SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of
the
Securities Exchange Act of 1934
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Date
of report (Date of earliest event reported): March 22,
2007
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CVS/CAREMARK
CORPORATION
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(Exact
Name of Registrant
as
Specified in Charter)
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Delaware
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(State
or Other Jurisdiction of Incorporation)
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001-01011
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05-0494040
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(Commission
File Number)
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(IRS
Employer Identification No.)
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One
CVS Drive
Woonsocket,
Rhode Island
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02895
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(Address
of Principal Executive Offices)
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(Zip
Code)
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Registrant’s
telephone number, including area code:
(401) 765-1500
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CVS
Corporation
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(Former
Name or Former Address, if Changed Since Last Report)
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Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
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Written
communications pursuant to Rule 425 under the Securities Act (17
CFR
230.425)
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR
240.14d-2(b))
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR
240.13e-4(c))
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Section
2 - Other Events
Item
2.01. Completion of Acquisition or Disposition of Assets
Effective
March 22, 2007, pursuant to the Agreement and Plan of Merger dated as of
November 1, 2006 (as
amended by Amendment No. 1, dated as of January 16, 2007, the
“Merger
Agreement”)
relating to the CVS and Caremark merger transaction, Caremark Rx, Inc.
(“Caremark”)
was
merged with and into a subsidiary of CVS Corporation (“CVS”
or
the
“Corporation”),
with
the CVS subsidiary continuing as the surviving entity. Immediately following
the
merger, as described below under item 5.03, the name of the Corporation was
changed from “CVS Corporation” to “CVS/Caremark Corporation”.
By
virtue
of the merger, each issued and outstanding share of common stock, par value
$0.001 per share, of Caremark was converted into the right to receive 1.67
shares of common stock, par value $0.01 per share, of the Corporation. Cash
will
be paid in lieu of fractional shares of CVS common stock.
A
portion
of the special cash dividend of $7.50 per share separately payable to Caremark
shareholders of record as of the close of business on the day immediately
preceding the closing date of the merger has been funded through a combination
of proceeds from the issuance of commercial paper, available cash of Caremark
and borrowings under the Bridge Credit Agreement attached hereto as Exhibit
10.3.
The
CVS
common stock will trade on the New York Stock Exchange under the symbol “CVS”.
Following consummation of the merger, the Caremark common stock was delisted
from the New York Stock Exchange.
The
issuance of CVS common stock in connection with the merger, as described above,
was registered under the Securities Act of 1933, as amended (the “Securities
Act”),
pursuant to a registration statement on Form S-4/A (File No. 333-139470), filed
with the Securities and Exchange Commission (“SEC”)
on
January 18, 2007 and declared effective on January 19, 2007. The joint proxy
statement/prospectus (the “Joint
Proxy Statement/Prospectus”)
included in the registration statements contains additional information about
the merger and the related transactions. Additional information about the merger
is also contained in Current Reports on Form 8-K filed by the Corporation and
by
Caremark and incorporated by reference into the Joint Proxy
Statement/Prospectus.
A
copy of
the Corporation’s press release dated March 22, 2007 announcing the closing of
the merger is attached hereto as Exhibit 99.1 and incorporated herein by
reference.
Section
5 - Corporate Governance and Management
Item
5.02. Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers
On
March
21, 2007, Thomas P. Gerrity and Alfred J. Verrecchia each resigned from the
Corporation’s board of directors.
On
March
21, 2007, each of the following former members of the Caremark board of
directors was elected, subject to and effective upon the effective time of
the
merger, to the Corporation’s board of directors (and to the indicated Committees
of the Board):
Edwin
M.
Crawford, 58, Executive Committee
Edwin
M.
Banks, 44, Audit Committee, Nominating and Corporate Governance
Committee
C.
David
Brown II, 55, Executive Committee, Management Planning and Development
Committee, Nominating and Corporate Governance Committee
Roger
L.
Headrick, 70, Executive Committee, Audit Committee
Jean-Pierre
Millon, 56, Management Planning and Development Committee
C.A.
Lance
Piccolo, 66
Kristen
E.
Gibney Williams, 58, Audit Committee
Additionally,
as provided in the Merger Agreement, subject to and effective upon the effective
time of the merger, Thomas M. Ryan resigned from the position of Chairman of
the
board of directors of the Corporation (without resigning or otherwise affecting
his positions as president and chief executive officer of the Corporation or
as
a director of the Corporation) and the Corporation’s board of directors
appointed Edwin M. Crawford as Chairman of the Corporation’s board of directors.
In connection with his former employment with Caremark, Mr. Crawford was covered
by Caremark benefit plans and arrangements including those previously
disclosed in the Joint Proxy Statement/Prospectus, the relevant portions of
which are attached as Exhibit 99.3 hereto.
A
copy of
the Corporation’s press release dated March 22, 2007 announcing the members of
the Corporation’s board of directors is attached hereto as Exhibit 99.2 and
incorporated herein by reference.
Item
5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year
On
March
22, 2007, in connection with the Merger Agreement and as approved at the special
meeting of stockholders of the Corporation on March 15, 2007, the Corporation
adopted amendments to its Amended and Restated Certificate of Incorporation
to
increase the authorized number of shares of CVS common stock from 1 billion
to
3.2 billion and to change the name of the Corporation to “CVS/Caremark
Corporation”. Effective that same date, the Corporation amended its by-laws to
reflect the changes contemplated by the Merger Agreement and described in the
Joint Proxy Statement/Prospectus (such amendments are in addition to the changes
to the by-laws effected on February 2, 2007 and disclosed in the Current Report
on Form 8-K filed by the Corporation on February 2, 2007). The Certificate
of
Amendment to the Amended and Restated Certificate of Incorporation of the
Corporation and the amended by-laws of the Corporation are attached hereto
as
Exhibits 3.1 and 3.2, respectively, and are incorporated herein by reference.
Section
9 - Financial Statements and Exhibits
Item
9.01. Financial Statements and Exhibits
(a)
Financial
statements of business acquired.
Historical
financial statements for Caremark were previously reported in the Registration
Statement on form S-4/A filed by the Corporation on January 18,
2007.
(b)
Pro
forma financial information
Pro
forma
financial statements for the Corporation were previously reported in the Current
Report on form 8-K filed by the Corporation on March 8, 2007.
(d)
Exhibits
Exhibit
No.
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Document
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3.1
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Certificate
of Amendment to the Amended and Restated Certificate of Incorporation
of
CVS Corporation
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3.2
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By-laws
of CVS/Caremark Corporation
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10.1
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Five
Year Credit Agreement, dated as of March 12, 2007, among CVS Corporation,
the Lenders party thereto, Lehman Commercial Paper Inc., and Wachovia
Bank, National Association, as Co-Syndication Agents, Morgan Stanley
Senior Funding, Inc., as Documentation Agent, and The Bank of New
York, as
Administrative Agent.
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10.2
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364
Day Credit Agreement, dated as of March 12, 2007, among CVS Corporation,
the Lenders party thereto, Lehman Commercial Paper Inc., and Wachovia
Bank, National Association, as Co-Syndication Agents, and The Bank
of New
York, as Administrative Agent.
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10.3
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Bridge
Credit Agreement, dated as of March 15, 2007, among CVS Corporation,
the
Lenders party thereto, Lehman Commercial Paper Inc, as Administrative
Agent, Morgan Stanley 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.
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10.4
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Global
Amendment dated as of March 15, 2007, to (i) Five Year Credit Agreement
dated as of June 11, 2004, (ii) Five Year Credit Agreement dated
as of
June 3, 2005, (iii) Five Year Credit Agreement dated as of May
12, 2006,
(iv) Five Year Credit Agreement, dated as of March 12, 2007, and
(v) 364
Day Credit Agreement, dated as of March 12, 2007.
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99.1
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Press
Release (“CVS/Caremark Merger Closes, Creating the Nation’s Leading
Pharmacy Services Company”), dated March 22, 2007, of CVS/Caremark
Corporation
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99.2
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Press
Release (“CVS/Caremark Corporation Announces Board of Directors”), dated
March 22, 2007, of CVS/Caremark Corporation
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99.3
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E.
Mac Crawford’s Pre-existing Caremark Employment Arrangements and
Benefits
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant
has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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CVS/CAREMARK
CORPORATION
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Date:
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March
22, 2007
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By:
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/s/
David B. Rickard
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Name:
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David
B. Rickard
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Title:
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Executive
Vice President, Chief Financial Officer and Chief Administrative
Officer
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EXHIBIT
INDEX
Exhibit
No.
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Document
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3.1
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Certificate
of Amendment to the Amended and Restated Certificate of Incorporation
of
CVS Corporation
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3.2
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By-laws
of CVS/Caremark Corporation
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10.1
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Five
Year Credit Agreement, dated as of March 12, 2007, among CVS Corporation,
the Lenders party thereto, Lehman Commercial Paper Inc., and Wachovia
Bank, National Association, as Co-Syndication Agents, Morgan Stanley
Senior Funding, Inc., as Documentation Agent, and The Bank of New
York, as
Administrative Agent.
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10.2
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364
Day Credit Agreement, dated as of March 12, 2007, among CVS Corporation,
the Lenders party thereto, Lehman Commercial Paper Inc., and Wachovia
Bank, National Association, as Co-Syndication Agents, and The Bank
of New
York, as Administrative Agent.
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10.3
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Bridge
Credit Agreement, dated as of March 15, 2007, among CVS Corporation,
the
Lenders party thereto, Lehman Commercial Paper Inc, as Administrative
Agent, Morgan Stanley 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.
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10.4
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Global
Amendment dated as of March 15, 2007, to (i) Five Year Credit Agreement
dated as of June 11, 2004, (ii) Five Year Credit Agreement dated
as of
June 3, 2005, (iii) Five Year Credit Agreement dated as of May
12, 2006,
(iv) Five Year Credit Agreement, dated as of March 12, 2007, and
(v) 364
Day Credit Agreement, dated as of March 12, 2007.
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99.1
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Press
Release (“CVS/Caremark Merger Closes, Creating the Nation’s Leading
Pharmacy Services Company”), dated March 22, 2007, of CVS/Caremark
Corporation
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99.2
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Press
Release (“CVS/Caremark Corporation Announces Board of Directors”), dated
March 22, 2007, of CVS/Caremark Corporation
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99.3
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E.
Mac Crawford’s Pre-existing Caremark Employment Arrangements and
Benefits
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EXHIBIT
3.1
CERTIFICATE
OF AMENDMENT
TO
THE
AMENDED
AND RESTATED
CERTIFICATE
OF INCORPORATION
OF
CVS
CORPORATION
IT
IS
HEREBY CERTIFIED THAT:
A.
The
name
of the corporation (hereinafter referred to as the “Corporation”) is CVS
CORPORATION. The date of filing of its original Certificate of Incorporation
with the Secretary of State of Delaware is August 22, 1996.
B.
At
a
meeting of the Board of Directors of the Corporation on November 1, 2006,
resolutions were duly adopted approving the following proposed amendment of
the
Amended and Restated Certificate of Incorporation (the “Certificate of
Incorporation”) of the Corporation and declaring said amendment to be advisable.
The proposed amendment was as follows:
1.
Article
FIRST shall be deleted and replaced in its entirety with the following new
Article FIRST:
FIRST:
The name of the Corporation is “CVS/Caremark Corporation”.
2.
The
first
paragraph of Article FOURTH shall be deleted and replaced in its entirety with
the following new first paragraph of Article FOURTH:
FOURTH:
The authorized capital stock of the corporation consists of 3,200,000,000 shares
of Common Stock, par value $.01 per share (“Common Stock”), (ii) 120,619 shares
of Cumulative Preferred Stock, par value $0.01 per share (“Preferred Stock”),
and (iii) 50,000,000 shares of Preference Stock, par value $1 per share
(“Preference Stock”).
C.
Thereafter,
pursuant to a resolution of its Board of Directors, a meeting of stockholders
of
the Corporation was duly called and held, on March 15, 2007 upon notice in
accordance with Section 222 of the General Corporation Law of the State of
Delaware, at which meeting the necessary number of shares as required by statute
were voted in favor of the amendment.
D.
The
amendment was duly adopted in accordance with the provisions of Section 242
of
the General Corporation law of the State of Delaware.
E.
The
effective time of this Certificate of Amendment to the Amended and Restated
Certificate of Incorporation
of CVS
Corporation shall be 3:01 a.m., Eastern Daylight Time,
on
March 22, 2007.
IN
WITNESS WHEREOF, the Corporation has caused this certificate to be executed
by
Zenon P. Lankowsky, an authorized officer of the Corporation, this 21st day
of
March, 2007.
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CVS
CORPORATION
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By:
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/s/
Zenon
P. Lankowsky |
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Name:
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Zenon
P. Lankowsky
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Title:
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Secretary
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BY-LAWS
OF
CVS/CAREMARK
CORPORATION
(as
amended and restated March 22, 2007)
__________________________
Article
I
STOCKHOLDERS
Section
1. ANNUAL
MEETING.
The
annual meeting of the stockholders of the corporation for the purpose of
electing directors and for the transaction of such other business as may be
brought before the meeting, shall be held at the principal office of the
corporation, or at such other place within or without the State of Delaware
stated in the notice of the meeting as the Board of Directors may determine,
on
such day in the month of April or May as the Board of Directors may determine,
at 10:00 o’clock in the forenoon, Rhode Island time, or at such other hour
stated in the notice of the meeting as the Board of Directors may
determine.
Section
2. SPECIAL MEETINGS. Special meetings of stockholders may be called by the
Board
of Directors, the Chairman of the Board of Directors or the Chief Executive
Officer and may not be called by any other person.
Special
meetings shall be held at such place within or without the State of Delaware
as
is specified in the call thereof.
Section
3. NOTICE OF MEETING; WAIVER. Unless otherwise required by statute, the notice
of every meeting of the stockholders shall be in writing and signed by the
Chairman of the Board of Directors or the Chief Executive Officer (or the
President or a Vice President or the Secretary or an Assistant Secretary, in
each case acting at the direction of the Chairman or the Chief Executive
Officer) and shall state the time when and the place where it is to be held,
and
a copy thereof shall be served, either personally or by mail, upon each
stockholder of record entitled to vote at such meeting, not less than ten nor
more than sixty days before the meeting. If the meeting to be held is other
than
the annual meeting of stockholders, the notice shall also state the purpose
or
purposes for which the meeting is called and shall indicate that it is being
issued by or at the direction of the person or persons calling the meeting.
If,
at any meeting, action is proposed to be taken which would, if taken, entitle
stockholders to receive payment for their shares pursuant to Section 262 of
the
General Corporation Law of the State of Delaware, the notice of such meeting
shall include a statement of that purpose and to that effect. If the notice
is
mailed, it shall be directed to a stockholder at the stockholder’s address as it
appears on the record of stockholders unless the stockholder shall have filed
with the Secretary of the corporation a written request that notices intended
for the stockholder be mailed to some other address, in which case it shall
be
mailed to the address designated in such request.
Notice
of
a meeting need not be given to any stockholder who submits a signed waiver
of
notice, in person or by proxy, whether before or after the meeting. The
attendance of a stockholder at a meeting, in person or by proxy, without
protesting prior to the conclusion of the meeting the lack of notice of such
meeting, shall constitute a waiver of notice by the stockholder.
Section
4. QUORUM. At any meeting of the stockholders the holders of a majority of
the
shares entitled to vote and being present in person or represented by proxy
shall constitute a quorum for all purposes, unless the representation of a
different number shall be required by law or by another provision of these
by-laws, and in that case the representation of the number so required shall
constitute a quorum.
If
the
holders of the amount of shares necessary to constitute a quorum shall fail
to
attend in person or by proxy, the holders of a majority of the shares present
in
person or represented by proxy at the meeting may adjourn from time to time
without further notice other than by an announcement made at the meeting. At
any
such adjourned meeting at which a quorum is present, any business may be
transacted which might have been transacted at the meeting as originally
called.
Section
5. ORGANIZATION. The Chairman of the Board of Directors or, in his absence,
the
Chief Executive Officer or, in his absence, the President, any Executive Vice
President, Senior Vice President or Vice President in the order of their
seniority or in such other order as may be designated by the Board of Directors,
shall call meetings of the stockholders to order and shall act as chairman
of
such meetings. The Board of Directors or the Executive Committee may appoint
any
stockholder to act as chairman of any meeting in the absence of any of such
officers and in the event of such absence and the failure of such board or
committee to appoint a chairman, the stockholders present at such meeting may
nominate and appoint any stockholder to act as chairman.
The
Secretary of the corporation, or, in his absence, an Assistant Secretary, shall
act as secretary of all meetings of stockholders, but, in the absence of said
officers, the chairman of the meeting may appoint any person to act as secretary
of the meeting.
Section
6. VOTING. At each meeting of the stockholders every stockholder of record
having the right to vote shall be entitled to vote either in person or by
proxy.
Section
7. ACTION BY WRITTEN CONSENT. Any action required or permitted to be taken
at
any annual or special meeting of stockholders may be taken without a meeting
on
written consent, setting forth the action so taken, signed by the holders of
all
outstanding shares entitled to vote thereon. Written consent thus given by
the
holders of all outstanding shares entitled to vote shall have the same effect
as
a unanimous vote of the stockholders.
Section
8. INSPECTORS OF ELECTION. The Board of Directors, in advance of any
stockholders’ meeting, may appoint one or more Inspectors of Election to act at
the meeting or any adjournment thereof. If Inspectors are not so appointed,
the
person presiding at a stockholders’ meeting may, and on the request of any
stockholder entitled to vote thereat, shall appoint one or more inspectors.
In
case any person appointed fails to appear or act, the vacancy may be filled
by
appointment made by the Board in advance of the meeting or at the meeting by
the
person presiding thereat. Inspectors shall be sworn.
Section
9. CONDUCT OF ELECTION. At each meeting of the stockholders, votes, proxies,
consents and ballots shall be received, and all questions touching the
qualification of voters, the validity of proxies and the acceptance or rejection
of votes, shall be decided by the Inspectors of Election.
Section
10. NOMINATION OF DIRECTORS. Only persons who are nominated in accordance with
the procedures set forth in these by-laws shall be eligible to serve as
directors. Nominations of persons for election to the Board of Directors of
the
corporation may be made at a meeting of stockholders (a) by or at the direction
of the Board of Directors or (b) by any stockholder of the corporation who
is a
stockholder of record at the time of giving of notice provided for in this
Section 10, who shall be entitled to vote for the election of directors at
the
meeting and who complies with the notice procedures set forth in this Section
10. Such nominations, other than those made by or at the direction of the Board
of Directors, shall be made pursuant to timely notice in writing to the
Secretary of the corporation. To be timely, a stockholder’s notice shall be
delivered to or mailed and received at the principal executive offices of the
corporation not less than 60 days nor more than 90 days prior to the first
anniversary of the preceding year’s annual meeting of stockholders; provided,
however,
that in
the event that the date of the annual meeting is advanced more than 30 days
prior to such anniversary date or delayed more than 60 days after such
anniversary date then to be timely such notice must be received by the
corporation no later than the later of 70 days prior to the date of the meeting
or the 10th day following the day on which public announcement of the date
of
the meeting was made. Such stockholder’s notice shall set forth (a) as to each
person whom the stockholder proposes to nominate for election or reelection
as a
director all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities Exchange
Act of 1934 (including such person’s written consent to being named in the proxy
statement as a nominee and to serving as a director if elected); and (b) as
to
the stockholder giving the notice (i) the name and address, as they appear
on
the corporation’s books, of such stockholder and (ii) the class and number of
shares of the corporation which are beneficially owned by such stockholder.
At
the request of the Board of Directors, any person nominated by the Board of
Directors for election as a director shall furnish to the Secretary of the
corporation that information required to be set forth in a stockholder’s notice
of nomination which pertains to the nominee. No person shall be eligible to
serve as a director of the corporation unless nominated in accordance with
the
procedures set forth in this by-law. The chairman of the meeting shall, if
the
facts warrant, determine and declare to the meeting that a nomination was not
made in accordance with the procedures prescribed by the by-laws,
and
if he
should so determine, he shall so declare to the meeting and the defective
nomination shall be disregarded. Notwithstanding the foregoing provisions of
this Section 10, a stockholder shall also comply with all applicable
requirements of the Securities Exchange Act of 1934 and the rules and
regulations thereunder with respect to the matters set forth in this Section
10.
Section
11. NOTICE OF BUSINESS. At any meeting of the stockholders, only such business
shall be conducted as shall have been brought before the meeting (a) by or
at
the direction of the Board of Directors or (b) by any stockholder of the
corporation who is a stockholder of record at the time of giving of the notice
provided for in this Section 11, who shall be entitled to vote at such meeting
and who complies with the notice procedures set forth in this Section 11. For
business to be properly brought before a stockholder meeting by a stockholder,
the stockholder must have given timely notice thereof in writing to the
Secretary of the corporation. To be timely, a stockholder’s notice shall be
delivered to or mailed and received at the principal executive offices of the
corporation not less than 60 days nor more than 90 days prior to the first
anniversary of the preceding year’s annual meeting of stockholders; provided,
however, that in the event that the date of the annual meeting is advanced
more
than 30 days prior to such anniversary date or delayed more than 60 days after
such anniversary date then to be timely such notice must be received by the
corporation no later than the later of 70 days prior to the date of the meeting
or the 10th day following the day on which public announcement of the date
of
the meeting was made. A stockholder’s notice to the Secretary shall set forth as
to each matter the stockholder proposes to bring before the meeting (a) a brief
description of the business desired to be brought before the meeting and the
reasons for conducting such business at the meeting, (b) the name and address,
as they appear on the corporation’s books, of the stockholder proposing such
business, (c) the class and number of shares of the corporation which are
beneficially owned by the stockholder and (d) any material interest of the
stockholder in such business. Notwithstanding anything in the by-laws to the
contrary, no business shall be conducted at a stockholder meeting except in
accordance with the procedures set forth in this Section 11. The chairman of
the
meeting shall, if the facts warrant, determine and declare to the meeting that
business was not properly brought before the meeting and in accordance with
the
provisions of the by-laws, and if he should so determine, he shall so declare
to
the meeting and any such business not properly brought before the meeting shall
not be transacted. Notwithstanding the foregoing, provisions of this Section
11,
a stockholder shall also comply with all applicable requirements of the
Securities Exchange Act of 1934 and the rules and regulations thereunder with
respect to the matters set forth in this Section 11.
Article
II
BOARD
OF
DIRECTORS
Section
1. NUMBER OF DIRECTORS. The number of directors of the corporation shall be
not
less than three nor more than eighteen, as determined (subject to Article V,
Section 2) by action of the Board of Directors.
Section
2. TERM
AND
VACANCIES. Subject to Article V, Section 2, directors shall be elected at the
annual meeting of stockholders to hold office until the next annual meeting
and
until their respective successors have been duly elected and have
qualified.
Subject
to Article V, Section 2, vacancies in the Board of Directors, from any cause
whatsoever, including vacancies created by an increase in the number of
directors, shall be filled by the vote of a majority of the remaining directors,
though less than a quorum.
Directors
need not be stockholders.
Section
3. MAJORITY VOTING. Except as otherwise provided in Section 4 of this Article
II, each director shall be elected by the vote of the majority of the votes
cast
with respect to that director’s election at any meeting for the election of
directors at which a quorum is present. For purposes of this Section 3, a
majority of votes cast means that the number of votes “for” a director’s
election must exceed 50% of the votes cast with respect to that director’s
election. Votes “against” a director’s election will count as a vote cast, but
“abstentions” and “broker non-votes” will not count as a vote cast with respect
to that director’s election.
Section
4. CONTESTED ELECTIONS. If, as of the last date by which stockholders may submit
notice to nominate a person for election as a director pursuant to Article
I,
Section 10 of these by-laws, the number of nominees for any election of
directors, exceeds the number of directors to be elected (a “Contested
Election”), the
nominees
receiving a plurality of the votes cast by holders of shares entitled to vote
in
the election at a meeting at which a quorum is present shall be
elected.
Section
5. RESIGNATION AND REPLACEMENT OF UNSUCCESSFUL INCUMBENT DIRECTOR.
(i)
In
order for any incumbent director to become a nominee of the Board of Directors
for further service on the Board of Directors, such person must submit an
irrevocable resignation, which resignation shall become effective upon (i)
that
person not receiving a majority of the votes cast in an election that is not
a
Contested Election, and (ii) acceptance by the Board of Directors of that
resignation in accordance with the policies and procedures adopted by the Board
of Directors for such purpose.
(ii)
The
Board of Directors, acting on the recommendation of the Nominating and Corporate
Governance Committee, shall no later than at its first regularly scheduled
meeting following certification of the shareholder vote, determine whether
to
accept the resignation of the unsuccessful incumbent. Absent a determination
by
the Board of Directors that a compelling reason exists for concluding that
it is
in the best interests of the corporation for an unsuccessful incumbent to remain
as a director, no such person shall be elected by the Board of Directors to
serve as a director, and the Board of Directors shall accept that person’s
resignation.
(iii)
The
Board of Directors shall promptly consider and act upon the Nominating and
Corporate Governance Committee’s recommendation. The Nominating and Corporate
Governance Committee, in making this recommendation and the Board of Directors,
in acting on such recommendation, may consider any factors or other information
that they determine appropriate and relevant.
(iv)
If
the Board of Directors determines to accept the resignation of an unsuccessful
incumbent, the Nominating and Corporate Governance Committee shall promptly
recommend a candidate to the Board of Directors to fill the office formerly
held
by the unsuccessful incumbent.
(v)
The
Nominating and Corporate Governance Committee and the Board of Directors shall
take the actions required under this Section 5 without the participation of
any
unsuccessful incumbent except that:
(a)
If
every member of the Nominating and Corporate Governance Committee is an
unsuccessful incumbent, then a majority of the Board of Directors shall appoint
a Board committee (the “Special Nominating Committee”) of independent directors
(as defined below) for the purpose of considering the tendered resignations
and
making a recommendation to the Board of Directors whether to accept or reject
them; and
(b)
If
the number of independent directors who are not unsuccessful incumbents is
three
or fewer, all directors may participate in the decisions under this Section
5.
As
used
above, the term “independent director” shall mean a director who complies with
the “independent director” requirements under the rules of the New York Stock
Exchange, Inc., under law or under any rule or regulation of any other
regulatory body or self regulatory body applicable to the
corporation.
(vi)
If
the Board of Directors accepts the resignation of a director who is an
unsuccessful incumbent pursuant to this by-law, or if a nominee for director
who
is not an incumbent director does not receive more than 50% of the votes cast
with respect to that director’s election, then the Board of Directors may fill
the resulting vacancy pursuant to Section 2, or may decrease the size of the
Board of Directors pursuant to the provisions of Section 1.
Section
6. RESIGNATION. Any director may resign at any time upon notice given in writing
or by electronic transmission to the Chairman of the Board of Directors or
to
the Secretary of the corporation. A resignation is effective when the
resignation is delivered unless the resignation specifies (a) a later effective
date or (b) an effective date determined upon the happening of an event or
events (including but not limited to a failure to receive more than 50% of
the
votes cast in an election and the Board of Director’s acceptance of the
resignation).
Section
7. GENERAL POWERS OF DIRECTORS. The business of the corporation shall be managed
under the direction of its Board of Directors subject to the restrictions
imposed by law, by the corporation’s certificate of incorporation and amendments
thereto, or by these by-laws.
Section
8. MEETINGS OF DIRECTORS. The directors may hold their meetings and may keep
an
office and maintain the books of the corporation, except as otherwise provided
by statute, in such place or places in the State of Delaware or outside the
State of Delaware as the Board may, from time to time, determine.
Any
action required or permitted to be taken by the Board of Directors may be taken
without a meeting if all of the directors consent in writing to the adoption
of
a resolution authorizing the action, and in such event the resolution and the
written consent of all directors thereto shall be filed with the minutes of
the
proceedings of the Board of Directors.
Any
one
or more directors may participate in a meeting of the Board of Directors by
means of a conference telephone or similar communications equipment allowing
all
persons participating in the meeting to hear each other at the same time, and
participation by such means shall constitute presence in person at a
meeting.
Section
9. REGULAR MEETINGS. Regular meetings of the Board of Directors shall be held
at
the principal office of the corporation in the County of Providence, City of
Woonsocket, State of Rhode Island, or at such other place within or without
the
State of Delaware as shall be designated in the notice of the meeting as
follows: One meeting shall be held immediately following the annual meeting
of
stockholders and further meetings shall be held at such intervals or on such
dates as may from time to time be fixed by the Board of Directors, all of which
meetings shall be held upon not less than four days’ notice served upon each
director by mailing such notice to the director at the director’s address as the
same appears upon the records of the corporation, except the meeting which
shall
be held immediately following the annual meeting of stockholders which meeting
shall be held without notice.
Section
10. SPECIAL MEETINGS. Special meetings of the Board of Directors shall be held
whenever called by the direction of the Chairman of the Board of Directors,
or
of the Chief Executive Officer of the corporation, or of one-third of the
directors at the time in office. The Secretary shall give notice of each special
meeting by mailing such notice not less than four days, or by telegraphing
or
telecopying such notice not less than two days, before the date set for a
special meeting, to each director.
Section
11. WAIVER. Notice of a meeting need not be given to any director who submits
a
signed waiver of notice whether before or after the meeting, or who attends
the
meeting without protesting, prior thereto or at its commencement, the lack
of
notice to him.
Section
12. QUORUM. At a meeting, a majority of the directors shall constitute a quorum
for the transaction of business, but if at any meeting of the Board of Directors
there be less than a quorum present, the majority of those present may adjourn
the meeting from time to time.
Section
13. ORDER OF BUSINESS. At meetings of the Board of Directors business shall
be
transacted in such order as the Board of Directors may fix and
determine.
At
all
meetings of the Board of Directors, the Chairman of the Board of Directors,
or
in his absence, the Chief Executive Officer, or in the absence of both, the
President, any Executive Vice President or any Vice President (provided such
person be a member of the Board of Directors) shall preside.
Section
14. ELECTION OF CHAIRMAN, OFFICERS AND COMMITTEES. At the first regular meeting
of the Board of Directors in each year, at which a quorum shall be present,
held
next after the annual meeting of the stockholders, the Board of Directors shall
proceed to the election of the Chairman of the Board, of the executive officers
of the corporation, and of the Executive Committee, if the Board of Directors
shall provide for such committee under the provisions of Article III
hereof.
Except
as
otherwise provided herein, the Board of Directors from time to time may fill
any
vacancies among the executive officers, members of the Executive Committee
and
members of other committees, and may appoint additional executive officers
and
additional members of such Executive Committee or other committees.
Section
15. COMPENSATION. Directors who are not officers or employees of the corporation
or any of its subsidiaries may receive such remuneration as the Board may fix,
in addition to a fixed sum for attendance at each regular or special meeting
of
the Board or a Committee of the Board; provided, however, that nothing herein
contained shall be construed to preclude any director from serving the
corporation in any other capacity or receiving compensation therefor. In
addition, each director shall be entitled to reimbursement for expenses incurred
in attending any meeting of the Board or Committee thereof.
Article
III
COMMITTEES
Section
1. EXECUTIVE COMMITTEE. The Board of Directors by resolution adopted by a
majority of the entire Board, may (subject to Article V, Section 2), designate
from the Directors an Executive Committee consisting of three or more, to serve
at the pleasure of the Board. At all times when the Board of Directors is not
in
session, the Executive Committee so designated shall have and exercise the
powers of the Board of Directors, except that such committee shall have no
authority as to the matters set out in Section 3 of this Article
III.
Meetings
of the Executive Committee shall be called by any member of the same, on three
days’ mailed notice, or one day’s telegraphed or telecopied notice to each of
the other members, stating therein the purpose for which such meeting is to
be
held. Notice of meeting may be waived, in writing, by any member of the
Executive Committee.
All
action by the Executive Committee shall be recorded in its minutes and reported
from time to time to the Board of Directors.
The
Executive Committee shall fix its own rules of procedure and shall meet where
and as provided by such rules or by resolution of the Board of
Directors.
Any
action required or permitted to be taken by the Executive Committee may be
taken
without a meeting if all of the members of the Executive Committee consent
in
writing to the adoption of a resolution authorizing the action, and in such
event the resolution and the written consent of all members of the Executive
Committee thereto shall be filed with the minutes of the proceedings of the
Executive Committee.
Any
one
or more members of the Executive Committee may participate in a meeting of
the
Executive Committee by means of a conference telephone or similar communications
equipment allowing all persons participating in the meeting to hear each other
at the same time, and participation by such means shall constitute presence
in
person at a meeting.
Section
2. OTHER COMMITTEES. Subject to Article V, Section 2, the Board of Directors
may
appoint such other committees, of three or more, as the Board shall, from time
to time, deem advisable, which committees shall have and may exercise such
powers as shall be prescribed, from time to time, by resolution of the Board
of
Directors, except that such committees shall have no authority as to the matters
set out in Section 3 of this Article III.
Actions
and recommendations by each committee which shall be appointed pursuant to
this
section shall be recorded and reported from time to time to the Board of
Directors.
Each
such
committee shall fix its own rules of procedure and shall meet where and as
provided by such rules or by resolution of the Board of Directors.
Any
action required or permitted to be taken by any such committee may be taken
without a meeting if all of the members of such committee consent in writing
to
the adoption of a resolution authorizing the action, and in such event the
resolution and the written consent of all members of such committee thereto
shall be filed with the minutes of the proceedings of such
committee.
Any
one
or more members of any such committee may participate in a meeting of such
committee by means of a conference telephone or similar communications equipment
allowing all persons participating in the
meeting
to hear each other at the same time, and participation by such means shall
constitute presence in person at a meeting.
Section
3. LIMITATIONS. No committee shall have authority as to the following
matters:
(1) The
approval, adoption, recommendation or submission to stockholders of any action
that needs stockholders’ authorization.
(2) The
filling of vacancies in the Board of Directors or in any committee.
(3) The
fixing of compensation of the directors for serving on the Board of Directors
or
on any committee.
(4) The
amendment or repeal of the by-laws, or the adoption of new by-laws.
(5) The
amendment or repeal of any resolution of the Board of Directors which by its
terms shall not be so amendable or repealable.
Section
4. ALTERNATES. The Board of Directors may designate one or more directors as
alternate members of any such committees, who may replace any absent member
or
members at any meeting of such committees.
Section
5. COMPENSATION. Members of special or standing committees may receive such
salary for their services as the Board of Directors may determine; provided,
however, that nothing herein contained shall be construed to preclude any member
of any such committee from serving the corporation in any other capacity or
receiving compensation therefor.
Article
IV
OFFICERS
AND CHAIRMAN
Section
1. TITLES AND TERMS OF OFFICE. The executive officers of the corporation shall
be a Chief Executive Officer and a President, each of whom shall be a member
of
the Board of Directors, such number of Executive Vice Presidents, Senior Vice
Presidents and Vice Presidents as the Board of Directors shall determine, and
a
Controller, a Treasurer and a Secretary, all of whom shall be chosen by the
Board of Directors.
The
Board
of Directors may also appoint one or more Assistant Secretaries and one or
more
Assistant Treasurers, and such other junior officers as it shall deem necessary,
who shall have such authority and shall perform such duties as from time to
time
may be prescribed by the Board of Directors.
Any
two
or more offices except President and Vice President may be held by the same
person.
The
officers of the corporation shall each hold office for one year and until their
successors are chosen and qualified, and, except as set forth herein, shall
be
subject to removal at any time by the affirmative vote of the majority of the
entire Board of Directors.
Section
2. CHAIRMAN OF THE BOARD. The Board of Directors shall designate a Chairman
of
the Board (or one or more Co-Chairmen of the Board). The Chairman of the Board
shall preside over the meetings of the Board of Directors and of the
stockholders at which he will be present. If there be more than one, the
Co-Chairmen designated by the Board of Directors will perform such duties.
The
Chairman or Chairmen of the Board shall perform such other duties as may be
assigned to him or them by the Board of Directors. As of the Effective Time
(as
defined in Article V below), Mr. Mac Crawford shall be the Chairman of the
Board
of Directors (and for so long as Mr. Mac Crawford is Chairman, the Board of
Directors shall not designate a Co-Chairman).
Section
3. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer of the corporation
shall
have general management and control over the policy, business and affairs of
the
corporation and shall have such other authority and perform such other duties
as
usually appertain to a chief executive officer of a business corporation. He
shall exercise the powers of the Chairman of the Board of Directors during
the
Chairman’s absence or inability
to
act.
As of the Effective Time, Mr. Thomas M. Ryan shall be the Chief Executive
Officer of the corporation until his resignation, death or removal as set forth
herein. Any removal of the Chief Executive Officer or other modification to
the
preceding sentence prior to January 1, 2010 shall require the approval of
three-quarters of the members of the Board of Directors.
Section
4. PRESIDENT. The President, if any, shall have such authority and shall perform
such duties as the Board of Directors, the Executive Committee, or the Chief
Executive Officer may from time to time determine.
Section
5. EXECUTIVE VICE PRESIDENTS, SENIOR VICE PRESIDENTS AND VICE PRESIDENTS. The
Executive Vice Presidents, Senior Vice Presidents and Vice Presidents, if any,
shall be designated and shall have such powers and perform such duties as may
be
assigned to them by the Board of Directors, the Executive Committee, the Chief
Executive Officer or the President. They shall, in order of their seniority
or
in such other order as may be designated by the Board of Directors, the
Executive Committee, the Chief Executive Officer or the President, exercise
the
powers of the Chief Executive Officer during the absence or inability to act
of
the Chief Executive Officer and the President.
Section
6. CHIEF FINANCIAL OFFICER. A Chief Financial Officer or other officer
designated by the Board of Directors shall be the principal financial officer
of
the corporation. He shall render to the Board of Directors, whenever the Board
may require, an account of the financial condition of the corporation, and
shall
do and perform such other duties as from time to time may be assigned to him
by
the Board of Directors, the Executive Committee, the Chief Executive Officer
or
the President.
Section
7. CONTROLLER. A Controller or other officer designated by the Board of
Directors shall be the principal accounting officer of the corporation and,
subject to the direction of the Chief Financial Officer, he shall have
supervision over all the accounts and account books of the corporation. He
shall
have such other powers and perform such other duties as from time to time may
be
assigned to him by the Chief Financial Officer, and shall exercise the powers
of
the Chief Financial Officer during his absence or inability to act.
Section
8. TREASURER. The Treasurer shall have custody of the funds and securities
of
the corporation that come into his hands. When necessary or proper, he may
endorse on behalf of the corporation for collection, checks, notes, and other
instruments and obligations and shall deposit the same to the credit of the
corporation in such bank or banks or depositories as the Board of Directors
or
the Executive Committee shall designate; whenever required by the Board of
Directors or the Executive Committee, he shall render a statement of his cash
account; he shall keep, or cause to be kept, books of account, in which shall
be
entered and kept full and accurate accounts of all monies received and paid
out
on account of the corporation; he shall perform all acts incident to the
position of Treasurer, subject to the control of the Board of Directors, the
Executive Committee, the Chief Executive Officer, the President and the Chief
Financial Officer; he shall give bond for the faithful discharge of his duties,
if, as, and when the Board of Directors or the Executive Committee may require.
He shall perform such other duties as from time to time may be assigned to
him
by the Board of Directors, the Executive Committee, the Chief Executive Officer,
the President or the Chief Financial Officer.
Section
9. ASSISTANT TREASURER. Each Assistant Treasurer shall have such powers and
perform such duties as may be delegated to him, and the Assistant Treasurers
shall, in the order of their seniority, or in such other order as may be
designated by the Board of Directors, the Executive Committee, the Chief
Executive Officer, the President or the Chief Financial Officer, exercise the
powers of the Treasurer during his absence or inability to act.
Section
10. SECRETARY. The Secretary shall keep the minutes of all meetings of the
Board
of Directors and the minutes of all meetings of the stockholders and of the
Executive Committee, in books provided for that purpose; he shall attend to
the
giving and serving of all notices of the corporation; and he shall have charge
of the certificate books, transfer books and records of stockholders and such
other books and records as the Board of Directors or Executive Committee may
direct, all of which shall at all reasonable times be open to the inspection
of
any director upon application during the usual business hours.
He
shall
keep at the office of the corporation, or at the office of the transfer agent
or
registrar of the corporation’s capital stock, a record containing the names,
alphabetically arranged, of all persons who are stockholders of the corporation,
showing their places of residence, the number of shares held by them,
respectively,
the
time
when they respectively became the owners thereof, and the amount paid thereon,
and such record shall be open for inspection as prescribed by Section 220 of
the
General Corporate Law of the State of Delaware. He shall in general perform
all
of the duties incident to the office of Secretary, subject to the control of
the
Board of Directors, the Executive Committee, the Chairman of the Board of
Directors, the Chief Executive Officer and the President.
Section
11. ASSISTANT SECRETARIES. Each Assistant Secretary shall have such powers
and
perform such duties as may be delegated to him, and the Assistant Secretaries
shall, in the order of their seniority, or in such other order as may be
designated by the Board of Directors, the Executive Committee, the Chairman
of
the Board of Directors, the Chief Executive Officer or the President, exercise
the powers of the Secretary during his absence or inability to act.
Section
12. VOTING UPON STOCKS. Unless otherwise ordered by the Board of Directors
or by
the Executive Committee, the Chief Executive Officer of the corporation, or
one
designated in a proxy executed by him, and in the absence of either, the
President, or a person designated in a proxy executed by him, and in the absence
of all such, the Executive Vice Presidents, Senior Vice Presidents or the Vice
Presidents of the corporation, in the order of their seniority, shall have
full
power and authority on behalf of the corporation to attend, and to act, and
to
vote at meetings of stockholders of any corporation in which this corporation
may hold stock, and each such officer of the corporation shall have power to
sign a proxy deputizing others to vote the same; and all such who shall be
so
authorized to vote shall possess and may exercise any and all rights and powers
incident to the ownership of such stock and which, as the owner thereof, the
corporation might have possessed and exercised, if present.
The
Board
of Directors or the Executive Committee may, by resolution from time to time,
confer like powers on any other person or persons, which shall supersede the
powers of those designated in the foregoing paragraph.
Section
13. EXECUTION OF CHECKS, ETC. All checks, notes, drafts or other instruments
for
the payment of money shall be signed on behalf of this corporation by such
person or persons and in such manner as the Board of Directors or Executive
Committee may prescribe by resolution from time to time.
Article
V
CERTAIN
OTHER GOVERNANCE
MATTERS
Section
1. DEFINITIONS.
“CVS”
means
CVS Corporation, a Delaware corporation.
“CVS
Director”
means
each of those seven individuals designated by CVS to serve as members of the
Board of Directors as of the Effective Time pursuant to the Merger Agreement
(which granted CVS a contractual right to designate such
directors).
“Effective
Time”
has
the
meaning set forth in the Merger Agreement.
“Merger
Agreement”means
the
Agreement and Plan of Merger, dated as of November 1, 2006, among CVS, Caremark
and Twain MergerSub L.L.C. (f/k/a Twain MergerSub Corp.), as amended by
Amendment No. 1, dated as of January 16, 2007.
“Caremark”
means
Caremark Rx, Inc., a Delaware corporation.
“Caremark
Director”
means
each of those seven individuals designated by Caremark to serve as members
of
the Board of Directors as of the Effective Time pursuant to the Merger Agreement
(which granted Caremark a contractual right to designate such
directors).
Section
2. MEMBERSHIP OF THE BOARD OF DIRECTORS AND COMMITTEES OF THE
BOARD.
(a)
Effective
as of the Effective Time, the Board of Directors shall consist of fourteen
directors. Commencing at the Effective Time, each of the Caremark Directors
and
the CVS Directors shall hold office until the
first
annual meeting of stockholders after the Effective Time (the “First
Annual Meeting”)
and
until his successor shall be elected and qualify.
(b)
In
the
event of the death, removal or resignation of one of the Caremark Directors
prior to the First Annual Meeting, the remaining Caremark Directors shall
designate an individual to fill such vacancy; provided that, prior to the First
Annual Meeting, each such Caremark Director may only be removed by majority
vote
of the other Caremark Directors.
(c)
In
the
event of the death, removal or resignation of one of the CVS Directors prior
to
the First Annual Meeting, the remaining CVS Directors shall designate an
individual to fill such vacancy; provided that, prior to the First Annual
Meeting, each such CVS Director may only be removed by majority vote of the
other CVS Directors.
(d)
At
the
Effective Time, (i) the Chairman of the Audit Committee of the Board of
Directors shall be designated by the Caremark Directors, and (ii) the Chairman
of each of the Management, Planning and Development Committee and the Nominating
and Corporate Governance Committee of the Board of Directors shall be designated
by the CVS Directors.
(e)
As
of the
Effective Time, the Executive Committee of the Board of Directors shall consist
of four directors, being: the Chairman of the Board, one other Caremark
Director, the Chief Executive Officer and one other CVS Director.
Section
3. HEADQUARTERS. As of the Effective Time, the headquarters of the pharmacy
benefits management business of the corporation shall be located in Nashville,
Tennessee. Any decision to change this location prior to the third anniversary
of the Effective Time shall require the approval of three-quarters of the
members of the Board of Directors.
Section
4. NAME OF THE CORPORATION. Any change to the name of the corporation shall
require the approval of three quarters of the members of the Board of
Directors.
Section
5. AMENDMENTS. Any amendment by the Board of Directors of this Article V, or
any
other provision contained in these Bylaws requiring approval for an action
by at
least three quarters of the members of the Board of Directors, shall require
the
approval of three quarters of the members of the Board of
Directors.
Article
VI
STOCK;
RECORD DATE
Section
1. CERTIFICATES FOR STOCK; UNCERTIFICATED SHARES. The certificates for shares
of
the stock of the corporation shall be in such form as shall be proper or
approved by the Board of Directors; provided that the Board of Directors may
provide by resolution or resolutions that some or all of any or all classes
or
series of stock of the corporation shall be uncertificated shares.
Notwithstanding the foregoing or the adoption of such a resolution or
resolutions by the Board of Directors, each holder of uncertificated shares
shall be entitled, upon request, to a certificate representing such shares,
to
be in such form as the Board shall have approved. Any such resolution shall
not
apply to any share represented by a certificate theretofore issued until such
certificate is surrendered to the corporation. Each certificate shall state
(i)
that the corporation is formed under the laws of the State of Delaware, (ii)
the
name of the person or persons to whom issued, (iii) the number and class of
shares and the designation of the series, if any, which such certificate
represents and (iv) the par value, if any, of each share represented by such
certificate. Each certificate shall be signed by the Chairman of the Board
of
Directors, Chief Executive Officer, the President, an Executive Vice-President
or a Vice-President, and also by the Treasurer or an Assistant Treasurer or
the
Secretary or an Assistant Secretary and sealed with the corporation’s seal;
provided, however, that if such certificates are signed by a transfer agent
or
transfer clerk and by a registrar the signature of the Chairman of the Board
of
Directors, the Chief Executive Officer, the President, the Executive Vice
President, Vice-President, Treasurer, Assistant Treasurer, Secretary and
Assistant Secretary and the seal of the corporation upon such certificates
may
be facsimiles, engraved or printed. Except as otherwise provided by law, the
rights and obligations
of the holders of uncertificated shares and the rights and obligations of the
holders of shares represented by certificates of the same class and series
shall
be identical.
Section
2. TRANSFER OF SHARES. Shares of the stock of the corporation may be transferred
on the record of stockholders of the corporation by the holder thereof in person
or by his duly authorized attorney upon surrender of a certificate therefor
properly endorsed or upon receipt of proper transfer instructions from the
holder of uncertificated shares.
Section
3. AUTHORITY FOR ADDITIONAL RULES REGARDING TRANSFER. The Board of Directors
and
the Executive Committee shall have power and authority to make all such rules
and regulations as respectively they may deem expedient concerning the issue,
transfer and registration of certificated or uncertificated shares of the stock
of the corporation, as well as for the issuance of new certificates in lieu
of
those which may be lost or destroyed, and may require of any stockholder
requesting replacement of lost or destroyed certificates, bond in such amount
and in such form as they may deem expedient to indemnify the corporation, and/or
the transfer agents, and/or the registrars of its stock against any claims
arising in connection therewith.
Section
4. TRANSFER AGENTS AND REGISTRARS. The Board of Directors or Executive Committee
may appoint one or more transfer agents and one or more registrars of transfer
and may require all stock certificates to be countersigned by such transfer
agent and registered by such registrar of transfers. One person or organization
may serve as both transfer agent and registrar.
Section
5. RECORD DATE. For the purpose of determining the stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment thereof,
or to express consent to or dissent from any proposal without a meeting, or
for
the purpose of determining stockholders entitled to receive payment of any
dividend or the allotment of any rights, or for the purpose of any other action,
the Board of Directors shall fix in advance a date as the record date for any
such determination of stockholders. Such date shall not be more than sixty
nor
less than ten days before the date of such meeting, nor more than sixty days
prior to any other action.
Section
6. LIST OF STOCKHOLDERS AS OF RECORD DATE. The Secretary of the corporation
or
the transfer agent of its stock shall make and certify a list of the
stockholders as of the record date and number of shares of each class of stock
of record in the name of each stockholder and such list shall be present at
every meeting of stockholders. If the right to vote at any meeting is
challenged, the inspectors of elections, or person presiding thereat, shall
require such list of stockholders to be produced as evidence of the right of
the
persons challenged to vote at such meeting, and all persons who appear from
such
list to be stockholders entitled to vote thereat, may vote at such
meeting.
Section
7. DIVIDENDS. Dividends may be declared and paid out of the surplus of the
corporation as often and at such times and to such extent as the Board of
Directors may determine, consistent with the provisions of the certificate
of
incorporation of the corporation.
Article
VII
CORPORATE
SEAL
The
Board
of Directors shall provide a suitable seal containing the name of the
corporation and of the state under the laws of which the corporation was
incorporated; and the Secretary shall have the custody thereof.
Article
VIII
AMENDMENTS
Section
1. Subject to Article V, Section 5, these by-laws or any of them, may be
altered, amended or repealed, or new by-laws may be made by the stockholders
entitled to vote thereon at any annual or special meeting thereof or by the
Board of Directors.
EXHIBIT
10.1
EXECUTION
COPY
FIVE YEAR CREDIT
AGREEMENT
by and
among
CVS
CORPORATION,
THE LENDERS PARTY
HERETO,
LEHMAN COMMERCIAL
PAPER INC. and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Co-Syndication
Agents,
MORGAN STANLEY
SENIOR
FUNDING, INC.,
as Documentation Agent,
and
THE BANK OF NEW
YORK,
as Administrative Agent
Dated as of March
12,
2007
BNY CAPITAL MARKETS,
INC. and BANC OF AMERICA SECURITIES LLC
as Co-Lead Arrangers and Joint
Bookrunners
TABLE OF
CONTENTS
1 |
. |
DEFINITIONS
AND PRINCIPLES OF CONSTRUCTION |
|
1 |
|
|
1.1 |
|
Definitions |
|
1 |
|
|
1.2 |
|
Principles
of Construction |
|
17 |
|
|
|
|
|
2 |
. |
AMOUNT
AND TERMS OF LOANS |
|
18 |
|
|
2.1 |
|
Revolving
Credit Loans |
|
18 |
|
|
2.2 |
|
Swing
Line Loans |
|
18 |
|
|
2.3 |
|
Notice
of Borrowing Revolving Credit Loans and Swing Line Loans |
|
20 |
|
|
2.4 |
|
Competitive
Bid Loans and Procedure |
|
21 |
|
|
2.5 |
|
Use
of
Proceeds |
|
23 |
|
|
2.6 |
|
Termination
or Reduction of Commitments |
|
24 |
|
|
2.7 |
|
Prepayments
of Loans |
|
24 |
|
|
2.8 |
|
Letter
of Credit Sub-facility |
|
25 |
|
|
2.9 |
|
Letter
of Credit Participation |
|
26 |
|
|
2.10 |
|
Absolute
Obligation with respect to Letter of Credit
Payments |
|
27 |
|
|
2.11 |
|
Notes |
|
28 |
|
|
|
|
|
3 |
. |
PROCEEDS,
PAYMENTS, CONVERSIONS, INTEREST, YIELD
PROTECTION |
|
|
|
|
AND
FEES |
|
28 |
|
|
3.1 |
|
Disbursement
of the Proceeds of the Loans |
|
28 |
|
|
3.2 |
|
Payments |
|
29 |
|
|
3.3 |
|
Conversions;
Other Matters |
|
29 |
|
|
3.4 |
|
Interest
Rates and Payment Dates |
|
31 |
|
|
3.5 |
|
Indemnification
for Loss |
|
32 |
|
|
3.6 |
|
Reimbursement
for Costs, Etc. |
|
33 |
|
|
3.7 |
|
Illegality
of Funding |
|
34 |
|
|
3.8 |
|
Option
to Fund; Substituted Interest Rate |
|
34 |
|
|
3.9 |
|
Certificates
of Payment and Reimbursement |
|
35 |
|
|
3.10 |
|
Taxes;
Net Payments |
|
36 |
|
|
3.11 |
|
Fees |
|
37 |
|
|
3.12 |
|
Letter
of Credit Participation Fee |
|
38 |
|
|
3.13 |
|
Replacement
of Lender |
|
38 |
|
|
|
|
|
4 |
. |
REPRESENTATIONS
AND WARRANTIES |
|
39 |
|
|
4.1 |
|
Existence
and Power |
|
39 |
|
|
4.2 |
|
Authority |
|
39 |
|
|
4.3 |
|
Binding
Agreement |
|
39 |
|
|
4.4 |
|
Litigation |
|
39 |
|
|
4.5 |
|
No
Conflicting Agreements |
|
40 |
ii
|
|
4.6 |
|
Taxes |
|
40 |
|
|
4.7 |
|
Compliance
with Applicable Laws; Filings |
|
41 |
|
|
4.8 |
|
Governmental
Regulations |
|
41 |
|
|
4.9 |
|
Federal
Reserve Regulations; Use of Proceeds |
|
41 |
|
|
4.10 |
|
No
Misrepresentation |
|
41 |
|
|
4.11 |
|
Plans |
|
42 |
|
|
4.12 |
|
Environmental
Matters |
|
42 |
|
|
4.13 |
|
Financial
Statements |
|
43 |
|
|
|
|
|
5 |
. |
CONDITIONS
OF LENDING - FIRST LOANS AND LETTERS OF CREDIT
ON |
|
|
|
|
THE
FIRST BORROWING DATE |
|
43 |
|
|
5.1 |
|
Evidence
of Corporate Action |
|
43 |
|
|
5.2 |
|
Notes |
|
43 |
|
|
5.3 |
|
Opinion
of Counsel to the Borrower |
|
44 |
|
|
|
|
|
6 |
. |
CONDITIONS
OF LENDING - ALL LOANS AND LETTERS OF
CREDIT |
|
44 |
|
|
6.1 |
|
Compliance |
|
44 |
|
|
6.2 |
|
Requests |
|
44 |
|
|
6.3 |
|
Loan
Closings |
|
44 |
|
|
|
|
|
7 |
. |
AFFIRMATIVE
COVENANTS |
|
44 |
|
|
7.1 |
|
Legal
Existence |
|
45 |
|
|
7.2 |
|
Taxes |
|
45 |
|
|
7.3 |
|
Insurance |
|
45 |
|
|
7.4 |
|
Performance
of Obligations |
|
45 |
|
|
7.5 |
|
Condition
of Property |
|
45 |
|
|
7.6 |
|
Observance
of Legal Requirements |
|
46 |
|
|
7.7 |
|
Financial
Statements and Other Information |
|
46 |
|
|
7.8 |
|
Records |
|
47 |
|
|
7.9 |
|
Authorizations |
|
47 |
|
|
|
|
|
8 |
. |
NEGATIVE
COVENANTS |
|
48 |
|
|
8.1 |
|
Subsidiary
Indebtedness |
|
48 |
|
|
8.2 |
|
Liens |
|
48 |
|
|
8.3 |
|
Dispositions |
|
49 |
|
|
8.4 |
|
Merger
or Consolidation, Etc. |
|
49 |
|
|
8.5 |
|
Acquisitions |
|
49 |
|
|
8.6 |
|
Restricted
Payments |
|
49 |
|
|
8.7 |
|
Limitation
on Upstream Dividends by Subsidiaries |
|
49 |
|
|
8.8 |
|
Limitation
on Negative Pledges |
|
50 |
|
|
8.9 |
|
Ratio
of Consolidated Indebtedness to Total Capitalization |
|
51 |
|
|
8.10 |
|
Caremark
Merger |
|
51 |
iii
9 |
. |
DEFAULT |
|
51 |
|
|
9.1 |
|
Events
of Default |
|
51 |
|
|
9.2 |
|
Remedies |
|
53 |
|
|
|
|
|
10 |
. |
AGENT |
|
54 |
|
|
10.1 |
|
Appointment |
|
54 |
|
|
10.2 |
|
Delegation
of Duties |
|
54 |
|
|
10.3 |
|
Exculpatory
Provisions |
|
55 |
|
|
10.4 |
|
Reliance
by Administrative Agent |
|
55 |
|
|
10.5 |
|
Notice
of Default |
|
56 |
|
|
10.6 |
|
Non-Reliance |
|
56 |
|
|
10.7 |
|
Administrative
Agent in Its Individual Capacity |
|
56 |
|
|
10.8 |
|
Successor
Administrative Agent |
|
57 |
|
|
10.9 |
|
Co-Syndication
Agents and Documentation Agent |
|
57 |
|
|
|
|
|
11 |
. |
OTHER
PROVISIONS |
|
57 |
|
|
11.1 |
|
Amendments,
Waivers, Etc. |
|
57 |
|
|
11.2 |
|
Notices |
|
59 |
|
|
11.3 |
|
No
Waiver; Cumulative Remedies |
|
60 |
|
|
11.4 |
|
Survival
of Representations and Warranties |
|
60 |
|
|
11.5 |
|
Payment
of Expenses and Taxes; Indemnified Liabilities |
|
60 |
|
|
11.6 |
|
Lending
Offices |
|
61 |
|
|
11.7 |
|
Successors
and Assigns |
|
61 |
|
|
11.8 |
|
Counterparts |
|
64 |
|
|
11.9 |
|
Set-off
and Sharing of Payments |
|
65 |
|
|
11.10 |
|
Indemnity |
|
66 |
|
|
11.11 |
|
Governing
Law |
|
67 |
|
|
11.12 |
|
Severability |
|
67 |
|
|
11.13 |
|
Integration |
|
67 |
|
|
11.14 |
|
Treatment
of Certain Information |
|
67 |
|
|
11.15 |
|
Acknowledgments |
|
68 |
|
|
11.16 |
|
Consent
to Jurisdiction |
|
68 |
|
|
11.17 |
|
Service
of Process |
|
69 |
|
|
11.18 |
|
No
Limitation on Service or Suit |
|
69 |
|
|
11.19 |
|
WAIVER
OF TRIAL BY JURY |
|
69 |
|
|
11.20 |
|
Effective
Date |
|
69 |
|
|
11.21 |
|
Patriot
Act Notice |
|
69 |
iv
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 |
Exhibit |
|
F |
|
Form
of
Competitive Bid Request |
Exhibit |
|
G |
|
Form
of
Invitation to Bid |
Exhibit |
|
H |
|
Form
of
Competitive Bid |
Exhibit |
|
I |
|
Form
of
Competitive Bid Accept/Reject Letter |
Exhibit |
|
J |
|
Form
of
Letter of Credit Request |
v
FIVE
YEAR CREDIT
AGREEMENT, dated as
of March 12, 2007, by and among CVS CORPORATION,
a Delaware corporation (the “Borrower”),
the Lenders party hereto from time to time (each a “Lender”
and, collectively, the “Lenders”),
LEHMAN COMMERCIAL
PAPER INC. and
WACHOVIA
BANK,
NATIONAL ASSOCIATION, as co-syndication
agents (in such capacity, each a “Co-Syndication
Agent”),
MORGAN STANLEY
SENIOR
FUNDING, INC., as
documentation agent (in such capacity, the “Documentation
Agent”),
and
THE BANK OF
NEW YORK
(“BNY”), as
administrative agent for the Lenders (in such capacity, the “Administrative
Agent”).
1.
DEFINITIONS
AND PRINCIPLES OF
CONSTRUCTION
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 Revolving Credit 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.
“Aggregate Commitment
Amount”: at any time, the sum
of the Commitment
Amounts of the Lenders at such time under this Agreement.
“Aggregate Credit
Exposure”: at any time, the sum
at such time of (a) the
aggregate Committed Credit Exposure of the Lenders at such time under this
Agreement and (b) the aggregate outstanding principal balance of all Competitive
Bid Loans at such time under this Agreement.
“Agreement”:
this 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 equal to the
greater of (a) the BNY Rate in effect on such day, or (b) 0.50% plus the Federal
Funds Effective Rate (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%) in effect
on such day.
“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”, (iii) with respect to the Facility Fee, the
applicable percentage set forth below in the column entitled “Facility Fee”,
(iv) with respect to the Letter of Credit Participation Fee, the applicable
percentage set forth below in the column entitled “Participation Fee”, and (v)
with respect to the Utilization Fee, the applicable percentage set forth below
in the column entitled “Utilization Fee”, in each case opposite the applicable
Pricing Level:
Pricing
Level |
ABR Advances |
Eurodollar Advances |
Facility Fee |
Participation Fee |
Utilization Fee |
Pricing
Level I |
0% |
0.150% |
0.050% |
0.150% |
0.050% |
Pricing
Level II |
0% |
0.190% |
0.060% |
0.190% |
0.050% |
Pricing
Level III |
0% |
0.230% |
0.070% |
0.230% |
0.050% |
Pricing
Level IV |
0% |
0.270% |
0.080% |
0.270% |
0.100% |
Pricing
Level V |
0% |
0.300% |
0.100% |
0.300% |
0.100% |
Pricing
Level VI |
0% |
0.400% |
0.150% |
0.400% |
0.100% |
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 Moody’s or S&P of the senior
unsecured long term debt rating of the Borrower.
2
“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.
“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.
“Benefited Lender”:
as defined in Section 11.9(b) .
“BNY”:
as defined in the preamble.
“BNY Rate”:
a rate of interest per annum equal to the
rate of interest publicly announced in New York City by BNY from time to time
as
its prime commercial lending rate, such rate to be adjusted automatically
(without notice) on the effective date of any change in such publicly announced
rate.
“Borrower”:
as defined in the preamble.
“Borrowing Date”:
(i) in respect of Revolving Credit Loans,
any Domestic Business Day or Eurodollar Business Day, as the case may be, on
which the Lenders shall make Revolving Credit Loans pursuant to a Borrowing
Request or pursuant to a Mandatory Borrowing, (ii) in respect of Competitive
Bid
Loans, any Domestic Business Day on which a Lender shall make a Competitive
Bid
Loan pursuant to a Competitive Bid Request, (iii) in respect of Swing Line
Loans, any Domestic Business Day on which the Swing Line Lender shall make
a
Swing Line Loan pursuant to a Borrowing Request and (iv) in respect of Letters
of Credit, any Domestic Business Day on which the Issuer shall issue a Letter
of
Credit pursuant to a Letter of Credit Request.
“Borrowing Request”:
a request for Revolving Credit Loans or
Swing Line Loans in the form of Exhibit C.
“Caremark”:
Caremark Rx, Inc., a Delaware
corporation.
“Caremark Merger”:
the merger of Caremark with and into Twain
MergerSub Corp., with Twain MergerSub Corp. continuing as the surviving company
and a wholly owned subsidiary of the Borrower, pursuant to the Caremark Merger
Agreement.
“Caremark Merger
Agreement”: the Agreement and Plan
of Merger, dated as
of November 1, 2006, among the Borrower, Caremark and Twain MergerSub Corp.,
as
amended as of January 16, 2007 (and as further amended, supplemented or
otherwise modified from time to time in accordance with Section 8.10)
.
“Caremark Merger
Anticipatory Commercial
Paper”: commercial paper
issued by the Borrower under the Commercial Paper Increase prior to and in
anticipation of the closing of the Caremark Merger to finance in part the
consideration paid to the Caremark shareholders in connection with the Caremark
Merger, including any dividends paid to the Caremark shareholders,
3
provided
that (a) such
commercial paper shall mature no later than 60 days following the initial
issuance thereof and (b) if the Caremark Merger has not been consummated prior
to such maturity, the Borrower shall not have rolled over such commercial
paper.
“Caremark Merger
Effective
Date”: the date on which the
Caremark Merger shall have become effective pursuant to the Caremark Merger
Agreement.
“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.
“Commercial
Paper Increase”: the increase, to the
extent in excess of
$2.75 billion, in the Borrower’s commercial paper program for the purpose, among
other things, of providing for the short term financing of the Caremark
Merger.
“Commitment”:
in respect of any Lender, such Lender’s
undertaking to make Revolving Credit Loans, 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 Sections 2.6 and 11.7(c)
.
“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 commencing
on the Effective Date
and ending on the Commitment Termination Date, or on such earlier date as all
of
the Commitments shall have been terminated in accordance with the terms
hereof.
“Commitment
Termination Date”: the earliest of (i)
November 1, 2007, in the
event that the Caremark Merger Effective Date has not occurred on or before
November 1, 2007, (ii) March 12, 2012 and (iii) the date on which the Loans
shall become due and payable, whether by acceleration, notice of intention
to
prepay or otherwise.
4
“Committed Credit
Exposure”: with respect to any
Lender at any time, the
sum at such time of (a) the outstanding principal balance of such Lender’s
Revolving Credit Loans, (b) the Swing Line Exposure of such Lender and (c)
the
Letter of Credit Exposure of such Lender.
“Compensatory
Interest
Payment”: as defined in
Section 3.4(c) .
“Competitive
Bid”: an offer by a Lender,
in the form of Exhibit
H, to make one or more Competitive Bid Loans.
“Competitive
Bid Accept/Reject
Letter”: a notification made
by the Borrower pursuant to Section 2.4(d) in the form of Exhibit
I.
“Competitive
Bid Loan”: as defined in Section
2.4(a) .
“Competitive
Bid Rate”: as to any Competitive
Bid made by a Lender
pursuant to Section 2.4(b), the fixed rate of interest (which shall be expressed
in the form of a decimal to no more than four decimal places) offered by such
Lender and accepted by the Borrower.
“Competitive
Bid Request”: a request by the Borrower,
in the form of
Exhibit F, for Competitive Bids.
“Competitive
Interest Period”: as to any Competitive
Bid Loan, the period
commencing on the date of such Competitive Bid Loan and ending on the date
requested in the Competitive Bid Request with respect thereto, which shall
not
be earlier than 3 days after the date of such Competitive Bid Loan or later
than
180 days after the date of such Competitive Bid Loan, provided that
if any Competitive Interest Period would
end on a day other than a Domestic Business Day, such Interest Period shall
be
extended to the next succeeding Domestic Business Day, unless such next
succeeding Domestic Business Day would be a date on or after the Commitment
Termination Date, in which case such Competitive Interest Period shall end
on
the next preceding Domestic Business Day. Interest shall accrue from and
including the first day of a Competitive Interest Period to but excluding the
last day of such Competitive Interest Period.
“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
5
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 Revolving Credit Loan into another Type of
Revolving Credit Loan.
“Costs”:
as defined in Section 3.6.
“Co-Syndication
Agents”: as defined in the preamble.
“Credit Exposure”:
with respect to any Lender at any time, the
sum at such time of (a) the Committed Credit Exposure of such Lender at such
time under this Agreement and (b) the outstanding principal balance of all
Competitive Bid Loans of such Lender at such time under this
Agreement.
“Credit Parties”
means the Administrative Agent, the
Co-Syndication Agents, the Documentation Agent, the Swing Line Lender, the
Issuer and the Lenders.
“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:
(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.
“Documentation
Agent”: as defined in the preamble.
“Dollar” or “$”:
lawful currency of the United States of
America.
6
“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
Moody’s.
“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.
“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.
7
“Eurodollar
Advance”: a portion of the Revolving
Credit 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 Interest Period, all pursuant to and in
accordance with Section 2.1 or 3.3.
“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 2.3 or Section
3.3 and ending one, two, three or six months 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 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 Interest Period into another
calendar month, in which event such Interest Period shall end on the Eurodollar
Business Day immediately preceding such day; and
(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 Interest Period),
such Interest Period shall end on the last Eurodollar Business Day of such
latter calendar month.
“Eurodollar
Rate”: with respect to each
Eurodollar Advance and
as determined by the Administrative Agent, the rate of interest per annum
(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%) equal to a fraction, the
numerator of which is the rate per annum quoted by BNY at approximately 11:00
A.M. (or as soon thereafter as practicable) two Eurodollar Business Days prior
to the first day of such Interest Period to leading banks in the interbank
eurodollar market as the rate at which BNY is offering Dollar deposits in an
amount approximately equal to its Commitment Percentage of such Eurodollar
Advance and having a period to maturity approximately equal to the Interest
Period applicable to such Eurodollar Advance, and the denominator of which
is an
amount equal to 1.00 minus
the
aggregate of the then
stated maximum rates during such Interest Period of all reserve requirements
(including marginal, emergency, supplemental and special reserves), expressed
as
a decimal, established by the Board of Governors of the Federal Reserve System
and any other banking authority to which BNY and other major United States
money
center banks are subject, in respect of eurocurrency liabilities.
“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.
“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
8
Bank N.V., as
documentation agent, and BNY, 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 BNY, 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., Lehman Brothers Inc. and Wachovia
Bank, National Association, as co-syndication agents, KeyBank National
Association, as documentation agent, and BNY, as administrative agent, as the
same may be amended, supplemented, replaced or otherwise modified from time
to
time.
“Expiration
Date”: the first date, occurring
on or after the
date the Commitments shall have terminated or been terminated in accordance
herewith, upon which there shall be no Loans or Letters of Credit
outstanding.
“Facility Fee”:
as defined in Section 3.11(a) .
“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.
9
“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
agreement, (d) indebtedness arising under acceptance facilities and the amount
available to be drawn under all letters of credit (excluding for purposes of
Sections 8.1 and 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 (a) - (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 items (a) - (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) demand 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.
10
“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 Swing Line Loan, the day on which the
outstanding principal balance of such Swing Line Loan shall become due and
payable in accordance with Section 2.2(a), (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, (iv)
as to
any Competitive Bid Loan in respect of which the Borrower has selected a
Competitive Interest Period of 90 days or less the last day of such Competitive
Interest Period and (v) as to any Eurodollar Advance or Competitive Bid Loan
in
respect of which the Borrower has selected an Interest Period greater than
three
months or 90 days, as the case may be, the last day of the third month or the
90th day, as the case may be, of such Interest Period and the last day of such
Interest Period.
“Interest Period”:
a Eurodollar Interest Period, a Swing Line
Interest Period or a Competitive Interest Period, as the case may
be.
“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.
“Invitation
to Bid”: an invitation by the
Administrative Agent to
the Lenders to make Competitive Bids in the form of Exhibit G.
“issue” or “issuance”:
when used with respect to a Letter of
Credit, shall be deemed to include any increase in the amount of such Letter
of
Credit.
“Issuer”:
BNY.
“Lender”:
as defined in the preamble; such term to
also include the Swing Line Lender and the Issuer where the context hereof
requires or permits such inclusion.
“Letter of Credit”:
as defined in Section 2.8.
“Letter of Credit
Commitment”: the commitment of the
Issuer to issue
Letters of Credit in accordance with the terms hereof in an aggregate
outstanding face amount not exceeding $150,000,000 (or, if less, the Aggregate
Commitment Amount) at any time, as the same may be reduced pursuant to Section
2.6.
“Letter of Credit
Exposure”: at any time, (a) in
respect of all Lenders,
the sum, without duplication, of (i) the maximum aggregate amount which may
be
drawn under all unexpired Letters of Credit at such time (whether the conditions
for drawing thereunder have or may be satisfied), (ii) the aggregate amount,
at
such time, of all unpaid drafts (which have not been dishonored) drawn under
all
Letters of Credit, and (iii) the aggregate unpaid principal amount of the
Reimbursement Obligations at such time, and (b) in respect of any Lender, an
amount equal to such Lender’s Commitment Percentage at such time multiplied by
the amount determined under clause (a) of this definition.
11
“Letter of Credit
Participation”: with respect
to each Lender, its obligations to the Issuer under Section 2.9.
“Letter of Credit
Participation
Fee”: as defined in Section
3.12.
“Letter of Credit
Request”: a request in the form
of Exhibit
J.
“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”:
a Revolving Credit Loan, a Competitive Bid
Loan or a Swing Line Loan, as the case may be.
“Loan Documents”:
this Agreement and, upon the execution and
delivery thereof, the Notes, if any, and the Reimbursement
Agreements.
“Loans”:
the Revolving Credit Loans, the Competitive
Bid Loans and the Swing Line Loans.
“Mandatory Borrowing”:
as defined in Section 2.2(b) .
“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, the Issuer or any Lender to enforce the Loan Documents.
“Moody’s”:
Moody’s Investors Service, Inc.
“Multiemployer
Plan”: a Pension Plan which
is a multiemployer plan
as defined in Section 4001(a)(3) of ERISA.
“Negotiated
Rate”: with respect to each
Swing Line Loan, the
rate per annum agreed to in writing by the Borrower and the Swing Line Lender
as
the interest rate which such Swing Line Loan shall bear.
“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.
12
“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 11.22.
“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 or Pricing Level VI, 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) Moody’s 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) Moody’s 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) Moody’s
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) Moody’s
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) Moody’s
is Baa2 or higher and (ii) none of Pricing Level I, II, III or IV
applies.
“Pricing Level
VI”: any time when none
of Pricing Level I, II,
III, IV or V applies.
13
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 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.
“Principal Office”:
from time to time, the principal office of
BNY, located on the date hereof in New York, New York.
“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.
“Reimbursement
Agreement”: as defined in Section
2.8(b) .
“Reimbursement
Obligations”: all obligations and
liabilities of the
Borrower due and to become due (a) under the Reimbursement Agreements and (b)
hereunder in respect of Letters of Credit.
“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.
“Required Lenders”:
(a) at any time prior to the Commitment
Termination Date or such earlier date as all of the Commitments shall have
terminated or been terminated in accordance herewith, Lenders having Commitment
Amounts equal to or more than 51% of the Aggregate
14
Commitment Amount,
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.
“Revolving Credit
Loans”: as defined in Section
2.1(a) .
“S&P”:
Standard & Poor’s, a division of The
McGraw-Hill Companies, Inc.
“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.
“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, 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.
“Swing Line
Commitment”: the commitment of the
Swing Line Lender to
make Swing Line Loans in accordance with the terms hereof in an aggregate
outstanding principal amount not
15
exceeding $100,000,000
(or, if less, the Aggregate Commitment Amount) at any time, as the same may
be
reduced pursuant to Section 2.6.
“Swing Line
Commitment Period”: the period from the
Effective Date to, but
excluding, the Swing Line Termination Date.
“Swing Line
Exposure”: at any time, in respect
of any Lender, an
amount equal to the aggregate principal balance of Swing Line Loans at such
time
multiplied by such Lender’s Commitment Percentage at such time.
“Swing Line
Interest Period”: as to any Swing Line
Loan, the period
commencing on the date of such Swing Line loan and ending on the date set forth
by the Borrower in the Borrowing Request with respect to such Swing Line Loan,
provided that
the last day of any Swing Line Interest
Period shall not be earlier than one day after the date of such Swing Line
Loan
or later than 7 days after the date of such Swing Line Loan and in no event
later than the Swing Line Termination Date, and provided further that
if any Swing Line Interest Period would
end on a day other than a Domestic Business Day, such Interest Period shall
be
extended to the next succeeding Domestic Business Day.
“Swing Line
Lender”: BNY.
“Swing Line
Loan” and “Swing
Line Loans”: as defined in Section
2.2(a) .
“Swing Line
Maturity Date”: as defined in Section
2.2(a) .
“Swing Line
Participation
Amount”: as defined in
Section 2.2(c) .
“Swing Line
Termination Date”: the date which is 7
Domestic Business Days
prior to the Commitment Termination Date.
“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.
16
“2007 Bridge
Credit Agreement”: the 364 Day Credit
Agreement, dated as of
March, 2007, by and among the Borrower, the lenders party thereto, Morgan
Stanley Senior Funding, Inc., as syndication agent, and Lehman Commercial Paper
Inc., as administrative agent, as the same may be amended, supplemented,
replaced or otherwise modified from time to time.
“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, Lehman 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.
“Type”:
with respect to any Revolving Credit Loan,
the characteristic of such Loan as an ABR Advance or a Eurodollar Advance,
each
of which constitutes a Type of Revolving Credit Loan.
“Unqualified
Amount”: as defined in Section
3.4(c).
“Upstream Dividends”:
as defined in Section 8.7.
“Utilization
Fee”: as defined in Section
3.11(b).
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.
(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.
17
(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.
2. AMOUNT
AND TERMS OF
LOANS
2.1 Revolving Credit
Loans
(a) Subject to
the terms and conditions
hereof, each Lender severally (and not jointly) agrees to make loans under
this
Agreement (each a “Revolving
Credit Loan” and,
collectively with each other Revolving Credit Loan of such Lender and/or with
each Revolving Credit Loan of each other Lender, the “Revolving Credit Loans”)
to the Borrower from time to time during the
Commitment Period, during which period the Borrower may borrow, prepay and
reborrow in accordance with the provisions hereof. Immediately after making
each
Revolving Credit Loan and after giving effect to all Swing Line Loans and
Competitive Bid Loans repaid and all Reimbursement Obligations paid on the
same
date, the Aggregate Credit Exposure will not exceed the Aggregate Commitment
Amount. With respect to each Lender, at the time of the making of any Revolving
Credit Loan, the sum of (I) the principal amount of such Lender’s Revolving
Credit Loan constituting a part of the Revolving Credit Loans to be made, (II)
the aggregate principal balance of all other Revolving Credit Loans (exclusive
of Revolving Credit Loans which are repaid with the proceeds of, and
simultaneously with the incidence of, the Revolving Credit Loans to be made)
then outstanding from such Lender and (III) the product of (A) such Lender’s
Commitment Percentage and (B) the sum of (1) the aggregate principal balance
of
all Swing Line Loans (exclusive of Swing Line Loans which are repaid with the
proceeds of, and simultaneously with the incurrence of, the Revolving Credit
Loans to be made) then outstanding and (2) the Letter of Credit Exposure of
all
Lenders, will not exceed the Commitment of such Lender at such time. At the
option of the Borrower, indicated in a Borrowing Request, Revolving Credit
Loans
may be made as ABR Advances or Eurodollar Advances.
(b) The aggregate
outstanding principal
balance of all Revolving Credit Loans shall be due and payable on the Commitment
Termination Date or on such earlier date upon which all of the Commitments
shall
have been terminated in accordance with Section 2.6.
2.2 Swing
Line
Loans
(a) Subject to
the terms and conditions
hereof, the Swing Line Lender agrees to make loans under this Agreement (each
a
“Swing Line
Loan” and, collectively, the
“Swing Line
Loans”) to the Borrower from
time to time during the Swing Line Commitment Period.
18
Swing Line Loans
(i) may
be repaid and reborrowed in accordance with the provisions hereof, (ii) shall
not, immediately after giving effect thereto, result in the Aggregate Credit
Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not,
immediately after giving effect thereto, result in the aggregate outstanding
principal balance of all Swing Line Loans exceeding the Swing Line Commitment.
The Swing Line Lender shall not be obligated to make any Swing Line Loan at
a
time when any Lender shall be in default of its obligations under this Agreement
unless the Swing Line Lender has entered into arrangements satisfactory to
it
and the Borrower to eliminate the Swing Line Lender’s risk with respect to such
defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender
will not make a Swing Line Loan if the Administrative Agent, or any Lender
by
notice to the Swing Line Lender and the Borrower no later than one Domestic
Business Day prior to the Borrowing Date with respect to such Swing Line Loan,
shall have determined that the conditions set forth in Sections 5 and/or 6,
as
applicable, have not been satisfied and such conditions remain unsatisfied
as of
the requested time of the making of such Loan. Each Swing Line Loan shall be
due
and payable on the day (the “Swing Line Maturity Date”)
being the earliest of the last day of the Swing Line Interest Period
applicable thereto, the date on which the Swing Line Commitment shall have
been
terminated in accordance with Section 2.6, and the date on which the Loans
shall
become due and payable pursuant to the provisions hereof, whether by
acceleration or otherwise. Each Swing Line Loan shall bear interest at the
Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the
proceeds of Swing Line Loans at its office designated in Section 11.2 by
crediting such proceeds to an account of the Borrower maintained with the Swing
Line Lender.
(b) On any Domestic
Business Day, the Swing
Line Lender may, in its sole discretion, give notice to the Lenders and the
Borrower that such outstanding Swing Line Loan shall be funded with a borrowing
of Revolving Credit Loans (provided
that such
notice shall be deemed to have been automatically given upon the occurrence
of a
Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which
case
a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing,
a “Mandatory
Borrowing”), shall be made by
all Lenders pro
rata based on each such
Lender’s Commitment Percentage on the Domestic Business Day immediately
succeeding the giving of such notice. The proceeds of each Mandatory Borrowing
shall be remitted directly to the Swing Line Lender to repay such outstanding
Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit
Loan
pursuant to each Mandatory Borrowing in the amount and in the manner specified
in the preceding sentence and on the date specified in writing by the Swing
Line
Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing
complies with the minimum amount for Loans otherwise required hereunder, (ii)
whether any condition specified in Section 6 is then unsatisfied, (iii) whether
a Default or an Event of Default then exists, (iv) the Borrowing Date of such
Mandatory Borrowing, (v) the aggregate principal amount of all Loans then
outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the
amount of the Commitments at such time.
(c) Upon each receipt
by a Lender of notice
from the Administrative Agent, such Lender shall purchase unconditionally,
irrevocably, and severally (and not jointly) from the Swing Line Lender a
participation in the outstanding Swing Line Loans (including accrued interest
thereon) in an amount equal to the product of its Commitment Percentage and
the
outstanding balance of the Swing Line Loans (each, a “Swing Line Participation
Amount”).
19
Each Lender shall
also
be liable for an amount equal to the product of its Commitment Percentage and
any amounts paid by the Borrower pursuant to this Section that are subsequently
rescinded or avoided, or must otherwise be restored or returned. Such
liabilities shall be unconditional and without regard to the occurrence of
any
Default or Event of Default or the compliance by the Borrower with any of its
obligations under the Loan Documents.
(d) In furtherance
of Section 2.2(c), upon
each receipt by a Lender of notice from the Administrative Agent, such Lender
shall promptly make available to the Administrative Agent for the account of
the
Swing Line Lender its Swing Line Participation Amount at the office of the
Administrative Agent specified in Section 11.2, in lawful money of the United
States and in immediately available funds. The Administrative Agent shall
deliver the payments made by each Lender pursuant to the immediately preceding
sentence to the Swing Line Lender promptly upon receipt thereof in like funds
as
received. Each Lender hereby indemnifies and agrees to hold harmless the
Administrative Agent and the Swing Line Lender from and against any and all
losses, liabilities (including liabilities for penalties), actions, suits,
judgments, demands, costs and expenses resulting from any failure on the part
of
such Lender to pay, or from any delay in paying, the Administrative Agent any
amount such Lender is required by notice from the Administrative Agent to pay
in
accordance with this Section (except in respect of losses, liabilities or other
obligations suffered by the Administrative Agent or the Swing Line Lender,
as
the case may be, resulting from the gross negligence or willful misconduct
of
the Administrative Agent or the Swing Line Lender, as the case may be), and
such
Lender shall pay interest to the Administrative Agent for the account of the
Swing Line Lender from the date such amount was due until paid in full, on
the
unpaid portion thereof, at a rate of interest per annum, whether before or
after
judgment, equal to (i) from the date such amount was due until the third day
therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal
Funds Effective Rate plus
2%, payable upon
demand by the Swing Line Lender. The Administrative Agent shall distribute
such
interest payments to the Swing Line Lender upon receipt thereof in like funds
as
received.
(e) Whenever the
Administrative Agent is
reimbursed by the Borrower for the account of the Swing Line Lender for any
payment in connection with Swing Line Loans and such payment relates to an
amount previously paid by a Lender pursuant to this Section, the Administrative
Agent will promptly remit such payment to such Lender.
2.3 Notice
of Borrowing
Revolving Credit Loans and Swing Line Loans
The Borrower agrees
to notify the
Administrative Agent (and with respect to a Swing Line Loan, the Swing Line
Lender), which notification shall be irrevocable, no later than (a) 12:00 Noon
on the proposed Borrowing Date in the case of Swing Line Loans, (b) 10:00 A.M.
on the proposed Borrowing Date in the case of Revolving Credit Loans to consist
of ABR Advances and (c) 10:00 A.M. at least two Eurodollar Business Days prior
to the proposed Borrowing Date in the case of Revolving Credit Loans to consist
of Eurodollar Advances. Each such notice shall specify (i) the aggregate amount
requested to be borrowed under the Commitments or the Swing Line Commitment,
(ii) the proposed Borrowing Date, (iii) whether a borrowing of Revolving Credit
Loans is to be of ABR Advances or Eurodollar Advances, and the amount of each
thereof (iv) the Eurodollar Interest Period for such Eurodollar Advances and
(v)
20
the Swing Line
Interest
Period for, and the amount of, each Swing Line Loan. Each such notice shall
be
promptly confirmed by delivery to the Administrative Agent (and, with respect
to
a Swing Line Loan, the Swing Line Lender) of a Borrowing Request. Each
Eurodollar Advance to be made on a Borrowing Date, when aggregated with all
amounts to be Converted to Eurodollar Advances on such date and having the
same
Interest Period as such Eurodollar Advance, shall equal no less than
$10,000,000, or an integral multiple of $1,000,000 in excess thereof. Each
ABR
Advance made on each Borrowing Date shall equal no less than $5,000,000 or
an
integral multiple of $500,000 in excess thereof. Each Swing Line Loan made
on
each 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 telephone or otherwise, such notification to be confirmed by
fax
or other writing) of each such Borrowing Request. Subject to its receipt of
each
such notice from the Administrative Agent and subject to the terms and
conditions hereof, (A) 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 the Revolving Credit Loans requested
by the Borrower on such Borrowing Date and/or (B) the Swing Line Lender shall
make immediately available funds available to the Borrower on such Borrowing
Date in an amount equal to the Swing Line Loan requested by the
Borrower.
2.4 Competitive
Bid
Loans and Procedure
(a) Subject to
the terms and conditions
hereof, the Borrower may request competitive bid loans under this Agreement
(each a “Competitive Bid
Loan”) during the Commitment
Period. In order to request Competitive Bids, the Borrower shall deliver by
hand
or fax to the Administrative Agent a duly completed Competitive Bid Request
not
later than 11:00 A.M., one Domestic Business Day before the proposed Borrowing
Date therefor. A Competitive Bid Request that does not conform substantially
to
the format of Exhibit F may be rejected by the Administrative Agent in the
Administrative Agent’s reasonable discretion, and the Administrative Agent shall
promptly notify the Borrower of such rejection by fax and telephone. Each
Competitive Bid Request shall specify (x) the proposed Borrowing Date for the
Competitive Bid Loans then being requested (which shall be a Domestic Business
Day) and the aggregate principal amount thereof and (y) the Competitive Interest
Period or Interest Periods (which shall not exceed ten different Interest
Periods in a single Competitive Bid Request), with respect thereto (which may
not end after the Domestic Business Day immediately preceding the Commitment
Termination Date). Promptly after its receipt of each Competitive Bid Request
that is not rejected as aforesaid, the Administrative Agent shall invite by
fax
(in the form of Exhibit G) the Lenders to bid, on the terms and conditions
of
this Agreement, to make Competitive Bid Loans pursuant to such Competitive
Bid
Request.
(b) Each Lender,
in its sole and absolute
discretion, may make one or more Competitive Bids to the Borrower responsive
to
a Competitive Bid Request. Each Competitive Bid by a Lender must be received
by
the Administrative Agent not later than 10:00 A.M. on the proposed Borrowing
Date for the relevant Competitive Bid Loan. Multiple bids will be accepted
by
the Administrative Agent. Bids to make Competitive Bid Loans that do not conform
substantially to the format of Exhibit H may be rejected by the Administrative
Agent after conferring with, and upon the instruction of, the Borrower, and
the
Administrative Agent shall
21
notify the Lender
making
such nonconforming bid of such rejection as soon as practicable. Each
Competitive Bid shall be irrevocable and shall specify (x) the principal amount
(which (1) shall be in a minimum principal amount of $5,000,000 or an integral
multiple of $1,000,000 in excess thereof, and (2) may equal the entire principal
amount requested by the Borrower) of the Competitive Bid Loan or Competitive
Bid
Loans that the Lender is willing to make to the Borrower, (y) the Competitive
Bid Rate or Rates at which the Lender is prepared to make such Competitive
Bid
Loan or Competitive Bid Loans, and (z) the Competitive Interest Period with
respect to each such Competitive Bid Loan and the last day thereof. If any
Lender shall elect not to make a Competitive Bid, such Lender shall so notify
the Administrative Agent by fax not later than 10:00 A.M. on the proposed
Borrowing Date therefor, provided that
the
failure by any Lender to give any such notice shall not obligate such Lender
to
make any Competitive Bid Loan in connection with the relevant Competitive Bid
Request.
(c) With respect
to each Competitive Bid
Request, the Administrative Agent shall (i) notify the Borrower by fax by 11:00
A.M. on the proposed Borrowing Date with respect thereto of each Competitive
Bid
made, the Competitive Bid Rate applicable thereto and the identity of the Lender
that made such Competitive Bid, and (ii) send a list of all Competitive Bids
to
the Borrower for its records as soon as practicable after completion of the
bidding process. Each notice and list sent by the Administrative Agent pursuant
to this Section 2.4(c) shall list the Competitive Bids in ascending yield
order.
(d) The Borrower
may in its sole and absolute
discretion, subject only to the provisions of this Section 2.4(d), accept or
reject any Competitive Bid made in accordance with the procedures set forth
in
this Section 2.4, and the Borrower shall notify the Administrative Agent by
telephone, confirmed by fax in the form of a Competitive Bid Accept/Reject
Letter, whether and to what extent it has decided to accept or reject any or
all
of such Competitive Bids not later than 12:00 Noon on the proposed Borrowing
Date therefor, provided
that the
failure by the Borrower to give such notice shall be deemed to be a rejection
of
all such Competitive Bids. In connection with each acceptance of one or more
Competitive Bids by the Borrower:
(1) the Borrower
shall not accept a
Competitive Bid made at a particular Competitive Bid Rate if the Borrower has
decided to reject a Competitive Bid made at a lower Competitive Bid Rate unless
the acceptance of such lower Competitive Bid would subject the Borrower to
any
requirement to withhold any taxes or deduct any amount from any amounts payable
under the Loan Documents, in which case the Borrower may reject such lower
Competitive Bid,
(2) the aggregate
amount of the Competitive
Bids accepted by the Borrower shall not exceed the principal amount specified
in
the Competitive Bid Request therefor,
(3) if the Borrower
shall desire to accept a
Competitive Bid made at a particular Competitive Bid Rate, it must accept all
other Competitive Bids at such Competitive Bid Rate, except for any such
Competitive Bid the acceptance of which would subject the Borrower to any
requirement to withhold any taxes or deduct any amount from any amounts payable
under the Loan Documents, provided
that if the
acceptance of all such other Competitive
22
Bids would cause
the
aggregate amount of all such accepted Competitive Bids to exceed the amount
requested, then such acceptance shall be made pro rata in accordance with the
amount of each such Competitive Bid at such Competitive Bid Rate,
(4) except pursuant
to clause (3) above, no
Competitive Bid shall be accepted unless the Competitive Bid Loan with respect
thereto shall be in a minimum principal amount of $5,000,000 or an integral
multiple of $1,000,000 in excess thereof, and
(5) no Competitive
Bid shall be accepted and
no Competitive Bid Loan shall be made, if immediately after giving effect
thereto, the Aggregate Credit Exposure would exceed the Aggregate Commitment
Amount.
(e) The Administrative
Agent shall promptly
fax to each bidding Lender (with a copy to the Borrower) a Competitive Bid
Accept/Reject Letter advising such Lender whether its Competitive Bid has been
accepted (and if accepted, in what amount and at what Competitive Bid Rate),
and
each successful bidder so notified will thereupon become bound, subject to
the
other applicable conditions hereof, to make the Competitive Bid Loan in respect
of which each of its Competitive Bids has been accepted by making immediately
available funds available to the Administrative Agent at its address set forth
in Section 11.2 not later than 1:00 P.M. on the Borrowing Date for such
Competitive Bid Loan in the amount thereof.
(f) Anything herein
to the contrary
notwithstanding, if the Administrative Agent shall elect to submit a Competitive
Bid in its capacity as a Lender, it shall submit such bid directly to the
Borrower not later than 9:30 A.M. on the relevant proposed Borrowing
Date.
(g) All notices
required by this Section shall
be given in accordance with Section 11.2.
(h) Each Competitive
Bid Loan shall be due and
payable on the last day of the Interest Period applicable thereto or on such
earlier date upon which the Loans shall become due and payable pursuant to
the
provisions hereof, whether by acceleration or otherwise.
2.5 Use
of
Proceeds
The Borrower agrees
that the proceeds of the
Loans and Letters of Credit shall be used solely for its general corporate
purposes not inconsistent with the provisions hereof, including as a backup
for
commercial paper issued by the Borrower and to finance in part the consideration
paid to the Caremark shareholders in connection with the Caremark Merger,
including any dividends paid to the Caremark shareholders, provided
that prior to the consummation of the
Caremark Merger, the Borrower shall not be permitted to borrow hereunder except
in anticipation of the proposed direct or indirect financing in part of the
consideration paid or to be paid to the Caremark shareholders in connection
with
the Caremark Merger, including any dividends paid or to be paid to the Caremark
shareholders (which may include a borrowing for the purpose of refunding
Caremark Merger Anticipatory Commercial Paper). Notwithstanding anything to
the
contrary contained in any Loan Document, the Borrower further agrees that no
part of the proceeds of any Loan or Letter of Credit will be used, directly
or
23
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 and (ii) to make a loan to any director or
executive officer of the Borrower or any Subsidiary.
2.6 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, the Swing Line Commitment
and the Letter of Credit Commitment, at any time, or (ii) permanently reduce
the
Aggregate Commitment Amount, the Swing Line Commitment or the Letter of Credit
Commitment, in part at any time and from time to time, provided
that (1) each such partial reduction shall be
in an amount equal to at least (A) in the case of the Aggregate Commitment
Amount $10,000,000 or an integral multiple of $1,000,000 in excess thereof,
(B)
in the case of the Swing Line Commitment, $1,000,000, or an integral multiple
of
$1,000,000 in excess thereof, and (C) in the case of the Letter of Credit
Commitment, $1,000,000, or an integral multiple of $1,000,000 in excess thereof,
and (2) immediately after giving effect to each such reduction, (A) the
Aggregate Commitment Amount shall equal or exceed the Aggregate Credit Exposure,
(B) the Swing Line Commitment shall equal or exceed the aggregate outstanding
principal balance of all Swing Line Loans and (C) the Letter of Credit
Commitment shall equal or exceed the Letter of Credit Exposure of all Lenders,
and provided
further that a notice of
termination of the Commitments, the Swing Line Commitment and the Letter of
Credit Commitment delivered by the Borrower may state that such notice is
conditioned upon the effectiveness of other credit facilities (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
Termination or Reductions. If for any reason the
Caremark Merger
Effective Date has not occurred on or before November 1, 2007, the Commitments,
the Swing Line Commitment and the Letter of Credit Commitment shall be
automatically terminated and the Aggregate Commitment Amount shall be reduced
to
zero on November 1, 2007.
(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.
2.7 Prepayments
of
Loans
(a) Voluntary
Prepayments.
The Borrower may prepay Revolving Credit Loans, Competitive Bid Loans and Swing
Line 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, two Domestic Business
Days, in the
24
case of Competitive
Bid
Loans, or one Domestic Business Day, in the case of a prepayment of Swing Line
Loans and 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, if a notice of prepayment is given in
connection with a conditional notice of termination of the Commitments, the
Swing Line Commitment and the Letter of Credit Commitment as contemplated by
Section 2.6, then such notice of prepayment may be revoked if such notice of
termination is revoked in accordance with Section 2.6, 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 and Swing Line Loans) or an integral multiple of $1,000,000
($100,000 in the case of ABR Advances and Swing Line Loans) in excess
thereof.
(b) Caremark
Merger Prepayment. In the event that the
Borrower borrows Loans hereunder in anticipation
of the proposed direct or indirect financing in part of the consideration paid
or to be paid to the Caremark shareholders in connection with the Caremark
Merger, including any dividends paid or to be paid to the Caremark shareholders
(which may include a borrowing for the purpose of refunding Caremark Merger
Anticipatory Commercial Paper), and the closing of the Caremark Merger does
not
occur within four Business Days after such borrowing, then the Borrower shall
prepay such Loans in full no later than the fifth Business Day following such
borrowing.
(c) 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.
2.8 Letter
of Credit
Sub-facility
(a) Subject to
the terms and conditions hereof
and the payment by the Borrower to the Issuer of such fees as the Borrower
and
the Issuer shall have agreed in writing, the Issuer agrees, in reliance on
the
agreement of the other Lenders set forth in Section 2.9, to issue standby
letters of credit (each a “Letter of Credit”
and, collectively, the “Letters of Credit”)
during the Commitment Period for the account of the Borrower, provided
that immediately after the issuance of each
Letter of Credit (i) the Letter of Credit Exposure of all Lenders shall not
exceed the Letter of Credit Commitment, and (ii) the Aggregate Credit Exposure
shall not exceed the Aggregate Commitment Amount. Each Letter of Credit shall
have an expiration date which shall be not later than the earlier to occur
of
one year from the date of issuance thereof or 5 days prior to the Commitment
Termination Date. No Letter of Credit shall be issued if the Administrative
Agent, or any Lender by notice to the Administrative Agent and the Issuer no
later than 3:00 P.M. one Domestic Business Day prior to the requested date
of
issuance of such Letter of Credit, shall have determined that the conditions
set
forth in Sections 5 and/or 6, as applicable have not been
satisfied.
(b) Each Letter
of Credit shall be issued for
the account of the Borrower in support of an obligation of the Borrower in
favor
of a beneficiary who has requested the Issuance
25
of such Letter
of Credit
as a condition to a transaction entered into in connection with the Borrower’s
ordinary course of business. The Borrower shall give the Administrative Agent
a
Letter of Credit Request for the issuance of each Letter of Credit by 12:00
Noon
at least two Domestic Business Days prior to the requested date of issuance.
Such Letter of Credit Request shall be accompanied by the Issuer’s standard
Application and Agreement for Standby Letter of Credit (each a “Reimbursement Agreement”)
executed by the Borrower, and shall specify
(i) the beneficiary of such Letter of Credit and the obligations of the Borrower
in respect of which such Letter of Credit is to be issued, (ii) the Borrower’s
proposal as to the conditions under which a drawing may be made under such
Letter of Credit and the documentation to be required in respect thereof, (iii)
the maximum amount to be available under such Letter of Credit, and (iv) the
requested date of issuance. Upon receipt of such Letter of Credit Request from
the Borrower, the Administrative Agent shall promptly notify the Issuer and
each
other Lender thereof. The Issuer shall, on the proposed date of issuance and
subject to the other terms and conditions of this Agreement, issue the requested
Letter of Credit. Each Letter of Credit shall be in form and substance
reasonably satisfactory to the Issuer, with such provisions with respect to
the
conditions under which a drawing may be made thereunder and the documentation
required in respect of such drawing as the Issuer shall reasonably require.
Each
Letter of Credit shall be used solely for the purposes described
therein.
(c) Each payment
by the Issuer of a draft
drawn under a Letter of Credit shall give rise to the obligation of the Borrower
to immediately reimburse the Issuer for the amount thereof. The Issuer shall
promptly notify the Borrower of such payment by the Issuer of a draft drawn
under a Letter of Credit, but any failure to so notify shall not in any manner
affect the obligation of the Borrower to make reimbursement when due. In lieu
of
such notice, if the Borrower has not made reimbursement prior to the end of
the
Domestic Business Day when due, the Borrower hereby authorizes the Issuer to
deduct the amount of any such reimbursement from such account(s) as the Borrower
may from time to time designate in writing to the Issuer, upon which the Issuer
shall apply the amount of such deduction to such reimbursement. If all or any
portion of any reimbursement obligation in respect of a Letter of Credit shall
not be paid when due (whether at the stated maturity thereof, by acceleration
or
otherwise), such overdue amount shall bear interest, payable upon demand, at
a
rate per annum equal to the Alternate Base Rate plus
the Applicable Margin applicable to ABR
Advances plus
2%, from the date of such nonpayment until
paid in full (whether before or after the entry of a judgment
thereon).
2.9 Letter
of Credit
Participation
(a) Each Lender
hereby unconditionally and
irrevocably, severally (and not jointly) takes an undivided participating
interest in the obligations of the Issuer under and in connection with each
Letter of Credit in an amount equal to such Lender’s Commitment Percentage of
the amount of such Letter of Credit. Each Lender shall be liable to the Issuer
for its Commitment Percentage of the unreimbursed amount of any draft drawn
and
honored under each Letter of Credit. Each Lender shall also be liable for an
amount equal to the product of its Commitment Percentage and any amounts paid
by
the Borrower pursuant to Sections 2.8 and 2.10 that are subsequently rescinded
or avoided, or must otherwise be restored or returned. Such liabilities shall
be
unconditional and without regard to the occurrence of any Default or Event
of
26
Default or the
compliance by the Borrower with any of its obligations under the Loan
Documents.
(b) The Issuer
shall promptly notify the
Administrative Agent, and the Administrative Agent shall promptly notify each
Lender (which notice shall be promptly confirmed in writing), of the date and
the amount of each draft paid under each Letter of Credit with respect to which
full reimbursement payment shall not have been made by the Borrower as provided
in Section 2.8(c), and forthwith upon receipt of such notice, such Lender shall
promptly make available to the Administrative Agent for the account of the
Issuer its Commitment Percentage of the amount of such unreimbursed draft at
the
office of the Administrative Agent specified in Section 11.2 in lawful money
of
the United States and in immediately available funds. The Administrative Agent
shall distribute the payments made by each Lender pursuant to the immediately
preceding sentence to the Issuer promptly upon receipt thereof in like funds
as
received. Each Lender shall indemnify and hold harmless the Administrative
Agent
and the Issuer from and against any and all losses, liabilities (including
liabilities for penalties), actions, suits, judgments, demands, costs and
expenses (including, without limitation, reasonable attorneys’ fees and
expenses) resulting from any failure on the part of such Lender to provide,
or
from any delay in providing, the Administrative Agent with such Lender’s
Commitment Percentage of the amount of any payment made by the Issuer under
a
Letter of Credit in accordance with this clause (b) above (except in respect
of
losses, liabilities or other obligations suffered by the Administrative Agent
or
the Issuer, as the case may be, resulting from the gross negligence or willful
misconduct of the Administrative Agent or the Issuer, as the case may be).
If a
Lender does not make available to the Administrative Agent when due such
Lender’s Commitment Percentage of any unreimbursed payment made by the Issuer
under a Letter of Credit, such Lender shall be required to pay interest to
the
Administrative Agent for the account of the Issuer on such Lender’s Commitment
Percentage of such payment at a rate of interest per annum equal to (i) from
the
date such Lender should have made such amount available until the third day
therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal
Funds Effective Rate plus
2%, in each case
payable upon demand by the Issuer. The Administrative Agent shall distribute
such interest payments to the Issuer upon receipt thereof in like funds as
received.
(c) Whenever the
Administrative Agent is
reimbursed by the Borrower, for the account of the Issuer, for any payment
under
a Letter of Credit and such payment relates to an amount previously paid by
a
Lender in respect of its Commitment Percentage of the amount of such payment
under such Letter of Credit, the Administrative Agent (or the Issuer, if such
payment by a Lender was paid by the Administrative Agent to the Issuer) will
promptly pay over such payment to such Lender.
2.10 Absolute
Obligation with respect to Letter of Credit Payments
The Borrower’s obligation to
reimburse the Administrative Agent for the
account of the Issuer for each payment under or in respect of each Letter of
Credit shall be absolute and unconditional under any and all circumstances
and
irrespective of any set-off, counterclaim or defense to payment which the
Borrower may have or have had against the beneficiary of such Letter of Credit,
the Administrative Agent, the Issuer, the Swing Line Lender, any Lender or
any
other
27
Person, including,
without limitation, any defense based on the failure of any drawing to conform
to the terms of such Letter of Credit, any drawing document proving to be
forged, fraudulent or invalid, or the legality, validity, regularity or
enforceability of such Letter of Credit, provided that,
with respect to any Letter of Credit,
the foregoing shall not relieve the Issuer of any liability it may have to
the
Borrower for any actual damages sustained by the Borrower arising from a
wrongful payment (or failure to pay) under such Letter of Credit made as a
result of the Issuer’s gross negligence or willful misconduct.
2.11 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.
3.
PROCEEDS,
PAYMENTS, CONVERSIONS, INTEREST, YIELD PROTECTION AND FEES
3.1 Disbursement
of the
Proceeds of the Loans
The Administrative
Agent shall disburse the
proceeds of the Loans (other than the Swing Line Loans) at its office specified
in Section 11.2 by crediting to the Borrower’s general deposit account with the
Administrative Agent the funds received from each Lender. Unless the
Administrative Agent shall have received prior notice from a Lender (by
telephone or otherwise, such notice to be confirmed by fax or other writing)
that such Lender will not make available to the Administrative Agent such
Lender’s Commitment Percentage of the Revolving Credit Loans, or the amount of
any Competitive Bid 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, in the
case of a Revolving Credit Loan, 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. 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.
28
3.2 Payments
(a) Each payment,
including each prepayment,
of principal and interest on the Loans and of the Facility Fee, the Utilization
Fee and the Letter of Credit Participation Fee (collectively, together with
all
of the other fees to be paid to the Administrative Agent, the Lenders, the
Issuer and the Swing Line Lender 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: (i)
Revolving Credit 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, (ii) Competitive Bid Loans shall be remitted by the Administrative
Agent in like funds as received to each applicable Lender and (iii) Swing Line
Loans shall be remitted by the Administrative Agent in like funds as received
to
the Swing Line Lender. Each payment of the Facility Fee and the Letter of Credit
Participation 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 Revolving Credit Loans. Each payment of the Utilization Fee payable to
the Lenders shall be promptly transmitted by the Administrative Agent in like
funds as received to each Lender in accordance with Section 3.11(b)
.
(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 or
Competitive Interest Period) shall be extended to the next Domestic Business
Day
or Eurodollar Business Day, as the case may be, and (except with respect to
payments in respect of the Facility Fee, the Utilization Fee and the Letter
of
Credit Participation Fee) interest shall be payable at the applicable rate
specified herein during such extension.
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
29
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 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 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
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 Sections 4, 5 or 6).
(d) Notwithstanding
any other provision of any
Loan Document:
(i) if the Borrower
shall have failed to elect
a Eurodollar Advance under Section 2.3 or this Section 3.3, as the case may
be,
in connection with any borrowing of new Revolving Credit Loans or expiration
of
an Interest Period with respect to any existing Eurodollar Advance, the amount
of the Revolving Credit 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,
(ii) the Borrower
shall not be permitted to
select a Eurodollar Advance the Interest Period in respect of which ends later
than the Commitment Termination Date or such earlier date upon which all of
the
Commitments shall have been terminated in accordance with Section 2.6,
and
30
(iii) the Borrower
shall not be permitted to
have more than 15 Eurodollar Advances and Competitive Bid Loans, in the
aggregate, outstanding at any one time, it being understood and agreed that
each
borrowing of Eurodollar Advances or Competitive Bid Loans pursuant to a single
Borrowing Request or Competitive Bid Request, as the case may be, shall
constitute the making of one Eurodollar Advance or Competitive Bid Loan for
the
purpose of calculating such limitation.
3.4 Interest
Rates and
Payment Dates
(a) Prior
to Maturity.
Except as otherwise provided in Sections 3.4(b) and 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 |
Revolving
Credit Loans constituting ABR Advances |
Alternate
Base Rate applicable thereto plus the
Applicable Margin. |
Revolving
Credit Loans constituting Eurodollar Advances |
Eurodollar
Rate applicable thereto plus the
Applicable Margin. |
Competitive
Bid Loans |
Fixed
rate of interest applicable thereto accepted by the Borrower pursuant
to
Section 2.4(d). |
Swing
Line Loans |
Negotiated
Rate applicable thereto as provided in Section
2.2(a). |
(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
the 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
31
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 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 Commitment
Termination Date and, to the extent provided in Section 2.7(c), 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, as
soon as practicable, notify the Borrower and the Lenders of the effective date
and the amount of each change in the BNY 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, the Eurodollar Rate
and
the Competitive 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 BNY 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 BNY Rate shall be
calculated on the basis of a 365/366-day year for the actual number of days
elapsed.
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 2.3
or
3.3, as the case may be, (ii) the Borrower shall fail to borrow a Competitive
Bid Loan after it shall have accepted any offer with respect thereto in
accordance with Section 2.4 or a Swing Line Loan after it shall have agreed
to a
Negotiated Rate with respect thereto in accordance with Section 2.2(a), (iii)
a
Eurodollar Advance, Competitive Bid Loan or Swing Line Loan shall be terminated
for any reason prior to the last day of the Interest Period applicable thereto
(other than the termination of a Swing Line Loan resulting from a Mandatory
Borrowing at a time when no Default or Event of Default shall exist), (iv)
any
repayment or prepayment of the principal amount of a Eurodollar Advance,
Competitive Bid Loan or Swing Line Loan is made for any reason on a date which
is prior to the last day of the Interest Period applicable thereto (other than
the repayment or prepayment of a Swing Line Loan resulting from a Mandatory
Borrowing at a time when no Default or Event of Default shall exist), or (v)
the
Borrower shall have revoked a
32
notice of prepayment
or
notice of termination of the Commitments, the Swing Line Commitment and the
Letter of Credit Commitment that was conditioned upon the effectiveness of
other
credit facilities pursuant to Section 2.6 or 2.7, 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 fund or maintain the funding of such Eurodollar Advance,
Competitive Bid Loan or Swing Line Loan, as the case may be, or redeploying
funds prepaid or repaid, in amounts which correspond to such Eurodollar Advance,
Competitive Bid Loan or Swing Line Loan, as the case may be, and any reasonable
internal processing charge customarily charged by such Lender in connection
therewith.
3.6 Reimbursement
for
Costs, Etc.
If at any time
or from time to time there
shall occur a Regulatory Change and the Issuer or 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 the Issuer’s or
such Lender’s capital or the capital of any Person directly or indirectly owning
or controlling the Issuer or such Lender (each a “Control Person”),
or (B) the asset value (for capital
purposes) to the Issuer, such Lender or such Control Person, as applicable,
of
the Reimbursement Obligations, or any participation therein, or the Loans,
or
any participation therein, in any case to a level below that which the Issuer,
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 the
Issuer’s, 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 the Issuer,
such Lender or such Control Person, as applicable, to any tax (documentary,
stamp or otherwise) with respect to this Agreement, any Note, or any
Reimbursement Agreement, or (iv) will change the basis of taxation of payments
to the Issuer, 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
the
Issuer’s, such Lender’s or such Control Person’s net income) then, in each such
case, within ten days after demand by the Issuer or such Lender, as applicable,
the Borrower shall pay to the Issuer, such Lender or such Control Person, as
the
case may be, such additional amount or amounts as shall be sufficient to
compensate the Issuer, 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 the Issuer’s, such Lender’s
or such Control Person’s compliance during the term hereof with such Regulatory
Change. The Issuer and 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
33
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).
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 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
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.
3.8 Option
to Fund;
Substituted Interest Rate
(a) Each Lender
has indicated that, if the
Borrower requests a Swing Line Loan, a Eurodollar Advance or a Competitive
Bid
Loan, such Lender may wish to purchase one or more deposits in order to fund
or
maintain its funding of its Commitment Percentage of such Eurodollar Advance
or
its Swing Line Loan or Competitive Bid Loan during the 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 Swing Line Loan, Eurodollar
Advance or Competitive Bid Loan and any amounts owing under Sections 3.5 and
3.6. The Swing Line Lender and each Lender shall be entitled to fund and
maintain its funding of all or any part of each Swing Line Loan, Eurodollar
Advance and Competitive Bid Loan in any manner it sees fit, but all such
determinations hereunder shall be made as if such Lender had actually funded
and
maintained its Commitment Percentage of each Eurodollar Advance or its Swing
Line Loan or Competitive Bid Loan, as the case may be, during the applicable
Interest Period through the purchase of deposits in an amount equal to the
amount of its Commitment Percentage of such Eurodollar Advance or the amount
of
such Swing Line Loan or Competitive Bid Loan, as the case may be, and having
a
maturity corresponding to such
34
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
2.3 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 telephone or
otherwise, to be promptly confirmed in writing) of such 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 (or, subject to the
terms and conditions hereof, Competitive Bid Loans), (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 (or, subject to the terms and
conditions hereof, Competitive Bid Loans), and (C) any outstanding Affected
Advances shall be Converted, on the last day of the then current Interest Period
with respect thereto, to ABR Advances (or, subject to the terms and conditions
hereof, Competitive Bid Loans). 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 2.3 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.
3.9 Certificates
of
Payment and Reimbursement
Each Issuer and
each Lender agrees, in
connection with any request by it for payment or reimbursement pursuant to
Section 3.5 or 3.6, to provide the Borrower with a certificate, signed by an
officer of the Issuer or such Lender, as the case may be, setting forth a
description in reasonable detail of any such payment or reimbursement. Each
determination by the Issuer and each Lender of such payment or reimbursement
shall be conclusive absent manifest error.
35
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 Issuer and the Lenders, as may be necessary in order that the actual
amounts received by the Issuer and 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, the Issuer 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, the Issuer 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 withholding, as the case may be, and the Administrative Agent in turn shall
distribute copies thereof to the Issuer and each Lender. If any payment to
the
Issuer or any Lender under any Loan Document is or becomes subject to any
withholding, the Issuer or such Lender, as the case may be, shall (unless
otherwise required by a Governmental Authority or as a result of any law, rule,
regulation, order or similar directive applicable to the Issuer or such Lender,
as the case may be) 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 the Issuer
or such Lender, as the case may be, in any respect. In the event that the Issuer
or any Lender determines that it received a refund or credit for taxes paid
by
the Borrower under this Section, the Issuer or such Lender, as the case may
be,
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 the Issuer or such Lender,
as
the case may be, 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.
36
3.11 Fees
(a) 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 earlier to occur of the Caremark Merger Effective
Date and July 31, 2007 and ending on the Expiration 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 during which the
Facility Fee shall commence to accrue, and on the Expiration Date, at a rate
per
annum equal to the Applicable Margin of (a) prior to the Commitment Termination
Date or such earlier date upon which all of the Commitments shall have been
terminated in accordance with Section 2.6, the Commitment Amount of such Lender
(whether used or unused), and (b) thereafter, the sum of (i) the outstanding
principal balance of all Revolving Credit Loans of such Lender, (ii) such
Lender’s Swing Line Exposure and (iii) such Lender’s Letter of Credit Exposure.
Notwithstanding anything to the contrary contained in this Section, on and
after
the Commitment Termination Date, the Facility Fee shall be payable upon demand.
In addition, upon each reduction of the Aggregate Commitment Amount, the
Borrower shall pay the Facility Fee accrued on the amount of such reduction
through the date of such reduction. The Facility Fee shall be computed on the
basis of a 360-day year for the actual number of days elapsed.
(b) Utilization
Fee. The
Borrower agrees to pay to the Administrative Agent for the account of each
Lender a fee (the “Utilization
Fee”) for each day during
the
period commencing on the Effective Date and ending on the Expiration Date (or,
if later, the date when the Committed Credit Exposure of such Lender is $0)
that
the sum of (i) the Aggregate Credit Exposure, (ii) the Aggregate Credit Exposure
(as defined in the Existing 2004 Five Year Credit Agreement), (iii) the
Aggregate Credit Exposure (as defined in the Existing 2005 Five Year Credit
Agreement) and (iv) the Aggregate Credit Exposure (as defined in the Existing
2006 Five Year Credit Agreement) on such date exceeds 50% of the sum of (i)
the
Aggregate Commitment Amount, (ii) the Aggregate Commitment Amount (as defined
in
the Existing 2004 Five Year Credit Agreement), (iii) the Aggregate Commitment
Amount (as defined in the Existing 2005 Five Year Credit Agreement) and (iv)
the
Aggregate Commitment Amount (as defined in the Existing 2006 Five Year Credit
Agreement) on such date, payable on each Interest Payment Date (other than
an
Interest Payment Date applicable solely to Competitive Bid Loans) or if Letters
of Credit are outstanding, but no Revolving Credit Loans or Swing Line Loans
are
outstanding, payable on each date that the Letter of Credit Participation Fee
is
payable, at a rate per annum equal to the Applicable Margin of the sum of (i)
the Committed Credit Exposure of such Lender, (ii) the Committed Credit Exposure
(as defined in the Existing 2004 Five Year Credit Agreement) of such Lender,
(iii) the Committed Credit Exposure (as defined in the Existing 2005 Five Year
Credit Agreement) of such Lender and (iv) the Committed Credit Exposure (as
defined in the Existing 2006 Five Year Credit Agreement) of such Lender on
such
date, less
the sum of (i) the Utilization Fee (as
defined in the Existing 2004 Five Year Credit Agreement), (ii) the Utilization
Fee (as defined in the Existing 2005 Five Year Credit Agreement) and (iii)
the
Utilization Fee (as defined in the Existing 2006 Five Year Credit Agreement),
in
each case payable to such Lender for such day. Notwithstanding anything to
the
contrary contained in this Section, on and after the Commitment Termination
Date, the Utilization Fee shall be payable upon demand. The Utilization Fee
shall be computed on the basis of a 360-day year for the actual number of days
elapsed.
37
3.12 Letter
of Credit
Participation Fee
The Borrower agrees
to pay to the
Administrative Agent for the pro rata account of each Lender a fee (the
“Letter of Credit
Participation Fee”) with
respect to the Letters of Credit during the period commencing on the Effective
Date and ending on the Commitment Termination Date or, if later, the date when
the Letter of Credit Exposure of all Lenders is $0, 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 last date of such period, at a rate per annum
equal to the Applicable Margin of the average daily aggregate amount which
may
be drawn under the Letters of Credit during such period (whether or not the
conditions for drawing thereunder have or may be satisfied) multiplied by such
Lender’s Commitment Percentage. The Letter of Credit Participation Fee shall be
computed on the basis of a 360-day year for the actual number of days
elapsed.
3.13 Replacement
of
Lender
If the Borrower
is obligated to pay to any
Lender any amount under Section 3.6 or 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”),
reasonably acceptable to the Swing Line Lender and the Issuer, 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 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, the outstanding Loans,
the
Swing Line Exposure and the Letter of Credit Exposure 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 and Swing Line Participation
Amounts of the Replaced Lender, (B) an amount equal to all drawings on all
Letters of Credit that have been funded by (and not reimbursed to) such Replaced
Lender, together with all then unpaid interest with respect thereto at such
time, and (C) an amount equal to all accrued, but unpaid, fees owing to the
Replaced Lender, (b) to the Issuer, an amount equal to such Replaced Lender’s
Commitment Percentage of all drawings (which at such time remain unpaid
drawings) to the extent such amount was not funded by such Replaced Lender,
(c)
to the Swing Line Lender, an amount equal to such Replaced Lender’s Commitment
Percentage of any Mandatory Borrowing to the extent such amount was not funded
by such Replaced Lender, and (d) 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
38
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.
4. REPRESENTATIONS
AND
WARRANTIES
In order to induce
the Administrative
Agent, the Lenders and the Issuer to enter into this Agreement, the Lenders
to
make the Loans and the Issuer to issue Letters of Credit, the Borrower hereby
makes the following representations and warranties to the Administrative Agent,
the Lenders and the Issuer:
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).
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 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.
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.
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,
39
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 Merger is not a transaction contemplated by any Loan Document for
purposes of this clause (b)).
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 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.
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.
40
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.
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.
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 or the Letters of Credit has
been
or will be used, directly or indirectly, and whether immediately, incidentally
or ultimately, for a purpose which violates any law, rule 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, neither
the Issuer nor any 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 and the issuance of each Letter of
Credit, 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 or issuance
of
such Letter of Credit) 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 or Letter of
Credit 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.
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
41
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).
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.
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 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
42
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.
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 30, 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 dates and for the periods 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 30, 2006
to
and including February 2, 2007 there was no Material Adverse change, including
as a result of any change in law, in the consolidated financial condition,
operations, business or Property of the Borrower and the Subsidiaries taken
as a
whole.
5. CONDITIONS
OF LENDING - FIRST LOANS AND
LETTERS OF CREDIT ON THE FIRST BORROWING DATE
In addition to
the requirements set forth in
Section 6, the obligation of each Lender on the first Borrowing Date to make
one
or more Revolving Credit Loans, the Swing Line Lender to make one or more Swing
Line Loans, the Issuer to issue one or more Letters of Credit and any Lender
to
make a Competitive Bid Loan are subject to the fulfillment of the following
conditions precedent prior to or simultaneously with the Effective
Date:
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 certificate of good
standing of the Secretary of State of the State of Delaware.
5.2 Notes
The Administrative
Agent shall have received a
Note for each Lender that shall have requested one, executed by the
Borrower.
43
5.3 Opinion
of Counsel
to the Borrower
The Administrative
Agent shall have
received:
(a) an opinion
of Zenon Lankowsky, counsel to
the Borrower, dated the Effective Date, and in the form of Exhibit D-1;
and
(b) an opinion
of Davis Polk & Wardwell,
special counsel to the Borrower, dated the Effective Date, and in the form
of
Exhibit D-2.
6. CONDITIONS
OF LENDING - ALL LOANS AND LETTERS
OF CREDIT
The obligation
of each Lender on any Borrowing Date to make each
Revolving Credit Loan (other than a Revolving Credit Loan constituting a
Mandatory Borrowing), the Swing Line Lender to make each Swing Line Loan, the
Issuer to issue each Letter of Credit and any Lender to make a Competitive
Bid
Loan are subject to the fulfillment of the following conditions
precedent:
6.1 Compliance
On each Borrowing
Date, and after giving
effect to the Loans to be made or the Letters of Credit to be issued 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.
6.2 Requests
The Administrative
Agent shall have received
either or both, as applicable, of a Borrowing Request or a Letter of Credit
Request from the Borrower.
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, any Lender or the Issuer on or before the applicable
Borrowing Date shall have been so executed or delivered on or before such
Borrowing Date.
7. AFFIRMATIVE
COVENANTS
The Borrower covenants
and agrees that on and after the Effective Date
and until the later to occur of (a) the Commitment Termination Date and (b)
the
payment in full of the Loans, the Reimbursement Obligations, the Fees and all
other sums payable under the Loan Documents, the Borrower will:
44
7.1 Legal
Existence
Except as may otherwise
be permitted by
Sections 8.3 and 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.
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.
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.
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.
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.
45
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.
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 Sections 8.1
and
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
46
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 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.
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.
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.
47
8.
NEGATIVE
COVENANTS
The Borrower covenants
and agrees that on and
after the Effective Date and until the later to occur of (a) the Commitment
Termination Date and (b) the payment in full of the Loans, the Reimbursement
Obligations, the Fees and all other sums which are payable under the Loan
Documents, the Borrower will not:
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.
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
48
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.
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.
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.
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 Merger), provided
that immediately before and after giving
effect to each such Acquisition no Default or Event of Default shall or would
exist.
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.
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
49
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, 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 2004 Five Year Credit Agreement, the
Existing 2005 Five Year Credit Agreement, the Existing 2006 Five Year Credit
Agreement, the 2007 Bridge Credit Agreement and the 2007 364 Day Credit
Agreement).
8.8 Limitation
on
Negative Pledges
Enter into any
agreement, other than (i) this
Agreement, (ii) the 2007 Bridge Credit Agreement, (iii) the 2007 364 Day Credit
Agreement, (iv) any other credit agreement that is substantially similar to
this
Agreement, and (v) 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.
50
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.
8.10 Caremark
Merger
(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 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 sellers under the Caremark Merger Agreement to consummate
the
transactions contemplated by the Caremark Merger Agreement without the consent
of the Administrative Agent.
9. DEFAULT
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 or any reimbursement payment in respect of
any
Letter of Credit when due and payable; or
(b) The failure
of the Borrower to make any
payment of interest on any Loan or of any Fee 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 Sections 2.5, 7.1 or in Section
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) An Event of
Default (as defined in any
Reimbursement Agreement) shall occur under any Reimbursement Agreement;
or
(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
51
(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
(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 Article, (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
52
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 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.
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, the Swing Line Commitment and the
Letter of Credit Commitment have been terminated and/or that all of the Loans,
the Notes and the Reimbursement Obligations 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, the Swing Line Commitment and the Letter
of
Credit Commitment shall automatically terminate and all of the Loans, the Notes
and the Reimbursement Obligations 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, the
Swing Line Commitment and the Letter of Credit Commitment shall have been
terminated or all of the Loans, the Notes and the Reimbursement Obligations
shall have been declared due and payable pursuant to the provisions of this
Section, (i) the Borrower shall forthwith deposit an amount equal to the Letter
of Credit Exposure in a cash collateral account with and under the exclusive
control of the Administrative Agent, and (ii) the Administrative Agent, the
Issuer and the Lenders agree, among themselves, that any funds received from
or
on behalf of the Borrower under any Loan Document by the Issuer or any Lender
(except funds received by the Issuer or any Lender as a result of a purchase
from the Issuer or such Lender, as the case may be, pursuant to the provisions
of Section 11.9(b))
53
shall be remitted
to the
Administrative Agent, and shall be applied by the Administrative Agent in
payment of the Loans, the Reimbursement Obligations and the other obligations
of
the Borrower under the Loan Documents in the following manner and order: (1)
first, to reimburse the Administrative Agent, the Issuer and the Lenders, in
that order, for any expenses due from the Borrower pursuant to the provisions
of
Section 11.5 and the Reimbursement Agreements, (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 and the Reimbursement
Obligations) payable by the Borrower to the Administrative Agent, the Issuer
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 and the Letter
of Credit Exposure of each Lender, of interest due on the Loans and the
Reimbursement Obligations, (5) fifth, to the payment, pro rata according to
the
sum of (A) the aggregate outstanding principal balance of the Loans of each
Lender plus
(B) the aggregate outstanding balance of the
Reimbursement Obligations of each Lender, of the aggregate outstanding principal
balance of the Loans and the aggregate outstanding balance of the Reimbursement
Obligations, 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
and the Reimbursement Obligations shall have been declared due and payable
pursuant to the provisions of this Section 9.2, the Administrative Agent upon
the written request of the Required Lenders, shall proceed to enforce the
Reimbursement Obligations and 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, the Issuer and each Lender shall be entitled
to take such action as the Required Lenders shall deem appropriate to enforce
its rights under the Loan Documents.
10. AGENT
10.1 Appointment
Each Lender hereby
irrevocably designates and
appoints BNY as the Administrative Agent of such Lender under the Loan Documents
and each Lender irrevocably authorizes the Administrative Agent to take such
action on its behalf under the provisions of the Loan Documents and to exercise
such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of the Loan Documents, together with such
other powers as are reasonably incidental thereto. Notwithstanding any provision
to the contrary contained in the Loan Documents, the Administrative Agent shall
not have any duties or responsibilities except those expressly set forth in
the
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.
10.2 Delegation
of
Duties
The Administrative
Agent may execute any of
its duties under the Loan Documents by or through agents or attorneys-in-fact
and shall be entitled to rely upon the advice of counsel
54
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.
10.3 Exculpatory
Provisions
None of the Administrative
Agent or 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 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.
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 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.
55
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.
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 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.
10.7 Administrative
Agent in Its Individual Capacity
BNY and each Affiliate
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
56
Commitment made
or
renewed by BNY and each Note issued to BNY (if any), BNY 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, the Issuer and the Swing
Line Lender, and the term “Lender”
shall include BNY.
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 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 Section 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.
10.9 Co-Syndication
Agents and Documentation Agent
The Co-Syndication
Agents and the
Documentation Agent shall have no duties or obligations under the Loan Documents
in their capacities as Co-Syndication Agents or Documentation Agent,
respectively.
11. OTHER
PROVISIONS
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
57
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 Revolving Credit Loan, any Note
or any Reimbursement Obligation (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 any Reimbursement Obligation or principal on any
Revolving Credit Loan or any Note without the consent of each Lender directly
affected thereby, (vi) decrease or forgive the principal amount of any Revolving
Credit Loan, any Note or any Reimbursement Obligation 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,
(xi) change the sharing provisions among Lenders without the consent of each
Lender, or (xii) extend the expiration date of a Letter of Credit beyond the
Commitment Termination Date without the consent of each Lender. Notwithstanding
the foregoing, no such amendment, supplement, modification, waiver or consent
shall (A) amend, modify or waive any provision of Section 10 or otherwise change
any of the rights or obligations of the Administrative Agent, the Issuer or
the
Swing Line Lender under any Loan Document without the written consent of the
Administrative Agent, the Issuer or the Swing Line Lender, as the case may
be,
(B) change the Letter of Credit Commitment, change the amount or the time of
payment of the Letter of Credit Commissions, or change any other term or
provision which relates to the Letter of Credit Commitment or the Letters of
Credit without the written consent of the Issuer, (C) change the Swing Line
Commitment, change the amount or the time of payment of the Swing Line Loans
or
interest thereon or change any other term or provision which relates to the
Swing Line Commitment or the Swing Line Loans without the written consent of
the
Swing Line Lender or (D) change the amount or the time of payment of any
Competitive Bid Loan or interest thereon without the written consent of the
Lender holding such Competitive Bid Loan. 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
and
the Reimbursement Obligations. 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.
58
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:
If to the Borrower:
|
CVS
Corporation |
|
1
CVS
Drive |
|
Woonsocket,
Rhode Island 02895 |
|
Attention: |
Carol
A. DeNale |
|
|
Treasury
Department |
|
Facsimile: |
(401)
770-5768 |
|
Telephone: |
(401)
770-4407 |
with a copy, in
the case of a notice of Default or Event of Default,
to:
|
CVS
Corporation |
|
1
CVS
Drive |
|
Woonsocket,
Rhode
Island 02895 |
|
Attention: |
Legal
Department |
|
Facsimile: |
(401)
765-7887 |
|
Telephone: |
(401)
765-1500 |
If to the Administrative
Agent, the Swing Line
Lender and the Issuer:
|
in the
case of
each Borrowing Request, each notice of prepayment under Section 2.7,
each
Letter of Credit Request, each Competitive Bid Request, each Competitive
Bid, and each Competitive Bid Accept/Reject Letter:
|
|
|
|
The
Bank
of New York |
|
One
Wall
Street |
|
New
York,
New York 10286 |
|
Attention: |
Kareen
Sinclair, |
|
|
Agency
Function Administration |
|
Facsimile: |
(212)
635-6365, 6366 or 6367 |
|
Telephone: |
(212)
635-4696, |
|
|
|
|
and in
all other
cases:
|
59
|
The
Bank
of New York |
|
Retailing
Industry Division |
|
19th
Floor |
|
One
Wall
Street |
|
New
York,
New York 10286 |
|
Attention: |
William
M. Barnum, |
|
|
Managing
Director |
|
Facsimile: |
(212)
635-1481 |
|
Telephone: |
(212)
635-1019 |
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.
11.3 No
Waiver;
Cumulative Remedies
No failure to exercise
and no delay in
exercising, on the part of the Administrative Agent, any Lender or the Issuer,
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.
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.
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 or Letter of Credit
is
issued, (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,
60
consent, supplement
or
modification to the Loan Documents or any documents prepared in connection
therewith are executed and whether the transactions contemplated thereby are
consummated, including the reasonable fees and disbursements of Special Counsel,
(b) to pay, indemnify, and hold the Administrative Agent, the Lenders and the
Issuer 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
Administrative Agent, the Lenders or the Issuer, as the case may be, 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.
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.
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 or obligations in respect of its Letter of Credit Exposure
or
Swing Line Exposure 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 of a Lender,
each of the Borrower and the Administrative Agent (and, in the case of
61
an assignment of
all or
any portion of its Commitment or obligations in respect of its Letter of Credit
Exposure or Swing Line Exposure, the Issuing Bank and/or the Swing Line Lender,
as the case may be) 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, the amount of the Commitment 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
Commitment and such Lender’s then outstanding Revolving Credit 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 Sections 3.5, 3.6, 3.7, 3.10 and 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 (e) 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
62
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 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, Letter of Credit Exposure, Swing Line Exposure 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
Sections 3.5, 3.6, 3.7 and 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, 3.7 or 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.
63
(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, 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.
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.
64
11.9 Set-off
and
Sharing of Payments
(a) In addition
to any rights and remedies of
the Lenders and the Issuer 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 and the Issuer 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 or the Issuer arising under the Loan Documents,
any amount owing from such Lender or the Issuer to the Borrower. To the extent
permitted by applicable law, the aforesaid right of set-off may be exercised
by
such Lender or the Issuer 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 or the Issuer prior to the making, filing or issuance
of, service upon such Lender or the Issuer of, or notice to such Lender or
the
Issuer 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 and the Issuer agree promptly to notify
the Borrower and the Administrative Agent after each such set-off and
application made by such Lender or the Issuer, provided
that the failure to give such notice shall
not affect the validity of such set-off and application.
(b) If any Lender
or the Issuer (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 or the Reimbursement
Obligations in excess of its pro rata share (in accordance with the outstanding
principal balance of all Loans or the Reimbursement Obligations) of payments
then due and payable on account of the Loans and Notes received by all the
Lenders or the Reimbursement Obligations, such Lender or the Issuer, as the
case
may be, shall forthwith purchase, without recourse, for cash, from the other
Lenders such participations in their Loans and Notes or the Reimbursement
Obligations as shall be necessary to cause such purchasing Lender or the Issuer
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 or the
Reimbursement Obligations), provided
that if all
or any portion of such excess payment is thereafter recovered from such
purchasing Lender or the Issuer, such purchase from each Lender shall be
rescinded and each such Lender shall repay to the purchasing Lender or the
Issuer 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 or the Issuer) 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 or the Issuer 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
or the Issuer were the direct creditor of the Borrower in the amount of such
participation.
65
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 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 Merger), (ii) any Loan or Letter of Credit 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 when no Loans are outstanding,
its Commitment Percentage, or if no Commitments then exist, its Commitment
Percentage on the last day on which Commitments did exist, and (ii) at any
time
when Loans are outstanding (x) if the Commitments then exist, its Commitment
Percentage or (y) if the Commitments have been terminated or otherwise no longer
exist, the percentage equal to the fraction, (A) the numerator of which is
the
sum of such Lender’s Credit Exposure and (B) the denominator of which is the sum
of the Aggregate Credit Exposure (in each case 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 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)
66
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 any Letter of Credit or the use of the proceeds
thereof.
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.
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.
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.
11.14 Treatment
of
Certain Information
Each Lender, the
Issuer and the Administrative
Agent 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;
67
(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;
(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.
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, none of the Administrative
Agent, the Issuer, or any Lender has any fiduciary relationship to the Borrower,
and the relationship between the Administrative Agent, the Issuer, 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.
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.
68
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.
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, the Issuer or any Lender to serve process in any manner
permitted by law or limit the right of the Administrative Agent, the Issuer
or
any Lender to bring proceedings against the Borrower in the courts of any
jurisdiction or jurisdictions.
11.19 WAIVER
OF TRIAL
BY JURY
THE ADMINISTRATIVE
AGENT, THE ISSUER, THE
LENDERS 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 THE ADMINISTRATIVE AGENT, THE ISSUER, OR THE LENDERS,
OR COUNSEL TO THE ADMINISTRATIVE AGENT, THE ISSUER, OR THE LENDERS, HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE ADMINISTRATIVE AGENT, THE ISSUER,
OR THE LENDERS WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE
THIS
WAIVER OF RIGHT TO JURY TRIAL PROVISION. THE BORROWER ACKNOWLEDGES THAT THE
ADMINISTRATIVE AGENT, THE ISSUER, AND THE LENDERS HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, INTER
ALIA, THE PROVISIONS OF THIS
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, the Issuer, and each Lender and the conditions set forth
in Sections 5.1 through 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 April 30, 2007.
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
69
Act (Title III
of Pub.
L. 107-56 (signed into law October 26, 2001), as amended from time to time)
(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.
70
AS EVIDENCE
of
the agreement by the parties hereto to the
terms and conditions herein contained, each such party has caused this Five
Year
Credit Agreement to be executed on its behalf.
CVS
CORPORATION |
|
|
|
By: |
/s/ Carole
A.
DeNale |
|
|
|
Name: |
Carol A.
DeNale |
|
Title: |
Vice President
and
Treasurer |
THE BANK
OF NEW
YORK, in its capacity as a Lender and in its capacity as the
Administrative Agent
|
|
|
|
By: |
/s/ Erin
Morrissey |
|
|
|
Name: |
Erin
Morrissey |
|
Title: |
Assistant
Vice
President |
BANK OF AMERICA,
N.A. |
|
|
|
By: |
/s/ John
Pocalyko |
|
|
|
Name: |
John
Pocalyko |
|
Title: |
Senior Vice
President |
LEHMAN
COMMERCIAL
PAPER INC., in its capacity as a Co-Syndication
Agent
|
|
|
|
By: |
/s/ Janine
M.
Shugan |
|
|
|
Name: |
Janine M.
Shugan |
|
Title: |
Authorized
Signatory |
LEHMAN
BROTHERS
BANK, FSB, in its capacity as a Lender
|
|
|
|
By: |
/s/ Gary
T.
Taylor |
|
|
|
Name: |
Gary T.
Taylor |
|
Title: |
Senior Vice
President |
WACHOVIA
BANK,
NATIONAL ASSOCIATION, in its capacity as a Lender and in its capacity
as a Co-Syndication Agent
|
|
|
|
By: |
/s/ Denis
Waltrich |
|
|
|
Name: |
Denis
Waltrich |
|
Title: |
Vice
President |
MORGAN
STANLEY
SENIOR FUNDING, INC., in its capacity as Documentation
Agent
|
|
|
|
By: |
/s/ Daniel
Twenge |
|
|
|
Name: |
Daniel
Twenge |
|
Title: |
Vice
President |
MORGAN STANLEY
BANK,
in its capacity as a Lender |
|
|
|
By: |
/s/ Dawn
M.
Dawson |
|
|
|
Name: |
Dawn M.
Dawson |
|
Title: |
Authorized
Signatory |
ABN AMRO
BANK
N.V. |
|
|
|
By: |
/s/ Tracie
Elliot |
|
|
|
Name: |
Tracie
Elliot |
|
Title: |
Director |
By: |
/s/ Wendy
Devenish |
|
|
|
Name: |
Wendy
Devenish |
|
Title: |
First Vice
President |
KEYBANK NATIONAL
ASSOCIATION |
|
|
|
By: |
/s/ Marianne
T.
Meil |
|
|
|
Name: |
Marianne
T.
Meil |
|
Title: |
Senior Vice
President |
SUNTRUST
BANK |
|
|
|
By: |
/s/ Richard
C.
Wilson |
|
|
|
Name: |
Richard C.
Wilson |
|
Title: |
Managing
Director |
MIZUHO CORPORATE
BANK, LTD. |
|
|
|
By: |
/s/ Bertram
H.
Tang |
|
|
|
Name: |
Bertram H.
Tang |
|
Title: |
Senior Vice
President & Team Leader |
BRANCH BANKING
AND
TRUST COMPANY |
|
|
|
By: |
/s/ Roberts
A.
Bass |
|
|
|
Name: |
Roberts A.
Bass |
|
Title: |
Senior Vice
President |
BANK OF CHINA,
NEW
YORK BRANCH |
|
|
|
By: |
/s/ Xiaojing
Li |
|
|
|
Name: |
Xiaojing
Li |
|
Title: |
General
Manager |
WELLS FARGO
BANK,
NATIONAL ASSOCIATION |
|
|
|
By: |
/s/ Megan
Donnelly |
|
|
|
Name: |
Megan
Donnelly |
|
Title: |
Vice
President |
SUMITOMO
MITSUI
BANKING CORPORATION |
|
|
|
By: |
/s/ Shigeru
Tsuru |
|
|
|
Name: |
Shigeru
Tsuru |
|
Title: |
Joint General
Manager |
US BANK,
NATIONAL
ASSOCIATION |
|
|
|
By: |
/s/ Patrick
H.
McGraw, Jr. |
|
|
|
Name: |
Patrick H.
McGraw,
Jr. |
|
Title: |
Vice
President |
FIFTH THIRD
BANK |
|
|
|
By: |
/s/ Brooke
Balcom |
|
|
|
Name: |
Brooke
Balcom |
|
Title: |
Assistant
Vice
President |
CHANG HWA
COMMERCIAL
BANK LTD., LOS ANGELES BRANCH |
|
|
|
By: |
/s/ Wen-Che
Chen |
|
|
|
Name: |
Wen-Che
Chen |
|
Title: |
VP & General
Manager |
SOVEREIGN
BANK |
|
|
|
By: |
/s/ Robert
F.
Camara |
|
|
|
Name: |
Robert F.
Camara |
|
Title: |
Vice
President |
UNION BANK
OF
CALIFORNIA, N.A. |
|
|
|
By: |
/s/ Tawny
J.
Palovchik |
|
|
|
Name: |
Tawny J.
Palovchik |
|
Title: |
Investment
Banking
Officer |
REGIONS
BANK |
|
|
|
By: |
/s/ Berkin
Istanbulluoglu |
|
|
|
Name: |
Berkin
Istanbulluoglu |
|
Title: |
Assistant
Vice
President |
LAND BANK
OF
TAIWAN |
|
|
|
By: |
/s/ Chien-ching
Li |
|
|
|
Name: |
Chien-ching
Li |
|
Title: |
Deputy General
Manager, LA Branch |
PNC BANK,
NATIONAL
ASSOCIATION |
|
|
|
By: |
/s/ Michael
Richards |
|
|
|
Name: |
Michael
Richards |
|
Title: |
Senior Vice
President |
THE NORTHERN
TRUST
COMPANY |
|
|
|
By: |
/s/ Anu
Agarwal |
|
|
|
Name: |
Anu
Agarwal |
|
Title: |
2nd
Vice
President |
NATIONAL
CITY
BANK |
|
|
|
By: |
/s/ Amanda
M.
Sigg |
|
|
|
Name: |
Amanda M.
Sigg |
|
Title: |
Relationship
Manager |
HSBC BANK
USA |
|
|
|
By: |
/s/ Martin
J.
Haythorne |
|
|
|
Name: |
Martin J.
Haythorne |
|
Title: |
Managing
Director |
EXHIBIT A
2007
FIVE
YEAR CREDIT AGREEMENT
EXHIBIT A
LIST OF
COMMITMENTS
Lender |
|
|
Commitment
Amount |
|
|
|
|
The
Bank of New York |
|
|
$
110,000,000 |
Bank
of
America, N.A. |
|
|
$
110,000,000 |
Lehman
Brothers Bank, FSB |
|
|
$
110,000,000 |
Morgan
Stanley Bank |
|
|
$
110,000,000 |
Wachovia
Bank, National Association |
|
|
$
110,000,000 |
ABN
AMRO Bank N.V. |
|
|
$
55,000,000 |
KeyBank
National Association |
|
|
$
55,000,000 |
SunTrust
Bank |
|
|
$
55,000,000 |
Branch
Banking and Trust Company |
|
|
$
45,000,000 |
HSBC
Bank USA |
|
|
$
45,000,000 |
Mizuho
Corporate Bank, Ltd. |
|
|
$
45,000,000 |
Sumitomo
Mitsui Banking Corp., New York |
|
|
$
45,000,000 |
US
Bank, National Association |
|
|
$
45,000,000 |
Wells
Fargo Bank, National Association |
|
|
$
45,000,000 |
Bank
of
China |
|
|
$
40,000,000 |
Sovereign
Bank |
|
|
$
40,000,000 |
Land
Bank of Taiwan |
|
|
$
30,000,000 |
Chang
Hwa Commercial Bank Ltd. |
|
|
$
25,000,000 |
Fifth
Third Bank |
|
|
$
25,000,000 |
National
City Bank |
|
|
$
25,000,000 |
PNC
Bank, National Association |
|
|
$
25,000,000 |
Regions
Bank |
|
|
$
25,000,000 |
The
Northern Trust Company |
|
|
$
15,000,000 |
Union
Bank of California, N.A. |
|
|
$
15,000,000 |
|
|
|
|
|
|
TOTAL |
$
1,250,000,000 |
EXHIBIT B
2007 FIVE
YEAR
CREDIT AGREEMENT
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 Loans, together with interest thereon, at the rate or rates, in the
amounts and at the time or times set forth in the Five Year Credit Agreement
(as
the same may be amended, supplemented or otherwise modified from time to time,
the “Credit
Agreement”), dated as of
March 12, 2007, by and among the Borrower, the Lenders party thereto, the
co-syndication agents named therein, the documentation agent named therein,
and
The Bank of New York, as administrative agent (in such capacity, the
“Administrative
Agent”), in each case at the
office of the Administrative Agent located at One Wall Street, New York, New
York, 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 Credit
Agreement.
The Loans evidenced
by this Note are prepayable in the amounts, and on
the dates, set forth in the Credit Agreement. This Note is one of the Notes
under the 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 each Revolving Credit Loan, Competitive Bid Loan and Swing Line Loan
made by the Lender, (b) the Interest Period for each Revolving Credit Loan
(Eurodollar Advance only), Competitive Bid Loan and Swing Line Loan made by
the
Lender, (c) the Type of each Revolving Credit Loan made by the Lender as one
or
more ABR Advances, one or more Eurodollar Advances, or a combination thereof,
(d) the Eurodollar Rate applicable to each Revolving Credit Loan (Eurodollar
Advance only), the Competitive Bid Rate applicable to each Competitive Bid
Loan
and the Negotiated Rate applicable to each Swing Line Loan made by the Lender
and (e) the date and amount of each Conversion of each Revolving Credit Loan
made by the Lender, and each payment or prepayment of principal of, each 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 Loans, together with interest thereon, as provided in
the
Credit Agreement.
Except as specifically
otherwise provided in the 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 Credit Agreement.
CVS CORPORATION
|
|
|
|
By: |
|
|
|
|
Name: |
|
|
Title: |
|
CVS
CORPORATION
5 YEAR
CREDIT
AGREEMENT
SCHEDULE
TO
NOTE
Date of Loan |
Type and Amount of
Loan |
Interest Period (If
other than
an ABR Advance) |
Type
of Revolving Credit Loan (ABR or Eurodollar) |
Interest Rate (If
other than
an ABR Advance) |
Date
and Amount of Conversion of Revolving Credit Loan |
Date
and Amount of Principal Payment or Prepayment |
Notation Made
by |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EXHIBIT C
2007 FIVE
YEAR
CREDIT AGREEMENT
EXHIBIT C
FORM OF BORROWING
REQUEST
[Date]
The
Bank
of New York, as Administrative Agent |
One
Wall
Street |
New
York,
New York 10286 |
Attention:
|
______________, |
|
______________ |
|
Re:
|
Five Year Credit Agreement,
dated as of March 12, 2007, by and among CVS Corporation, the Lenders
party thereto, the co-syndication agents named therein, the documentation
agent named therein, and The Bank of New York, as Administrative
Agent (as
amended, supplemented or otherwise modified from time to time, the
"Credit
Agreement")
|
Capitalized terms
used herein that are not otherwise defined herein shall
have the respective meanings ascribed thereto in the Credit
Agreement.
Pursuant to Section
2.3 of the Credit Agreement, the Borrower hereby
gives notice of its intention to borrow Revolving Credit Loans in the aggregate
sum of $____________ on ____________, and/or a Swing Line Loan in the sum of
$____________ on ____________, which borrowing shall consist of the
following:
Revolving
Credit Loans |
|
|
|
|
(ABR
Advance or Eurodollar |
|
|
|
Interest
Period |
Advance)
or Swing Line Loan |
|
Amount |
|
(Other
than ABR) |
The Borrower hereby
certifies that on the Borrowing Date set forth above,
and after giving effect to the Loans requested hereby:
(a) There shall
exist no Default or Event of
Default.
(b) The representations
and warranties contained in the Credit Agreement
shall be true and correct, except those which are expressly specified to be
made
as of an earlier date.
IN EVIDENCE of
the foregoing, the undersigned has caused this Borrowing
Request to be duly executed on its behalf.
CVS
CORPORATION |
|
|
|
By: |
|
|
|
|
Name: |
|
|
Title: |
|
EXHIBIT
D-1
2007 FIVE
YEAR CREDIT AGREEMENT
EXHIBIT D-1
FORM OF OPINION OF COUNSEL TO THE BORROWER
[Date]
The Lenders, the
Co-Syndication Agents,
the Documentation Agent and
the Administrative
Agent Referred to Below
c/o The Bank of New York,
as Administrative Agent
One Wall Street
New York, New York 10286
Ladies and
Gentlemen:
I am general counsel
of CVS Corporation, a Delaware corporation (the
"Borrower"),
and have acted as such in connection with
the Five Year Credit Agreement, dated as of March 12, 2007, by and among the
Borrower, the lenders party thereto, Lehman Commercial Paper Inc. and Wachovia
Bank, National Association, as Co-Syndication Agents, Morgan Stanley Senior
Funding, Inc., as Documentation Agent, and The Bank of New York, as
Administrative Agent (the "Five Year Credit Agreement").
Capitalized terms not otherwise defined herein shall have the
meanings assigned to them in the Five Year 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 Five Year 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.
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 Five
Year 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 Five
Year 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 Five Year
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, 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 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 (it being understood that the Caremark Merger is not a transaction
contemplated by any Loan Document for purposes of this clause (b)).
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.
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 Five Year 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 Five Year 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 Five
Year 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,
EXHIBIT
D-2
2007 FIVE
YEAR
CREDIT AGREEMENT
EXHIBIT D-2
FORM OF OPINION
OF
SPECIAL COUNSEL TO THE BORROWER
[Date]
The Co-Syndication
Agents,
the Documentation Agent,
the
Administrative Agent
and the lenders party
to the Five Year Credit Agreement referred to below
c/o
The Bank of New York,
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 Five Year Credit Agreement dated as of March 12, 2007 among
the Company, the lenders listed on the signature pages thereof (the
“Lenders”),
Lehman
Commercial Paper Inc. and Wachovia Bank, National Association, as Co-Syndication
Agents, Morgan Stanley Senior Funding, Inc., as Documentation Agent, and The
Bank of New York, as Administrative Agent (in such capacity, the
“Administrative
Agent”) (as in effect
on
the date hereof, the “Five Year Credit
Agreement”). Capitalized terms
defined in the Five Year
Credit Agreement and not otherwise defined herein are used herein as therein
defined.
We have reviewed
an executed copy of the Five Year 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 Five Year
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 Five Year Credit
Agreement (x) require no consent or other action by or in respect of, or filing
with, any governmental 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 Five Year 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 Five Year 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 Five Year 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 Five Year Credit Agreement) without our prior written
consent.
Very truly
yours,
EXHIBIT E
2007 FIVE
YEAR
CREDIT AGREEMENT
EXHIBIT E
FORM OF ASSIGNMENT
AND ACCEPTANCE AGREEMENT
Reference is made
to the Five Year Credit Agreement, dated as of March
12, 2007 (as amended and in effect on the date hereof, the “Credit Agreement”),
by and among CVS Corporation, the Lenders
party thereto, the co-syndication agents named therein, the documentation agent
named therein, and The Bank of New York, as Administrative Agent. Capitalized
terms used herein that are not otherwise defined herein shall have the
respective meanings ascribed thereto in the 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 in the Assignor’s rights and obligations
under the Credit Agreement, including, without limitation, the interests set
forth below in the Commitment and the Revolving Credit Loans and Competitive
Bid
Loans owing to the Assignor that are outstanding on the Assignment Date,
together with, in the case of such Commitment, all of the related participations
held by the Assignor in respect of the Letters of Credit (including its LC
Exposure) and Swingline Loans (including its Swingline Exposure), but excluding
accrued interest and fees to and excluding the Assignment Date (collectively,
the “Assigned
Interest”). The Assignee
hereby acknowledges receipt of a copy of the Credit Agreement. From and after
the Assignment Date, (i) the Assignee shall be a party to and be bound by the
provisions of the 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
Credit Agreement, duly completed and executed by the Assignee, and (ii) if
the
Assignee is not already a Lender under the 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 Credit
Agreement.
THIS ASSIGNMENT
AND ACCEPTANCE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
1
Delete
inapplicable
term.
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
Revolving Credit Loans Assigned:
Principal Amount
of each
Competitive Bid Loan Assigned:
[SIGNATURE PAGE
FOLLOWS]
The terms set forth
above are hereby agreed to:
[Name
of
Assignor], as
Assignor |
|
|
|
By: |
|
|
|
|
Name: |
|
|
Title: |
|
[Name
of
Assignee], as
Assignee |
|
|
|
By: |
|
|
|
|
Name: |
|
|
Title: |
|
The undersigned
hereby
consent to the within assignment:
CVS
CORPORATION |
|
|
|
By: |
|
|
|
|
Name: |
|
|
Title: |
|
THE BANK
OF NEW
YORK, as Administrative Agent |
|
|
|
By: |
|
|
|
|
Name: |
|
|
Title: |
|
EXHIBIT F
2007 FIVE
YEAR
CREDIT AGREEMENT
EXHIBIT F
FORM OF COMPETITIVE
BID REQUEST
[Date]
The
Bank
of New York, as Administrative Agent |
One
Wall
Street |
New
York,
New York 10286 |
Attention:
|
______________, |
|
______________ |
|
Re:
|
Five Year Credit Agreement,
dated as of March 12, 2007, by and among CVS Corporation, the Lenders
party thereto, the co-syndication agents named therein, the documentation
agent named therein, and The Bank of New York, as Administrative
Agent (as
amended, supplemented or otherwise modified from time to time, the
"Credit
Agreement")
|
Capitalized terms
used herein that are not otherwise defined herein shall
have the respective meanings ascribed thereto in the Credit
Agreement.
Pursuant to Section
2.4 of the Credit Agreement, the Borrower hereby
gives notice of its request to borrow Competitive Bid Loans in the aggregate
sum
of $____________on ____________, which borrowing shall consist of the
following:
|
Competitive |
Amount |
Interest
Period |
The Borrower hereby
certifies that on the Borrowing Date set forth above,
and after giving effect to the Competitive Bid Loans requested
hereby:
(a) There shall
exist no Default or Event of Default.
(b) The representations
and warranties contained in the Credit Agreement
shall be true and correct, except those which are expressly specified to be
made
as of an earlier date.
IN EVIDENCE of
the foregoing, the undersigned has caused this Competitive
Bid Request to be duly executed on its behalf.
CVS
CORPORATION |
|
|
|
By: |
|
|
|
|
Name: |
|
|
Title: |
|
EXHIBIT G
2007 FIVE
YEAR
CREDIT AGREEMENT
EXHIBIT G
FORM OF INVITATION
TO BID
[Date]
To the Lenders
party
from time to time to the
captioned Credit Agreement
|
Re:
|
Five Year Credit Agreement,
dated as of March 12, 2007, by and among CVS Corporation, the Lenders
party thereto, the co-syndication agents named therein, the documentation
agent named therein, and The Bank of New York, as Administrative
Agent (as
amended, supplemented or otherwise modified from time to time, the
"Credit
Agreement")
|
Capitalized terms
used herein that are not otherwise defined herein shall
have the respective meanings ascribed thereto in the Credit
Agreement.
Pursuant to a Competitive
Bid Request, the Borrower gave notice of its
request to borrow Competitive Bid Loans in the aggregate sum of $____________
on
____________, which borrowing would consist of the following:
|
Competitive |
Amount |
Interest
Period |
The Lenders are
hereby invited to bid, pursuant to the terms and
conditions of the Credit Agreement, on such requested Competitive Bid
Loans.
THE BANK
OF NEW
YORK, as Administrative Agent |
|
|
|
By: |
|
|
|
|
Name: |
|
|
Title: |
|
EXHIBIT H
2007 FIVE
YEAR
CREDIT AGREEMENT
EXHIBIT H
FORM OF COMPETITIVE
BID
[Date]
The
Bank
of New York, as Administrative Agent |
One
Wall
Street |
New
York,
New York 10286 |
Attention:
|
______________, |
|
______________ |
|
Re:
|
Five Year Credit Agreement,
dated as of March 12, 2007, by and among CVS Corporation, the Lenders
party thereto, the co-syndication agents named therein, the documentation
agent named therein, and The Bank of New York, as Administrative
Agent (as
amended, supplemented or otherwise modified from time to time, the
"Credit
Agreement")
|
Capitalized terms
used herein that are not otherwise defined herein shall
have the respective meanings ascribed thereto in the Credit
Agreement.
In response to
a Competitive Bid Request, the undersigned Lender hereby
offers to make Competitive Bid Loan(s) in the aggregate sum of $____________on
____________, which borrowing would consist of the following:
|
Competitive |
|
|
Interest |
Competitive |
Amount |
Period |
Bid
Rate |
|
|
[fixed
rate] |
[LENDER] |
|
|
|
By: |
|
|
|
|
Name: |
|
|
Title: |
|
EXHIBIT I
2007 FIVE
YEAR
CREDIT AGREEMENT
EXHIBIT I
FORM OF COMPETITIVE
BID ACCEPT/REJECT LETTER
[Date]
The
Bank
of New York, as Administrative Agent |
One
Wall
Street |
New
York,
New York 10286 |
Attention:
|
______________, |
|
______________ |
|
Re:
|
Five Year Credit Agreement,
dated as of March 12, 2007, by and among CVS Corporation, the Lenders
party thereto, the co-syndication agents named therein, the documentation
agent named therein, and The Bank of New York, as Administrative
Agent (as
amended, supplemented or otherwise modified from time to time, the
"Credit
Agreement")
|
Capitalized terms
used herein that are not otherwise defined herein shall
have the respective meanings ascribed thereto in the Credit
Agreement.
Pursuant to Section
2.4(d) of the Credit Agreement, the Borrower hereby
gives notice of its acceptance of the following Competitive Bids:
and its rejection
of all
other Competitive Bids, in each case made pursuant to the Competitive Bid
Request, dated _______________.
IN EVIDENCE of
the foregoing, the undersigned has caused this Competitive
Bid Accept/Reject Letter to be duly executed on its behalf.
CVS
CORPORATION |
|
|
|
By: |
|
|
|
|
Name: |
|
|
Title: |
|
EXHIBIT J
2007 FIVE
YEAR
CREDIT AGREEMENT
EXHIBIT J
FORM OF LETTER
OF
CREDIT REQUEST
[Date]
The
Bank
of New York, as Administrative Agent |
One
Wall
Street |
New
York,
New York 10286 |
Attention:
|
______________, |
|
______________ |
|
Re:
|
Five Year Credit Agreement,
dated as of March 12, 2007, by and among CVS Corporation, the Lenders
party thereto, the co-syndication agents named therein, the documentation
agent named therein, and The Bank of New York, as Administrative
Agent (as
amended, supplemented or otherwise modified from time to time, the
“Credit
Agreement”)
|
Capitalized terms
used herein that are not otherwise defined herein shall
have the respective meanings ascribed thereto in the Credit
Agreement.
Pursuant to Section
2.8(b) of the Credit Agreement, the Borrower hereby
gives notice of its request for the issuance by the Issuer of a Letter of Credit
for the account of the Borrower and for the benefit of ____________________
on
_______________ in connection with ___________________in the maximum amount
of $
_____________. A drawing may be made under such Letter of Credit under the
following conditions: _______________________________________.
The Borrower hereby
certifies that on the above requested date of
issuance of such Letter of Credit, and after giving effect to the issuance
of
such Letter of Credit:
(a) There shall
exist no Default or Event of Default.
(b) The representations
and warranties contained in the Credit Agreement
shall be true and correct, except those which are expressly specified to be made
as of an earlier date.
IN EVIDENCE of
the foregoing, the undersigned has caused this Letter of
Credit Request to be duly executed on its behalf.
CVS
CORPORATION |
|
|
|
By: |
|
|
|
|
Name: |
|
|
Title: |
|
364
DAY
CREDIT AGREEMENT
by
and
among
CVS
CORPORATION,
THE
LENDERS PARTY HERETO,
LEHMAN
COMMERCIAL PAPER INC. and
WACHOVIA
BANK, NATIONAL ASSOCIATION,
as
Co-Syndication Agents,
and
THE
BANK
OF NEW YORK,
as
Administrative Agent
Dated
as
of March 12, 2007
BNY
CAPITAL MARKETS, INC. and BANC OF AMERICA SECURITIES LLC
as
Co-Lead Arrangers and Joint Bookrunners
TABLE
OF
CONTENTS
1.
|
DEFINITIONS
AND PRINCIPLES OF CONSTRUCTION
|
1
|
|
1.1
|
Definitions
|
1
|
|
1.2
|
Principles
of Construction
|
17
|
2.
|
AMOUNT
AND TERMS OF LOANS
|
18
|
|
2.1
|
Revolving
Credit Loans
|
18
|
|
2.2
|
Swing
Line Loans
|
18
|
|
2.3
|
Notice
of Borrowing Revolving Credit Loans and Swing Line Loans
|
20
|
|
2.4
|
Competitive
Bid Loans and Procedure
|
21
|
|
2.5
|
Use
of Proceeds
|
23
|
|
2.6
|
Termination
or Reduction of Commitments
|
24
|
|
2.7
|
Prepayments
of Loans
|
24
|
|
2.8
|
Letter
of Credit Sub-facility
|
25
|
|
2.9
|
Letter
of Credit Participation
|
26
|
|
2.10
|
Absolute
Obligation with respect to Letter of Credit Payments
|
27
|
|
2.11
|
Notes
|
28
|
3.
|
PROCEEDS,
PAYMENTS, CONVERSIONS, INTEREST, YIELD PROTECTION AND
FEES
|
28
|
|
3.1
|
Disbursement
of the Proceeds of the Loans
|
28
|
|
3.2
|
Payments
|
29
|
|
3.3
|
Conversions;
Other Matters
|
30
|
|
3.4
|
Interest
Rates and Payment Dates
|
31
|
|
3.5
|
Indemnification
for Loss
|
32
|
|
3.6
|
Reimbursement
for Costs, Etc.
|
33
|
|
3.7
|
Illegality
of Funding
|
34
|
|
3.8
|
Option
to Fund; Substituted Interest Rate
|
34
|
|
3.9
|
Certificates
of Payment and Reimbursement
|
35
|
|
3.10
|
Taxes;
Net Payments
|
36
|
|
3.11
|
Fees
|
37
|
|
3.12
|
Letter
of Credit Participation Fee
|
38
|
|
3.13
|
Replacement
of Lender
|
38
|
4.
|
REPRESENTATIONS
AND WARRANTIES
|
39
|
|
4.1
|
Existence
and Power
|
39
|
|
4.2
|
Authority
|
39
|
|
4.3
|
Binding
Agreement
|
40
|
|
4.4
|
Litigation
|
40
|
|
4.5
|
No
Conflicting Agreements
|
40
|
|
4.6
|
Taxes
|
40
|
|
4.7
|
Compliance
with Applicable Laws; Filings
|
41
|
|
4.8
|
Governmental
Regulations
|
41
|
|
4.9
|
Federal
Reserve Regulations; Use of Proceeds
|
41
|
|
4.10
|
No
Misrepresentation
|
42
|
|
4.11
|
Plans
|
42
|
|
4.12
|
Environmental
Matters
|
42
|
|
4.13
|
Financial
Statements
|
43
|
5.
|
CONDITIONS
OF LENDING - FIRST LOANS AND LETTERS OF CREDIT ON THE FIRST BORROWING
DATE
|
43
|
|
5.1
|
Evidence
of Corporate Action
|
43
|
|
5.2
|
Notes
|
44
|
|
5.3
|
Opinion
of Counsel to the Borrower
|
44
|
6.
|
CONDITIONS
OF LENDING - ALL LOANS AND LETTERS OF CREDIT
|
44
|
|
6.1
|
Compliance
|
44
|
|
6.2
|
Requests
|
44
|
|
6.3
|
Loan
Closings
|
45
|
7.
|
AFFIRMATIVE
COVENANTS
|
45
|
|
7.1
|
Legal
Existence
|
45
|
|
7.2
|
Taxes
|
45
|
|
7.3
|
Insurance
|
45
|
|
7.4
|
Performance
of Obligations
|
45
|
|
7.5
|
Condition
of Property
|
46
|
|
7.6
|
Observance
of Legal Requirements
|
46
|
|
7.7
|
Financial
Statements and Other Information
|
46
|
|
7.8
|
Records
|
47
|
|
7.9
|
Authorizations
|
48
|
8.
|
NEGATIVE
COVENANTS
|
48
|
|
8.1
|
Subsidiary
Indebtedness
|
48
|
|
8.2
|
Liens
|
48
|
|
8.3
|
Dispositions
|
49
|
|
8.4
|
Merger
or Consolidation, Etc.
|
49
|
|
8.5
|
Acquisitions
|
49
|
|
8.6
|
Restricted
Payments
|
49
|
|
8.7
|
Limitation
on Upstream Dividends by Subsidiaries
|
50
|
|
8.8
|
Limitation
on Negative Pledges
|
51
|
|
8.9
|
Ratio
of Consolidated Indebtedness to Total Capitalization
|
51
|
|
8.10
|
Caremark
Merger
|
51
|
9.
|
DEFAULT
|
51
|
|
9.1
|
Events
of Default
|
51
|
|
9.2
|
Remedies
|
53
|
10.
|
AGENT
|
54
|
|
10.1
|
Appointment
|
54
|
|
10.2
|
Delegation
of Duties
|
55
|
|
10.3
|
Exculpatory
Provisions
|
55
|
|
10.4
|
Reliance
by Administrative Agent
|
55
|
|
10.5
|
Notice
of Default
|
56
|
|
10.6
|
Non-Reliance
|
56
|
|
10.7
|
Administrative
Agent in Its Individual Capacity
|
57
|
|
10.8
|
Successor
Administrative Agent
|
57
|
|
10.9
|
Co-Syndication
Agents
|
58
|
11.
|
OTHER
PROVISIONS
|
58
|
|
11.1
|
Amendments,
Waivers, Etc.
|
58
|
|
11.2
|
Notices
|
59
|
|
11.3
|
No
Waiver; Cumulative Remedies
|
60
|
|
11.4
|
Survival
of Representations and Warranties
|
60
|
|
11.5
|
Payment
of Expenses and Taxes; Indemnified Liabilities
|
61
|
|
11.6
|
Lending
Offices
|
61
|
|
11.7
|
Successors
and Assigns
|
61
|
|
11.8
|
Counterparts
|
65
|
|
11.9
|
Set-off
and Sharing of Payments
|
65
|
|
11.10
|
Indemnity
|
66
|
|
11.11
|
Governing
Law
|
67
|
|
11.12
|
Severability
|
67
|
|
11.13
|
Integration
|
67
|
|
11.14
|
Treatment
of Certain Information
|
67
|
|
11.15
|
Acknowledgments
|
68
|
|
11.16
|
Consent
to Jurisdiction
|
69
|
|
11.17
|
Service
of Process
|
69
|
|
11.18
|
No
Limitation on Service or Suit
|
69
|
|
11.19
|
WAIVER
OF TRIAL BY JURY
|
69
|
|
11.20
|
Effective
Date
|
70
|
|
11.21
|
Patriot
Act Notice
|
70
|
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
|
Exhibit
|
F
|
Form
of Competitive Bid Request
|
Exhibit
|
G
|
Form
of Invitation to Bid
|
Exhibit
|
H
|
Form
of Competitive Bid
|
Exhibit
|
I
|
Form
of Competitive Bid Accept/Reject Letter
|
Exhibit
|
J
|
Form
of Letter of Credit Request
|
364
DAY CREDIT AGREEMENT,
dated
as of March 12, 2007, by and among CVS
CORPORATION,
a
Delaware corporation (the “Borrower”),
the
Lenders party hereto from time to time (each a “Lender”
and,
collectively, the “Lenders”),
LEHMAN
COMMERCIAL PAPER INC.
and
WACHOVIA
BANK, NATIONAL ASSOCIATION,
as
co-syndication agents (in such capacity, each a “Co-Syndication
Agent”),
and
THE
BANK OF NEW YORK (“BNY”),
as
administrative agent for the Lenders (in such capacity, the “Administrative
Agent”).
1.
|
DEFINITIONS
AND PRINCIPLES OF CONSTRUCTION
|
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
Revolving Credit 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.
“Aggregate
Commitment Amount”:
at any
time, the sum of the Commitment Amounts of the Lenders at such time under this
Agreement.
“Aggregate
Credit Exposure”:
at any
time, the sum at such time of (a) the aggregate Committed Credit Exposure of
the
Lenders at such time under this Agreement and (b) the aggregate outstanding
principal balance of all Competitive Bid Loans at such time under this
Agreement.
“Agreement”:
this
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 equal to the greater of (a) the BNY Rate in effect on
such
day, or (b) 0.50% plus the Federal Funds Effective Rate (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%) in effect on such day.
“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”, (iii)
with respect to the Facility Fee, the applicable percentage set forth below
in
the column entitled “Facility Fee”, (iv) with respect to the Letter of Credit
Participation Fee, the applicable percentage set forth below in the column
entitled “Participation Fee”, and (v) with respect to the Utilization Fee, the
applicable percentage set forth below in the column entitled “Utilization Fee”,
in each case opposite the applicable Pricing Level:
Pricing
Level
|
ABR
Advances
|
Eurodollar
Advances
|
Facility
Fee
|
Participation
Fee
|
Utilization
Fee
|
Pricing
Level I
|
0%
|
0.170%
|
0.030%
|
0.170%
|
0.050%
|
Pricing
Level II
|
0%
|
0.210%
|
0.040%
|
0.210%
|
0.050%
|
Pricing
Level III
|
0%
|
0.250%
|
0.050%
|
0.250%
|
0.050%
|
Pricing
Level IV
|
0%
|
0.290%
|
0.060%
|
0.290%
|
0.100%
|
Pricing
Level V
|
0%
|
0.320%
|
0.080%
|
0.320%
|
0.100%
|
Pricing
Level VI
|
0%
|
0.445%
|
0.105%
|
0.445%
|
0.100%
|
Pricing
Level VII
|
0%
|
0.725%
|
0.150%
|
0.725%
|
0.100%
|
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 Moody’s 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.
“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.
“Benefited
Lender”:
as
defined in Section 11.9(b).
“BNY”:
as
defined in the preamble.
“BNY
Rate”:
a rate
of interest per annum equal to the rate of interest publicly announced in New
York City by BNY from time to time as its prime commercial lending rate, such
rate to be adjusted automatically (without notice) on the effective date of
any
change in such publicly announced rate.
“Borrower”:
as
defined in the preamble.
“Borrowing
Date”:
(i) in
respect of Revolving Credit Loans, any Domestic Business Day or Eurodollar
Business Day, as the case may be, on which the Lenders shall make Revolving
Credit Loans pursuant to a Borrowing Request or pursuant to a Mandatory
Borrowing, (ii) in respect of Competitive Bid Loans, any Domestic Business
Day
on which a Lender shall make a Competitive Bid Loan pursuant to a Competitive
Bid Request, (iii) in respect of Swing Line Loans, any Domestic Business Day
on
which the Swing Line Lender shall make a Swing Line Loan pursuant to a Borrowing
Request and (iv) in respect of Letters of Credit, any Domestic Business Day
on
which the Issuer shall issue a Letter of Credit pursuant to a Letter of Credit
Request.
“Borrowing
Request”:
a
request for Revolving Credit Loans or Swing Line Loans in the form of Exhibit
C.
“Caremark”:
Caremark Rx, Inc., a Delaware corporation.
“Caremark
Merger”:
the
merger of Caremark with and into Twain MergerSub Corp., with Twain MergerSub
Corp. continuing as the surviving company and a wholly owned subsidiary of
the
Borrower, pursuant to the Caremark Merger Agreement.
“Caremark
Merger Agreement”:
the
Agreement and Plan of Merger, dated as of November 1, 2006, among the Borrower,
Caremark and Twain MergerSub Corp., as amended as of January
16,
2007
(and as further amended, supplemented or otherwise modified from time to time
in
accordance with Section 8.10).
“Caremark
Merger Anticipatory Commercial Paper”:
commercial paper issued by the Borrower under the Commercial Paper Increase
prior to and in anticipation of the closing of the Caremark Merger to finance
in
part the consideration paid to the Caremark shareholders in connection with
the
Caremark Merger, including any dividends paid to the Caremark shareholders,
provided
that (a)
such commercial paper shall mature no later than 60 days following the initial
issuance thereof and (b) if the Caremark Merger has not been consummated prior
to such maturity, the Borrower shall not have rolled over such commercial
paper.
“Caremark
Merger Effective Date”: the
date
on which the Caremark Merger shall have become effective pursuant to the
Caremark Merger Agreement.
“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.
“Commercial
Paper Increase”:
the
increase, to the extent in excess of $4.0 billion, in the Borrower’s commercial
paper program for the purpose, among other things, of providing for the short
term financing of the Caremark Merger.
“Commitment”:
in
respect of any Lender, such Lender’s undertaking to make Revolving Credit Loans,
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 Sections 2.6 and 11.7(c).
“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 commencing on the Effective Date and ending on the Commitment Termination
Date, or on such earlier date as all of the Commitments shall have been
terminated in accordance with the terms hereof.
“Commitment
Termination Date”:
the
earliest of (i) November 1, 2007, in the event that the Caremark Merger
Effective Date has not occurred on or before November 1, 2007, (ii) March 10,
2008 and (iii) the date on which the Loans shall become due and payable, whether
by acceleration, notice of intention to prepay or otherwise.
“Committed
Credit Exposure”:
with
respect to any Lender at any time, the sum at such time of (a) the outstanding
principal balance of such Lender’s Revolving Credit Loans, (b) the Swing Line
Exposure of such Lender and (c) the Letter of Credit Exposure of such
Lender.
“Compensatory
Interest Payment”:
as
defined in Section 3.4(c).
“Competitive
Bid”:
an
offer by a Lender, in the form of Exhibit H, to make one or more Competitive
Bid
Loans.
“Competitive
Bid Accept/Reject Letter”:
a
notification made by the Borrower pursuant to Section 2.4(d) in the form of
Exhibit I.
“Competitive
Bid Loan”:
as
defined in Section 2.4(a).
“Competitive
Bid Rate”:
as to
any Competitive Bid made by a Lender pursuant to Section 2.4(b), the fixed
rate
of interest (which shall be expressed in the form of a decimal to no more than
four decimal places) offered by such Lender and accepted by the
Borrower.
“Competitive
Bid Request”:
a
request by the Borrower, in the form of Exhibit F, for Competitive
Bids.
“Competitive
Interest Period”:
as to
any Competitive Bid Loan, the period commencing on the date of such Competitive
Bid Loan and ending on the date requested in the Competitive Bid Request with
respect thereto, which shall not be earlier than 3 days after the date of such
Competitive Bid Loan or later than 180 days after the date of such Competitive
Bid Loan, provided
that
if
any Competitive Interest Period would end on a day other than a Domestic
Business Day, such Interest Period shall be extended to the next succeeding
Domestic Business Day, unless such next succeeding Domestic Business Day would
be a date on or after the Commitment Termination Date, in which case such
Competitive Interest Period shall end on the next preceding Domestic Business
Day. Interest shall accrue from and including the first day of a Competitive
Interest Period to but excluding the last day of such Competitive Interest
Period.
“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 Revolving
Credit Loan into another Type of Revolving Credit Loan.
“Costs”:
as
defined in Section 3.6.
“Co-Syndication
Agents”:
as
defined in the preamble.
“Credit
Exposure”:
with
respect to any Lender at any time, the sum at such time of (a) the Committed
Credit Exposure of such Lender at such time under this Agreement and (b) the
outstanding principal balance of all Competitive Bid Loans of such Lender at
such time under this Agreement.
“Credit
Parties”
means
the Administrative Agent, the Co-Syndication Agents, the Swing Line Lender,
the
Issuer and the Lenders.
“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:
(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
Moody’s.
“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.
“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 Revolving Credit 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 Interest Period,
all pursuant to and in accordance with Section 2.1 or 3.3.
“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 2.3 or Section 3.3 and ending one, two, three or six
months 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 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 Interest Period into another
calendar month, in which event such Interest Period shall end on the Eurodollar
Business Day immediately preceding such day; and
(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 Interest Period), such Interest
Period shall end on the last Eurodollar Business Day of such latter calendar
month.
“Eurodollar
Rate”:
with
respect to each Eurodollar Advance and as determined by the Administrative
Agent, the rate of interest per annum (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%) equal to a fraction, the numerator of which is the rate per annum
quoted by BNY at approximately 11:00 A.M. (or as soon thereafter as practicable)
two Eurodollar Business Days prior to the first day of such Interest Period
to
leading banks in the interbank eurodollar market as the rate at which BNY is
offering Dollar deposits in an amount approximately equal to its Commitment
Percentage of such Eurodollar Advance and having a period to maturity
approximately equal to the Interest Period applicable to such Eurodollar
Advance, and the denominator of which is an amount equal to 1.00 minus
the
aggregate of the then stated maximum rates during such Interest Period of all
reserve requirements (including marginal, emergency, supplemental and special
reserves), expressed as a decimal, established by the Board of Governors of
the
Federal Reserve System and any other banking authority to which BNY and other
major United States money center banks are subject, in respect of eurocurrency
liabilities.
“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.
“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 BNY, 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 BNY, 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., Lehman Brothers Inc. and
Wachovia Bank, National Association, as co-syndication agents, KeyBank National
Association, as documentation agent, and BNY, as administrative agent, as the
same may be amended, supplemented, replaced or otherwise modified from time
to
time.
“Expiration
Date”:
the
first date, occurring on or after the date the Commitments shall have terminated
or been terminated in accordance herewith, upon which there shall be no Loans
or
Letters of Credit outstanding.
“Facility
Fee”:
as
defined in Section 3.11(a).
“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 agreement, (d) indebtedness
arising under acceptance facilities and the amount available to be drawn under
all letters of credit (excluding for purposes of Sections 8.1 and 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 (a) - (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 items (a) - (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) demand 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 Swing
Line
Loan, the day on which the outstanding principal balance of such Swing Line
Loan
shall become due and payable in accordance with Section 2.2(a), (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, (iv) as to any Competitive Bid Loan in respect of which the
Borrower has selected a Competitive Interest Period of 90 days or less the
last
day of such Competitive Interest Period and (v) as to any Eurodollar Advance
or
Competitive Bid Loan in respect of which the Borrower has selected an Interest
Period greater than three months or 90 days, as the case may be, the last day
of
the third month or the 90th day, as the case may be, of such Interest Period
and
the last day of such Interest Period.
“Interest
Period”:
a
Eurodollar Interest Period, a Swing Line Interest Period or a Competitive
Interest Period, as the case may be.
“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.
“Invitation
to Bid”:
an
invitation by the Administrative Agent to the Lenders to make Competitive Bids
in the form of Exhibit G.
“issue”
or “issuance”:
when
used with respect to a Letter of Credit, shall be deemed to include any increase
in the amount of such Letter of Credit.
“Issuer”:
BNY.
“Lender”:
as
defined in the preamble; such term to also include the Swing Line Lender and
the
Issuer where the context hereof requires or permits such inclusion.
“Letter
of Credit”:
as
defined in Section 2.8.
“Letter
of Credit Commitment”:
the
commitment of the Issuer to issue Letters of Credit in accordance with the
terms
hereof in an aggregate outstanding face amount not exceeding $150,000,000 (or,
if less, the Aggregate Commitment Amount) at any time, as the same may be
reduced pursuant to Section 2.6.
“Letter
of Credit Exposure”:
at any
time, (a) in respect of all Lenders, the sum, without duplication, of (i) the
maximum aggregate amount which may be drawn under all unexpired Letters of
Credit at such time (whether the conditions for drawing thereunder have or
may
be satisfied), (ii) the aggregate amount, at such time, of all unpaid drafts
(which have not been dishonored) drawn under all Letters of Credit, and (iii)
the aggregate unpaid principal amount of the Reimbursement Obligations at such
time, and (b) in respect of any Lender, an amount equal to such Lender’s
Commitment Percentage at such time multiplied by the amount determined under
clause (a) of this definition.
“Letter
of Credit Participation”:
with
respect to each Lender, its obligations to the Issuer under Section
2.9.
“Letter
of Credit Participation Fee”:
as
defined in Section 3.12.
“Letter
of Credit Request”:
a
request in the form of Exhibit J.
“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”:
a
Revolving Credit Loan, a Competitive Bid Loan or a Swing Line Loan, as the
case
may be.
“Loan
Documents”:
this
Agreement and, upon the execution and delivery thereof, the Notes, if any,
and
the Reimbursement Agreements.
“Loans”:
the
Revolving Credit Loans, the Competitive Bid Loans and the Swing Line
Loans.
“Mandatory
Borrowing”:
as
defined in Section 2.2(b).
“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, the Issuer or any Lender to enforce the
Loan Documents.
“Moody’s”:
Moody’s
Investors Service, Inc.
“Multiemployer
Plan”:
a
Pension Plan which is a multiemployer plan as defined in Section 4001(a)(3)
of
ERISA.
“Negotiated
Rate”:
with
respect to each Swing Line Loan, the rate per annum agreed to in writing by
the
Borrower and the Swing Line Lender as the interest rate which such Swing Line
Loan shall bear.
“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 11.22.
“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
or Pricing Level VI, 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) Moody’s 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) Moody’s 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) Moody’s 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) Moody’s 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) Moody’s 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) Moody’s 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 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.
“Principal
Office”:
from
time to time, the principal office of BNY, located on the date hereof in New
York, New York.
“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.
“Reimbursement
Agreement”:
as
defined in Section 2.8(b).
“Reimbursement
Obligations”:
all
obligations and liabilities of the Borrower due and to become due (a) under
the
Reimbursement Agreements and (b) hereunder in respect of Letters of
Credit.
“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.
“Required
Lenders”:
(a) at
any time prior to the Commitment Termination Date or such earlier date as all
of
the Commitments shall have terminated or been terminated in accordance herewith,
Lenders having Commitment Amounts equal to or more than 51% of the Aggregate
Commitment Amount, 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.
“Revolving
Credit Loans”: as
defined in Section 2.1(a).
“S&P”:
Standard & Poor’s, a division of The McGraw-Hill Companies,
Inc.
“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.
“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, 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.
“Swing
Line Commitment”:
the
commitment of the Swing Line Lender to make Swing Line Loans in accordance
with
the terms hereof in an aggregate outstanding principal amount not exceeding
$100,000,000 (or, if less, the Aggregate Commitment Amount) at any time, as
the
same may be reduced pursuant to Section 2.6.
“Swing
Line Commitment Period”:
the
period from the Effective Date to, but excluding, the Swing Line Termination
Date.
“Swing
Line Exposure”:
at any
time, in respect of any Lender, an amount equal to the aggregate principal
balance of Swing Line Loans at such time multiplied by such Lender’s Commitment
Percentage at such time.
“Swing
Line Interest Period”:
as to
any Swing Line Loan, the period commencing on the date of such Swing Line loan
and ending on the date set forth by the Borrower in the Borrowing Request with
respect to such Swing Line Loan, provided
that
the
last day of any Swing Line Interest Period shall not be earlier than one day
after the date of such Swing Line Loan or later than 7 days after the date
of
such Swing Line Loan and in no event later than the Swing Line Termination
Date,
and provided
further that
if
any Swing Line Interest Period would end on a day other than a Domestic Business
Day, such Interest Period shall be extended to the next succeeding Domestic
Business Day.
“Swing
Line Lender”:
BNY.
“Swing
Line Loan”
and
“Swing
Line Loans”:
as
defined in Section 2.2(a).
“Swing
Line Maturity Date”:
as
defined in Section 2.2(a).
“Swing
Line Participation Amount”:
as
defined in Section 2.2(c).
“Swing
Line Termination Date”:
the
date which is 7 Domestic Business Days prior to the Commitment Termination
Date.
“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.
“2007
Bridge Credit Agreement”:
the 364
Day Credit Agreement, dated as of March, 2007, by and among the Borrower, the
lenders party thereto, Morgan Stanley Senior Funding, Inc., as syndication
agent, and Lehman Commercial Paper Inc., as administrative agent, as the same
may be amended, supplemented, replaced or otherwise modified from time to
time.
“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, Lehman Commercial Paper Inc. and Wachovia
Bank, National Association, as co-syndication agents, Morgan Stanley 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.
“Type”:
with
respect to any Revolving Credit Loan, the characteristic of such Loan as an
ABR
Advance or a Eurodollar Advance, each of which constitutes a Type of Revolving
Credit Loan.
“Unqualified
Amount”:
as
defined in Section 3.4(c).
“Upstream
Dividends”:
as
defined in Section 8.7.
“Utilization
Fee”:
as
defined in Section 3.11(b).
|
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.
(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.
2.
|
AMOUNT
AND TERMS OF LOANS
|
|
2.1
|
Revolving
Credit Loans
|
(a) Subject
to the terms and conditions hereof, each Lender severally (and not jointly)
agrees to make loans under this Agreement (each a “Revolving
Credit Loan”
and,
collectively with each other Revolving Credit Loan of such Lender and/or with
each Revolving Credit Loan of each other Lender, the “Revolving
Credit Loans”)
to the
Borrower from time to time during the Commitment Period, during which period
the
Borrower may borrow, prepay and reborrow in accordance with the provisions
hereof. Immediately after making each Revolving Credit Loan and after giving
effect to all Swing Line Loans and Competitive Bid Loans repaid and all
Reimbursement Obligations paid on the same date, the Aggregate Credit Exposure
will not exceed the Aggregate Commitment Amount. With respect to each Lender,
at
the time of the making of any Revolving Credit Loan, the sum of (I) the
principal amount of such Lender’s Revolving Credit Loan constituting a part of
the Revolving Credit Loans to be made, (II) the aggregate principal balance
of
all other Revolving Credit Loans (exclusive of Revolving Credit Loans which
are
repaid with the proceeds of, and simultaneously with the incidence of, the
Revolving Credit Loans to be made) then outstanding from such Lender and (III)
the product of (A) such Lender’s Commitment Percentage and (B) the sum of (1)
the aggregate principal balance of all Swing Line Loans (exclusive of Swing
Line
Loans which are repaid with the proceeds of, and simultaneously with the
incurrence of, the Revolving Credit Loans to be made) then outstanding and
(2)
the Letter of Credit Exposure of all Lenders, will not exceed the Commitment
of
such Lender at such time. At the option of the Borrower, indicated in a
Borrowing Request, Revolving Credit Loans may be made as ABR Advances or
Eurodollar Advances.
(b) The
aggregate outstanding principal balance of all Revolving Credit Loans shall
be
due and payable on the Commitment Termination Date or on such earlier date
upon
which all of the Commitments shall have been terminated in accordance with
Section 2.6.
(a) Subject
to the terms and conditions hereof, the Swing Line Lender agrees to make loans
under this Agreement (each a “Swing
Line Loan”
and,
collectively, the “Swing
Line Loans”)
to the
Borrower from time to time during the Swing Line Commitment Period.
Swing
Line Loans (i) may be repaid and reborrowed in accordance with the provisions
hereof, (ii) shall not, immediately after giving effect thereto, result in
the
Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii)
shall not, immediately after giving effect thereto, result in the aggregate
outstanding principal balance of all Swing Line Loans exceeding the Swing Line
Commitment. The Swing Line Lender shall not be obligated to make any Swing
Line
Loan at a time when any Lender shall be in default of its obligations under
this
Agreement unless the Swing Line Lender has entered into arrangements
satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk
with respect to such defaulting Lender’s participation in such Swing Line Loan.
The Swing Line Lender will not make a Swing Line Loan if the Administrative
Agent, or any Lender by notice to the Swing Line Lender and the Borrower no
later than one Domestic Business Day prior to the Borrowing Date with respect
to
such Swing Line Loan, shall have determined that the conditions set forth in
Sections 5 and/or 6, as applicable, have not been satisfied and such conditions
remain unsatisfied as of the requested time of the making of such Loan. Each
Swing Line Loan shall be due and payable on the day (the “Swing
Line Maturity Date”)
being
the earliest of the last day of the Swing Line Interest Period applicable
thereto, the date on which the Swing Line Commitment shall have been terminated
in accordance with Section 2.6, and the date on which the Loans shall become
due
and payable pursuant to the provisions hereof, whether by acceleration or
otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate
applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing
Line Loans at its office designated in Section 11.2 by crediting such proceeds
to an account of the Borrower maintained with the Swing Line
Lender.
(b) On
any
Domestic Business Day, the Swing Line Lender may, in its sole discretion, give
notice to the Lenders and the Borrower that such outstanding Swing Line Loan
shall be funded with a borrowing of Revolving Credit Loans (provided
that
such notice shall be deemed to have been automatically given upon the occurrence
of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in
which
case a borrowing of Revolving Credit Loans made as ABR Advances (each such
borrowing, a “Mandatory
Borrowing”),
shall
be made by all Lenders pro
rata
based on
each such Lender’s Commitment Percentage on the Domestic Business Day
immediately succeeding the giving of such notice. The proceeds of each Mandatory
Borrowing shall be remitted directly to the Swing Line Lender to repay such
outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving
Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner
specified in the preceding sentence and on the date specified in writing by
the
Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory
Borrowing complies with the minimum amount for Loans otherwise required
hereunder, (ii) whether any condition specified in Section 6 is then
unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv)
the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal
amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at
such
time and (vii) the amount of the Commitments at such time.
(c) Upon
each
receipt by a Lender of notice from the Administrative Agent, such Lender shall
purchase unconditionally, irrevocably, and severally (and not jointly) from
the
Swing Line Lender a participation in the outstanding Swing Line Loans (including
accrued interest thereon) in an amount equal to the product of its Commitment
Percentage and the outstanding balance of the Swing Line Loans (each, a
“Swing
Line Participation Amount”).
Each
Lender shall also be liable for an amount equal to the product of its Commitment
Percentage and any amounts paid by the Borrower pursuant to this Section that
are subsequently rescinded or avoided, or must otherwise be restored or
returned. Such liabilities shall be unconditional and without regard to the
occurrence of any Default or Event of Default or the compliance by the Borrower
with any of its obligations under the Loan Documents.
(d) In
furtherance of Section 2.2(c), upon each receipt by a Lender of notice from
the
Administrative Agent, such Lender shall promptly make available to the
Administrative Agent for the account of the Swing Line Lender its Swing Line
Participation Amount at the office of the Administrative Agent specified in
Section 11.2, in lawful money of the United States and in immediately available
funds. The Administrative Agent shall deliver the payments made by each Lender
pursuant to the immediately preceding sentence to the Swing Line Lender promptly
upon receipt thereof in like funds as received. Each Lender hereby indemnifies
and agrees to hold harmless the Administrative Agent and the Swing Line Lender
from and against any and all losses, liabilities (including liabilities for
penalties), actions, suits, judgments, demands, costs and expenses resulting
from any failure on the part of such Lender to pay, or from any delay in paying,
the Administrative Agent any amount such Lender is required by notice from
the
Administrative Agent to pay in accordance with this Section (except in respect
of losses, liabilities or other obligations suffered by the Administrative
Agent
or the Swing Line Lender, as the case may be, resulting from the gross
negligence or willful misconduct of the Administrative Agent or the Swing Line
Lender, as the case may be), and such Lender shall pay interest to the
Administrative Agent for the account of the Swing Line Lender from the date
such
amount was due until paid in full, on the unpaid portion thereof, at a rate
of
interest per annum, whether before or after judgment, equal to (i) from the
date
such amount was due until the third day therefrom, the Federal Funds Effective
Rate, and (ii) thereafter, the Federal Funds Effective Rate plus
2%,
payable upon demand by the Swing Line Lender. The Administrative Agent shall
distribute such interest payments to the Swing Line Lender upon receipt thereof
in like funds as received.
(e) Whenever
the Administrative Agent is reimbursed by the Borrower for the account of the
Swing Line Lender for any payment in connection with Swing Line Loans and such
payment relates to an amount previously paid by a Lender pursuant to this
Section, the Administrative Agent will promptly remit such payment to such
Lender.
|
2.3
|
Notice
of Borrowing Revolving Credit Loans and Swing Line
Loans
|
The
Borrower agrees to notify the Administrative Agent (and with respect to a Swing
Line Loan, the Swing Line Lender), which notification shall be irrevocable,
no
later than (a) 12:00 Noon on the proposed Borrowing Date in the case of Swing
Line Loans, (b) 10:00 A.M. on the proposed Borrowing Date in the case of
Revolving Credit Loans to consist of ABR Advances and (c) 10:00 A.M. at least
two Eurodollar Business Days prior to the proposed Borrowing Date in the case
of
Revolving Credit Loans to consist of Eurodollar Advances. Each such notice
shall
specify (i) the aggregate amount requested to be borrowed under the Commitments
or the Swing Line Commitment, (ii) the proposed Borrowing Date, (iii) whether
a
borrowing of Revolving Credit Loans is to be of ABR Advances or Eurodollar
Advances, and the amount of each thereof (iv) the Eurodollar Interest Period
for
such Eurodollar Advances and (v)
the
Swing
Line Interest Period for, and the amount of, each Swing Line Loan. Each such
notice shall be promptly confirmed by delivery to the Administrative Agent
(and,
with respect to a Swing Line Loan, the Swing Line Lender) of a Borrowing
Request. Each Eurodollar Advance to be made on a Borrowing Date, when aggregated
with all amounts to be Converted to Eurodollar Advances on such date and having
the same Interest Period as such Eurodollar Advance, shall equal no less than
$10,000,000, or an integral multiple of $1,000,000 in excess thereof. Each
ABR
Advance made on each Borrowing Date shall equal no less than $5,000,000 or
an
integral multiple of $500,000 in excess thereof. Each Swing Line Loan made
on
each 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 telephone or otherwise, such notification to be confirmed by
fax
or other writing) of each such Borrowing Request. Subject to its receipt of
each
such notice from the Administrative Agent and subject to the terms and
conditions hereof, (A) 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 the Revolving Credit Loans requested
by the Borrower on such Borrowing Date and/or (B) the Swing Line Lender shall
make immediately available funds available to the Borrower on such Borrowing
Date in an amount equal to the Swing Line Loan requested by the
Borrower.
|
2.4
|
Competitive
Bid Loans and Procedure
|
(a) Subject
to the terms and conditions hereof, the Borrower may request competitive bid
loans under this Agreement (each a “Competitive
Bid Loan”)
during
the Commitment Period. In order to request Competitive Bids, the Borrower shall
deliver by hand or fax to the Administrative Agent a duly completed Competitive
Bid Request not later than 11:00 A.M., one Domestic Business Day before the
proposed Borrowing Date therefor. A Competitive Bid Request that does not
conform substantially to the format of Exhibit F may be rejected by the
Administrative Agent in the Administrative Agent’s reasonable discretion, and
the Administrative Agent shall promptly notify the Borrower of such rejection
by
fax and telephone. Each Competitive Bid Request shall specify (x) the proposed
Borrowing Date for the Competitive Bid Loans then being requested (which shall
be a Domestic Business Day) and the aggregate principal amount thereof and
(y)
the Competitive Interest Period or Interest Periods (which shall not exceed
ten
different Interest Periods in a single Competitive Bid Request), with respect
thereto (which may not end after the Domestic Business Day immediately preceding
the Commitment Termination Date). Promptly after its receipt of each Competitive
Bid Request that is not rejected as aforesaid, the Administrative Agent shall
invite by fax (in the form of Exhibit G) the Lenders to bid, on the terms and
conditions of this Agreement, to make Competitive Bid Loans pursuant to such
Competitive Bid Request.
(b) Each
Lender, in its sole and absolute discretion, may make one or more Competitive
Bids to the Borrower responsive to a Competitive Bid Request. Each Competitive
Bid by a Lender must be received by the Administrative Agent not later than
10:00 A.M. on the proposed Borrowing Date for the relevant Competitive Bid
Loan.
Multiple bids will be accepted by the Administrative Agent. Bids to make
Competitive Bid Loans that do not conform substantially to the format of Exhibit
H may be rejected by the Administrative Agent after conferring with, and upon
the instruction of, the Borrower, and the Administrative Agent shall
notify
the Lender making such nonconforming bid of such rejection as soon as
practicable. Each Competitive Bid shall be irrevocable and shall specify (x)
the
principal amount (which (1) shall be in a minimum principal amount of $5,000,000
or an integral multiple of $1,000,000 in excess thereof, and (2) may equal
the
entire principal amount requested by the Borrower) of the Competitive Bid Loan
or Competitive Bid Loans that the Lender is willing to make to the Borrower,
(y)
the Competitive Bid Rate or Rates at which the Lender is prepared to make such
Competitive Bid Loan or Competitive Bid Loans, and (z) the Competitive Interest
Period with respect to each such Competitive Bid Loan and the last day thereof.
If any Lender shall elect not to make a Competitive Bid, such Lender shall
so
notify the Administrative Agent by fax not later than 10:00 A.M. on the proposed
Borrowing Date therefor, provided
that
the
failure by any Lender to give any such notice shall not obligate such Lender
to
make any Competitive Bid Loan in connection with the relevant Competitive Bid
Request.
(c) With
respect to each Competitive Bid Request, the Administrative Agent shall (i)
notify the Borrower by fax by 11:00 A.M. on the proposed Borrowing Date with
respect thereto of each Competitive Bid made, the Competitive Bid Rate
applicable thereto and the identity of the Lender that made such Competitive
Bid, and (ii) send a list of all Competitive Bids to the Borrower for its
records as soon as practicable after completion of the bidding process. Each
notice and list sent by the Administrative Agent pursuant to this Section 2.4(c)
shall list the Competitive Bids in ascending yield order.
(d) The
Borrower may in its sole and absolute discretion, subject only to the provisions
of this Section 2.4(d), accept or reject any Competitive Bid made in accordance
with the procedures set forth in this Section 2.4, and the Borrower shall notify
the Administrative Agent by telephone, confirmed by fax in the form of a
Competitive Bid Accept/Reject Letter, whether and to what extent it has decided
to accept or reject any or all of such Competitive Bids not later than 12:00
Noon on the proposed Borrowing Date therefor, provided
that the
failure by the Borrower to give such notice shall be deemed to be a rejection
of
all such Competitive Bids. In connection with each acceptance of one or more
Competitive Bids by the Borrower:
(1) the
Borrower shall not accept a Competitive Bid made at a particular Competitive
Bid
Rate if the Borrower has decided to reject a Competitive Bid made at a lower
Competitive Bid Rate unless the acceptance of such lower Competitive Bid would
subject the Borrower to any requirement to withhold any taxes or deduct any
amount from any amounts payable under the Loan Documents, in which case the
Borrower may reject such lower Competitive Bid,
(2) the
aggregate amount of the Competitive Bids accepted by the Borrower shall not
exceed the principal amount specified in the Competitive Bid Request
therefor,
(3) if
the
Borrower shall desire to accept a Competitive Bid made at a particular
Competitive Bid Rate, it must accept all other Competitive Bids at such
Competitive Bid Rate, except for any such Competitive Bid the acceptance of
which would subject the Borrower to any requirement to withhold any taxes or
deduct any amount from any amounts payable under the Loan Documents,
provided
that if
the acceptance of all such other Competitive
Bids
would cause the aggregate amount of all such accepted Competitive Bids to exceed
the amount requested, then such acceptance shall be made pro rata in accordance
with the amount of each such Competitive Bid at such Competitive Bid
Rate,
(4) except
pursuant to clause (3) above, no Competitive Bid shall be accepted unless the
Competitive Bid Loan with respect thereto shall be in a minimum principal amount
of $5,000,000 or an integral multiple of $1,000,000 in excess thereof,
and
(5) no
Competitive Bid shall be accepted and no Competitive Bid Loan shall be made,
if
immediately after giving effect thereto, the Aggregate Credit Exposure would
exceed the Aggregate Commitment Amount.
(e) The
Administrative Agent shall promptly fax to each bidding Lender (with a copy
to
the Borrower) a Competitive Bid Accept/Reject Letter advising such Lender
whether its Competitive Bid has been accepted (and if accepted, in what amount
and at what Competitive Bid Rate), and each successful bidder so notified will
thereupon become bound, subject to the other applicable conditions hereof,
to
make the Competitive Bid Loan in respect of which each of its Competitive Bids
has been accepted by making immediately available funds available to the
Administrative Agent at its address set forth in Section 11.2 not later than
1:00 P.M. on the Borrowing Date for such Competitive Bid Loan in the amount
thereof.
(f) Anything
herein to the contrary notwithstanding, if the Administrative Agent shall elect
to submit a Competitive Bid in its capacity as a Lender, it shall submit such
bid directly to the Borrower not later than 9:30 A.M. on the relevant proposed
Borrowing Date.
(g) All
notices required by this Section shall be given in accordance with Section
11.2.
(h) Each
Competitive Bid Loan shall be due and payable on the last day of the Interest
Period applicable thereto or on such earlier date upon which the Loans shall
become due and payable pursuant to the provisions hereof, whether by
acceleration or otherwise.
The
Borrower agrees that the proceeds of the Loans and Letters of Credit shall
be
used solely for its general corporate purposes not inconsistent with the
provisions hereof, including as a backup for commercial paper issued by the
Borrower and to finance in part the consideration paid to the Caremark
shareholders in connection with the Caremark Merger, including any dividends
paid to the Caremark shareholders, provided
that
prior to the consummation of the Caremark Merger, the Borrower shall not be
permitted to borrow hereunder except in anticipation of the proposed direct
or
indirect financing in part of the consideration paid or to be paid to the
Caremark shareholders in connection with the Caremark Merger, including any
dividends paid or to be paid to the Caremark shareholders (which may include
a
borrowing for the purpose of refunding Caremark Merger Anticipatory Commercial
Paper). Notwithstanding anything to the contrary contained in any Loan Document,
the Borrower further agrees that no part of the proceeds of any Loan or Letter
of Credit 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 and (ii) to make a loan to
any
director or executive officer of the Borrower or any Subsidiary.
|
2.6
|
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, the Swing Line Commitment and the Letter of Credit Commitment,
at any time, or (ii) permanently reduce the Aggregate Commitment Amount, the
Swing Line Commitment or the Letter of Credit Commitment, in part at any time
and from time to time, provided
that (1)
each such partial reduction shall be in an amount equal to at least (A) in
the
case of the Aggregate Commitment Amount $10,000,000 or an integral multiple
of
$1,000,000 in excess thereof, (B) in the case of the Swing Line Commitment,
$1,000,000, or an integral multiple of $1,000,000 in excess thereof, and (C)
in
the case of the Letter of Credit Commitment, $1,000,000, or an integral multiple
of $1,000,000 in excess thereof, and (2) immediately after giving effect to
each
such reduction, (A) the Aggregate Commitment Amount shall equal or exceed the
Aggregate Credit Exposure, (B) the Swing Line Commitment shall equal or exceed
the aggregate outstanding principal balance of all Swing Line Loans and (C)
the
Letter of Credit Commitment shall equal or exceed the Letter of Credit Exposure
of all Lenders, and provided
further
that a
notice of termination of the Commitments, the Swing Line Commitment and the
Letter of Credit Commitment 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 or equity 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
Termination or Reductions.
If for
any reason the Caremark Merger Effective Date has not occurred on or before
November 1, 2007, the Commitments, the Swing Line Commitment and the Letter
of
Credit Commitment shall be automatically terminated and the Aggregate Commitment
Amount shall be reduced to zero on November 1, 2007.
(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.
(a) Voluntary
Prepayments.
The
Borrower may prepay Revolving Credit Loans, Competitive Bid Loans and Swing
Line
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, two Domestic Business Days,
in
the case of Competitive Bid Loans, or one Domestic Business Day, in the case
of
a prepayment of Swing Line Loans and 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, if
a notice of prepayment is given in connection with a conditional notice of
termination of the Commitments, the Swing Line Commitment and the Letter of
Credit Commitment as contemplated by Section 2.6, then such notice of prepayment
may be revoked if such notice of termination is revoked in accordance with
Section 2.6, 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 and Swing Line Loans)
or an integral multiple of $1,000,000 ($100,000 in the case of ABR Advances
and
Swing Line Loans) in excess thereof.
(b) Caremark
Merger Prepayment.
In the
event that the Borrower borrows Loans hereunder in anticipation of the proposed
direct or indirect financing in part of the consideration paid or to be paid
to
the Caremark shareholders in connection with the Caremark Merger, including
any
dividends paid or to be paid to the Caremark shareholders (which may include
a
borrowing for the purpose of refunding Caremark Merger Anticipatory Commercial
Paper),
and the
closing of the Caremark Merger does not occur within four Business Days after
such borrowing, then the Borrower shall prepay such Loans in full no later
than
the fifth Business Day following such borrowing.
(c) 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.
|
2.8
|
Letter
of Credit Sub-facility
|
(a) Subject
to the terms and conditions hereof and the payment by the Borrower to the Issuer
of such fees as the Borrower and the Issuer shall have agreed in writing, the
Issuer agrees, in reliance on the agreement of the other Lenders set forth
in
Section 2.9, to issue standby letters of credit (each a “Letter
of Credit”
and,
collectively, the “Letters
of Credit”)
during
the Commitment Period for the account of the Borrower, provided
that
immediately after the issuance of each Letter of Credit (i) the Letter of Credit
Exposure of all Lenders shall not exceed the Letter of Credit Commitment, and
(ii) the Aggregate Credit Exposure shall not exceed the Aggregate Commitment
Amount. Each Letter of Credit shall have an expiration date which shall be
not
later than the earlier to occur of one year from the date of issuance thereof
or
5 days prior to the Commitment Termination Date. No Letter of Credit shall
be
issued if the Administrative Agent, or any Lender by notice to the
Administrative Agent and the Issuer no later than 3:00 P.M. one Domestic
Business Day prior to the requested date of issuance of such Letter of Credit,
shall have determined that the conditions set forth in Sections 5 and/or 6,
as
applicable have not been satisfied.
(b) Each
Letter of Credit shall be issued for the account of the Borrower in support
of
an obligation of the Borrower in favor of a beneficiary who has requested the
Issuance of such Letter of Credit as a condition to a transaction entered into
in connection with the Borrower’s ordinary course of business. The Borrower
shall give the Administrative Agent a Letter of Credit Request for the issuance
of each Letter of Credit by 12:00 Noon at least two Domestic Business Days
prior
to the requested date of issuance. Such Letter of Credit Request shall be
accompanied by the Issuer’s standard Application and Agreement for Standby
Letter of Credit (each a “Reimbursement
Agreement”)
executed by the Borrower, and shall specify (i) the beneficiary of such Letter
of Credit and the obligations of the Borrower in respect of which such Letter
of
Credit is to be issued, (ii) the Borrower’s proposal as to the conditions under
which a drawing may be made under such Letter of Credit and the documentation
to
be required in respect thereof, (iii) the maximum amount to be available under
such Letter of Credit, and (iv) the requested date of issuance. Upon receipt
of
such Letter of Credit Request from the Borrower, the Administrative Agent shall
promptly notify the Issuer and each other Lender thereof. The Issuer shall,
on
the proposed date of issuance and subject to the other terms and conditions
of
this Agreement, issue the requested Letter of Credit. Each Letter of Credit
shall be in form and substance reasonably satisfactory to the Issuer, with
such
provisions with respect to the conditions under which a drawing may be made
thereunder and the documentation required in respect of such drawing as the
Issuer shall reasonably require. Each Letter of Credit shall be used solely
for
the purposes described therein.
(c) Each
payment by the Issuer of a draft drawn under a Letter of Credit shall give
rise
to the obligation of the Borrower to immediately reimburse the Issuer for the
amount thereof. The Issuer shall promptly notify the Borrower of such payment
by
the Issuer of a draft drawn under a Letter of Credit, but any failure to so
notify shall not in any manner affect the obligation of the Borrower to make
reimbursement when due. In lieu of such notice, if the Borrower has not made
reimbursement prior to the end of the Domestic Business Day when due, the
Borrower hereby authorizes the Issuer to deduct the amount of any such
reimbursement from such account(s) as the Borrower may from time to time
designate in writing to the Issuer, upon which the Issuer shall apply the amount
of such deduction to such reimbursement. If all or any portion of any
reimbursement obligation in respect of a Letter of Credit shall not be paid
when
due (whether at the stated maturity thereof, by acceleration or otherwise),
such
overdue amount shall bear interest, payable upon demand, at a rate per annum
equal to the Alternate Base Rate plus
the
Applicable Margin applicable to ABR Advances plus
2%, from
the date of such nonpayment until paid in full (whether before or after the
entry of a judgment thereon).
|
2.9
|
Letter
of Credit Participation
|
(a) Each
Lender hereby unconditionally and irrevocably, severally (and not jointly)
takes
an undivided participating interest in the obligations of the Issuer under
and
in connection with each Letter of Credit in an amount equal to such Lender’s
Commitment Percentage of the amount of such Letter of Credit. Each Lender shall
be liable to the Issuer for its Commitment Percentage of the unreimbursed amount
of any draft drawn and honored under each Letter of Credit. Each Lender shall
also be liable for an amount equal to the product of its Commitment Percentage
and any amounts paid by the Borrower pursuant to Sections 2.8 and 2.10 that
are
subsequently rescinded or avoided, or must otherwise be restored or returned.
Such
liabilities
shall be unconditional and without regard to the occurrence of any Default
or
Event of Default or the compliance by the Borrower with any of its obligations
under the Loan Documents.
(b) The
Issuer shall promptly notify the Administrative Agent, and the Administrative
Agent shall promptly notify each Lender (which notice shall be promptly
confirmed in writing), of the date and the amount of each draft paid under
each
Letter of Credit with respect to which full reimbursement payment shall not
have
been made by the Borrower as provided in Section 2.8(c), and forthwith upon
receipt of such notice, such Lender shall promptly make available to the
Administrative Agent for the account of the Issuer its Commitment Percentage
of
the amount of such unreimbursed draft at the office of the Administrative Agent
specified in Section 11.2 in lawful money of the United States and in
immediately available funds. The Administrative Agent shall distribute the
payments made by each Lender pursuant to the immediately preceding sentence
to
the Issuer promptly upon receipt thereof in like funds as received. Each Lender
shall indemnify and hold harmless the Administrative Agent and the Issuer from
and against any and all losses, liabilities (including liabilities for
penalties), actions, suits, judgments, demands, costs and expenses (including,
without limitation, reasonable attorneys’ fees and expenses) resulting from any
failure on the part of such Lender to provide, or from any delay in providing,
the Administrative Agent with such Lender’s Commitment Percentage of the amount
of any payment made by the Issuer under a Letter of Credit in accordance with
this clause (b) above (except in respect of losses, liabilities or other
obligations suffered by the Administrative Agent or the Issuer, as the case
may
be, resulting from the gross negligence or willful misconduct of the
Administrative Agent or the Issuer, as the case may be). If a Lender does not
make available to the Administrative Agent when due such Lender’s Commitment
Percentage of any unreimbursed payment made by the Issuer under a Letter of
Credit, such Lender shall be required to pay interest to the Administrative
Agent for the account of the Issuer on such Lender’s Commitment Percentage of
such payment at a rate of interest per annum equal to (i) from the date such
Lender should have made such amount available until the third day therefrom,
the
Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective
Rate plus
2%, in
each case payable upon demand by the Issuer. The Administrative Agent shall
distribute such interest payments to the Issuer upon receipt thereof in like
funds as received.
(c) Whenever
the Administrative Agent is reimbursed by the Borrower, for the account of
the
Issuer, for any payment under a Letter of Credit and such payment relates to
an
amount previously paid by a Lender in respect of its Commitment Percentage
of
the amount of such payment under such Letter of Credit, the Administrative
Agent
(or the Issuer, if such payment by a Lender was paid by the Administrative
Agent
to the Issuer) will promptly pay over such payment to such Lender.
|
2.10
|
Absolute
Obligation with respect to Letter of Credit
Payments
|
The
Borrower’s obligation to reimburse the Administrative Agent for the account of
the Issuer for each payment under or in respect of each Letter of Credit shall
be absolute and unconditional under any and all circumstances and irrespective
of any set-off, counterclaim or defense to payment which the Borrower may have
or have had against the beneficiary of such Letter
of
Credit, the Administrative Agent, the Issuer, the Swing Line Lender, any Lender
or any other Person, including, without limitation, any defense based on the
failure of any drawing to conform to the terms of such Letter of Credit, any
drawing document proving to be forged, fraudulent or invalid, or the legality,
validity, regularity or enforceability of such Letter of Credit, provided
that,
with respect to any Letter of Credit, the foregoing shall not relieve the Issuer
of any liability it may have to the Borrower for any actual damages sustained
by
the Borrower arising from a wrongful payment (or failure to pay) under such
Letter of Credit made as a result of the Issuer’s gross negligence or willful
misconduct.
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.
3.
|
PROCEEDS,
PAYMENTS, CONVERSIONS, INTEREST, YIELD PROTECTION AND
FEES
|
|
3.1
|
Disbursement
of the Proceeds of the Loans
|
The
Administrative Agent shall disburse the proceeds of the Loans (other than the
Swing Line Loans) at its office specified in Section 11.2 by crediting to the
Borrower’s general deposit account with the Administrative Agent the funds
received from each Lender. Unless the Administrative Agent shall have received
prior notice from a Lender (by telephone or otherwise, such notice to be
confirmed by fax or other writing) that such Lender will not make available
to
the Administrative Agent such Lender’s Commitment Percentage of the Revolving
Credit Loans, or the amount of any Competitive Bid 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, in
the case of a Revolving Credit Loan, 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. 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.
(a) Each
payment, including each prepayment, of principal and interest on the Loans
and
of the Facility Fee, the Utilization Fee and the Letter of Credit Participation
Fee (collectively, together with all of the other fees to be paid to the
Administrative Agent, the Lenders, the Issuer and the Swing Line Lender 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: (i)
Revolving Credit 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, (ii) Competitive Bid Loans shall be remitted by the Administrative
Agent in like funds as received to each applicable Lender and (iii) Swing Line
Loans shall be remitted by the Administrative Agent in like funds as received
to
the Swing Line Lender. Each payment of the Facility Fee and the Letter of Credit
Participation 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 Revolving Credit Loans. Each payment of the Utilization Fee payable to
the Lenders shall be promptly transmitted by the Administrative Agent in like
funds as received to each Lender in accordance with Section
3.11(b).
(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 or Competitive Interest Period) shall be extended to the next
Domestic Business Day or Eurodollar Business Day, as the case may be, and
(except with respect to payments in respect of the Facility Fee, the Utilization
Fee and the Letter of Credit Participation Fee) interest shall be payable at
the
applicable rate specified herein during such extension.
|
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 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 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 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 Sections 4, 5 or
6).
(d) Notwithstanding
any other provision of any Loan Document:
(i) if
the
Borrower shall have failed to elect a Eurodollar Advance under Section 2.3
or
this Section 3.3, as the case may be, in connection with any borrowing of new
Revolving Credit Loans or expiration of an Interest Period with respect to
any
existing Eurodollar Advance, the amount of the Revolving Credit 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,
(ii) the
Borrower shall not be permitted to select a Eurodollar Advance the Interest
Period in respect of which ends later than the Commitment Termination Date
or
such earlier date upon which all of the Commitments shall have been terminated
in accordance with Section 2.6, and
(iii) the
Borrower shall not be permitted to have more than 15 Eurodollar Advances and
Competitive Bid Loans, in the aggregate, outstanding at any one time, it being
understood and agreed that each borrowing of Eurodollar Advances or Competitive
Bid Loans pursuant to a single Borrowing Request or Competitive Bid Request,
as
the case may be, shall constitute the making of one Eurodollar Advance or
Competitive Bid Loan for the purpose of calculating such
limitation.
|
3.4
|
Interest
Rates and Payment Dates
|
(a) Prior
to Maturity.
Except
as otherwise provided in Sections 3.4(b) and 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
|
Revolving
Credit Loans constituting ABR Advances
|
Alternate
Base Rate applicable thereto plus
the Applicable Margin.
|
Revolving
Credit Loans constituting Eurodollar Advances
|
Eurodollar
Rate applicable thereto plus
the Applicable Margin.
|
Competitive
Bid Loans
|
Fixed
rate of interest applicable thereto accepted by the Borrower pursuant
to
Section 2.4(d).
|
Swing
Line Loans
|
Negotiated
Rate applicable thereto as provided in Section
2.2(a).
|
(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
the 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 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
Commitment Termination Date and, to the extent provided in Section 2.7(c),
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,
as soon as practicable, notify the Borrower and the Lenders of the effective
date and the amount of each change in the BNY 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, the Eurodollar Rate and
the Competitive 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 BNY 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 BNY Rate shall be
calculated on the basis of a 365/366-day year for the actual number of days
elapsed.
|
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 2.3 or 3.3, as the
case
may be, (ii) the Borrower shall fail to borrow a Competitive Bid Loan after
it
shall have accepted any offer with respect thereto in accordance with Section
2.4 or a Swing Line Loan after it shall have agreed to a Negotiated Rate with
respect thereto in accordance with Section 2.2(a), (iii) a Eurodollar Advance,
Competitive Bid Loan or Swing Line Loan shall be terminated for any reason
prior
to the last day of the Interest Period applicable thereto (other than the
termination of a Swing Line Loan resulting from a Mandatory Borrowing at a
time
when no Default or Event of Default shall exist), (iv) any repayment or
prepayment of the principal amount of a Eurodollar Advance, Competitive Bid
Loan
or Swing Line Loan is made for any reason on a date which is prior to the last
day of the Interest Period applicable thereto (other than the repayment or
prepayment of a Swing Line Loan resulting from a Mandatory Borrowing at a time
when
no
Default or Event of Default shall exist), or (v) the Borrower shall have revoked
a notice of prepayment or notice of termination of the Commitments, the Swing
Line Commitment and the Letter of Credit Commitment 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 2.6 or 2.7,
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 fund or maintain the funding of such Eurodollar
Advance, Competitive Bid Loan or Swing Line Loan, as the case may be, or
redeploying funds prepaid or repaid, in amounts which correspond to such
Eurodollar Advance, Competitive Bid Loan or Swing Line Loan, as the case may
be,
and any reasonable internal processing charge customarily charged by such Lender
in connection therewith.
|
3.6
|
Reimbursement
for Costs, Etc.
|
If
at any
time or from time to time there shall occur a Regulatory Change and the Issuer
or 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 the Issuer’s or such Lender’s capital or the capital of any Person
directly or indirectly owning or controlling the Issuer or such Lender (each
a
“Control
Person”),
or (B)
the asset value (for capital purposes) to the Issuer, such Lender or such
Control Person, as applicable, of the Reimbursement Obligations, or any
participation therein, or the Loans, or any participation therein, in any case
to a level below that which the Issuer, 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 the Issuer’s, 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 the Issuer, such Lender or such Control
Person, as applicable, to any tax (documentary, stamp or otherwise) with respect
to this Agreement, any Note, or any Reimbursement Agreement, or (iv) will change
the basis of taxation of payments to the Issuer, 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 the Issuer’s, such Lender’s or such Control
Person’s net income) then, in each such case, within ten days after demand by
the Issuer or such Lender, as applicable, the Borrower shall pay to the Issuer,
such Lender or such Control Person, as the case may be, such additional amount
or amounts as shall be sufficient to compensate the Issuer, 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 the Issuer’s, such Lender’s or such Control Person’s
compliance
during the term hereof with such Regulatory Change. The Issuer and 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).
|
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
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 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.
|
3.8
|
Option
to Fund; Substituted Interest
Rate
|
(a) Each
Lender has indicated that, if the Borrower requests a Swing Line Loan, a
Eurodollar Advance or a Competitive Bid Loan, such Lender may wish to purchase
one or more deposits in order to fund or maintain its funding of its Commitment
Percentage of such Eurodollar Advance or its Swing Line Loan or Competitive
Bid
Loan during the 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
Swing Line Loan, Eurodollar Advance or Competitive Bid Loan and any amounts
owing under Sections 3.5 and 3.6. The Swing Line Lender and each Lender shall
be
entitled to fund and maintain its funding of all or any part of each Swing
Line
Loan, Eurodollar Advance and Competitive Bid Loan in any manner it sees fit,
but
all such determinations hereunder shall be
made
as
if such Lender had actually funded and maintained its Commitment Percentage
of
each Eurodollar Advance or its Swing Line Loan or Competitive Bid Loan, as
the
case may be, during the applicable Interest Period through the purchase of
deposits in an amount equal to the amount of its Commitment Percentage of such
Eurodollar Advance or the amount of such Swing Line Loan or Competitive Bid
Loan, as the case may be, and having a maturity corresponding to such 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 2.3 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
telephone or otherwise, to be promptly confirmed in writing) of such
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
(or, subject to the terms and conditions hereof, Competitive Bid Loans), (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 (or, subject to
the
terms and conditions hereof, Competitive Bid Loans), and (C) any outstanding
Affected Advances shall be Converted, on the last day of the then current
Interest Period with respect thereto, to ABR Advances (or, subject to the terms
and conditions hereof, Competitive Bid Loans). 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 2.3 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.
|
3.9
|
Certificates
of Payment and Reimbursement
|
Each
Issuer and each Lender agrees, in connection with any request by it for payment
or reimbursement pursuant to Section 3.5 or 3.6, to provide the Borrower with
a
certificate, signed by an officer of the Issuer or such Lender, as the case
may
be, setting forth a description in reasonable detail of any such payment or
reimbursement. Each determination by the
Issuer
and each Lender of such payment or reimbursement shall be conclusive absent
manifest error.
(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 Issuer and the Lenders,
as
may be necessary in order that the actual amounts received by the Issuer and
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, the Issuer 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, the Issuer 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 withholding, as the case may be, and the Administrative
Agent in turn shall distribute copies thereof to the Issuer and each Lender.
If
any payment to the Issuer or any Lender under any Loan Document is or becomes
subject to any withholding, the Issuer or such Lender, as the case may be,
shall
(unless otherwise required by a Governmental Authority or as a result of any
law, rule, regulation, order or similar directive applicable to the Issuer
or
such Lender, as the case may be) 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 the Issuer or such Lender, as the case may be, in any
respect. In the event that the Issuer or any Lender determines that it received
a refund or credit for taxes paid by the Borrower under this Section, the Issuer
or such Lender, as the case may be, 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 the Issuer or such Lender, as the case may be, 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.
(a) 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 earlier to occur of the Caremark Merger Effective
Date and July 31, 2007 and ending on the Expiration 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 during which the
Facility Fee shall commence to accrue, and on the Expiration Date, at a rate
per
annum equal to the Applicable Margin of (a) prior to the Commitment Termination
Date or such earlier date upon which all of the Commitments shall have been
terminated in accordance with Section 2.6, the Commitment Amount of such Lender
(whether used or unused), and (b) thereafter, the sum of (i) the outstanding
principal balance of all Revolving Credit Loans of such Lender, (ii) such
Lender’s Swing Line Exposure and (iii) such Lender’s Letter of Credit Exposure.
Notwithstanding anything to the contrary contained in this Section, on and
after
the Commitment Termination Date, the Facility Fee shall be payable upon demand.
In addition, upon each reduction of the Aggregate Commitment Amount, the
Borrower shall pay the Facility Fee accrued on the amount of such reduction
through the date of such reduction. The Facility Fee shall be computed on the
basis of a 360-day year for the actual number of days elapsed.
(b) Utilization
Fee.
The
Borrower agrees to pay to the Administrative Agent for the account of each
Lender a fee (the “Utilization
Fee”)
for
each day during the period commencing on the Effective Date and ending on the
Expiration Date (or, if later, the date when the Committed Credit Exposure
of
such Lender is $0) that the sum of (i) the Aggregate Credit Exposure, (ii)
the
Aggregate Credit Exposure (as defined in the Existing
2004 Five Year Credit
Agreement), (iii) the Aggregate Credit Exposure (as defined in the Existing
2005
Five Year Credit Agreement), (iv) the Aggregate Credit Exposure (as defined
in
the Existing 2006 Five Year Credit Agreement) and (v) the Aggregate Credit
Exposure (as defined in the 2007 Five Year Credit Agreement) on such date
exceeds 50% of the sum of (i) the Aggregate Commitment Amount, (ii) the
Aggregate Commitment Amount (as defined in the Existing 2004 Five Year Credit
Agreement), (iii) the Aggregate Commitment Amount (as defined in the Existing
2005 Five Year Credit Agreement), (iv) the Aggregate Commitment Amount (as
defined in the Existing 2006 Five Year Credit Agreement) and (v) the Aggregate
Commitment Amount (as defined in the 2007 Five Year Credit Agreement) on such
date, payable on each Interest Payment Date (other than an Interest Payment
Date
applicable solely to Competitive Bid Loans) or if Letters of Credit are
outstanding, but no Revolving Credit Loans or Swing Line Loans are outstanding,
payable on each date that the Letter of Credit Participation Fee is payable,
at
a rate per annum equal to the Applicable Margin of the sum of (i) the Committed
Credit Exposure of such Lender, (ii) the Committed Credit Exposure (as defined
in the Existing 2004 Five Year Credit Agreement) of such Lender, (iii) the
Committed Credit Exposure (as defined in the Existing 2005 Five Year Credit
Agreement) of such Lender, (iv) the Committed Credit Exposure (as defined in
the
Existing 2006 Five Year Credit Agreement) and (v) the Committed Credit Exposure
(as defined in the 2007 Five Year Credit Agreement) of such Lender on such
date,
less
the
sum
of (i) the Utilization Fee (as defined in the Existing 2004 Five Year Credit
Agreement), (ii) the Utilization Fee (as defined in the Existing 2005 Five
Year
Credit Agreement), (iii) the Utilization Fee (as defined in the Existing 2006
Five Year Credit Agreement) and (iv) the Utilization Fee (as defined in the
2007
Five Year Credit Agreement), in each case payable to such Lender for such day.
Notwithstanding anything to the contrary contained in this Section, on and
after
the Commitment Termination Date, the Utilization Fee shall be payable upon
demand. The Utilization Fee shall be computed on the basis of a 360-day year
for
the actual number of days elapsed.
|
3.12
|
Letter
of Credit Participation Fee
|
The
Borrower agrees to pay to the Administrative Agent for the pro rata account
of
each Lender a fee (the “Letter
of Credit Participation Fee”)
with
respect to the Letters of Credit during the period commencing on the Effective
Date and ending on the Commitment Termination Date or, if later, the date when
the Letter of Credit Exposure of all Lenders is $0, 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 last date of such period, at a rate per annum
equal to the Applicable Margin of the average daily aggregate amount which
may
be drawn under the Letters of Credit during such period (whether or not the
conditions for drawing thereunder have or may be satisfied) multiplied by such
Lender’s Commitment Percentage. The Letter of Credit Participation Fee shall be
computed on the basis of a 360-day year for the actual number of days
elapsed.
|
3.13
|
Replacement
of Lender
|
If
the
Borrower is obligated to pay to any Lender any amount under Section 3.6 or
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”),
reasonably acceptable to the Swing Line Lender and the Issuer, 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 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,
the outstanding Loans, the Swing Line Exposure and the Letter of Credit Exposure
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 and Swing
Line Participation Amounts of the Replaced Lender, (B) an amount equal to all
drawings on all Letters of Credit that have been funded by (and not reimbursed
to) such Replaced Lender, together with all then unpaid interest with respect
thereto at such time, and (C) an amount equal to all accrued, but unpaid, fees
owing to the Replaced Lender, (b) to the Issuer, an amount equal to such
Replaced Lender’s Commitment Percentage of all drawings (which at such time
remain unpaid drawings) to the extent such amount was not funded by such
Replaced Lender, (c) to the Swing Line Lender, an amount equal to such Replaced
Lender’s Commitment Percentage of any Mandatory Borrowing to the extent such
amount was not funded by such Replaced Lender, and (d) 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.
4.
|
REPRESENTATIONS
AND WARRANTIES
|
In
order
to induce the Administrative Agent, the Lenders and the Issuer to enter into
this Agreement, the Lenders to make the Loans and the Issuer to issue Letters
of
Credit, the Borrower hereby makes the following representations and warranties
to the Administrative Agent, the Lenders and the Issuer:
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).
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 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.
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.
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 Merger is not a
transaction contemplated by any Loan Document for purposes of this clause
(b)).
|
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
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.
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.
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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.
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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.
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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 or
the
Letters of Credit has been or will be used, directly or indirectly, and whether
immediately, incidentally or ultimately, for a purpose which violates any law,
rule 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, neither the Issuer nor any 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 and the
issuance of each Letter of Credit, 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 or issuance of such Letter of Credit) 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 or Letter of Credit 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.
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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).
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.
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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
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.
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 30, 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 dates
and for the periods 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 30, 2006 to and including February 2,
2007
there was no Material Adverse change, including as a result of any change in
law, in the consolidated financial condition, operations, business or Property
of the Borrower and the Subsidiaries taken as a whole.
5.
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CONDITIONS
OF LENDING - FIRST LOANS AND LETTERS OF CREDIT ON THE FIRST BORROWING
DATE
|
In
addition to the requirements set forth in Section 6, the obligation of each
Lender on the first Borrowing Date to make one or more Revolving Credit Loans,
the Swing Line Lender to make one or more Swing Line Loans, the Issuer to issue
one or more Letters of Credit and any Lender to make a Competitive Bid Loan
are
subject to the fulfillment of the following conditions precedent prior to or
simultaneously with the Effective Date:
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 certificate of good
standing of the Secretary of State of the State of Delaware.
5.2 Notes
The
Administrative Agent shall have received a Note for each Lender that shall
have
requested one, executed by the Borrower.
5.3 Opinion
of Counsel to the Borrower
The
Administrative Agent shall have received:
(a)
an
opinion of Zenon Lankowsky,
counsel
to the Borrower, dated the Effective Date, and in the form of Exhibit D-1;
and
(b) an
opinion of Davis Polk & Wardwell, special counsel to the Borrower, dated the
Effective Date, and in the form of Exhibit D-2.
6.
|
CONDITIONS
OF LENDING - ALL LOANS AND LETTERS OF
CREDIT
|
The
obligation of each Lender on any Borrowing Date to make each Revolving Credit
Loan (other than a Revolving Credit Loan constituting a Mandatory Borrowing),
the Swing Line Lender to make each Swing Line Loan, the Issuer to issue each
Letter of Credit and any Lender to make a Competitive Bid Loan are subject
to
the fulfillment of the following conditions precedent:
6.1 Compliance
On
each
Borrowing Date, and after giving effect to the Loans to be made or the Letters
of Credit to be issued 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.
6.2 Requests
The
Administrative Agent shall have received either or both, as applicable, of
a
Borrowing Request or a Letter of Credit Request from the Borrower.
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, any Lender or the Issuer
on or before the applicable Borrowing Date shall have been so executed or
delivered on or before such Borrowing Date.
The
Borrower covenants and agrees that on and after the Effective Date and until
the
later to occur of (a) the Commitment Termination Date and (b) the payment in
full of the Loans, the Reimbursement Obligations, the Fees and all other sums
payable under the Loan Documents, the Borrower will:
7.1 Legal
Existence
Except
as
may otherwise be permitted by Sections 8.3 and 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.
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.
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.
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.
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.
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.
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
Sections 8.1 and 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
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.
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.
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.
The
Borrower covenants and agrees that on and after the Effective Date and until
the
later to occur of (a) the Commitment Termination Date and (b) the payment in
full of the Loans, the Reimbursement Obligations, the Fees and all other sums
which are payable under the Loan Documents, the Borrower will not:
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.
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.
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.
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.
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
Merger), provided
that
immediately before and after giving effect to each such Acquisition no Default
or Event of Default shall or would exist.
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.
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, 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 2004 Five Year Credit
Agreement, the Existing 2005 Five Year Credit Agreement, the Existing 2006
Five
Year Credit Agreement, the 2007 Bridge Credit Agreement and the 2007 Five Year
Credit Agreement).
8.8 Limitation
on Negative Pledges
Enter
into any agreement, other than (i) this Agreement, (ii) the 2007 Bridge Credit
Agreement, (iii) the 2007 Five Year Credit Agreement, (iv) any other credit
agreement that is substantially similar to this Agreement, and (v) 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.
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.
8.10 Caremark
Merger
(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 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 sellers under the Caremark
Merger Agreement to consummate the transactions contemplated by the Caremark
Merger Agreement without the consent of the Administrative Agent.
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 or any
reimbursement payment in respect of any Letter of Credit when due and payable;
or
(b) The
failure of the Borrower to make any payment of interest on any Loan or of any
Fee 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 Sections 2.5, 7.1 or in Section 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) An
Event
of Default (as defined in any Reimbursement Agreement) shall occur under any
Reimbursement Agreement; or
(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
(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 Article, (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 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.
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,
the Swing Line Commitment and the Letter of Credit Commitment have been
terminated and/or that all of the Loans, the Notes and the Reimbursement
Obligations 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, the Swing Line Commitment and the
Letter of Credit Commitment shall automatically terminate and all of the Loans,
the Notes and the Reimbursement Obligations 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, the Swing Line Commitment and the Letter of Credit
Commitment shall have been terminated or all of the Loans, the Notes and the
Reimbursement Obligations shall have been declared due and payable pursuant
to
the provisions of this Section, (i) the Borrower shall forthwith deposit an
amount equal to the Letter of Credit Exposure in a cash collateral account
with
and under the exclusive control of the Administrative Agent, and (ii) the
Administrative Agent, the Issuer and the Lenders agree, among themselves, that
any funds received from or on behalf of the Borrower under any Loan Document
by
the Issuer or any Lender (except funds received by the Issuer or any Lender
as a
result of a purchase from the Issuer or such Lender, as the case may be,
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, the Reimbursement Obligations and the other obligations
of
the Borrower under the Loan Documents in the following manner and order: (1)
first, to reimburse the Administrative Agent, the Issuer and the Lenders, in
that order, for any expenses due from the Borrower pursuant to the provisions
of
Section 11.5 and the Reimbursement Agreements, (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 and the Reimbursement
Obligations) payable by the Borrower to the Administrative Agent, the Issuer
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 and the Letter
of Credit Exposure of each Lender, of interest due on the Loans and the
Reimbursement Obligations, (5) fifth, to the payment, pro rata according to
the
sum of (A) the aggregate outstanding principal balance of the Loans of each
Lender plus
(B) the
aggregate outstanding balance of the Reimbursement Obligations of each Lender,
of the aggregate outstanding principal balance of the Loans and the aggregate
outstanding balance of the Reimbursement Obligations, 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 and the Reimbursement Obligations shall
have
been declared due and payable pursuant to the provisions of this Section 9.2,
the Administrative Agent upon the written request of the Required Lenders,
shall
proceed to enforce the Reimbursement Obligations and 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, the Issuer and each
Lender shall be entitled to take such action as the Required Lenders shall
deem
appropriate to enforce its rights under the Loan Documents.
10.1 Appointment
Each
Lender hereby irrevocably designates and appoints BNY as the Administrative
Agent of such Lender under the Loan Documents and each Lender irrevocably
authorizes the Administrative Agent to take such action on its behalf under
the
provisions of the Loan Documents and to exercise such powers and perform such
duties as are expressly delegated to the Administrative Agent by the terms
of
the Loan Documents, together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary contained in the Loan
Documents,
the Administrative Agent shall not have any duties or responsibilities except
those expressly set forth in the 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.
10.2 Delegation
of Duties
The
Administrative Agent may execute any of its duties under the 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.
10.3 Exculpatory
Provisions
None
of
the Administrative Agent or 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 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.
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 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.
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.
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 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.
10.7 Administrative
Agent in Its Individual Capacity
BNY
and
each Affiliate 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 or renewed by BNY and each Note
issued to BNY (if any), BNY 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, the Issuer and the Swing Line Lender, and the term
“Lender”
shall
include BNY.
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 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 Section 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.
10.9 Co-Syndication
Agents
The
Co-Syndication Agents shall have no duties or obligations under the Loan
Documents in their capacities as Co-Syndication Agents.
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
Revolving Credit Loan, any Note or any Reimbursement Obligation (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 any Reimbursement Obligation or
principal on any Revolving Credit Loan or any Note without the consent of each
Lender directly affected thereby, (vi) decrease or forgive the principal amount
of any Revolving Credit Loan, any Note or any Reimbursement Obligation 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, (xi) change the sharing provisions among Lenders without the
consent of each Lender, or (xii) extend the expiration date of a Letter of
Credit beyond the Commitment Termination Date without the consent of each
Lender. Notwithstanding the foregoing, no such amendment, supplement,
modification, waiver or consent shall (A) amend, modify or waive any provision
of Section 10 or otherwise change any of the rights or obligations of the
Administrative Agent, the Issuer or the Swing Line Lender under any Loan
Document without the written consent of the Administrative Agent, the Issuer
or
the Swing Line Lender, as the case may be, (B) change the Letter of Credit
Commitment, change the amount or the time of payment of the Letter of Credit
Commissions, or change any other term or provision which relates to the Letter
of Credit Commitment or the Letters of Credit without the written consent of
the
Issuer, (C) change the Swing Line Commitment, change the amount or the time
of
payment of the Swing Line Loans or interest thereon or change any other term
or
provision which relates to the Swing Line Commitment or the Swing Line Loans
without the written consent of the Swing Line Lender or (D) change the amount
or
the time of payment of any Competitive Bid Loan or interest thereon without
the
written
consent
of the Lender holding such Competitive Bid Loan. 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
and
the Reimbursement Obligations. 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.
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:
If
to
the Borrower:
CVS
Corporation
1
CVS
Drive
Woonsocket,
Rhode Island 02895
Attention: Carol
A.
DeNale
Treasury
Department
Facsimile: (401)
770-5768
Telephone: (401)
770-4407
with
a
copy, in the case of a notice of Default or Event of Default, to:
CVS
Corporation
1
CVS
Drive
Woonsocket,
Rhode Island 02895
Attention: Legal
Department
Facsimile: (401)
765-7887
Telephone: (401)
765-1500
If
to
the Administrative Agent, the Swing Line Lender and the Issuer:
in
the
case of each Borrowing Request, each notice of prepayment under
Section 2.7, each Letter of Credit Request, each Competitive Bid Request,
each Competitive Bid, and each Competitive Bid Accept/Reject
Letter:
The
Bank
of New York
One
Wall
Street
New
York,
New York 10286
Attention: Kareen
Sinclair,
Agency
Function Administration
Facsimile: (212)
635-6365, 6366 or 6367
Telephone: (212)
635-4696,
and
in
all other cases:
The
Bank
of New York
Retailing
Industry Division
19th
Floor
One
Wall
Street
New
York,
New York 10286
Attention: William
M. Barnum,
Managing
Director
Facsimile: (212)
635-1481
Telephone: (212)
635-1019
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.
11.3 No
Waiver; Cumulative Remedies
No
failure to exercise and no delay in exercising, on the part of the
Administrative Agent, any Lender or the Issuer, 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.
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.
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 or Letter of Credit is issued, (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 consummated,
including the reasonable fees and disbursements of Special Counsel, (b) to
pay,
indemnify, and hold the Administrative Agent, the Lenders and the Issuer
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 Administrative Agent, the
Lenders or the Issuer, as the case may be, 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.
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.
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 or obligations in
respect of its Letter of Credit Exposure or Swing Line Exposure 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 of a Lender, each
of
the Borrower and the Administrative Agent (and, in the case of an assignment
of
all or any portion of its Commitment or obligations in respect of its Letter
of
Credit Exposure or Swing Line Exposure, the Issuing Bank and/or the Swing Line
Lender, as the case may be) 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, the amount of the Commitment 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 Commitment and such Lender’s then outstanding Revolving Credit 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 Sections 3.5, 3.6, 3.7, 3.10 and 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 (e) 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 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, Letter of Credit Exposure,
Swing
Line Exposure 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 Sections 3.5, 3.6, 3.7 and 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, 3.7 or 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, 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.
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.
11.9 Set-off
and Sharing of Payments
(a) In
addition to any rights and remedies of the Lenders and the Issuer 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 and the Issuer 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 or
the
Issuer arising under the Loan Documents, any amount owing from such Lender
or
the Issuer to the Borrower. To the extent permitted by applicable law, the
aforesaid right of set-off may be exercised by such Lender or the Issuer 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 or the Issuer prior to
the
making, filing or issuance of, service upon such Lender or the Issuer of, or
notice to such Lender or the Issuer 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 and the Issuer
agree promptly to notify the Borrower and the Administrative Agent after each
such set-off and application made by such Lender or the Issuer, provided
that the
failure to give such notice shall not affect the validity of such set-off and
application.
(b) If
any
Lender or the Issuer (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 or the
Reimbursement Obligations in excess of its pro rata share (in accordance with
the outstanding principal balance of all Loans or the Reimbursement Obligations)
of payments then due and payable on account of the Loans and Notes received
by
all the Lenders or the Reimbursement Obligations, such Lender or the Issuer,
as
the case may be, shall forthwith purchase, without recourse, for cash, from
the
other Lenders such participations in their Loans and Notes or the Reimbursement
Obligations as shall be necessary to cause such purchasing Lender or the Issuer
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 or the
Reimbursement Obligations), provided
that if
all or any portion of such excess payment is thereafter recovered from such
purchasing Lender or the Issuer, such purchase from
each
Lender shall be rescinded and each such Lender shall repay to the purchasing
Lender or the Issuer 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 or the Issuer) 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 or the Issuer 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 or the Issuer were the direct creditor of the Borrower in the
amount of such participation.
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 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 Merger), (ii)
any Loan
or Letter of Credit 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 when no Loans are outstanding, its Commitment Percentage, or if no
Commitments then exist, its Commitment Percentage on the last day on which
Commitments did exist, and (ii) at any time when Loans are outstanding (x)
if
the Commitments then exist, its Commitment Percentage or (y) if the Commitments
have been terminated or otherwise no longer exist, the percentage equal to
the
fraction, (A) the numerator of which is the sum of such Lender’s Credit Exposure
and (B) the denominator of which is the sum of the Aggregate Credit Exposure
(in
each case 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 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 any Letter of
Credit or the use of the proceeds thereof.
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.
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.
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.
11.14 Treatment
of Certain Information
Each
Lender, the Issuer and the Administrative Agent 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;
(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.
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, none of the Administrative Agent, the Issuer, or any Lender
has
any fiduciary relationship to the Borrower, and the relationship between the
Administrative Agent, the Issuer, 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.
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.
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.
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, the Issuer or any Lender to serve
process in any manner permitted by law or limit the right of the Administrative
Agent, the Issuer or any Lender to bring proceedings against the Borrower in
the
courts of any jurisdiction or jurisdictions.
11.19 WAIVER
OF TRIAL BY JURY
THE
ADMINISTRATIVE AGENT, THE ISSUER, THE LENDERS 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 THE ADMINISTRATIVE AGENT,
THE ISSUER, OR THE LENDERS, OR COUNSEL TO THE ADMINISTRATIVE AGENT, THE ISSUER,
OR THE LENDERS, HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE ADMINISTRATIVE
AGENT, THE ISSUER, OR THE LENDERS WOULD NOT, IN THE EVENT OF SUCH LITIGATION,
SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. THE BORROWER
ACKNOWLEDGES THAT THE ADMINISTRATIVE AGENT, THE ISSUER, AND THE LENDERS HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, INTER
ALIA,
THE
PROVISIONS OF THIS 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, the Issuer, and each Lender and the
conditions set forth in Sections 5.1 through 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 April 30,
2007.
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),
as
amended from time to time) (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.
AS
EVIDENCE of
the
agreement by the parties hereto to the terms and conditions herein contained,
each such party has caused this 364 Day Credit Agreement to be executed on
its
behalf.
|
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CVS
CORPORATION |
|
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|
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By: |
/s/ Carol
A.
DeNale |
|
Name: Carol
A. DeNale |
|
Title: Vice
President and Treasurer |
|
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THE
BANK OF NEW YORK, in its capacity as a Lender and in its capacity as
the
Administrative Agent |
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By: |
/s/ Erin
Morrissey |
|
Name:
Erin
Morrissey |
|
Title:
Assistant
Vice President |
|
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|
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LEHMAN
COMMERCIAL PAPER INC., in its capacity as a Co-Syndication
Agent |
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By: |
/s/ Janine
M. Shugan |
|
Name:
Janine
M. Shugan |
|
Title:
Authorized
Signatory |
|
|
|
|
|
|
|
LEHMAN
BROTHERS BANK, FSB, in its capacity as a Lender |
|
|
|
|
By: |
/s/ Gary
T. Taylor |
|
Name:
Gary
T. Taylor |
|
Title:
Senior
Vice President |
|
|
|
|
BANK
OF AMERICA, N.A |
|
|
|
|
By: |
/s/ John
Pocalyko |
|
Name:
John
Pocalyko |
|
Title:
Senior
Vice President |
|
|
|
|
WACHOVIA
BANK, NATIONAL ASSOCIATION, in its capacity as a Lender and in its
capacity as a Co-Syndication Agent |
|
|
|
|
By: |
/s/ Denis
Waltrich |
|
Name:
Denis
Waltrich |
|
Title:
Vice
President |
|
|
|
|
MORGAN
STANLEY BANK |
|
|
|
|
By: |
/s/ Dawn
M. Dawson |
|
Name:
Dawn
M. Dawson |
|
Title:
Authorized
Signatory |
EXHIBIT
A
2007
364 DAY
CREDIT AGREEMENT
EXHIBIT
A
LIST
OF COMMITMENTS
Lender
|
|
Commitment
Amount
|
The
Bank of New York
|
|
$
100,000,000
|
Bank
of America, N.A.
|
|
$
100,000,000
|
Lehman
Brothers Bank, FSB
|
|
$
100,000,000
|
Morgan
Stanley Bank
|
|
$
100,000,000
|
Wachovia
Bank, National Association
|
|
$
100,000,000
|
|
TOTAL
|
$
500,000,000
|
EXHIBIT
B
2007
364 DAY CREDIT AGREEMENT
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 Loans, together with interest
thereon, at the rate or rates, in the amounts and at the time or times set
forth
in the 364 Day Credit Agreement (as the same may be amended, supplemented or
otherwise modified from time to time, the “Credit
Agreement”),
dated as of March 12, 2007, by and among the Borrower, the Lenders party
thereto, the co-syndication agents named therein, and The Bank of New York,
as
administrative agent (in such capacity, the “Administrative
Agent”),
in each case at the office of the Administrative Agent located at One Wall
Street, New York, New York, 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 Credit Agreement.
The
Loans evidenced by this Note are prepayable in the amounts, and on the dates,
set forth in the Credit Agreement. This Note is one of the Notes under the
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 each Revolving Credit Loan, Competitive Bid Loan and Swing Line Loan made
by
the Lender, (b) the Interest Period for each Revolving Credit Loan (Eurodollar
Advance only), Competitive Bid Loan and Swing Line Loan made by the Lender,
(c)
the Type of each Revolving Credit Loan made by the Lender as one or more ABR
Advances, one or more Eurodollar Advances, or a combination thereof, (d) the
Eurodollar Rate applicable to each Revolving Credit Loan (Eurodollar Advance
only), the Competitive Bid Rate applicable to each Competitive Bid Loan and
the
Negotiated Rate applicable to each Swing Line Loan made by the Lender and (e)
the date and amount of each Conversion of each Revolving Credit Loan made by
the
Lender, and each payment or prepayment of principal of, each 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 Loans, together with interest thereon, as provided
in the Credit Agreement.
Except
as specifically otherwise provided in the 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 Credit Agreement.
CVS
CORPORATION
By:______________________________
Name:____________________________
Title:_____________________________
CVS
CORPORATION
364
DAY CREDIT AGREEMENT
SCHEDULE
TO NOTE
Date
of Loan
|
Type
and Amount of Loan
|
Interest
Period
(If
other than an
ABR
Advance)
|
Type
of Revolving Credit Loan (ABR or Eurodollar)
|
Interest
Rate
(If
other than an ABR Advance)
|
Date
and Amount of Conversion of Revolving Credit Loan
|
Date
and Amount of Principal Payment or Prepayment
|
Notation
Made by
|
|
|
|
|
|
|
|
|
|
|
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|
|
|
|
|
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|
|
|
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|
|
|
|
|
|
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|
|
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
|
|
|
|
|
|
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|
|
|
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|
|
|
|
|
|
EXHIBIT
C
2007
364 DAY CREDIT AGREEMENT
EXHIBIT
C
FORM
OF BORROWING REQUEST
[Date]
The
Bank of New York, as Administrative Agent
One
Wall Street
New
York, New York 10286
Attention:
______________,
______________
|
Re: |
364
Day Credit Agreement, dated as of March 12, 2007, by and among CVS
Corporation, the Lenders party thereto, the co-syndication agents named
therein, and The Bank of New York, as Administrative Agent (as amended,
supplemented or otherwise modified from time to time, the "Credit
Agreement") |
Capitalized
terms
used herein that are not otherwise defined herein shall have the
respective meanings ascribed thereto in the Credit Agreement.
Pursuant
to Section 2.3 of the Credit Agreement, the Borrower hereby gives notice of
its
intention to borrow Revolving Credit Loans in the aggregate sum of $____________
on ____________, and/or a Swing Line Loan in the sum of $____________ on
____________, which borrowing shall consist of the following:
|
Revolving
Credit Loans
|
|
|
|
(ABR
Advance or Eurodollar
|
|
Interest
Period
|
|
Advance)
or Swing Line Loan
|
Amount
|
(Other
than ABR)
|
The
Borrower hereby certifies that on the Borrowing Date set forth above, and after
giving effect to the Loans requested hereby:
(a)
There shall exist no Default or Event of Default.
(b)
The representations and warranties contained in the Credit Agreement shall
be
true
and
correct, except those which are expressly specified to be made as of an earlier
date.
IN
EVIDENCE of the foregoing, the undersigned has caused this Borrowing Request
to
be duly executed on its behalf.
CVS
CORPORATION
By:______________________________
Name:____________________________
Title:_____________________________
EXHIBIT
D-1
[Date]
2007
364 DAY CREDIT AGREEMENT
EXHIBIT
D-1
FORM
OF
OPINION OF COUNSEL TO THE BORROWER
The
Lenders, the Co-Syndication Agents,
and
the Administrative Agent Referred to Below
c/o
The Bank of New York,
as
Administrative Agent
One
Wall Street
New
York, New York 10286
Ladies
and Gentlemen:
I
am
general counsel of CVS Corporation, a Delaware corporation (the "Borrower"),
and
have acted as such in connection with the 364 Day Credit Agreement, dated as
of
March 12, 2007, by and among the Borrower, the lenders party thereto,
Lehman
Commercial Paper Inc. and Wachovia Bank, National Association, as Co-Syndication
Agents, and
The
Bank of New York, as Administrative Agent (the "364
Day Credit Agreement").
Capitalized terms not otherwise defined herein shall have the meanings assigned
to them in the 364 Day 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 364 Day 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.
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 Five Year 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 Five Year 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
Five
Year 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, 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 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 (it being understood that the Caremark Merger is not a transaction
contemplated by any Loan Document for purposes of this clause (b)).
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.
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 Five Year 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 Five Year 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 Five Year 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,
EXHIBIT
D-2
[Date]
2007
364 DAY CREDIT AGREEMENT
EXHIBIT
D-2
FORM
OF
OPINION OF SPECIAL COUNSEL TO THE BORROWER
The
Co-Syndication Agents,
the Administrative Agent
and the lenders party
to the 364 Day Credit Agreement referred to below
c/o
The
Bank of New York,
as
Administrative Agent
Ladies
and Gentlemen:
We
have
acted as special New York counsel to CVS Corporation, a Delaware corporation
(the “Company”),
in
connection with the 364 Day Credit Agreement dated as of March 12, 2007 among
the Company, the lenders listed on the signature pages thereof (the
“Lenders”),
Lehman Commercial Paper Inc. and Wachovia Bank, National Association, as
Co-Syndication Agents, and The Bank of New York, as Administrative Agent (in
such capacity, the “Administrative
Agent”)
(as in
effect on the date hereof, the “364
Day Credit Agreement”).
Capitalized terms defined in the 364 Day Credit Agreement and not otherwise
defined herein are used herein as therein defined.
We
have
reviewed an executed copy of the 364 Day 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 364 Day 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 364
Day
Credit Agreement (x) require no consent or other action by or in respect of,
or
filing with, any governmental 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 364 Day 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 364 Day 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 364 Day 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
364
Day Credit Agreement) without our prior written consent.
Very
truly yours,
EXHIBIT
E
2007
364 DAY CREDIT AGREEMENT
EXHIBIT
E
FORM
OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
Reference
is made to the 364 Day Credit Agreement, dated as of March 12, 2007 (as amended
and in effect on the date hereof, the “Credit
Agreement”),
by and among CVS Corporation, the Lenders party thereto, the co-syndication
agents named therein, and The Bank of New York, as Administrative
Agent.
Capitalized terms used herein that are not otherwise defined herein shall have
the respective meanings ascribed thereto in the 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 in the Assignor’s rights and obligations under the
Credit Agreement, including, without limitation, the interests set forth below
in the Commitment and the Revolving Credit Loans and Competitive Bid Loans
owing
to the Assignor that are outstanding on the Assignment Date, together with,
in
the case of such Commitment, all of the related participations held by the
Assignor in respect of the Letters of Credit (including its LC Exposure) and
Swingline Loans (including its Swingline Exposure), but excluding accrued
interest and fees to and excluding the Assignment Date (collectively, the
“Assigned
Interest”).
The
Assignee hereby acknowledges receipt of a copy of the Credit Agreement. From
and
after the Assignment Date, (i) the Assignee shall be a party to and be bound
by
the provisions of the 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
Credit Agreement, duly completed and executed by the Assignee, and (ii) if
the
Assignee is not already a Lender under the 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
Credit Agreement.
THIS
ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
Date
of
Assignment:
______________________________
1Delete
inapplicable term.
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 Revolving Credit Loans Assigned:
Principal
Amount of each Competitive Bid Loan Assigned:
[SIGNATURE
PAGE FOLLOWS]
The
terms
set forth above are hereby agreed to:
[Name
of Assignor],
as
Assignor
By:
___________________________
Name:
_________________________
Title:
__________________________
[Name
of Assignee],
as
Assignee
By:
___________________________
Name:
_________________________
Title:
__________________________
The
undersigned hereby consent to the within assignment:
CVS
CORPORATION
By:
___________________________
Name:
_________________________
Title:
__________________________
THE
BANK
OF NEW YORK,
as
Administrative Agent
By:
___________________________
Name:
_________________________
Title:
__________________________
EXHIBIT
F
2007
364 DAY CREDIT AGREEMENT
EXHIBIT
F
FORM
OF COMPETITIVE BID REQUEST
[Date]
The
Bank of New York, as Administrative Agent
One
Wall Street
New
York, New York 10286
Attention:
______________,
______________
|
Re: |
364
Day Credit Agreement, dated as of March 12, 2007, by and among CVS
Corporation, the Lenders party thereto, the co-syndication agents named
therein, and The Bank of New York, as Administrative Agent (as amended,
supplemented or otherwise modified from time to time, the "Credit
Agreement") |
Capitalized
terms used herein that are not otherwise defined herein shall have the
respective meanings ascribed thereto in the Credit Agreement.
Pursuant
to Section 2.4 of the Credit Agreement, the Borrower hereby gives notice of
its
request to borrow Competitive Bid Loans in the aggregate sum of $____________
on
____________, which borrowing shall consist of the following:
|
|
Competitive |
|
Amount |
Interest Period |
|
|
|
The
Borrower hereby certifies that on the Borrowing Date set forth above, and after
giving effect to the Competitive Bid Loans requested hereby:
(a)
There shall exist no Default or Event of Default.
(b)
The representations and warranties contained in the Credit Agreement shall
be
true and correct, except those which are expressly specified to be made as
of an
earlier date.
IN
EVIDENCE of the foregoing, the undersigned has caused this Competitive Bid
Request to be duly executed on its behalf.
CVS
CORPORATION
By:
___________________________
Name:
_________________________
Title:
__________________________
EXHIBIT
G
2007
364 DAY YEAR CREDIT AGREEMENT
EXHIBIT
G
FORM
OF INVITATION TO BID
[Date]
To
the Lenders party
from
time to time to the
captioned
Credit Agreement
|
Re: |
364
Day Credit Agreement, dated as of March 12, 2007, by and among CVS
Corporation, the Lenders party thereto, the co-syndication agents named
therein, and The Bank of New York, as Administrative Agent (as amended,
supplemented or otherwise modified from time to time, the "Credit
Agreement") |
Capitalized
terms used herein that are not otherwise defined herein shall have the
respective meanings ascribed thereto in the Credit Agreement.
Pursuant
to a Competitive Bid Request, the Borrower gave notice of its request to borrow
Competitive Bid Loans in the aggregate sum of $____________ on ____________,
which borrowing would consist of the following:
|
|
Competitive |
|
Amount |
Interest Period |
|
|
|
The
Lenders are hereby invited to bid, pursuant to the terms and conditions of
the
Credit Agreement, on such requested Competitive Bid Loans.
THE
BANK OF NEW YORK,
as
Administrative Agent
By:
___________________________
Name:
_________________________
Title:
__________________________
EXHIBIT
H
2007
364 DAY CREDIT AGREEMENT
EXHIBIT
H
FORM
OF COMPETITIVE BID
[Date]
The
Bank of New York, as Administrative Agent
One
Wall Street
New
York, New York 10286
Attention:
_________________,
_________________
|
Re: |
364
Day Credit Agreement, dated as of March 12, 2007, by and among CVS
Corporation, the Lenders party thereto, the co-syndication agents
named
therein, and The Bank of New York, as Administrative Agent (as amended,
supplemented or otherwise modified from time to time, the "Credit
Agreement") |
Capitalized
terms used herein that are not otherwise defined herein shall have the
respective meanings ascribed thereto in the Credit Agreement.
In
response to a Competitive Bid Request, the undersigned Lender hereby offers
to
make Competitive Bid Loan(s) in the aggregate sum of $____________ on
____________, which borrowing would consist of the following:
|
|
Competitive |
|
|
|
Interest |
Competitive
|
|
Amount
|
Period
|
Bid
Rate
|
|
|
|
|
|
|
|
[fixed
rate]
|
[LENDER]
By:
___________________________
Name:
_________________________
Title:
__________________________
EXHIBIT
I
2007
364 DAY CREDIT AGREEMENT
EXHIBIT
I
FORM
OF COMPETITIVE BID ACCEPT/REJECT LETTER
[Date]
The
Bank of New York, as Administrative Agent
One
Wall Street
New
York, New York 10286
Attention:
______________,
______________
|
Re: |
364
Day Credit Agreement, dated as of March 12, 2007, by and among
CVS
Corporation, the Lenders party thereto, the co-syndication agents
named
therein, and The Bank of New York, as Administrative Agent (as
amended,
supplemented or otherwise modified from time to time, the "Credit
Agreement")
|
Capitalized
terms used herein that are not otherwise defined herein shall have the
respective meanings ascribed thereto in the Credit Agreement.
Pursuant
to Section 2.4(d) of the Credit Agreement, the Borrower hereby gives notice
of
its acceptance of the following Competitive Bids:
_____________
_______________
_____________
_______________,
and
its rejection of all other Competitive Bids, in each case made pursuant to
the
Competitive Bid Request, dated _______________.
IN
EVIDENCE of the foregoing, the undersigned has caused this Competitive Bid
Accept/Reject Letter to be duly executed on its behalf.
CVS
CORPORATION
By:
___________________________
Name:
_________________________
Title:
__________________________
EXHIBIT
J
2007
364 DAY CREDIT AGREEMENT
EXHIBIT J
FORM
OF LETTER OF CREDIT REQUEST
[Date]
The
Bank
of New York, as Administrative Agent
One
Wall
Street
New
York,
New York 10286
Attention: _____________,
_____________
|
Re: |
364
Day Credit Agreement, dated as of March 12, 2007,
by and among CVS Corporation, the Lenders party thereto, the
co-syndication agents named therein, and The Bank of New York,
as
Administrative Agent (as amended, supplemented or otherwise modified
from
time to time, the “Credit Agreement”)
|
Capitalized
terms used herein that are not otherwise defined herein shall have the
respective meanings ascribed thereto in the Credit Agreement.
Pursuant
to Section 2.8(b) of the Credit Agreement, the Borrower hereby gives notice
of its request for the issuance by the Issuer of a Letter of Credit for the
account of the Borrower and for the benefit of ____________________ on
_______________ in connection with ___________________ in the maximum amount
of
$_____________. A drawing may be made under such Letter of Credit under the
following conditions: _______________________________________.
The
Borrower hereby certifies that on the above requested date of issuance of such
Letter of Credit, and after giving effect to the issuance of such Letter of
Credit:
(a) There
shall exist no Default or Event of Default.
(b) The
representations and warranties contained in the Credit Agreement shall be true
and correct, except those which are expressly specified to be made as of an
earlier date.
IN
EVIDENCE of the foregoing, the undersigned has caused this Letter of Credit
Request to be duly executed on its behalf.
CVS
CORPORATION
By:
___________________________
Name:
_________________________
Title:
__________________________
CONFORMED
COPY
$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, N.A., and
WACHOVIA BANK,
NATIONAL ASSOCIATION,
as Co-Documentation Agents
|
Dated
as of
March 15, 2007
|
|
LEHMAN BROTHERS
INC.,
and
MORGAN STANLEY
SENIOR
FUNDING, INC.,
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
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 |
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 |
Article 5
CONDITIONS
OF LENDING —
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
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 |
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 |
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 |
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 |
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”),
LEHMAN
BROTHERS INC.
and
MORGAN
STANLEY SENIOR FUNDING, INC.,
as joint
lead arrangers and joint bookrunners (in such capacity, the “Arrangers”),
LEHMAN
COMMERCIAL PAPER INC.,
as
administrative agent for the Lenders (in such capacity, the “Administrative
Agent”),
MORGAN
STANLEY 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%
|
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 Moody’s 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.
“Caremark
Merger Agreement”:
the
Agreement and Plan of Merger, dated as of November 1, 2006 among the
Borrower, Caremark and Twain 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).
“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:
(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 Moody’s.
“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.
“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;
(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.
“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., Lehman 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, Lehman Commercial Paper Inc. and Wachovia
Bank, National Association, as co-syndication agents, Morgan Stanley 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, Lehman 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.
“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
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”:
Lehman
Commercial Paper Inc.
“Lender”:
as
defined in the preamble.
“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”:
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.
“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) Moody’s 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) Moody’s 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) Moody’s 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) Moody’s 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) Moody’s 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) Moody’s 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
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.
“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 McGraw-Hill 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,
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.
(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.
(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.
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
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.
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
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,
(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
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
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
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
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
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
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
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
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
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
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.
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 Zenon Lankowsky, counsel to the Borrower, dated the Effective Date,
and in
the form of Exhibit D-1; and
(b) an
opinion
of Davis Polk & Wardwell, 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.
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.
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.
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
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.
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.
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,
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
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
(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
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
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
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.
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
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
(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:
If
to
the Borrower:
|
CVS
Corporation
|
|
One
CVS Drive |
|
Woonsocket,
Rhode Island 02895
|
|
Attention:
|
Carol
A. DeNale
|
|
|
Vice
President and Treasurer |
|
Facsimile:
|
(401)
770-5768
|
|
Telephone:
|
(401)
770-4407 |
|
|
|
|
with
a copy, in the case of a notice of Default or Event of Default,
to:
|
|
CVS
Corporation |
|
One
CVS Drive |
|
Woonsocket,
Rhode Island 02895 |
|
Attention:
|
Legal
Department
|
|
Facsimile:
|
(401)
765-7887
|
|
Telephone:
|
(401)
765-1500
|
If
to
the Administrative Agent:
|
in
the case of each Borrowing Request and each notice of
prepayment under
Section 2.6:
|
|
|
|
Lehman
Commercial Paper Inc.
c/o
Lehman Brothers Inc.
745
Seventh Avenue, 16th Floor
New
York, New York 10019
Attention:
Maritza Ospina
Facsimile:
(646) 758-4648
Telephone:
(212) 526-6590
|
|
|
|
and
in all other cases: |
|
|
|
Lehman
Commercial Paper Inc.
c/o
Lehman Brothers Inc.
745
Seventh Avenue, 5th Floor
New
York, New York 10019
Attention:
Ahuva Schwager
Facsimile:
(917) 522-0593
Telephone:
(212) 526-7417
|
If
to
the Syndication Agent:
|
Morgan
Stanley Senior Funding, Inc.
1585
Broadway
New
York, New York 10036
Attention:
Nomi Clarke
Facsimile:
(718) 233-2132
Telephone:
(718) 754-7283
|
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
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
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
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,
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.
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
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.
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;
(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.
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]
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/
Carol A. DeNale |
|
|
Name: |
Carol
A.
DeNale |
|
|
Title: |
Vice
President and
Treasurer |
|
LEHMAN
BROTHERS
INC., as Arranger
|
|
|
|
|
|
By: |
/s/
Claire O’Connor |
|
|
Name: |
Claire
O’Connor |
|
|
Title: |
Managing
Director |
|
LEHMAN
COMMERCIAL PAPER INC., as Administrative Agent and a
Lender |
|
|
|
|
By: |
/s/
Claire O’Connor |
|
|
Name: |
Claire
O’Connor |
|
|
Title: |
Managing
Director |
|
MORGAN
STANLEY SENIOR FUNDING, INC., as Arranger,
Syndication Agent and a Lender |
|
|
|
|
By: |
/s/
Elizabeth Hendricks |
|
|
Name: |
Elizabeth
Hendricks |
|
|
Title: |
Vice
President
|
|
THE
BANK OF NEW YORK, as Co- Documentation Agent and a
Lender |
|
|
|
|
By: |
/s/
Erin Morrissey |
|
|
Name: |
Erin
Morrissey |
|
|
Title: |
Assistant
Vice
President |
|
BANK
OF
AMERICA, N.A., as Co- Documentation Agent and a
Lender |
|
|
|
|
By: |
/s/
John Pocalyko |
|
|
Name: |
John
Pocalyko
|
|
|
Title: |
Senior
Vice
President |
|
WACHOVIA
BANK, NATIONAL ASSOCIATION, as
Co-Documentation Agent and a Lender |
|
|
|
|
By: |
/s/
Denis Waltrich |
|
|
Name: |
Denis
Waltrich |
|
|
Title: |
Vice
President |
|
ABN
AMRO Bank N.V., as a Lender |
|
|
|
|
By: |
/s/
Tracie Elliot |
|
|
Name: |
Tracie
Elliot |
|
|
Title: |
Senior
Vice
President |
|
|
|
|
|
By: |
/s/
Thomas T. Rogers |
|
|
Name: |
Thomas
T.
Rogers |
|
|
Title: |
Managing
Director |
|
Branch
Banking and Trust Company, as a Lender |
|
|
|
|
By: |
/s/
Eric Searls |
|
|
Name: |
Eric
Searls |
|
|
Title: |
Assistant
Vice
President |
|
HSBC
Bank USA, as a Lender |
|
|
|
|
By: |
/s/
Michael Frawley |
|
|
Name: |
Michael
Frawley |
|
|
Title: |
Senior
Vice
President |
|
KeyBank
National
Association, as a Lender
|
|
|
|
|
By: |
/s/
Marianne T. Meil |
|
|
Name: |
Marianne
T.
Meil |
|
|
Title: |
Senior
Vice
President |
|
Mizuho
Corporate Bank, Ltd., as a Lender |
|
|
|
|
By: |
/s/
Bertram H. Tang |
|
|
Name: |
Bertram
H. Tang |
|
|
Title: |
Senior
Vice President & Team Leader |
|
SUMITOMO
MITSUI BANKING CORPORATION, as a
Lender |
|
|
|
|
By: |
/s/
David A. Buck |
|
|
Name: |
David
A. Buck |
|
|
Title: |
Senior
Vice President |
|
SunTrust
Bank, as a Lender |
|
|
|
|
|
By: |
/s/
John N. Gregg, Jr. |
|
|
Name: |
John
N.
Gregg, Jr. |
|
|
Title: |
Managing
Director |
|
US
Bank,
N.A., as a Lender |
|
|
|
|
|
By: |
/s/
David J. Dannemiller |
|
|
Name: |
David
J.
Dannemiller |
|
|
Title: |
Vice
President |
|
Wells
Fargo Bank, N.A., as a Lender |
|
|
|
|
|
By: |
/s/
Megan Donnelly |
|
|
Name: |
Megan
Donnelly |
|
|
Title: |
Vice
President |
|
BRIDGE
CREDIT
AGREEMENT
EXHIBIT
A
COMMITMENTS
Lender
|
Commitment
|
Lehman
Commercial Paper Inc. |
$935,000,000
|
Morgan
Stanley 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
|
Wells
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, Lehman Brothers Inc. and Morgan Stanley Senior Funding, Inc.,
as joint
lead arrangers and joint bookrunners, Morgan Stanley 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 Lehman Commercial
Paper Inc., as administrative agent (in such capacity, the “Administrative
Agent”),
in each case at the office of the Administrative Agent located at 745 Seventh
Avenue, New York, New York, 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.
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.
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CVS
CORPORATION |
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By: |
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Name: |
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SCHEDULE
TO NOTE
Date
of
Loan
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Type
and
Amount
of
Loan
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Eurodollar
Interest
Period
(Eurodollar
Advance
only)
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Type
of
Loan
(ABR
or Eurodollar)
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Eurodollar
Rate
(Eurodollar
Advance
only)
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Date
and
Amount
of
Conversion
of Loan
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Date
and
Amount
of
Principal
Payment
or Prepayment
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Notation
Made
by
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BRIDGE
CREDIT AGREEMENT
EXHIBIT
C
FORM
OF
BORROWING REQUEST
[Date]
Lehman
Commercial Paper Inc., as Administrative Agent
745
Seventh Avenue, 5th
Floor
New
York,
New York 10019
Attention:
Maritza Ospina
Re:
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Bridge
Credit Agreement, dated as of March [___], 2007, by and among
CVS
Corporation, the Lenders party thereto, Lehman
Brothers Inc. and Morgan Stanley Senior Funding, Inc., as Arrangers,
Morgan Stanley 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 Lehman Commercial Paper Inc.,
as
Administrative Agent (as amended, supplemented or otherwise modified
from
time to time, “Bridge
Credit Agreement”)
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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
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Amount
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Eurodollar
Interest Period
(applicable
only for a
Eurodollar
Advance)
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The
Borrower hereby represents and warrants that on the Borrowing Date set
forth
above, and after giving effect to the Loans requested hereby:
(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:
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Account
Name:
Account
Number
Bank
Name:
Bank
Address:
ABA
Number:
Contact
Name:
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[Remainder
of page intentionally left blank]
IN
EVIDENCE of the foregoing, the undersigned has caused this Borrowing Request
to
be duly executed on its behalf.
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CVS
CORPORATION |
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By: |
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Name: |
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Title |
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
745
Seventh Avenue
New
York,
New York 10019
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,
Lehman
Brothers Inc. and Morgan Stanley Senior Funding, Inc., as Arrangers, Morgan
Stanley Senior Funding, Inc., as Syndication Agent,
Lehman
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.
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.
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,
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
745
Seventh Avenue
New
York,
New York 10019
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”),
Lehman
Brothers Inc. and Morgan Stanley Senior Funding, Inc., as joint lead arrangers
and joint bookrunners (in such capacity, the “Arrangers”),
Morgan Stanley Senior Funding, Inc., as syndication agent (in
such
capacity, the “Syndication
Agent”),
Lehman
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-
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,
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, Lehman
Brothers Inc. and Morgan Stanley Senior Funding, Inc., as Arrangers, Morgan
Stanley Senior Funding, Inc., as Syndication
Agent, Lehman 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.
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]
The
terms
set forth above are hereby agreed to:
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[Name
of Assignor],
as
Assignor
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By: |
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[Name of
Assignee],
as
Assignee |
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By: |
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The
undersigned hereby consent to the within assignment:
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CVS CORPORATION |
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By: |
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LEHMAN COMMERCIAL PAPER
INC., |
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as Administrative
Agent |
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By: |
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E-3
EXHIBIT
10.4
EXECUTION
COPY
CVS
CORPORATION
GLOBAL
AMENDMENT TO CREDIT AGREEMENTS
GLOBAL
AMENDMENT (this “Amendment”),
dated as of March 15, 2007, to the following Credit Agreements:
(i) Five
Year
Credit Agreement, dated as of June 11, 2004, by and among CVS Corporation (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
(the “2004
Five Year Credit Agreement”);
(ii) 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
(the
“2005
Five Year Credit Agreement”);
(iii) Five
Year
Credit Agreement, dated as of May 12, 2006, by and among the Borrower, the
lenders party thereto, Bank of America, N.A., Lehman 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 (the
“2006
Five Year Credit Agreement”);
(iv) Five
Year
Credit Agreement, dated as of March 12, 2007, by and among the Borrower, the
lenders party thereto, Lehman Commercial Paper Inc. and Wachovia Bank, National
Association, as co-syndication agents, Morgan Stanley Senior Funding, Inc.,
as
documentation agent, and The Bank of New York, as administrative agent
(the
“2007
Five Year Credit Agreement”);
and
(v) 364
Day
Credit Agreement, dated as of March 12, 2007, by and among the Borrower, the
lenders party thereto, Lehman Commercial Paper Inc. and Wachovia Bank, National
Association, as co-syndication agents, and The Bank of New York, as
administrative agent (the
“2007
364 Day Credit Agreement”
and, together with the 2004 Five Year Credit Agreement, the 2005 Five Year
Credit Agreement, the 2006 Five Year Credit Agreement and the 2007 Five Year
Credit Agreement, the “Credit
Agreements”;
each a “Credit
Agreement”).
Except
as otherwise provided herein, capitalized terms used herein which are not
defined herein shall have the meanings set forth in the applicable Credit
Agreements.
In
consideration of the covenants, conditions and agreements hereinafter set forth,
and for other good and valuable consideration, the receipt and adequacy of
which
are hereby
acknowledged,
and pursuant to Section 11.1 of each of the Credit Agreements, the parties
hereto hereby agree as follows:
1. The
definition of “Intercompany Debt” in each of the Credit Agreements is hereby
amended to delete the word “demand” appearing in clause (ii)
thereof.
2. Each
of
the Lenders hereby waives any Default or Event of Default that may exist under
any of the Credit Agreements solely as a result of the failure of the Borrower
to be in compliance with Section 8.1 of each of the Credit Agreements without
giving effect to this Amendment.
3. This
Amendment shall become effective on and as of the date hereof as to each of
the
Credit Agreements upon the receipt by The Bank of New York, as Administrative
Agent under each of the Credit Agreements, of counterparts of this Amendment
executed by the Borrower and the Required Lenders under each of the Credit
Agreements.
4. Except
as
amended hereby, each of the Credit Agreements and the other Loan Documents
under
each of the Credit Agreements shall remain in full force and
effect.
5. This
Amendment may be executed in 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 this Amendment to
produce or account for more than one counterpart signed by the party to be
charged. A set of the copies of this Amendment signed by all of the parties
hereto shall be lodged with each of the Borrower and The Bank of New York,
as
Administrative Agent under each of the Credit Agreements. Any party to this
Amendment may rely upon the signatures of any other party hereto which are
transmitted by fax or other electronic means to the same extent as if originally
signed.
6. This
Amendment shall be governed by, and construed and interpreted in accordance
with, the laws of the State of New York.
[signature
pages follow]
CVS
CORPORATION
GLOBAL
AMENDMENT TO CREDIT AGREEMENTS
The
parties have caused this Amendment to be duly executed as of the date first
written above.
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CVS
CORPORATION
By: /s/
Carol A. DeNale
Name:
Carol A. DeNale
Title: Vice
President and Treasurer
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THE
BANK OF NEW YORK, in
its capacity as a Lender and in its capacity as the Administrative
Agent under each of the Credit Agreements
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By: /s/
Erin Morrissey
Name: Erin
Morrissey
Title: Assistant
Vice President
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CVS
CORPORATION
GLOBAL
AMENDMENT TO CREDIT AGREEMENTS
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BANK
OF AMERICA, N.A., as Co-Documentation Agent and a Lender
By:
/s/
John Pocalyko
Name:
John
Pocalyko
Title:
Senior
Vice President
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CVS
CORPORATION
GLOBAL
AMENDMENT TO CREDIT AGREEMENTS
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MORGAN
STANLEY SENIOR FUNDING, INC., in its capacity as Documentation
Agent
By:
/s/
Elizabeth Hendricks
Name:
Elizabeth
Hendricks
Title:
Vice
President
MORGAN
STANLEY BANK, in its capacity
as
a Lender
By:
/s/
Dawn M. Dawson
Name:
Dawn
M. Dawson
Title:
Authorized
Signatory
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CVS
CORPORATION
GLOBAL
AMENDMENT TO CREDIT AGREEMENTS
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HSBC
BANK USA
By:
/s/
Martin J. Haythorne
Name:
Martin
J. Haythorne
Title:
Managing
Director
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CVS
CORPORATION
GLOBAL
AMENDMENT TO CREDIT AGREEMENTS
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KEYBANK
NATIONAL ASSOCIATION
By:
/s/
Marianne T. Meil
Name:
Marianne
T. Meil
Title:
Senior
Vice President
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CVS
CORPORATION
GLOBAL
AMENDMENT TO CREDIT AGREEMENTS
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SUMITOMO
MITSUI BANKING CORPORATION
By:
/s/
Shigeru Tsuru
Name:
Shigeru
Tsuru
Title:
Joint
General Manager
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CVS
CORPORATION
GLOBAL
AMENDMENT TO CREDIT AGREEMENTS
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ABN
AMRO BANK N.V.
By:
/s/
Tracie Elliot
Name:
Tracie
Elliot
Title:
Senior
Vice President
By:
/s/
David Carrington
Name:
David
Carrington
Title:
Director
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CVS
CORPORATION
GLOBAL
AMENDMENT TO CREDIT AGREEMENTS
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WELLS
FARGO BANK
By:
/s/
Donald Schwartz
Name:
Donald
Schwartz
Title:
Senior
Vice President
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CVS
CORPORATION
GLOBAL
AMENDMENT TO CREDIT AGREEMENTS
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SOVEREIGN
BANK
By:
/s/
Robert F. Camara
Name:
Robert
F. Camara
Title:
Vice
President
|
CVS
CORPORATION
GLOBAL
AMENDMENT TO CREDIT AGREEMENTS
|
CHANG
HWA COMMERICAL BANK, LTD.,
LOS
ANGELES BRANCH
By:
/s/
Wen-Che Chen
Name:
Wen-Che
Chen
Title:
VP
& General Manager
|
CVS
CORPORATION
GLOBAL
AMENDMENT TO CREDIT AGREEMENTS
|
SUNTRUST
BANK
By:
/s/
Richard C. Wilson
Name:
Richard
C. Wilson
Title:
Managing
Director
|
CVS
CORPORATION
GLOBAL
AMENDMENT TO CREDIT AGREEMENTS
|
MIZUHO
CORPORATE BANK, LTD.
By:
/s/
Bertram H. Tang
Name:
Bertram
H. Tang
Title:
Senior
Vice President & Team
Leader
|
CVS
CORPORATION
GLOBAL
AMENDMENT TO CREDIT AGREEMENTS
|
REGIONS
BANK
By:
/s/
Berkin Istanbulluoglu
Name:
Berkin
Istanbulluoglu
Title:
Assistant
Vice President
|
CVS
CORPORATION
GLOBAL
AMENDMENT TO CREDIT AGREEMENTS
|
WACHOVIA
BANK, NATIONAL ASSOCIATION
By:
/s/
Denis Waltrich
Name:
Denis
Waltrich
Title:
Vice
President
|
CVS
CORPORATION
GLOBAL
AMENDMENT TO CREDIT AGREEMENTS
|
UNION
BANK OF CALIFORNIA, N.A.
By:
/s/
Ching Lim
Name:
Ching
Lim
Title:
Vice
President
|
CVS
CORPORATION
GLOBAL
AMENDMENT TO CREDIT AGREEMENTS
|
NATIONAL
CITY BANK
By:
/s/
Amanda M. Sigg
Name:
Amanda
M. Sigg
Title:
Relationship
Manager
|
CVS
CORPORATION
GLOBAL
AMENDMENT TO CREDIT AGREEMENTS
|
THE
NORTHERN TRUST COMPANY
By:
/s/
Ashish S. Bhagwat
Name:
Ashish
S. Bhagwat
Title:
Vice
President
|
CVS
CORPORATION
GLOBAL
AMENDMENT TO CREDIT AGREEMENTS
|
LEHMAN
BROTHERS BANK, FSB
By:
/s/ Janine M. Shugan
Name:
Janine M. Shugan
Title:
Authorized
Signatory
|
EXHIBIT
99.1
CVS/Caremark
Merger Closes, Creating the Nation’s Leading Pharmacy Services Company
WOONSOCKET,
R.I. --CVS Corporation and Caremark Rx, Inc. today announced that they have
formally closed their transformative merger of equals, creating the nation’s
premier integrated pharmacy services provider. The combined company, renamed
CVS/Caremark Corporation (NYSE: CVS), unifies the nation’s largest pharmacy
chain with a leading pharmaceutical services company, creating the opportunity
to deliver unique products and services that will help manage costs for
employers and improve access and choice for consumers.
“Today’s
close of our landmark merger will enable us to begin delivering substantial
benefits to shareholders, customers and employees,” said Tom Ryan,
CVS/Caremark’s President and Chief Executive Officer. “CVS/Caremark will offer
end-to-end services, from plan design to prescription fulfillment, as well
as
the opportunity to improve clinical outcomes, which will result in better
control over healthcare costs for employers and plan providers. The company
will
improve the delivery of pharmacy services and healthcare decision making,
enabling consumers to benefit from unparalleled access, greater convenience
and
more choice. We look forward to capitalizing on the tremendous opportunity
ahead
of us to improve the delivery of pharmacy services.”
“After
months of planning, we are excited to realize our shared vision of creating
the
premier provider of pharmacy services in the nation,” said Mac Crawford,
Chairman of CVS/Caremark. “Together we will deliver unique products and services
that are responsive to the needs of employers, health plans and consumers,
and
do it in more convenient and flexible ways that allows consumers to take more
control of their healthcare needs.”
In
light
of the closing, CVS/Caremark will commence a cash tender offer in approximately
five business days for 150 million, or about 10 percent, of its outstanding
shares at a fixed price of $35 per share.
The
combined company will trade on the New York Stock Exchange under the symbol
“CVS.” Effective today, trading in Caremark stock (NYSE: CMX - News) has been
discontinued.
About
CVS/Caremark
CVS/Caremark
is the nation’s premier integrated pharmacy services provider, combining one of
the nation’s leading pharmaceutical services companies with the country’s
largest pharmacy chain. The company fills or manages more than one billion
prescriptions per year, more than any other pharmacy services
provider.
CVS/Caremark drives value for pharmacy services customers by effectively
managing pharmaceutical costs and improving healthcare outcomes through its
6,200 CVS/pharmacy stores; its pharmacy benefit management, mail order and
specialty pharmacy division, Caremark Pharmacy Services; its retail-based health
clinic subsidiary, MinuteClinic; and its online pharmacy, CVS.com. General
information about CVS/Caremark is available through the Investor Relations
portion of the Company’s website, at http://investor.cvs.com, as well as through
the pressroom portion of the Company’s website, at
www.cvs.com/pressroom.
Certain
Information Regarding the Tender Offer After Closing of the
Merger
The
information in this press release describing CVS’ planned tender offer following
closing of the CVS/Caremark merger is for informational purposes only and does
not constitute an offer to buy or the solicitation of an offer to sell shares
of
CVS/Caremark’s common stock in the tender offer. The tender offer will be made
only pursuant to the Offer to Purchase and the related materials that
CVS/Caremark will distribute to its shareholders. Shareholders should read
the
Offer to Purchase and the related materials carefully because they contain
important information, including the various terms and conditions of the tender
offer. Subsequent to the commencement of the tender offer, shareholders of
CVS/Caremark will be able to obtain a free copy of the Tender Offer Statement
on
Schedule TO, the Offer to Purchase and other documents that CVS/Caremark will
be
filing with the Securities and Exchange Commission from the Commission’s website
at www.sec.gov. Shareholders may also obtain a copy of these documents, without
charge, from Morrow & Co., Inc., the information agent for the tender offer,
toll free at 1 (800) 245-1502 when these documents become available.
Shareholders are urged to carefully read these materials prior to making any
decision with respect to the tender offer. Shareholders and investors who have
questions or need assistance may call Morrow & Co., Inc., the information
agent for the tender offer, toll free at 1 (800) 245-1502.
Cautionary
Statement Regarding Forward-Looking Statements
This
document contains certain forward-looking statements about CVS and Caremark.
When used in this document, the words “anticipates”, “may”, “can”, “believes”,
“expects”, “projects”, “intends”, “likely”, “will”, “to be” and any similar
expressions and any other statements that are not historical facts, in each
case
as they relate to CVS or Caremark or to the combined company, the management
of
either such company or the combined company or the transaction are intended
to
identify those assertions as forward-looking statements. In making any of those
statements, the person making them believes that its expectations are based
on
reasonable assumptions. However, any such statement may be influenced by factors
that could cause actual outcomes and results to be materially different from
those projected or anticipated. These forward-looking statements, including,
without limitation, statements relating to anticipated accretion, return
on
equity,
cost synergies, incremental revenues and new products and offerings, are subject
to numerous risks and uncertainties. There are various important factors that
could cause actual results to differ materially from those in any such
forward-looking statements, many of which are beyond the control of CVS and
Caremark, including macroeconomic condition and general industry conditions
such
as the competitive environment for retail pharmacy and pharmacy benefit
management companies, regulatory and litigation matters and risks, legislative
developments, changes in tax and other laws and the effect of changes in general
economic conditions. The actual results or performance by CVS or Caremark or
the
combined company, and issues relating to the transaction, could differ
materially from those expressed in, or implied by, any forward-looking
statements relating to those matters. Accordingly, no assurances can be given
that any of the events anticipated by the forward-looking statements will
transpire or occur, or if any of them do so, what impact they will have on
the
results of operations or financial condition of CVS or Caremark, the combined
company or the transaction.
Contact:
CVS/Caremark
Corporation
Investors:
Nancy
Christal, 914-722-4704
VP,
Investor Relations
or
Media:
Eileen
Howard Dunn, 401-770-4561
VP,
Corporate Communications
EXHIBIT
99.2
CVS/Caremark
Corporation Announces Board of Directors
WOONSOCKET,
R.I. --CVS/Caremark Corporation (NYSE: CVS) today announced the members of
the
Company's Board of Directors. As previously disclosed, members of the 14-member
Board of Directors were evenly split among designees from CVS Corporation and
Caremark Rx, Inc. Former Caremark Chairman and CEO Mac Crawford has been elected
as Chairman of the Board of Directors of the combined company. Tom Ryan will
continue to serve as President and Chief Executive Officer, a position he has
held at CVS/pharmacy since 1994.
The
following individuals named to the Board from CVS are:
|
·
|
Thomas
M. Ryan - President and CEO, CVS/Caremark Corporation
|
|
·
|
David
W. Dorman - Senior Advisor and Partner, Warburg Pincus LLC
|
|
·
|
Marian
L. Heard - President and CEO, Oxen Hill Partners
|
|
·
|
William
H. Joyce - Chairman and CEO, Nalco Company
|
|
·
|
Terrence
Murray -former Chairman and CEO, FleetBoston Financial Corporation
|
|
·
|
Sheli
Z. Rosenberg - former Vice Chairman, President and CEO, Equity Group
Investments, LLC.
|
|
·
|
Richard
J. Swift - former Chairman, President, and CEO, Foster Wheeler Ltd.
|
The
following individuals named to the Board from Caremark are:
|
·
|
E.
Mac Crawford - Chairman, CVS/Caremark Corporation
|
|
·
|
Edwin
M. Banks - Founder, Washington Corner Capital Management, LLC
|
|
·
|
C.
David Brown II - Chairman, Broad and Cassel
|
|
·
|
Kristen
E. Gibney Williams - former executive of Caremark's Prescription
Benefits
Management Division
|
|
·
|
Roger
L. Headrick - Managing General Partner, HMCH Ventures; President
and CEO,
ProtaTek International, Inc.
|
|
·
|
Jean-Pierre
Millon - former President and CEO, PCS Health Systems Inc.
|
|
·
|
C.A.
Lance Piccolo - CEO of HealthPic Consultants, Inc.
|
"We
are
delighted to announce the Board members that will guide CVS/Caremark as it
looks
to become a powerful force for change in the pharmaceutical services industry,"
Mr. Crawford said. "Our goal is to provide consumers with unparalleled access
and more choice, employers and health plans with lower costs and innovative
new
programs, and shareholders with a highly efficient and more
valuable
company. The expertise and experience of this collective group, we believe,
leaves us best positioned to realize those goals."
"The
composition of this Board is just another example of the combined strength
this
new company brings to the table," Mr. Ryan said.
About
CVS/Caremark
CVS/Caremark
is the nation's premier integrated pharmacy services provider, combining one
of
the nation's leading pharmaceutical services companies with the country's
largest pharmacy chain. The company fills or manages more than one billion
prescriptions per year, more than any other pharmacy services provider.
CVS/Caremark drives value for pharmacy services customers by effectively
managing pharmaceutical costs and improving healthcare outcomes through its
6,200 CVS/pharmacy stores; its pharmacy benefit management, mail order and
specialty pharmacy division, Caremark Pharmacy Services; its retail-based health
clinic subsidiary, MinuteClinic; and its online pharmacy, CVS.com. General
information about CVS/Caremark is available through the Investor Relations
portion of the Company's website, at http://investor.cvs.com, as well as through
the pressroom portion of the Company's website, at
www.cvs.com/pressroom.
Contact:
CVS/Caremark
Corporation
Investors:
Nancy
Christal, 914-722-4704
VP,
Investor Relations
or
Media:
Eileen
Howard Dunn, 401-770-4561
VP,
Corporate Communications
EXHIBIT
99.3
E.
Mac Crawford’s Pre-existing Caremark Employment Arrangements and
Benefits
Caremark
Employment Agreement.
Under
Caremark’s employment agreement with E. Mac Crawford, in connection with Mr.
Crawford’s retirement from Caremark, Mr. Crawford is entitled to receive (1) an
aggregate severance
payment equal to the sum of (A) his base salary for the remaining term
of his
employment agreement and (B) a separation payment equal to at least two
times
his base salary (the separation payment being the cash equivalent of
Mr.
Crawford’s annual bonus target) multiplied by the number of years (including
fractions of years) remaining in the term of his employment agreement,
and (2)
continuation of welfare benefits (e.g., health, dental, disability and
life
insurance) for the remaining term of his employment agreement. Mr. Crawford’s
employment agreement was to expire on September 1, 2015. Upon his resignation,
Mr. Crawford was entitled to a cash severance payment as described in
clause (1)
in an amount of approximately $40,800,000. Mr. Crawford, however, as
an
indication of his commitment to the merger and his confidence in the
long-term
economic benefits to be derived from the merger, has agreed to accept
cash
severance payments in the reduced amount of $26,400,000.
Supplemental
Executive Retirement Plan.
Mr.
Crawford participates in Caremark’s Supplemental Executive Retirement Plan and
he became fully vested in all benefits payable under the plan in November
of
2006. This plan entitles Mr. Crawford to a benefit equal to 60% of his
“final
average compensation” (defined as the average of his highest monthly base salary
during any 36-month period during the 72 months preceding his termination)
and
becomes payable on a monthly basis on the first of the month following
Mr.
Crawford’s termination of employment with Caremark. The monthly payment amount
is reduced by 1/96 for each full month that benefits commence prior to
Mr.
Crawford reaching the age of 60. At Mr. Crawford’s option, the benefits can be
paid in the form of a joint and survivor annuity as specified in the
plan or as
a life annuity or in six annual installments. It is expected that the
benefit
will be funded through a trust established by Caremark.
Survivor
Benefit Agreement.
Mr.
Crawford and Caremark have entered into a Survivor Benefit Agreement.
In
connection with the termination of Mr. Crawford’s employment, Caremark is
obligated to transfer to Mr. Crawford ownership of an insurance policy
with a
specified minimum death benefit at the time of such transfer equal to
$17
million and a minimum cash value at the time of the transfer of $3,666,256.
If
Mr. Crawford recognizes taxable income for federal tax purposes at the
time of
the transfer of the insurance policy, Caremark is obligated to pay Mr.
Crawford
a tax gross-up amount equal to the amount of federal income taxes, including
taxes attributable to payment of the gross-up amount.
Equity
Holdings.
As of
the date hereof, Mr. Crawford holds approximately 133,600 shares of CVS
common
stock and options to purchase approximately 10,179,915 additional shares
of CVS
common stock under pre-existing Caremark stock incentive plans (this
option
estimate is subject to further verification based on option adjustment
calculations in connection with the merger, which calculations are currently
being performed).