5,750,000,000 BRIDGE CREDIT AGREEMENT by and among CVS CORPORATION, THE LENDERS PARTY HERETO, LEHMAN COMMERCIAL PAPER INC., as Administrative Agent, MORGAN STANLEY SENIOR FUNDING, INC., as Syndication Agent, and THE BANK OF NEW YORK, BANK OF AMERICA,...
EXHIBIT
10.3
CONFORMED
COPY
$5,750,000,000
BRIDGE CREDIT AGREEMENT
BRIDGE CREDIT AGREEMENT
by and
among
CVS
CORPORATION,
THE LENDERS
PARTY
HERETO,
▇▇▇▇▇▇ COMMERCIAL
PAPER INC.,
as Administrative Agent,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
SENIOR
FUNDING, INC.,
as Syndication Agent,
and
THE BANK OF
NEW YORK,
BANK OF AMERICA, N.A., and
BANK OF AMERICA, N.A., and
WACHOVIA BANK,
NATIONAL ASSOCIATION,
as Co-Documentation Agents
as Co-Documentation Agents
|
|
|
Dated
as of
March 15, 2007
|
|
|
▇▇▇▇▇▇ BROTHERS
INC.,
and
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
SENIOR
FUNDING, INC.,
as Joint Lead Arrangers and Joint Bookrunners,
as Joint Lead Arrangers and Joint Bookrunners,
TABLE OF CONTENTS
Page
Article 1
DEFINITIONS AND PRINCIPLES OF
CONSTRUCTION
| Section 1.1 | Definitions | 1 | ||
| Section 1.2 | Principles of Construction | 16 |
Article 2
AMOUNT AND
TERMS OF
LOANS
| Section 2.1 | Loans | 17 | ||
| Section 2.2 | Notice of Borrowing Loans | 18 | ||
| Section 2.3 | [Intentionally Omitted] | 18 | ||
| Section 2.4 | Use of Proceeds | 18 | ||
| Section 2.5 | Termination or Reduction of Commitments | 19 | ||
| Section 2.6 | Prepayments of Loans | 19 | ||
| Section 2.7 | Notes | 20 |
Article 3
PROCEEDS, PAYMENTS,
CONVERSIONS,
INTEREST, YIELD PROTECTION AND FEES
INTEREST, YIELD PROTECTION AND FEES
| Section 3.1 | Disbursement of the Proceeds of the Loans | 20 | ||
| Section 3.2 | Payments | 21 | ||
| Section 3.3 | Conversions; Other Matters | 22 | ||
| Section 3.4 | Interest Rates and Payment Dates | 23 | ||
| Section 3.5 | Indemnification for Loss | 24 | ||
| Section 3.6 | Reimbursement for Costs, Etc. | 25 |
-i-
| Section 3.7 | Illegality of Funding | 25 | ||
| Section 3.8 | Option to Fund; Substituted Interest Rate | 26 | ||
| Section 3.9 | Certificates of Payment and Reimbursement | 27 | ||
| Section 3.10 | Taxes; Net Payments | 27 | ||
| Section 3.11 | Facility Fee | 28 | ||
| Section 3.12 | [Intentionally Omitted] | 28 | ||
| Section 3.13 | Replacement of Lender | 28 |
Article 4
REPRESENTATIONS
AND
WARRANTIES
| Section 4.1 | Existence and Power | 29 | ||
| Section 4.2 | Authority | 29 | ||
| Section 4.3 | Binding Agreement | 30 | ||
| Section 4.4 | Litigation | 30 | ||
| Section 4.5 | No Conflicting Agreements | 30 | ||
| Section 4.6 | Taxes | 31 | ||
| Section 4.7 | Compliance with Applicable Laws; Filings | 31 | ||
| Section 4.8 | Governmental Regulations | 31 | ||
| Section 4.9 | Federal Reserve Regulations; Use of Proceeds | 31 | ||
| Section 4.10 | No Misrepresentation | 32 | ||
| Section 4.11 | Plans | 32 | ||
| Section 4.12 | Environmental Matters | 32 | ||
| Section 4.13 | Financial Statements | 33 |
-ii-
Article 5
CONDITIONS
OF LENDING —
LOANS ON THE FIRST BORROWING DATE
LOANS ON THE FIRST BORROWING DATE
| Section 5.1 | Evidence of Corporate Action | 34 | ||
| Section 5.2 | Notes | 34 | ||
| Section 5.3 | Opinion of Counsel to the Borrower | 34 | ||
| Section 5.4 | Caremark Acquisition | 34 |
Article 6
CONDITIONS
TO LENDING —
LOANS ON EACH BORROWING DATE
LOANS ON EACH BORROWING DATE
| Section 6.1 | Compliance | 35 | ||
| Section 6.2 | Requests | 35 | ||
| Section 6.3 | Loan Closings | 35 |
Article 7
AFFIRMATIVE
COVENANTS
| Section 7.1 | Legal Existence | 35 | ||
| Section 7.2 | Taxes | 36 | ||
| Section 7.3 | Insurance | 36 | ||
| Section 7.4 | Performance of Obligations | 36 | ||
| Section 7.5 | Condition of Property | 36 | ||
| Section 7.6 | Observance of Legal Requirements | 36 | ||
| Section 7.7 | Financial Statements and Other Information | 37 | ||
| Section 7.8 | Records | 38 | ||
| Section 7.9 | Authorizations | 38 |
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Article 8
NEGATIVE COVENANTS
| Section 8.1 | Subsidiary Indebtedness | 38 | ||
| Section 8.2 | Liens | 39 | ||
| Section 8.3 | Dispositions | 39 | ||
| Section 8.4 | Merger or Consolidation, Etc. | 40 | ||
| Section 8.5 | Acquisitions | 40 | ||
| Section 8.6 | Restricted Payments | 40 | ||
| Section 8.7 | Limitation on Upstream Dividends by Subsidiaries | 40 | ||
| Section 8.8 | Limitation on Negative Pledges | 41 | ||
| Section 8.9 | Ratio of Consolidated Indebtedness to Total Capitalization | 41 | ||
| Section 8.10 | Caremark Acquisition | 41 |
Article 9
DEFAULT
| Section 9.1 | Events of Default | 42 | ||
| Section 9.2 | Remedies | 44 |
Article 10
AGENT
| Section 10.1 | Appointment | 45 | ||
| Section 10.2 | Delegation of Duties | 45 | ||
| Section 10.3 | Exculpatory Provisions | 45 | ||
| Section 10.4 | Reliance by Administrative Agent | 46 | ||
| Section 10.5 | Notice of Default | 46 | ||
| Section 10.6 | Non-Reliance | 47 |
-iv-
| Section 10.7 | The Administrative Agent in Its Individual Capacity | 47 | ||
| Section 10.8 | Successor Administrative Agent | 47 | ||
| Section 10.9 | Arrangers, Co-Documentation Agents and Syndication Agent | 48 |
Article 11
OTHER PROVISIONS
| Section 11.1 | Amendments, Waivers, Etc. | 48 | ||
| Section 11.2 | Notices | 49 | ||
| Section 11.3 | No Waiver; Cumulative Remedies | 51 | ||
| Section 11.4 | Survival of Representations and Warranties | 51 | ||
| Section 11.5 | Payment of Expenses and Taxes; Indemnified Liabilities | 51 | ||
| Section 11.6 | Lending Offices | 52 | ||
| Section 11.7 | Successors and Assigns | 52 | ||
| Section 11.8 | Counterparts | 55 | ||
| Section 11.9 | Set-off and Sharing of Payments | 56 | ||
| Section 11.10 | Indemnity | 56 | ||
| Section 11.11 | Governing Law | 57 | ||
| Section 11.12 | Severability | 58 | ||
| Section 11.13 | Integration | 58 | ||
| Section 11.14 | Treatment of Certain Information | 58 | ||
| Section 11.15 | Acknowledgments | 59 | ||
| Section 11.16 | Consent to Jurisdiction | 59 | ||
| Section 11.17 | Service of Process | 59 | ||
| Section 11.18 | No Limitation on Service or Suit | 60 | ||
| Section 11.19 | WAIVER OF TRIAL BY JURY | 60 |
-v-
| Section 11.20 | Effective Date | 60 | ||
| Section 11.21 | PATRIOT Act Notice | 60 |
| EXHIBITS | ||||
| Exhibit | A | List of Commitments | ||
| Exhibit | B | Form of Note | ||
| Exhibit | C | Form of Borrowing Request | ||
| Exhibit | D-1 | Form of Opinion of Counsel to the Borrower | ||
| Exhibit | D-2 | Form of Opinion of Special Counsel to the Borrower | ||
| Exhibit | E | Form of Assignment and Acceptance Agreement |
-vi-
BRIDGE
CREDIT AGREEMENT,
dated as
of March 15, 2007, by and among CVS
CORPORATION,
a
Delaware corporation (the “Borrower”),
the
banks and other financial institutions party hereto from time to time (each
a
“Lender”
and,
collectively, the “Lenders”),
▇▇▇▇▇▇
BROTHERS INC.
and
▇▇▇▇▇▇
▇▇▇▇▇▇▇ SENIOR FUNDING, INC.,
as joint
lead arrangers and joint bookrunners (in such capacity, the “Arrangers”),
▇▇▇▇▇▇
COMMERCIAL PAPER INC.,
as
administrative agent for the Lenders (in such capacity, the “Administrative
Agent”),
▇▇▇▇▇▇
▇▇▇▇▇▇▇ SENIOR FUNDING, INC.,
as
syndication agent (in such capacity, the “Syndication
Agent”),
and
THE
BANK OF NEW YORK,
BANK
OF AMERICA, N.A.,
and
WACHOVIA
BANK, NATIONAL ASSOCIATION,
as
co-documentation agents (in such capacity, the “Co-Documentation
Agents”).
ARTICLE 1
DEFINITIONS
AND PRINCIPLES OF CONSTRUCTION
SECTION 1.1 Definitions
When
used
in any Loan Document (as defined below), each of the following terms shall
have
the meaning ascribed thereto unless the context otherwise specifically
requires:
“ABR
Advances”:
the
Loans (or any portions thereof) at such time as they (or such portions) are
made
or are being maintained at a rate of interest based upon the Alternate Base
Rate.
“Accumulated
Funding Deficiency”:
as
defined in Section 302 of ERISA.
“Acquisition”:
with
respect to any Person, the purchase or other acquisition by such Person, by
any
means whatsoever (including by devise, bequest, gift, through a dividend or
otherwise), of (a) stock of, or other equity securities of, any other
Person if, immediately thereafter, such other Person would be either a
consolidated subsidiary of such Person or otherwise under the control of such
Person, (b) any business, going concern or division or segment thereof, or
(c) the Property of any other Person other than in the ordinary course of
business, provided
that
(i) no acquisition of substantially all of the assets, or any division or
segment, of such other Person shall be deemed to be in the ordinary course
of
business and (ii) no redemption, retirement, purchase or acquisition by any
Person of the stock or other equity securities of such Person shall be deemed
to
constitute an Acquisition.
“Administrative
Agent”:
as
defined in the preamble.
“Administrative
Questionnaire”:
an
Administrative Questionnaire in a form supplied by the Administrative
Agent.
“Affected
Advance”:
as
defined in Section
3.8(b).
“Affiliate”:
with
respect to any Person at any time and from time to time, any other Person (other
than a wholly-owned subsidiary of such Person) which, at such
time
(a) controls
such Person, (b) is controlled by such Person or (c) is under common
control with such Person. The term “control”, as used in this definition with
respect to any Person, means the power, whether direct or indirect through
one
or more intermediaries, to direct or cause the direction of the management
and
policies of such Person, whether through the ownership of voting securities
or
other interests, by contract or otherwise.
“Agents”:
the
collective reference to the Co-Documentation Agents, the Syndication Agent
and
the Administrative Agent.
“Aggregate
Commitment Amount”:
at any
time, the sum of the Commitment Amounts of the Lenders at such time under this
Agreement.
“Aggregate
Available Commitments”:
at any
time, the sum of the Available Commitments of the Lenders at such time under
this Agreement.
“Aggregate
Credit Exposure”:
at any
time, the sum at such time of the aggregate Credit Exposure of the Lenders
at
such time under this Agreement.
“Agreement”:
this
Bridge Credit Agreement, as the same may be amended, supplemented or otherwise
modified from time to time.
“Alternate
Base Rate”:
for any
day, a rate per annum (rounded, if necessary, to the nearest l/100th of 1%
or,
if there is no nearest 1/100 of 1%, then to the next higher 1/100 of 1%) equal
to the greater of (a) the Prime Rate in effect on such day, and (b) ½
of 1% plus
the
Federal Funds Effective Rate in effect on such day. Any change in the Prime
Rate
due to a change in the Prime Rate or the Federal Funds Effective Rate shall
be
effective as of the opening of business on the effective day of such change
in
the Prime Rate or the Federal Funds Effective Rate, respectively.
“Applicable
Margin”:
(i) with respect to the unpaid principal balance of ABR Advances, the
applicable percentage set forth below in the column entitled “ABR Advances”,
(ii) with respect to the unpaid principal balance of Eurodollar Advances,
the applicable percentage set forth below in the column entitled “Eurodollar
Advances” and (iii) with respect to the Facility Fee, the applicable
percentage set forth below in the column entitled “Facility Fee
Rate”:
|
Pricing
Level
|
ABR
Advances
|
Eurodollar
Advances
|
Facility
Fee
Rate
|
|
Pricing
Level I
|
0%
|
0.170%
|
0.030%
|
|
Pricing
Level II
|
0%
|
0.210%
|
0.040%
|
|
Pricing
Level III
|
0%
|
0.250%
|
0.050%
|
|
Pricing
Level IV
|
0%
|
0.290%
|
0.060%
|
-2-
|
Pricing
Level
|
ABR
Advances
|
Eurodollar
Advances
|
Facility
Fee
Rate
|
|
Pricing
Level V
|
0%
|
0.320%
|
0.080%
|
|
Pricing
Level VI
|
0%
|
0.445%
|
0.105%
|
|
Pricing
Level VII
|
0%
|
0.725%
|
0.150%
|
Decreases
in the Applicable Margin resulting from a change in Pricing Level shall become
effective upon the delivery by the Borrower to the Administrative Agent of
a
notice pursuant to Section 7.7(d).
Increases in the Applicable Margin resulting from a change in Pricing Level
shall become effective on the effective date of any downgrade or withdrawal
in
the rating by ▇▇▇▇▇’▇ or S&P of the senior unsecured long term debt rating
of the Borrower.
“Approved
Fund”:
with
respect to any Lender that is a fund that invests in commercial loans, any
other
fund that invests in commercial loans and is managed or advised by the same
investment advisor as such Lender or by an Affiliate of such investment
advisor.
“Arrangers”:
as
defined in the preamble.
“Assignment
and Acceptance Agreement”:
an
assignment and acceptance agreement executed by an assignor and an assignee
pursuant to which, subject to the terms and conditions hereof and thereof,
the
assignor assigns to the assignee all or any portion of such assignor’s Loans,
Notes and Commitment, substantially in the form of Exhibit E.
“Available
Commitment”:
with
respect to any Lender at any time, an amount equal to the excess, if any,
of (a)
such Lender’s Commitment then in effect over (b) such Lender’s Credit Exposure
at such time.
“Benefited
Lender”:
as
defined in Section 11.9(b).
“Borrower”:
as
defined in the preamble.
“Borrowing
Date”:
each
Domestic Business Day or Eurodollar Business Day, as the case may be, during
the
Commitment Period on which the Lenders shall make Loans pursuant to Section 2.1(a)
and a
Borrowing Request; provided,
however,
that for
avoidance of doubt, there shall be no more than three Borrowing
Dates.
“Borrowing
Request”:
a
request for Loans in the form of Exhibit C.
“Caremark”:
Caremark RX Inc., a Delaware corporation.
“Caremark
Acquisition”:
the
acquisition by the Borrower of all outstanding capital stock of Caremark
pursuant to the Caremark Merger Agreement.
-3-
“Caremark
Merger Agreement”:
the
Agreement and Plan of Merger, dated as of November 1, 2006 among the
Borrower, Caremark and ▇▇▇▇▇ MergerSub Corp. (as amended by Amendment No. 1
to the Agreement and Plan of Merger, dated as of January 16, 2007 and as
further amended, supplemented or otherwise modified from time to time in
accordance with Section 8.10).
“Caremark
Special Dividend”:
a
special dividend made by the Borrower to the holders of Caremark’s outstanding
common stock in connection with the Caremark Acquisition.
“Change
of Control”:
any of
the following:
(i) any
Person
or group (as such term is used in Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended), (a) shall have or acquire beneficial
ownership of securities having 30% or more of the ordinary voting power of
the
Borrower or (b) shall possess, directly or indirectly, the power to direct
or cause the direction of the management and policies of the Borrower, whether
through the ownership of voting securities, by contract or otherwise;
or
(ii) the
Continuing Directors shall cease for any reason to constitute a majority
of the
board of directors of the Borrower then in office.
“Co-Documentation
Agents”:
as
defined in the preamble.
“Commitment”:
in
respect of any Lender, such Lender’s obligation, if any, to make a Loan to the
Borrower on each Borrowing Date, subject to the terms and conditions hereof,
in
an aggregate outstanding principal amount not to exceed the Commitment Amount
of
such Lender.
“Commitment
Amount”:
at any
time and with respect to any Lender, the amount set forth adjacent to such
Lender’s name under the heading “Commitment Amount” in Exhibit A at such
time or, in the event that such Lender is not listed on Exhibit A, the
“Commitment Amount” which such Lender shall have assumed from another Lender in
accordance with Section 11.7
on or
prior to such time, as the same may be adjusted from time to time pursuant
to
Section 2.5
and
Section 11.7(c).
The
aggregate amount of the Lenders’ Commitment Amounts on the Effective Date is
$5,750,000,000.
“Commitment
Percentage”:
at any
time and with respect to any Lender, a fraction the numerator of which is
such
Lender’s Commitment Amount at such time, and the denominator of which is the
Aggregate Commitment Amount at such time.
“Commitment
Period”:
the
period from and including the Effective Date to the date that is 60 Domestic
Business Days after the first Borrowing Date, or on such earlier date as
all of
the Commitments shall have been terminated in accordance with the terms
hereof.
“Compensatory
Interest Payment”:
as
defined in Section 3.4(c).
-4-
“Consolidated”:
the
Borrower and the Subsidiaries on a consolidated basis in accordance with
GAAP.
“Contingent
Obligation”:
as to
any Person (the “secondary
obligor”),
any
obligation of such secondary obligor (a) guaranteeing or in effect
guaranteeing any return on any investment made by another Person, or
(b) guaranteeing or in effect guaranteeing any Indebtedness, lease,
dividend or other obligation (“primary
obligation”)
of any
other Person (the “primary
obligor”)
in any
manner, whether directly or indirectly, including any obligation of such
secondary obligor, whether or not contingent, (i) to purchase any such
primary obligation or any Property constituting direct or indirect security
therefor, (ii) to advance or supply funds (A) for the purchase or
payment of any such primary obligation or (B) to maintain working capital
or equity capital of the primary obligor or otherwise to maintain the net
worth
or solvency of the primary obligor, (iii) to purchase Property, securities
or services primarily for the purpose of assuring the beneficiary of any
such
primary obligation of the ability of the primary obligor to make payment
of such
primary obligation, (iv) otherwise to assure or hold harmless the
beneficiary of such primary obligation against loss in respect thereof, and
(v) in respect of the Indebtedness of any partnership in which such
secondary obligor is a general partner, except to the extent that such
Indebtedness of such partnership is nonrecourse to such secondary obligor
and
its separate Property, provided
that
the
term “Contingent Obligation” shall not include the indorsement of instruments
for deposit or collection in the ordinary course of business.
“Continuing
Director”:
any
member of the board of directors of the Borrower who (i) is a member of
that board of directors on the Effective Date or (ii) was nominated for
election by the board of directors a majority of whom were directors on the
Effective Date or whose election or nomination for election was previously
approved by one or more of such directors.
“Control
Person”:
as
defined in Section 3.6.
“Convert”,
“Conversion”
and
“Converted”:
each, a
reference to a conversion pursuant to Section 3.3
of one
Type of Loan into another Type of Loan.
“Costs”:
as
defined in Section 3.6.
“Credit
Exposure”:
with
respect to any Lender at any time, the outstanding principal balance of all
Loans of such Lender at such time under this Agreement.
“Credit
Parties”:
a
collective reference to the Agents, the Arrangers and the Lenders.
“CVS
Share Repurchase”:
as
defined in Section 2.4.
“Default”:
any of
the events specified in Section 9.1,
whether
any requirement for the giving of notice, the lapse of time, or both, or
any
other condition, has been satisfied.
“Disposition”:
with
respect to any Person, any sale, assignment, transfer or other disposition
by
such Person by any means, of:
-5-
(a) the
Stock
of, or other equity interests of, any other Person,
(b) any
business, operating entity, division or segment thereof, or
(c) any
other
Property of such Person, other than (i) the sale of inventory (other than
in connection with bulk transfers), (ii) the disposition of equipment and
(iii) the sale of cash investments.
“Dividend
Restrictions”:
as
defined in Section 8.7.
“Dollar”
or
“$”:
lawful
currency of the United States of America.
“Domestic
Business Day”:
any day
(other than a Saturday, Sunday or legal holiday in the State of New York)
on
which banks are open for business in New York City.
“Effective
Date”:
as
defined in Section 11.20.
“Eligible
Assignee”:
(i) any commercial bank, investment bank, trust company, banking
association, financial institution, mutual fund, pension fund or any Approved
Fund or (ii) any Lender or any Affiliate or any Approved Fund of such
Lender.
“Eligible
SPC”:
a
special purpose corporation that (i) is organized under the laws of the
United States or any state thereof, (ii) is engaged in making, purchasing
or otherwise investing in commercial loans in the ordinary course of its
business and (iii) issues (or the parent of which issues) commercial paper
rated at least A-1 or the equivalent thereof by S&P or at least P-1 or the
equivalent thereof by ▇▇▇▇▇’▇.
“Employee
Benefit Plan”:
an
employee benefit plan, within the meaning of Section 3(3) of ERISA,
maintained, sponsored or contributed to by the Borrower, any Subsidiary or
any
ERISA Affiliate.
“Environmental
Laws”:
all
laws, rules, regulations, codes, ordinances, orders, decrees, judgments,
injunctions, notices or binding agreements issued, promulgated or entered
into
by any Governmental Authority, relating in any way to the environment,
preservation or reclamation of natural resources, the management, release
or
threatened release of any Hazardous Material or to health and safety
matters.
“Environmental
Liability”:
as to
any Person, any liability, contingent or otherwise (including any liability
for
damages, costs of environmental remediation, fines, penalties or indemnities),
of such Person directly or indirectly resulting from or based upon
(i) violation of any Environmental Law, (ii) the generation, use,
handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (iii) exposure to any Hazardous Materials, (iv) the release
or threatened release of any Hazardous Materials into the environment or
(v) any contract, agreement or other consensual arrangement pursuant to
which liability is assumed or imposed with respect to any of the
foregoing.
-6-
“ERISA”:
the
Employee Retirement Income Security Act of 1974, as amended from time to
time,
or any successor thereto, and the rules and regulations issued thereunder,
as
from time to time in effect.
“ERISA
Affiliate”:
when
used with respect to an Employee Benefit Plan, ERISA, the PBGC or a provision
of
the Internal Revenue Code pertaining to employee benefit plans, any Person
that
is a member of any group of organizations within the meaning of
Sections 414(b) or (c) of the Internal Revenue Code or, solely with respect
to the applicable provisions of the Internal Revenue Code, Sections 414(m)
or (o) of the Internal Revenue Code, of which the Borrower or any Subsidiary
is
a member.
“ESOP
Guaranty”:
the
guaranty of the 8.52% ESOP Note maturing 2008 in the aggregate unpaid principal
amount, as of December 30, 2006, of $82,100,000.
“Eurodollar
Advance”:
a
portion of the Loans selected by the Borrower to bear interest during a
Eurodollar Interest Period selected by the Borrower at a rate per annum based
upon a Eurodollar Rate determined with reference to such Eurodollar Interest
Period, all pursuant to and in accordance with Section 2.2
or
Section 3.3.
“Eurodollar
Base Rate”:
with
respect to each day during each Eurodollar Interest Period in effect for
each
Eurodollar Advance and as determined by the Administrative Agent, the rate
per
annum
determined on the basis of the rate for deposits in Dollars for a period
equal
to such Eurodollar Interest Period commencing on the first day of such
Eurodollar Interest Period appearing the Reuters Screen LIBORO1 Page as of
11:00 A.M., London time, two Business Days prior to the beginning of such
Eurodollar Interest Period. In the event that such rate does not appear on
the
Reuters Screen LIBORO1 Page (or otherwise on such screen), the “Eurodollar Base
Rate” for purposes of this definition shall be determined by reference to such
other comparable publicly available service for displaying eurodollar rates
as
may be selected by the Administrative Agent.
“Eurodollar
Business Day”:
any
Domestic Business Day, other than a Domestic Business Day on which banks
are not
open for dealings in Dollar deposits in the interbank eurodollar
market.
“Eurodollar
Interest Period”:
the
period commencing on any Eurodollar Business Day selected by the Borrower
in
accordance with Section 2.2
or
Section 3.3
and
ending (A) one, two, three or six months or (B) a certain number of
days (such number of days referred to in this clause (B) referred to herein
as the “Shorter
Period”)
in each
case thereafter, as selected by the Borrower in accordance with either such
Sections, subject to the following:
(i) if
any
Eurodollar Interest Period would otherwise end on a day which is not a
Eurodollar Business Day, such Eurodollar Interest Period shall be extended
to
the immediately succeeding Eurodollar Business Day unless the result of such
extension would be to carry the end of such Eurodollar Interest Period into
another calendar month, in which event such Eurodollar Interest Period shall
end
on the Eurodollar Business Day immediately preceding such day;
-7-
(ii) if
any
Eurodollar Interest Period shall begin on the last Eurodollar Business Day
of a
calendar month (or on a day for which there is no numerically corresponding
day
in the calendar month at the end of such Eurodollar Interest Period), such
Eurodollar Interest Period shall end on the last Eurodollar Business Day
of such
latter calendar month, except as otherwise provided in clause (iii) below;
and
(iii) notwithstanding
anything contained in the foregoing to the contrary, in the case of
clause (B) above in this definition only, the number of days selected may
only be (x) seven days, in the case of a Borrowing Request delivered on the
Effective Date for Loans, the proceeds of which will be used to finance a
portion of the Special Dividend, or (y) that number of days to (and
including) the Maturity Date; provided
that the
number of days selected shall not exceed 30 days, and to the extent that
the Borrower has selected a Eurodollar Interest Period under such
clause (B) in accordance with the provisions of this definition, then such
Eurodollar Interest Period shall end on the Maturity Date.
“Eurodollar
Rate”:
with
respect to each day during each Eurodollar Interest Period in effect for
each
Eurodollar Advance and as determined by the Administrative Agent, a rate
per
annum determined for such day in accordance with the following formula (rounded,
if necessary, to the nearest l/100 of 1% or, if there is no nearest 1/100
of 1%,
then to the next higher 1/100 of 1%):
|
Eurodollar
Base Rate
|
|
1.00
minus Eurocurrency Reserve
Requirements
|
“Eurocurrency
Reserve Requirements”:
for any
day, the aggregate (without duplication) of the maximum rates (expressed
as a
decimal or a fraction) of reserve requirements in effect on such day (including,
without limitation, basic, supplemental, marginal and emergency reserves)
under
any regulations of the Board of Governors of the Federal Reserve System,
or
other Governmental Authority having jurisdiction with respect thereto dealing
with reserve requirements prescribed for eurocurrency funding (currently
referred to as “Eurocurrency Liabilities” in Regulation D of the Board of
Governors of the Federal Reserve System, as amended) maintained by a member
bank
of the Federal Reserve System with deposits exceeding $1,000,000,000 with
respect to liabilities or assets consisting of or including Eurocurrency
Liabilities having a term equal to such Eurodollar Interest Period.
“Event
of Default”:
any of
the events specified in Section 9.1,
provided
that any
requirement for the giving of notice, the lapse of time, or both, or any
other
condition has been satisfied.
“Excluded
Debt”:
any
Indebtedness of the Borrower under (x) the Existing Credit Agreements and
(y) any indebtedness under any bank credit facility of the Borrower to the
extent the proceeds thereof are used to repay Indebtedness under (i) any
bank
credit facility of the Borrower existing on the Effective Date or (ii) the
Existing Credit Agreements.
-8-
“Existing
2004 Five Year Credit Agreement”:
the
Five Year Credit Agreement, dated as of June 11, 2004, by and among the
Borrower, the lenders party thereto, Bank of America, N.A., Credit Suisse
First
Boston, and Wachovia Securities, Inc., as co-syndication agents, ABN AMRO
Bank
N.V., as documentation agent, and The Bank of New York, as administrative
agent,
as the same may be amended, supplemented, replaced or otherwise modified
from
time to time.
“Existing
2005 Five Year Credit Agreement”:
the
Five Year Credit Agreement, dated as of June 3, 2005, by and among the
Borrower, the lenders party thereto, Bank of America, N.A., Credit Suisse
First
Boston, and Wachovia Bank, National Association, as co-syndication agents,
SunTrust Bank, as documentation agent, and The Bank of New York, as
administrative agent, as the same may be amended, supplemented, replaced
or
otherwise modified from time to time.
“Existing
2006 Five Year Credit Agreement”:
the
Five Year Credit Agreement, dated as of May 12, 2006, by and among the Borrower,
the lenders party thereto, Bank of America, N.A., ▇▇▇▇▇▇ Brothers Inc. and
Wachovia Bank, National Association, as co-syndication agents, KeyBank National
Association, as documentation agent, and The Bank of New York, as administrative
agent, as the same may be amended, supplemented, replaced or otherwise modified
from time to time.
“Existing
2007 Five Year Credit Agreement”:
the
Five Year Credit Agreement, dated as of March 12, 2007, by and among the
Borrower, the lenders party thereto, ▇▇▇▇▇▇ Commercial Paper Inc. and Wachovia
Bank, National Association, as co-syndication agents, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior
Funding, Inc., as documentation agent, and The Bank of New York, as
administrative agent, as the same may be amended, supplemented, replaced
or
otherwise modified from time to time.
“Existing
2007 364-Day Credit Agreement”:
the
364-Day Credit Agreement, dated as of March 12, 2007, by and among the Borrower,
the lenders party thereto, ▇▇▇▇▇▇ Commercial Paper Inc. and Wachovia Bank,
National Association, as co-syndication agents, and The Bank of New York,
as
administrative agent, as the same may be amended, supplemented, replaced
or
otherwise modified from time to time.
“Existing
Credit Agreements”:
collectively, the Existing 2004 Five Year Credit Agreement, the Existing
2005
Five Year Credit Agreement, the Existing 2006 Five Year Credit Agreement,
the
Existing 2007 Five Year Credit Agreement and the Existing 2007 364-Day Credit
Agreement.
“Expiration
Date”:
the
earlier of (a) the Maturity Date and (b) the date on which the Loans
shall become due and payable, whether by acceleration, notice of intention
to
prepay or otherwise.
“Facility
Fee”:
as
defined in Section 3.11.
“Facility
Fee Termination Date”:
the
first date, occurring on or after the date the Commitments have been terminated,
upon which there shall be no Loans outstanding.
-9-
“Federal
Funds Effective Rate”:
for any
period, a fluctuating interest rate per annum equal for each day during such
period 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 Domestic
Business Day, for the next preceding Domestic Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day
which
is a Domestic Business Day, the average (rounded, if necessary, to the nearest
1/100 of 1% or, if there is no nearest 1/100 of 1%, then to the next higher
1/100 of 1%) of the quotations for such day on such transactions received
by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by the Administrative Agent.
“Fees”:
as
defined in Section 3.2(a).
“Financial
Statements”:
as
defined in Section 4.13.
“Foreign
Lender”:
any
Lender that is organized under the laws of a jurisdiction other than the
United
States of America, any State thereof or the District of Columbia.
“GAAP”:
generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board and the American Institute
of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or such other principles as may be approved by
a
significant segment of the accounting profession, which are applicable to
the
circumstances as of the date of determination, consistently
applied.
“Governmental
Authority”:
any
foreign, federal, state, municipal or other government, or any department,
commission, board, bureau, agency, public authority or instrumentality thereof,
or any court or arbitrator.
“Granting
Lender”:
as
defined in Section 11.7(h).
“Hazardous
Materials”:
all
explosive or radioactive substances or wastes and all hazardous or toxic
substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated
biphenyls, radon gas, infectious or medical wastes and all other substances
or
wastes of any nature regulated pursuant to any Environmental Law.
“Highest
Lawful Rate”:
as to
any Lender, the maximum rate of interest, if any, which at any time or from
time
to time may be contracted for, taken, charged or received on the Loans or
the
Notes or which may be owing to such Lender pursuant to this Agreement under
the
laws applicable to such Lender and this Agreement.
“Indebtedness”:
as to
any Person at a particular time, all items of such Person which constitute,
without duplication, (a) indebtedness for borrowed money or the deferred
purchase price of Property (other than trade payables and accrued expenses
incurred in the ordinary course of business), (b) indebtedness evidenced by
notes, bonds, debentures or similar instruments, (c) indebtedness with
respect to any conditional sale or other title retention
-10-
agreement,
(d) indebtedness arising under acceptance facilities and the amount
available to be drawn under all letters of credit (excluding for purposes
of
Section 8.1
and
Section 8.9
letters
of credit obtained in the ordinary course of business by the Borrower or
any
Subsidiary) issued for the account of such Person and, without duplication,
all
drafts drawn thereunder to the extent such Person shall not have reimbursed
the
issuer in respect of the issuer’s payment of such drafts, (e) that portion
of any obligation of such Person, as lessee, which in accordance with GAAP
is
required to be capitalized on a balance sheet of such Person, (f) all
indebtedness described in clauses (a) through and including (e) above
secured by any Lien on any Property owned by such Person even though such
Person
shall not have assumed or otherwise become liable for the payment thereof
(other
than carriers’, warehousemen’s, mechanics’, repairmen’s or other like
non-consensual Liens arising in the ordinary course of business), and
(g) Contingent Obligations in respect of any indebtedness described in
clauses (a) through and including (f) above; provided
that,
for
purposes of this definition, Indebtedness shall not include Intercompany
Debt
and obligations in respect of interest rate caps, collars, exchanges, swaps
or
other, similar agreements.
“Indemnified
Liabilities”:
as
defined in Section 11.5.
“Indemnified
Person”:
as
defined in Section 11.10.
“Intercompany
Debt”:
(i) Indebtedness of the Borrower to one or more of the Subsidiaries of the
Borrower and (ii) Indebtedness of one or more of the Subsidiaries of the
Borrower to the Borrower or any one or more of the other Subsidiaries of
the
Borrower.
“Intercompany
Disposition”:
a
Disposition by the Borrower or any of the Subsidiaries of the Borrower to
the
Borrower or to any of the other Subsidiaries of the Borrower.
“Interest
Payment Date”:
(i) as to any ABR Advance, the last day of each March, June, September and
December, commencing on the first of such days to occur after such ABR Advance
is made or any Eurodollar Advance is converted to an ABR Advance, (ii) as
to any Eurodollar Advance in respect of which the Borrower has selected a
Eurodollar Interest Period of the Shorter Period, the last day of such
Eurodollar Interest Period, (iii) as to any Eurodollar Advance in respect
of which the Borrower has selected a Eurodollar Interest Period of one, two
or
three months, the last day of such Eurodollar Interest Period, and (iv) as
to any Eurodollar Advance in respect of which the Borrower has selected a
Eurodollar Interest Period greater than three months, the last day of the
third
month of such Eurodollar Interest Period and the last day of such Eurodollar
Interest Period.
“Internal
Revenue Code”:
the
Internal Revenue Code of 1986, as amended from time to time, or any successor
thereto, and the rules and regulations issued thereunder, as from time to
time
in effect.
“LCPI”:
▇▇▇▇▇▇
Commercial Paper Inc.
“Lender”:
as
defined in the preamble.
-11-
“Lien”:
any
mortgage, pledge, hypothecation, assignment, lien, deposit arrangement, charge,
encumbrance or other security arrangement or security interest of any kind,
or
the interest of a vendor or lessor under any conditional sale agreement,
capital
lease or other title retention agreement.
“Loan”
or
“Loans”:
as
defined in Section 2.1(a).
“Loan
Documents”:
this
Agreement and, upon the execution and delivery thereof, the Notes, if
any.
“Margin
Stock”:
any
“margin stock”, as said term is defined in Regulation U of the Board of
Governors of the Federal Reserve System, as the same may be amended or
supplemented from time to time.
“Material
Adverse”:
with
respect to any change or effect, a material adverse change in, or effect
on, as
the case may be, (i) the financial condition, operations, business, or
Property of the Borrower and the Subsidiaries taken as a whole, (ii) the
ability of the Borrower to perform its obligations under the Loan Documents,
or
(iii) the ability of the Administrative Agent or any Lender to enforce the
Loan Documents.
“Maturity
Date”:
the
date that is the earlier of (x) 364 days after the Effective Date, and
(y) June 30, 2008.
“Moody’s”:
▇▇▇▇▇’▇
Investors Service, Inc.
“Multiemployer
Plan”:
a
Pension Plan which is a multiemployer plan as defined in Section 4001(a)(3)
of ERISA.
“Net
Proceeds”:
with
respect to (a) the issuance of any equity securities or hybrid securities
by the Borrower or any of its Subsidiaries in a registered public offering
or
private placement or (b) the issuance of long term Indebtedness by the
Borrower or any of its Subsidiaries in a registered public offering or a
private
placement or under any new bank credit facility (excluding any Excluded
Debt).
“Net
Worth”:
at any
date of determination, the sum of all amounts which would be included under
shareholders’ equity on a Consolidated balance sheet of the Borrower and the
Subsidiaries determined in accordance with GAAP as at such date.
“Note”:
with
respect to each Lender that has requested one, a promissory note evidencing
such
Lender’s Loans payable to the order of such Lender (or, if required by such
Lender, to such Lender and its registered assigns), substantially in the
form of
Exhibit B.
“Participant”:
as
defined in Section 11.7(e).
“PATRIOT
Act”:
as
defined in Section 11.21.
-12-
“PBGC”:
the
Pension Benefit Guaranty Corporation established pursuant to Subtitle A of
Title IV of ERISA, or any Governmental Authority succeeding to the
functions thereof.
“Pension
Plan”:
at any
time, any Employee Benefit Plan (including a Multiemployer Plan) subject
to
Section 302 of ERISA or Section 412 of the Internal Revenue Code, the
funding requirements of which are, or at any time within the six years
immediately preceding the time in question, were in whole or in part, the
responsibility of the Borrower, any Subsidiary or an ERISA
Affiliate.
“Person”:
any
individual, firm, partnership, limited liability company, joint venture,
corporation, association, business trust, joint stock company, unincorporated
association, trust, Governmental Authority or any other entity, whether acting
in an individual, fiduciary, or other capacity, and for the purpose of the
definition of “ERISA Affiliate”, a trade or business.
“Pricing
Level”:
Pricing
Level I, Pricing Level II, Pricing Level III, Pricing
Level IV, Pricing Level V, Pricing Level VI or Pricing
Level VII, as the case may be.
“Pricing
Level I”:
any
time when the senior unsecured long term debt rating of the Borrower by
(x) S&P is A+ or higher or (y) ▇▇▇▇▇’▇ is A1 or
higher.
“Pricing
Level II”:
any
time when (i) the senior unsecured long term debt rating of the Borrower by
(x) S&P is A or higher or (y) ▇▇▇▇▇’▇ is A2 or higher and (ii)
Pricing Level I does not apply.
“Pricing
Level III”:
any
time when (i) the senior unsecured long term debt rating of the Borrower by
(x) S&P is A- or higher or (y) ▇▇▇▇▇’▇ is A3 or higher and
(ii) neither Pricing Level I nor II applies.
“Pricing
Level IV”:
any
time when (i) the senior unsecured long term debt rating of the Borrower by
(x) S&P is BBB+ or higher or (y) ▇▇▇▇▇’▇ is Baa1 or higher and
(ii) none of Pricing Level I, II or III applies.
“Pricing
Level V”:
any
time when (i) the senior unsecured long term debt rating of the Borrower by
(x) S&P is BBB or higher or (y) ▇▇▇▇▇’▇ is Baa2 or higher and
(ii) none of Pricing Level I, II, III or IV applies.
“Pricing
Level VI”:
any
time when (i) the senior unsecured long term debt rating of the Borrower by
(x) S&P is BBB- or higher or (y) ▇▇▇▇▇’▇ is Baa3 or higher and
(ii) none of Pricing Level I, II, III, IV or V applies.
“Pricing
Level VII”:
any
time when none of Pricing Level I, II, III, IV, V or VI
applies.
Notwithstanding
each definition of Pricing Level set forth above, if at any time the senior
unsecured long term debt ratings of the Borrower by S&P and Moody’s differ
by more
-13-
than
one
equivalent rating level, then the applicable Pricing Level shall be determined
based upon the lower such rating adjusted upwards to the next higher rating
level.
“Prime
Rate”:
the
prime lending rate as set forth on the British Banking Association Telerate
Page 5 (or such other comparable page as may, in the opinion of the
Administrative Agent, replace such page for the purpose of displaying such
rate), as in effect from time to time.
“Pro
Rata Percentage”:
with
respect to any Lender, at any time of determination (a) at any time prior
to the earlier of (x) the third Borrowing Date or (y) the last day of
the Commitment Period, such Lender’s Commitment Percentage, and (b) at any
time thereafter, a fraction (expressed as a percentage), the numerator of
which
shall be the amount of such Lender’s Credit Exposure at such time and the
denominator of which shall be the Aggregate Credit Exposure of all
Lenders.
“Prohibited
Transaction”:
a
transaction that is prohibited under Section 4975 of the Internal Revenue
Code or Section 406 of ERISA and not exempt under Section 4975 of the
Internal Revenue Code or Section 408 of ERISA.
“Property”:
in
respect of any Person, all types of real, personal or mixed property and
all
types of tangible or intangible property owned or leased by such
Person.
“Regulatory
Change”:
(a) the introduction or phasing in of any law, rule or regulation after the
date hereof, (b) the issuance or promulgation after the date hereof of any
directive, guideline or request from any central bank or United States or
foreign Governmental Authority (whether or not having the force of law),
or
(c) any change after the date hereof in the interpretation of any existing
law, rule, regulation, directive, guideline or request by any central bank
or
United States or foreign Governmental Authority charged with the administration
thereof, in each case applicable to the transactions contemplated by this
Agreement.
“Related
Parties”:
with
respect to any specified Person, such Person’s Affiliates and the respective
directors, officers, employees, agents and advisors of such Person and such
Person’s Affiliates.
“Replaced
Lender”:
as
defined in Section 3.13.
“Replacement
Lender”:
as
defined in Section 3.13.
“Reportable
Event”:
with
respect to any Pension Plan, (a) any event set forth in
Sections 4043(c) (other than a Reportable Event as to which the 30 day
notice requirement is waived by the PBGC under applicable regulations), 4062(e)
or 4063(a) of ERISA, or the regulations thereunder, (b) an event requiring
the Borrower, any Subsidiary or any ERISA Affiliate to provide security to
a
Pension Plan under Section 401(a)(29) of the Internal Revenue Code, or
(c) the failure to make any payment required by Section 412(m) of the
Internal Revenue Code.
-14-
“Required
Lenders”:
(a) at any time during the Commitment Period, Lenders having Commitments
and Credit Exposure equal to or more than 51% of the Aggregate Available
Commitments plus
the
Aggregate Credit Exposure, and (b) at all other times, Lenders having
Credit Exposure equal to or more than 51% of the Aggregate Credit
Exposure.
“Restricted
Payment”:
with
respect to any Person, any of the following, whether direct or indirect:
(a) the declaration or payment by such Person of any dividend or
distribution on any class of Stock of such Person, other than a dividend
payable
solely in shares of that class of Stock to the holders of such class,
(b) the declaration or payment by such Person of any distribution on any
other type or class of equity interest or equity investment in such Person,
and
(c) any redemption, retirement, purchase or acquisition of, or sinking fund
or other similar payment in respect of, any class of Stock of, or other type
or
class of equity interest or equity investment in, such Person.
“Restrictive
Agreement”:
as
defined in Section 8.7.
“S&P”:
Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc.
“Shorter
Period”:
as
defined in the definition of Eurodollar Interest Period.
“Solvent”:
with
respect to any Person on a particular date, the condition that on such date,
(i) the fair value of the Property of such Person is greater than the total
amount of liabilities, including, without limitation, contingent liabilities,
of
such Person, (ii) the present fair salable value of the assets of such
Person is not less than the amount that will be required to pay the probable
liability of such Person on its debts as they become absolute and matured,
(iii) such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Person’s ability to pay as such debts and
liabilities mature, and (iv) such Person is not engaged in business or a
transaction, and is not about to engage in business or a transaction, for
which
such Person’s Property would constitute an unreasonably small amount of capital.
For purposes of this definition, the amount of any contingent liability at
any
time shall be computed as the amount that, in light of all the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability after taking into account
probable payments by co-obligors.
“Special
Counsel”:
such
counsel as the Administrative Agent may engage from time to time.
“Stock”:
any and
all shares, interests, participations or other equivalents (however designated)
of capital stock of a corporation, any and all equivalent ownership interests
in
a Person (other than a corporation) and any and all warrants, rights or options
to purchase any of the foregoing.
“Subsidiary”:
at any
time and from time to time, any corporation, association, partnership, limited
liability company, joint venture or other business entity of which the Borrower
and/or any Subsidiary of the Borrower, directly or indirectly at such time,
either (a) in respect of a corporation, owns or controls more than 50% of
the outstanding stock having ordinary voting power to elect a majority of
the
board of directors or similar managing body,
-15-
irrespective
of whether a class or classes shall or might have voting power by reason
of the
happening of any contingency, or (b) in respect of an association,
partnership, limited liability company, joint venture or other business entity,
is entitled to share in more than 50% of the profits and losses, however
determined.
“Tangible
Net Worth”:
at any
date of determination, Net Worth less
all
assets of the Borrower and its Subsidiaries included in such Net Worth,
determined on a Consolidated basis at such date, that would be classified
as
intangible assets in accordance with GAAP.
“Termination
Event”:
with
respect to any Pension Plan, (a) a Reportable Event, (b) the
termination of a Pension Plan under Section 4041(c) of ERISA, or the filing
of a notice of intent to terminate a Pension Plan under Section 4041(c) of
ERISA, or the treatment of a Pension Plan amendment as a termination under
Section 4041(e) of ERISA (except an amendment made after such Pension Plan
satisfies the requirement for a standard termination under Section 4041(b)
of ERISA), (c) the institution of proceedings by the PBGC to terminate a
Pension Plan under Section 4042 of ERISA, or (d) the appointment of a
trustee to administer any Pension Plan under Section 4042 of
ERISA.
“Total
Capitalization”:
at any
date, the sum of the Borrower’s Consolidated Indebtedness and shareholders’
equity on such date, determined in accordance with GAAP.
“Type”:
with
respect to any Loan, the characteristic of such Loan as an ABR Advance or
a
Eurodollar Advance, each of which constitutes a Type of Loan.
“Unqualified
Amount”:
as
defined in Section 3.4(c).
“Upstream
Dividends”:
as
defined in Section 8.7.
“Waiver
Agreement”:
the
Waiver Agreement, dated as of January 16, 2007 between the Borrower and
Caremark with respect to the Caremark Merger Agreement (as amended by that
certain amendment to Waiver Agreement, dated as of February 12, 2007, and
that
certain amendment to Waiver Agreement, dated as of March 8, 2007).
SECTION 1.2 Principles
of Construction
(a) All
capitalized terms defined in this Agreement shall have the meanings given
such
capitalized terms herein when used in the other Loan Documents or in any
certificate, opinion or other document made or delivered pursuant hereto
or
thereto, unless otherwise expressly provided therein.
(b) Unless
otherwise expressly provided herein, the word “fiscal”
when
used herein shall refer to the relevant fiscal period of the Borrower. As
used
in the Loan Documents and in any certificate, opinion or other document made
or
delivered pursuant thereto, accounting terms not defined in Section 1.1,
and
accounting terms partly defined in Section 1.1,
to the
extent not defined, shall have the respective meanings given to them under
GAAP.
-16-
(c) The
words
“hereof”,
“herein”,
“hereto”
and
“hereunder”
and
similar words when used in each Loan Document shall refer to such Loan Document
as a whole and not to any particular provision of such Loan Document, and
Section, schedule and exhibit references contained therein shall refer to
Sections thereof or schedules or exhibits thereto unless otherwise expressly
provided therein.
(d) All
references herein to a time of day shall mean the then applicable time in
New
York, New York, unless otherwise expressly provided herein.
(e) Section
headings have been inserted in the Loan Documents for convenience only and
shall
not be construed to be a part thereof. Unless the context otherwise requires,
words in the singular number include the plural, and words in the plural
include
the singular.
(f) Whenever
in any Loan Document or in any certificate or other document made or delivered
pursuant thereto, the terms thereof require that a Person sign or execute
the
same or refer to the same as having been so signed or executed, such terms
shall
mean that the same shall be, or was, duly signed or executed by (i) in
respect of any Person that is a corporation, any duly authorized officer
thereof, and (ii) in respect of any other Person (other than an
individual), any analogous counterpart thereof.
(g) The
words
“include”
and
“including”,
when
used in each Loan Document, shall mean that the same shall be included “without
limitation”, unless otherwise specifically provided.
ARTICLE 2
AMOUNT
AND
TERMS OF LOANS
SECTION 2.1 Loans
(a) Subject
to
the terms and conditions hereof (including the satisfaction of the conditions
set forth in Article 5),
each
Lender severally (and not jointly) agrees to make loans under this Agreement
(each a “Loan”
and,
collectively with each other Loan of such Lender and/or with each Loan of
each
other Lender, the “Loans”)
at any
time and from time to time during the Commitment Period to the Borrower in
an
aggregate amount which does not exceed the amount of such Lender’s Commitment,
provided
that,
(i) the aggregate amount of Loans made to finance the CVS Share Repurchase
shall not exceed $5,250,000,000 and there shall not be more than two Borrowing
Dates with respect thereto, (ii) the aggregate amount of Loans made to
finance the Caremark Special Dividend shall not exceed $500,000,000 and there
shall not be more than one Borrowing Date with respect thereto and
(iii) any remaining Commitment that is not borrowed shall automatically
expire on the date that is the earlier of (x) the third Borrowing Date and
(y)
the last day of the Commitment Period. Once repaid, no Loan may be reborrowed.
At the option of the Borrower, indicated in a Borrowing Request, Loans may
be
made as ABR Advances or Eurodollar Advances.
-17-
(b) The
aggregate outstanding principal balance of all Loans shall be due and payable
on
the Expiration Date.
(c) The
Borrower hereby unconditionally promises to pay to the Administrative Agent
for
the account of each Lender holding a Loan or Loans the then unpaid principal
amount of such Loan or Loans on the Expiration Date, together with all accrued
and unpaid interest, if any, and any and all amounts payable pursuant to
Section 3.5.
SECTION 2.2 Notice
of Borrowing Loans
The
Borrower agrees to notify the Administrative Agent in writing, which
notification shall be irrevocable, no later than (a) 9:00 A.M. on the
proposed Borrowing Date if the Loans made on such Borrowing Date will consist
of
ABR Advances and (b) 10:00 A.M. at least two Eurodollar Business Days
prior to the proposed Borrowing Date if the Loans made on such Borrowing
Date
will consist of Eurodollar Advances. Each such notice shall specify (i) the
aggregate amount requested to be borrowed under the Commitments, (ii) the
proposed Borrowing Date, (iii) whether the borrowing of Loans is to be of
ABR Advances or Eurodollar Advances, and the amount of each thereof and
(iv) if applicable, the Eurodollar Interest Period for such Eurodollar
Advances. Each such notice shall be made by delivery to the Administrative
Agent
of a Borrowing Request. Any Eurodollar Advance made on a Borrowing Date shall
equal no less than $10,000,000, or an integral multiple of $1,000,000 in
excess
thereof. Any ABR Advance made on a Borrowing Date shall equal no less than
$1,000,000 or an integral multiple of $500,000 in excess thereof. The
Administrative Agent shall promptly notify each Lender (by fax or other writing)
of such Borrowing Request. Subject to its receipt of each such notice from
the
Administrative Agent and subject to the terms and conditions hereof, each
Lender
shall make immediately available funds available to the Administrative Agent
at
the address therefor set forth in Section 11.2
not later
than 1:00 P.M. on each Borrowing Date in an amount equal to such Lender’s
Commitment Percentage of Loans requested by the Borrower on such Borrowing
Date.
SECTION 2.3 [Intentionally
Omitted]
SECTION 2.4 Use
of
Proceeds
The
Borrower agrees that the proceeds of the Loans shall be used solely to finance
(i) the repurchase (the “CVS
Share Repurchase”)
of up
to $5,250,000,000 of the Borrower’s outstanding common stock after the
consummation of the Caremark Acquisition through a tender offer, an accelerated
share repurchase program and/or open market repurchases and (ii) up to
$500,000,000 of the Caremark Special Dividend in connection with the Caremark
Acquisition. Notwithstanding anything to the contrary contained in any Loan
Document, the Borrower further agrees that no part of the proceeds of any
Loan
will be used, directly or indirectly, and whether immediately, incidentally
or
ultimately (i) for a purpose which violates any law, rule or regulation of
any Governmental Authority, including the provisions of Regulations U or X
of the Board of Governors of the Federal Reserve System, as amended, or any
provision of this Agreement, including, without limitation, the provisions
of
Section 4.9
or
(ii) to make a loan to any director or executive officer of the Borrower or
any Subsidiary.
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SECTION 2.5 Termination
or Reduction of Commitments
(a) Voluntary
Termination or Reductions.
At the
Borrower’s option and upon at least three Domestic Business Days’ prior
irrevocable notice to the Administrative Agent, the Borrower may
(i) terminate the Commitments at any time, or (ii) permanently reduce
the Aggregate Commitment Amount in part at any time and from time to time,
provided
that each
such partial reduction shall be in an amount equal to at least $10,000,000
or an
integral multiple of $1,000,000 in excess thereof, and provided
further that
a
notice of termination of the Commitments delivered by the Borrower may state
that such notice is conditioned upon the effectiveness of other credit
facilities or the consummation of the issuance of long term Indebtedness,
equity
securities or hybrid securities (such notice to specify the proposed effective
date), in which case such notice may be revoked by the Borrower (by notice
to
the Administrative Agent on or prior to such specified effective date) if
such
condition is not satisfied, and the Borrower shall indemnify the Lenders
in
accordance with Section 3.5.
(b) Mandatory
Reductions.
The
Aggregate Commitment Amount shall be automatically and permanently reduced
by an
amount equal to the Net Proceeds (if any) received by or on behalf of the
Borrower or any Subsidiary; and such reduction shall be effective upon receipt
by the Borrower or any Subsidiary of such Net Proceeds.
(c) In
General.
Each
reduction of the Aggregate Commitment Amount shall be made by reducing each
Lender’s Commitment Amount by a sum equal to such Lender’s Commitment Percentage
of the amount of such reduction.
(d) Termination.
In
addition to any termination or reduction of the Commitments as otherwise
provided herein, the Commitments shall terminate immediately on the date
that is
the earlier of (x) the third Borrowing Date and (y) the last day of
the Commitment Period; provided,
however,
that if
no Loans shall have been made pursuant to Section 2.1(a)
on or
before 1:00 P.M. on November 1, 2007, then the Commitments shall be
automatically terminated and the Aggregate Commitment Amount shall be reduced
to
zero at such time on such date.
SECTION 2.6 Prepayments
of Loans
(a) Voluntary
Prepayments.
The
Borrower may prepay Loans, in whole or in part, without premium or penalty,
but
subject to Section 3.5
at any
time and from time to time, by notifying the Administrative Agent, which
notification shall be irrevocable, at least two Eurodollar Business Days,
in the
case of a prepayment of Eurodollar Advances, or one Domestic Business Day,
in
the case of a prepayment of ABR Advances, prior to the proposed prepayment
date
specifying (i) the Loans to be prepaid, (ii) the amount to be prepaid,
and (iii) the date of prepayment. Upon receipt of each such notice, the
Administrative Agent shall promptly notify each Lender thereof. Each such
notice
given by the Borrower pursuant to this Section shall be irrevocable;
provided
that, a
notice of prepayment delivered by the Borrower may state that such notice
is
conditioned upon the effectiveness of other credit facilities or the
consummation of the issuance of long term Indebtedness, equity securities
or
hybrid securities (such notice to specify the proposed effective date), in
which
case such notice of prepayment may be revoked by the Borrower (by notice
to the
Administrative Agent on or prior to such specified effective date) if
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such
condition is not satisfied, and the Borrower shall indemnify the Lenders
in
accordance with Section 3.5.
Each
partial prepayment under this Section shall be in a minimum amount of $1,000,000
($500,000 in the case of ABR Advances) or an integral multiple of $1,000,000
($100,000 in the case of ABR Advances) in excess thereof.
(b) Mandatory
Prepayments. In
the
event and on each occasion that any Net Proceeds are received by or on behalf
of
the Borrower or any Subsidiary, then, after such Net Proceeds are received
(but
no later than one Business Day thereafter), the Borrower shall prepay the
Loans
in an aggregate amount equal to such Net Proceeds.
(c) Caremark
Acquisition Prepayment.
In the
event that the Borrower borrows Loans hereunder in anticipation of consummation
of the Caremark Acquisition and the payment of the Caremark Special Dividend,
and the closing of the Caremark Acquisition does not occur within four Domestic
Business Days after such borrowing, then the Borrower shall prepay such Loans
in
full no later than the fifth Domestic Business Day following such
borrowing.
(d) In
General. Simultaneously
with each prepayment hereunder, the Borrower shall prepay all accrued interest
on the amount prepaid through the date of prepayment and indemnify the Lenders
in accordance with Section 3.5.
SECTION 2.7 Notes
Any
Lender
may request that the Loans made by it be evidenced by a Note.
In
such
event, the Borrower shall prepare, execute and deliver to such Lender a Note
payable to the order of such Person or, if requested by such Person, such
Person
and its registered assigns.
Thereafter,
all Loans evidenced by such Note and interest thereon shall at all times
(including after assignment pursuant to Section 11.7)
be
represented by a Note in like form payable to the order of the payee named
therein and its registered assigns.
ARTICLE 3
PROCEEDS,
PAYMENTS, CONVERSIONS,
INTEREST,
YIELD PROTECTION AND FEES
SECTION 3.1 Disbursement
of the Proceeds of Loans
The
Administrative Agent shall disburse the proceeds of Loans by wire transfer
of
the funds received from each Lender to the account of the Borrower designated
by
the Borrower in writing to the Administrative Agent. Unless the Administrative
Agent shall have received prior notice from a Lender (by fax or other writing)
that such Lender will not make available to the Administrative Agent such
Lender’s Commitment Percentage of the Loan to be made by it on a Borrowing Date,
the Administrative Agent may assume that such Lender has made such amount
available to the Administrative Agent on such Borrowing Date in accordance
with
this Section, provided
that such
Lender received notice thereof from the Administrative Agent in accordance
with
the terms hereof, and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrower on such Borrowing Date a
corresponding amount.
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If
and to
the extent such Lender shall not have so made such amount available to
the
Administrative Agent, such Lender and the Borrower severally agree to pay
to the
Administrative Agent, forthwith on demand, such corresponding amount (to
the
extent not previously paid by the other), together with interest thereon
for
each day from the date such amount is made available to the Borrower until
the
date such amount is paid to the Administrative Agent, at a rate per annum
equal
to, in the case of the Borrower, the applicable interest rate set forth
in
Section 3.4(a)
and, in
the case of such Lender, the Federal Funds Effective Rate from the date
such
payment is due until the third day after such date and, thereafter, at
the
Federal Funds Effective Rate plus
2%.
Any
such
payment by the Borrower shall be without prejudice to its rights against
such
Lender.
If
such
Lender shall pay to the Administrative Agent such corresponding amount,
such
amount so paid shall constitute such Lender’s Loan as part of such Loans for
purposes of this Agreement, which Loan shall be deemed to have been made
by such
Lender on the Borrowing Date applicable to such Loans.
SECTION 3.2 Payments
(a) Each
payment, including each prepayment, of principal and interest on the Loans
and
of the Facility Fee (collectively, together with all of the other fees
to be
paid to the Administrative Agent and the Lenders in connection with the
Loan
Documents, the “Fees”),
and of
all of the other amounts to be paid to the Administrative Agent and the
Lenders
in connection with the Loan Documents shall be made by the Borrower to
the
Administrative Agent at its office specified in Section 11.2
without
setoff, deduction or counterclaim in funds immediately available in New
York by
3:00 P.M. on the due date for such payment. The failure of the Borrower to
make any such payment by such time shall not constitute a default hereunder,
provided
that such
payment is made on such due date, but any such payment made after 3:00 P.M.
on such due date shall be deemed to have been made on the next Domestic
Business
Day or Eurodollar Business Day, as the case may be, for the purpose of
calculating interest on amounts outstanding on the Loans. If the Borrower
has
not made any such payment prior to 3:00 P.M., the Borrower hereby
authorizes the Administrative Agent to deduct the amount of any such payment
from such account(s) as the Borrower may from time to time designate in
writing
to the Administrative Agent, upon which the Administrative Agent shall
apply the
amount of such deduction to such payment.
Promptly
upon receipt thereof by the Administrative Agent, each payment of principal
and
interest on the Loans shall be remitted by the Administrative Agent in
like
funds as received to each Lender (a) first,
pro
rata
according
to the amount of interest which is then due and payable to the Lenders,
and
(b) second,
pro
rata
according
to the amount of principal which is then due and payable to the
Lenders.
Each
payment of the Facility Fee payable to the Lenders shall be promptly transmitted
by the Administrative Agent in like funds as received to each Lender pro
rata
according to such Lender’s Commitment Amount or, if the Commitments shall have
terminated or been terminated, according to the outstanding principal amount
of
such Lender’s Loans.
(b) If
any
payment hereunder or under the Loans shall be due and payable on a day
which is
not a Domestic Business Day or Eurodollar Business Day, as the case may
be, the
due date thereof (except as otherwise provided in the definition of Eurodollar
Interest Period) shall be extended to the next Domestic Business Day or
Eurodollar Business Day, as the case
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may
be,
and (except with respect to payments of the Facility Fee) interest shall
be
payable at the applicable rate specified herein during such
extension.
SECTION 3.3 Conversions;
Other Matters
(a) The
Borrower may elect at any time and from time to time to Convert one or
more
Eurodollar Advances to an ABR Advance by giving the Administrative Agent
at
least one Domestic Business Day’s prior irrevocable notice of such election,
specifying the amount to be so Converted.
In
addition, the Borrower may elect at any time and from time to time to Convert
an
ABR Advance to any one or more new Eurodollar Advances or to Convert any
one or
more existing Eurodollar Advances to any one or more new Eurodollar Advances
by
giving the Administrative Agent no later than 10:00 A.M. at least two
Eurodollar Business Days’ prior irrevocable notice, in the case of a Conversion
to Eurodollar Advances, of such election, specifying the amount to be so
Converted and the initial Eurodollar Interest Period relating thereto,
provided
that any
Conversion of an ABR Advance to Eurodollar Advances shall only be made
on a
Eurodollar Business Day. The Administrative Agent shall promptly provide
the
Lenders with notice of each such election. Each Conversion of Loans from
one
Type to another shall be made pro rata according to the outstanding principal
amount of the Loans of each Lender. ABR Advances and Eurodollar Advances
may be
Converted pursuant to this Section in whole or in part, provided
that the
amount to be Converted to each Eurodollar Advance, when aggregated with
any
Eurodollar Advance to be made on such date in accordance with Section 2.1
and
having the same Eurodollar Interest Period as such first Eurodollar Advance,
shall equal no less than $10,000,000 or an integral multiple of $1,000,000
in
excess thereof.
(b) Notwithstanding
anything in this Agreement to the contrary, upon the occurrence and during
the
continuance of a Default or an Event of Default, the Borrower shall have
no
right to elect to Convert any existing ABR Advance to a new Eurodollar
Advance
or to Convert any existing Eurodollar Advance to a new Eurodollar
Advance.
In
such
event, such ABR Advance shall be automatically continued as an ABR Advance
or
such Eurodollar Advance shall be automatically Converted to an ABR Advance
on
the last day of the Eurodollar Interest Period applicable to such Eurodollar
Advance.
The
foregoing shall not affect any other rights or remedies that the Administrative
Agent or any Lender may have under this Agreement or any other Loan
Document.
(c) Each
Conversion shall be effected by each Lender by applying the proceeds of
each new
ABR Advance or Eurodollar Advance, as the case may be, to the existing
Advance
(or portion thereof) being Converted (it being understood that such Conversion
shall not constitute a borrowing for purposes of Article 4,
Article 5
or
Article 6).
(d) Notwithstanding
any other provision of any Loan Document:
(i) if
the
Borrower shall have failed to elect a Eurodollar Advance under Section 2.2
or this
Section 3.3,
as the
case may be, in connection with any borrowing of new Loans or expiration
of an
Eurodollar Interest Period with respect to any existing Eurodollar Advance,
the
amount of the Loans subject to such borrowing or such existing Eurodollar
Advance shall thereafter be an ABR Advance until such time, if any, as
the
Borrower shall elect a new Eurodollar Advance pursuant to this Section 3.3,
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(ii) the
Borrower shall not be permitted to select a Eurodollar Advance the Eurodollar
Interest Period in respect of which ends later than the Maturity Date,
and
(iii) the
Borrower shall not be permitted to have more than ten Eurodollar Advances
outstanding at any one time, it being understood and agreed that each borrowing
of Eurodollar Advances pursuant to a single Borrowing Request shall constitute
the making of one Eurodollar Advance for the purpose of calculating such
limitation.
SECTION 3.4 Interest
Rates and Payment Dates
(a) Prior
to Maturity. Except
as
otherwise provided in Section 3.4(b)
and
Section 3.4(c),
the
Loans shall bear interest on the unpaid principal balance thereof at the
applicable interest rate or rates per annum set forth below:
|
LOANS
|
RATE
|
|
Loans
constituting ABR Advances
|
Alternate
Base Rate applicable thereto plus
the
Applicable Margin.
|
|
Loans
constituting Eurodollar Advances
|
Eurodollar
Rate applicable thereto plus
the
Applicable Margin.
|
(b) After
Maturity, Late Payment Rate. After
maturity, whether by acceleration, notice of intention to prepay or otherwise,
the outstanding principal balance of the Loans shall bear interest at the
Alternate Base Rate plus
2% per
annum until paid (whether before or after the entry of any judgment
thereon).
Any
payment of principal, interest or any Fees not paid on the date when due
and
payable shall bear interest at the Alternate Base Rate plus
2% per
annum from the due date thereof until the date such payment is made (whether
before or after the entry of any judgment thereon).
(c) Highest
Lawful Rate. Notwithstanding
anything to the contrary contained in this Agreement, at no time shall
the
interest rate payable to any Lender on any of its Loans, together with
any Fees
and all other amounts payable hereunder to such Lender to the extent the
same
constitute or are deemed to constitute interest, exceed the Highest Lawful
Rate.
If
in
respect of any period during the term of this Agreement, any amount paid
to any
Lender hereunder, to the extent the same shall (but for the provisions
of this
Section 3.4)
constitute or be deemed to constitute interest, would exceed the maximum
amount
of interest permitted by the Highest Lawful Rate during such period (such
amount
being hereinafter referred to as an “Unqualified
Amount”),
then
(i) such Unqualified Amount shall be applied or shall be deemed to have
been applied as a prepayment of the Loans of such Lender, and (ii) if, in
any subsequent period during the term of this Agreement, all amounts payable
hereunder to such Lender in respect of such period which constitute or
shall be
deemed to constitute interest shall be less than the maximum amount of
interest
permitted by the Highest Lawful Rate during such period, then
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the
Borrower shall pay to such Lender in respect of such period an amount (each
a
“Compensatory
Interest Payment”)
equal
to the lesser of (x) a sum which, when added to all such amounts, would
equal the maximum amount of interest permitted by the Highest Lawful Rate
during
such period, and (y) an amount equal to the aggregate sum of all
Unqualified Amounts less
all other
Compensatory Interest Payments.
(d) General.
Interest
shall be payable in arrears on each Interest Payment Date, on the Expiration
Date and, to the extent provided in Section 2.6(d),
upon
each prepayment of the Loans.
Any
change
in the interest rate on the Loans resulting from an increase or a decrease
in
the Alternate Base Rate or any reserve requirement shall become effective
as of
the opening of business on the day on which such change shall become
effective.
The
Administrative Agent shall (i) in accordance with its customary practice,
provide notice to the Borrower when interest payments are due, and (ii) as
soon as practicable, notify the Borrower and the Lenders of the effective
date
and the amount of each change in the Prime Rate, but any failure to so
notify
shall not in any manner affect the obligation of the Borrower to pay interest
on
the Loans in the amounts and on the dates set forth herein. Each determination
by the Administrative Agent of the Alternate Base Rate and the Eurodollar
Rate
pursuant to this Agreement shall be conclusive and binding on the Borrower
absent manifest error.
The
Borrower acknowledges that to the extent interest payable on the Loans
is based
on the Alternate Base Rate, such rate is only one of the bases for computing
interest on loans made by the Lenders, and by basing interest payable on
ABR
Advances on the Alternate Base Rate, the Lenders have not committed to
charge,
and the Borrower has not in any way bargained for, interest based on a
lower or
the lowest rate at which the Lenders may now or in the future make extensions
of
credit to other Persons.
All
interest (other than interest calculated with reference to the Prime Rate)
shall
be calculated on the basis of a 360-day year for the actual number of days
elapsed, and all interest determined with reference to the Prime Rate shall
be
calculated on the basis of a 365/366-day year for the actual number of
days
elapsed.
SECTION 3.5 Indemnification
for Loss
Notwithstanding
anything contained herein to the contrary, if: (i) the Borrower shall fail
to borrow a Eurodollar Advance or if the Borrower shall fail to Convert
a
Eurodollar Advance after it shall have given notice to do so in which it
shall
have requested a Eurodollar Advance pursuant to Section 2.2
or
Section 3.3,
as the
case may be, (ii) a Eurodollar Advance shall be terminated for any reason
prior to the last day of the Eurodollar Interest Period applicable thereto,
(iii) any repayment or prepayment of the principal amount of a Eurodollar
Advance is made for any reason on a date which is prior to the last day
of the
Eurodollar Interest Period applicable thereto, or (iv) the Borrower shall
have revoked a notice of prepayment or notice of termination of the Commitments
that was conditioned upon the effectiveness of other credit facilities
or the
consummation of the issuance of long term Indebtedness or equity securities
pursuant to Section 2.5
or
Section 2.6,
the
Borrower agrees to indemnify each Lender against, and to pay on demand
directly
to such Lender the amount (calculated by such Lender using any method chosen
by
such Lender which is customarily used by such Lender for such purpose)
equal to
any loss or expense suffered by such Lender as a result of such failure
to
borrow or Convert, or such termination, repayment, prepayment or revocation,
including any loss, cost or expense suffered by such Lender in liquidating
or
employing deposits acquired to
-24-
fund
or
maintain the funding of such Eurodollar Advance or redeploying funds prepaid
or
repaid, in amounts which correspond to such Eurodollar Advance and any
reasonable internal processing charge customarily charged by such Lender
in
connection therewith.
SECTION 3.6 Reimbursement
for Costs, Etc.
If
at any
time or from time to time there shall occur a Regulatory Change and any
Lender
shall have reasonably determined that such Regulatory Change (i) shall have
had or will thereafter have the effect of reducing (A) the rate of return
on such Lender’s capital or the capital of any Person directly or indirectly
owning or controlling such Lender (each a “Control
Person”),
or
(B) the asset value (for capital purposes) to such Lender or such Control
Person, as applicable, of the Loans, or any participation therein, in any
case
to a level below that which such Lender or such Control Person could have
achieved or would thereafter be able to achieve but for such Regulatory
Change
(after taking into account such Lender’s or such Control Person’s policies
regarding capital), (ii) will impose, modify or deem applicable any
reserve, asset, special deposit or special assessment requirements on deposits
obtained in the interbank eurodollar market in connection with the Loan
Documents (excluding, with respect to any Eurodollar Advance, any such
requirement which is included in the determination of the rate applicable
thereto), (iii) will subject such Lender or such Control Person, as
applicable, to any tax (documentary, stamp or otherwise) with respect to
this
Agreement or any Note, or (iv) will change the basis of taxation of
payments to such Lender or such Control Person, as applicable, of principal,
interest or fees payable under the Loan Documents (except, in the case
of
clauses (iii) and (iv) above, for any tax or changes in the rate of tax on
such Lender’s or such Control Person’s net income) then, in each such case,
within ten days after demand by such Lender, the Borrower shall pay to
such
Lender or such Control Person, as the case may be, such additional amount
or
amounts as shall be sufficient to compensate such Lender or such Control
Person,
as the case may be, for any such reduction, reserve or other requirement,
tax,
loss, cost or expense (excluding general administrative and overhead costs)
(collectively, “Costs”)
attributable to such Lender’s or such Control Person’s compliance during the
term hereof with such Regulatory Change.
Each
Lender may make multiple requests for compensation under this
Section.
Notwithstanding
the foregoing, the Borrower will not be required to compensate any Lender
for
any Costs under this Section 3.6
arising
prior to 45 days preceding the date of demand, unless the applicable
Regulatory Change giving rise to such Costs is imposed retroactively.
In
the
case of retroactivity, such notice shall be provided to the Borrower not
later
than 45 days from the date that such Lender learned of such Regulatory
Change.
The
Borrower’s obligation to compensate such Lender shall be contingent upon the
provision of such timely notice (but any failure by such Lender to provide
such
timely notice shall not affect the Borrower’s obligations with respect to
(i) Costs incurred from the date as of which such Regulatory Change became
effective to the date that is 45 days after the date such Lender reasonably
should have learned of such Regulatory Change and (ii) Costs incurred
following the provision of such notice).
SECTION 3.7 Illegality
of Funding
Notwithstanding
any other provision hereof, if any Lender shall reasonably determine that
any
law, regulation, treaty or directive, or any change therein or in
the
-25-
interpretation
or application thereof, shall make it unlawful for such Lender to make
or
maintain any Eurodollar Advance as contemplated by this Agreement, such
Lender
shall promptly notify the Borrower and the Administrative Agent thereof,
and
(a) the commitment of such Lender to make such Eurodollar Advances or
Convert ABR Advances to such Eurodollar Advances shall forthwith be suspended,
(b) such Lender shall fund its portion of each requested Eurodollar Advance
as an ABR Advance and (c) such Lender’s Loans then outstanding as such
Eurodollar Advances, if any, shall be Converted automatically to an ABR
Advance
on the last day of the then current Eurodollar Interest Period applicable
thereto or at such earlier time as may be required.
If
the
commitment of any Lender with respect to Eurodollar Advances is suspended
pursuant to this Section and such Lender shall have obtained actual knowledge
that it is once again legal for such Lender to make or maintain Eurodollar
Advances, such Lender shall promptly notify the Administrative Agent and
the
Borrower thereof and, upon receipt of such notice by each of the Administrative
Agent and the Borrower, such Lender’s commitment to make or maintain Eurodollar
Advances shall be reinstated.
If
the
commitment of any Lender with respect to Eurodollar Advances is suspended
pursuant to this Section, such suspension shall not otherwise affect such
Lender’s Commitment.
SECTION 3.8 Option
to Fund; Substituted Interest Rate
(a) Each
Lender has indicated that, if the Borrower requests a Eurodollar Advance,
such
Lender may wish to purchase one or more deposits in order to fund or maintain
its funding of its Pro Rata Percentage of such Eurodollar Advance during
the
Eurodollar Interest Period with respect thereto; it being understood that
the
provisions of this Agreement relating to such funding are included only
for the
purpose of determining the rate of interest to be paid in respect of such
Eurodollar Advance and any amounts owing under Section 3.5
and
Section 3.6.
Each
Lender shall be entitled to fund and maintain its funding of all or any
part of
each Eurodollar Advance in any manner it sees fit, but all such determinations
hereunder shall be made as if such Lender had actually funded and maintained
its
Pro Rata Percentage of each Eurodollar Advance during the applicable Eurodollar
Interest Period through the purchase of deposits in an amount equal to
the
amount of its Pro Rata Percentage of such Eurodollar Advance and having
a
maturity corresponding to such Eurodollar Interest Period.
Each
Lender may fund its Loans from or for the account of any branch or office
of
such Lender as such Lender may choose from time to time, subject to Section 3.10.
(b) In
the
event that (i) the Administrative Agent shall have determined in good faith
(which determination shall be conclusive and binding upon the Borrower)
that by
reason of circumstances affecting the interbank eurodollar market either
adequate and reasonable means do not exist for ascertaining the Eurodollar
Rate
applicable pursuant to Section 2.2
or
Section 3.3,
or
(ii) the Required Lenders shall have notified the Administrative Agent that
they have in good faith determined (which determination shall be conclusive
and
binding on the Borrower) that the applicable Eurodollar Rate will not adequately
and fairly reflect the cost to such Lenders of maintaining or funding loans
bearing interest based on such Eurodollar Rate with respect to any portion
of
the Loans that the Borrower has requested be made as Eurodollar Advances
or any
Eurodollar Advance that will result from the requested conversion of any
portion
of the Loans into Eurodollar Advances (each, an “Affected
Advance”),
the
Administrative Agent shall promptly notify the Borrower and the Lenders
(by fax
or other writing) of such
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determination
on or, to the extent practicable, prior to the requested Borrowing Date
or
conversion date for such Affected Advances.
If
the
Administrative Agent shall give such notice, (A) any Affected Advances
shall be made as ABR Advances, (B) the Loans (or any portion thereof) that
were to have been Converted to Affected Advances shall be Converted to
or
continued as ABR Advances, and (C) any outstanding Affected Advances shall
be Converted, on the last day of the then current Eurodollar Interest Period
with respect thereto, to ABR Advances.
Until
any
notice under clauses (i) or (ii), as the case may be, of this Section 3.8(b)
has been
withdrawn by the Administrative Agent (by notice to the Borrower) promptly
upon
either (x) the Administrative Agent having determined that such
circumstances affecting the relevant market no longer exist and that adequate
and reasonable means do exist for determining the Eurodollar Rate pursuant
to
Section 2.2
or
Section 3.3,
or
(y) the Administrative Agent having been notified by such Required Lenders
that circumstances no longer render the Loans (or any portion thereof)
Affected
Advances, no further Eurodollar Advances shall be required to be made by
the
Lenders nor shall the Borrower have the right to Convert all or any portion
of
the Loans to Eurodollar Advances.
SECTION 3.9 Certificates
of Payment and Reimbursement
Each
Lender agrees, in connection with any request by it for payment or reimbursement
pursuant to Section 3.5
or
Section 3.6,
to
provide the Borrower with a certificate, signed by an officer of such Lender,
setting forth a description in reasonable detail of any such payment or
reimbursement. Each determination by each Lender of such payment or
reimbursement shall be conclusive absent manifest error.
SECTION 3.10 Taxes;
Net Payments
(a) All
payments made by the Borrower under the Loan Documents shall be made free
and
clear of, and without reduction for or on account of, any taxes required
by law
to be withheld from any amounts payable under the Loan Documents.
In
the
event that the Borrower is prohibited by law from making such payments
free of
deductions or withholdings, then the Borrower shall pay such additional
amounts
to the Administrative Agent, for the benefit of the Lenders, as may be
necessary
in order that the actual amounts received by the Lenders in respect of
interest
and any other amounts payable under the Loan Documents after deduction
or
withholding (and after payment of any additional taxes or other charges
due as a
consequence of the payment of such additional amounts) shall equal the
amount
that would have been received if such deduction or withholding were not
required.
In
the
event that any such deduction or withholding can be reduced or nullified
as a
result of the application of any relevant double taxation convention, the
Lenders and the Administrative Agent will, at the expense of the Borrower,
cooperate with the Borrower in making application to the relevant taxing
authorities seeking to obtain such reduction or nullification, provided
that the
Lenders and the Administrative Agent shall have no obligation to (i) engage
in any litigation, hearing or proceeding with respect thereto or
(ii) disclose any tax return or other confidential information.
If
the
Borrower shall make any payment under this Section or shall make any deduction
or withholding from amounts paid under any Loan Document, the Borrower
shall
forthwith forward to the Administrative Agent original or certified copies
of
official receipts or other evidence acceptable to the Administrative Agent
establishing each such payment, deduction or
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withholding,
as the case may be, and the Administrative Agent in turn shall distribute
copies
thereof to each Lender.
If
any
payment to any Lender under any Loan Document is or becomes subject to
any
withholding, such Lender shall (unless otherwise required by a Governmental
Authority or as a result of any law, rule, regulation, order or similar
directive applicable to such Lender) designate a different office or branch
to
which such payment is to be made from that initially selected thereby,
if such
designation would avoid such withholding and would not be otherwise
disadvantageous to such Lender in any respect.
In
the
event that any Lender determines that it received a refund or credit for
taxes
paid by the Borrower under this Section, such Lender shall promptly notify
the
Administrative Agent and the Borrower of such fact and shall remit to the
Borrower the amount of such refund or credit applicable to the payments
made by
the Borrower in respect of such Lender under this Section.
(b) Any
Foreign Lender that is entitled to an exemption from or reduction of withholding
tax under the law of the jurisdiction in which the Borrower is located,
or any
treaty to which such jurisdiction is a party, with respect to payments
under the
Loan Documents shall deliver to the Borrower (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 or reasonably
requested by the Borrower as will permit such payments to be made without
withholding or at a reduced rate.
Notwithstanding
any provision herein to the contrary, the Borrower shall have no obligation
to
pay to any Lender any amount which the Borrower is liable to withhold due
to the
failure of such Lender to file any statement of exemption required by the
Internal Revenue Code.
SECTION 3.11 Facility
Fee
The
Borrower agrees to pay to the Administrative Agent for the pro rata account
of
each Lender a fee (the “Facility
Fee”)
during
the period commencing on the Effective Date and ending on the Facility
Fee
Termination Date, payable quarterly in arrears on the last day of each
March,
June, September and December of each year, commencing on the last day of
the
calendar quarter in which the Effective Date shall have occurred, and on
the
Facility Fee Termination Date, at a rate per annum equal to the Applicable
Margin of (i) prior to the date that is the earlier of (x) the third
Borrowing Date and (y) the last day of the Commitment Period, the Available
Commitment of such Lender plus
the sum
of the outstanding principal balance of all Loans of such Lender on such
date
and (ii) on any day thereafter, the sum of the outstanding principal
balance of all Loans of such Lender on such date. The Facility Fee shall
be
computed on the basis of a 360-day year for the actual number of days
elapsed.
SECTION 3.12 [Intentionally
Omitted]
SECTION 3.13 Replacement
of Lender
If
the
Borrower is obligated to pay to any Lender any amount under Section 3.6
or
Section 3.10,
the
Borrower shall have the right within 90 days thereafter, in accordance
with the
requirements of Section 11.7(b),
if no
Default or Event of Default shall exist, to replace such Lender (the
“Replaced
Lender”)
with
one or more other assignees (each a “Replacement
Lender”),
provided
that
(i) at the time of any replacement pursuant to this Section, the
Replacement Lender shall enter into one or more Assignment and Acceptance
Agreements
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pursuant
to Section 11.7(b)
(with the
processing and recordation fee referred to in Section 11.7(b)
payable
pursuant to said Section 11.7(b)
to be
paid by the Replacement Lender) pursuant to which the Replacement Lender
shall
acquire the Commitment (if any) and the outstanding Loans of the Replaced
Lender
and, in connection therewith, shall pay the following: (a) to the Replaced
Lender, an amount equal to the sum of (A) an amount equal to the principal
of, and all accrued interest on, all outstanding Loans of the Replaced
Lender
and (B) an amount equal to all accrued, but unpaid, fees owing to the
Replaced Lender and (b) to the Administrative Agent an amount equal to all
amounts owed by such Replaced Lender to the Administrative Agent under
this
Agreement, including, without limitation, an amount equal to the principal
of,
and all accrued interest on, all outstanding Loans of the Replaced Lender,
a
corresponding amount of which was made available by the Administrative
Agent to
the Borrower pursuant to Section 3.1
and which
has not been repaid to the Administrative Agent by such Replaced Lender
or the
Borrower, and (ii) all obligations of the Borrower owing to the Replaced
Lender (other than those specifically described in clause (i) above in
respect of which the assignment purchase price has been, or is concurrently
being, paid) shall be paid in full to such Replaced Lender concurrently
with
such replacement.
Upon
the
execution of the respective Assignment and Acceptance Agreements and the
payment
of amounts referred to in clauses (i) and (ii) of this Section 3.13,
the
Replacement Lender shall become a Lender hereunder and the Replaced Lender
shall
cease to constitute a Lender hereunder, except with respect to indemnification
provisions under this Agreement that are intended to survive the termination
of
the Commitments and the repayment of the Loans.
ARTICLE 4
REPRESENTATIONS
AND WARRANTIES
In
order
to induce the Administrative Agent and the Lenders to enter into this Agreement,
and the Lenders to make Loans, the Borrower hereby makes the following
representations and warranties to the Administrative Agent and the
Lenders:
SECTION 4.1 Existence
and Power
Each
of
the Borrower and the Subsidiaries is duly organized, validly existing and
in
good standing under the laws of the jurisdiction of its incorporation or
formation (except, in the case of the Subsidiaries, where the failure to
be in
such good standing could not reasonably be expected to have a Material
Adverse
effect), has all requisite corporate power and authority to own its Property
and
to carry on its business as now conducted, and is qualified to do business
as a
foreign corporation and is in good standing in each jurisdiction in which
it
owns or leases real Property or in which the nature of its business requires
it
to be so qualified (except those jurisdictions where the failure to be
so
qualified or to be in good standing could not reasonably be expected to
have a
Material Adverse effect).
SECTION 4.2 Authority
The
Borrower has full corporate power and authority to enter into, execute,
deliver
and perform the terms of the Loan Documents, all of which have been duly
authorized by
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all
proper
and necessary corporate action and are not in contravention of any applicable
law or the terms of its Certificate of Incorporation and By-Laws.
No
consent
or approval of, or other action by, shareholders of the Borrower, any
Governmental Authority, or any other Person (which has not already been
obtained) is required to authorize in respect of the Borrower, or is required
in
connection with the execution, delivery, and performance by the Borrower
of the
Loan Documents or is required as a condition to the enforceability of the
Loan
Documents against the Borrower.
SECTION 4.3 Binding
Agreement
The
Loan
Documents constitute the valid and legally binding obligations of the Borrower,
enforceable in accordance with their respective terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors’ rights generally and by equitable principles relating to the
availability of specific performance as a remedy.
SECTION 4.4 Litigation
As
at
February 2, 2007, there were no actions, suits, arbitration proceedings or
claims (whether purportedly on behalf of the Borrower, any Subsidiary or
otherwise) pending or, to the knowledge of the Borrower, threatened against
the
Borrower or any Subsidiary or any of their respective Properties, or maintained
by the Borrower or any Subsidiary, at law or in equity, before any Governmental
Authority which could reasonably be expected to have a Material Adverse
effect.
There are no proceedings pending or, to the knowledge of the Borrower,
threatened against the Borrower or any Subsidiary (a) which call into
question the validity or enforceability of any Loan Document, or otherwise
seek
to invalidate, any Loan Document, or (b) which might, individually or in
the aggregate, materially and adversely affect any of the transactions
contemplated by any Loan Document (it being understood that the Caremark
Acquisition is not a transaction contemplated by any Loan Document for
the
purposes of this clause (b)).
SECTION 4.5 No
Conflicting Agreements
(a) Neither
the Borrower nor any Subsidiary is in default under any agreement to which
it is
a party or by which it or any of its Property is bound the effect of which
could
reasonably be expected to have a Material Adverse effect.
No
notice
to, or filing with, any Governmental Authority is required for the due
execution, delivery and performance by the Borrower of the Loan
Documents.
(b) No
provision of any existing material mortgage, material indenture, material
contract or material agreement or of any existing statute, rule, regulation,
judgment, decree or order binding on the Borrower or any Subsidiary or
affecting
the Property of the Borrower or any Subsidiary conflicts with, or requires
any
consent which has not already been obtained under, or would in any way
prevent
the execution, delivery or performance by the Borrower of the terms of,
any Loan
Document.
The
execution, delivery or performance by the Borrower of the terms of each
Loan
Document will not constitute a default under, or result in the
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creation
or imposition of, or obligation to create, any Lien upon the Property of
the
Borrower or any Subsidiary pursuant to the terms of any such mortgage,
indenture, contract or agreement.
SECTION 4.6 Taxes
The
Borrower and each Subsidiary has filed or caused to be filed all tax returns,
and has paid, or has made adequate provision for the payment of, all taxes
shown
to be due and payable on said returns or in any assessments made against
them,
the failure of which to file or pay could reasonably be expected to have
a
Material Adverse effect, and no tax Liens (other than Liens permitted under
Section 8.2)
have
been filed against the Borrower or any Subsidiary and no claims are being
asserted with respect to such taxes which are required by GAAP to be reflected
in the Financial Statements and are not so reflected, except for taxes
which
have been assessed but which are not yet due and payable.
The
charges, accruals and reserves on the books of the Borrower and each Subsidiary
with respect to all federal, state, local and other taxes are considered
by the
management of the Borrower to be adequate, and the Borrower knows of no
unpaid
assessment which (a) could reasonably be expected to have a Material
Adverse effect, or (b) is or might be due and payable against it or any
Subsidiary or any Property of the Borrower or any Subsidiary, except such
thereof as are being contested in good faith and by appropriate proceedings
diligently conducted, and for which adequate reserves have been set aside
in
accordance with GAAP or which have been assessed but are not yet due and
payable.
SECTION 4.7 Compliance
with Applicable Laws; Filings
Neither
the Borrower nor any Subsidiary is in default with respect to any judgment,
order, writ, injunction, decree or decision of any Governmental Authority
which
default could reasonably be expected to have a Material Adverse
effect.
The
Borrower and each Subsidiary is complying with all applicable statutes,
rules
and regulations of all Governmental Authorities, a violation of which could
reasonably be expected to have a Material Adverse effect.
The
Borrower and each Subsidiary has filed or caused to be filed with all
Governmental Authorities all reports, applications, documents, instruments
and
information required to be filed pursuant to all applicable laws, rules,
regulations and requests which, if not so filed, could reasonably be expected
to
have a Material Adverse effect.
SECTION 4.8 Governmental
Regulations
Neither
the Borrower nor any Subsidiary nor any corporation controlling the Borrower
or
any Subsidiary or under common control with the Borrower or any Subsidiary
is
subject to regulation under the Investment Company Act of 1940, as amended,
or
is subject to any statute or regulation which regulates the incurrence
of
Indebtedness.
SECTION 4.9 Federal
Reserve Regulations; Use of Proceeds
The
Borrower is not engaged principally, or as one of its important activities,
in
the business of extending credit for the purpose of purchasing or carrying
any
margin stock within the meaning of Regulation U of the Board of Governors
of the
Federal Reserve System, as amended.
No
part of
the proceeds of the Loans has been or will be used, directly or indirectly,
and
whether immediately, incidentally or ultimately, for a purpose which violates
any law, rule
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or
regulation of any Governmental Authority, including, without limitation,
the
provisions of Regulations T, U or X of the Board of Governors of the
Federal Reserve System, as amended.
Anything
in this Agreement to the contrary notwithstanding, no Lender shall be obligated
to extend credit to or on behalf of the Borrower in violation of any limitation
or prohibition provided by any applicable law, regulation or statute, including
said Regulation U.
Following
application of the proceeds of each Loan, not more than 25% (or such greater
or
lesser percentage as is provided in the exclusions from the definition
of
“Indirectly Secured” contained in said Regulation U as in effect at the
time of the making of such Loan) of the value of the assets of the Borrower
and
the Subsidiaries on a Consolidated basis that are subject to Section 8.2
will be
Margin Stock.
In
addition, no part of the proceeds of any Loan will be used, whether directly
or
indirectly, and whether immediately, incidentally or ultimately, to make
a loan
to any director or executive officer of the Borrower or any
Subsidiary.
SECTION 4.10 No
Misrepresentation
No
representation or warranty contained in any Loan Document and no certificate
or
written report furnished by the Borrower to the Administrative Agent or
any
Lender pursuant to any Loan Document contains or will contain, as of its
date, a
misstatement of material fact, or omits or will omit to state, as of its
date, a
material fact required to be stated in order to make the statements therein
contained not misleading in the light of the circumstances under which
made (it
being understood that the Borrower makes no representation or warranty
hereunder
with respect to any projections or other forward looking
information).
SECTION 4.11 Plans
Each
Employee Benefit Plan of the Borrower, each Subsidiary and each ERISA Affiliate
is in compliance with ERISA and the Internal Revenue Code, where applicable,
except where the failure to so comply would not be material.
The
Borrower, each Subsidiary and each ERISA Affiliate have complied with the
material requirements of Section 515 of ERISA with respect to each Pension
Plan which is a Multiemployer Plan, except where the failure to so comply
would
not be material.
The
Borrower, each Subsidiary and each ERISA Affiliate has, as of the date
hereof,
made all contributions or payments to or under each Pension Plan required
by law
or the terms of such Pension Plan or any contract or agreement.
No
liability to the PBGC has been, or is reasonably expected by the Borrower,
any
Subsidiary or any ERISA Affiliate to be, incurred by the Borrower, any
Subsidiary or any ERISA Affiliate.
Liability,
as referred to in this Section 4.11,
includes
any joint and several liability, but excludes any current or, to the extent
it
represents future liability in the ordinary course, any future liability
for
premiums under Section 4007 of ERISA.
Each
Employee Benefit Plan which is a group health plan within the meaning of
Section 5000(b)(1) of the Internal Revenue Code is in material compliance
with the continuation of health care coverage requirements of Section 4980B
of the Internal Revenue Code and with the portability, nondiscrimination
and
other requirements of Sections 9801, 9802, 9803, 9811 and 9812 of the
Internal Revenue Code.
SECTION 4.12 Environmental
Matters
Neither
the Borrower nor any Subsidiary (a) has received written notice or
otherwise learned of any claim, demand, action, event, condition, report
or
investigation
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indicating
or concerning any potential or actual liability which individually or in
the
aggregate could reasonably be expected to have a Material Adverse effect,
arising in connection with (i) any non-compliance with or violation of the
requirements of any applicable federal, state or local environmental health
or
safety statute or regulation, or (ii) the release or threatened release of
any toxic or hazardous waste, substance or constituent, or other substance
into
the environment, (b) to the best knowledge of the Borrower, has any
threatened or actual liability in connection with the release or threatened
release of any toxic or hazardous waste, substance or constituent, or other
substance into the environment which individually or in the aggregate could
reasonably be expected to have a Material Adverse effect, (c) has received
notice of any federal or state investigation evaluating whether any remedial
action is needed to respond to a release or threatened release of any toxic
or
hazardous waste, substance or constituent or other substance into the
environment for which the Borrower or any Subsidiary is or would be liable,
which liability would reasonably be expected to have a Material Adverse
effect,
or (d) has received notice that the Borrower or any Subsidiary is or may be
liable to any Person under the Comprehensive Environmental Response,
Compensation and Liability Act, as amended, 42 U.S.C. Section 9601
et seq.,
or any
analogous state law, which liability would reasonably be expected to have
a
Material Adverse effect.
The
Borrower and each Subsidiary is in compliance with the financial responsibility
requirements of federal and state environmental laws to the extent applicable,
including those contained in 40 C.F.R., parts 264 and 265,
subpart H, and any analogous state law, except in those cases in which the
failure so to comply would not reasonably be expected to have a Material
Adverse
effect.
SECTION 4.13 Financial
Statements
The
Borrower has heretofore delivered to the Lenders through the Administrative
Agent copies of the audited Consolidated Balance Sheet of the Borrower
and its
Subsidiaries as of December 31, 2006, and the related Consolidated
Statements of Operations, Shareholders’ Equity and Cash Flows for the fiscal
year then ended.
The
financial statements referred to immediately above, including all related
notes
and schedules, are herein referred to collectively as the “Financial
Statements.” The
Financial Statements fairly present the Consolidated financial condition
and
results of the operations of the Borrower and the Subsidiaries as of the
date
and for the period indicated therein and, except as noted therein, have
been
prepared in conformity with GAAP as then in effect.
Neither
the Borrower nor any of the Subsidiaries has any obligation or liability
of any
kind (whether fixed, accrued, contingent, unmatured or otherwise) which,
in
accordance with GAAP as then in effect, should have been disclosed in the
Financial Statements and was not. During the period from December 31, 2005
to and including February 2, 2007 there was no Material Adverse change,
including as a result of any change in law or any change in the consolidated
financial condition, operations, business or Property of the Borrower and
its
Subsidiaries taken as a whole.
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ARTICLE 5
CONDITIONS
OF LENDING —
LOANS
ON
THE FIRST BORROWING DATE
In
addition to the requirements set forth in Article 6,
the
obligation of each Lender on the first Borrowing Date to make a Loan is
subject
to the fulfillment of the following conditions precedent prior to or
simultaneously with the Effective Date:
SECTION 5.1 Evidence
of Corporate Action
The
Administrative Agent shall have received a certificate, dated the Effective
Date, of the Secretary or an Assistant Secretary of the Borrower
(i) attaching a true and complete copy of the resolutions of its Board of
Directors and of all documents evidencing all other necessary corporate
action
(in form and substance reasonably satisfactory to the Administrative Agent)
taken by the Borrower to authorize the Loan Documents and the transactions
contemplated thereby, (ii) attaching a true and complete copy of its
Certificate of Incorporation and By-Laws, (iii) setting forth the
incumbency of the officer or officers of the Borrower who may sign the
Loan
Documents and any other certificates, requests, notices or other documents
now
or in the future required thereunder, and (iv) attaching a long-form
certificate of good standing of the Secretary of State of the State of
Delaware.
SECTION 5.2 Notes
The
Administrative Agent shall have received a Note for each Lender that shall
have
requested one, executed by the Borrower.
SECTION 5.3 Opinion
of Counsel to the Borrower
The
Administrative Agent shall have received:
(a) an
opinion
of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, counsel to the Borrower, dated the Effective Date,
and in
the form of Exhibit D-1; and
(b) an
opinion
of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel to the Borrower, dated the
Effective Date, and in the form of Exhibit D-2.
SECTION 5.4 Caremark
Acquisition
The
Administrative Agent shall have received a certificate of the Chief Financial
Officer of the Borrower, dated as of the first Borrowing Date, certifying
that
the closing of the Caremark Acquisition has been or will be consummated
substantially in accordance with all material terms and conditions of the
Caremark Merger Agreement.
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ARTICLE 6
CONDITIONS
TO LENDING —
LOANS
ON
EACH BORROWING DATE
The
obligation of each Lender on any Borrowing Date to make each Loan is subject
to
the fulfillment of the following conditions precedent:
SECTION 6.1 Compliance
On
each
Borrowing Date, and after giving effect to the Loans to be made on such
Borrowing Date, (a) there shall exist no Default or Event of Default, and
(b) the representations and warranties contained in this Agreement shall be
true and correct with the same effect as though such representations and
warranties had been made on such Borrowing Date, except those which are
expressly specified to be made as of an earlier date.
SECTION 6.2 Requests
The
Administrative Agent shall have received a Borrowing Request (which shall
comply
with the provisions of Section 2.2)
from the
Borrower.
SECTION 6.3 Loan
Closings
All
documents required by the provisions of this Agreement to have been executed
or
delivered by the Borrower to the Administrative Agent or any Lender on
or before
the applicable Borrowing Date shall have been so executed or delivered
on or
before such Borrowing Date.
ARTICLE 7
AFFIRMATIVE
COVENANTS
The
Borrower covenants and agrees that on and after the Effective Date and
until the
payment in full of the Loans and all other sums and amounts payable under
the
Loan Documents, the Borrower will:
SECTION 7.1 Legal
Existence
Except
as
may otherwise be permitted by Section 8.3
and
Section 8.4,
maintain, and cause each Subsidiary to maintain, its corporate existence
in good
standing in the jurisdiction of its incorporation or formation and in each
other
jurisdiction in which the failure so to do could reasonably be expected
to have
a Material Adverse effect, except that the corporate existence of Subsidiaries
operating closing or discontinued operations may be terminated.
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SECTION 7.2 Taxes
Pay
and
discharge when due, and cause each Subsidiary so to do, all taxes, assessments,
governmental charges, license fees and levies upon or with respect to the
Borrower and such Subsidiary, and upon the income, profits and Property
thereof
unless, and only to the extent, that either (i)(a) such taxes, assessments,
governmental charges, license fees and levies shall be contested in good
faith
and by appropriate proceedings diligently conducted by the Borrower or
such
Subsidiary, and (b) such reserve or other appropriate provision as shall be
required by GAAP shall have been made therefor, or (ii) the failure to pay
or discharge such taxes, assessments, governmental charges, license fees
and
levies could not reasonably be expected to have a Material Adverse
effect.
SECTION 7.3 Insurance
Keep,
and
cause each Subsidiary to keep, insurance with responsible insurance companies
in
such amounts and against such risks as is usually carried by the Borrower
or
such Subsidiary.
SECTION 7.4 Performance
of Obligations
Pay
and
discharge promptly when due, and cause each Subsidiary so to do, all lawful
Indebtedness, obligations and claims for labor, materials and supplies
or
otherwise which, if unpaid, could reasonably be expected to (a) have a
Material Adverse effect, or (b) become a Lien on the Property of the
Borrower or any Subsidiary, except those Liens permitted under Section 8.2,
provided
that
neither the Borrower nor such Subsidiary shall be required to pay or discharge
or cause to be paid or discharged any such Indebtedness, obligation or
claim so
long as (i) the validity thereof shall be contested in good faith and by
appropriate proceedings diligently conducted by the Borrower or such Subsidiary,
and (ii) such reserve or other appropriate provision as shall be required
by GAAP shall have been made therefor.
SECTION 7.5 Condition
of Property
Except
for
ordinary wear and tear, at all times, maintain, protect and keep in good
repair,
working order and condition, all material Property necessary for the operation
of its business (other than Property which is replaced with similar Property)
as
then being operated, and cause each Subsidiary so to do.
SECTION 7.6 Observance
of Legal Requirements
Observe
and comply in all material respects, and cause each Subsidiary so to do,
with
all laws, ordinances, orders, judgments, rules, regulations, certifications,
franchises, permits, licenses, directions and requirements of all Governmental
Authorities, which now or at any time hereafter may be applicable to it
or to
such Subsidiary, a violation of which could reasonably be expected to have
a
Material Adverse effect.
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SECTION 7.7 Financial
Statements and Other Information
Maintain,
and cause each Subsidiary to maintain, a standard system of accounting
in
accordance with GAAP, and furnish to each Lender:
(a) As
soon as
available and, in any event, within 120 days after the close of each fiscal
year, a copy of (x) the Borrower’s 10-K in respect of such fiscal year, and
(y)(i) the Borrower’s Consolidated Balance Sheet as of the end of such
fiscal year, and (ii) the related Consolidated Statements of Operations,
Shareholders’ Equity and Cash Flows, as of and through the end of such fiscal
year, setting forth in each case in comparative form the corresponding
figures
in respect of the previous fiscal year, all in reasonable detail, and
accompanied by a report of the Borrower’s auditors, which report shall state
that (A) such auditors audited such financial statements, (B) such
audit was made in accordance with generally accepted auditing standards
in
effect at the time and provides a reasonable basis for such opinion, and
(C) said financial statements have been prepared in accordance with
GAAP;
(b) As
soon as
available, and in any event within 60 days after the end of each of the
first three fiscal quarters of each fiscal year, a copy of (x) the
Borrower’s 10-Q in respect of such fiscal quarter, and (y)(i) the
Borrower’s Consolidated Balance Sheet as of the end of such quarter and
(ii) the related Consolidated Statements of Operations, Shareholders’
Equity and Cash Flows for (A) such quarter and (B) the period from the
beginning of the then current fiscal year to the end of such quarter, in
each
case in comparable form with the prior fiscal year, all in reasonable detail
and
prepared in accordance with GAAP (without footnotes and subject to year-end
adjustments);
(c) Simultaneously
with the delivery of the financial statements required by
clauses (a)
and
(b)
above, a
certificate of the chief financial officer or treasurer of the Borrower
certifying that no Default or Event of Default shall have occurred or be
continuing or, if so, specifying in such certificate all such Defaults
and
Events of Default, and setting forth computations in reasonable detail
demonstrating compliance with Section 8.1
and
Section 8.9;
(d) Prompt
notice upon the Borrower becoming aware of any change in a Pricing
Level;
(e) Promptly
upon becoming available, copies of all regular or periodic reports (including
current reports on Form 8-K) which the Borrower or any Subsidiary may now
or hereafter be required to file with or deliver to the Securities and
Exchange
Commission, or any other Governmental Authority succeeding to the functions
thereof, and copies of all material news releases sent to all
stockholders;
(f) Prompt
written notice of: (i) any citation, summons, subpoena, order to show cause
or other order naming the Borrower or any Subsidiary a party to any proceeding
before any Governmental Authority which could reasonably be expected to
have a
Material Adverse effect, and include with such notice a copy of such citation,
summons, subpoena, order to show cause or other order, (ii) any lapse or
other termination of any license, permit, franchise or other authorization
issued to the Borrower or any Subsidiary by any Governmental Authority,
(iii) any refusal by any Governmental Authority to renew or extend any
license, permit, franchise
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or
other
authorization, and (iv) any dispute between the Borrower or any Subsidiary
and any Governmental Authority, which lapse, termination, refusal or dispute,
referred to in clause (ii), (iii) or (iv) above, could reasonably be
expected to have a Material Adverse effect;
(g) Prompt
written notice of the occurrence of (i) each Default, (ii) each Event
of Default and (iii) each Material Adverse change;
(h) Promptly
upon receipt thereof, copies of any audit reports delivered in connection
with
the statements referred to in Section 7.7(a);
(i) From
time
to time, such other information regarding the financial position or business
of
the Borrower and the Subsidiaries as the Administrative Agent, at the request
of
any Lender, may reasonably request; and
(j) Prompt
written notice of such other information with documentation required by
bank
regulatory authorities under applicable “know your customer” and Anti-Money
Laundering rules and regulations (including, without limitation, the PATRIOT
Act), as from time to time may be reasonably requested by the Administrative
Agent or any Lender.
SECTION 7.8 Records
Upon
reasonable notice and during normal business hours, permit representatives
of
the Administrative Agent and each Lender to visit the offices of the Borrower
and each Subsidiary, to examine the books and records (other than tax returns
and work papers related to tax returns) thereof and auditors’ reports relating
thereto, to discuss the affairs of the Borrower and each Subsidiary with
the
respective officers thereof, and to meet and discuss the affairs of the
Borrower
and each Subsidiary with the Borrower’s auditors.
SECTION 7.9 Authorizations
Maintain
and cause each Subsidiary to maintain, in full force and effect, all copyrights,
patents, trademarks, trade names, franchises, licenses, permits, applications,
reports, and other authorizations and rights, which, if not so maintained,
would
individually or in the aggregate have a Material Adverse effect.
ARTICLE 8
NEGATIVE
COVENANTS
The
Borrower covenants and agrees that on and after the Effective Date and
until the
payment in full of the Loans and all other sums and amounts which are payable
under the Loan Documents, the Borrower will not:
SECTION 8.1 Subsidiary
Indebtedness
Permit
the
Indebtedness of all Subsidiaries (excluding the ESOP Guaranty) to exceed
(on a
combined basis) 10% of Tangible Net Worth.
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SECTION 8.2 Liens
Create,
incur, assume or suffer to exist any Lien against or on any Property now
owned
or hereafter acquired by the Borrower or any of the Subsidiaries, or permit
any
of the Subsidiaries so to do, except any one or more of the following types
of
Liens: (a) Liens in connection with workers’ compensation, unemployment
insurance or other social security obligations (which phrase shall not
be
construed to refer to ERISA or the minimum funding obligations under
Section 412 of the Code), (b) Liens to secure the performance of bids,
tenders, letters of credit, contracts (other than contracts for the payment
of
Indebtedness), leases, statutory obligations, surety, customs, appeal,
performance and payment bonds and other obligations of like nature, in
each such
case arising in the ordinary course of business, (c) mechanics’, workmen’s,
carriers’, warehousemen’s, materialmen’s, landlords’ or other like Liens arising
in the ordinary course of business with respect to obligations which are
not due
or which are being contested in good faith and by appropriate proceedings
diligently conducted, (d) Liens for taxes, assessments, fees or
governmental charges the payment of which is not required by Section 7.2,
(e) easements, rights of way, restrictions, leases of Property to others,
easements for installations of public utilities, title imperfections and
restrictions, zoning ordinances and other similar encumbrances affecting
Property which in the aggregate do not materially impair its use for the
operation of the business of the Borrower or such Subsidiary, (f) Liens on
Property of the Subsidiaries under capital leases and Liens on Property
of the
Subsidiaries acquired (whether as a result of purchase, capital lease,
merger or
other acquisition) and either existing on such Property when acquired,
or
created contemporaneously with or within 12 months of such acquisition to
secure the payment or financing of the purchase price of such Property
(including the construction, development, substantial repair, alteration
or
improvement thereof), and any renewals thereof, provided
that such
Liens attach only to the Property so purchased or acquired (including any
such
construction, development, substantial repair, alteration or improvement
thereof) and provided
further
that the
Indebtedness secured by such Liens is permitted by Section 8.1,
(g) statutory Liens in favor of lessors arising in connection with Property
leased to the Borrower or any of the Subsidiaries, (h) Liens of
attachments, judgments or awards against the Borrower or any of the Subsidiaries
with respect to which an appeal or proceeding for review shall be pending
or a
stay of execution or bond shall have been obtained, or which are otherwise
being
contested in good faith and by appropriate proceedings diligently conducted,
and
in respect of which adequate reserves shall have been established in accordance
with GAAP on the books of the Borrower or such Subsidiary, (i) Liens
securing Indebtedness of a Subsidiary to the Borrower or another Subsidiary,
(j) Liens (other than Liens permitted by any of the foregoing clauses)
arising in the ordinary course of its business which do not secure Indebtedness
and do not, in the aggregate, materially detract from the value of the
business
of the Borrower and its Subsidiaries, taken as a whole, and (k) additional
Liens securing Indebtedness of the Borrower and the Subsidiaries in an
aggregate
outstanding Consolidated principal amount not exceeding 10% of Tangible
Net
Worth.
SECTION 8.3 Dispositions
Make
any
Disposition, or permit any of its Subsidiaries so to do, of all or substantially
all of the assets of the Borrower and the Subsidiaries on a Consolidated
basis.
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SECTION 8.4 Merger
or Consolidation, Etc.
The
Borrower will not consolidate with, be acquired by, or merge into or with
any
Person unless (x) immediately after giving effect thereto no Default or
Event of Default shall or would exist and (y) either (i) the Borrower
or (ii) a corporation organized and existing under the laws of one of the
States of the United States of America shall be the survivor of such
consolidation or merger, provided
that if
the Borrower is not the survivor, the corporation which is the survivor
shall
expressly assume, pursuant to an instrument executed and delivered to the
Administrative Agent, and in form and substance satisfactory to the
Administrative Agent, all obligations of the Borrower under the Loan Documents
and the Administrative Agent shall have received such documents, opinions
and
certificates as it shall have reasonable requested in connection
therewith.
SECTION 8.5 Acquisitions
Make
any
Acquisition, or permit any of the Subsidiaries so to do, except any one
or more
of the following: (a) Intercompany Dispositions permitted by Section 8.3
and
(b) Acquisitions by the Borrower or any of the Subsidiaries (including the
Caremark Acquisition), provided
that
immediately before and after giving effect to each such Acquisition no
Default
or Event of Default shall or would exist.
SECTION 8.6 Restricted
Payments
Make
any
Restricted Payment or permit any of the Subsidiaries so to do, except any
one or
more of the following Restricted Payments: (a) any direct or indirect
Subsidiary may make dividends or other distributions to the Borrower or
to any
other direct or indirect Subsidiary, and (b) the Borrower may make
Restricted Payments, provided
that, in
the case of this clause (b), immediately before and after giving effect
thereto, no Event of Default shall or would exist.
Nothing
in this Section 8.6
shall
prohibit or restrict the declaration or payment of dividends in respect
of the
Series One ESOP Convertible Preferred Stock of the Borrower.
SECTION 8.7 Limitation
on Upstream Dividends by Subsidiaries
Permit
or
cause any of the Subsidiaries to enter into or agree, or otherwise be or
become
subject, to any agreement, contract or other arrangement (other than this
Agreement) with any Person (each a “Restrictive
Agreement”)
pursuant to the terms of which (a) such Subsidiary is or would be
prohibited from declaring or paying any cash dividends on any class of
its stock
owned directly or indirectly by the Borrower or any of the other Subsidiaries
or
from making any other distribution on account of any class of any such
stock
(herein referred to as “Upstream
Dividends”),
or
(b) the declaration or payment of Upstream Dividends by a Subsidiary to the
Borrower or another Subsidiary, on an annual or cumulative basis, is or
would be
otherwise limited or restricted (“Dividend
Restrictions”).
Notwithstanding
the foregoing, nothing in this Section 8.7
shall
prohibit:
(i) Dividend
Restrictions set forth in any Restrictive Agreement in effect on the date
hereof
and any extensions, refinancings, renewals or replacements thereof, provided
that
the
Dividend Restrictions in any such extensions, refinancings,
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renewals
or replacements are no less favorable in any material respect to the
Lenders
than those Dividend Restrictions that are then in effect and that are
being
extended, refinanced, renewed or replaced;
(ii) Dividend
Restrictions existing with respect to any Person acquired by the Borrower
or any
Subsidiary and existing at the time of such acquisition, which Dividend
Restrictions are not applicable to any Person or the property or assets
of any
Person other than such Person or its property or assets acquired, and
any
extensions, refinancings, renewals or replacements of any of the foregoing,
provided
that the
Dividend Restrictions in any such extensions, refinancings, renewals
or
replacements are no less favorable in any material respect to the Lenders
than
those Dividend Restrictions that are then in effect and that are being
extended,
refinanced, renewed or replaced;
(iii) Dividend
Restrictions consisting of customary net worth, leverage and other financial
covenants, customary covenants regarding the merger of or sale of assets
of a
Subsidiary, customary restrictions on transactions with affiliates, and
customary subordination provisions governing Indebtedness owed to the
Borrower
or any Subsidiary, in each case contained in, or required by, any agreement
governing Indebtedness incurred by a Subsidiary in accordance with Section
8.1;
or
(iv) Dividend
Restrictions contained in any other credit agreement so long as such
Dividend
Restrictions are no more restrictive than those contained in this Agreement
(including Dividend Restrictions contained in the Existing Credit
Agreements).
SECTION 8.8 Limitation
on Negative Pledges
Enter
into
any agreement, other than (i) this Agreement, (ii) the Existing Credit
Agreements, (iii) any other credit agreement that is substantially similar
to this Agreement, and (iv) purchase money mortgages or capital leases
permitted
by this Agreement (in which cases, any prohibition or limitation shall
only be
effective against the assets financed thereby), or permit any Subsidiary
so to
do, which prohibits or limits the ability of the Borrower or such Subsidiary
to
create, incur, assume or suffer to exist any Lien upon any of its Property
or
revenues, whether now owned or hereafter acquired to secure the obligations
of
the Borrower hereunder.
SECTION 8.9 Ratio
of Consolidated Indebtedness to Total Capitalization
Permit
its
ratio of Consolidated Indebtedness to Total Capitalization at the end
of any
fiscal quarter to exceed 0.6:1.0.
SECTION 8.10 Caremark
Acquisition
(a) Amend
the
Caremark Merger Agreement if such amendment has the effect of
(i) increasing the purchase price to be paid by the Borrower thereunder by
a material amount, (ii) increasing the liabilities of the Borrower
thereunder by a material amount, or (iii) decreasing
41
the
assets
being acquired thereunder by the Borrower by a material amount, in each
case,
without the consent of the Administrative Agent.
(b) Waive
any
material condition to the obligations of the Borrower under the Caremark
Merger
Agreement to consummate the transactions contemplated by the Caremark
Merger
Agreement (except as provided in the Waiver Agreement) without the consent
of
the Administrative Agent.
ARTICLE 9
DEFAULT
SECTION 9.1 Events
of Default
The
following shall each constitute an “Event
of Default”
hereunder:
(a) The
failure of the Borrower to make any payment of principal on any Loan
when due
and payable; or
(b) The
failure of the Borrower to make any payment of interest on any Loan or
of the
Fees on any date when due and payable and such default shall continue
unremedied
for a period of 5 Domestic Business Days after the same shall be due and
payable; or
(c) The
failure of the Borrower to observe or perform any covenant or agreement
contained in Section 2.4,
Section 2.6(b)
or
Section 7.1
or in
Article 8;
or
(d) The
failure of the Borrower to observe or perform any other covenant or agreement
contained in this Agreement, and such failure shall have continued unremedied
for a period of 30 days after the Borrower shall have become aware of
such
failure; or
(e) [Intentionally
Omitted]
(f) Any
representation or warranty of the Borrower (or of any of its officers
on its
behalf) made in any Loan Document, or made in any certificate, report,
opinion
(other than an opinion of counsel) or other document delivered on or
after the
date hereof shall in any such case prove to have been incorrect or misleading
(whether because of misstatement or omission) in any material respect
when made;
or
(g) (i) Obligations
in an aggregate Consolidated amount in excess of $25,000,000 of the Borrower
(other than its obligations hereunder and under the Notes) and the Subsidiaries,
whether as principal, guarantor, surety or other obligor, for the payment
of any
Indebtedness or any net liability under interest rate swap, collar, exchange
or
cap agreements, (A) shall become or shall be declared to be due and payable
prior to the expressed maturity thereof, or (B) shall not be paid when due
or within any grace period for the payment thereof, or (ii) any holder of
any such obligations shall have the right to declare the Indebtedness
evidenced
thereby due and payable prior to its stated maturity; or
42
(h) An
involuntary proceeding shall be commenced or an involuntary petition
shall be
filed seeking (i) liquidation, reorganization or other relief in respect of
the Borrower or any Subsidiary or its debts, or of a substantial part
of its
assets, under any federal, state or foreign bankruptcy, insolvency, receivership
or similar law now or hereafter in effect or (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official
for
the Borrower or any Subsidiary or for a substantial part of its assets,
and, in
any such case, such proceeding or petition shall continue undismissed
for
60 days or an order or decree approving or ordering any of the foregoing
shall be entered; or
(i) The
Borrower or any Subsidiary shall (i) voluntarily commence any proceeding or
file any petition seeking liquidation, reorganization or other relief
under any
federal, state or foreign bankruptcy, insolvency, receivership or similar
law
now or hereafter in effect, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or petition
described
in clause (h)
of this
Section 9.1,
(iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Borrower
or any
Subsidiary or for a substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed against it in
any such
proceeding, (v) make a general assignment for the benefit of creditors or
(vi) take any action for the purpose of effecting any of the foregoing;
or
(j) The
Borrower or any Subsidiary shall (i) suspend or discontinue its business
(except for store closings in the ordinary course of business and except
in
connection with a permitted Disposition under Section 8.3 and
as may otherwise be expressly permitted herein), or (ii) generally not be
paying its debts as such debts become due, or (iii) admit in writing its
inability to pay its debts as they become due; or
(k) Judgments
or decrees in an aggregate Consolidated amount in excess of $25,000,000
against
the Borrower and the Subsidiaries shall remain unpaid, unstayed on appeal,
undischarged, unbonded or undismissed for a period of 60 days during which
execution shall not be effectively stayed, or any action shall be legally
taken
by a judgment creditor to attach or levy upon any assets of the Borrower
or any
Subsidiary to enforce any such judgment; or
(l) After
the
Effective Date a Change of Control shall occur; or
(m) (i) Any
Termination Event shall occur (x) with respect to any Pension Plan (other
than a Multiemployer Plan) or (y) with respect to any other retirement plan
subject to Section 302 of ERISA or Section 412 of the Internal Revenue
Code, which plan, during the five year period prior to such Termination
Event,
was the responsibility in whole or in part of the Borrower, any Subsidiary
or
any ERISA Affiliate, provided
that this
clause (y) shall only apply if, in connection with such Termination Event,
it is reasonably likely that liability in an aggregate Consolidated amount
in
excess of $25,000,000 will be imposed upon the Borrower, any Subsidiary
or any
ERISA Affiliate; (ii) any Accumulated Funding Deficiency, whether or not
waived, in an aggregate Consolidated amount in excess of $25,000,000
shall exist
with respect to any Pension Plan (other than that portion of a Multiemployer
Plan’s Accumulated Funding Deficiency to the extent such Accumulated Funding
Deficiency is attributable to employers other than Borrower, any Subsidiary
or
any ERISA Affiliate); (iii) any Person shall engage in any Prohibited
Transaction involving any Employee Benefit Plan; (iv) the Borrower, any
Subsidiary
43
or
any
ERISA Affiliate shall fail to pay when due an amount which is payable
by it to
the PBGC or to a Pension Plan (including a Multiemployer Plan) under
Title IV of ERISA; (v) the imposition of any tax under
Section 4980(B)(a) of the Internal Revenue Code; or (vi) the
assessment of a civil penalty with respect to any Employee Benefit Plan
under
Section 502(c) of ERISA; in each case, to the extent such event or
condition would have a Material Adverse effect.
SECTION 9.2 Remedies
(a) Upon
the
occurrence of an Event of Default or at any time thereafter during
the
continuance of an Event of Default, the Administrative Agent, at the
written
request of the Required Lenders, shall notify the Borrower that the
Commitments
have been terminated and/or that all of the Loans and the Notes and
all accrued
and unpaid interest on any thereof and all other amounts owing under
the Loan
Documents have been declared immediately due and payable, provided
that upon
the occurrence of an Event of Default under Section 9.1(h),
(i)
or
(j)
with
respect to the Borrower, the Commitments shall automatically terminate
and all
of the Loans and the Notes and all accrued and unpaid interest on any
thereof
and all other amounts owing under the Loan Documents shall become immediately
due and payable without declaration or notice to the Borrower.
To
the
fullest extent not prohibited by law, except for the notice provided
for in the
preceding sentence, the Borrower expressly waives any presentment,
demand,
protest, notice of protest or other notice of any kind in connection
with the
Loan Documents and its obligations thereunder.
To
the
fullest extent not prohibited by law, the Borrower further expressly
waives and
covenants not to assert any appraisement, valuation, stay, extension,
redemption
or similar law, now or at any time hereafter in force which might delay,
prevent
or otherwise impede the performance or enforcement of the Loan
Documents.
(b) In
the
event that the Commitments shall have been terminated pursuant to the
provisions
of Section 9.2(a)
or all of
the Loans and the Notes shall have been declared due and payable pursuant
to the
provisions of Section 9.2(a),
the
Administrative Agent and the Lenders agree, among themselves, that
any funds
received from or on behalf of the Borrower under any Loan Document
by any Lender
(except funds received by any Lender as a result of a purchase from
such Lender
pursuant to the provisions of Section 11.9(b))
shall be
remitted to the Administrative Agent, and shall be applied by the Administrative
Agent in payment of the Loans and the other obligations of the Borrower
under
the Loan Documents in the following manner and order: (1) first,
to
reimburse the Administrative Agent and the Lenders, in that order,
for any
expenses due from the Borrower pursuant to the provisions of Section 11.5,
(2) second,
to the
payment of the Fees, (3) third,
to the
payment of any expenses or amounts (other than the principal of and
interest on
the Loans and the Notes) payable by the Borrower to the Administrative
Agent or
any of the Lenders under the Loan Documents, (4) fourth,
to the
payment, pro
rata
according
to the outstanding principal balance of the Loans of each Lender, of
interest
due on the Loans, (5) fifth,
to the
payment, pro
rata
according
to the outstanding principal balance of the Loans of each Lender, of
the
aggregate outstanding principal balance of the Loans, and (6) sixth,
any
remaining funds shall be paid to whosoever shall be entitled thereto
or as a
court of competent jurisdiction shall direct.
(c) In
the
event that the Loans and the Notes shall have been declared due and
payable
pursuant to the provisions of this Section 9.2,
the
Administrative Agent upon the written
44
request
of
the Required Lenders, shall proceed to enforce the rights of the holders
of the
Loans and the Notes by suit in equity, action at law and/or other appropriate
proceedings, whether for payment or the specific performance of any covenant
or
agreement contained in the Loan Documents.
In
the
event that the Administrative Agent shall fail or refuse so to proceed,
each
Lender shall be entitled to take such action as the Required Lenders
shall deem
appropriate to enforce its rights under the Loan Documents.
ARTICLE 10
AGENT
SECTION 10.1 Appointment
Each
Lender hereby irrevocably designates and appoints LCPI as the Administrative
Agent of such Lender under this Agreement and the other Loan Documents
and each
Lender irrevocably authorizes the Administrative Agent, in such capacity,
to
take such action on its behalf under the provisions of this Agreement
and the
other Loan Documents and to exercise such powers and perform such duties
as are
expressly delegated to the Administrative Agent by the terms of this
Agreement
and the other Loan Documents, together with such other powers as are
reasonably
incidental thereto.
Notwithstanding
any provision to the contrary contained in this Agreement and the other
Loan
Documents, the Administrative Agent shall not have any duties or
responsibilities except those expressly set forth in this Agreement and
the
other Loan Documents, or any fiduciary relationship with any Lender,
and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into the Loan Documents or otherwise exist
against the
Administrative Agent.
SECTION 10.2 Delegation
of Duties
The
Administrative Agent may execute any of its duties under this Agreement
and the
other Loan Documents by or through agents or attorneys-in-fact and shall
be
entitled to rely upon the advice of counsel concerning all matters pertaining
to
such duties, and shall not be liable for any action taken or omitted
to be taken
in good faith upon the advice of such counsel. The Administrative Agent
shall be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care.
SECTION 10.3 Exculpatory
Provisions
Neither
the Administrative Agent nor any of its officers, directors, employees,
agents,
attorneys-in-fact or Affiliates shall be (i) liable for any action lawfully
taken or omitted to be taken by the Administrative Agent or such Person
under or
in connection with the Loan Documents (except the Administrative Agent
for its
own gross negligence or willful misconduct), or (ii) responsible in any
manner to any of the Lenders for any recitals, statements, representations
or
warranties made by any party contained in the Loan Documents or in any
certificate, report, statement or other document referred to or provided
for in,
or received by the Administrative Agent under or in connection with,
the Loan
Documents or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of any of the Loan Documents
45
or
for any
failure of the Borrower or any other Person to perform its obligations
thereunder.
The
Administrative Agent shall not be under any obligation to any Lender
to
ascertain or to inquire into the observance or performance of any of
the
covenants or agreements contained in, or conditions of, the Loan Documents,
or
to inspect the Property, books or records of the Borrower or any
Subsidiary.
The
Administrative Agent shall not be under any liability or responsibility
to the
Borrower or any other Person as a consequence of any failure or delay
in
performance, or any breach, by any Lender of any of its obligations under
any of
the Loan Documents.
The
Lenders acknowledge that the Administrative Agent shall not be under
any duty to
take any discretionary action permitted under the Loan Documents unless
the
Administrative Agent shall be requested in writing to do so by the Required
Lenders.
SECTION 10.4 Reliance
by Administrative Agent
The
Administrative Agent shall be entitled to rely, and shall be fully protected
in
relying, upon any writing, resolution, notice, request, consent, certificate,
affidavit, opinion, letter, cablegram, telegram, fax, telex or teletype
message,
statement, order or other document or conversation reasonably believed
by it to
be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including
counsel to the Borrower), independent accountants and other experts selected
by
the Administrative Agent.
The
Administrative Agent shall not be under any duty to examine or pass upon
the
validity, effectiveness or genuineness of the Loan Documents or any instrument,
document or communication furnished pursuant thereto or in connection
therewith,
and the Administrative Agent shall be entitled to assume that the same
are
valid, effective and genuine, have been signed or sent by the proper
parties and
are what they purport to be.
The
Administrative Agent shall be fully justified in failing or refusing
to take any
action not expressly required under the Loan Documents unless it shall
first
receive such advice or concurrence
of the Required Lenders as it deems appropriate.
The
Administrative Agent Agent shall in all cases be fully protected in acting,
or
in refraining from acting, under the Loan Documents in accordance with
a request
of the Required Lenders or, if required by Section 11.1,
all
Lenders, and such request and any action taken or failure to act pursuant
thereto shall be binding upon the Borrower, all the Lenders and all future
holders of the Notes.
SECTION 10.5 Notice
of Default
The
Administrative Agent shall not be deemed to have knowledge or notice
of the
occurrence of any Default or Event of Default unless the Administrative
Agent
shall have received written notice thereof from a Lender or the Borrower
referring to this Agreement, describing such Default or Event of Default
and
stating such notice is a “Notice of Default.” In the event that the
Administrative Agent receives such a notice, the Administrative Agent
shall
promptly give notice thereof to the Lenders.
The
Administrative Agent shall take such action with respect to such Default
or
Event of Default as shall be reasonably directed by the Required Lenders,
provided
that
unless and until the Administrative Agent shall have received such directions,
the Administrative Agent may (but shall not be obligated to) take such
action or
give such directions, or refrain from taking such action or giving such
directions, with respect to such Default or Event of Default as it shall
deem to
be in the best interests of the Lenders.
46
SECTION 10.6 Non-Reliance
Each
Lender expressly acknowledges that neither the Administrative Agent nor
any of
its officers, directors, employees, agents, attorneys-in-fact or Affiliates
has
made any representations or warranties to such Lender and that no act
by the
Administrative Agent hereafter, including any review of the affairs of
the
Borrower or the Subsidiaries, shall be deemed to constitute any representation
or warranty by the Administrative Agent to any Lender.
Each
Lender represents to the Administrative Agent that such Lender has,
independently and without reliance upon any the Administrative Agent
or any
other Lender, and based on such documents and information as it has deemed
appropriate, made its own evaluation of and investigation into the business,
operations, Property, financial and other condition and creditworthiness
of the
Borrower and the Subsidiaries and has made its own decision to enter
into this
Agreement.
Each
Lender also represents that it will, independently and without reliance
upon the
Administrative Agent 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 analysis, evaluations and decisions in taking or not taking action
under
the Loan Documents, and to make such investigation as it deems necessary
to
inform itself as to the business, operations, Property, financial and
other
condition and creditworthiness of the Borrower and the Subsidiaries.
Each
Lender acknowledges that a copy of this Agreement and all exhibits and
schedules
hereto have been made available to it and its individual counsel for
review, and
each Lender acknowledges that it is satisfied with the form and substance
thereof.
Except
for
notices, reports and other documents expressly required to be furnished
to the
Lenders by the Administrative Agent hereunder, the Administrative Agent
shall
have no duty or responsibility to provide any Lender with any credit
or other
information concerning the business, operations, property, financial
and other
condition or creditworthiness of the Borrower or the Subsidiaries which
may come
into the possession
of the Administrative Agent or any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates.
SECTION 10.7 The
Administrative Agent in Its Individual Capacity
LCPI
and
each of the affiliates thereof, may make loans to, accept deposits from,
issue
letters of credit for the account of and generally engage in any kind
of
business with the Borrower and the Subsidiaries as though it were not
the
Administrative Agent.
With
respect to the Commitment made by it and each Note issued to it (if any),
the
Administrative Agent shall have the same rights and powers under the
Loan
Documents as any Lender and may exercise the same as though it were not
the
Administrative Agent, and the term “Lender” and “Lenders” shall include LCPI in
its individual capacity.
SECTION 10.8 Successor
Administrative Agent
If
at any
time the Administrative Agent deems it advisable, in its sole discretion,
it may
submit to each Lender a written notification of its resignation as
Administrative Agent under the Loan Documents, such resignation to be
effective
on the earlier to occur of (a) the thirtieth day after the date of such
notice, and (b) the date upon which any successor to the Administrative
Agent, in accordance with the provisions of this Section, shall have
accepted in
writing its appointment as successor Administrative Agent.
Upon
any
such resignation, the Required Lenders shall have the right to appoint
from
among the Lenders a successor
47
Administrative
Agent, which successor Administrative Agent, provided
that no
Default or Event of Default shall then exist, shall be reasonably satisfactory
to the Borrower.
If
no such
successor Administrative Agent shall have been so appointed by the Required
Lenders and accepted such appointment within 30 days after the retiring
Administrative Agent’s giving of notice of resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which successor Administrative Agent shall be a
commercial
bank organized or licensed under the laws of the United States of America
or of
any State thereof and having a combined capital and surplus of at least
$500,000,000.
Upon
the
written acceptance of any appointment as Administrative Agent hereunder
by a
successor Administrative Agent, such successor Administrative Agent shall
automatically become a party to this Agreement and shall thereupon succeed
to
and become vested with all the rights, powers, privileges and duties
of the
retiring Administrative Agent, and the retiring Administrative Agent’s rights,
powers, privileges and duties as Administrative Agent under the Loan
Documents
shall be terminated.
The
Borrower and the Lenders shall execute such documents as shall be necessary
to
effect such appointment.
After
any
retiring Administrative Agent’s resignation as Administrative Agent, the
provisions of this Article 10 shall
inure to its benefit as to any actions taken or omitted to be taken by
it while
it was the Administrative Agent.
If
at any
time there shall not be a duly appointed and acting Administrative Agent,
upon
notice duly given, the Borrower agrees to make each payment when due
under the
Loan Documents directly to the Lenders entitled thereto during such
time.
SECTION 10.9 Arrangers,
Co-Documentation Agents and Syndication Agent
None
of
the Arrangers, the Co-Documentation Agents or the Syndication Agent,
in their
respective capacities as such, shall have any duties or responsibilities,
nor
shall any such Person incur any liability under this Agreement or the
other Loan
Documents.
ARTICLE 11
OTHER
PROVISIONS
SECTION 11.1 Amendments,
Waivers, Etc.
With
the
written consent of the Required Lenders, the Administrative Agent and
the
Borrower may, from time to time, enter into written amendments, supplements
or
modifications of the Loan Documents and, with the written consent of
the
Required Lenders, the Administrative Agent on behalf of the Lenders may
execute
and deliver to any such parties a written instrument waiving or consenting
to
the departure from, on such terms and conditions as the Administrative
Agent may
specify in such instrument, any of the requirements of the Loan Documents
or any
Default or Event of Default and its consequences, provided
that
no
such amendment, supplement, modification, waiver or consent shall
(i) increase the Commitment Amount of any Lender without the consent of
such Lender (provided
that no
waiver of a Default or Event of Default shall be deemed to constitute
such an
increase), (ii) extend the Commitment Period without the consent of each
Lender directly affected thereby, (iii) reduce the amount, or extend the
time of payment, of the Fees without the consent of each Lender directly
affected thereby, (iv) reduce the rate, or extend the time of payment of,
interest on any Loan or any Note
48
(other
than the applicability of any post-default increase in such rate of interest)
without the consent of each Lender directly affected thereby, (v) reduce
the amount, or extend the time of payment of any payment of principal
on any
Loan or any Note without the consent of each Lender directly affected
thereby,
(vi) decrease or forgive the principal amount of any Loan or any Note
without the consent of each Lender directly affected thereby, (vii) consent
to any assignment or delegation by the Borrower of any of its rights
or
obligations under any Loan Document without the consent of each Lender,
(viii) change the provisions of this Section 11.1 without
the consent of each Lender, (ix) change the definition of Required Lenders
without the consent of each Lender, (x) change the several nature of the
obligations of the Lenders without the consent of each Lender, or
(xi) change the sharing provisions among Lenders without the consent of
each Lender.
Notwithstanding
the foregoing, no such amendment, supplement, modification, waiver or
consent
shall amend, modify or waive any provision of Article 10 or
otherwise change any of the rights or obligations of the Administrative
Agent
under any Loan Document without the written consent of the Administrative
Agent.
Any
such
amendment, supplement, modification, waiver or consent shall apply equally
to
each of the Lenders and shall be binding upon the parties to the applicable
Loan
Document, the Lenders, the Administrative Agent and all future holders
of the
Loans and the Notes.
In
the
case of any waiver, the Borrower, the Lenders and the Administrative
Agent shall
be restored to their former position and rights under the Loan Documents,
but any Default or Event of Default waived shall not extend to any subsequent
or
other Default or Event of Default, or impair any right consequent
thereon.
SECTION 11.2 Notices
Except
in
the case of notices and other communications expressly permitted to be
given by
telephone, all notices and other communications provided for herein shall
be in
writing and shall be delivered by hand or overnight courier service,
mailed by
certified or registered mail or sent by facsimile, as follows:
49
If
to
the Borrower:
|
CVS
Corporation
|
||
| ▇▇▇ ▇▇▇ ▇▇▇▇▇ | ||
|
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
|
||
|
Attention:
|
▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
|
| Vice President and Treasurer | ||
|
Facsimile:
|
(▇▇▇)
▇▇▇-▇▇▇▇
|
|
|
Telephone:
|
(▇▇▇) ▇▇▇-▇▇▇▇ | |
|
with
a copy, in the case of a notice of Default or Event of Default,
to:
|
||
| CVS Corporation | ||
| ▇▇▇ ▇▇▇ ▇▇▇▇▇ | ||
| ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ | ||
|
Attention:
|
Legal
Department
|
|
|
Facsimile:
|
(▇▇▇)
▇▇▇-▇▇▇▇
|
|
|
Telephone:
|
(▇▇▇)
▇▇▇-▇▇▇▇
|
|
If
to
the Administrative Agent:
|
in
the case of each Borrowing Request and each notice of
prepayment under
Section 2.6:
|
|
|
▇▇▇▇▇▇
Commercial Paper Inc.
c/▇
▇▇▇▇▇▇ Brothers Inc.
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
|
|
| and in all other cases: | |
|
▇▇▇▇▇▇
Commercial Paper Inc.
c/▇
▇▇▇▇▇▇ Brothers Inc.
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
|
50
If
to
the Syndication Agent:
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇ Senior Funding, Inc.
▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇ ▇▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
|
If
to
any Lender:
to it at
its address (or facsimile number) set forth in its Administrative
Questionnaire.
Any
party
hereto may change its address or facsimile number for notices and
other
communications hereunder by notice to the other parties hereto (or,
in the case
of any Lender, by notice to the Administrative Agent and the Borrower).
All
notices and other communications given to any party hereto in accordance
with
the provisions of this Agreement shall be deemed to have been given
on the date
of receipt.
Any
party
to a Loan Document may rely on signatures of the parties thereto
which are
transmitted by fax or other electronic means as fully as if originally
signed.
SECTION 11.3 No
Waiver; Cumulative Remedies
No
failure
to exercise and no delay in exercising, on the part of the Administrative
Agent
or any Lender, any right, remedy, power or privilege under any Loan
Document
shall operate as a waiver thereof, nor shall any single or partial
exercise of
any right, remedy, power or privilege under any Loan Document preclude
any other
or further exercise thereof or the exercise of any other right, remedy,
power or
privilege.
The
rights, remedies, powers and privileges under the Loan Documents
are cumulative
and not exclusive of any rights, remedies, powers and privileges
provided by
law.
SECTION 11.4 Survival
of Representations and Warranties
All
representations and warranties made in the Loan Documents and in
any document,
certificate or statement delivered pursuant thereto or in connection
therewith
shall survive the execution and delivery of the Loan Documents.
SECTION 11.5 Payment
of Expenses and Taxes; Indemnified Liabilities
The
Borrower agrees, promptly upon presentation of a statement or invoice
therefor
setting forth in reasonable detail the items thereof, and whether
any Loan is
made, (a) to pay
or
reimburse the Administrative Agent and its Affiliates for all its
reasonable
costs and expenses actually incurred in connection with the development,
syndication, preparation and execution of, and any amendment, waiver,
consent,
supplement or modification to, the Loan Documents, any documents
prepared in
connection therewith and the consummation of the transactions contemplated
thereby, whether such Loan Documents or any such amendment, waiver,
consent,
supplement or modification to the Loan Documents or any documents
prepared in
connection therewith are executed and whether the transactions contemplated
thereby are
51
consummated,
including the reasonable fees and disbursements of Special Counsel,
(b) to
pay, indemnify, and hold any Credit Party harmless from any and all
recording
and filing fees and any and all liabilities and penalties with respect
to, or
resulting from any delay (other than penalties to the extent attributable
to the
negligence of the applicable Credit Party in failing to pay such
fees or other
liabilities when due) in paying, stamp, excise and other similar
taxes, if any,
which may be payable or determined to be payable in connection with
the
execution and delivery of, or consummation of any of the transactions
contemplated by, or any amendment, supplement or modification of,
or any waiver
or consent under or in respect of, the Loan Documents and any such
other
documents, and (c) to pay, reimburse, indemnify and hold each Indemnified
Person harmless from and against any and all other liabilities, obligations,
claims, losses, damages, penalties, actions, judgments, suits, costs,
expenses
and disbursements of any kind or nature whatsoever (including reasonable
counsel
fees and disbursements of counsel (including the allocated costs
of internal
counsel) and such local counsel as may be required) actually incurred
with
respect to the enforcement, performance of, and preservation of rights
under,
the Loan Documents (all the foregoing, collectively, the “Indemnified
Liabilities”)
and, if
and to the extent that the foregoing indemnity may be unenforceable
for any
reason, the Borrower agrees to make the maximum payment permitted
under
applicable law, provided
that the
Borrower shall have no obligation hereunder to pay Indemnified Liabilities
to an
Indemnified Person to the extent arising from its gross negligence
or willful
misconduct.
The
agreements in this Section shall survive the termination of the Commitments
and
the payment of the Loans and the Notes and all other amounts payable
under the
Loan Documents.
SECTION 11.6 Lending
Offices
Each
Lender shall have the right at any time and from time to time to
transfer any
Loan to a different office of such Lender, subject to Section 3.10.
SECTION 11.7 Successors
and Assigns
(a) The
provisions of the Loan Documents shall be binding upon and inure
to the benefit
of the parties hereto and their respective successors and assigns
permitted
hereby, except that the Borrower may not assign or otherwise transfer
any of its
rights or obligations hereunder without the prior written consent
of each Lender
(and any attempted assignment or transfer by the Borrower without
such consent
shall be null and void).
Nothing
in
the Loan Documents, expressed or implied, shall be construed to confer
upon any
Person (other than the parties hereto, their respective successors
and assigns
permitted hereby and, to the extent expressly contemplated hereby,
the Related
Parties of each Credit Party) any legal or equitable right, remedy
or claim
under or by reason of any Loan Document.
(b) Any
Lender
may assign all or a portion of its rights and obligations under the
Loan
Documents (including all or a portion of its Commitment and the applicable
Loans
at the time owing to it), to an Eligible Assignee, provided
that
(i) except in the case of an assignment to a Lender or an Affiliate or
an
Approved Fund of a Lender, each of the Borrower and the Administrative
Agent
must give its prior written consent to such assignment (which consent
shall not
be unreasonably withheld or delayed), (ii) except in the case of an
assignment to a Lender or an Affiliate or an Approved Fund of a Lender
or an
assignment of the entire remaining amount of the assigning Lender’s Commitment
or Loans, as the case may be, the
52
amount
of
the Commitment or Loans, as the case may be, of the assigning Lender
subject to
each such assignment (determined as of the date the Assignment and
Acceptance
Agreement with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $5,000,000, unless the Borrower and
the
Administrative Agent otherwise consent (which consent shall not be
unreasonably
withheld or delayed) and shall be for a pro rata portion of such
Lender’s then
remaining Commitment, if any, and such Lender’s then outstanding Loans,
(iii) no assignments to the Borrower or any of its Affiliates shall be
permitted (and any attempted assignment or transfer to the Borrower
or any of
its Affiliates shall be null and void), (iv) the parties to each assignment
shall execute and deliver to the Administrative Agent an Assignment
and
Acceptance Agreement together with, unless otherwise agreed by the
Administrative Agent, a processing and recordation fee of $3,500,
and
(v) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire, and provided
further
that any
consent of the Borrower otherwise required under this subsection
shall not be
required if an Event of Default has occurred and is continuing.
Subject
to
acceptance and recording thereof pursuant to subsection (d)
of this
Section, from and after the effective date specified in each Assignment
and
Acceptance Agreement, the assignee thereunder shall be a party hereto
and, to
the extent of the interest assigned by such Assignment and Acceptance
Agreement,
have the rights and obligations of a Lender under the Loan Documents,
and the
assigning Lender thereunder shall, to the extent of the interest
assigned by
such Assignment and Acceptance Agreement, be released from its obligations
under
the Loan Documents (and, in the case of an Assignment and Acceptance
Agreement
covering all of the assigning Lender’s rights and obligations under the Loan
Documents, such Lender shall cease to be a party hereto but shall
continue to be
entitled to the benefits of Section 3.5,
Section 3.6,
Section 3.7,
Section 3.10
and
Section 11.10).
Except
as
otherwise provided under clause (iii) of this subsection, any assignment or
transfer by a Lender of rights or obligations under the Loan Documents
that does
not comply with this subsection shall be treated for purposes of
the Loan
Documents as a sale by such Lender of a participation in such rights
and
obligations in accordance with subsection 0
of this
Section.
(c) The
Administrative Agent, acting for this purpose as an agent of the
Borrower, shall
maintain a copy of each Assignment and Acceptance Agreement delivered
to it and
a register for the recordation of the names and addresses of the
Lenders, and
the Commitments of, and principal amount of the Loans owing to, each
Lender
pursuant to the terms hereof from time to time (the “Register”).
The
entries in the Register shall be conclusive absent clearly demonstrable
error,
and the Borrower and each Credit Party may treat each Person whose
name is
recorded in the Register pursuant to the terms hereof as a Lender
hereunder for
all purposes of this Agreement, notwithstanding notice to the
contrary.
The
Register shall be available
for inspection by the Borrower and any Credit Party, at any reasonable
time and
from time to time upon reasonable prior notice.
(d) Upon
its
receipt of a duly completed Assignment and Acceptance Agreement executed
by an
assigning Lender and an assignee, the assignee’s completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder),
the
processing and recordation fee referred to in subsection (b)
of this
Section and any written consent to such assignment required by
subsection (b)
of this
Section, the Administrative Agent shall accept such Assignment and
Acceptance
Agreement and record the information contained
53
therein
in
the Register. No assignment shall be effective for purposes of this
Agreement
unless it has been recorded in the Register as provided in this
subsection.
(e) Any
Lender
may, without the consent of the Borrower or any Credit Party, sell
participations to Eligible Assignees (each a “Participant”)
in all
or a portion of such Lender’s rights and obligations under the Loan Documents
(including all or a portion of its Commitments and outstanding
Loans owing to
it), provided
that
(i) such Lender’s obligations under the Loan Documents shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) the Borrower
and the Credit Parties shall continue to deal solely and directly
with such
Lender in connection with such Lender’s rights and obligations under the Loan
Documents and (iv) no participations to the Borrower or any of its
Affiliates shall be permitted (and any attempted participation
to the Borrower
or any of its Affiliates shall be null and void). Any agreement
or instrument
pursuant to which a Lender sells such a participation shall provide
that such
Lender shall retain the sole right to enforce the Loan Documents
and to approve
any amendment, modification or waiver of any provision of any Loan
Documents,
provided
that such
agreement or instrument may provide that such Lender will not,
without the
consent of the Participant, agree to any amendment, modification
or waiver
described in the proviso to Section 11.1
that
affects such Participant. Subject to subsection (f)
of this
Section, the Borrower agrees that each Participant shall be entitled
to the
benefits of Section 3.5,
Section 3.6,
Section 3.7
and
Section 3.10
to the
same extent as if it were a Lender and had acquired its interest
by assignment
pursuant to subsection (b)
of this
Section.
To
the
extent permitted by law, each Participant also shall be entitled
to the benefits
of Section 11.9(a)
as though
it were a Lender, provided
that such
Participant agrees to be subject to Section 11.9(b)
as though
it were a Lender.
(f) A
Participant shall not be entitled to receive any greater payment
under
Section 3.6,
Section 3.7
or
Section 3.10
than the
Lender that sold the participation to such Participant would have
been entitled
to receive with respect to the interest in the Loan Documents subject
to the
participation sold to such Participant, unless the sale of the
participation to
such Participant is made with the Borrower’s prior written consent.
A
Participant that would be a Foreign Lender if it were a Lender
shall not be
entitled to the benefits of Section 3.10
unless
the Borrower is notified of the participation sold to such Participant
and such
Participant agrees, for the benefit of the Borrower, to comply
with Section 3.10(b)
as though
it were a Lender.
(g) Any
Lender
may at any time pledge or assign a security interest in all or any
portion of
its rights under the Loan Documents to secure obligations of such
Lender,
including any pledge or assignment to secure obligations to a Federal
Reserve
Bank, and this Section shall not apply to any such pledge or assignment
of a
security interest, provided
that no
such
pledge or assignment of a security interest shall release a Lender
from any of
its obligations under the Loan Documents or substitute any such pledgee
or
assignee for such Lender as a party hereto.
(h) Notwithstanding
anything to the contrary contained herein, any Lender (a “Granting
Lender”)
may
grant to an Eligible SPC the option to fund all or any part of any
Loan that
such Granting Lender would otherwise be obligated to fund pursuant
to this
Agreement,
54
provided
that
(i) such designation shall not be effective unless the Borrower consents
thereto (which consent shall not be unreasonably withheld), (ii) nothing
herein shall constitute a commitment by any Eligible SPC to fund
any Loan, and
(iii) if an Eligible SPC elects not to exercise such option or otherwise
fails to fund all or any part of such Loan, the Granting Lender shall
be
obligated to fund such Loan pursuant to the terms hereof.
The
funding of a Loan by an Eligible SPC hereunder shall utilize the
Commitment of
the Granting Lender to the same extent, and as if, such Loan were
funded by such
Granting Lender.
As
to any
Loans or portion thereof made by it, each Eligible SPC shall have
all the rights
that a Lender making such Loans or portion thereof would have had
under this
Agreement and otherwise, provided
that
(x) its voting rights under this Agreement shall be exercised solely
by its
Granting Lender and (y) its Granting Lender shall remain solely responsible
to the other parties hereto for the performance of such Granting
Lender’s
obligations under this Agreement, including its obligations in respect
of the
Loans or portion thereof made by it.
Each
Granting Lender shall act as administrative agent for its Eligible
SPC and give
and receive notices and other communications on its behalf.
Any
payments for the account of any Eligible SPC shall be paid to its
Granting
Lender as administrative agent for such Eligible SPC and neither
the Borrower
nor the Administrative Agent shall be responsible for any Granting
Lender’s
application of such payments.
Each
party
hereto hereby agrees that no Eligible SPC shall be liable for any
indemnity or
payment under this Agreement for which a Lender would otherwise be
liable for so
long as, and to the extent, the Granting Lender provides such indemnity
or makes
such payment.
Notwithstanding
anything to the contrary contained in this Agreement, any Eligible
SPC may
(i) at any time, subject to payment of the processing and recordation
fee
referred to in Section 11.7(b),
assign
all or a portion of its interests in any Loans to its Granting Lender
(but
nothing contained herein shall be construed in derogation of the
obligation of
the Granting Lender to make Loans hereunder) or to any financial
institutions
providing liquidity and/or credit support to or for the account of
such Eligible
SPC to support the funding or maintenance of Loans, and (ii) disclose on a
confidential basis any non-public information relating to its funding
of Loans
to any rating agency, commercial paper dealer or provider of any
surety or
guarantee or credit or liquidity enhancements to such Eligible SPC.
This
Section may not be amended without the prior written consent of each
Granting
Lender, all or any part of whose Loans is being funded by an Eligible
SPC at the
time of such amendment.
SECTION 11.8 Counterparts
Each
of
the Loan Documents (other than the Notes) may be executed on any
number of
separate counterparts and all of said counterparts taken together
shall be
deemed to constitute one and the same agreement.
It
shall
not be necessary in making proof of any Loan Document to produce
or account for
more than one counterpart signed by the party to be charged.
A
set of
the copies of this Agreement signed by all of the parties hereto
shall be lodged
with
each
of the Borrower and the Administrative Agent.
Any
party
to a Loan Document may rely upon the signatures of any other party
thereto which
are transmitted by fax or other electronic means to the same extent
as if
originally signed.
55
SECTION 11.9 Set-off
and Sharing of Payments
(a) In
addition to any rights and remedies of the Lenders provided by law,
upon the
occurrence of an Event of Default under Section 9.1(a)
or
(b)
or upon
the acceleration of the Loans, each Lender shall have the right, without
prior
notice to the Borrower, any such notice being expressly waived by the
Borrower,
to set-off and apply against any indebtedness or other liability, whether
matured or unmatured, of the Borrower to such Lender arising under
the Loan
Documents, any amount owing from such Lender to the Borrower.
To
the
extent permitted by applicable law, the aforesaid right of set-off
may be
exercised by such Lender against the Borrower or against any trustee
in
bankruptcy, custodian, debtor in possession, assignee for the benefit
of
creditors, receiver, or execution, judgment or attachment creditor
of the
Borrower, or against anyone else claiming through or against the Borrower
or
such trustee in bankruptcy, custodian, debtor in possession, assignee
for the
benefit of creditors, receivers, or execution, judgment or attachment
creditor,
notwithstanding the fact that such right of set-off shall not have
been
exercised by such Lender prior to the making, filing or issuance of,
service
upon such Lender of, or notice to such Lender of, any petition, assignment
for
the benefit of creditors, appointment or application for the appointment
of a
receiver, or issuance of execution, subpoena, order or warrant.
Each
Lender agrees promptly to notify the Borrower and the Administrative
Agent after
each such set-off and application made by such Lender, provided
that the
failure to give such notice shall not affect the validity of such set-off
and
application.
(b) If
any
Lender (each a “Benefited
Lender”)
shall
obtain any payment (whether voluntary, involuntary, through the exercise
of any
right of set-off, or otherwise) on account of its Loans or its Notes
in excess
of its pro rata share (in accordance with the outstanding principal
balance of
all Loans) of payments then due and payable on account of the Loans
and Notes
received by all the Lenders, such Lender shall forthwith purchase,
without
recourse, for cash, from the other Lenders such participations in their
Loans
and Notes as shall be necessary to cause such purchasing Lender to
share the
excess payment with each of them according to their pro rata share
(in
accordance with the outstanding principal balance of all Loans), provided
that if
all or any portion of such excess payment is thereafter recovered from
such
purchasing Lender, such purchase from each Lender shall be rescinded
and each
such Lender shall repay to the purchasing Lender the purchase price
to the
extent of such recovery, together with an amount equal to such Lender’s pro rata
share (according to the proportion of (i) the amount of such Lender’s
required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable
by the
purchasing Lender in respect of the total amount so recovered.
The
Borrower agrees, to the fullest extent permitted by law, that any Lender
so
purchasing a participation from another Lender pursuant to this Section
may
exercise such rights to payment (including the right of set-off) with
respect to
such participation as fully as if such Lender were the direct creditor
of the
Borrower in the amount of such participation.
SECTION 11.10 Indemnity
(a) The
Borrower shall indemnify each Credit Party and each Related Party thereof
(each
such Person being called an “Indemnified
Person”)
against, and hold each Indemnified Person harmless from, any and all
losses,
claims, damages, liabilities and related
56
expenses,
including the reasonable fees, charges and disbursements of any counsel
for any
Indemnified Person, incurred by or asserted against any Indemnified
Person
arising out of, in connection with, or as a result of (i) the execution or
delivery of any Loan Document or any agreement or instrument contemplated
thereby, the performance by the parties to the Loan Documents of their
respective obligations thereunder or the consummation of the transactions
contemplated hereby or any other transactions contemplated thereby
(including
the Caremark Acquisition), (ii) any Loan or the use of the proceeds
thereof, (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by the Borrower
or any of
the Subsidiaries, or any Environmental Liability related in any way
to the
Borrower or any of the Subsidiaries or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the
foregoing,
whether based on contract, tort or any other theory and regardless
of whether
any Indemnified Person is a party thereto, provided
that such
indemnity shall not, as to any Indemnified Person, be available to
the extent
that such losses, claims, damages, liabilities or related expenses
are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted primarily from the gross negligence or willful
misconduct of such Indemnified Person.
Notwithstanding
the above, the Borrower shall have no liability under clause (i) of this
Section to indemnify or hold harmless any Indemnified Person for any
losses,
claims, damages, liabilities and related expenses relating to income
or
withholding taxes or any tax in lieu of such taxes.
(b) To
the
extent that the Borrower fails to promptly pay any amount required
to be paid by
it to the Administrative Agent under
subsection (a)
of this
Section, each Lender severally agrees to pay to the Administrative
Agent an
amount equal to the product of such unpaid amount multiplied
by
(i) at any time prior to the making of Loans pursuant to Section 2.1(a)
or at any
time when Loans are outstanding, its Pro Rata Percentage and (ii) if the
Loans have been repaid in full, its Pro Rata Percentage on the last
day on which
such Loans were outstanding (in each case with respect to clause (ii)
immediately above, determined as of the time that the applicable unreimbursed
expense or indemnity payment is sought), provided
that the
unreimbursed expense or indemnified loss, claim, damage, liability
or related
expense, as applicable, was incurred by or asserted against the Administrative
Agent in its capacity as such.
(c) The
obligations of the Borrower and the Lenders under this Section 11.10
shall
survive the termination of the Commitments and the payment or repayment
of the
Loans and the Notes and all other amounts payable under the Loan
Documents.
(d) To
the
extent permitted by applicable law, the Borrower shall not assert,
and hereby
waives, any claim against any Indemnified Person, on any theory of
liability,
for special, indirect, consequential or punitive damages (as opposed
to direct
and actual damages) arising out of, in connection with, or as a result
of, any
Loan Document or any agreement, instrument or other document contemplated
thereby, the transactions contemplated hereby or any Loan or the use
of the
proceeds thereof.
SECTION 11.11 Governing
Law
The
Loan
Documents and the rights and obligations of the parties thereto shall
be
governed by, and construed and interpreted in accordance with, the
laws of the
State of New York.
57
SECTION 11.12 Severability
Every
provision of the Loan Documents is intended to be severable, and if any term or
provision thereof shall be invalid, illegal or unenforceable for any
reason, the
validity, legality and enforceability of the remaining provisions thereof
shall
not be affected or impaired thereby, and any invalidity, illegality
or
unenforceability in any jurisdiction shall not affect the validity,
legality or
enforceability of any such term or provision in any other
jurisdiction.
SECTION 11.13 Integration
All
exhibits to the Loan Documents shall be deemed to be a part thereof.
Each
Loan
Document embodies the entire agreement and understanding between or
among the
parties thereto with respect to the subject matter thereof and supersedes
all
prior agreements and understandings between or among the parties thereto
with
respect to the subject matter thereof.
SECTION 11.14 Treatment
of Certain Information
Each
Credit Party agrees to maintain as confidential and not to disclose,
publish or
disseminate to any third parties any financial or other information
relating to
the business, operations and condition, financial or otherwise, of
the Borrower
provided to it, except if and to the extent that:
(a) such
information is in the public domain at the time of disclosure;
(b) such
information is required to be disclosed by subpoena or similar process
or
applicable law or regulations;
(c) such
information is required or requested to be disclosed to any regulatory
or
administrative body or commission to whose jurisdiction it may be
subject;
(d) such
information is disclosed to its counsel, auditors or other professional
advisors;
(e) such
information is disclosed to (and, unless and until it receives written
objection
from the Borrower, the Borrower shall be deemed to have consented to
disclosure
of such information to) its affiliates (and its affiliates’ officers, directors
and employees), provided that such information shall be used in connection
with
this Agreement and the transactions contemplated hereby;
(f) such
information is disclosed to its officers, directors and employees;
(g) such
information is disclosed with the prior written consent of the party
furnishing
the information;
(h) such
information is disclosed in connection with any litigation or dispute
involving
the Borrower and/or it;
58
(i) such
information is disclosed in connection with the sale of a participation
or other
disposition by it of any of its interest in this Agreement, provided
that such
information shall not be disclosed unless and until the party to whom
it shall
be disclosed shall have agreed to keep such information confidential
as set
forth herein;
(j) such
information was in its possession or in its affiliate’s possession as shown by
clear and convincing evidence prior to any of the Borrower and/or any
or the
Borrower’s representatives or agents furnishing such information to it;
or
(k) such
information is received by it, without restriction as to its disclosure
or use,
from a Person who, to its knowledge or reasonable belief, was not prohibited
from disclosing such information by any duty of confidentiality.
Except
to
the extent prohibited or restricted by law or Governmental Authority,
each
Lender shall notify the Borrower promptly of any disclosures of information
made
by it as permitted pursuant to (h)
above.
SECTION 11.15 Acknowledgments
The
Borrower acknowledges that (a) it has been advised by counsel in the
negotiation, execution and delivery of the Loan Documents, (b) by virtue of
the Loan Documents, neither the Administrative Agent nor any Lender
has any
fiduciary relationship to the Borrower, and the relationship between
the
Administrative Agent and the Lenders, on the one hand, and the Borrower,
on the
other hand, is solely that of debtor and creditor, and (c) by virtue of the
Loan Documents, no joint venture exists among the Lenders or among
the Borrower
and the Lenders.
SECTION 11.16 Consent
to Jurisdiction
The
Borrower irrevocably submits to the non-exclusive jurisdiction of any
New York
State or Federal Court sitting in the City of New York over any suit,
action or
proceeding arising out of or relating to the Loan Documents. The Borrower
irrevocably waives, to the fullest extent permitted by law, any objection
which
it may now or hereafter have to the laying of the venue of any such
suit, action
or proceeding brought in such a court and any claim that any such suit,
action
or proceeding brought in such a court has been brought in an inconvenient
forum.
The Borrower agrees that a final judgment in any such suit, action
or proceeding
brought in such a court, after all appropriate appeals, shall be conclusive
and
binding upon it.
SECTION 11.17 Service
of Process
The
Borrower agrees that process may be served against it in any suit,
action or
proceeding referred to in Section 11.16
by
sending the same by first class mail, return receipt requested or by
overnight
courier service, with receipt acknowledged, to the address of the Borrower
set
forth in Section 11.2.
The
Borrower agrees that any such service (i) shall be deemed in every respect
effective service of process upon it in any such suit, action, or proceeding,
and (ii) shall to the fullest extent enforceable by law, be taken and held
to be valid personal service upon and personal delivery to it.
59
SECTION 11.18 No
Limitation on Service or Suit
Nothing
in
the Loan Documents or any modification, waiver, or amendment thereto
shall
affect the right of the Administrative Agent or any Lender to serve
process in
any manner permitted by law or limit the right of the Administrative
Agent or
any Lender to bring proceedings against the Borrower in the courts
of any
jurisdiction or jurisdictions.
SECTION 11.19 WAIVER
OF TRIAL BY JURY
EACH
CREDIT PARTY AND THE BORROWER KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE ANY
RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
ARISING OUT
OF, UNDER OR IN CONNECTION WITH THE LOAN DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED THEREBY.
FURTHER,
THE BORROWER HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF ANY
CREDIT
PARTY, OR COUNSEL TO THE ANY CREDIT PARTY, HAS REPRESENTED, EXPRESSLY
OR
OTHERWISE, THAT ANY CREDIT PARTY WOULD NOT, IN THE EVENT OF SUCH LITIGATION,
SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION.
THE
BORROWER ACKNOWLEDGES THAT EACH CREDIT PARTY HAS BEEN INDUCED TO ENTER
INTO THIS
AGREEMENT BY, INTER
ALIA,
THE
PROVISIONS OF THIS SECTION.
SECTION 11.20 Effective
Date
This
Agreement shall be effective at such time (the “Effective
Date”)
as the
Administrative Agent shall have received executed counterparts hereof
by the
Borrower, the Administrative Agent and each Lender and the conditions
set forth
in Section 5.1,
Section 5.2
and
Section 5.3
have been
or simultaneously will be satisfied, provided
that this
Agreement shall not become effective or be binding on any party hereto
unless
all of such conditions are satisfied not later than November 1,
2007.
SECTION 11.21 PATRIOT
Act Notice
Each
Lender and the Administrative Agent (for itself and not on behalf of
any Lender)
hereby notifies the Borrower that pursuant to the requirements of the
USA
PATRIOT Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001)) (the “PATRIOT
Act”),
it is
required to obtain, verify and record information that identifies the
Borrower,
which information includes the name and address of the Borrower and
other
information that will allow such Lender or the Administrative Agent,
as
applicable, to identify the Borrower in accordance with the PATRIOT
Act.
[Signature
Pages Follow]
60
IN
WITNESS
WHEREOF, the parties hereto, by their respective officers thereunto duly
authorized, have executed this Agreement on the date first above
written.
| CVS CORPORATION | |||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||
| Title: | Vice President and Treasurer | ||
|
▇▇▇▇▇▇
BROTHERS
INC.,
as Arranger |
|||
| By: | /s/ ▇▇▇▇▇▇ ▇’▇▇▇▇▇▇ | ||
| Name: | ▇▇▇▇▇▇ ▇’▇▇▇▇▇▇ | ||
| Title: | Managing Director | ||
| ▇▇▇▇▇▇
COMMERCIAL PAPER INC., as Administrative Agent and a Lender |
|||
| By: | /s/ ▇▇▇▇▇▇ ▇’▇▇▇▇▇▇ | ||
| Name: | ▇▇▇▇▇▇ ▇’▇▇▇▇▇▇ | ||
| Title: | Managing Director | ||
| ▇▇▇▇▇▇
▇▇▇▇▇▇▇ SENIOR FUNDING, INC., as Arranger, Syndication Agent and a Lender |
|||
| By: | /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | ||
| Name: | ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | ||
| Title: | Vice President | ||
| THE
BANK OF NEW YORK, as Co- Documentation Agent and a Lender |
|||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | ||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | ||
| Title: | Assistant Vice President | ||
| BANK
OF
AMERICA, N.A., as Co- Documentation Agent and a Lender |
|||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||
| Title: | Senior Vice President | ||
| WACHOVIA
BANK, NATIONAL ASSOCIATION, as Co-Documentation Agent and a Lender |
|||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||
| Name: | ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||
| Title: | Vice President | ||
| ABN AMRO Bank N.V., as a Lender | |||
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||
| Name: | ▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||
| Title: | Senior Vice President | ||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||
| Title: | Managing Director | ||
| Branch Banking and Trust Company, as a Lender | |||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇ | ||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇ | ||
| Title: | Assistant Vice President | ||
| HSBC Bank USA, as a Lender | |||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||
| Title: | Senior Vice President | ||
|
KeyBank
National
Association, as a Lender
|
|||
| By: | /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ | ||
| Name: | ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ | ||
| Title: | Senior Vice President | ||
| Mizuho Corporate Bank, Ltd., as a Lender | |||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ | ||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ | ||
| Title: | Senior Vice President & Team Leader | ||
| SUMITOMO
MITSUI BANKING CORPORATION, as a Lender |
|||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇ | ||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇ | ||
| Title: | Senior Vice President | ||
| SunTrust Bank, as a Lender | |||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. | ||
| Name: | ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. | ||
| Title: | Managing Director | ||
| US Bank, N.A., as a Lender | |||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ | ||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ | ||
| Title: | Vice President | ||
| ▇▇▇▇▇ Fargo Bank, N.A., as a Lender | |||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||
| Name: | ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||
| Title: | Vice President | ||
EXHIBIT
A
COMMITMENTS
|
Lender
|
Commitment
|
| ▇▇▇▇▇▇ Commercial Paper Inc. |
$935,000,000
|
| ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. |
935,000,000
|
| The Bank of New York |
810,000,000
|
| Bank of America, N.A. |
810,000,000
|
| Wachovia Bank, National Association. |
810,000,000
|
| ABN AMRO Bank |
250,000,000
|
| KeyBank |
250,000,000
|
| SunTrust Bank |
250,000,000
|
| HSBC |
122,000,000
|
| Mizuho |
122,000,000
|
| Sumitomo Mitsui Bank |
122,000,000
|
| US Bank |
122,000,000
|
| ▇▇▇▇▇ Fargo Bank |
122,000,000
|
| BB&T |
90,000,000
|
|
Total:
|
$5,750,000,000
|
EXHIBIT
B
FORM
OF NOTE
|
[ ],
2007
|
|
|
New
York, New
York
|
FOR
VALUE RECEIVED, the undersigned, CVS CORPORATION, a Delaware corporation
(the
“Borrower”),
hereby promises to pay to the order of _________________________ (the
“Lender”)
the outstanding principal balance of the Lender’s Loan, together with interest
thereon, at the rate or rates, in the amounts and at the time or times
set forth
in the Bridge Credit Agreement (as the same may be amended, supplemented
or
otherwise modified from time to time, the “Bridge
Credit Agreement”),
dated as of March [___], 2007, by and among the Borrower, the Lenders party
thereto, ▇▇▇▇▇▇ Brothers Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc.,
as joint
lead arrangers and joint bookrunners, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc.,
as
syndication agent, The Bank of New York, Bank of America, N.A. and Wachovia
Bank, National Association, as co-documentation agents, and ▇▇▇▇▇▇ Commercial
Paper Inc., as administrative agent (in such capacity, the “Administrative
Agent”),
in each case at the office of the Administrative Agent located at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, or at such other place as the Administrative
Agent
may specify from time to time, in lawful money of the United States of
America
in immediately available funds.
Capitalized
terms used herein that are not otherwise defined herein shall have the
respective meanings ascribed thereto in the Bridge Credit
Agreement.
The
Loan evidenced by this Note is prepayable in the amounts, and on the dates,
set
forth in the Bridge Credit Agreement. This Note is one of the Notes under
the
Bridge Credit Agreement, and is subject to, and shall be construed in accordance
with, the provisions thereof, and is entitled to the benefits set forth
in the
Loan Documents.
The
Lender is hereby authorized to record on the schedule annexed hereto, and
any
continuation sheets which the Lender may attach thereto (a) the date and
amount
of the Loan made by the Lender, (b) the Eurodollar Interest Period for
the Loan
(Eurodollar Advance only) made by the Lender, (c) the Type of the Loan
made by
the Lender as an ABR Advance, a Eurodollar Advance, or a combination thereof,
(d) the Eurodollar Rate applicable to the Loan (Eurodollar Advance only)
made by
the Lender and (e) the date and amount of each Conversion of the Loan made
by
the Lender, and each payment or prepayment of principal of, the Loan made
by the
Lender. The failure to so record or any error in so recording shall not
affect
the obligation of the Borrower to repay the Loan, together with interest
thereon, as provided in the Bridge Credit Agreement.
B-1
Except
as specifically otherwise provided in the Bridge Credit Agreement, the
Borrower
hereby waives presentment, demand, notice of dishonor, protest, notice
of
protest and all other demands, protests and notices in connection with
the
execution, delivery, performance, collection and enforcement of this
Note.
This
Note is being delivered in, is intended to be performed in, shall be construed
and interpreted in accordance with, and be governed by the laws of, the
State of
New York.
This
Note may only be amended by an instrument in writing executed pursuant
to the
provisions of Section 11.1 of the Bridge Credit Agreement.
| CVS CORPORATION | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title | ||
B-2
SCHEDULE
TO NOTE
|
Date
of
Loan
|
Type
and
Amount
of
Loan
|
Eurodollar
Interest
Period
(Eurodollar
Advance
only)
|
Type
of
Loan
(ABR
or Eurodollar)
|
Eurodollar
Rate
(Eurodollar
Advance
only)
|
Date
and
Amount
of
Conversion
of Loan
|
Date
and
Amount
of
Principal
Payment
or Prepayment
|
Notation
Made
by
|
BRIDGE
CREDIT AGREEMENT
EXHIBIT
C
FORM
OF
BORROWING REQUEST
[Date]
▇▇▇▇▇▇
Commercial Paper Inc., as Administrative Agent
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
Re:
|
Bridge
Credit Agreement, dated as of March [___], 2007, by and among
CVS
Corporation, the Lenders party thereto, ▇▇▇▇▇▇
Brothers Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., as Arrangers,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., as Syndication Agent, The
Bank of New
York, Bank of America, N.A. and Wachovia Bank, National Association,
as
co-documentation agents, and ▇▇▇▇▇▇ Commercial Paper Inc.,
as
Administrative Agent (as amended, supplemented or otherwise modified
from
time to time, “Bridge
Credit Agreement”)
|
Capitalized
terms used herein that are not otherwise defined herein shall have the
respective meanings ascribed thereto in the Bridge Credit Agreement.
Pursuant
to Section 2.2 of the Credit Agreement, the Borrower hereby gives notice
of its
intention to borrow Loans in the aggregate sum of $____________ on ____________,
which borrowing shall consist of the following:
|
ABR
Advance or
Eurodollar
Advance
|
Amount
|
Eurodollar
Interest Period
(applicable
only for a
Eurodollar
Advance)
|
The
Borrower hereby represents and warrants that on the Borrowing Date set
forth
above, and after giving effect to the Loans requested hereby:
C-1
(a) There
shall exist no Default or Event of Default.
(b) The
representations and warranties contained in the Bridge Credit Agreement
shall be
true
and
correct, except those which are expressly specified to be made as of an
earlier
date.
The
Borrower hereby instructs the Administrative Agent to deposit the proceeds
of
the Loans to the following account of the Borrower:
|
Account
Name:
Account
Number
Bank
Name:
Bank
Address:
ABA
Number:
Contact
Name:
|
[Remainder
of page intentionally left blank]
C-2
IN
EVIDENCE of the foregoing, the undersigned has caused this Borrowing Request
to
be duly executed on its behalf.
| CVS CORPORATION | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title | ||
C-3
BRIDGE
CREDIT AGREEMENT
EXHIBIT
D-1
FORM
OF
OPINION
[ ],
2007
The
Lenders and
the
Administrative Agent Referred to Below
c/o
Lehman
Commercial Paper Inc.,
as
Administrative Agent
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies
and
Gentlemen:
I
am
general counsel of CVS Corporation, a Delaware corporation (the “Borrower”),
and
have acted as such in connection with the Bridge Credit Agreement, dated
as of
March [___], 2007, by and among the Borrower, the Lenders party thereto,
▇▇▇▇▇▇
Brothers Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., as Arrangers, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Senior Funding, Inc., as Syndication Agent,
▇▇▇▇▇▇
Commercial Paper Inc., as Administrative Agent, and The
Bank of New York, Bank of America, N.A. and Wachovia Bank, National Association,
as Co-Documentation Agents (as
in
effect on the date hereof, the “Bridge
Credit Agreement”).
Capitalized terms not otherwise defined herein shall have the meanings
assigned
to them in the Bridge Credit Agreement.
I
have
examined originals or copies, certified or otherwise identified to my
satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations
of
fact and law as I have deemed necessary or advisable for purposes of this
opinion. In rendering my opinions set forth below, I have assumed (i) the
due
authorization, execution and delivery by all parties thereto (other than
the
Borrower) of the Bridge Credit Agreement, (ii) the authenticity of all
documents
submitted to me as originals and (iii) the conformity to original documents
of
all documents submitted to me as copies.
Based
upon
the foregoing, I am of the opinion that:
1. The
Borrower is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware. The Borrower has all
requisite
corporate power and authority to own its Property and to carry on its business
as now conducted.
D-1-1
2. The
Borrower is qualified to do business as a foreign corporation and is in
good
standing in each jurisdiction in which it owns or leases real Property
or in
which the nature of its business requires it to be so qualified (except
those
jurisdictions where the failure to be so qualified or to be in good standing
could not reasonably be expected to have a Material Adverse
effect).
3. The
execution, delivery and performance by the Borrower of the Bridge Credit
Agreement and the Notes are within the Borrower’s corporate powers and have been
duly authorized by all necessary corporate action on the part of the
Borrower.
4. The
execution, delivery and performance by the Borrower of the Bridge Credit
Agreement and Notes do not require any action or approval on the part of
the
shareholders of the Borrower or any action by or in respect of, or filing
with,
any governmental body, agency or official under United States federal law
or the
Delaware General Corporation Law, and do not contravene, or constitute
a default
under, any provision of (i) United States federal law or the Delaware General
Corporation Law, (ii) the Certificate of Incorporation or bylaws of the
Borrower
or (iii) any existing material mortgage, material indenture, material contract
or material agreement, in each case binding on the Borrower or any Subsidiary
or
affecting the Property of the Borrower or any Subsidiary.
5. The
Bridge
Credit Agreement and the Notes delivered by the Borrower on or prior to
the date
hereof have been duly executed and delivered by the Borrower and each
constitutes the valid and binding agreement of the Borrower, in each case
enforceable in accordance with their respective terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws from
time to
time in effect affecting the enforcement of creditors’ rights generally and to
general principles of equity.
6. The
Borrower is not an “investment company” (as such term is defined in the United
States Investment Company Act of 1940, as amended).
7. To
the
best of my knowledge, there are no actions, suits, arbitration proceedings
or
claims (whether purportedly on behalf of the Borrower, any Subsidiary or
otherwise) pending or threatened against the Borrower or any Subsidiary
or any
of their respective Properties, or maintained by the Borrower or any Subsidiary,
at law or in equity, before any Governmental Authority which could reasonably
be
expected to have a Material Adverse effect. To the best of my knowledge,
there
are no proceedings pending or threatened against the Borrower or any Subsidiary
(a) which call into question the validity or enforceability of, or otherwise
seek to invalidate, any Loan Document or (b) which could reasonably be
expected
to, individually or in the aggregate, materially and adversely affect any
of the
transactions contemplated by any Loan Document.
8. To
the
best of my knowledge, the Borrower is not in default under any agreement
to
which it is a party or by which it or any of its Property is bound the
effect of
which could reasonably be expected to have a Material Adverse
effect.
D-1-2
9. To
the
best of my knowledge, no provision of any judgment, decree or order, in
each
case binding on the Borrower or any Subsidiary or affecting the Property
of the
Borrower or any Subsidiary conflicts with, or requires any consent which
has not
already been obtained under, or would in any way prevent the execution,
delivery
or performance by the Borrower of the terms of, any Loan Document.
The
foregoing opinion is subject to the following qualifications:
(a) I
express
no opinion as to the effect (if any) of any law of any jurisdiction (except
the
Commonwealth of Massachusetts) in which any Lender is located which may
limit
the rate of interest that such Lender may charge or collect.
(b) I
express
no opinion as to provisions in the Bridge Credit Agreement which purport
to
create rights of set-off in favor of participants or which provide for
set-off
to be made otherwise than in accordance with applicable laws.
(c) I
note
that public policy considerations or court decisions may limit the rights
of any
party to obtain indemnification under the Bridge Credit Agreement.
I
am a
member of the bar of the Commonwealth of Massachusetts and the foregoing
opinion
is limited to the laws of the Commonwealth of Massachusetts, the federal
law of
the United States of America and the Delaware General Corporation Law.
For
purposes of paragraph 5 of this opinion, I have assumed that, with your
permission and without any research or investigation, the laws of the State
of
New York are identical to the law of the Commonwealth of
Massachusetts.
This
opinion is rendered solely to you in connection with the above matter.
This
opinion may not be relied upon by you for any other purpose or relied upon
by
any other person without my prior written consent, except that any person
that
becomes a Lender in accordance with the provisions of the Bridge Credit
Agreement may rely upon this opinion as if it were specifically addressed
and
delivered to such person on the date hereof.
Very
truly
yours,
D-1-3
BRIDGE
CREDIT AGREEMENT
EXHIBIT
D-2
FORM
OF
OPINION
[ ],
2007
The
Lenders and
the
Administrative Agent Referred to Below
c/o
Lehman
Commercial Paper Inc.,
as
Administrative Agent
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: CVS
Corporation
Ladies
and
Gentlemen:
We
have
acted as special New York counsel to CVS Corporation, a Delaware corporation
(the “Company”),
in
connection with the Bridge Credit Agreement, dated as of March [___], 2007,
among the Company, the lenders listed on the signature pages thereof (the
“Lenders”),
▇▇▇▇▇▇
Brothers Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., as joint lead arrangers
and joint bookrunners (in such capacity, the “Arrangers”),
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., as syndication agent (in
such
capacity, the “Syndication
Agent”),
▇▇▇▇▇▇
Commercial Paper Inc., as administrative agent (in such capacity, the
“Administrative
Agent”),
and
The
Bank of New York, Bank of America, N.A. and Wachovia Bank, National Association,
as co-documentation agents (in such capacity, the “Co-Documentation
Agents”)
(as
in
effect on the date hereof, the “Bridge
Credit Agreement”).
Capitalized terms defined in the Bridge Credit Agreement and not otherwise
defined herein are used herein as therein defined.
We
have
reviewed an executed copy of the Bridge Credit Agreement. In addition,
we have
examined originals or copies, certified or otherwise identified to our
satisfaction, of such documents, corporate records, certificates of public
officials and other instruments, and have conducted such other investigations
of
fact and law, as we have deemed necessary or advisable for purposes of
this
opinion.
Based
upon
the foregoing, and subject to the qualifications and assumptions set forth
herein, we are of the opinion that (i) the Bridge Credit Agreement constitutes
a
valid and binding agreement of the Company, enforceable against the Company
in
accordance with its terms, and (ii) the execution, delivery and performance
by
the Company of the Bridge Credit Agreement (x) require no consent or other
action by or in respect of, or filing with, any gov-
D-2-1
ernmental
body, agency or official under New York State law, and (y) do not contravene,
or
constitute a default under, any provision of New York State law or regulation
that in our experience is normally applicable to general business corporations
in relation to transactions of the type contemplated by the Bridge Credit
Agreement.
The
foregoing opinions are subject to the following qualifications and
assumptions:
(a) Our
opinions are subject to the effects of applicable bankruptcy, insolvency
and
similar laws affecting creditors’ rights generally and equitable principles of
general applicability, and the enforceability of indemnification provisions
may
be limited by Federal or State laws or policies underlying such
laws.
(b) We
express
no opinion as to the effect (if any) of any law of any jurisdiction (except
the
State of New York) in which any Lender is located that may limit the rate
of
interest that such Lender may charge or collect.
(c) We
express
no opinion as to the effect of Section 548 of the United States Bankruptcy
Code
or any similar provisions of State law.
(d) We
have
assumed, with your permission and without independent investigation, that
(i)
the Company is a corporation duly incorporated, validly existing and in
good
standing under the laws of the State of Delaware, (ii) the execution, delivery
and performance by the Company of the Bridge Credit Agreement are within
its
corporate powers and have been duly authorized by all necessary corporate
and
other action, and (iii) the execution, delivery and performance by the
Company
of the Bridge Credit Agreement (x) require no consent or other action by
or in
respect of, or filing with, any governmental body, agency or official under
United States federal law or the Delaware General Corporation Law and (y)
do not
contravene, or constitute a default under, any provision of (a) United
States
federal law or regulation or the Delaware General Corporation Law, or (b)
the
certificate of incorporation or bylaws of the Company.
We
are
members of the bar of the State of New York and the foregoing opinion is
limited
to the laws of the State of New York.
This
opinion is rendered solely to you in connection with the above matter.
This
opinion may not be relied upon by you for any other purpose or relied upon
by
any other person (other than an assignee permitted under Section 11.7 of
the
Bridge Credit Agreement) without our prior written consent.
Very
truly
yours,
D-2-2
BRIDGE
CREDIT AGREEMENT
EXHIBIT
E
FORM
OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
Reference
is made to the Bridge Credit Agreement, dated as of March [___],
2007 (as
amended and in effect on the date hereof, the “Bridge
Credit Agreement”),
by and
among CVS Corporation, the Lenders party thereto, ▇▇▇▇▇▇
Brothers Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., as Arrangers, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Senior Funding, Inc., as Syndication
Agent, ▇▇▇▇▇▇ Commercial Paper Inc., as Administrative Agent, and The
Bank of New York, Bank of America, N.A. and Wachovia Bank, National Association,
as Co-Documentation Agents.
Capitalized terms used herein that are not otherwise defined herein shall
have
the respective meanings ascribed thereto in the Bridge Credit
Agreement.
The
Assignor named below hereby sells and assigns, without recourse, to the
Assignee
named below, and the Assignee hereby purchases and assumes, without recourse,
from the Assignor, effective as of the Assignment Date (defined below),
the
interests set forth below (the “Assigned
Interest”)
in the
Assignor’s rights and obligations under the Bridge Credit Agreement, including,
without limitation, the interests set forth below in the Commitment and
the
Loans owing to the Assignor that are outstanding on the Assignment Date,
but
excluding accrued interest and fees to and excluding the Assignment Date.
The
Assignee hereby acknowledges receipt of a copy of the Bridge Credit Agreement.
From and after the Assignment Date, (i) the Assignee shall be a party to
and be
bound by the provisions of the Bridge Credit Agreement and, to the extent
of the
Assigned Interest, have the rights and obligations of a Lender under the
Loan
Documents and (ii) the Assignor shall, to the extent of the Assigned Interest,
relinquish its rights and be released from its obligations under the Loan
Documents.
This
Assignment and Acceptance is being delivered to the Administrative Agent,
together with (i) if the Assignee is a Foreign Lender, any documentation
required to be delivered by the Assignee pursuant to Section 3.10(b) of
the
Bridge Credit Agreement, duly completed and executed by the Assignee, and
(ii)
if the Assignee is not already a Lender under the Bridge Credit Agreement,
an
Administrative Questionnaire in the form supplied by the Administrative
Agent,
duly completed by the Assignee. The [Assignee/Assignor]1
shall pay the fee payable to the Administrative Agent pursuant to Section
11.7(b) of the Bridge Credit Agreement.
1 Delete
inapplicable term.
E-1
THIS
ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND
CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Date
of
Assignment:
Legal
Name
of Assignor:
Legal
Name
of Assignee:
Assignee’s
Address for Notices:
Effective
Date of
Assignment
(the “Assignment
Date”):
Commitment
Assigned:
Principal
Amount of Loans Assigned:
[SIGNATURE
PAGE FOLLOWS]
E-2
The
terms
set forth above are hereby agreed to:
|
[Name
of Assignor],
as
Assignor
|
||
| By: | ||
| [Name of Assignee], as Assignee | ||
| By: | ||
The
undersigned hereby consent to the within assignment:
| CVS CORPORATION | ||
| By: | ||
| ▇▇▇▇▇▇ COMMERCIAL PAPER INC., | ||
| as Administrative Agent | ||
| By: | ||
E-3