for Loans, Recitals, etc........................................ 44
10.5 Action on Instructions of Lenders................................................. 45
10.6 Employment of Agents and Counsel.................................................. 45
10.7 Reliance on Documents; Counsel.................................................... 45
10.8 Administrative Agent's Reimbursement and Indemnification.......................... 46
10.9 Notice of Default................................................................. 46
10.10 Rights as a Lender................................................................ 46
10.11 Lender Credit Decision............................................................ 47
10.12 Successor Administrative Agent.................................................... 47
10.13 Administrative Agent's Fee........................................................ 48
10.14 Delegation to Affiliates.......................................................... 48
10.15 Administrative Agent, Syndication Agents, Documentation Agents, Lead Arrangers,
etc............................................................................... 48
ARTICLE XI. SETOFF; RATABLE PAYMENTS................................................................ 48
11.1 Setoff............................................................................ 48
11.2 Ratable Payments.................................................................. 49
ARTICLE XII. BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS...................................... 49
12.1 Successors and Assigns............................................................ 49
12.2 Participations.................................................................... 50
12.2.1. Permitted Participants; Effect........................................... 50
12.2.2. Voting Rights............................................................ 50
12.2.3. Benefit of Setoff........................................................ 50
12.3 Assignments....................................................................... 50
12.3.1. Permitted Assignments.................................................... 50
12.3.2. Effect; Effective Date................................................... 51
12.4 Dissemination of Information...................................................... 51
12.5 Tax Treatment..................................................................... 52
12.6 Transfer to an SPC................................................................ 52
ARTICLE XIII. NOTICES............................................................................... 52
13.1 Notices........................................................................... 52
13.2 Change of Address................................................................. 53
ARTICLE XIV. COUNTERPARTS........................................................................... 53
ARTICLE XV. CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL............................ 53
15.1 CHOICE OF LAW..................................................................... 53
15.2 CONSENT TO JURISDICTION........................................................... 53
15.3 WAIVER OF JURY TRIAL.............................................................. 54
EXHIBITS AND SCHEDULES
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
Schedules:
Pricing Schedule
A-1 Lender Commitments
1 Subsidiary and Other Investments
3 Eurodollar Payment Offices of the Agent
4 Lending Installations
7 Litigation/Contingent Liabilities
8 Persons Authorized to Give Telephone Instructions
2004 FIVE-YEAR CREDIT AGREEMENT
This Agreement, dated as of March 23, 2004, 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"), the Documentation Agents and
Syndication Agents party hereto, and WACHOVIA BANK, NATIONAL ASSOCIATION, a
national banking association having its principal office in Charlotte, North
Carolina, as Administrative Agent (the "Administrative Agent"). The parties
hereto agree as follows:
ARTICLE I.
DEFINITIONS
As used in this Agreement:
"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 Wachovia Bank, National Association 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
Eurodollar Loans, for the same Interest Period.
"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 is $750,000,000.
"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.
"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.
"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 Eurodollar Loan, Floating
Rate Loan or the Facility Fee, as the case may be at any time, the 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.
"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.
"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.
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"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.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in Charlotte, North Carolina and New York, New
York for the conduct of substantially all of their commercial lending activities
and on which dealings in Eurodollars are carried on in the London interbank
market, and (ii) for all other purposes, a day (other than a Saturday or Sunday)
on which banks generally are open in Charlotte, North Carolina and New York, New
York for the conduct of substantially all of their commercial lending
activities.
"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.
"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 23, 2004.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
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"Commitment" means, for each Lender, the obligation of such Lender to make
Loans to one or more Borrowers in an aggregate amount not exceeding the amount
set forth on Schedule A-1 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.
"Company" means Cardinal Health, Inc., an Ohio corporation, and its
successors and assigns.
"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.
"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.
"Default" means an event described in Article VII.
"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 (b) 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 or any other Lender pursuant to this Agreement.
"Documentation Agents" means Deutsche Bank Securities, Inc. and Barclays
Bank PLC.
"Dollars" and "$" shall mean the lawful currency of the United States of
America.
"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
4
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.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Eurodollar Advance" means an Advance which, except as otherwise provided
in Section 2.12, bears interest at the applicable Eurodollar Rate.
"Eurodollar Payment Office" of the Administrative Agent shall mean the
office, branch, affiliate or correspondent bank of the Administrative Agent
specified as the "Eurodollar Payment Office" 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
Eurodollar Payment Office.
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the
relevant Interest Period, the sum of (i) the quotient of (a) the Eurodollar
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 Eurodollar Rate shall be expressed as a
percentage rounded to four decimal places.
"Eurodollar Reference Rate" means,
(a) the rate per annum quoted at or about 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period for such period on
that page of the Telerate Screen, Reuters or Bloombergs which displays British
Bankers Association Interest Settlement Rates for deposits in Dollars for such
period or, if such page or service shall cease to be available, such other page
or such other service (as the 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 period and there is no
alternative service on which two or more such quotations for Dollars are
displayed, "Eurodollar Reference Rate" will be the rate at which deposits in
Dollars 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) two Business Days prior to the first day of such Interest Period in the
approximate amount of the relevant Eurodollar Loan of Wachovia 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.
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"Exhibit" refers to an exhibit to this Agreement, unless another document
is specifically referenced.
"Existing Five-Year Credit Agreement" means the Five-Year Credit Agreement
dated March 27, 2003, by and among the Company, the Subsidiary Borrowers party
thereto, the Lenders and Bank One, NA, as Administrative Agent, as amended on
the date hereof and as may be further amended, restated, supplemented or
otherwise modified from time to time.
"Facility Termination Date" means March 23, 2009, 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. (Charlotte, North Carolina 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.
"Fitch" means Fitch, Inc.
"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.
"Floating Rate Loan" means a 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
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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 (viii) of this definition.
"Interest Period" means, with respect to a Eurodollar 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.
"Lead Arrangers" means Wachovia Capital Markets, LLC and Banc One Capital
Markets, Inc.
"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 selected by such Lender and the Administrative Agent
pursuant to Section 2.18.
"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).
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"Loan Documents" means this Agreement, the Notes, the Guaranty and any
other instrument or document executed in connection with any of the foregoing at
any time (but excluding Rate Hedging Agreements).
"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 or the Lenders
thereunder.
"Moody's" means Moody's Investors Service, Inc.
"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.
"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 accrued and unpaid fees and all expenses,
reimbursements, indemnities and other obligations of the Borrowers to the
Lenders or to any Lender, 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.
"Participants" is defined in Section 12.2.1.
"Payment Date" means the last day of each calendar quarter, commencing
June 30, 2004.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto.
"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.
8
"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 Wachovia (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, 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.
"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.
"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.
"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
9
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 unpaid principal
amount of the outstanding Advances.
"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 Eurodollar
liabilities.
"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.
"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.
"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.
"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.
"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.
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"Syndication Agents" means Bank One, NA and Bank of America, N.A.
"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 as Eurodollar 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.
"Unmatured Default" means an event which but for the lapse of time or the
giving of notice, or both, would constitute a Default.
"Wachovia" means Wachovia Bank, National Association, a national banking
association, and its successors.
"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.
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; Revolving Credit Advances.
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 make Loans to the Borrowers
from time to time in amounts not to exceed in the aggregate at any one time
outstanding the amount of its Commitment. 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.
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2.2 Termination.
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.
Each Advance hereunder shall consist of Loans made from the several
Lenders ratably in proportion to the ratio that their respective Commitments
bear to the Aggregate Commitment.
2.4 Types of Advances.
The Advances may be Floating Rate Advances or Eurodollar Advances, or a
combination thereof, selected by the relevant Borrowers in accordance with
Sections 2.8 and 2.9.
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 notice. In addition, 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 for each day on which the aggregate principal amount of
outstanding Advances exceeds 50% of the Aggregate Commitment.
2.6 Minimum Amount of Each Advance.
Each Eurodollar Advance shall be in the minimum amount of $5,000,000 (and
in multiples of $1,000,000 in excess thereof, and each Floating Rate Advance
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.
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. 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 Eurodollar 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 Eurodollar Advances upon three
Business Days' prior notice to the Administrative Agent.
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(b) If at any time, for any reason, the aggregate amount of all
outstanding Advances of all Lenders shall exceed the Aggregate Commitment then
in effect, the Borrowers shall immediately prepay an amount equal to such
excess.
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 Eurodollar Advance, the Interest Period 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
and not later than 11:00 a.m. (Chicago time) three Business Days before the
Borrowing Date for each Eurodollar Advance, 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 Eurodollar Advance, the Interest
Period applicable thereto, and
(vi) details relating to funds transfer for such Advance.
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 Eurodollar Advances
pursuant to this Section 2.9 or are repaid in accordance with Section 2.7. Each
Eurodollar Advance shall continue as a Eurodollar Advance until the end of the
then applicable Interest Period therefor, at which time each such Eurodollar
Advance shall be automatically converted into a Floating Rate Advance unless (x)
such Eurodollar 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 Eurodollar Advance either continue as a Eurodollar Advance for the same or
another Interest Period or be converted into a Floating Rate Advance.
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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, provided that any conversion of any Eurodollar 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 Eurodollar 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 Eurodollar 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 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 Eurodollar 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, not later than noon (Chicago time), in Federal or other funds immediately
available to the Administrative Agent, at its address specified in or pursuant
to Article XIII. 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, such Lender shall
apply the proceeds of the Loan it is then making to the repayment of principal
of the maturing Loan.
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 Eurodollar Advance into a Floating Rate Advance
pursuant to Section 2.9 to but excluding the date it becomes due or is converted
into a Eurodollar 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 Eurodollar
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 Eurodollar 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.
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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
Eurodollar 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 Eurodollar 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, 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
shall be applicable to all Advances without any election or action on the part
of the Administrative Agent or any Lender.
2.13 Method of Payment.
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 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 its address
specified pursuant to Article XIII or at any Lending Installation specified in a
notice received by the Administrative Agent from such Lender.
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 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 and (c) the amount of
any sum received by the Administrative Agent hereunder from
the Borrowers and each Lender's share thereof.
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(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 represented by a Note
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 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 Eurodollar
Advance on a day other than a Payment Date shall be payable on the date of
conversion. Interest accrued on each Eurodollar Advance shall be payable in
arrears on the last day of its applicable Interest Period, on any date on which
the Eurodollar Advance is prepaid, whether by acceleration or otherwise, and at
maturity. Interest accrued on each Eurodollar 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. Facility fees, utilization
fees and interest on Eurodollar Advances shall be
16
calculated for actual days elapsed on the basis of a 360-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. The Administrative Agent will notify each Lender, the Company and the
relevant Borrower of the interest rate applicable to each Eurodollar Advance
promptly upon determination of 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 at the appropriate Lending Installation
listed on Schedule 4 or such other Lending Installation designated by such
Lender 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 and
any Notes issued hereunder shall be deemed held by each Lender for the benefit
of any such Lending Installation. Each Lender 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 and for whose account Loan payments 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 (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 (y) in
the case of payment by the Borrower, the interest rate applicable to the
relevant Loan.
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(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 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 Loan required to be made by it hereunder (the amount
not 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 Commitment divided by the 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 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, Eurodollar 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.
2.21 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
18
funds 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 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
to any Taxes, or changes the basis of taxation of payments (other than
with respect to Excluded Taxes) to any Lender in respect of its Eurodollar
Loans, 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 (other than reserves
and assessments taken into account in determining the interest rate
applicable to Eurodollar Advances), or
(iii) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending Installation of
maintaining its Commitment or making, funding or maintaining its
Eurodollar Loans or reduces any amount receivable by any Lender or any
applicable Lending Installation in connection with its Eurodollar Loans,
or requires any Lender or any applicable Lending Installation to make any
payment calculated by reference to its Commitment or the amount of
Eurodollar Loans held or interest received by it, by an amount deemed
material by such Lender,
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation of making or maintaining its Eurodollar Loans or
Commitment or to reduce the return received by such Lender or applicable Lending
Installation in connection with such Eurodollar Loans or Commitment, then,
within 30 days of demand by such Lender, the relevant
19
Borrower shall pay such Lender such additional amount or amounts as will
compensate such Lender 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, and the result
of the foregoing is to increase the cost to such Lender or applicable Lending
Installation of making or maintaining its Eurodollar Loans 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 in connection with such Eurodollar Loans to any Non-U.S. Borrower
or Commitment to any Non-U.S. Borrower, then, within 30 days of demand by such
Lender, such Non-U.S. Borrower shall pay such Lender such additional amount or
amounts as will compensate such Lender for such increased cost or reduction in
amount received, provided that such Non-U.S. Borrower shall not be required to
compensate any Lender 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 as a
result of the calculation of the interest rate applicable to Eurodollar Advances
pursuant to clause (i)(b) of the definition of "Eurodollar Rate."
3.2 Changes in Capital Adequacy Regulations.
If a Lender determines the amount of capital required or expected to be
maintained by such Lender, any Lending Installation of such Lender or any entity
controlling such Lender is increased as a result of a Change (as defined below),
then, within 15 days of demand by such Lender, the Company shall pay such Lender
the amount necessary to compensate for any shortfall in the rate of return on
the portion of such increased capital which such Lender determines is
attributable to this Agreement, its Loans or its Commitment to make Loans
hereunder (after taking into account such Lender'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 be maintained by any Lender or any Lending Installation or any corporation
controlling any Lender. "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.
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If any Lender determines that maintenance of its Eurodollar 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 Eurodollar Advances are not available or (ii) the
interest rate applicable to Eurodollar Advances does not accurately reflect the
cost of making or maintaining Eurodollar Advances, then the Administrative Agent
shall suspend the availability of Eurodollar Advances and require any affected
Eurodollar Advances to be repaid or converted to Floating Rate Advances at the
end of the then current Interest Period for the affected Eurodollar Advance.
3.4 Funding Indemnification.
If any payment of a Eurodollar 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 Eurodollar 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 Eurodollar
Advance.
3.5 Taxes.
(i) All payments by the Borrowers to or for the account of any
Lender or the Administrative Agent hereunder or under any Note 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 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 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 from the execution or delivery of, or otherwise with respect to,
this Agreement or any Note ("Other Taxes").
(iii) The Borrowers hereby agree to indemnify the Administrative
Agent 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 the Administrative Agent 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 or such Lender makes demand therefor
pursuant to Section 3.6.
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(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.
(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
22
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 Eurodollar 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 Eurodollar 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 Eurodollar Loan shall be calculated as though each Lender
funded its Eurodollar Loan through the purchase of a deposit of the type,
currency and maturity corresponding to the deposit used as a reference in
determining the Eurodollar 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 Advance.
The Lenders shall not be required to make the initial Advance hereunder
unless the Borrowers have satisfied the following conditions:
(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.
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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 Borrowing 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) 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 364-Day Credit Agreement dated March 27, 2003, 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.
(c) Payment of the fees described in the letter agreement referred
to in Section 10.13.
4.2 Each Advance.
The Lenders shall not be required to make, continue or convert any Advance
unless on the applicable Borrowing Date or date of conversion or continuation:
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(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 Borrowing 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 Advance
shall be satisfactory to the Lenders and their counsel.
(iv) Each Borrowing Notice with respect to each such Advance
and each Conversion/Continuation Notice 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.
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,
25
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, 2003 audited consolidated financial statements
of the Company and its Subsidiaries; and
(ii) December 31, 2003 unaudited interim consolidated
financial statements of the Company and its Subsidiaries.
5.5 Material Adverse Change.
Since June 30, 2003 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
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.
26
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 Advances. 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, (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 and (d) all
applicable Lenders are able (i) under their respective internal policies and
guidelines with respect to (A) lending to borrowers located in certain foreign
jurisdictions and (B) lending in certain foreign currencies and (ii) under all
constitutions, laws, statutes, ordinances, rules, treaties, regulations, orders
of courts or governmental authorities, to lend to such new Subsidiary Borrower.
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
27
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.
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 Advances hereunder gives rise to a prohibited
transaction within the meaning of Section 406 of ERISA or Section 4975 of the
Code.
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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.
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.
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
29
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, 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 Advances for general corporate purposes, including Acquisitions and
commercial paper back up. 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.
30
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.
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.
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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.
(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)
32
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.
(v) Sales of Rate Hedging Agreements.
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; and
(v) Investments in Rate Hedging Agreements.
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:
(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
33
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,
34
provided, 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.
(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
35
inadvertently (except in the case of daylight overdrafts) drawn against
insufficient funds in the ordinary course of business.
(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 (as defined in
36
the Existing Five-Year Credit Agreement), (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, 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 Advance, 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, or nonpayment of interest upon any Loan or of any facility 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 Existing
Five-Year 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 beyond any
applicable grace period with respect thereto, 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
37
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 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
38
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.
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 shall automatically terminate and the Obligations shall
immediately become due and payable without any election or action on the part of
the Administrative Agent or any Lender. If any other Default occurs and is
continuing, the Required Lenders (or the Administrative Agent with the consent
of the Required Lenders) may terminate or suspend the obligations of the Lenders
to make Loans hereunder, 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.
If, within 60 days after acceleration of the maturity of the Obligations
or termination of the obligations of the Lenders to make Loans 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:
39
(i) Extend the final maturity of any Loan or postpone any
regularly scheduled payment of principal of any Loan or forgive all or any
portion of the principal amount thereof or any accrued interest or accrued fees,
or reduce the rate or extend the time of payment of interest or fees thereon.
(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 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. 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 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 an Advance 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 and the Lenders until the later of (a) the
Facility Termination Date and (b) the date on which the Obligations have been
paid in full.
40
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 Advances herein contemplated.
9.2 Governmental Regulation.
Anything contained in this Agreement to the contrary notwithstanding, no
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 and the Lenders and supersede all prior
agreements and understandings among the Borrowers, the Administrative Agent 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 Arrangers 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 Arrangers 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
Arrangers in connection with the preparation, investigation, negotiation,
execution, delivery, syndication, review, amendment, modification, and
administration of the
41
Loan Documents, whether incurred prior to or subsequent to the Closing Date. The
Borrowers also agree to reimburse the Administrative Agent, the Lead Arrangers
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 Arrangers and the Lenders, which attorneys may be
employees of the Administrative Agent, the Lead Arrangers or the Lenders) paid
or incurred by the Administrative Agent, the Lead Arrangers 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 Arrangers 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 Arrangers 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 Advance
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 and
the Administrative Agent on the other hand shall be solely that of borrower and
lender. Neither the
42
Administrative Agent, the Lead Arrangers 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 Arrangers 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 Arrangers 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 negligence or willful misconduct of the party from which
recovery is sought. Neither the Administrative Agent, the Lead Arrangers 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.
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 Advances provided for herein.
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ARTICLE X.
THE AGENT
10.1 Appointment; Nature of Relationship.
Wachovia 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 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
44
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 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.
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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 and the Commitments.
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 for 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
46
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 Arrangers 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 Arrangers 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 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
47
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, Wachovia Capital Markets, LLC and
the Administrative Agent pursuant to that certain letter agreement dated March
2, 2004 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
Arrangers, etc.
Neither the Syndication Agents, the Documentation Agents nor the Lead
Arrangers 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
48
not collected or 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 Loans (other than payments received pursuant to Section 3.1, 3.2, 3.4 or
3.5) in a greater proportion than that received by any other Lender, such Lender
agrees, promptly upon demand, to purchase a portion of the Loans held by the
other Lenders so that after such purchase each Lender will hold its Pro Rata
Share of the Loans. 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 Loans. 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.
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12.2 Participations.
12.2.1. Permitted Participants; Effect.
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 Loan
owing to 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 Loans
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 Advance 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 Advance 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 Advance or Commitment,
releases the Company as guarantor of any such Loan or releases any of the
collateral, if any, securing any such Advance.
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.
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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 shall
be required (which consents shall not be unreasonably withheld or delayed) 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. The assignor shall give prompt written notice to the Company of any
assignment becoming effective without the consent of the Company. 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).
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 Loans 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 Loans 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
51
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).
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.
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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.
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
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.
53
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 OR
ANY LENDER TO BRING PROCEEDINGS AGAINST ANY BORROWER IN THE COURTS OF ANY OTHER
JURISDICTION. ANY JUDICIAL PROCEEDING BY ANY BORROWER AGAINST THE ADMINISTRATIVE
AGENT OR ANY LENDER OR ANY AFFILIATE OF THE ADMINISTRATIVE AGENT 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.
15.3 WAIVER OF JURY TRIAL.
THE BORROWERS, THE ADMINISTRATIVE AGENT 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.
54
IN WITNESS WHEREOF, the Borrowers, the Lenders and the Administrative
Agent have executed this Agreement as of the date first above written.
CARDINAL HEALTH, INC.
By: /s/ Richard J. Miller
------------------------------------------
Name: Richard J. Miller
Title: Executive Vice President and
Chief Financial Officer
By: /s/ Donna Brandin
------------------------------------------
Name: 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
[Signature Pages Continue]
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent and as Lender
By: /s/ Glenn F. Edwards
------------------------------------------
Name: Glenn F. Edwards
Title: Managing Director
Charlotte Plaza, CP-8
201 South College Street
Charlotte, North Carolina 28288-0680
Attention: Syndication Agency Services
Telephone No.: (704) 374-2698
Telecopy No.: (704) 383-0288
[Signature Pages Continue]
BANK ONE, NA, as Syndication Agent and as
Lender
By: /s/ Richard J. Johnsen
------------------------------------------
Name: 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
[Signature Pages Continue]
BANK OF AMERICA, N.A., as Syndication Agent
and as Lender
By: /s/ James W. Ford
------------------------------------------
Name: James W. Ford
Title: Managing Director
NC1-007-17-11
100 North Tryon Street
Charlotte, NC 28255
BARCLAYS BANK PLC,
as Documentation Agent and as Lender
By: /s/ L. Peter Yetman
------------------------------------------
Name: L. Peter Yetman
Title: Director
200 Park Avenue
New York, NY 10166
DEUTSCHE BANK SECURITIES INC.
As Documentation Agent
DEUTSCHE BANK AG NEW YORK BRANCH
as Lender
By: /s/ Thomas A. Foley
------------------------------------------
Name: Thomas A. Foley
Title: Director
By: /s/ Patrick Dutilly
------------------------------------------
Name: Patrick Dutilly
Title: Vice President
60 Wall St.
New York, New York, 10005
Attention: Patrick Dutilly
Phone: 212-250-6696
Fax: 212-797-4344
UBS LOAN FINANCE LLC, as Lender
By: /s/ Wilfred V. Saint
-------------------------------------------
Name: Wilfred V. Saint
Title: Director, Banking Products
Services, US
By: /s/ Joselin Fernandes
-------------------------------------------
Name: Joselin Fernandes
Title: Associate Director, Banking Products
Services, US
677 Washington Boulevard
Stamford CT 06901
WILLIAM STREET COMMITMENT CORPORATION
(Recourse only to assets of William Street
Commitment Corporation), as Lender
By: /s/ Jennifer Hill
------------------------------------------
Name: Jennifer Hill
Title: CFO
Insert Address for Notices
85 Broad Street
New York, NY 10004
[Signature Pages Continue]
MERRILL LYNCH BANK USA, as Lender
By: /s/ Louis Alder
------------------------------------------
Name: Louis Alder
Title: Director
15 West South Temple, Suite 300
Salt Lake City, UT 84101
Attn: Frank Stepan
[Signature Pages Continue]
MORGAN STANLEY BANK, as Lender
By: /s/ Daniel Twenge
------------------------------------------
Name: Daniel Twenge
Title: Vice President
Address for Notices:
1633 Broadway, 25th Floor
New York, New York 10019
Attn: Larry Benison / Min Jo
Telephone: 212-537-1439 / 1381
Facsimile: 212-537-1867 / 1866
[Signature Pages Continue]
SUNTRUST BANK
as Lender
By: /s/ William D. Priester
------------------------------------------
Name: William D. Priester
Title: Director
201 Fourth Avenue North, 3rd Floor
Nashville, TN 37219
THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH
as Lender
By: /s/ Shinichiro Munechika
------------------------------------------
Name: Shinichiro Munechika
Title: Deputy General Manager
227 West Monroe Street, Suite 2300
Chicago, Illinois 60606
Attention: William J. Murray
Telephone No.: (312) 696-4653
Telecopy No.: (312) 696-4535
PNC BANK, NATIONAL ASSOCIATION,
as Lender
By: /s/ Jeffrey L. Stein
------------------------------------------
Name: Jeffrey L. Stein
Title: Vice President
500 First Avenue
Pittsburgh, PA 15219
Attention: Sherri Collins
Telephone: (412) 768-7653
Fax: (412) 768-4586
ABN AMRO BANK N.V., as Lender
By: /s/ Eric Oppenheimer
------------------------------------------
Name: Eric Oppenheimer
Title: Vice President
By: /s/ Todd J. Miller
------------------------------------------
Name: Todd J. Miller
Title: Assistant Vice President
Address for Notices
55 East 52nd Street
New York, NY 10055
[Signature Pages Continue]
KEY BANK NATIONAL ASSOCIATION,
as Lender
By: /s/ Christopher A. Swindell
------------------------------------------
Name: Christopher A. Swindell
Title: Portfolio Manager
1211 SW 5th Avenue, Suite 400
Mailcode: OR-20-21-0444
Portland, OR 97204
[Signature Pages Continue]
NATIONAL CITY BANK
as Lender
By: /s/ Thomas E. Redmond
------------------------------------------
Name: Thomas E. Redmond
Title: Senior Vice President
155 E. Broad Street
Locater 16-0077
Columbus, OH 43251
BANK INTESA S.P.A., as Lender
By: /s/ F. Maffei
------------------------------------------
Name: F. Maffei
Title: VP
By: /s/ Anthony F. Giobbi
------------------------------------------
Name: Anthony F. Giobbi
Title: First Vice President
Insert Address for Notices
One William St.
New York, NY 10004
[Signature Pages Continue]
THE BANK OF NEW YORK, as Lender
By: /s/ Patrick Vatel
------------------------------------------
Name: Patrick Vatel
Title: Vice President
One Wall Street
8th Floor
New York, N.Y.10286
Attention: Patrick Vatel
Telephone: (212) 635-7882
Fax: (212) 635-1481
[Signature Pages Continue]
FIFTH THIRD BANK (CENTRAL OHIO),
as Lender
By: /s/ Christopher D. Jones
------------------------------------------
Name: Christopher D. Jones
Title: Vice President
21 East State Street
MD: 468371
Columbus, Ohio 43215
Attention: Christopher Jones
Telephone: 614-744-5982
Fax: 614-744-7606
[Signature Pages Continue]
U.S. BANK NATIONAL ASSOCIATION,
as Lender
By: J. Todd Price
------------------------------------------
Name: J. Todd Price
Title: Vice President
175 South Third Street, Fourth Floor
Columbus, OH 43215
ALLIED IRISH BANKS P.L.C., as Lender
By: /s/ Michael Doyle
------------------------------------------
Name: Michael Doyle
Title: Senior Vice President
Bankcentre
Ballsbridge
Dublin 4
Ireland
EXHIBITS
EXHIBIT A
FORM OF OPINION
[PRINT ON CARDINAL HEALTH, INC. LETTERHEAD]
March __, 2004
The Administrative Agent and the Lenders who are
parties to the Credit Agreement described below.
Subject: CARDINAL HEALTH, INC. -- 2004 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 2004 Five-Year Credit Agreement dated as of March __, 2004
(the "Agreement"), among the Company, the Subsidiary Borrowers, the Lenders
named therein, and Wachovia Bank, National Association, 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;
(f) An executed copy of each of the following notes:
(i) a note from the Company to PNC Bank, National
Association dated March __, 2004;
(ii) a note from the Company to SunTrust Bank dated March __,
2004; and
(iii) a note from the Company to Wachovia Bank, National
Association dated March __, 2004;
(g) An executed copy of the Guaranty Agreement of the Company
dated as of March __, 2004;
(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 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.
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)(10) 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.
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 under applicable
law; but in my opinion, such law does not, subject to the
other qualifications and exceptions stated elsewhere in this
opinion, make the remedies afforded by the Loan Documents
inadequate for the practical realization of the principal
benefits purported to be provided thereby.
(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 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 Syndication Agent and Co-Lead Arranger's principal office is
located in Illinois;
(ii) The Loan Documents are being executed by certain of the Lenders in
Illinois;
(iii) 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
(iv) 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.
Sincerely,
Steve Falk, Associate General Counsel -
Corporate Governance and Mergers &
Acquisitions
EXHIBIT B
COMPLIANCE CERTIFICATE
Date: March 16th 2004
Wachovia Bank, National Association
301 South College Street
Charlotte, NC 28288
To Whom It May Concern:
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 2004 Five-Year
Credit Agreement, dated March 19th, 2004 by and among the Company, certain
subsidiaries of the Company named therein, Wachovia Bank, National Association,
as Administrative Agent, 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,
______________________________________________
Donna Brandin, SVP and Treasurer
SECTION 6.16 MINIMUM NET WORTH
Minimum Net Worth > $4,100,000,000
Net Worth reported as of 12/31/03 = $7,592,300,000
EXHIBIT C
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between (the "Assignor")
and (the "Assignee") is dated as of __________, _____. The parties hereto agree
as follows:
1) PRELIMINARY STATEMENT. The Assignor is a party to a 2004 Five-Year
Credit Agreement dated as of March __, 2004 (the "Agreement") among the Company,
the Subsidiary Borrowers, the Lenders named therein, and Wachovia Bank, National
Association, 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 Loans, 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
Loans 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 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 Loans 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.
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 that 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.
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.
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
________
a. Assignee's percentage
of Facility purchased
under the Assignment
Agreement *** ____%
b. Amount of Facility
purchased under the
Assignment Agreement
*** $____ __________________________________
4) Assignee's Commitment (or Loans
with respect to terminated
Commitments) purchased hereunder: __________________________________
5) Proposed Effective Date: ______________________________________
N/A
6) Non-standard Recordation Fee [Assignor/Assignee to pay 100% of fee]
Arrangement [Fee waived by Administrative Agent]
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By:___________________________________ By:__________________________________
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
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.:_______________________
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: ______________________________________________
________________________________________________________________________________
EXHIBIT D
LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
To Wachovia Bank, National Association,
as Administrative Agent (the "Administrative Agent") under the Credit Agreement
described below.
Re: 2004 Five-Year Credit Agreement, dated March __, 2004 (as the same may be
amended or modified, the "Credit Agreement"), among Cardinal Health, Inc.
(the "Company"), the Lenders named therein 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 2.15 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
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 __, 2004 (which,
as it may be amended or modified and in effect from time to time, is herein
called the "Agreement"), among the Borrower, the Subsidiary Borrowers and the
lenders party thereto, including the Lender, and Wachovia Bank, National
Association, 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.
This Note shall be governed by the internal law, and not the law of conflicts,
of the State of Illinois.
By: _______________________________
Print Name:________________________
Title:_____________________________
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF ______________,
DATED ______________,
Principal Maturity of Principal
Date Amount of Loan Interest Period Amount Paid Unpaid Balance
- --------------------------------------------------------------------------------
SCHEDULES
PRICING SCHEDULE
The Applicable Margin shall be as determined by the matrix below:
LEVEL I LEVEL II* LEVEL III LEVEL IV LEVEL V
< or = BBB,
REFERENCE RATING > or = A+, A1 A, A2, AND A-, A3 AND BBB+, Baa1 Baa2 AND
AND A+ A A- AND BBB+ BBB
Facility Fee 7.0 8.0 9.0 12.5 15.0
Eurodollar Applicable Margin 18.0 22.0 31.0 37.5 47.5
First Drawn Cost 25.0 30.0 40.0 50.0 62.5
Utilization fee > 50% 10.0 10.0 10.0 12.5 12.5
Fully Drawn Cost 35.0 40.0 50.0 62.5 75.0
* Initial pricing level based on the Company's current A/A2/A senior unsecured
long term debt ratings.
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 Al or better, the Company's S&P Rating is A+ or better and the
Company's Fitch 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, the Company's S&P Rating is A or better, and the Company's Fitch 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, the Company's S&P Rating is A- or better, and the
Company's Fitch 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 Baal or better, the Company's S&P rating is BBB + or
better, and the Company's Fitch 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.
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, S&P
and Fitch 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, no S&P Rating and no Fitch Rating, Level
V Status shall exist.
In the event that a split occurs between the three (3) ratings, then the
following shall apply:
(a) if two (2) of the three (3) ratings established by or deemed to have
been established by S&P, Moody's or Fitch fall within the same Level, but one
(1) rating falls within a different Level, the Applicable Margin shall be based
upon the two (2) ratings that fall within the same Level; and
(b) if all three (3) ratings established by or deemed to have been
established by S&P, Moody's or Fitch each fall within a different Level, the
Applicable Margin shall be based upon the middle rating of the three (3).
"Moody's Rating" means, at any time, the rating issued by Moody's 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 S&P, and then in effect
with respect to the Company's senior unsecured long-term debt securities without
third-party credit enhancement.
"Fitch Rating" means, at any time, the rating issued by Fitch and then in effect
with respect to the Company's senior unsecured long-term debt securities without
third-party credit enhancement.
"Status" means Level I Status, Level II Status, Level III Status, Level IV
Status, or Level V Status.
SCHEDULE A-1
LENDER COMMITMENTS
COMMITMENT
LENDER AMOUNT
------ ------------
Wachovia Bank, National Association $ 71,250,000
Bank One, NA $ 62,500,000
Bank of America, N.A $ 51,250,000
Barclays Bank PLC $ 51,250,000
Deutsche Bank AG, New York Branch $ 51,250,000
UBS Loan Finance LLC $ 51,250,000
William Street Commitment Corporation $ 50,000,000
Merrill Lynch Bank USA $ 50,000,000
Morgan Stanley Bank $ 50,000,000
SunTrust Bank $ 42,500,000
The Bank of Tokyo-Mitsubishi, Ltd., Chicago Branch $ 38,750,000
PNC Bank, National Association $ 32,500,000
ABN AMRO Bank N.V $ 30,000,000
Key Bank National Association $ 30,000,000
National City Bank $ 25,000,000
Banca Intesa S.p.A $ 15,000,000
The Bank of New York $ 15,000,000
Fifth Third Bank (Central Ohio) $ 12,500,000
U.S. Bank National Association $ 12,500,000
Allied Irish Banks p.l.c $ 7,500,000
------------
TOTAL $750,000,000
SCHEDULE 1
LIST OF CARDINAL HEALTH, INC. SUBSIDIARIES
(IN ALPHABETICAL ORDER - AS OF JANUARY 31, 2004)
(SEE SECTIONS 5.8 AND 6.11)
STATE / JURISDICTION % OF OWNERSHIP BY CARDINAL
NO. SUBSIDIARY NAME OF INCORPORATION HEALTH, INC.
- --- --------------- ---------------- ------------
(*UNLESS OTHERWISE INDICATED,
THE OWNERSHIP SHALL BE DIRECTLY
OR INDIRECTLY 100% OWNED BY
CARDINAL HEALTH, INC.)
1. Abilene Nuclear, LLC Delaware - Cardinal Health, Inc. indirectly
owns 80%
2. Academy of Managed Care Medicine, L.L.C. Delaware *
3. Alcon - Building Branch Puerto Rico *
4. Allcaps Weichgelatinkapseln GmbH & Co. KG Germany *
5. Allcaps Weichgelatinkapseln Verwaltungs GmbH Germany *
6. Allegiance (BVI) Holdings Co. Ltd. British Virgin Islands *
7. Allegiance Corporation Delaware *
8. Allegiance Healthcare (Labuan) Pte. Ltd. Malaysia *
9. Allegiance Healthcare Deutschland Holding GmbH Germany *
10. Allegiance Healthcare Distribution GmbH Austria *
11. Allegiance Healthcare Holding B.V. Netherlands *
12. Allegiance Healthcare International GmbH Austria *
13. Allegiance K. K. Japan *
14. Allegiance Labuan Holdings Pte. Ltd. Malaysia *
15. Alsyn Corporativos, S.A. de C.V. Mexico *
16. Anem-IX S.A.R.L. France *
17. API (Suppliers) Limited United Kingdom - Cardinal Health, Inc. indirectly
owns 31.8%
18. Arclight Systems LLC Delaware - Cardinal Health, Inc. indirectly
has a 36.2% equity ownership
19. Armand Scott, LLC Delaware *
20. Aurum Pharmaceuticals Limited United Kingdom *
21. Bauer Branch Dominican Republic *
22. Beckloff Associates, Inc. Kansas *
STATE / JURISDICTION % OF OWNERSHIP BY CARDINAL
NO. SUBSIDIARY NAME OF INCORPORATION HEALTH, INC.
- --- --------------- ---------------- ------------
(*UNLESS OTHERWISE INDICATED,
THE OWNERSHIP SHALL BE DIRECTLY
OR INDIRECTLY 100% OWNED BY
CARDINAL HEALTH, INC.)
23. C. International, Inc. Ohio *
24. Cardal II, LLC Delaware *
25. Cardal, Inc. Ohio *
26. Cardinal Distribution Holding Corporation - I Nevada *
27. Cardinal Distribution Holding Corporation - II Nevada *
28. Cardinal Health (Bermuda) 224 Ltd. Bermuda *
29. Cardinal Health 100, Inc. Indiana *
(f/k/a Bindley Western Industries, Inc.)
30. Cardinal Health 101, Inc. Delaware *
(f/k/a Cardinal Health Provider Pharmacy Services, Inc.)
31. Cardinal Health 102, Inc. Ohio *
(f/k/a Cardinal Health Staffing Network, Inc.)
32. Cardinal Health 103, Inc. Mississippi *
(f/k/a Cardinal Southeast, Inc.)
33. Cardinal Health 104 LP Ohio *
(f/k/a Cardinal Distribution LP)
34. Cardinal Health 105, Inc. Ohio *
(f/k/a CORD Logistics, Inc.)
35. Cardinal Health 106, Inc. Massachusetts *
(f/k/a James W. Daly, Inc.)
36. Cardinal Health 107, Inc. Ohio *
(f/k/a National Pharmpak Services, Inc.)
37. Cardinal Health 108, Inc. Tennessee *
(f/k/a National Specialty Services, Inc.)
38. Cardinal Health 109, Inc. Texas *
(f/k/a Owen Healthcare, Inc.)
39. Cardinal Health 110, Inc. Delaware *
(f/k/a Whitmire Distribution Corporation)
40. Cardinal Health 111, LLC Delaware *
STATE / JURISDICTION % OF OWNERSHIP BY CARDINAL
NO. SUBSIDIARY NAME OF INCORPORATION HEALTH, INC.
- --- --------------- ---------------- ------------
(*UNLESS OTHERWISE INDICATED,
THE OWNERSHIP SHALL BE DIRECTLY
OR INDIRECTLY 100% OWNED BY
CARDINAL HEALTH, INC.)
41. Cardinal Health 2, Inc. Nevada *
(f/k/a The Griffin Group, Inc.)
42. Cardinal Health 200, Inc. Delaware *
(f/k/a Allegiance Healthcare Corporation)
43. Cardinal Health 201, Inc. Delaware *
(f/k/a Allegiance Healthcare International, Inc.)
44. Cardinal Health 222 (Thailand) Ltd. Thailand *
(f/k/a Allegiance Healthcare (Thailand) Ltd.)
45. Cardinal Health 3, Inc. Nevada *
(f/k/a Red Wing Data Corporation)
46. Cardinal Health 301, Inc. Delaware *
(f/k/a Pyxis Corporation)
47. Cardinal Health 302, LLC Delaware *
48. Cardinal Health 400, Inc. Illinois *
(f/k/a Automatic Liquid Packaging, Inc.)
49. Cardinal Health 406, LLC Delaware *
50. Cardinal Health 409, Inc. Delaware *
(f/k/a R.P. Scherer Corporation)
51. Cardinal Health 411, Inc. Ohio *
(f/k/a RedKey, Inc.)
52. Cardinal Health 412, Inc. Georgia *
(f/k/a Central Pharmacy Services, Inc.)
53. Cardinal Health 414, Inc. Delaware *
(f/k/a Syncor International Corporation)
54. Cardinal Health 415, Inc. Delaware *
(f/k/a Syncor Management Corporation)
55. Cardinal Health 416, Inc. Delaware *
(f/k/a PCI Services II, Inc.)
56. Cardinal Health 417, Inc. Delaware *
(f/k/a PCI Services III, Inc.)
57. Cardinal Health 418, Inc. Delaware *
(f/k/a Syncor Pharmaceuticals, Inc.)
STATE / JURISDICTION % OF OWNERSHIP BY CARDINAL
NO. SUBSIDIARY NAME OF INCORPORATION HEALTH, INC.
- --- --------------- ---------------- ------------
(*UNLESS OTHERWISE INDICATED,
THE OWNERSHIP SHALL BE DIRECTLY
OR INDIRECTLY 100% OWNED BY
CARDINAL HEALTH, INC.)
58. Cardinal Health 419, LLC Delaware *
(f/k/a Syncor Radiation Management, LLC)
59. Cardinal Health 420, LLC Delaware *
(f/k/a Syncor Advanced Isotopes, LLC)
60. Cardinal Health 421 Limited Partnership Scotland *
61. Cardinal Health 421, Inc. Delaware *
(f/k/a RPS Technical Services, Inc.)
62. Cardinal Health 5, LLC Delaware *
63. Cardinal Health 6, Inc. Nevada *
(f/k/a Physicians Purchasing, Inc.)
64. Cardinal Health Argentina 400 S.A.I.C. Argentina *
(f/k/a R.P. Scherer Argentina S.A.I.C.)
65. Cardinal Health Australia 200 Pty Ltd Australia *
(f/k/a Allegiance Healthcare Pty Ltd)
66. Cardinal Health Australia 300 Pty Ltd Australia *
(f/k/a Axiom Healthcare Services Pty. Ltd.)
67. Cardinal Health Australia 401 Pty Ltd Australia *
(f/k/a R.P. Scherer Holdings Pty. Ltd.)
68. Cardinal Health Belgium 202 S.P.R.L. Belgium *
(f/k/a Allegiance S.P.R.L.)
69. Cardinal Health Brasil 402 Ltda. Brazil *
(f/k/a R.P. Scherer do Brasil Encapsulacoes, Ltda.)
70. Cardinal Health Canada 204, Inc. Canada *
(f/k/a Allegiance Healthcare Canada Inc.)
71. Cardinal Health Canada 301, Inc. Canada *
(f/k/a H.E.N. Inc.)
72. Cardinal Health Canada 302, Inc. Canada *
(f/k/a Pyxis Healthcare Systems, Inc.)
73. Cardinal Health Canada 403, Inc. Canada *
(f/k/a R.P. Scherer Canada Inc.)
74. Cardinal Health Capital Corporation Ohio *
75. Cardinal Health Corporate Solutions, LLC Nevada *
(f/k/a Cardinal Health 4, LLC)
STATE / JURISDICTION % OF OWNERSHIP BY CARDINAL
NO. SUBSIDIARY NAME OF INCORPORATION HEALTH, INC.
- --- --------------- ---------------- ------------
(*UNLESS OTHERWISE INDICATED,
THE OWNERSHIP SHALL BE DIRECTLY
OR INDIRECTLY 100% OWNED BY
CARDINAL HEALTH, INC.)
76. Cardinal Health D.R. 203 Ltd. Bermuda *
[f/k/a Allegiance International Manufacturing (Bermuda) Ltd.]
77. Cardinal Health Finance United Kingdom *
78. Cardinal Health France 205 France *
(f/k/a Allegiance Sante S.A.S.)
79. Cardinal Health France 404 S.A. France - Cardinal Health, Inc. indirectly
(f/k/a R.P. Scherer S.A.) owns 99.85%
80. Cardinal Health Funding, LLC Nevada *
81. Cardinal Health GbR Germany *
82. Cardinal Health Germany 206 GmbH Germany *
(f/k/a Allegiance Healthcare Deutschland GmbH)
83. Cardinal Health Germany 405 GmbH Germany *
(f/k/a Cardinal Health Germany GmbH)
84. Cardinal Health Holding GmbH Germany *
85. Cardinal Health Holding International, Inc. New Jersey *
86. Cardinal Health Holding Pty Ltd Australia *
87. Cardinal Health Holdings Limited United Kingdom *
88. Cardinal Health International Ventures, Ltd. Barbados *
89. Cardinal Health Ireland 406 Ltd. Ireland *
(f/k/a Cardinal Health Technologies Ltd.)
90. Cardinal Health Ireland 419 Limited Ireland *
91. Cardinal Health Italy 208 S.r.l. Italy *
(f/k/a Allegiance Medica S.R.L.)
92. Cardinal Health Italy 407 S.p.A. Italy *
(f/k/a R.P. Scherer S.p.A.)
93. Cardinal Health Japan 408 K.K. Japan *
(f/k/a R.P. Scherer K.K.)
94. Cardinal Health Lease Funding 2002A, LLC Delaware *
STATE / JURISDICTION % OF OWNERSHIP BY CARDINAL
NO. SUBSIDIARY NAME OF INCORPORATION HEALTH, INC.
- --- --------------- ---------------- ------------
(*UNLESS OTHERWISE INDICATED,
THE OWNERSHIP SHALL BE DIRECTLY
OR INDIRECTLY 100% OWNED BY
CARDINAL HEALTH, INC.)
95. Cardinal Health Lease Funding 2002AQ, LLC Delaware *
96. Cardinal Health Lease Funding 2003A, LLC Delaware *
97. Cardinal Health Lease Funding 2003AQ, LLC Delaware *
98. Cardinal Health Lease Funding 2003B, LLC Delaware *
99. Cardinal Health Lease Funding 2003BQ, LLC Delaware *
100. Cardinal Health Luxembourg 420 S.a.r.l. Luxembourg *
101. Cardinal Health Malaysia 211 Sdn. Bhd. Malaysia *
(f/k/a Allegiance Healthcare Sdn. Bhd.)
102. Cardinal Health Malta 212 Limited Malta *
(f/k/a Eurovac Limited)
103. Cardinal Health Mexico 213 S.A. de C.V. Mexico *
(f/k/a Allegiance De Mexico, S.A. de C.V.)
104. Cardinal Health N.Z. 217 Limited New Zealand *
[f/k/a Cardinal Health (N.Z.) Limited]
105. Cardinal Health Netherlands 214 B.V. Netherlands *
(f/k/a Allegiance B.V.)
106. Cardinal Health P.R. 218, Inc. Puerto Rico *
(f/k/a Allegiance PRO, Inc.)
107. Cardinal Health P.R. 409 B.V. The Netherlands *
(f/k/a Cardinal Health Manufacturing Services B. V.)
108. Cardinal Health P.R. 410, Inc. Puerto Rico *
(f/k/a PCI Services I, Inc.)
109. Cardinal Health PTS, LLC Delaware *
110. Cardinal Health Singapore 225 Pte. Ltd. Singapore *
111. Cardinal Health Singapore 303 Pte. Ltd. Singapore *
112. Cardinal Health Spain 219 S.L. Spain *
(f/k/a Allegiance S.L.)
113. Cardinal Health Sweden 220 AB Sweden *
(f/k/a Allegiance AB)
114. Cardinal Health Switzerland 221 GmbH Switzerland *
STATE / JURISDICTION % OF OWNERSHIP BY CARDINAL
NO. SUBSIDIARY NAME OF INCORPORATION HEALTH, INC.
- --- --------------- ---------------- ------------
(*UNLESS OTHERWISE INDICATED,
THE OWNERSHIP SHALL BE DIRECTLY
OR INDIRECTLY 100% OWNED BY
CARDINAL HEALTH, INC.)
(f/k/a Allegiance Healthcare GmbH)
115. Cardinal Health Switzerland 412 GmbH Switzerland *
(f/k/a Cardinal Health (Europe) GmbH)
116. Cardinal Health Switzerland 413 AG Switzerland *
[f/k/a R.P. Scherer (Europe) AG]
117. Cardinal Health Systems, Inc. Ohio *
118. Cardinal Health Technologies Switzerland GmbH Switzerland *
119. Cardinal Health Technologies, LLC Nevada *
120. Cardinal Health Trading (Shanghai) Co. Ltd. China *
121. Cardinal Health U.K. 223 Limited United Kingdom *
(f/k/a Allegiance Healthcare Limited)
122. Cardinal Health U.K. 414 Limited United Kingdom *
(f/k/a R. P. Scherer Limited)
123. Cardinal Health U.K. 415 Limited United Kingdom *
(f/k/a R.P. Scherer Holdings Limited)
124. Cardinal Health U.K. 416 Limited United Kingdom *
(f/k/a Scherer DDS Limited)
125. Cardinal Health U.K. 417 Limited United Kingdom *
(f/k/a Unipack, Ltd.)
126. Cardinal Health U.K. 418 Limited United Kingdom *
127. Cardinal Health, Inc. Ohio *
128. Cardinal.com Holdings, Inc. Nevada *
129. Cascade Development, Inc. Nevada *
130. Caseview (P.L.) Limited United Kingdom *
131. CCB, Inc. Iowa *
132. CDI Investments, Inc. Delaware *
133. Central Source, Inc. Alabama *
134. Centralia Pharmacy, Inc. Illinois *
STATE / JURISDICTION % OF OWNERSHIP BY CARDINAL
NO. SUBSIDIARY NAME OF INCORPORATION HEALTH, INC.
- --- --------------- ---------------- ------------
(*UNLESS OTHERWISE INDICATED,
THE OWNERSHIP SHALL BE DIRECTLY
OR INDIRECTLY 100% OWNED BY
CARDINAL HEALTH, INC.)
135. Centricity, LLC Delaware *
(f/k/a Boron LePore, Inc.)
136. Cirmex de Chihuahua S.A. de C.V. Mexico *
137. Cirpro de Delicias S.A. de C.V. Mexico *
138. CMI Net, Inc. Delaware *
139. Comprehensive Medical Imaging Centers, Inc. Delaware *
140. Comprehensive Medical Imaging, Inc. Delaware *
141. Comprehensive Medical Imaging--Anaheim Hills, Inc. Delaware *
142. Comprehensive Medical Imaging--Apple Valley, Inc. Delaware *
143. Comprehensive Medical Imaging--Bakersfield, Inc. Delaware *
144. Comprehensive Medical Imaging--Biltmore, Inc. Delaware *
145. Comprehensive Medical Imaging--Boynton Beach, Inc. Delaware *
146. Comprehensive Medical Imaging--Downey, Inc. Delaware *
147. Comprehensive Medical Imaging--Encino, Inc. Delaware *
148. Comprehensive Medical Imaging--Fairfax, Inc. Delaware *
149. Comprehensive Medical Imaging--Fort Lauderdale, Inc. Delaware *
150. Comprehensive Medical Imaging--Fremont, Inc. Delaware *
151. Comprehensive Medical Imaging--Hesperia, Inc. Delaware *
152. Comprehensive Medical Imaging--Huntington Beach, Inc. Delaware *
153. Comprehensive Medical Imaging--Palm Beach Gardens, Inc. Delaware *
154. Comprehensive Medical Imaging--Palm Springs, Inc. Delaware *
155. Comprehensive Medical Imaging--Rancho Cucamonga, Inc. Delaware *
156. Comprehensive Medical Imaging--Rancho Mirage, Inc. Delaware *
157. Comprehensive Medical Imaging--Salisbury, Inc. Delaware *
158. Comprehensive Medical Imaging--San Francisco, Inc. Delaware *
159. Comprehensive Medical Imaging--Santa Maria, Inc. Delaware *
160. Comprehensive Medical Imaging--Sherman Oaks, Inc. Delaware *
161. Comprehensive Medical Imaging--Tempe, Inc. Delaware *
STATE / JURISDICTION % OF OWNERSHIP BY CARDINAL
NO. SUBSIDIARY NAME OF INCORPORATION HEALTH, INC.
- --- --------------- ---------------- ------------
(*UNLESS OTHERWISE INDICATED,
THE OWNERSHIP SHALL BE DIRECTLY
OR INDIRECTLY 100% OWNED BY
CARDINAL HEALTH, INC.)
162. Comprehensive Medical Imaging--Van Nuys, Inc. Delaware *
163. Comprehensive Medical Imaging--Victorville, Inc. Delaware *
164. Comprehensive Medical Imaging--Westlake Village, Inc. Delaware *
165. Comprehensive OPEN MRI - Carmichael, Inc. Delaware *
166. Comprehensive OPEN MRI -- Carmichael/Folsom, LLC California *
167. Comprehensive OPEN MRI--East Mesa, Inc. Delaware *
168. Comprehensive OPEN MRI--Folsom, Inc. Delaware *
169. Comprehensive OPEN MRI--Fullerton, Inc. Delaware *
170. Comprehensive OPEN MRI--Garland, Inc. Delaware *
171. Comprehensive OPEN MRI--Laguna Hills, Inc. Delaware *
172. Comprehensive OPEN MRI--Sacramento, Inc. Delaware *
173. Consumer2Patient, LLC. Delaware *
174. Converters Branch Dominican Republic *
175. Convertors de Mexico S.A. de C.V. Mexico *
176. Corona Regional Medical Imaging, LLC Delaware - Cardinal Health, Inc. indirectly
owns 65%
177. CR Medicap, Inc. Iowa *
178. Craig Generics Limited United Kingdom *
179. Crossject S.A. France - Cardinal Health, Inc. indirectly
owns 5.2%
180. Daniels Pharmaceuticals Limited United Kingdom - Cardinal Health, Inc. indirectly
owns 50%
181. Desert PET, LLC California - Cardinal Health, Inc. indirectly
owns 99%
182. Diagnostic Purchasing Group, Inc. Delaware *
183. Dover Communications, LLC Delaware *
(f/k/a BLP-Dover Acquisition Corp.)
184. DuQuoin Pharmacy, Inc. Illinois *
185. Dutch American Manufacturers (D.A.M.) B.V. Netherlands *
STATE / JURISDICTION % OF OWNERSHIP BY CARDINAL
NO. SUBSIDIARY NAME OF INCORPORATION HEALTH, INC.
- --- --------------- ---------------- ------------
(*UNLESS OTHERWISE INDICATED,
THE OWNERSHIP SHALL BE DIRECTLY
OR INDIRECTLY 100% OWNED BY
CARDINAL HEALTH, INC.)
186. East Iowa Pharmacies, Inc. Iowa *
187. EGIS Holdings, Inc. Delaware *
188. Ellipticare, LLC Delaware *
189. EPIC Insurance Company Vermont *
190. Eurochem Limited United Kingdom *
191. European Pharmaceuticals Group Ltd. United Kingdom *
192. Europharm of Worthing Limited United Kingdom *
193. F&F Holding GmbH Germany *
194. Federa France France *
195. Federa Limoges France *
196. Federa S.A. Belgium *
197. Freeman Pharmaceuticals Limited United Kingdom *
198. Glacier Guaranty Corporation Vermont *
199. Glamorgan Pharmaceuticals Limited United Kingdom *
200. Global Healthcare Exchange, LLC Delaware - Cardinal Health, Inc. indirectly
owns approximately 6%
201. Grand Avenue Pharmacy, Inc. Iowa *
202. Griffin Capital, LLC Nevada *
203. Griffin Group Document Management Services, Inc. Nevada *
(f/k/a Supplyline Holdings, Inc.)
204. Herd Mundy Richardson (Holdings) Limited United Kingdom *
205. Herd Mundy Richardson Limited United Kingdom *
206. Homecare (North-West) Limited United Kingdom *
207. IMI Diagnostic Center, Inc. Delaware *
208. IMI of Arlington, Inc. Delaware *
209. IMI of Boca Raton, Inc. Delaware *
210. IMI of Kansas City, Inc. Delaware *
STATE / JURISDICTION % OF OWNERSHIP BY CARDINAL
NO. SUBSIDIARY NAME OF INCORPORATION HEALTH, INC.
- --- --------------- ---------------- ------------
(*UNLESS OTHERWISE INDICATED,
THE OWNERSHIP SHALL BE DIRECTLY
OR INDIRECTLY 100% OWNED BY
CARDINAL HEALTH, INC.)
211. IMI of Miami, Inc. Delaware *
212. IMI of North Miami Beach, Inc. Delaware *
213. IMI-NET, Inc. Delaware *
214. Impharm Nationwide Limited United Kingdom *
215. InGel Technologies Ltd. United Kingdom - Cardinal Health, Inc. indirectly
owns 5%
216. Inland Empire Regional PET Center, LLC California - Cardinal Health, Inc. indirectly
owns 50%
217. InteCardia-Tennessee East Catheterization, LLC North Carolina - Cardinal Health, Inc. indirectly
owns 75%
218. InteCardia-Tennessee East Diagnostic, LLC North Carolina *
219. Intercare Holdings Limited United Kingdom *
220. Intercare Investments Limited United Kingdom *
221. Intercare Pharmaceuticals Distribution Limited United Kingdom *
(f/k/a Europharm of Worthing Limited)
222. Intercare Properties Plc United Kingdom *
223. International Capsule Company S.r.l. Italy *
224. International Medical Products B.V. Netherlands *
(f/k/a Mepro Medische Produkten B.V.)
225. Iowa Falls Pharmacy, Inc. Iowa *
226. IPD Group Limited United Kingdom *
(f/k/a European Pharmaceuticals Group Limited)
227. Jefferson MRI, JV Texas *
228. Jefferson MRI--Bala, JV Texas *
229. JRG, Ltd. Iowa *
230. Killilea Development Company, Ltd. Ohio *
231. Lake Charles Pharmaceutical and Medical Equipment Supply Louisiana - Cardinal Health, Inc. has indirect
Company, L.L.C. partial ownership
232. LCO Sante France *
233. Leader Drugstores, Inc. Delaware *
234. Liberty Communications Network, LLC Delaware *
STATE / JURISDICTION % OF OWNERSHIP BY CARDINAL
NO. SUBSIDIARY NAME OF INCORPORATION HEALTH, INC.
- --- --------------- ---------------- ------------
(*UNLESS OTHERWISE INDICATED,
THE OWNERSHIP SHALL BE DIRECTLY
OR INDIRECTLY 100% OWNED BY
CARDINAL HEALTH, INC.)
(f/k/a BLP-Liberty Acquisition Corp.)
235. Los Gatos Imaging Center, JV Texas *
236. Macarthy Group Limited United Kingdom *
237. Macarthy Group Trustees Limited United Kingdom *
238. Macarthy Limited United Kingdom *
239. Macarthy's Laboratories Limited United Kingdom *
240. Managed Pharmacy Benefits, Inc. Missouri *
241. Martindale Pharmaceuticals Limited United Kingdom *
242. Medcon S.A. Luxembourg *
243. Medesta Associates, LLC Delaware *
244. Medical Diagnostic Leasing, Inc. Delaware *
245. Medical Education Systems, LLC Delaware *
246. Medical Media Communications, LLC Delaware *
247. Medicap Pharmacies Incorporated Iowa *
248. Medicine Shoppe Capital Corporation Nevada *
249. Medicine Shoppe International, Inc. Delaware *
250. Medicine Shoppe Internet, Inc. Missouri *
251. Medihealth Solutions, Inc. Iowa *
252. MediQual Systems, Inc. Delaware *
253. Meditrol Automation Systems, Inc. Texas *
254. Meditrol, Inc. Nevada *
255. Mesa MRI, JV Texas *
256. Midland Pharmacies, Inc. Iowa *
257. Moresville, Limited United Kingdom - Cardinal Health, Inc. indirectly
owns 50%
258. Mountain View MRI, JV Texas *
259. MRI Equipment Partners, Ltd. Texas - Cardinal Health, Inc. indirectly
owns 59.16%
STATE / JURISDICTION % OF OWNERSHIP BY CARDINAL
NO. SUBSIDIARY NAME OF INCORPORATION HEALTH, INC.
- --- --------------- ---------------- ------------
(*UNLESS OTHERWISE INDICATED,
THE OWNERSHIP SHALL BE DIRECTLY
OR INDIRECTLY 100% OWNED BY
CARDINAL HEALTH, INC.)
260. MRI of Woodbridge, JV Texas *
261. Multi-Medica S.A. Belgium *
262. Multipharm Limited United Kingdom *
263. Nationwide Ostomy Supplies Limited United Kingdom *
264. NewHealthCo LLC Delaware - Cardinal Health, Inc. owns 31.029%
265. OnPointe Medical Communications, LLC Delaware *
266. Owen Shared Services, Inc. Texas *
267. PCI Holdings (UK) Co. United Kingdom *
268. Pharmaceutical and Diagnostic Services, Inc. Utah - Cardinal Health, Inc. indirectly
owns 50%
269. Pharmacy Operations of New York, Inc. New York *
270. Pharmacy Operations, Inc. Delaware *
271. Pharmapar S.A. Belgium *
272. Phillipi Holdings, Inc. Ohio *
273. Phoenix Regional PET Center-Thunderbird, LLC Arizona *
274. Physicians Purchasing, Inc. Nevada *
275. Pinnacle Intellectual Property Services International, Nevada *
Inc.
276. Pinnacle Intellectual Property Services, Inc. Nevada *
277. Poweshiek Inc. Iowa *
278. Practicome Solutions, LLC Delaware *
279. Princeton Diagnostic Isotopes, Inc. West Virginia *
280. Productos Urologos Mexico S.A. de C.V. Mexico *
281. Pyxis Funding II, LLC Delaware *
282. Pyxis Funding, LLC Delaware *
283. Quiroproductos de Cuauhtemoc S.A. de C.V. Mexico *
284. R.P. Scherer (Spain) S.A. Spain *
285. R.P. Scherer DDS B.V. Netherlands *
STATE / JURISDICTION % OF OWNERSHIP BY CARDINAL
NO. SUBSIDIARY NAME OF INCORPORATION HEALTH, INC.
- --- --------------- ---------------- ------------
(*UNLESS OTHERWISE INDICATED,
THE OWNERSHIP SHALL BE DIRECTLY
OR INDIRECTLY 100% OWNED BY
CARDINAL HEALTH, INC.)
286. R.P. Scherer Egypt Egypt - Cardinal Health, Inc. indirectly
owns 10%
287. R.P. Scherer GmbH & Co. KG Germany - Cardinal Health, Inc. indirectly
owns 51.05%
288. R.P. Scherer Holdings II Limited United Kingdom *
289. R.P. Scherer Technologies, Inc. Nevada *
290. R.P. Scherer Verwaltungs GmbH Germany - Cardinal Health, Inc. indirectly
owns 51%
291. Radiopharmacy of Boise, Inc. Delaware *
292. Radiopharmacy of Northern California, Inc. California *
293. Ransdell Surgical, Inc. Kentucky *
294. RBP Pharma S.A. France - Cardinal Health, Inc. indirectly
owns 35%
295. Riverside MRI, JV Texas *
296. RxealTIME, Inc. Nevada *
297. RxPedite, LLC Ohio - Cardinal Health, Inc. indirectly
owns 50%
298. Santa Cruz Comprehensive Imaging LLC Delaware - Cardinal Health, Inc. indirectly
owns 57%
299. Santa Maria MRI, LLC California - Cardinal Health, Inc. indirectly
owns 50%
300. Scela, Inc. Delaware *
301. SFO S.A. France *
302. Sierra Radiopharmacy, LLC Nevada - Cardinal Health, Inc. indirectly
owns 51%
303. Simolo (GL) Limited United Kingdom *
304. SOS Medical System S.A.R.L. France *
305. Source Medical Corporation Canada - Cardinal Health, Inc. indirectly
owns 50% of common shares & 100%
of preferred share (1 share)
306. SRx, Inc. Iowa *
307. STI Deutschland GmbH Surgical Technologies Germany *
International
308. Strategic Implications International, LLC Delaware *
STATE / JURISDICTION % OF OWNERSHIP BY CARDINAL
NO. SUBSIDIARY NAME OF INCORPORATION HEALTH, INC.
- --- --------------- ---------------- ------------
(*UNLESS OTHERWISE INDICATED,
THE OWNERSHIP SHALL BE DIRECTLY
OR INDIRECTLY 100% OWNED BY
CARDINAL HEALTH, INC.)
309. Supplyline Technologies Limited Ireland *
310. Surgical Technologies B.V. Netherlands *
311. Surgi-Tech Europa Divisione Surgi-Tech Italia SRL Italy *
312. Syncor (Trinidad & Tobago) Unlimited Trinidad & Tobago *
313. Syncor Belgium SPRL Belgium *
314. Syncor Cardiology Services, LLC Delaware *
315. Syncor de Mexico S. de R.L. de C.V. Mexico *
316. Syncor Diagnostics Bakersfield, LLC California *
317. Syncor Diagnostics Dallas, LLC Texas *
318. Syncor Diagnostics Encino, LLC California *
319. Syncor Diagnostics Fullerton LLC California *
320. Syncor Diagnostics Laguna Hills LLC California *
321. Syncor Diagnostics Plano, LLC Texas *
322. Syncor Diagnostics Sacramento LLC California *
323. Syncor Financing Corporation Delaware *
324. Syncor Italy s.r.l. Italy *
325. Syncor Midland, Inc. Texas *
326. Syncor St. Lucia, Inc. Saint Lucia *
327. Syncor-Caribe Puerto Rico *
328. The Intercare Group Plc United Kingdom *
329. TME Arizona, Inc. Texas *
330. Toledo Pharmacy Co. Iowa *
331. Veramic S.A. Belgium *
332. Virginia Imaging Center, LLC Virginia - Cardinal Health, Inc. indirectly
owns 90%
333. Vistant Corporation Delaware *
334. Vistant Holdings, Inc. Nevada *
335. Wardwood, Inc. Iowa *
STATE / JURISDICTION % OF OWNERSHIP BY CARDINAL
NO. SUBSIDIARY NAME OF INCORPORATION HEALTH, INC.
- --- --------------- ---------------- ------------
(*UNLESS OTHERWISE INDICATED,
THE OWNERSHIP SHALL BE DIRECTLY
OR INDIRECTLY 100% OWNED BY
CARDINAL HEALTH, INC.)
336. West Texas Nuclear Pharmacy Partners Texas - Cardinal Health, Inc. indirectly
owns 50%
337. Wholesale (PI) Limited United Kingdom *
338. Yorkshire Pharmacy, Inc. Nebraska *
SUBSIDIARY BORROWERS AS OF THE CLOSING DATE
None.
SCHEDULE 3
EURODOLLAR PAYMENT OFFICES OF THE AGENT
Currency Eurodollar Payment Office
- -------- ----------------------------
Dollars Wachovia Bank, National Bank
Charlotte, North Carolina
SCHEDULE 4
LENDING INSTALLATIONS
Lender Floating Rate Loans Eurodollar Loans (list all)
------ ------------------- ---------------------------
Wachovia Bank, National Association Wachovia Bank, National Association Wachovia Bank, National Association
Bank One, N.A. Bank One, N.A., Chicago, Illinois Bank One, N.A., Chicago, Illinois
Bank of America, N.A. Bank of America, N.A. Bank of America, N.A.
Deutsche Bank AG, New York Branch Deutsche Bank AG, New York Branch Deutsche Bank AG, New York Branch
Barclays Bank PLC Barclays Bank PLC Barclays Bank PLC
UBS Loan Finance LLC UBS Loan Finance LLC UBS Loan Finance LLC
William Street Commitment Corporation William Street Commitment Corporation William Street Commitment Corporation
Merrill Lynch Bank USA Merrill Lynch Bank USA Merrill Lynch Bank USA
Morgan Stanley Bank Morgan Stanley Bank Morgan Stanley Bank
SunTrust Bank SunTrust Bank SunTrust Bank
The Bank of Tokyo-Mitsubishi, LTD., The Bank of Tokyo-Mitsubishi, LTD., The Bank of Tokyo-Mitsubishi, LTD.,
Chicago Branch Chicago Branch Chicago Branch
PNC Bank, National Association PNC Bank, National Association PNC Bank, National Association
ABN AMRO Bank N.V. ABN AMRO Bank N.V. ABN AMRO Bank N.V.
Key Bank National Association Key Bank National Association Key Bank National Association
National City Bank National City Bank National City Bank
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
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.
SCHEDULE 7
LITIGATION/CONTINGENT LIABILITIES
Those litigation/contingent liabilities items disclosed in Part II,
Item I of the Company's Form 10-Q for the quarter ended December 31, 2003
filed with the Securities and Exchange Commission on February 17, 2004.
SCHEDULE 8
PERSONS AUTHORIZED TO GIVE INSTRUCTIONS BY TELEPHONE
Richard J. Miller, EVP and Chief Financial Officer
Donna Brandin, SVP and Treasurer
Alex Choi, VP and Asst. Treasurer
Laura Warren, Director, Corporate Finance