<PAGE> 1
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For The Quarter Ended March 31, 1999 Commission File Number 0-12591
CARDINAL HEALTH, INC.
(Exact name of registrant as specified in its charter)
OHIO 31-0958666
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
7000 CARDINAL PLACE, DUBLIN, OHIO 43017
(Address of principal executive offices and zip code)
(614) 757-5000
(Registrant's telephone number, including area code)
5555 Glendon Court, Dublin, Ohio 43016
(Former Address)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No
--------- ---------
The number of Registrant's Common Shares outstanding at the close of
business on April 30, 1999 was as follows:
Common Shares, without par value: 272,451,979
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CARDINAL HEALTH, INC. AND SUBSIDIARIES
Index *
<TABLE>
<CAPTION>
Page No.
--------
Part I. Financial Information:
----------------------
<S> <C> <C>
Item 1. Financial Statements:
Condensed Consolidated Statements of Earnings for the Three and Nine Months
Ended March 31, 1999 and 1998 ..................................................... 3
Condensed Consolidated Balance Sheets at March 31, 1999 and
June 30, 1998 ..................................................................... 4
Condensed Consolidated Statements of Cash Flows for the Nine Months Ended
March 31, 1999 and 1998............................................................ 5
Notes to Condensed Consolidated Financial Statements .............................. 6
Item 2. Management's Discussion and Analysis of Results of Operations
and Financial Condition............................................................ 9
Item 3. Quantitative and Qualitative Disclosures about Market Risk......................... 13
Part II. Other Information:
------------------
Item 1. Legal Proceedings.................................................................. 14
Item 4. Submission of Matters to a Vote of Security Holders................................ 15
Item 6. Exhibits and Reports on Form 8-K................................................... 15
</TABLE>
* Items not listed are inapplicable.
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PART I. FINANCIAL INFORMATION
CARDINAL HEALTH, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF EARNINGS
(UNAUDITED)
(IN MILLIONS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
MARCH 31, MARCH 31,
1999 1998 1999 1998
---------------- ---------------- ---------------- ----------------
<S> <C> <C> <C> <C>
Revenue:
Operating revenue $ 5,558.7 $ 4,643.6 $ 15,827.3 $ 13,166.9
Bulk deliveries to customer warehouses 874.7 720.1 2,656.2 2,151.9
---------------- ---------------- ---------------- ----------------
Total revenue 6,433.4 5,363.7 18,483.5 15,318.8
Cost of products sold:
Operating cost of products sold 4,887.4 4,070.9 13,928.9 11,549.3
Cost of products sold - bulk deliveries 874.7 720.1 2,656.2 2,151.9
Merger-related costs 4.0 - 4.0 -
---------------- ---------------- ---------------- ----------------
Total cost of products sold 5,766.1 4,791.0 16,589.1 13,701.2
Gross margin 667.3 572.7 1,894.4 1,617.6
Selling, general and administrative expenses 393.2 348.2 1,159.8 1,020.9
Special Charges:
Merger-related costs (83.5) (21.2) (121.0) (26.6)
Facilities closures and employee severance - (8.6) - (8.6)
---------------- ---------------- ---------------- ----------------
Operating earnings 190.6 194.7 613.6 561.5
Other income (expense):
Interest expense (26.5) (24.8) (75.1) (70.5)
Other, net (5.2) (5.2) (12.0) (10.5)
---------------- ---------------- ---------------- ----------------
Earnings before income taxes 158.9 164.7 526.5 480.5
Provision for income taxes 77.0 55.5 219.6 173.7
---------------- ---------------- ---------------- ----------------
Net earnings $ 81.9 $ 109.2 $ 306.9 $ 306.8
================ ================ ================ ================
Earnings per Common Share:
Basic $ 0.30 $ 0.40 $ 1.13 $ 1.13
Diluted $ 0.29 $ 0.39 $ 1.10 $ 1.11
Weighted average number of Common Shares outstanding:
Basic 271.9 271.4 271.1 271.2
Diluted 279.8 277.3 278.6 277.0
Cash dividends declared per Common Share $ 0.025 $ 0.020 $ 0.075 $ 0.053
</TABLE>
See notes to condensed consolidated financial statements.
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CARDINAL HEALTH, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(UNAUDITED)
(IN MILLIONS)
<TABLE>
<CAPTION>
MARCH 31, JUNE 30,
1999 1998
--------------- --------------
<S> <C> <C>
ASSETS
Current assets:
Cash and equivalents $ 175.6 $ 373.3
Trade receivables, net 1,662.9 1,436.3
Current portion of net investment in sales-type leases 136.6 91.4
Merchandise inventories 3,141.7 2,608.1
Prepaid expenses and other 310.4 277.0
--------------- --------------
Total current assets 5,427.2 4,786.1
--------------- --------------
Property and equipment, at cost: 2,700.1 2,601.7
Accumulated depreciation and amortization (1,187.0) (1,134.0)
--------------- --------------
Property and equipment, net 1,513.1 1,467.7
Other assets:
Net investment in sales-type leases, less current portion 391.1 233.1
Goodwill and other intangibles 918.4 850.5
Other 229.9 140.6
--------------- --------------
Total $ 8,479.7 $ 7,478.0
=============== ==============
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Notes payable, banks $ 115.2 $ 24.7
Current portion of long-term obligations 8.7 7.3
Accounts payable 2,308.4 2,142.7
Other accrued liabilities 612.6 550.7
--------------- --------------
Total current liabilities 3,044.9 2,725.4
--------------- --------------
Long-term obligations, less current portion 1,540.8 1,330.0
Deferred income taxes and other liabilities 622.4 467.7
Shareholders' equity:
Common Shares, without par value 1,115.6 1,063.6
Retained earnings 2,296.1 2,006.9
Common Shares in treasury, at cost (87.2) (82.3)
Cumulative foreign currency adjustment (44.5) (27.9)
Other (8.4) (5.4)
--------------- --------------
Total shareholders' equity 3,271.6 2,954.9
--------------- --------------
Total $ 8,479.7 $ 7,478.0
=============== ==============
</TABLE>
See notes to condensed consolidated financial statements.
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CARDINAL HEALTH, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
(IN MILLIONS)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
MARCH 31,
1999 1998
-------- --------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net earnings $ 306.9 $ 306.8
Adjustments to reconcile net earnings to net cash from operating activities:
Depreciation and amortization 168.4 162.0
Provision for bad debts 9.9 9.6
Change in operating assets and liabilities, net of effects from acquisitions:
Increase in trade receivables (241.3) (167.8)
Increase in merchandise inventories (531.6) (721.7)
Increase in net investment in sales-type leases (199.7) (62.6)
Increase in accounts payable 164.9 509.2
Increase in accrued other 191.2 2.1
Other operating items, net (41.9) 90.5
-------- --------
Net cash provided by/(used in) operating activities (173.2) 128.1
-------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Acquisition of subsidiaries, net of cash acquired (78.2) (41.6)
Proceeds from sale of property and equipment 6.9 6.1
Additions to property and equipment (231.2) (206.9)
Other - (7.9)
-------- --------
Net cash used in investing activities (302.5) (250.3)
-------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Net short-term borrowing activity 89.8 26.0
Reduction of long-term obligations (22.8) (46.1)
Proceeds from long-term obligations, net of issuance costs 232.7 50.9
Proceeds from issuance of Common Shares 54.9 34.7
Dividends on Common Shares and cash paid
in lieu of fractional shares (31.0) (31.1)
Purchase of treasury shares (44.1) (58.4)
Other (1.3) (10.8)
-------- --------
Net cash provided by/(used in) financing activities 278.2 (34.8)
EFFECT OF CURRENCY TRANSLATION ON CASH AND
EQUIVALENTS (0.2) (1.2)
-------- --------
NET DECREASE IN CASH AND EQUIVALENTS (197.7) (158.2)
CASH AND EQUIVALENTS AT BEGINNING OF PERIOD 373.3 302.1
-------- --------
CASH AND EQUIVALENTS AT END OF PERIOD $ 175.6 $ 143.9
======== ========
</TABLE>
See notes to condensed consolidated financial statements.
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CARDINAL HEALTH, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
Note 1. The condensed consolidated financial statements of Cardinal Health,
Inc. (the "Company") include the accounts of all majority-owned
subsidiaries and all significant intercompany amounts have been
eliminated. The condensed consolidated financial statements contained
herein have been restated to give retroactive effect to the merger
transactions with MediQual Systems, Inc. ("MediQual") on February 18,
1998, R.P. Scherer Corporation ("Scherer") on August 7, 1998 and
Allegiance Corporation ("Allegiance") on February 3, 1999, all of
which were accounted for as pooling of interests business combinations
(see Note 5).
These condensed consolidated financial statements have been prepared
in accordance with the instructions to Form 10-Q and include all of
the information and disclosures required by generally accepted
accounting principles for interim reporting. In the opinion of
management, all adjustments necessary for a fair presentation have
been included. Except as disclosed elsewhere herein, all such
adjustments are of a normal and recurring nature.
The condensed consolidated financial statements included herein should
be read in conjunction with the audited consolidated financial
statements and related notes contained in the Company's Annual Report
on Form 10-K for the fiscal year ended June 30, 1998, and in the
Company's Current Reports on Form 8-K/A (Amendment No. 1) filed on
September 28, 1998 and March 18, 1999.
Note 2. Basic earnings per Common Share ("Basic") is computed by dividing
net earnings (the numerator) by the weighted average number of Common
Shares outstanding during each period (the denominator). Diluted
earnings per Common Share is similar to the computation for Basic,
except that the denominator is increased by the dilutive effect of
stock options outstanding, computed using the treasury stock method.
Note 3. On August 12, 1998, the Company declared a three-for-two stock
split which was effected as a stock dividend and distributed on
October 30, 1998 to shareholders of record at the close of business on
October 9, 1998. All share and per share amounts included in the
condensed consolidated financial statements have been adjusted to
retroactively reflect the stock split.
Note 4. As of September 30, 1998, the Company adopted Statement of Financial
Accounting Standards No. 130, "Reporting Comprehensive Income" ("SFAS
130"). SFAS 130 requires the presentation of comprehensive income and
its components in a full set of general purpose financial statements.
The Company's comprehensive income consists of net earnings and
foreign currency translation adjustments. For the three months ended
March 31, 1999, total comprehensive income was $62.1 million,
comprised of $81.9 million of net earnings and $19.8 million loss on
foreign currency translation. Total comprehensive income for the
comparable period of fiscal year 1998 was $102.7 million, comprised of
$109.2 million of net earnings offset by $6.5 million of loss on
foreign currency translation. For the nine months ended March 31,
1999, total comprehensive income was $290.3 million, comprised of net
earnings of $306.9 million offset by a loss on foreign currency
translation of $16.6 million. Total comprehensive income for the first
nine months of fiscal year 1998 was $293.1 million, comprised of
$306.8 million of net earnings offset by $13.7 million of loss on
foreign currency translation.
Note 5. On February 3, 1999, the Company completed a merger transaction with
Allegiance (the "Allegiance Merger") which was accounted for as a
pooling of interests. In the Allegiance merger, the Company issued
approximately 70.7 million Common Shares to Allegiance stockholders
and Allegiance's outstanding stock options were converted into options
to purchase approximately 10.3 million Common Shares.
On August 7, 1998, the Company completed a merger transaction with
Scherer (the "Scherer Merger"), which was accounted for as a pooling
of interests. In the Scherer Merger, the Company issued approximately
34.2 million Common Shares to Scherer stockholders and Scherer's
outstanding stock options were converted into options to purchase
approximately 3.5 million Common Shares.
The Company's fiscal year end is June 30, while Scherer's fiscal year
end was March 31. The condensed consolidated financial statements
combine the Company's results for the three and nine month periods
ended March 31, 1999 with Scherer's results for the same period.
However, for the three and nine months
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ended March 31, 1998, the condensed consolidated financial statements
combine the Company's results with Scherer's results for the three and
nine months ended December 31, 1997, respectively.
Due to the change in Scherer's fiscal year end from March 31 to
conform with the Company's June 30 fiscal year end, Scherer's results
of operations for the three months ended June 30, 1998 will not be
included in the combined results of operations but will be reflected
as an adjustment to combined retained earnings. Scherer's net revenue
and net earnings for this period were $161.6 million and $8.6 million,
respectively. Scherer's cash flows from operating and financing
activities for this period were $12.6 million and $32.6 million,
respectively, while cash flows used in investing activities were $12.2
million.
Note 6. Costs of effecting mergers and subsequently integrating the operations
of the various merged companies are recorded as merger-related costs
when incurred. During the three and nine months ended March 31, 1999,
merger-related costs totaling $87.5 million ($74.2 million, net of
tax) and $125.0 million ($103.9 million, net of tax) were recorded,
respectively. Of the amount recorded during the nine months ended
March 31, 1999, approximately $85.0 million related to transaction and
employee-related costs, and $30.7 million related to business
restructuring and asset impairment costs associated with the Company's
merger transactions with Scherer and Allegiance. Of the amount
recorded during the three months ended March 31, 1999, approximately
$62.7 million related to transaction and employee-related costs and
$18.2 million related to business restructuring and asset impairments
costs associated with the Company's merger transactions with Scherer
and Allegiance. In addition, the Company recorded costs of $4.0
million related to the write down of impaired inventory related to a
previous merger and $1.1 million, during the first half of fiscal
1999, related to severance costs for a restructuring associated with
the change in management that resulted from the merger with Owen
Healthcare, Inc. The Company recorded costs of $7.9 million, of which
$4.8 million was recorded during the first half of fiscal 1999,
related to integrating the operations of companies that previously
engaged in merger transactions with the Company. Partially offsetting
the charge recorded was a $3.7 million credit, which includes $3.2
million recorded during the first half of fiscal 1999, to adjust the
estimated transaction and termination costs previously recorded in
connection with the canceled merger transaction with Bergen Brunswig
Corporation ("Bergen") (see Note 10). This adjustment relates
primarily to services provided by third parties engaged by the Company
in connection with the terminated Bergen transaction. The cost of such
services was estimated and recorded in the prior periods when the
services were performed. Actual billings were less than the estimate
originally recorded, resulting in a reduction of the current period
merger-related costs.
During the three and nine month periods ended March 31, 1998,
merger-related costs totaled $21.2 million ($18.5 million, net of tax)
and $26.6 million ($21.7 million, net of tax), respectively. Of the
amount recorded during the third quarter of fiscal 1998, $13.3 million
related to transaction costs incurred in connection with the proposed
merger transaction with Bergen (see Note 10), $2.3 million related to
transaction costs incurred in connection with the merger with
MediQual, while the remaining $5.6 million in the three-month period
and $11.0 million in the nine-month period related to integrating the
operations of companies that previously merged with Cardinal.
During the three months ended March 31, 1998, the Company recorded a
special charge of $8.6 million ($5.2 million, net of tax) related to
the rationalization of its distribution operations. Approximately $6.1
million related to asset impairments and lease exit costs resulting
primarily from the Company's decision to accelerate the consolidation
of a number of distribution facilities and the relocation to more
modern facilities for certain others. The remaining amount related to
employee severance costs for plans announced prior to March 31, 1998,
including approximately $2.0 million incurred in connection with the
final settlement of a labor dispute with former employees of the
Company's Boston distribution facility, resulting in termination of
the union relationship.
Lastly, during the three months ended December 31, 1997, Scherer
finalized part of its long-term tax planning strategy by converting,
with its joint venture partner, the legal ownership structure of
Scherer's 51% owned subsidiary in Germany from a corporation to a
partnership. As a result of this change in tax status, the Company's
tax basis in the German subsidiary was adjusted, resulting in a
one-time tax refund of approximately $4.6 million, as well as a
reduction in cash taxes to be paid in the current and future years.
Combined, these factors resulted in a one-time reduction of income tax
expense by approximately $11.7 million during the three months ended
December 31, 1997.
The net effect of the various merger-related costs and other special
items recorded during the three months ended March 31, 1999 and 1998
was to reduce net earnings by $74.2 million to $81.9 million and by
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$12.0 million to $109.2 million, respectively, and to reduce reported
diluted earnings per Common Share by $0.27 per share to $0.29 per
share and by $0.05 per share to $0.39 per share, respectively. In
addition, the net effect of the various merger-related costs and other
special items recorded during the nine months ended March 31, 1999 and
1998 was to reduce net earnings by $103.9 million to $306.9 million
and by $15.2 million to $306.8 million, respectively, and to reduce
reported diluted earnings per Common Share by $0.38 per share to $1.10
per share and by $0.06 per share to $1.11 per share, respectively.
Note 7. In fiscal 1993, a restructuring plan was designed in part to make
Allegiance more efficient and responsive in addressing the changes in
the U.S. healthcare system. Charges totaling $560.0 million were
recorded to cover costs associated with these restructuring
initiatives. During the nine months ended March 31, 1999, spending
against the Allegiance 1993 restructuring reserve amounted to $12.9
million, which includes $7.3 million related to spending during the
first half of fiscal 1999. In addition during the first half of fiscal
1999, $7.9 million of unnecessary restructuring reserves were
reversed. The reversal of unnecessary reserves was principally the
result of facility closures and consolidations being finalized at
costs lower than originally anticipated.
The cash outflows, of approximately $5.7 million during the nine
months ended March 31, 1999, pertain primarily to employee-related
costs for severance, outplacement assistance, relocation,
implementation teams and facility consolidations. Since the inception
of the restructuring program in November 1993, approximately 2,500
positions have been eliminated. As of March 31, 1999, the remaining
restructuring reserve balance is $3.9 million which is classified as
current liabilities. The remaining expenditures to be charged against
the restructuring program will occur during the fourth quarter of
fiscal 1999, as implementation projects are completed as planned.
Note 8. On March 31, 1999, the Company entered into a $250 million
short-term revolving credit facility and a $750 million revolving
credit facility, which expires on March 31, 2004. There were no
amounts outstanding under the facility as of March 31, 1999.
Note 9. On September 30, 1996, Baxter International, Inc. ("Baxter") and
its subsidiaries transferred to Allegiance Corporation ("Allegiance")
and its subsidiaries their U.S. healthcare distribution business,
surgical and respiratory therapy business and healthcare cost-saving
business, as well as certain foreign operations (the "Allegiance
Business") in connection with a spin-off of the Allegiance Business by
Baxter. In connection with this spin-off, Allegiance, which was
acquired by the Company on February 3, 1999, assumed the defense of
litigation involving claims related to the Allegiance Business from
Baxter Healthcare Corporation ("BHC"), including certain claims of
alleged personal injuries as a result of exposure to natural rubber
latex gloves described below. Allegiance will be defending and
indemnifying BHC, as contemplated by the agreements between Baxter and
Allegiance, for all expenses and potential liabilities associated with
claims pertaining to the litigation assumed by Allegiance. As of April
30, 1999, there were approximately 400 lawsuits involving BHC and/or
Allegiance containing allegations of sensitization to natural rubber
latex products. Since none of these cases has proceeded to a hearing
on the merits, the Company is unable to evaluate the extent of any
potential liability, and unable to estimate any potential loss.
Because of the increase in claims filed and the ongoing defense costs
that will be incurred, the Company believes it is probable that it
will continue to incur significant expenses related to the defense of
cases involving natural rubber latex gloves.
Although the ultimate resolution of litigation cannot be forecast with
certainty, the Company does not believe that the outcome of any
pending litigation would have a material adverse effect on the
Company's consolidated financial statements.
Note 10. On August 24, 1997, the Company and Bergen announced that they had
entered into a definitive merger agreement, as amended, pursuant to
which a wholly owned subsidiary of the Company would be merged with
and into Bergen (the "Bergen Merger Agreement"). On July 31, 1998, the
United States District Court for the District of Columbia granted the
Federal Trade Commission's request for a preliminary injunction to
halt the proposed merger. On August 7, 1998, the Company and Bergen
jointly terminated the Bergen Merger Agreement and, in accordance with
the terms of the Bergen Merger Agreement, the Company reimbursed
Bergen for $7.0 million of transaction costs. Additionally, the
termination of the Bergen Merger Agreement caused the costs incurred
by the Company (that would not have been deductible had the merger
been consummated) to become tax deductible for federal income tax
purposes, resulting in a tax benefit of $12.2 million. The obligation
to reimburse Bergen and the additional tax benefit were recorded in
the fourth quarter of the fiscal year ended June 30, 1998.
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS
OF RESULTS OF OPERATIONS AND FINANCIAL CONDITION
Management's discussion and analysis presented below has been prepared to
give retroactive effect to the pooling of interests business combinations with
MediQual Systems, Inc. ("MediQual") on February 18, 1998, R.P. Scherer
Corporation ("Scherer") on August 7, 1998 and Allegiance Corporation
("Allegiance") on February 3, 1999. The discussion and analysis is concerned
with material changes in financial condition and results of operations for the
Company's condensed consolidated balance sheets as of March 31, 1999 and June
30, 1998, and for the condensed consolidated statements of earnings for the
three and nine month periods ended March 31, 1999 and 1998.
This discussion and analysis should be read together with management's
discussion and analysis included in the Company's Annual Report on Form 10-K for
the fiscal year ended June 30, 1998 and in the Company's Current Reports on Form
8-K/A (Amendment No. 1) filed with the Securities and Exchange Commission on
September 28, 1998 and March 18, 1999.
Portions of management's discussion and analysis presented below include
"forward-looking statements" within the meaning of the Private Securities
Litigation Reform Act of 1995. The words "believe", "expect", "anticipate",
"project", and similar expressions, among others, identify "forward-looking
statements", which speak only as of the date the statement was made. Such
forward-looking statements are subject to risks, uncertainties and other factors
which could cause actual results to materially differ from those made, projected
or implied. The most significant of such risks, uncertainties and other factors
are described in this report, in the Company's Annual Report on Form 10-K, and
in Exhibit 99.01 to this Form 10-Q. The Company undertakes no obligation to
publicly update or revise any forward-looking statements, whether as a result of
new information, future events, or otherwise.
RESULTS OF OPERATIONS
Operating Revenue. Operating revenue for both the three and nine month
periods ended March 31, 1999 increased 20% as compared to the prior year.
Distribution businesses (those whose primary operations involve the wholesale
distribution of pharmaceuticals, representing approximately 69% of total
operating revenue) grew at a rate of 25% and 27%, respectively, during the three
and nine month periods ended March 31, 1999. The increase in Distribution
revenue was directly related to the increase in chain drugstore sales for both
the three and nine month periods ended March 31, 1999. The Service businesses
(those that provide services to the healthcare industry, primarily through
pharmacy franchising, pharmacy automation equipment, pharmacy management,
pharmaceutical packaging, drug delivery systems development and healthcare
information systems development, representing approximately 10% of total
operating revenue) grew at a rate of 15% and 17%, respectively, during the
comparable periods of fiscal year 1999, primarily due to the Company's pharmacy
automation and pharmaceutical packaging businesses. The Medical/Surgical Product
Manufacturing and Distribution ("Med/Surg") business (primary operations include
manufacturing and the wholesale distribution of medical surgical supplies
representing approximately 21% of total operating revenue) grew at a rate of 6%
during both the three and nine month periods ended March 31, 1999, primarily due
to an increase in sales of best value products and self manufactured products.
The majority of the operating revenue increase (approximately 71% and 74% for
the three and nine month periods ended March 31, 1999, respectively) came from
existing customers in the form of increased volume and price increases. The
remainder of the growth came from the addition of new customers.
Bulk Deliveries to Customer Warehouses. The Company reports as revenue bulk
deliveries made to customers' warehouses, whereby the Company acts as an
intermediary in the ordering and subsequent delivery of pharmaceutical products.
Fluctuations in bulk deliveries result largely from circumstances that are
beyond the control of the Company, including consolidation within customers'
industries, decisions by customers to either begin or discontinue warehousing
activities, and changes in policies by manufacturers related to selling directly
to customers. Due to the lack of margin generated through bulk deliveries,
fluctuations in their amount have no significant impact on the Company's
operating earnings.
Gross Margin. For the three month periods ended March 31, 1999 and 1998,
gross margin as a percentage of operating revenue was 12.01% and 12.33%,
respectively. For the nine month periods ended March 31, 1999 and 1998, gross
margin as a percentage of operating revenue was 11.97% and 12.29%, respectively.
The decrease in the
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gross margin percentage is due primarily to a greater mix of lower margin
Distribution business in the three and nine months ended March 31, 1999, and a
general decline in the Distribution businesses gross margin.
The Distribution businesses' gross margin as a percentage of operating
revenue decreased for the third quarter of the current fiscal year from 5.80% a
year ago to 5.65%. In addition, Distribution's gross margin as a percentage of
operating revenue was 5.34% and 5.59%, respectively, for the nine month periods
ended March 31, 1999 and 1998. These decreases were primarily due to the impact
of lower selling margins resulting from a highly competitive market. Also a
greater mix of high volume customers, where a lower cost of distribution and
better asset management enable the Company to offer lower selling margins to its
customers, has contributed to the decrease in the gross margin. The Distribution
businesses achieved 25% and 27% operating revenue growth during the three and
nine months ended March 31, 1999, respectively, primarily through the addition
or expansion of business with large, high volume customers.
The Service businesses' gross margin as a percentage of operating revenue
for the third quarter of fiscal 1999 and fiscal 1998 was 32.91% and 31.29%,
respectively. For the nine month periods ended March 31, 1999 and 1998,
Service's gross margin as a percentage of operating revenue was 32.27% and
31.59%, respectively. Increased operating revenue for the Company's relatively
high margin pharmacy automation business was the primary contributor to the
gross margin improvement.
Med/Surg businesses' gross margin as a percentage of operating revenue for
the third quarter of fiscal 1999 and fiscal 1998 was 23.23% and 21.91%,
respectively. For the nine month periods ended March 31, 1999 and 1998, Med/Surg
gross margin as a percentage of operating revenue was 23.16% and 21.35%,
respectively. The positive change in gross margin was a result of increased
sales of relatively higher margin self manufactured and distributed best value
products. Med/Surg gross margin was also positively impacted by lower
manufacturing costs.
Selling, General and Administrative Expenses. Selling, general and
administrative expenses as a percentage of operating revenue declined to 7.07%
in the third quarter of fiscal 1999 compared to 7.50% for the same period of
fiscal 1998, and 7.33% for the nine month period ended March 31, 1999 compared
to 7.75% for the same period in the prior year. The improvements in the third
quarter and nine month period reflect economies associated with the Company's
revenue growth, as well as significant productivity gains resulting from
continued cost control efforts and the consolidation and selective automation of
operating facilities. The 12.92% and 13.61% growth in selling, general and
administrative expenses experienced in the three and nine months ended March 31,
1999, respectively, was due primarily to increases in personnel costs and
depreciation expense, and compares favorably to the 20% growth in operating
revenue for the same respective periods.
Merger-Related Costs. Costs of effecting mergers and subsequently
integrating the operations of the various merged companies are recorded as
merger-related costs when incurred. During the three and nine months ended March
31, 1999, merger-related costs totaling $87.5 million ($74.2 million, net of
tax) and $125.0 million ($103.9 million, net of tax) were recorded,
respectively. Of the amount recorded during the nine months ended March 31,
1999, approximately $85.0 million related to transaction and employee-related
costs, and $30.7 million related to business restructuring and asset impairment
costs associated with the Company's merger transactions with Scherer and
Allegiance. Of the amount recorded during the three months ended March 31, 1999,
approximately $62.7 million related to transaction and employee-related costs
and $18.2 million related to business restructuring and asset impairments costs
associated with the Company's merger transactions with Scherer and Allegiance.
In addition, the Company recorded costs of $4.0 million related to the write
down of impaired inventory related to a previous merger and $1.1 million, during
the first half of fiscal 1999, related to severance costs for a restructuring
associated with the change in management that resulted from the merger with Owen
Healthcare, Inc. The Company recorded costs of $7.9 million, of which $4.8
million was recorded during the first half of fiscal 1999, related to
integrating the operations of companies that previously engaged in merger
transactions with the Company. Partially offsetting the charge recorded was a
$3.7 million credit, which includes $3.2 million recorded during the first half
of fiscal 1999, to adjust the estimated transaction and termination costs
previously recorded in connection with the canceled merger transaction with
Bergen Brunswig Corporation ("Bergen") (see Note 10 of "Notes to Condensed
Consolidated Financial Statements"). This adjustment relates primarily to
services provided by third parties engaged by the Company in connection with the
terminated Bergen transaction. The cost of such services was estimated and
recorded in the prior periods when the services were performed. Actual billings
were less than the estimate originally recorded, resulting in a reduction of the
current period merger-related costs.
During the three and nine month periods ended March 31, 1998,
merger-related costs totaled $21.2 million ($18.5 million, net of tax) and $26.6
million ($21.7 million, net of tax), respectively. Of the amount recorded during
the third quarter of fiscal 1998, $13.3 million related to transaction costs
incurred in connection with the
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proposed merger transaction with Bergen (see Note 10 of "Notes to Condensed
Consolidated Financial Statements"), $2.3 million related to transaction costs
incurred in connection with the merger with MediQual, with the remaining $5.6
million in the three-month period and $11.0 million in the nine-month period,
related to integrating the operations of companies that previously merged with
Cardinal.
During the three months ended March 31, 1998, the Company recorded a
special charge of $8.6 million ($5.2 million, net of tax) related to the
rationalization of its distribution operations. Approximately $6.1 million
related to asset impairments and lease exit costs resulting primarily from the
Company's decision to accelerate the consolidation of a number of distribution
facilities and the relocation to more modern facilities for certain others. The
remaining amount related to employee severance costs for plans announced prior
to March 31, 1998, including approximately $2.0 million incurred in connection
with the final settlement of a labor dispute with former employees of the
Company's Boston distribution facility, resulting in termination of the union
relationship.
Lastly, during the three months ended December 31, 1997, Scherer finalized
part of its long-term tax planning strategy by converting, with its joint
venture partner, the legal ownership structure of Scherer's 51% owned subsidiary
in Germany from a corporation to a partnership. As a result of this change in
tax status, the Company's tax basis in the German subsidiary was adjusted,
resulting in a one-time tax refund of approximately $4.6 million, as well as a
reduction in cash taxes to be paid in the current and future years. Combined,
these factors resulted in a one-time reduction of income tax expense, during the
three months ended December 31, 1997, by approximately $11.7 million.
The Company estimates that it will incur additional merger-related costs
associated with the various mergers it has completed to date (primarily related
to the Scherer and Allegiance mergers) of approximately $123.1 million ($75.4
million, net of tax) in future periods (primarily fiscal 1999 and 2000) in order
to exit contractual arrangements, properly integrate operations and implement
efficiencies. Such amounts will be charged to expense when incurred.
The net effect of various merger-related costs and other special items
recorded during the three months ended March 31, 1999 and 1998 was to reduce net
earnings by $74.2 million to $81.9 million and by $12.0 million to $109.2
million, respectively, and to reduce reported diluted earnings per Common Share
by $0.27 per share to $0.29 per share and by $0.05 per share to $0.39 per share,
respectively. In addition, the net effect of various merger-related costs and
other special items recorded during the nine month periods ended March 31, 1999
and 1998 was to reduce net earnings by $103.9 million to $306.9 million and by
$15.2 million to $306.8 million, respectively, and to reduce reported diluted
earnings per Common Share by $0.38 per share to $1.10 per share and by $0.06 per
share to $1.11 per share, respectively.
Other Income (Expense). The increase in interest expense of $1.7 million in
the third quarter and $4.6 million during the first nine months of fiscal 1999
compared to the same respective periods of fiscal 1998 is primarily due to the
Company's issuance of $150 million, 6.25% Notes due 2008, in a public offering
in July 1998 (see "Liquidity and Capital Resources").
Provision for Income Taxes. The Company's provision for income taxes
relative to pre-tax earnings was 48% and 34% for the third quarter of fiscal
1999 and 1998, respectively. For the nine month periods ended March 31, 1999 and
1998, the Company's income tax provision as a percentage of pre-tax earnings was
42% and 36%, respectively. The increase in the effective tax rate compared to
the same periods a year ago is due primarily to nondeductible items associated
with the current year's business combinations (see Note 6 of "Notes to Condensed
Consolidated Financial Statements").
LIQUIDITY AND CAPITAL RESOURCES
Working capital increased to $2.4 billion at March 31, 1999 from $2.1
billion at June 30, 1998. This increase included additional investments in
merchandise inventories and trade receivables of $533.6 million and $226.6
million, respectively. Slightly offsetting the increases in working capital was
a decrease in cash and equivalents of $197.7 million and an increase in accounts
payable and notes payable-banks of $165.7 million and $90.5 million,
respectively. The increase in merchandise inventories reflects normal seasonal
purchases of pharmaceutical inventories and the higher level of current and
anticipated business volume in pharmaceutical distribution activities. The
increase in trade receivables is consistent with the Company's operating revenue
growth (see "Operating Revenue" above). The change in cash and equivalents,
accounts payable and notes payable-banks is due primarily to the timing of
inventory purchases and related payments.
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Net investment in sales-type leases, both current and long term, increased
by $203.2 million from $324.5 million at June 30, 1998 to $527.7 million at
March 31, 1999. The increase is primarily due to the Company discontinuing its
program of selling lease receivables to a third party financing company during
fiscal year 1998.
In June 1998, the Company commenced a commercial paper program, providing
for the issuance of up to $750 million in aggregate maturity value of commercial
paper. At March 31, 1999, commercial paper with an effective interest rate of
5.85% and an aggregate maturity value of $263 million was outstanding.
On July 13, 1998, the Company issued $150 million of 6.25% Notes due 2008,
the proceeds of which are expected to be used for working capital needs due to
the growth in the Company's business. The Company currently has the capacity to
issue $250 million of additional debt securities pursuant to a shelf
registration statement filed with the Securities and Exchange Commission.
On March 31, 1999, the Company entered into a $250 million short-term
revolving credit facility and a $750 million revolving credit facility, which
expires on March 31, 2004. There were no amounts outstanding under the facility
as of March 31, 1999.
Property and equipment, at cost, increased by $98.4 million from June 30,
1998. The increase was primarily due to ongoing plant expansion and
manufacturing equipment purchases in certain service businesses, as well as
additional investments made for management information systems and upgrades to
distribution facilities.
Shareholders' equity increased to $3.3 billion at March 31, 1999 from $3.0
billion at June 30, 1998, primarily due to net earnings of $306.9 million, the
investment of $71.7 million by employees of the Company through various stock
incentive plans and the adjustment related to the change in Scherer's fiscal
year of $8.6 million during the nine month period ended March 31, 1999 which are
offset by dividends of $31.0 million (see Note 5 of "Notes to Condensed
Consolidated Financial Statements").
The Company believes that it has adequate capital resources at its disposal
to fund currently anticipated capital expenditures, business growth and
expansion, and current and projected debt service requirements. See "Other"
below.
OTHER
Termination Agreement. On August 24, 1997, the Company and Bergen
announced that they had entered into a definitive merger agreement, as amended,
pursuant to which a wholly owned subsidiary of the Company would be merged with
and into Bergen (the "Bergen Merger Agreement"). On July 31, 1998, the United
States District Court for the District of Columbia granted the Federal Trade
Commission's request for a preliminary injunction to halt the proposed merger.
On August 7, 1998, the Company and Bergen jointly terminated the Bergen Merger
Agreement and, in accordance with the terms of the Bergen Merger Agreement, the
Company reimbursed Bergen for $7.0 million of transaction costs. Additionally,
the termination of the Bergen Merger Agreement caused the costs incurred by the
Company (that would not have been deductible had the merger been consummated) to
become tax deductible for federal income tax purposes, resulting in a tax
benefit of $12.2 million. The obligation to reimburse Bergen and the additional
tax benefit were recorded in the fourth quarter of the fiscal year ended June
30, 1998.
Year 2000 Project. The Company utilizes computer technologies in each of
its businesses to effectively carry out its day-to-day operations. Computer
technologies include both information technology in the form of hardware and
software, as well as embedded technology in the Company's facilities and
equipment. Similar to most companies, the Company must determine whether its
systems are capable of recognizing and processing date sensitive information
properly in the year 2000. The Company is utilizing a multi-phased concurrent
approach to address this issue. The phases included in this approach are the
awareness, assessment, remediation, validation and implementation phases. The
Company has completed the awareness and assessment phases of its project and is
well into the remaining phases. The Company is actively correcting and replacing
those systems which are not year 2000 ready in order to ensure the Company's
ability to continue to meet its internal needs and those of its suppliers and
customers. The Company currently intends to substantially complete the
remediation, validation and implementation phases of the year 2000 project for
all its business critical systems prior to June 30, 1999. This process includes
the testing of critical systems to ensure that year 2000 readiness has been
accomplished. The Company currently believes it will be able to modify, replace,
or mitigate its affected systems in time to avoid any material detrimental
impact on its operations. If the Company determines that it is unable to
remediate and properly test affected systems on a timely
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basis, the Company intends to develop appropriate contingency plans for
any such mission-critical systems at the time such determination is made. While
the Company is not presently aware of any significant probability that its
systems will not be properly remediated on a timely basis, there can be no
assurances that all year 2000 remediation processes will be completed and
properly tested before the year 2000, or that contingency plans will
sufficiently mitigate the risk of a year 2000 readiness problem.
The Company estimates that the aggregate costs of its year 2000 project
will be approximately $27.0 million, including costs incurred to date. A
significant portion of these costs are not likely to be incremental costs, but
rather will represent the redeployment of existing resources. This reallocation
of resources is not expected to have a significant impact on the day-to-day
operations of the Company. During the three and nine month periods ended March
31, 1999, total costs of approximately $6.8 million and $10.4 million,
respectively, were incurred by the Company for this project, of which
approximately $2.4 million and $3.9 million, respectively, represented
incremental costs. Total accumulated costs of approximately $16.1 million have
been incurred by the Company through March 31, 1999, which includes
approximately $5.5 million represented incremental expense. The anticipated
impact and costs of the project, as well as the date on which the Company
expects to complete the project, are based on management's best estimates using
information currently available and numerous assumptions about future events.
However, there can be no guarantee that these estimates will be achieved and
actual results could differ materially from those plans. Based on its current
estimates and information currently available, the Company does not anticipate
that the costs associated with this project will have a material adverse effect
on the Company's consolidated financial position, results of operations or cash
flows in future periods.
The Company has initiated formal communications with its significant
suppliers, customers, and critical business partners to determine the extent to
which the Company may be vulnerable in the event that those parties fail to
properly remediate their own year 2000 issues. The Company has taken steps to
monitor the progress made by those parties, and intends to test critical system
interfaces as the year 2000 approaches. The Company is in the process of
developing appropriate contingency plans in the event that a significant
exposure is identified relative to the dependencies on third-party systems.
Although the Company is not presently aware of any such significant exposure,
there can be no guarantee that the systems of third parties on which the Company
relies will be converted in a timely manner, or that a failure to properly
convert by a third party would not have a material adverse effect on the
Company.
The potential risks associated with the year 2000 issues include, but are
not limited to: temporary disruption of the Company's operations, loss of
communication services and loss of other utility services. The Company believes
that the most reasonably likely worst-case year 2000 scenario would be a loss of
communication services which could result in problems with receiving,
processing, tracking and billing customer orders; problems receiving, processing
and tracking orders placed with suppliers; and problems with banks and other
financial institutions. Currently, as part of the Company's normal business
contingency planning, a plan has been developed for business disruptions due to
natural disasters and power failures. The Company is in the process of enhancing
these contingency plans to include provisions for year 2000 issues, although it
will not be possible to develop contingency plans for all potential disruption.
Although the Company anticipates that minimal business disruption will occur as
a result of the year 2000 issues, based upon currently available information,
incomplete or untimely resolution of year 2000 issues by either the Company or
significant suppliers, customers and critical business partners could have a
material adverse impact on the Company's consolidated financial position,
results of operations and/or cash flows in future periods.
The Euro Conversion. On January 1, 1999, certain member countries of the
European Union irrevocably fixed the conversion rates between their national
currencies and a common currency, the "Euro", which became their legal currency
on that date. The participating countries' former national currencies will
continue to exist as denominations of the Euro between January 1, 1999 and
January 1, 2002. The Company has addressed the business implications of
conversion to the Euro, including the need to adapt internal systems to
accommodate Euro-denominated transactions, the competitive implications of
cross-border price transparency, and other strategic implications. The Company
does not expect the conversion to the Euro to have a material impact on its
consolidated financial position, results of operations or cash flows in future
periods.
ITEM 3: QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Company believes there has been no material change in its exposure to
market risk from that discussed in the Company's Form 8-K/A (Amendment No. 1)
filed on March 18, 1999.
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PART II. OTHER INFORMATION
ITEM 1: LEGAL PROCEEDINGS
The following disclosure should be read together with the disclosure
set forth in the Company's Form 10-K for the fiscal year ended June 30, 1998,
the Company's Forms 10-Q for the quarters ended September 30, 1998 and December
31, 1998, and the Company's Forms 8-K filed with the Securities and Exchange
Commission subsequent to the end of the fiscal year ended June 30, 1998, and to
the extent any such statements constitute "forward looking statements",
reference is made to Exhibit 99.01 of this Form 10-Q.
In November 1993, the Company and Whitmire Distribution Corporation
("Whitmire"), one of the Company's wholly-owned subsidiaries, as well as other
pharmaceutical wholesalers, were named as defendants in a series of purported
class action lawsuits which were later consolidated and transferred by the
Judicial Panel for Multi-District Litigation to the United States District Court
for the Northern District of Illinois. Subsequent to the consolidation, a new
consolidated complaint was filed which included allegations that the wholesaler
defendants, including the Company and Whitmire, conspired with manufacturers to
inflate prices using a chargeback pricing system. The wholesaler defendants,
including the Company and Whitmire, entered into a Judgment Sharing Agreement
whereby the total exposure for the Company and its subsidiaries is limited to
$1,000,000 or 1% of any judgment against the wholesalers and the manufacturers,
whichever is less, and provided for the reimbursement mechanism of legal fees
and expenses. The trial of the class action lawsuit began on September 23, 1998.
On November 19, 1998, after the close of plaintiffs' case-in-chief, both the
wholesaler defendants and the manufacturer defendants moved for a judgment as a
matter of law in their favor. On November 30, 1998, the Court granted both of
these motions and ordered judgment as a matter of law in favor of both the
wholesaler defendants and the manufacturer defendants. On January 25, 1999, the
class plaintiffs filed a notice of appeal of the District Court's decision with
the Court of Appeals for the Seventh Circuit. In addition to the federal court
cases described above, the Company and Whitmire have also been named as
defendants in a series of related antitrust lawsuits brought by chain drug
stores and independent pharmacies who opted out of the federal class action
lawsuits, and in a series of state court cases alleging similar claims under
various state laws regarding the sale of brand name prescription drugs. The
Judgment Sharing Agreement mentioned above also covers these litigation matters.
On September 30, 1996, Baxter International, Inc. ("Baxter") and its
subsidiaries transferred to Allegiance Corporation ("Allegiance") and its
subsidiaries their U.S. healthcare distribution business, surgical and
respiratory therapy business and healthcare cost-saving business, as well as
certain foreign operations (the "Allegiance Business") in connection with a
spin-off of the Allegiance Business by Baxter. In connection with this spin-off,
Allegiance, which was acquired by the Company on February 3, 1999, assumed the
defense of litigation involving claims related to the Allegiance Business from
Baxter Healthcare Corporation ("BHC"), including certain claims of alleged
personal injuries as a result of exposure to natural rubber latex gloves
described below. Allegiance will be defending and indemnifying BHC, as
contemplated by the agreements between Baxter and Allegiance, for all expenses
and potential liabilities associated with claims pertaining to the litigation
assumed by Allegiance. As of April 30, 1999, there were approximately 400
lawsuits involving BHC and/or Allegiance containing allegations of sensitization
to natural rubber latex products. Since none of these cases has proceeded to a
hearing on the merits, the Company is unable to evaluate the extent of any
potential liability, and unable to estimate any potential loss. Because of the
increase in claims filed and the ongoing defense costs that will be incurred,
the Company believes it is probable that it will continue to incur significant
expenses related to the defense of cases involving natural rubber latex gloves.
The Company is a defendant in, or has assumed the defense of, a number
of other claims, investigations (including environmental matters) and lawsuits.
Although the ultimate resolution of the matters referenced in this Item 1 cannot
be forecast with certainty, the Company does not believe that the outcome of
these lawsuits or environmental matters will have a material adverse effect on
the Company's financial position statements.
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ITEM 4: SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
(a) A Special Meeting of the Company's shareholders was held on January 21,
1999.
(b) Not applicable.
(c) Matters voted upon at the Special Meeting were as follows:
(1) Approval, authorization and adoption of Agreement and Plan of Merger by
and among the Company, Boxes Merger Corp., and Allegiance Corporation
("Allegiance"). The results of the shareholder vote were as follows:
159,779,281 in favor, 278,590 against, and 572,493 withheld.
(2) Adjournment of the Company's Special Meeting, if necessary, to permit
further solicitation of proxies in the event there were not sufficient
votes at the time of the regularly scheduled meeting to approve the
proposal referenced in item (1) above. This vote was not necessary.
(d) Not applicable.
ITEM 6: EXHIBITS AND REPORTS ON FORM 8-K:
(a) Listing of Exhibits:
Exhibit Exhibit Description
------- -------------------
Number
------
4.01 Specimen Certificate for the Company's Class A common shares (1)
4.02 364-Day Credit Agreement dated as of March 31, 1999 among the
Company, certain subsidiaries of the Company, certain lenders, The
First National Bank of Chicago, as Administrative Agent, Bank of
America NT &SA, as Syndication Agent, Citibank, N.A., as
Co-Documentation Agent, and Credit Suisse First Boston, as
Co-Documentation Agent
4.03 Indenture dated as of October 1, 1996 between Allegiance
Corporation and PNC Bank, Kentucky, Inc. ("PNC"), Trustee; and
First Supplemental Indenture dated as of February 3, 1999 by and
among Allegiance Corporation, the Company and Chase Manhattan Trust
Company National Association (as successor in interest to PNC),
Trustee (1)
Other long-term debt agreements of the Company are not filed
pursuant to Item 601(b)(4)(iii)(A) of Regulation S-K and the
Company agrees to furnish copies of such agreements to the SEC upon
its request.
10.01 Company's Equity Incentive Plan, as amended (2)*
10.02 Form of Nonqualified Stock Option Agreement, as amended*
10.03 Form of Restricted Shares Agreement, as amended*
10.04 Allegiance Corporation 1996 Incentive Compensation Program (3)*
10.05 Allegiance Corporation 1998 Incentive Compensation Program (3)*
10.06 Amendment to Change in Control Agreement, dated as of October 8,
1998, by and among the Company, Allegiance Corporation and Lester
B. Knight (4)*
10.07 Amendment to Change in Control Agreement, dated as of October 8,
1998, by and among the Company, Allegiance Corporation and Joseph
F. Damico (4)*
27.01 Financial Data Schedule
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99.01 Statement Regarding Forward-Looking Information
- ------------------
(1) Included as an exhibit to the Company's Registration Statement on
Form S-4 (No. 333-74761) and incorporated herein by reference.
(2) Included as an exhibit to the Company's Registration Statement on
Form S-8 (No. 333-72727) and incorporated herein by reference.
(3) Included as an exhibit to the Company's Post-Effective Amendment No.
1 on Form S-8 to Form S-4 Registration Statement (No. 333-68819-01)
and incorporated herein by reference.
(4) Included as an exhibit to the Company's Registration Statement on
Form S-4 (No. 333-68819) and incorporated herein by reference.
* Management contract or compensation plan or arrangement
(b) Reports on Form 8-K:
On January 21, 1999, the Company filed a Current Report on Form 8-K
under Items 5 and 7 which reported the approval by the Company's shareholders of
the proposed merger of Allegiance Corporation and Boxes Merger Corp., a wholly
owned subsidiary of the Company (the "Allegiance Merger").
On February 4, 1999, the Company filed a Current Report on Form 8-K
under Item 5 which reported the closing of the Allegiance Merger, pursuant to
which Allegiance became a wholly owned subsidiary of the Company.
On March 18, 1999, the Company filed a Current Report on Form 8-K/A
(Amendment No. 1) , which amended the Current Report on Form 8-K filed on
February 4, 1999. The Form 8-K/A included information under Items 2 and 7. The
Form 8-K/A included supplemental consolidated financial statements of the
Company to give retroactive effect to the merger with Allegiance, which was
accounted for as a pooling of interests business combination.
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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 thereunto duly authorized.
CARDINAL HEALTH, INC.
Date: May 12, 1999 By: /s/ Robert D. Walter
---------------------
Robert D. Walter
Chairman and Chief Executive Officer
By: /s/ Richard J. Miller
---------------------
Richard J. Miller
Corporate Vice President and Chief Financial
Officer
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<PAGE> 1
EXHIBIT 4.02
CARDINAL HEALTH, INC.
364-DAY CREDIT AGREEMENT
DATED AS OF MARCH 31, 1999
THE SUBSIDIARY BORROWERS PARTY HERETO,
THE LENDERS PARTY HERETO
AND
THE FIRST NATIONAL BANK OF CHICAGO, AS ADMINISTRATIVE AGENT
BANK OF AMERICA NT & SA, AS SYNDICATION AGENT
CITIBANK, N.A., AS CO-DOCUMENTATION AGENT
CREDIT SUISSE FIRST BOSTON, AS CO-DOCUMENTATION AGENT
FIRST CHICAGO CAPITAL MARKETS, INC., AS LEAD ARRANGER AND BOOK MANAGER
<PAGE> 2
364-DAY CREDIT AGREEMENT
This Agreement, dated as of March 31, 1999, is among Cardinal Health,
Inc. (the "Company"), certain Subsidiaries of the Company (the "Subsidiary
Borrowers", and together with the Company, the "Borrowers"), the lenders party
hereto from time to time (the "Lenders"), and The First National Bank of
Chicago, as Administrative Agent (the "Administrative Agent"). The parties
hereto agree as follows:
ARTICLE I.
DEFINITIONS
As used in this Agreement:
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Company or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any firm, corporation or limited liability
company, or division thereof, whether through purchase of assets, merger or
otherwise or (ii) directly or indirectly acquires (in one transaction or as the
most recent transaction in a series of transactions) at least a majority (in
number of votes) of the securities of a corporation which have ordinary voting
power for the election of directors (other than securities having such power
only by reason of the happening of a contingency) or a majority (by percentage
or voting power) of the outstanding ownership interests of a partnership or
limited liability company.
"Adjusted Tangible Net Worth" means, as of any date, (i) the amount of
any capital stock, paid in capital and similar equity accounts plus (or minus in
the case of a deficit) the capital surplus and retained earnings of the Company
and its consolidated Subsidiaries, but excluding the amount of any foreign
currency translation adjustment account shown as a capital account, less (ii)
the net book value of all items of the following character which are included in
the assets of the Company and its consolidated Subsidiaries: (a) goodwill,
including, without limitation, the excess of cost over book value of any asset,
(b) organization or experimental expenses, (c) unamortized debt discount and
expense, (d) patents, trademarks, trade names and copyrights, (e) treasury
stock, (f) franchises, licenses and permits, and (g) other assets which are
deemed intangible assets under Agreement Accounting Principles.
"Administrative Agent" means The First National Bank of Chicago in its
capacity as contractual representative of the Lenders pursuant to Article X, and
not in its individual capacity as a Lender, and any successor Administrative
Agent appointed pursuant to Article X.
"Advance" means a borrowing hereunder, (i) made by the Lenders on the
same Borrowing Date, or (ii) converted or continued by the Lenders on the same
date of conversion or
<PAGE> 3
continuation, consisting, in either case, of the aggregate amount of the several
Loans of the same Type and, in the case of Eurodollar Loans, for the same
Interest Period.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
"Aggregate Commitment" means the aggregate of the Commitments of all
the Lenders, as reduced from time to time pursuant to the terms hereof. As of
the date of this Agreement, the original Aggregate Commitment was $250,000,000.
"Agreement" means this credit agreement, as it may be amended or
modified and in effect from time to time.
"Agreement Accounting Principles" means generally accepted accounting
principles in the United States of America in effect from time to time, applied
in a manner consistent with that used in preparing the financial statements
referred to in Section 5.4; provided, however, that if any change in Agreement
Accounting Principles from those applied in preparing such financial statements
affects the calculation of any financial covenant contained in this Agreement,
the Borrowers and the Administrative Agent hereby agree to negotiate in good
faith towards making appropriate amendments acceptable to the Required Lenders
to the provisions of this Agreement to reflect as nearly as possible the effect
of the financial covenants as in effect on the date hereof.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the Corporate Base Rate for such day and (ii) the sum
of the Federal Funds Effective Rate for such day plus 1/2% per annum.
"Applicable Fee Rate" means, at any time, the percentage rate per annum
at which Facility Fees are accruing on the Aggregate Commitment (without regard
to usage) at such time as set forth in the Pricing Schedule.
"Applicable Margin" means, with respect to any Eurodollar Loan,
Floating Rate Loan or the Facility Fee, as the case may be at any time, the
applicable percentage which is applicable at such time set forth in the Pricing
Schedule provided that upon the occurrence and during the continuation of a
Default, the Applicable Margin shall be the highest Applicable Margin set forth
in the Pricing Schedule.
"Article" means an article of this Agreement unless another document is
specifically referenced.
2
<PAGE> 4
"Authorized Officer" means any of the Chairman, Chief Executive
Officer, President, Vice Chairman, Chief Financial Officer, Controller, or
Treasurer of a Borrower, or their equivalent, acting singly.
"Borrowers" means the Company and the Subsidiary Borrowers, and
"Borrower" means any of them, as the context may require.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" is defined in Section 2.8.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in Chicago, Detroit and New York for the conduct
of substantially all of their commercial lending activities and on which
dealings in Eurodollars are carried on in the London interbank market, and (ii)
for all other purposes, a day (other than a Saturday or Sunday) on which banks
generally are open in Detroit for the conduct of substantially all of their
commercial lending activities.
"Capitalized Lease" of a Person means any lease of Property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Cash Equivalent Investments" means (i) short-term obligations of, or
fully guaranteed by, the United States of America, (ii) commercial paper rated
A-1 or better by S&P or P-1 or better by Moody's, (iii) demand deposit accounts
maintained in the ordinary course of business, (iv) certificates of deposit
issued by and time deposits with commercial banks (whether domestic or foreign)
having capital and surplus in excess of $100,000,000, (v) banker's acceptances,
(vi) money-market funds, provided that such funds invest solely in securities
otherwise described in this definition, (vii) variable rate demand notes, (viii)
municipal preferred stock, (ix) cash market preferred stock, and (x) short term
municipal notes; provided in each case that the same provides for payment of
both principal and interest (and not principal alone or interest alone) and is
not subject to any contingency regarding the payment of principal or interest.
"Change in Control" means the acquisition by any Person, or two or more
Persons acting in concert, of beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities Exchange
Act of 1934) of 30% or more of the outstanding shares of voting stock of the
Company, provided, however, that the acquisitions by or on behalf of a Plan, an
employee stock purchase plan of the Company, or by Persons who before such
acquisition were officers, directors, employees or who held in the aggregate not
less than 5% of the outstanding shares of voting stock of the Company shall not
be included in determining whether a Change in Control shall have occurred.
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"Closing Date" shall mean March 31, 1999.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Co-Documentation Agents" means Citibank, N.A. and Credit Suisse First
Boston.
"Commitment" means, for each Lender, the obligation of such Lender to
make Loans not exceeding the amount set forth opposite its signature below or as
set forth in any assignment that has become effective pursuant to Section
12.3.2, as such amount may be modified from time to time pursuant to the terms
hereof.
"Company" means Cardinal Health, Inc., an Ohio corporation, and it
successors and assigns.
"Consolidated or "consolidated" means, when used with reference to any
financial term in this Agreement, the aggregate for two or more Persons of the
amounts signified by such term for all such Persons determined on a consolidated
basis in accordance with Agreement Accounting Principles.
"Contingent Obligation" of a Person means any agreement, undertaking or
arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person for
Indebtedness, or agrees to maintain the net worth or working capital or other
financial condition of any other Person, or otherwise assures any creditor of
such other Person against loss, including, without limitation, any comfort
letter, operating agreement, take-or-pay contract or the obligations of any such
Person as general partner of a partnership with respect to the liabilities of
the partnership, provided, however, that any assumption, guaranty, endorsement
or undertaking with respect to any liability of any of its Subsidiaries to any
other of its Subsidiaries shall not be a Contingent Obligation of the Company.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Company or any of its Subsidiaries, are
treated as a single employer under Section 414 of the Code.
"Conversion/Continuation Notice" is defined in Section 2.9.
"Corporate Base Rate" means a rate per annum equal to the corporate
base rate of interest announced by First Chicago from time to time, changing
when and as said corporate base rate changes.
"Default" means an event described in Article VII.
"Defaulting Lender" means any Lender that (a) on any Borrowing Date
fails to make available to the Administrative Agent such Lender's Loans required
to be made to a Borrower on
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<PAGE> 6
such Borrowing Date or (b) shall not have made available to the Administrative
Agent its proportionate share of the Unpaid Amount as required pursuant to
Section 2.19(b). Once a Lender becomes a Defaulting Lender, such Lender shall
continue as a Defaulting Lender until such time as such Defaulting Lender makes
available to the Administrative Agent the amount of such Defaulting Lender's
Loans together with all other amounts required to be paid to the Administrative
Agent or any other Lender pursuant to this Agreement.
"Dollars" and "$" shall mean the lawful currency of the United States
of America.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
(i) the protection of the environment, (ii) the effect of the environment on
human health, (iii) emissions, discharges or releases of pollutants,
contaminants, hazardous substances or wastes into surface water, ground water or
land, or (iv) the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants, contaminants, hazardous
substances or wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Eurodollar Advance" means an Advance which, except as otherwise
provided in Section 2.12, bears interest at the applicable Eurodollar Rate.
"Eurodollar Payment Office" of the Administrative Agent shall mean the
office, branch, affiliate or correspondent bank of the Administrative Agent
specified as the "Eurodollar Payment Office" in Schedule 3 hereto or such other
office, branch, affiliate or correspondent bank of the Administrative Agent as
it may from time to time specify to the Borrowers and each Lender as its
Eurodollar Payment Office.
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the
relevant Interest Period, the sum of (i) the quotient of (a) the Eurodollar
Reference Rate applicable to such Interest Period, divided by (b) one minus the
Reserve Requirement (expressed as a decimal) applicable to such Interest Period,
plus (ii) the Applicable Margin. The Eurodollar Rate shall be rounded to the
next higher multiple of 1/16 of 1% if the rate is not such a multiple.
"Eurodollar Reference Rate" means, with respect to a Eurodollar Advance
for the relevant Interest Period the rate determined by the Administrative Agent
to be the rate at which First Chicago offers to place deposits in Dollars with
first-class banks in the London interbank market at 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period in the approximate
amount of the relevant Eurodollar Loan of First Chicago and having a maturity
equal to such Interest Period.
"Excluded Taxes" means, in the case of each Lender or applicable
Lending Installation and the Administrative Agent, taxes imposed on its overall
net income, and franchise taxes (and any interest, fees or penalties for late
payment thereof) imposed on it by (i) the jurisdiction under
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<PAGE> 7
the laws of which such Lender or the Administrative Agent is incorporated or
organized or (ii) the jurisdiction in which the Administrative Agent's or such
Lender's principal executive office or such Lender's applicable Lending
Installation is located.
"Exhibit" refers to an exhibit to this Agreement, unless another
document is specifically referenced.
"Facility Termination Date" means March 29, 2000, or any earlier date
on which the Aggregate Commitment is reduced to zero or otherwise terminated
pursuant to the terms hereof.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published for such day (or, if such day is not a Business Day,
for the immediately preceding Business Day) by the Federal Reserve Bank of New
York, or, if such rate is not so published for such day, the average of the
quotations at approximately 10:00 a.m. (Detroit time) on such day on such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by the Administrative Agent in its sole
discretion.
"Financial Contract" of a Person means (a) any exchange-traded or over
the counter futures, forward, swap or option contract or other financial
instrument with similar characteristics or (b) any Rate Hedging Agreement.
"First Chicago" means The First National Bank of Chicago in its
individual capacity, and its successors.
"Five Year Credit Agreement" means the Five Year Credit Agreement dated
the date hereof among the Company, the Subsidiary Borrowers party thereto, the
Lenders and the Administrative Agent, as Administrative Agent, as such agreement
may be amended, restated or extended from time to time.
"Floating Rate" means, for any day, a rate per annum equal to the
Alternate Base Rate for such day in each case changing when and as the Alternate
Base Rate changes.
"Floating Rate Advance" means an Advance which, except as otherwise
provided in Section 2.12, bears interest at the Floating Rate.
"Floating Rate Loan" means a Loan which, except as otherwise provided
in Section 2.12, bears interest at the Floating Rate.
"Guarantor" means the Company, and its successors and assigns.
"Guaranty" means that certain Guaranty dated the date hereof executed
by the Guarantor in favor of the Administrative Agent, for the ratable benefit
of the Lenders, as it may be amended or modified and in effect from time to
time.
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"Indebtedness" of a Person means, as of any date, such Person's (i)
obligations for borrowed money or evidenced by bonds, notes, acceptances,
debentures or similar instruments or letters of credit (or reimbursement
agreements in respect thereof) or bankers' acceptances, (ii) obligations
representing the deferred purchase price of Property or services (other than
accounts payable arising in the ordinary course of such Person's business
payable on terms customary in the trade), (iii) obligations, whether or not
assumed, secured by Liens or payable out of the proceeds or production from
Property now or hereafter owned or acquired by such Person, (iv)obligations of
such Person to purchase securities or other Property arising out of or in
connection with the sale of the same or substantially similar securities or
Property, (v) Capitalized Lease Obligations, (vi) any other obligation for
borrowed money or other financial accommodation which in accordance with
Agreement Accounting Principles would be shown as a liability on the
consolidated balance sheet of such Person, (vii) any Rate Hedging Obligations of
such Person, and (viii) all Contingent Liabilities of such Person with respect
to or relating to the indebtedness, obligations and liabilities of others
similar in character to those described in clauses (i) through (viii) of this
definition.
"Interest Period" means, with respect to a Eurodollar Advance, a period
of one, two, three or six months (or such longer or shorter period requested by
the Borrower and acceptable to all of the Lenders), commencing on a Business Day
selected by the Borrower pursuant to this Agreement. Such Interest Period shall
end on the day which corresponds numerically to such date one, two, three or six
months thereafter (or such longer or shorter period requested by the Borrower
and acceptable to all of the Lenders), provided, however, that if there is no
such numerically corresponding day in such next, second, third or sixth
succeeding month, such Interest Period shall end on the last Business Day of
such next, second, third or sixth succeeding month. If an Interest Period would
otherwise end on a day which is not a Business Day, such Interest Period shall
end on the next succeeding Business Day, provided, however, that if said next
succeeding Business Day falls in a new calendar month, such Interest Period
shall end on the immediately preceding Business Day.
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in the
ordinary course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in the
trade) or contribution of capital by such Person; stocks, bonds, mutual funds,
partnership interests, notes, debentures or other securities owned by such
Person; any certificate of deposit owned by such Person; and structured notes,
derivative financial instruments and other similar instruments or contracts
owned by such Person.
"Lead Arranger" means First Chicago Capital Markets, Inc., a Delaware
corporation, and its successors.
"Lenders" means the lending institutions listed on the signature pages
of this Agreement and their respective successors and assigns.
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"Lending Installation" means, with respect to a Lender or the
Administrative Agent, the office, branch, subsidiary or Affiliate of such Lender
or the Administrative Agent selected by such Lender and the Administrative Agent
pursuant to Section 2.18.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement).
"Loan" means, with respect to a Lender, such Lender's loan made
pursuant to Article II (or any conversion or continuation thereof).
"Loan Documents" means this Agreement, the Notes, the Guaranty and any
other instrument or document executed in connection with any of the foregoing at
any time.
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, condition (financial or otherwise), results of operations,
or prospects of the Company and its Subsidiaries taken as a whole, (ii) the
ability of the Company to perform its obligations under the Loan Documents to
which it is a party, or (iii) the validity or enforceability of any of the Loan
Documents or the rights or remedies of the Administrative Agent or the Lenders
thereunder.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Company is a party to
which more than one employer is obligated to make contributions.
"Net Worth" means at any time the consolidated stockholder's equity of
the Company and its Subsidiaries calculated on a consolidated basis as of such
time in accordance with Agreement Accounting Principles.
"Non-U.S. Borrower" is defined in Section 3.1(b).
"Non-U.S. Lender" is defined in Section 3.5(iv).
"Note" means any promissory note issued at the request of a Lender
pursuant to Section 2.14 in the form of Exhibit E.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Loans, all accrued and unpaid fees and all expenses,
reimbursements, indemnities and other obligations of the Borrowers to the
Lenders or to any Lender, the Administrative Agent or any indemnified party
arising under the Loan Documents.
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"Other Taxes" is defined in Section 3.5(ii).
"Overdue Rate" means a per annum rate that is equal to the sum of two
percent (2%) plus the Alternate Base Rate, changing as and when the Alternate
Base Rate changes.
"Participants" is defined in Section 12.2.1.
"Payment Date" means the last day of each calendar quarter, commencing
June 30, 1999.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Person" means any natural person, corporation, firm, joint venture,
partnership, limited liability company, association, enterprise, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412 of the
Code and as to which the Company or any member of the Controlled Group may have
any liability.
"Pricing Schedule" means the Schedule attached hereto identified as
such.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned
or leased by such Person.
"Purchasers" is defined in Section 12.3.1.
"Rate Hedging Agreement" means an agreement, device or arrangement
providing for payments which are related to fluctuations of interest rates,
exchange rates or forward rates, including, but not limited to,
dollar-denominated or cross-currency interest rate exchange agreements, forward
currency exchange agreements, interest rate cap or collar protection agreements,
forward rate currency or interest rate options, puts and warrants.
"Rate Hedging Obligations" of a Person means any and all obligations of
such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (a) any and all Rate
Hedging Agreements, and (b) any and all cancellations, buy backs, reversals,
terminations or assignments of any Rate Hedging Agreement.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the
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purpose of purchasing or carrying margin stocks applicable to member banks of
the Federal Reserve System.
"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC has by regulation waived
the requirement of Section 4043(a) of ERISA that it be notified within 30 days
of the occurrence of such event, provided, however, that a failure to meet the
minimum funding standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
"Required Lenders" means Lenders in the aggregate having at least 51%
of the Aggregate Commitment or, if the Aggregate Commitment has been terminated,
Lenders in the aggregate holding at least 51% of the aggregate unpaid principal
amount of the outstanding Advances.
"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on Eurodollar
liabilities.
"Significant Subsidiary" means any Subsidiary of the Company that would
be a "significant subsidiary" within the meaning of Rule 1-02 of the Securities
and Exchange Commission's Regulation S-X if 5% were substituted for 10% wherever
it occurs in such Rule.
"S&P" means Standard and Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc.
"Schedule" refers to a specific schedule to this Agreement, unless
another document is specifically referenced.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Single Employer Plan" means a Plan maintained by the Company or any
member of the Controlled Group for employees of the Company or any member of the
Controlled Group.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, limited liability company, association, joint venture or
similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.
Unless otherwise expressly provided, all references herein to a "Subsidiary"
shall mean a Subsidiary of the Company.
"Subsidiary Borrower" means each Subsidiary of the Company listed as a
Subsidiary Borrower on Schedule 1 as amended from time to time in accordance
with Section 5.8.
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"Substantial Portion" means, with respect to the Property of the
Company and its Subsidiaries, Property which (i) represents more than 20% of the
consolidated assets of the Company and its Subsidiaries as would be shown in the
consolidated financial statements of the Company and its Subsidiaries as at the
beginning of the twelve-month period ending with the month in which such
determination is made, or (ii) is responsible for more than 20% of the
consolidated net sales or of the consolidated net income of the Company and its
Subsidiaries as reflected in the financial statements referred to in clause (i)
above.
"Syndication Agent" means Bank of America NT & SA.
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and any and all liabilities with
respect to the foregoing, but excluding Excluded Taxes.
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Advance, its nature as a Floating
Rate Advance or a Eurodollar Advance.
"Unfunded Liabilities" means the amount (if any) by which the present
value of all vested and unvested accrued benefits under all Single Employer
Plans exceeds the fair market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plans using PBGC actuarial assumptions for single employer plan terminations.
"Unmatured Default" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization 100% of the
ownership interests having ordinary voting power of which shall at the time be
so owned or controlled.
"Year 2000 Issues" means anticipated costs, problems and uncertainties
associated with the inability of certain computer applications of the Company
and its Subsidiaries, and of the Company's and its Subsidiaries' material
customers, suppliers and vendors, to function on and after January 1, 2000 as
they do on the date hereof, including handling applications involving dates, as
such inability affects the business, operations and financial condition of the
Company and its Subsidiaries.
"Year 2000 Program" is defined in Section 5.18.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
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ARTICLE II.
THE CREDITS
2.1 Commitments of the Lenders; Revolving Credit Advances.
From and including the date of this Agreement and prior to the Facility
Termination Date, each Lender agrees, for itself only, subject to the terms and
conditions set forth in this Agreement, to make Loans to the Borrowers from time
to time in amounts not to exceed in the aggregate at any one time outstanding
the amount of its Commitment. Subject to the terms of this Agreement, the
Borrowers may borrow, repay and reborrow at any time prior to the Facility
Termination Date. The Commitments to lend hereunder shall expire on the Facility
Termination Date.
2.2 Termination.
Any outstanding Advances together with any other unpaid Obligations
then due and payable shall be paid in full by the Borrowers on the Facility
Termination Date.
2.3 Ratable Loans.
Each Advance hereunder shall consist of Loans made from the several
Lenders ratably in proportion to the ratio that their respective Commitments
bear to the Aggregate Commitment.
2.4 Types of Advances.
The Advances may be Floating Rate Advances or Eurodollar Advances, or a
combination thereof, selected by the relevant Borrowers in accordance with
Sections 2.8 and 2.9.
2.5 Facility Fee; Reductions in Aggregate Commitment; Utilization Fee.
The Company agrees to pay to the Administrative Agent for the account
of each Lender a facility fee, determined in accordance with the Pricing
Schedule, calculated on the Aggregate Commitment, whether used or unused,
payable quarterly in arrears for the ratable benefit of the Lenders from the
date of this Agreement until the Facility Termination Date. The Aggregate
Commitment may be reduced by the Company in multiples of $10,000,000 upon three
Business Days' prior written notice. For each day on which the aggregate
principal amount of outstanding Advances exceeds 33% of the Aggregate
Commitment, a utilization fee at the per annum rate set forth on the Pricing
Schedule will accrue on the aggregate principal amount of outstanding Advances
for the ratable benefit of the Lenders, payable in arrears on each Payment Date
until the Facility Termination Date.
2.6 Minimum Amount of Each Advance.
Each Eurodollar Advance shall be in the minimum amount of $5,000,000
(and in multiples of $1,000,000 in excess thereof, and each Floating Rate
Advance shall be in the
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minimum amount of $5,000,000 (and in multiples of $1,000,000 if in excess
thereof), provided, however, that any Floating Rate Advance may be in the amount
of the unused Aggregate Commitment.
2.7 Prepayments.
The Borrowers may from time to time pay, without penalty or premium,
all outstanding Floating Rate Advances, or, in a minimum aggregate amount of
$5,000,000 or any integral multiple of $1,000,000 in excess thereof, any portion
of the outstanding Floating Rate Advances upon one Business Days' prior notice
to the Administrative Agent. The Borrowers may from time to time pay, subject to
the payment of any funding indemnification amounts required by Section 3.4 but
without penalty or premium, all outstanding Eurodollar Advances, or, in a
minimum aggregate amount of $5,000,000 or any integral multiple of $1,000,000 in
excess thereof, any portion of the outstanding Eurodollar Advances upon three
Business Days' prior notice to the Administrative Agent.
2.8 Method of Selecting Types and Interest Periods for New Advances.
The Company or the relevant Borrower shall select the Type of Advance
and, in the case of each Eurodollar Advance, the Interest Period applicable
thereto from time to time. The Company or the relevant Borrower shall give the
Administrative Agent irrevocable notice (a "Borrowing Notice") not later than
10:00 a.m. (Detroit time) on the Borrowing Date of each Floating Rate Advance
and not later than 11:00 a.m. (Detroit time) three Business Days before the
Borrowing Date for each Eurodollar Advance, specifying:
(i) the Borrower,
(ii) the Borrowing Date, which shall be a Business Day, of
such Advance,
(iii) the aggregate amount of such Advance,
(iv) the Type of Advance selected, and
(v) in the case of each Eurodollar Advance, the Interest
Period applicable thereto.
Not later than noon (Detroit time) on each Borrowing Date, each Lender
shall make available its Loan or Loans in funds immediately available to the
Administrative Agent at its address specified pursuant to Article XIII. The
Administrative Agent will make the funds so received from the Lenders available
to the Borrower at the Administrative Agent's aforesaid address.
2.9 Conversion and Continuation of Outstanding Advances.
Floating Rate Advances shall continue as Floating Rate Advances unless
and until such Floating Rate Advances are converted into Eurodollar Advances
pursuant to this Section 2.9 or are repaid in accordance with Section 2.7. Each
Eurodollar Advance shall continue as a Eurodollar Advance until the end of the
then applicable Interest Period therefor, at which time
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each such Eurodollar Advance shall be automatically converted into a Floating
Rate Advance unless (x) such Eurodollar Advance is or was repaid in accordance
with Section 2.7 or (y) the Borrower shall have given the Administrative Agent a
Conversion/Continuation Notice (as defined below) requesting that, at the end of
such Interest Period, such Eurodollar Advance either continue as a Eurodollar
Advance for the same or another Interest Period or be converted into a Floating
Rate Advance.
Subject to the terms of Section 2.6, the Borrower may elect from time
to time to convert all or any part of an Advance of any Type into any other Type
or Types of Advances, provided that any conversion of any Eurodollar Advance
shall be made on, and only on, the last day of the Interest Period applicable
thereto. The Borrower shall give the Administrative Agent irrevocable notice (a
"Conversion/Continuation Notice") of each conversion of an Advance or
continuation of a Eurodollar Advance not later than 10:00 a.m. (Detroit time) at
least one Business Day, in the case of a conversion into a Floating Rate
Advance, three Business Days, in the case of a conversion into or continuation
of a Eurodollar Advance, prior to the date of the requested conversion or
continuation, specifying:
i. the requested date, which shall be a Business Day, of such
conversion or continuation, and
ii. the amount and Type(s) of Advance(s) into which such Advance is
to be converted or continued and, in the case of a conversion
into or continuation of a Eurodollar Advance, the duration of the
Interest Period applicable thereto.
2.10 Method of Borrowing.
On each Borrowing Date, each Lender shall make available its Loan or
Loans, not later than noon, Detroit time, in Federal or other funds immediately
available to the Administrative Agent, in Detroit, Michigan at its address
specified in or pursuant to Article XIII. Unless the Administrative Agent
determines that any applicable condition specified in Article IV has not been
satisfied, the Administrative Agent will make the funds so received from the
Lenders available to the relevant Borrower at the Administrative Agent's
aforesaid address. Notwithstanding the foregoing provisions of this Section
2.10, to the extent that a Loan made by a Lender matures on the Borrowing Date
of a requested Loan, such Lender shall apply the proceeds of the Loan it is then
making to the repayment of principal of the maturing Loan.
2.11 Changes in Interest Rate, etc.
Each Floating Rate Advance shall bear interest on the outstanding
principal amount thereof, for each day from and including the date such Advance
is made or is converted from a Eurodollar Advance into a Floating Rate Advance
pursuant to Section 2.9 to but excluding the date it becomes due or is converted
into a Eurodollar Advance pursuant to Section 2.9 hereof, at a rate per annum
equal to the Floating Rate for such day. Changes in the rate of interest on that
portion of any Advance maintained as a Floating Rate Advance will take effect
simultaneously with each change in the Alternate Base Rate. Each Eurodollar
Advance shall bear interest on the outstanding principal amount thereof from and
including the first day of the Interest Period applicable thereto to (but not
including) the last day of such Interest Period at the interest rate
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determined by the Administrative Agent as applicable to such Eurodollar Advance
based upon the Borrower's selections under Sections 2.8 and 2.9 and otherwise in
accordance with the terms hereof. No Interest Period may end after the Facility
Termination Date.
2.12 Rates Applicable After Default.
Notwithstanding anything to the contrary contained in Section 2.8 or
2.9, during the continuance of a Default or Unmatured Default the Required
Lenders may, at their option, by notice to the Borrowers (which notice may be
revoked at the option of the Required Lenders notwithstanding any provision of
Section 8.2 requiring unanimous consent of the Lenders to changes in interest
rates), declare that no Advance may be made as, converted into or continued as a
Eurodollar Advance. During the continuance of a Default the Required Lenders
may, at their option, by notice to the Borrowers (which notice may be revoked at
the option of the Required Lenders notwithstanding any provision of Section 8.2
requiring unanimous consent of the Lenders to changes in interest rates),
declare that (i) each Eurodollar Advance shall bear interest for the remainder
of the applicable Interest Period at the rate otherwise applicable to such
Interest Period plus 2% per annum and (ii) each Floating Rate Advance shall bear
interest at a rate per annum equal to the Floating Rate in effect from time to
time plus 2% per annum, provided that, during the continuance of a Default under
Section 7.6 or 7.7, the interest rates set forth in clauses (i) and (ii) above
shall be applicable to all Advances without any election or action on the part
of the Administrative Agent or any Lender.
2.13 Method of Payment.
All payments of the Obligations hereunder shall be made, without
setoff, deduction, or counterclaim, in immediately available funds by wire
transfer to the Administrative Agent at (except as set forth in the next
sentence) the Administrative Agent's address specified pursuant to Article XIII,
or at any other Lending Installation of the Administrative Agent specified in
writing by the Administrative Agent to the Borrower, by noon (local time) on the
date when due and shall be applied ratably by the Administrative Agent among the
Lenders. Each payment delivered to the Administrative Agent for the account of
any Lender shall be delivered promptly by the Administrative Agent to such
Lender in the same type of funds that the Administrative Agent received at its
address specified pursuant to Article XIII or at any Lending Installation
specified in a notice received by the Administrative Agent from such Lender.
2.14 Noteless Agreement; Evidence of Indebtedness.
(i) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of each Borrower to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time hereunder.
(ii) The Administrative Agent shall maintain accounts in which it will
record (a) the amount of each Loan made hereunder, the Type thereof and, if
applicable, the Interest Period with respect thereto, (b) the amount of any
principal or interest due and payable or to become due and payable from each
Borrower to each Lender hereunder and
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(c) the amount of any sum received by the Administrative Agent hereunder from
the Borrowers and each Lender's share thereof.
(iii) The entries maintained in the accounts maintained pursuant to
paragraphs (i) and (ii) above shall be prima facie evidence of the existence and
amounts of the Obligations therein recorded; provided, however, that the failure
of the Administrative Agent or any Lender to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrowers to repay
the Obligations in accordance with their terms.
(iv) Any Lender may request that its Loans be evidenced by a promissory
note (a "Note"). In such event, the relevant Borrower shall prepare, execute and
deliver to such Lender a Note payable to the order of such Lender in a form
supplied by the Administrative Agent and reasonably acceptable to the Company.
Thereafter, the Loans evidenced by such Note and interest thereon shall at all
times (including after any assignment pursuant to Section 12.3) be represented
by a Note payable to the order of the payee named therein or any assignee
pursuant to Section 12.3, except to the extent that any such Lender or assignee
subsequently returns any such Note for cancellation and requests that such Loans
once again be evidenced as described in paragraphs (i) and (ii) above.
2.15 Telephonic Notices.
The Borrowers hereby authorize the Lenders and the Administrative Agent
to extend, convert or continue Advances, effect selections of Types of Advances
and to transfer funds based on telephonic notices given to the Administrative
Agent by any person or persons listed on Schedule 8, as such Schedule may be
revised by the Company from time to time in accordance with Section 13.1, it
being understood that the foregoing authorization is specifically intended to
allow Borrowing Notices and Conversion/Continuation Notices to be given
telephonically. The Borrowers agree to deliver promptly to the Administrative
Agent a written confirmation, if such confirmation is requested by the
Administrative Agent or any Lender, of each telephonic notice signed by an
Authorized Officer. If the written confirmation differs in any material respect
from the action taken by the Administrative Agent and the Lenders, the records
of the Administrative Agent regarding the telephonic notice shall govern absent
manifest error.
2.16 Interest Payment Dates; Interest and Fee Basis.
Interest accrued on each Floating Rate Advance shall be payable on each
Payment Date, commencing with the first such date to occur after the date
hereof, on any date on which the Floating Rate Advance is prepaid, whether due
to acceleration or otherwise, and at maturity. Interest on Floating Rate Loans
shall be calculated for actual days elapsed on the basis of a 365 or 366-day
year, as appropriate. Interest accrued on that portion of the outstanding
principal amount of any Floating Rate Advance converted into a Eurodollar
Advance on a day other than a Payment Date shall be payable on the date of
conversion. Interest accrued on each Eurodollar Advance shall be payable in
arrears on the last day of its applicable Interest Period, on any date on which
the Eurodollar Advance is prepaid, whether by acceleration or otherwise, and at
maturity. Interest accrued on each Eurodollar Advance having an Interest Period
longer than
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three months shall also be payable on the last day of each three-month interval
during such Interest Period. Interest shall be calculated for actual days
elapsed on the basis of a 360-day year. Interest shall be payable for the day an
Advance is made but not for the day of any payment on the amount paid if payment
is received prior to noon (local time) at the place of payment. If any payment
of principal of or interest on an Advance shall become due on a day which is not
a Business Day, such payment shall be made on the next succeeding Business Day
and, in the case of a principal payment, such extension of time shall be
included in computing interest in connection with such payment.
2.17 Notification of Advances, Interest Rates, Prepayments and
Commitment Reductions.
Promptly after receipt thereof, the Administrative Agent will notify
each Lender of the contents of each Aggregate Commitment reduction notice,
Borrowing Notice, Conversion/Continuation Notice, and repayment notice received
by it hereunder. The Administrative Agent will notify each Lender, the Company
and the relevant Borrower of the interest rate applicable to each Eurodollar
Advance promptly upon determination of such interest rate and will give each
Lender and the Company prompt notice of each change in the Alternate Base Rate.
2.18 Lending Installations.
Each Lender will book its Loans at the appropriate Lending Installation
listed on Schedule 4 or such other Lending Installation designated by such
Lender in accordance with the final sentence of this Section 2.18. All terms of
this Agreement shall apply to any such Lending Installation and the Loans and
any Notes issued hereunder shall be deemed held by each Lender for the benefit
of any such Lending Installation. Each Lender may, by not less than one days'
prior written notice to the Administrative Agent and the Borrowers in accordance
with Article XIII, designate replacement or additional Lending Installations
through which Loans will be made by it and for whose account Loan payments are
to be made.
2.19 Non-Receipt of Funds by the Administrative Agent.
(a) Unless the relevant Borrower or a Lender, as the case may
be, notifies the Administrative Agent prior to the date on which it is scheduled
to make payment to the Administrative Agent of (i) in the case of a Lender, the
proceeds of a Loan or (ii) in the case of such Borrower, a payment of principal,
interest or fees to the Administrative Agent for the account of the Lenders,
that it does not intend to make such payment, the Administrative Agent may
assume that such payment has been made. The Administrative Agent may, but shall
not be obligated to, make the amount of such payment available to the intended
recipient in reliance upon such assumption. If such Lender or the Borrower, as
the case may be, has not in fact made such payment to the Administrative Agent,
the recipient of such payment shall, on demand by the Administrative Agent,
repay to the Administrative Agent the amount so made available together with
interest thereon in respect of each day during the period commencing on the date
such amount was so made available by the Administrative Agent until the date the
Administrative Agent recovers such amount at a rate per annum equal to (x) in
the case of
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payment by a Lender, the Federal Funds Effective Rate for such day, or (y) in
the case of payment by the Borrower, the interest rate applicable to the
relevant Loan.
(b) The failure of any Lender to make the Loan to be made by
it as part of any Advance shall not relieve any other Lender of its obligation
hereunder to make its Loan on the date of such Advance, but no Lender, except as
otherwise provided in the next sentence of this Section 2.19(b), shall be
responsible for the failure of a Defaulting Lender to make the Loan to be made
by such Defaulting Lender on the date of any Advance. Notwithstanding the
foregoing sentence, but otherwise subject to the terms and conditions of this
Agreement, the Administrative Agent shall notify each Lender of the failure by a
Defaulting Lender to make a Loan required to be made by it hereunder (the
"Unpaid Amount"), and each Lender shall immediately transfer to the
Administrative Agent on such date the lesser of such Lender's proportionate
share (based on its Commitment divided by the Commitments of all Lenders that
have not so failed to fund their Loans) of the Unpaid Amount and its unused
Commitment. Any such transfer shall be deemed to be a Floating Rate Loan by such
Lender. Each Defaulting Lender shall pay on demand to each other Lender that
makes a payment under this Section 2.19(b) the amount paid by such other Lender
to cover such failure, together with interest thereon, for each day from the
date such payment was made until the date such other Lender has been paid such
amount in full, at a rate per annum equal to the Federal Funds Effective Rate
plus two percent (2%).
2.20 Judgment Currency.
If for the purposes of obtaining judgment in any court it is necessary
to convert a sum due from any Borrower hereunder in the currency expressed to be
payable herein (the "specified currency") into another currency, the parties
hereto agree, to the fullest extent that they may effectively do so, that the
rate of exchange used shall be that at which in accordance with normal banking
procedures the Administrative Agent could purchase the specified currency with
such other currency at the Administrative Agent's main Chicago office on the
Business Day preceding that on which final, non-appealable judgment is given.
The obligations of the Borrowers in respect of any sum due to any Lender or the
Administrative Agent hereunder shall, notwithstanding any judgment in a currency
other than the specified currency, be discharged only to the extent that on the
Business Day following receipt by such Lender or the Administrative Agent (as
the case may be) of any sum adjudged to be so due in such other currency such
Lender or the Administrative Agent (as the case may be) may in accordance with
normal, reasonable banking procedures purchase the specified currency with such
other currency. If the amount of the specified currency so purchased is less
than the sum originally due to such Lender or the Administrative Agent, as the
case may be, in the specified currency, the Borrowers agree, to the fullest
extent that they may effectively do so, as a separate obligation and
notwithstanding any such judgment, to indemnify such Lender or the
Administrative Agent, as the case may be, against such loss, and if the amount
of the specified currency so purchased exceeds (a) the sum originally due to any
Lender or the Administrative Agent, as the case may be, in the specified
currency and (b) any amounts shared with other Lenders as a result of
allocations of such excess as a disproportionate payment to such Lender under
Section 12.2, such Lender or the Administrative Agent, as the case may be,
agrees to remit such excess to the relevant Borrower.
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2.21 Replacement of Lender.
If any Borrower is required pursuant to Section 3.1, 3.2 or 3.5 to make
any additional payment to any Lender or if any Lender's obligation to make or
continue, or to convert Floating Rate Advances into, Eurodollar Advances shall
be suspended pursuant to Section 3.3, or if any Lender shall become a Defaulting
Lender (any Lender so affected an "Affected Lender"), the Company may elect, if
such amounts continue to be charged or such suspension is still effective, to
replace such Affected Lender as a Lender party to this Agreement, provided that
no Default or Unmatured Default shall have occurred and be continuing at the
time of such replacement, and provided further that, concurrently with such
replacement, (i) another bank or other entity which is reasonably satisfactory
to the Company and the Administrative Agent shall agree, as of such date, to
purchase for cash the Advances and other Obligations due to the Affected Lender
pursuant to an assignment substantially in the form of Exhibit C and to become a
Lender for all purposes under this Agreement and to assume all obligations of
the Affected Lender to be terminated as of such date and to comply with the
requirements of Section 12.3 applicable to assignments, and (ii) the Borrowers
shall pay to such Affected Lender in same day funds on the day of such
replacement all interest, fees and other amounts then accrued but unpaid to such
Affected Lender by the Borrowers hereunder to and including the date of
termination, including without limitation payments due to such Affected Lender
under Sections 3.1, 3.2 and 3.5. Nothing herein shall release any Defaulting
Lender from any obligation it may have to any Borrower, the Administrative Agent
or any other Lender.
ARTICLE III.
YIELD PROTECTION; TAXES
3.1 Yield Protection.
(a) If, on or after the date of this Agreement, the adoption
of any law or any governmental or quasi-governmental rule, regulation, policy,
guideline or directive (whether or not having the force of law), or any change
in the interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender or
applicable Lending Installation with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency:
(i) subjects any Lender or any applicable Lending Installation to any
Taxes, or changes the basis of taxation of payments (other than with respect to
Excluded Taxes) to any Lender in respect of its Eurodollar Loans, or
(ii) imposes or increases or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirement against assets of,
deposits with or for the account of, or credit extended by, any Lender or any
applicable Lending Installation (other than reserves and assessments taken into
account in determining the interest rate applicable to Eurodollar Advances), or
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(iii) imposes any other condition the result of which is to increase
the cost to any Lender or any applicable Lending Installation of maintaining its
Commitment or making, funding or maintaining its Eurodollar Loans or reduces any
amount receivable by any Lender or any applicable Lending Installation in
connection with its Eurodollar Loans, or requires any Lender or any applicable
Lending Installation to make any payment calculated by reference to its
Commitment or the amount of Eurodollar Loans held or interest received by it, by
an amount deemed material by such Lender, and the result of any of the foregoing
is to increase the cost to such Lender or applicable Lending Installation of
making or maintaining its Eurodollar Loans or Commitment or to reduce the return
received by such Lender or applicable Lending Installation in connection with
such Eurodollar Loans or Commitment, then, within 30 days of demand by such
Lender, the relevant Borrower shall pay such Lender such additional amount or
amounts as will compensate such Lender for such increased cost or reduction in
amount received.
(b) Non-U.S. Reserve Costs or Fees With Respect to Loans to
Non-U.S. Borrowers. If any law or any governmental or quasi-governmental rule,
regulation, policy, guideline or directive of any jurisdiction outside of the
United States of America or any subdivision thereof (whether or not having the
force of law) imposes or deems applicable any reserve requirement against or fee
with respect to assets of, deposits with or for the account of, or credit
extended by, any Lender or any applicable Lending Installation, and the result
of the foregoing is to increase the cost to such Lender or applicable Lending
Installation of making or maintaining its Eurodollar Loans to any Borrower that
is not incorporated under the laws of the United States of America or a state
thereof (each a "Non-U.S. Borrower") or its Commitment to any Non-U.S. Borrower
or to reduce the return received by such Lender or applicable Lending
Installation in connection with such Eurodollar Loans to any Non-U.S. Borrower
or Commitment to any Non-U.S. Borrower, then, within 30 days of demand by such
Lender, such Non-U.S. Borrower shall pay such Lender such additional amount or
amounts as will compensate such Lender for such increased cost or reduction in
amount received, provided that such Non-U.S. Borrower shall not be required to
compensate any Lender for such non-U.S. reserve costs or fees to the extent that
an amount equal to such reserve costs or fees is received by such Lender as a
result of the calculation of the interest rate applicable to Eurodollar Advances
pursuant to clause (i)(b) of the definition of "Eurodollar Rate."
3.2 Changes in Capital Adequacy Regulations.
If a Lender determines the amount of capital required or expected to be
maintained by such Lender, any Lending Installation of such Lender or any
corporation controlling such Lender is increased as a result of a Change (as
defined below), then, within 15 days of demand by such Lender, the Company shall
pay such Lender the amount necessary to compensate for any shortfall in the rate
of return on the portion of such increased capital which such Lender determines
is attributable to this Agreement, its Loans or its Commitment to make Loans
hereunder (after taking into account such Lender's policies as to capital
adequacy). "Change" means (i) any change after the date of this Agreement in the
Risk-Based Capital Guidelines or (ii) any adoption of or change in any other
law, governmental or quasi-governmental rule, regulation, policy, guideline,
interpretation, or directive (whether or not having the force of law)
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after the date of this Agreement which affects the amount of capital required or
expected to be maintained by any Lender or any Lending Installation or any
corporation controlling any Lender. "Risk-Based Capital Guidelines" means (i)
the risk-based capital guidelines in effect in the United States on the date of
this Agreement, including transition rules, and (ii) the corresponding capital
regulations promulgated by regulatory authorities outside the United States
implementing the July 1988 report of the Basle Committee on Banking Regulation
and Supervisory Practices Entitled "International Convergence of Capital
Measurements and Capital Standards," including transition rules, and any
amendments to such regulations adopted prior to the date of this Agreement.
3.3 Availability of Types of Advances.
If any Lender determines that maintenance of its Eurodollar Loans at a
suitable Lending Installation would violate any applicable law, rule,
regulation, or directive, whether or not having the force of law, or if the
Required Lenders determine that (i) deposits of a type, currency and maturity
appropriate to match fund Eurodollar Advances are not available or (ii) the
interest rate applicable to Eurodollar Advances does not accurately reflect the
cost of making or maintaining Eurodollar Advances, then the Administrative Agent
shall suspend the availability of Eurodollar Advances and require any affected
Eurodollar Advances to be repaid or converted to Floating Rate Advances at the
end of the then current Interest Period for the affected Eurodollar Advance.
3.4 Funding Indemnification.
If any payment of a Eurodollar Advance occurs on a date which is not
the last day of the applicable Interest Period, whether because of acceleration,
prepayment or otherwise, or a Eurodollar Advance is not made on the date
specified by a Borrower for any reason other than default by the Lenders, the
Borrowers will indemnify each Lender for any loss or cost incurred by it
resulting therefrom, including, without limitation, any loss or cost in
liquidating or employing deposits acquired to fund or maintain such Eurodollar
Advance.
3.5 Taxes.
(i) All payments by the Borrowers to or for the account of any Lender
or the Administrative Agent hereunder or under any Note shall be made free and
clear of and without deduction for any and all Taxes. If any Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder to any Lender or the Administrative Agent, (a) the sum payable shall
be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
3.5) such Lender or the Administrative Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(b) the Borrower shall make such deductions, (c) the Borrower shall pay the full
amount deducted to the relevant authority in accordance with applicable law and
(d) the Borrower shall furnish to the Administrative Agent the original copy of
a receipt evidencing payment thereof within 30 days after such payment is made.
(ii) In addition, the Borrowers hereby agree to pay any present or
future stamp or documentary taxes and any other excise or property taxes,
charges or similar levies
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which arise from any payment made hereunder or under any Note or from the
execution or delivery of, or otherwise with respect to, this Agreement or any
Note ("Other Taxes").
(iii) The Borrowers hereby agree to indemnify the Administrative Agent
and each Lender for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed on amounts payable under this
Section 3.5) paid by the Administrative Agent or such Lender and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto. Payments due under this indemnification shall be made within 30 days of
the date the Administrative Agent or such Lender makes demand therefor pursuant
to Section 3.6.
(iv) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof (each a "Non-U.S. Lender") agrees that it
will, not less than ten Business Days after the date of this Agreement, (i)
deliver to each of the Company and the Administrative Agent two duly completed
copies of United States Internal Revenue Service Form 1001 or 4224, certifying
in either case that such Lender is entitled to receive payments under this
Agreement from the Company and any other Borrower that is not a Non-U.S.
Borrower without deduction or withholding of any United States federal income
taxes, or (ii) deliver to each of the Company and the Administrative Agent a
United States Internal Revenue Form W-8 or W-9, as the case may be, and certify
that it is entitled to an exemption from United States backup withholding tax.
Each Non-U.S. Lender further undertakes to deliver to each of the Company and
the Administrative Agent (x) renewals or additional copies of such form (or any
successor form) on or before the date that such form expires or becomes
obsolete, and (y) after the occurrence of any event requiring a change in the
most recent forms so delivered by it, such additional forms or amendments
thereto as may be reasonably requested by the Company or the Administrative
Agent. All forms or amendments described in the preceding sentence shall certify
that such Lender is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes, unless an
event (including without limitation any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form or amendment with
respect to it and such Lender advises the Company and the Administrative Agent
that it is not capable of receiving payments from the Company and any other
Borrower that is not a Non-U.S. Borrower without any deduction or withholding of
United States federal income tax.
(v) For any period during which a Non-U.S. Lender has failed to provide
the Company with an appropriate form pursuant to clause (iv), above (unless such
failure is due to a change in treaty, law or regulation, or any change in the
interpretation or administration thereof by any governmental authority,
occurring subsequent to the date on which a form originally was required to be
provided), such Non-U.S. Lender shall not be entitled to indemnification under
this Section 3.5 with respect to Taxes imposed by the United States; provided
that, should a Non-U.S. Lender which is otherwise exempt from or subject to a
reduced rate of withholding tax become subject to Taxes because of its failure
to deliver a form required under clause (iv), above, the Company shall take such
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steps as such Non-U.S. Lender shall reasonably request to assist such Non-U.S.
Lender to recover such Taxes.
(vi) Any Lender that is entitled to an exemption from or reduction of
withholding tax with respect to payments under this Agreement or any Note
pursuant to the law of any relevant jurisdiction or any treaty shall deliver to
the Company (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate.
(vii) If the U.S. Internal Revenue Service or any other governmental
authority of the United States or any other country or any political subdivision
thereof asserts a claim that the Administrative Agent did not properly withhold
tax from amounts paid to or for the account of any Lender (because such Lender
failed to notify the Administrative Agent of a change in circumstances which
rendered its exemption from withholding ineffective), such Lender shall
indemnify the Administrative Agent fully for all amounts paid, directly or
indirectly, by the Administrative Agent as tax, withholding therefor, or
otherwise, including penalties and interest, and including taxes imposed by any
jurisdiction on amounts payable to the Administrative Agent under this
subsection, together with all costs and expenses related thereto (including
attorneys fees and time charges of attorneys for the Administrative Agent, which
attorneys may be employees of the Administrative Agent). The obligations of the
Lenders under this Section 3.5(vii) shall survive the payment of the Obligations
and termination of this Agreement.
3.6 Lender Statements; Survival of Indemnity.
To the extent reasonably possible, each Lender shall designate an
alternate Lending Installation with respect to its Eurodollar Loans to reduce
any liability of the Borrowers to such Lender under Sections 3.1, 3.2 and 3.5 or
to avoid the unavailability of Eurodollar Advances under Section 3.3, so long as
such designation is not, in the judgment of such Lender, disadvantageous to such
Lender. Each Lender shall deliver a written statement of such Lender to the
Borrowers (with a copy to the Administrative Agent) as to the amount due, if
any, under Section 3.1, 3.2, 3.4 or 3.5. Such written statement shall set forth
in reasonable detail the calculations upon which such Lender determined such
amount and shall be final, conclusive and binding on the Borrowers in the
absence of manifest error. Determination of amounts payable under such Sections
in connection with a Eurodollar Loan shall be calculated as though each Lender
funded its Eurodollar Loan through the purchase of a deposit of the type,
currency and maturity corresponding to the deposit used as a reference in
determining the Eurodollar Rate applicable to such Loan, whether in fact that is
the case or not. Unless otherwise provided herein, the amount specified in the
written statement of any Lender shall be payable on demand after receipt by the
Borrowers of such written statement. The obligations of the Borrowers under
Sections 3.1, 3.2, 3.4 and 3.5 shall survive payment of the Obligations and
termination of this Agreement.
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ARTICLE IV.
CONDITIONS PRECEDENT
4.1 Initial Advance.
The Lenders shall not be required to make the initial Advance hereunder
unless the Borrowers have satisfied the following conditions:
(a) Each Borrower has furnished to the Administrative Agent
with sufficient copies for the Lenders:
(i) Copies of the articles or certificate of incorporation of such
Borrower, together with all amendments, and a certificate of good standing, each
certified by the appropriate governmental officer in its jurisdiction of
incorporation.
(ii) Copies, certified by the Secretary or Assistant Secretary of such
Borrower, of its by-laws or code of regulations and of its Board of Directors'
resolutions and of resolutions or actions of any other body authorizing the
execution of the Loan Documents to which such Borrower is a party.
(iii) An incumbency certificate, executed by the Secretary or Assistant
Secretary of such Borrower, which shall identify by name and title and bear the
signatures of the Authorized Officers and any other officers of such Borrower
authorized to sign the Loan Documents to which such Borrower is a party, upon
which certificate the Administrative Agent and the Lenders shall be entitled to
rely until informed of any change in writing by such Borrower.
(iv) A certificate, signed by the Chief Financial Officer or Treasurer
of such Borrower, stating that on the initial Borrowing Date no Default or
Unmatured Default has occurred and is continuing.
(v) A written opinion of such Borrower's counsel, addressed to the
Lenders in substantially the form of Exhibit A.
(vi) Any Notes requested by a Lender pursuant to Section 2.14 payable
to the order of each such requesting Lender.
(vii) Written money transfer instructions, in substantially the form of
Exhibit D, addressed to the Administrative Agent and signed by an Authorized
Officer, together with such other related money transfer authorizations as the
Administrative Agent may have reasonably requested.
(viii) Information reasonably satisfactory to the Administrative Agent
regarding the Company's Year 2000 Program.
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(ix) A pro forma covenant compliance certificate in form and substance
reasonably satisfactory to the Administrative Agent from the Chief Financial
Officer or Treasurer of the Company.
(x) The Guaranty, duly executed by the Company.
(xi) Such other documents as any Lender or its counsel may have
reasonably requested.
(b) The presentation of evidence satisfactory to the
Administrative Agent that the Amended and Restated Credit Agreement dated as of
March 30, 1994 among R.P. Scherer Corporation and the lenders party thereto and
the agent named therein shall have been terminated and all indebtedness,
liabilities, and obligations outstanding thereunder shall be paid in full not
later than April 9, 1999.
(c) The presentation of evidence satisfactory to the
Administrative Agent that the Credit Agreement Facility A dated September 23,
1996, as amended, among Allegiance Corporation and the lenders party thereto and
the agent named therein shall have been terminated and all indebtedness,
liabilities, and obligations outstanding thereunder shall have been paid in full
or will be paid from the proceeds of the initial Advance.
(d) The presentation of evidence satisfactory to the
Administrative Agent that revolving credits facilities of the Company totaling
not less than $95,000,000 have been terminated and all indebtedness, liabilities
and obligations outstanding thereunder shall have been paid in full or will be
paid from the proceeds of the initial Advance.
4.2 Each Advance
The Lenders shall not be required to make, continue or convert any
Advance unless on the applicable Borrowing Date or date of conversion or
continuation:
(i) There exists no Default or Unmatured Default.
(ii) The representations and warranties contained in Article V (other
than Section 5.5, 5.7 and 5.15) are true and correct in all material respects as
of such Borrowing Date except to the extent any such representation or warranty
is stated to relate solely to an earlier date, in which case such representation
or warranty shall have been true and correct on and as of such earlier date.
(iii) All legal matters incident to the making of such Advance shall be
satisfactory to the Lenders and their counsel.
(iv) Each Borrowing Notice with respect to each such Advance shall
constitute a representation and warranty by the Borrower that the conditions
contained in Sections 4.2(i) and (ii) have been satisfied.
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ARTICLE V.
REPRESENTATIONS AND WARRANTIES
The Company and each of the Borrowers represents and warrants to the
Lenders that:
5.1 Existence and Standing.
Each of the Company and its Significant Subsidiaries is a corporation,
partnership (in the case of Subsidiaries only) or limited liability company duly
and properly incorporated or organized, as the case may be, validly existing and
(to the extent such concept applies to such entity) in good standing under the
laws of its jurisdiction of incorporation or organization and has all requisite
authority to conduct its business in each jurisdiction in which its business is
conducted, except where the failure to do so could not reasonably be expected to
have a Material Adverse Effect.
5.2 Authorization and Validity.
Each Borrower has the power and authority and legal right to execute
and deliver the Loan Documents to which it is a party and to perform its
obligations thereunder. The execution and delivery by each Borrower of the Loan
Documents to which it is a party and the performance of its obligations
thereunder have been duly authorized by proper corporate or other proceedings,
and the Loan Documents to which such Borrower is a party constitute legal, valid
and binding obligations of such Borrower enforceable against such Borrower in
accordance with their terms, except as enforceability may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally.
5.3 No Conflict; Government Consent.
Neither the execution and delivery by the Borrowers of the Loan
Documents to which they are a party, nor the consummation of the transactions
therein contemplated, nor compliance with the provisions thereof will violate
(i) any law, rule, regulation, order, writ, judgment, injunction, decree or
award binding on any Borrower or (ii) any Borrower's articles or certificate of
incorporation, partnership agreement, certificate of partnership, articles or
certificate of organization, by-laws, code or regulations, or operating or other
management agreement, as the case may be, or (iii) the provisions of any
indenture, instrument or agreement to which any Borrower is a party or is
subject, or by which it, or its Property, is bound, or conflict with or
constitute a default thereunder, or result in, or require, the creation or
imposition of any Lien in, of or on the Property of any Borrower pursuant to the
terms of any such indenture, instrument or agreement. No order, consent,
adjudication, approval, license, authorization, or validation of, or filing,
recording or registration with, or exemption by, or other action in respect of
any governmental or public body or authority, or any subdivision thereof, which
has not been obtained by a Borrower, is required to be obtained by any Borrower
in connection with the execution and delivery of the Loan Documents, the
borrowings under this Agreement, the payment and performance by such Borrower of
the Obligations or the legality, validity, binding effect or enforceability of
any of the Loan Documents.
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5.4 Financial Statements.
The following consolidated financial statements heretofore delivered to
the Lenders were prepared in accordance with Agreement Accounting Principles in
effect on the date such statements were prepared and fairly present the
consolidated financial condition and operations of the Company and its
Subsidiaries at such date and the consolidated results of their operations for
the period then ended, subject, in the case of such interim statements, to
routine year-end audit adjustments:
(i) June 30, 1998 audited consolidated financial statements of the
Company and its Subsidiaries; December 31, 1997 audited consolidated financial
statements of Allegiance Corporation and its consolidated subsidiaries;
(ii) December 31, 1998 unaudited interim consolidated financial
statements of the Company and its Subsidiaries; and
(iii) December 31, 1998 unaudited interim consolidated financial
statements of Allegiance Corporation and its consolidated subsidiaries.
5.5 Material Adverse Change.
Since June 30, 1998 there has been no change in the business, Property,
prospects, condition (financial or otherwise) or results of operations of the
Company and its Subsidiaries which could reasonably be expected to have a
Material Adverse Effect.
5.6 Taxes.
The Company and its Subsidiaries have filed all United States federal
tax returns and all other tax returns which are required to be filed and have
paid all taxes due pursuant to said returns or pursuant to any assessment
received by the Company or any of its Subsidiaries, except such taxes, if any,
as are being contested in good faith and as to which adequate reserves have been
provided in accordance with Agreement Accounting Principles and as to which no
Lien exists. No tax liens have been filed and no claims are being asserted with
respect to any such taxes which could reasonably be expected to have a Material
Adverse Effect. The charges, accruals and reserves on the books of the Company
and its Subsidiaries in respect of any taxes or other governmental charges are
adequate.
5.7 Litigation and Contingent Obligations.
Except as set forth on Schedule 7, there is no litigation, arbitration,
governmental investigation, proceeding or inquiry pending or, to the knowledge
of any of their officers, threatened against or affecting the Company or any of
its Subsidiaries which could reasonably be expected to have a Material Adverse
Effect or which seeks to prevent, enjoin or delay the making of any Loans. As of
the date of this Agreement, other than any liability incident to any litigation,
arbitration or proceeding which (i) could not reasonably be expected to have a
Material Adverse Effect or (ii) is set forth on Schedule 7, the Company has no
material Contingent Obligations not provided for or disclosed in the financial
statements referred to in Section 5.4.
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5.8 Subsidiaries.
Schedule 1 contains an accurate list of all Subsidiaries of the Company
(other than immaterial or inactive Subsidiaries) and each Subsidiary Borrower as
of the date of this Agreement, setting forth their respective jurisdictions of
organization and the percentage of their respective capital stock or other
ownership interests owned by the Company or other Subsidiaries. All of the
issued and outstanding shares of capital stock or other ownership interests of
such Subsidiaries have been (to the extent such concepts are relevant with
respect to such ownership interests) duly authorized and issued and are fully
paid and non-assessable, except to the extent that the lack of such status could
not reasonably be expected to have a Material Adverse Effect. The Company may
amend Schedule 1 from time to time by delivering to the Administrative Agent an
updated list of Subsidiaries, and the Company may designate any Subsidiary
thereon which is directly or indirectly 80% (or, in the case of R.P. Scherer
S.A., 75%) or more owned by the Company as a Subsidiary Borrower hereunder so
long as (a) the Company guarantees the obligations of such new Subsidiary
Borrower pursuant to the terms of the Guaranty, (b) such new Subsidiary Borrower
delivers all corporate or organizational documents and authorizing resolutions
and legal opinions reasonably requested by the Administrative Agent and (c) such
new Subsidiary Borrower agrees to the terms and conditions of this Agreement and
the Borrowers and the new Subsidiary Borrower execute all agreements and take
such other action reasonably requested by Administrative Agent. Schedule 1 may
be amended to remove any Subsidiary as a Subsidiary Borrower upon (i) written
notice by the Company to the Administrative Agent to such effect and (ii)
repayment in full of all outstanding Loans of such Subsidiary Borrower.
5.9 ERISA.
The Unfunded Liabilities of all Single Employer Plans do not in the
aggregate exceed $75,000,000. Each Single Employer Plan complies in all material
respects with all applicable requirements of law and regulations where the
failure to so comply could reasonably be expected to have a Material Adverse
Effect. No Reportable Event has occurred with respect to any Plan where such
occurrence could reasonably be expected to have a Material Adverse Effect.
Neither the Company or any of its Significant Subsidiaries has withdrawn from
any Plan or initiated steps to do so, and no steps have been taken to reorganize
or terminate any Single Employer Plan where in either instance a liability in
excess of $75,000,000 could reasonably be expected to result.
5.10 Accuracy of Information.
No information, exhibit or report furnished by the Company or any of
its Subsidiaries to the Administrative Agent or to any Lender in connection with
the negotiation of, or compliance with, the Loan Documents contained any
material misstatement of fact or omitted to state a material fact or any fact
necessary to make the statements contained therein not misleading; provided,
however, that to the extent any such information, exhibits or reports include or
incorporate by reference any forward-looking statement (each, a "Forward-Looking
Statement") which reflects the Company's current view (as of the date such
Forward-Looking Statement is made) with respect to future events, prospects,
projections or financial performance, such
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Forward-Looking Statement is subject to uncertainties and other factors which
could cause actual results to differ materially from such Forward-Looking
Statement.
5.11 Regulation U.
Margin stock (as defined in Regulation U) constitutes less than 25% of
the value of those assets of the Company and its Subsidiaries which are subject
to any limitation on sale, pledge, or other restriction hereunder.
5.12 Material Agreements.
Neither the Company nor any Subsidiary is a party to any agreement or
instrument or subject to any charter or other corporate restriction which could
reasonably be expected to have a Material Adverse Effect. Neither the Company
nor any Subsidiary is in default in the performance, observance or fulfillment
of any of the obligations, covenants or conditions contained in any agreement to
which it is a party, which default could reasonably be expected to have a
Material Adverse Effect.
5.13 Compliance With Laws.
The Company and its Subsidiaries have complied with all applicable
statutes, rules, regulations, orders and restrictions of any domestic or foreign
government or any instrumentality or agency thereof having jurisdiction over the
conduct of their respective businesses or the ownership of their respective
Property, except for any failure to comply with any of the foregoing which could
not reasonably be expected to have a Material Adverse Effect.
5.14 Plan Assets; Prohibited Transactions.
The Company is not an entity deemed to hold "plan assets" within the
meaning of 29 C.F.R. ss. 2510.3-101 of an employee benefit plan (as defined in
Section 3(3) of ERISA) which is subject to Title I of ERISA or any plan (within
the meaning of Section 4975 of the Code), and neither the execution of this
Agreement nor the making of Loans hereunder gives rise to a prohibited
transaction within the meaning of Section 406 of ERISA or Section 4975 of the
Code.
5.15 Environmental Matters.
In the ordinary course of its business, the officers of the Company
consider the effect of Environmental Laws on the business of the Company and its
Subsidiaries, in the course of which they identify and evaluate potential risks
and liabilities accruing to the Company due to Environmental Laws. On the basis
of this consideration, the Company has concluded that Environmental Laws cannot
reasonably be expected to have a Material Adverse Effect. Neither the Company
nor any Subsidiary has received any notice to the effect that its operations are
not in material compliance with any of the requirements of applicable
Environmental Laws or are the subject of any federal or state investigation
evaluating whether any remedial action is needed to respond to a release of any
toxic or hazardous waste or substance into the environment, which non-compliance
or remedial action could reasonably be expected to have a Material Adverse
Effect.
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5.16 Investment Company Act.
Neither the Company nor any Subsidiary is an "investment company" or a
company "controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
5.17 Public Utility Holding Company Act.
Neither the Company nor any Subsidiary is a "holding company" or a
"subsidiary company" of a "holding company", or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company", within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
5.18 Year 2000.
The Company has substantially completed an assessment of the Year 2000
Issues and has a realistic and achievable program for addressing the remediation
of Year 2000 Issues on a timely basis to avoid any impact on the Company and its
Subsidiaries which would reasonably be expected to have a Material Adverse
Effect (the "Year 2000 Program"). Based on such assessment and on the Year 2000
Program the Company does not reasonably anticipate that Year 2000 Issues will
have a Material Adverse Effect.
5.19 Default.
There exists no Default or Unmatured Default under Article VII of this
Agreement.
ARTICLE VI.
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1 Financial Reporting.
The Company will maintain, for itself and each Subsidiary, a system of
accounting established and administered in accordance with Agreement Accounting
Principles, and furnish to the Lenders:
(i) Within 120 days after the close of each of its fiscal years, an
unqualified (except for qualifications relating to changes in accounting
principles or practices reflecting changes in Agreement Accounting Principles
and required or approved by the Company's independent certified public
accountants) audit report certified by independent certified public accountants
reasonably acceptable to the Lenders, prepared in accordance with Agreement
Accounting Principles on a consolidated basis for itself and its Subsidiaries,
including balance sheets as of the end of such period, related profit and loss
statements, and a statement of cash flows, accompanied by a certificate of said
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accountants that, in the course of their examination necessary for their
certification of the foregoing, they have obtained no knowledge of any Default
or Unmatured Default, or if, in the opinion of such accountants, any Default or
Unmatured Default shall exist, stating the nature and status thereof.
(ii) Within 60 days after the close of each of the first three
quarterly periods of each fiscal year, for itself and its Subsidiaries,
consolidated unaudited balance sheets as at the close of each such period and
consolidated unaudited profit and loss statements and a consolidated unaudited
statement of cash flows for the period from the beginning of such fiscal year to
the end of such quarter, all certified by its Chief Financial Officer,
Controller, or Treasurer.
(iii) Together with the financial statements required under Sections
6.1(i) and (ii), a compliance certificate in substantially the form of Exhibit B
signed by its Chief Financial Officer, Controller, or Treasurer and stating that
no Default or Unmatured Default exists, or if any Default or Unmatured Default
exists, stating the nature and status thereof.
(iv) As soon as possible and in any event within 10 Business Days after
the Company knows that any Reportable Event has occurred with respect to any
Plan, a statement, signed by the Chief Financial Officer, Controller, or
Treasurer of the Company, describing said Reportable Event and the action which
the Company proposes to take with respect thereto.
(v) As soon as possible and in any event within 10 Business Days after
receipt by the Company, a copy of (a) any notice or claim to the effect that the
Company or any of its Subsidiaries is or may be liable to any Person as a result
of the release by the Company, any of its Subsidiaries, or any other Person of
any toxic or hazardous waste or substance into the environment, and (b) any
notice alleging any violation of any federal, state or local environmental,
health or safety law or regulation by the Company or any of its Subsidiaries,
which, in either case, could reasonably be expected to have a Material Adverse
Effect.
(vi) Such other information (including non-financial information) as
the Administrative Agent or any Lender may from time to time reasonably request.
6.2 Use of Proceeds.
The Company will, and will cause each Subsidiary to, use the proceeds
of the Advances for general corporate purposes, including Acquisitions. The
Company will not, nor will it permit any Subsidiary to, use any of the proceeds
of the Advances to purchase or carry any "margin stock" (as defined in
Regulation U).
6.3 Notice of Default.
The Company will, and will cause each Borrower and Significant
Subsidiary to, give prompt notice in writing to the Administrative Agent of the
occurrence of any Default or Unmatured Default and of any other development,
financial or otherwise (including, without
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limitation, developments with respect to Year 2000 Issues), which could
reasonably be expected to have a Material Adverse Effect.
6.4 Conduct of Business.
The Company will, and will cause each Significant Subsidiary to, carry
on and conduct its business in substantially the same manner and in
substantially the same fields of enterprise as it is presently conducted or
fields related thereto (except that the Company and its Significant Subsidiaries
shall have no duty to renew or extend contracts which expire by their terms) and
do all things necessary to remain duly incorporated or organized, validly
existing and (to the extent such concept applies to such entity) in good
standing as a domestic corporation, partnership or limited liability company in
its jurisdiction of incorporation or organization, as the case may be, and
maintain all requisite authority to conduct its business in each jurisdiction in
which its business is conducted, unless the failure to do so could not
reasonably be expected to have a Material Adverse Effect.
6.5 Taxes.
The Company will, and will cause each Significant Subsidiary to, timely
file complete and correct United States federal and applicable foreign, state
and local tax returns required by law and pay when due all taxes, assessments
and governmental charges and levies upon it or its income, profits or Property,
except those which are being contested in good faith by appropriate proceedings
and with respect to which adequate reserves have been set aside in accordance
with Agreement Accounting Principles, except where the failure to do so could
not reasonably be expected to have a Material Adverse Effect.
6.6 Insurance.
The Company will, and will cause each Significant Subsidiary to,
maintain as part of a self-insurance program or with financially sound and
reputable insurance companies insurance on all their Property in such amounts
(with such customary deductibles, exclusions and self-insurance) and covering
such risks as is consistent with sound business practice.
6.7 Compliance with Laws.
The Company will, and will cause each Significant Subsidiary to, comply
with all laws, rules, regulations, orders, writs, judgments, injunctions,
decrees or awards to which it may be subject including, without limitation, all
Environmental Laws, except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect.
6.8 Inspection.
The Company will, and will cause each Significant Subsidiary to, permit
the Administrative Agent and the Lenders, by their respective representatives
and agents, to inspect any of the Property, books and financial records of the
Company and each Significant Subsidiary, to examine and make copies of the books
of accounts and other financial records of the Company and each Significant
Subsidiary, and to discuss the affairs, finances and accounts of the Company and
each Significant Subsidiary with, and to be advised as to the same by, their
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respective officers upon reasonable prior notice at such reasonable times and
intervals as the Administrative Agent or any Lender may designate, provided that
neither the Company nor any of its Subsidiaries shall be responsible for the
costs and expenses incurred by the Administrative Agent, any Lender, or their
representatives in connection with such inspection prior to the occurrence and
continuation of a Default.
6.9 Merger.
The Company will not, nor will it permit any Significant Subsidiary to,
merge or consolidate with or into any other Person, except that, provided that
no Default or Unmatured Default shall have occurred and be continuing or would
result therefrom on a pro forma basis reasonably acceptable to the
Administrative Agent, the Company may merge or consolidate with any other U.S.
corporation and each Significant Subsidiary may merge or consolidate with any
other Person, provided, further, that (i) in the case of any such merger or
consolidation involving the Company, the Company is the surviving corporation
and (ii) in the case of any such merger or consolidation involving a Significant
Subsidiary which is a Subsidiary Borrower, the surviving corporation assumes all
of such Borrower's obligations under this Agreement and remains or becomes a
Subsidiary Borrower.
6.10 Sale of Assets.
The Company will not, nor will it permit any Significant Subsidiary to,
lease, sell or otherwise dispose of its Property, to any other Person (other
than the Company or another Subsidiary), except:
(i) Sales of inventory in the ordinary course of business.
(ii) Sales or other dispositions in the ordinary course of business of
fixed assets for the purpose of replacing such fixed assets, provided that such
fixed assets are replaced within 360 days of such sale or other disposition with
other fixed assets which have a fair market value not materially less than the
fixed assets sold or otherwise disposed of.
(iii) Sales or other dispositions outside the ordinary course of
business of accounts receivable, lease receivables, leases or equipment which
had been leased by the Company or such Significant Subsidiary, provided that any
such sale or other disposition is for reasonably equivalent value and could not
reasonably be expected to have a Material Adverse Effect.
(iv) Other leases, sales (including sale-leasebacks) or other
dispositions of its Property that, together with all other Property of the
Company and its Subsidiaries previously leased, sold or disposed of (other than
as provided in clauses (i), (ii) and (iii) above) as permitted by this Section
during the twelve-month period ending with the month prior to the month in which
any such lease, sale or other disposition occurs, do not constitute a
Substantial Portion of the Property of the Company and its Subsidiaries, or
together with all other Property of the Company and its Subsidiaries previously
leased, sold or disposed of (other than as provided in clauses (i) and (ii)
above) as permitted by this Section during the period from the date of this
Agreement to the end of the month
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prior to the month in which any such lease, sale or other disposition occurs, do
not constitute 35% of the consolidated assets of the Company and its
Subsidiaries as would be shown in the consolidated financial statements of the
Company and its Subsidiaries as at the beginning of the fiscal year in which any
such lease, sale or other disposition occurs.
Notwithstanding anything in this Section 6.10 to the contrary, (a) no
such leases, sales or other dispositions of property may be made (other than
pursuant to clause (i) above) if any Default or Unmatured Default has occurred
and is continuing, and (b) all leases, sales and other dispositions of Property
at any time shall be for not less than the fair market value of such Property as
determined in good faith by the Company.
6.11 Investments.
The Company will not, nor will it permit any Significant Subsidiary to,
make or suffer to exist any Investments, or commitments therefor, or to create
any Subsidiary or to become or remain a partner in any partnership or joint
venture, except:
(i) Cash Equivalent Investments.
(ii) Investments in Subsidiaries.
(iii) other Investments in existence on the date hereof.
(iv) Other Investments provided that the aggregate amount of such
Investments made in any fiscal year does not exceed 25% of Adjusted Tangible Net
Worth as of the beginning of such fiscal year.
6.12 Liens.
The Company will not, nor will it permit any Significant Subsidiary to,
create, incur, or suffer to exist any Lien in, of or on the Property of the
Company or any of its Significant Subsidiaries, except:
(i) Liens for taxes, assessments or governmental charges or levies on
its Property if the same shall not at the time be delinquent or thereafter can
be paid without penalty, or are being contested in good faith and by appropriate
proceedings and for which adequate reserves in accordance with Agreement
Accounting Principles shall have been set aside on its books.
(ii) Liens imposed by law, such as landlord's, carriers',
warehousemen's and mechanics' liens and other similar liens arising in the
ordinary course of business which secure payment of obligations not more than 60
days past due or which are being contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with Agreement
Accounting Principles shall have been set aside on its books.
(iii) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions, or other social
security or retirement benefits, or similar legislation (other than Liens in
favor of the PGBC).
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(iv) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature generally
existing with respect to properties of a similar character and which do not in
any material way affect the marketability of the same or interfere with the use
thereof in the business of the Company or its Subsidiaries.
(v) Liens existing on the date hereof.
(vi) Liens on any assets which exist at the time of acquisition of such
assets by the Company or any of its Subsidiaries, or liens to secure the payment
of all of any part of the purchase price of such assets upon the acquisition of
such assets by the Company or any of its Subsidiaries or to secure any
Indebtedness incurred or guaranteed by the Company or any of its Subsidiaries
prior to, at the time, of or within 360 days after, such acquisition (or, in the
case of real property, the completion of construction (including any
improvements on an existing asset) or commencement of full operation of such
asset, whichever is later), which Indebtedness is incurred or guaranteed for the
purpose of financing all or any part of the purchase price thereof or, in the
case of real property, construction or improvements thereon, provided, however,
that in the case of any such acquisition, construction or improvement, the Lien
shall not apply to such assets theretofore owned by the Company or any of its
Subsidiaries other than, in the case of any such construction or improvement,
any real property on which the property so constructed, or the improvement, is
located, provided further, however, that the aggregate outstanding principal
amount of Indebtedness secured by Liens permitted by this Section 6.12(vi) shall
not at any time exceed $250,000,000.
(vii) Liens in favor of the United States of America or any State
thereof, or any department, agency or instrumentality or political subdivision
of the United States of America or any State thereof, or in favor of any other
country or any political subdivision thereof, to secure partial, progress,
advance or other payments pursuant to any contract or statute or to secure any
Indebtedness incurred or guaranteed for the purpose of financing all or any part
of the purchase price (or, in the case of real property, the cost of
construction), of the assets subject to such liens (including without limitation
liens incurred in connection with pollution control, industrial revenue or
similar financings).
(viii) Any extension, renewal or replacement (or successive extensions,
renewals or replacements) in whole or in part of any Lien referred to in the
foregoing clauses, provided, however, that the principal amount of Indebtedness
secured thereby shall not exceed the principal amount of Indebtedness so secured
prior to such extension, renewal or replacement and that such extension, renewal
or replacement Lien shall be limited to all or a part of the assets which
secured the Lien so extended, renewed or replaced (plus improvements and
construction on such real property).
(ix) So long as no Default under Section 7.9 would occur in connection
therewith, Liens created by or resulting from any litigation or other proceeding
which is being contested in good faith by appropriate proceedings, including
Liens arising out of judgments or awards against the Company or any of its
Subsidiaries with respect to which the Company or such Subsidiary is in good
faith prosecuting an appeal or
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proceeding for review or for which the time to make an appeal has not yet
expired; or final unappealable judgment Liens which are satisfied within 15 days
of the date of judgment; or Liens incurred by the Company or any of its
Subsidiaries for the purpose of obtaining a stay or discharge in the course of
any litigation or other proceeding to which the Company or such Subsidiary is a
party.
(x) Liens securing Indebtedness described in Section 6.17(iv) and (v).
(xi) Liens securing Indebtedness and not otherwise permitted by the
foregoing provisions of this Section 6.12, provided that the aggregate
outstanding principal amount of the Indebtedness secured by all such Liens shall
not at any time exceed 25% of Adjusted Tangible Net Worth.
6.13 Year 2000.
The Company will take and will cause each of its Subsidiaries to take
all such actions as are reasonably necessary to successfully implement the Year
2000 Program and to assure that Year 2000 Issues will not have a Material
Adverse Effect. At the request of the Administrative Agent, the Company will
provide a description of the Year 2000 Program, together with any updates or
progress reports with respect thereto.
6.14 Subsidiary Indebtedness.
The Company will not permit any Subsidiary to create, incur or suffer
to exist any Indebtedness, except:
(i) The Loans.
(ii) Indebtedness outstanding on the date of this Agreement or
incurred pursuant to commitments in existence on the date of this Agreement.
(iii) Indebtedness of any Subsidiary to the Company or any other
Subsidiary.
(iv) Indebtedness of any Person that becomes a Subsidiary after the
date hereof; provided that such Indebtedness existed at the time such Person
becomes a Subsidiary and is not created in contemplation of or in connection
with such Person becoming a Subsidiary.
(v) Any refunding or refinancing of any Indebtedness referred to in
clauses (i) through (iv) above, provided that any such refunding or refinancing
of Indebtedness referred to in clause (ii), (iii) or (iv) does not increase the
principal amount thereof.
(vi) Indebtedness arising from (a) the endorsement of negotiable
instruments for deposit or collection or similar transactions in the ordinary
course of business, or (b) the honoring by a bank or other financial institution
of a check, draft or similar instrument inadvertently (except in the case of
daylight overdrafts) drawn against insufficient funds in the ordinary course of
business.
(vii) Indebtedness arising from guarantees of loans and advances by
third parties to employees and officers of a Subsidiary in the ordinary course
of business for
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bona fide business purposes, provided that the aggregate outstanding principal
amount of such Indebtedness does not at any time exceed $100,000,000.
(viii) Indebtedness of a Subsidiary arising from agreements providing
for indemnification, adjustment of purchase price or similar obligations or from
guarantees, letters of credit, surety bonds or performance bonds securing any
obligations of the Company or any of its Subsidiaries incurred or assumed in
connection with the disposition of any business, property or Subsidiary.
(ix) Indebtedness arising from Rate Hedging Obligations.
(x) Contingent Obligations.
(xi) Indebtedness outstanding under investment grade commercial paper
programs.
(xii) Other Indebtedness; provided that, at the time of the creation,
incurrence or assumption of such other Indebtedness and after giving effect
thereto, the aggregate amount of all such other Indebtedness of the Subsidiaries
does not exceed an amount equal to 25% of Adjusted Tangible Net Worth at such
time.
6.15 Limitation on Restrictions on Significant Subsidiary
Distributions.
The Company will not, and will not permit any Significant Subsidiary
to, enter into or suffer to exist or become effective any consensual encumbrance
or restriction on the ability of any Significant Subsidiary of the Company to
(i) pay dividends or make any other distributions in respect of any capital
stock of such Subsidiary held by, or pay any Indebtedness owed to, the Company
or any other Subsidiary of the Company, (ii) make loans or advances to the
Company or any other Subsidiary of the Company or (iii) transfer any of its
assets to the Company or any other Subsidiary of the Company, except for such
encumbrances or restrictions existing under or by reason of (a) any restrictions
existing under the Loan Documents, (b) any restrictions with respect to a
Significant Subsidiary imposed pursuant to an agreement which has been entered
into in connection with the disposition of all or substantially all of the
capital stock or assets of such Subsidiary, and (c) any restrictions with
respect to assets encumbered by a Lien permitted by Section 6.12 so long as such
restriction applies only to the asset encumbered by such permitted Lien.
6.16 Contingent Obligations.
The Company will not, nor will it permit any Subsidiary to, make or
suffer to exist any Contingent Obligation (including, without limitation, any
Contingent Obligation with respect to the obligations of a Subsidiary), except
(i) by endorsement of instruments for deposit or collection in the ordinary
course of business, (ii) the Guaranty, (iii) Contingent Obligations of
special-purpose finance Subsidiaries, provided that no Person has recourse
against the Company or any Significant Subsidiary for such Contingent
Obligations, (iv) Contingent Obligations arising from the sale by Pyxis
Corporation of lease receivables, leases or equipment, provided that the
aggregate amount of such Contingent Obligations do not at any time exceed 10% of
Adjusted Tangible Net Worth, (v) Contingent Obligations arising out of operating
or synthetic
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leases entered into by Subsidiaries of the Company, provided that the aggregate
amount of such Contingent Obligations do not at any time exceed 25% of Adjusted
Tangible Net Worth, and (vi) Contingent Obligations in addition to those
described in (i)-(v) above, provided that the aggregate amount of such
additional Contingent Obligations (without duplication) do not at any time
exceed 25% of Adjusted Tangible Net Worth.
6.17 Minimum Net Worth.
The Company shall not permit its Net Worth to be less than
$2,550,000,000 at any time.
ARTICLE VII.
DEFAULTS
The occurrence of any one or more of the following events shall
constitute a Default:
7.1. Any representation or warranty made or deemed made by or on behalf
of the Company or any of its Subsidiaries to the Lenders or the Administrative
Agent under or in connection with this Agreement, any Loan, or any certificate
or information delivered in connection with this Agreement or any other Loan
Document shall be materially false on the date as of which made.
7.2. Nonpayment of principal of any Loan within one day after the same
becomes due, or nonpayment of interest upon any Loan or of any commitment fee or
other obligations under any of the Loan Documents within five days after the
same becomes due.
7.3. The breach by the Company of Sections 6.3, 6.9, 6.10, 6.14, 6.16,
or 6.17.
7.4. The breach by any Borrower (other than a breach which constitutes
a Default under another Section of this Article VII) of any of the terms or
provisions of this Agreement which is not remedied within thirty days after
written notice from the Administrative Agent or any Lender.
7.5. Failure of the Company or any of its Significant Subsidiaries to
pay when due any principal, interest or other amounts, subject to any applicable
grace period, or the default by the Company or any of its Significant
Subsidiaries in the performance beyond the applicable grace period with respect
thereto, if any, of any term, provision or condition contained in the Five Year
Credit Agreement or any agreement or agreements under which any Indebtedness in
excess of 2% of Adjusted Tangible Net Worth was created or is governed, or any
other event shall occur or condition exist, the effect of which default or event
is to cause, or to permit the holder or holders of such Indebtedness to cause,
such Indebtedness to become due prior to its stated maturity; or any such
Indebtedness of the Company or any of its Subsidiaries shall be declared to be
due and payable or required to be prepaid or repurchased (other than by a
regularly scheduled payment) prior to the stated maturity thereof; or the
Company or any of its Significant Subsidiaries shall not pay, or admit in
writing its inability to pay, its debts generally as they become due.
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7.6. The Company or any of its Significant Subsidiaries shall (i) have
an order for relief entered with respect to it under the Federal bankruptcy laws
as now or hereafter in effect, (ii) make an assignment for the benefit of
creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment
of a receiver, custodian, trustee, examiner, liquidator or similar official for
it or any Substantial Portion of its Property, (iv) institute any proceeding
seeking an order for relief under the Federal bankruptcy laws as now or
hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or
seeking dissolution, winding up, liquidation, reorganization, arrangement,
adjustment or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors or fail to file an
answer or other pleading denying the material allegations of any such proceeding
filed against it, (v) take any corporate or partnership action to authorize or
effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail
to contest in good faith any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of the Company or any
of its Significant Subsidiaries, a receiver, trustee, examiner, liquidator or
similar official shall be appointed for the Company or any of its Significant
Subsidiaries or any Substantial Portion of its Property, or a proceeding
described in Section 7.6(iv) shall be instituted against the Company or any of
its Significant Subsidiaries and such appointment continues undischarged or such
proceeding continues undismissed or unstayed for a period of 60 consecutive
days.
7.8. Any court, government or governmental agency shall condemn, seize
or otherwise appropriate, or take custody or control of, all or any portion of
the Property of the Company and its Subsidiaries which, when taken together with
all other Property of the Company and its Subsidiaries so condemned, seized,
appropriated, or taken custody or control of, during the twelve-month period
ending with the month in which any such action occurs, constitutes a Substantial
Portion.
7.9. The Company or any of its Significant Subsidiaries shall fail
within 60 days to pay, bond or otherwise discharge one or more (i) judgments or
orders for the payment of money (not covered by insurance)in excess of 2% of
Adjusted Tangible Net Worth (or the equivalent thereof in currencies other than
U.S. Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect, which judgment(s), in either such case, is/are not
stayed on appeal or otherwise being appropriately contested in good faith.
7.10. Any member of the Controlled Group shall fail to pay when due an
amount or amounts aggregating in excess of $75,000,000 which it shall have
become liable to pay under Title IV of ERISA; or notice of intent to terminate a
Single Employer Plan with Unfunded Liabilities in excess of $20,000,000 (a
"Material Plan") shall be filed under Section 4041(c) of ERISA by any member of
the Controlled Group, any plan administrator or any combination of the
foregoing; or PBGC shall institute proceedings under which it is likely to
prevail under Title IV of ERISA to terminate, to impose liability (other than
for premiums under Section 4007 of ERISA) in respect of, or to cause a trustee
to be appointed to administer any Material Plan; or a condition shall exist by
reason of which the PBGC would be entitled to obtain a decree adjudicating that
any Material Plan must be terminated; or there shall occur a complete or partial
withdrawal from, or a default, within the meaning of Section 4219(c)(5) of
ERISA, with respect
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to, one or more Multiemployer Plans which causes one or more members of the
Controlled Group to incur a current payment obligation in excess of $75,000,000.
7.11. Any Change in Control shall occur.
7.12. The Guaranty shall fail to remain in full force or effect or any
action shall be taken to discontinue or to assert the invalidity or
unenforceability of the Guaranty, or the Company shall fail to comply with any
of the terms or provisions of the Guaranty, or the Company shall deny that it
has any further liability under the Guaranty, or shall give notice to such
effect.
ARTICLE VIII.
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1 Acceleration.
If any Default described in Section 7.6 or 7.7 occurs with respect to
the Company or any of its Significant Subsidiaries, the obligations of the
Lenders to make Loans hereunder shall automatically terminate and the
Obligations shall immediately become due and payable without any election or
action on the part of the Administrative Agent or any Lender. If any other
Default occurs and is continuing, the Required Lenders (or the Administrative
Agent with the consent of the Required Lenders) may terminate or suspend the
obligations of the Lenders to make Loans hereunder, or declare the Obligations
to be due and payable, or both, whereupon the Obligations shall become
immediately due and payable, without presentment, demand, protest or notice of
any kind, all of which the Company hereby expressly waives.
If, within 60 days after acceleration of the maturity of the
Obligations or termination of the obligations of the Lenders to make Loans
hereunder as a result of any Default (other than any Default as described in
Section 7.6 or 7.7 with respect to the Company) and before any judgment or
decree for the payment of the Obligations due shall have been obtained or
entered, the Required Lenders (in their sole discretion) shall so direct, the
Administrative Agent shall, by notice to the Company, rescind and annul such
acceleration and/or termination.
8.2 Amendments.
Subject to the provisions of this Article VIII, the Required Lenders
(or the Administrative Agent with the consent in writing of the Required
Lenders) and the Borrowers may enter into written agreements supplemental hereto
for the purpose of adding or modifying any provisions to the Loan Documents or
changing in any manner the rights of the Lenders or the Borrowers hereunder or
waiving any Default hereunder; provided, however, that no such supplemental
written agreement shall, without the consent of all of the Lenders:
(i) Extend the final maturity of any Loan or postpone any regularly
scheduled payment of principal of any Loan or forgive all or any portion of the
principal amount thereof, or reduce the rate or extend the time of payment of
interest or fees thereon.
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(ii) Reduce the percentage specified in the definition of Required
Lenders.
(iii) Extend the Facility Termination Date or reduce the amount or
extend the payment date for, the mandatory payments required under Section 2.2,
or increase the amount of the Aggregate Commitment or of the Commitment of any
Lender hereunder, or permit any Borrower to assign its rights under this
Agreement (other than as may be permitted pursuant to Section 6.9).
(iv) Amend this Section 8.2.
(v) Release the Company as guarantor of any Advance.
No amendment of any provision of this Agreement relating to the
Administrative Agent shall be effective without the written consent of the
Administrative Agent. The Administrative Agent may waive payment of the fee
required under Section 12.3.2 without obtaining the consent of any other party
to this Agreement.
Notwithstanding anything herein to the contrary, no Defaulting Lender
shall be entitled to vote (whether to consent or to withhold its consent) with
respect to any amendment, modification, termination or waiver requiring the
consent of the Required Lenders, and, for purposes of determining the Required
Lenders, the Commitments and the Loans of each Defaulting Lender shall be
disregarded.
8.3 Preservation of Rights.
No delay or omission of the Lenders or the Administrative Agent to
exercise any right under the Loan Documents shall impair such right or be
construed to be a waiver of any Default or an acquiescence therein, and the
making of a Loan notwithstanding the existence of a Default or the inability of
a Borrower to satisfy the conditions precedent to such Loan shall not constitute
any waiver or acquiescence. Any single or partial exercise of any such right
shall not preclude other or further exercise thereof or the exercise of any
other right, and no waiver, amendment or other variation of the terms,
conditions or provisions of the Loan Documents whatsoever shall be valid unless
in writing signed by the Lenders required pursuant to Section 8.2, and then only
to the extent in such writing specifically set forth. All remedies contained in
the Loan Documents or by law afforded shall be cumulative and all shall be
available to the Administrative Agent and the Lenders until the Obligations have
been paid in full.
ARTICLE IX.
GENERAL PROVISIONS
9.1 Survival of Representations.
All representations and warranties of the Borrowers contained in this
Agreement shall survive the making of the Loans herein contemplated.
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9.2 Governmental Regulation.
Anything contained in this Agreement to the contrary notwithstanding,
no Lender shall be obligated to extend credit to the Borrowers in violation of
any limitation or prohibition provided by any applicable statute or regulation.
9.3 Headings.
Section headings in the Loan Documents are for convenience of reference
only, and shall not govern the interpretation of any of the provisions of the
Loan Documents.
9.4 Entire Agreement.
The Loan Documents embody the entire agreement and understanding among
the Borrowers, the Administrative Agent and the Lenders and supersede all prior
agreements and understandings among the Borrowers, the Administrative Agent and
the Lenders relating to the subject matter thereof other than the fee letter
described in Section 10.13.
9.5 Several Obligations; Benefits of this Agreement.
The respective obligations of the Lenders hereunder are several and not
joint and no Lender shall be the partner or agent of any other (except to the
extent to which the Administrative Agent is authorized to act as such). The
failure of any Lender to perform any of its obligations hereunder shall not
relieve any other Lender from any of its obligations hereunder. This Agreement
shall not be construed so as to confer any right or benefit upon any Person
other than the parties to this Agreement and their respective successors and
assigns, provided, however, that the parties hereto expressly agree that the
Lead Arranger shall enjoy the benefits of the provisions of Sections 9.6, 9.10
and 10.11 to the extent specifically set forth therein and shall have the right
to enforce such provisions on its own behalf and in its own name to the same
extent as if it were a party to this Agreement.
9.6 Expenses; Indemnification.
(i) The Borrowers shall reimburse the Administrative Agent and the Lead
Arranger for any reasonable costs, internal charges and out-of-pocket expenses
(including reasonable attorneys' fees and time charges of attorneys for the
Administrative Agent, which attorneys may be employees of the Administrative
Agent but subject to any limitations contained in the letter from Dickinson
Wright PLLC to First Chicago dated February 19, 1999) paid or incurred by the
Administrative Agent or the Lead Arranger in connection with the preparation,
investigation, negotiation, execution, delivery, syndication, review, amendment,
modification, and administration of the Loan Documents, whether incurred prior
to or subsequent to closing. The Borrowers also agree to reimburse the
Administrative Agent, the Lead Arranger and the Lenders for any costs, internal
charges and out-of-pocket expenses (including reasonable attorneys' fees and
time charges of attorneys for the Administrative Agent, the Lead Arranger and
the Lenders, which attorneys may be employees of the Administrative Agent, the
Lead Arranger or the Lenders) paid or incurred by the Administrative Agent, the
Lead
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Arranger or any Lender in connection with the collection and enforcement of the
Loan Documents.
(ii) The Company hereby further agrees to indemnify the Administrative
Agent, the Lead Arranger and each Lender, its directors, officers and employees
against all losses, claims, damages, penalties, judgments, liabilities and
expenses (including, without limitation, all reasonable expenses of litigation
or preparation therefor whether or not the Administrative Agent, the Lead
Arranger or any Lender is a party thereto) which any of them may pay or incur
arising out of or relating to this Agreement, the other Loan Documents, the
transactions contemplated hereby or the direct or indirect application or
proposed application of the proceeds of any Loan hereunder except to the extent
that they are determined in a final non-appealable judgment by a court of
competent jurisdiction to have resulted from the gross negligence or willful
misconduct of the party seeking indemnification. The obligations of the Company
under this Section 9.6 shall survive the termination of this Agreement.
9.7 Numbers of Documents.
All statements, notices, closing documents, and requests hereunder
shall be furnished to the Administrative Agent with sufficient counterparts so
that the Administrative Agent may furnish one to each of the Lenders.
9.8 Accounting.
Except as provided to the contrary herein, all accounting terms used
herein shall be interpreted and all accounting determinations hereunder shall be
made in accordance with Agreement Accounting Principles except that any
calculation or determination which is to be made on a consolidated basis shall
be made for the Company and all its Subsidiaries, including those Subsidiaries,
if any, which are unconsolidated on the Company's audited financial statements.
9.9 Severability of Provisions.
Any provision in any Loan Document that is held to be inoperative,
unenforceable, or invalid in any jurisdiction shall, as to that jurisdiction, be
inoperative, unenforceable, or invalid without affecting the remaining
provisions in that jurisdiction or the operation, enforceability, or validity of
that provision in any other jurisdiction, and to this end the provisions of all
Loan Documents are declared to be severable.
9.10 Nonliability of Lenders.
The relationship between the Company on the one hand and the Lenders
and the Administrative Agent on the other hand shall be solely that of borrower
and lender. Neither the Administrative Agent, the Lead Arranger nor any Lender
shall have any fiduciary responsibilities to the Company solely by reason of
being a party to this Agreement. Neither the Administrative Agent, the Lead
Arranger nor any Lender undertakes any responsibility to the Company to review
or inform the Company of any matter in connection with any phase of the
Company's business or operations. The Company agrees that neither the
Administrative Agent, the Lead
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Arranger nor any Lender shall have liability to the Company (whether sounding in
tort, contract or otherwise) for losses suffered by the Company in connection
with, arising out of, or in any way related to, the transactions contemplated
and the relationship established by the Loan Documents, or any act, omission or
event occurring in connection therewith, unless it is determined in a final
non-appealable judgment by a court of competent jurisdiction that such losses
resulted from the gross negligence or willful misconduct of the party from which
recovery is sought. Neither the Administrative Agent, the Lead Arranger nor any
Lender shall have any liability with respect to, and the Company hereby waives,
releases and agrees not to sue for, any special, indirect or consequential
damages suffered by the Company in connection with, arising out of, or in any
way related to the Loan Documents or the transactions contemplated thereby.
9.11 Confidentiality.
Each of the Administrative Agent and each Lender agrees to hold any
confidential information which it may receive from the Company pursuant to this
Agreement in confidence, except for disclosure (i) to its Affiliates and to
other Lenders and their respective Affiliates, (ii) to legal counsel,
accountants, and other professional advisors to such Lender or the
Administrative Agent or, subject to Section 12.4, to a Transferee, (iii) to
regulatory officials, (iv) to any Person as required by law, regulation, or
legal process, (v) to any Person in connection with any legal proceeding to
which such Lender is a party, (vi) to such Lender's contractual counterparties
in swap agreements or to legal counsel, accountants and other professional
advisors to such counterparties, (vii) permitted by Section 12.4, and (viii) to
rating agencies if requested or required by such agencies in connection with a
rating relating to the Advances hereunder, provided that reasonable advance
written notice is given to the Company.
9.12 Nonreliance.
Each Lender hereby represents that it is not relying on or looking to
any margin stock (as defined in Regulation U of the Board of Governors of the
Federal Reserve System) for the repayment of the Loans provided for herein.
ARTICLE X.
THE AGENT
10.1 Appointment; Nature of Relationship.
The First National Bank of Chicago is hereby appointed by each of the
Lenders as its contractual representative (herein referred to as the
"Administrative Agent") hereunder and under each other Loan Document, and each
of the Lenders irrevocably authorizes the Administrative Agent to act as the
contractual representative of such Lender with the rights and duties expressly
set forth herein and in the other Loan Documents. The Administrative Agent
agrees to act as such contractual representative upon the express conditions
contained in this Article X. Notwithstanding the use of the defined term
"Administrative Agent," it is expressly understood and agreed that the
Administrative Agent shall not have any fiduciary responsibilities to any Lender
by reason of this Agreement or any other Loan Document and that the
Administrative
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Agent is merely acting as the contractual representative of the Lenders with
only those duties as are expressly set forth in this Agreement and the other
Loan Documents. In its capacity as the Lenders' contractual representative, the
Administrative Agent (i) does not hereby assume any fiduciary duties to any of
the Lenders, (ii) is a "representative" of the Lenders within the meaning of
Section 9-105 of the Uniform Commercial Code and (iii) is acting as an
independent contractor, the rights and duties of which are limited to those
expressly set forth in this Agreement and the other Loan Documents. Each of the
Lenders hereby agrees to assert no claim against the Administrative Agent on any
agency theory or any other theory of liability for breach of fiduciary duty, all
of which claims each Lender hereby waives.
10.2 Powers.
The Administrative Agent shall have and may exercise such powers under
the Loan Documents as are specifically delegated to the Administrative Agent by
the terms of each thereof, together with such powers as are reasonably
incidental thereto. The Administrative Agent shall have no implied duties to the
Lenders, or any obligation to the Lenders to take any action thereunder except
any action specifically provided by the Loan Documents to be taken by the
Administrative Agent.
10.3 General Immunity.
Neither the Administrative Agent nor any of its directors, officers,
agents or employees shall be liable to the Company, the Lenders or any Lender
for any action taken or omitted to be taken by it or them hereunder or under any
other Loan Document or in connection herewith or therewith except to the extent
such action or inaction is determined in a final non-appealable judgment by a
court of competent jurisdiction to have arisen from the gross negligence or
willful misconduct of such Person.
10.4 No Responsibility for Loans, Recitals, etc.
Neither the Administrative Agent nor any of its directors, officers,
agents or employees shall be responsible for or have any duty to ascertain,
inquire into, or verify (a) any statement, warranty or representation made in
connection with any Loan Document or any borrowing hereunder; (b) the
performance or observance of any of the covenants or agreements of any obligor
under any Loan Document, including, without limitation, any agreement by an
obligor to furnish information directly to each Lender; (c) the satisfaction of
any condition specified in Article IV, except receipt of items required to be
delivered solely to the Administrative Agent; (d) the existence or possible
existence of any Default or Unmatured Default; (e) the validity, enforceability,
effectiveness, sufficiency or genuineness of any Loan Document or any other
instrument or writing furnished in connection therewith; (f) the value,
sufficiency, creation, perfection or priority of any Lien in any collateral
security; or (g) the financial condition of the Company or any guarantor of any
of the Obligations or of any of the Company's or any such guarantor's respective
Subsidiaries. The Administrative Agent shall have no duty to disclose to the
Lenders information that is not required to be furnished by the Company to the
Administrative Agent at such time, but is voluntarily furnished by the Company
to the Administrative Agent (either in its capacity as Administrative Agent or
in its individual capacity).
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10.5 Action on Instructions of Lenders.
The Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, hereunder and under any other Loan
Document in accordance with written instructions signed by the Required Lenders,
and such instructions and any action taken or failure to act pursuant thereto
shall be binding on all of the Lenders. The Lenders hereby acknowledge that the
Administrative Agent shall be under no duty to take any discretionary action
permitted to be taken by it pursuant to the provisions of this Agreement or any
other Loan Document unless it shall be requested in writing to do so by the
Required Lenders. The Administrative Agent shall be fully justified in failing
or refusing to take any action hereunder and under any other Loan Document
unless it shall first be indemnified to its satisfaction by the Lenders pro rata
against any and all liability, cost and expense that it may incur by reason of
taking or continuing to take any such action.
10.6 Employment of Agents and Counsel.
The Administrative Agent may execute any of its duties as
Administrative Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Administrative Agent shall be entitled
to advice of counsel concerning the contractual arrangement between the
Administrative Agent and the Lenders and all matters pertaining to the
Administrative Agent's duties hereunder and under any other Loan Document.
10.7 Reliance on Documents; Counsel.
The Administrative Agent shall be entitled to rely upon any Note,
notice, consent, certificate, affidavit, letter, telegram, statement, paper or
document believed by it to be genuine and correct and to have been signed or
sent by the proper person or persons, and, in respect to legal matters, upon the
opinion of counsel selected by the Administrative Agent, which counsel may be
employees of the Administrative Agent.
10.8 Administrative Agent's Reimbursement and Indemnification.
The Lenders agree to reimburse and indemnify the Administrative Agent
ratably in proportion to their respective Commitments (or, if the Commitments
have been terminated, in proportion to their Commitments immediately prior to
such termination) (i) for any amounts not reimbursed by the Company for which
the Administrative Agent is entitled to reimbursement by the Company under the
Loan Documents (other than the fee payable pursuant to Section 10.13), (ii) for
any other expenses incurred by the Administrative Agent on behalf of the
Lenders, in connection with the preparation, execution, delivery, administration
and enforcement of the Loan Documents (including, without limitation, for any
expenses incurred by the Administrative Agent in connection with any dispute
between the Administrative Agent and any Lender or between two or more of the
Lenders) and (iii) for any liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind and
nature whatsoever which may be imposed on, incurred by or asserted against the
Administrative Agent
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in any way relating to or arising out of the Loan Documents or any other
document delivered in connection therewith or the transactions contemplated
thereby (including, without limitation, for any such amounts incurred by or
asserted against the Administrative Agent in connection with any dispute between
the Administrative Agent and any Lender or between two or more of the Lenders),
or the enforcement of any of the terms of the Loan Documents or of any such
other documents, provided that (i) no Lender shall be liable for any of the
foregoing to the extent any of the foregoing is found in a final non-appealable
judgment by a court of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of the Administrative Agent and (ii) any
indemnification required pursuant to Section 3.5(vii) shall, notwithstanding the
provisions of this Section 10.8, be paid by the relevant Lender in accordance
with the provisions thereof. The obligations of the Lenders under this Section
10.8 shall survive payment of the Obligations and termination of this Agreement.
10.9 Notice of Default.
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Unmatured Default hereunder unless
the Administrative Agent has received written notice from a Lender or the
Company referring to this Agreement describing such Default or Unmatured Default
and stating that such notice is a "notice of default". In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall give
prompt notice thereof to the Lenders.
10.10 Rights as a Lender.
In the event the Administrative Agent is a Lender, the Administrative
Agent shall have the same rights and powers hereunder and under any other Loan
Document with respect to its Commitment and its Loans as any Lender and may
exercise the same as though it were not the Administrative Agent, and the term
"Lender" or "Lenders" shall, at any time when the Administrative Agent is a
Lender, unless the context otherwise indicates, include the Administrative Agent
in its individual capacity. The Administrative Agent and its Affiliates may
accept deposits from, lend money to, and generally engage in any kind of trust,
debt, equity or other transaction, in addition to those contemplated by this
Agreement or any other Loan Document, with the Company or any of its
Subsidiaries in which the Company or such Subsidiary is not restricted hereby
from engaging with any other Person. The Administrative Agent, in its individual
capacity, is not obligated to remain a Lender.
10.11 Lender Credit Decision.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent, the Lead Arranger or any other Lender
and based on the financial statements prepared by the Company and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and the other Loan Documents.
Each Lender also acknowledges that it will, independently and without reliance
upon the Administrative Agent, the Lead Arranger or any other Lender and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement and the other Loan Documents.
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10.12 Successor Administrative Agent.
The Administrative Agent may resign at any time by giving written
notice thereof to the Lenders and the Company, such resignation to be effective
upon the appointment of a successor Administrative Agent or, if no successor
Administrative Agent has been appointed, forty-five days after the retiring
Administrative Agent gives notice of its intention to resign. The Administrative
Agent may be removed at any time with or without cause by written notice
received by the Administrative Agent from the Required Lenders, such removal to
be effective on the date specified by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint, on
behalf of the Company and the Lenders, a successor Administrative Agent, which
successor Administrative Agent shall (unless a Default shall have occurred and
be continuing) be approved by the Company (which approval shall not be
unreasonably withheld or delayed). If no successor Administrative Agent shall
have been so appointed by the Required Lenders within thirty days after the
resigning Administrative Agent's giving notice of its intention to resign, then
the resigning Administrative Agent may appoint, on behalf of the Company and the
Lenders, a successor Administrative Agent. Notwithstanding the previous
sentence, without the consent of any Lender but upon thirty days prior written
notice to the Lenders and the Company, the Administrative Agent may appoint any
of its Affiliates which is a commercial bank as a successor Administrative Agent
hereunder, which successor Administrative Agent shall (unless a Default shall
have occurred and be continuing) be approved by the Company (which approval
shall not be unreasonably withheld or delayed). If the Administrative Agent has
resigned or been removed and no successor Administrative Agent has been
appointed, the Lenders may perform all the duties of the Administrative Agent
hereunder and the Company shall make all payments in respect of the Obligations
to the applicable Lender and for all other purposes shall deal directly with the
Lenders. No successor Administrative Agent shall be deemed to be appointed
hereunder until such successor Administrative Agent has accepted the
appointment. Any such successor Administrative Agent shall be a commercial bank
having capital and retained earnings of at least $5,000,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the resigning or removed Administrative Agent. Upon the effectiveness of the
resignation or removal of the Administrative Agent, the resigning or removed
Administrative Agent shall be discharged from its duties and obligations
hereunder and under the Loan Documents. After the effectiveness of the
resignation or removal of an Administrative Agent, the provisions of this
Article X shall continue in effect for the benefit of such Administrative Agent
in respect of any actions taken or omitted to be taken by it while it was acting
as the Administrative Agent hereunder and under the other Loan Documents. In the
event that there is a successor to the Administrative Agent by merger, or the
Administrative Agent assigns its duties and obligations to an Affiliate pursuant
to this Section 10.12, then the term "Corporate Base Rate" as used in this
Agreement shall mean the prime rate, base rate or other analogous rate of the
new Administrative Agent.
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<PAGE> 50
10.13 Administrative Agent's Fee.
The Company agrees to pay to the Administrative Agent, for its own
account, the fees agreed to by the Company and the Administrative Agent pursuant
to that certain letter agreement dated February 15, 1999 or as otherwise agreed
from time to time.
10.14 Delegation to Affiliates.
The Company and the Lenders agree that the Administrative Agent may
delegate any of its duties under this Agreement to any of its Affiliates. Any
such Affiliate (and such Affiliate's directors, officers, agents and employees)
which performs duties in connection with this Agreement shall be entitled to the
same benefits of the indemnification, waiver and other protective provisions to
which the Administrative Agent is entitled under Articles IX and X.
10.15 Administrative Agent, Syndication Agent, Co-Documentation Agents,
Lead Arranger, etc.
Neither the Syndication Agent, the Co-Documentation Agents nor the Lead
Arranger shall have any right, power, obligation, liability, responsibility or
duty under this Agreement other than those applicable to all Lenders as such.
Without limiting the foregoing, none of such Lenders or the Administrative Agent
shall have or be deemed to have a fiduciary relationship with any Lender. Each
Lender hereby makes the same acknowledgments with respect to such Lenders as it
makes with respect to the Administrative Agent in Section 10.11.
ARTICLE XI.
SETOFF; RATABLE PAYMENTS
11.1 Setoff.
In addition to, and without limitation of, any rights of the Lenders
under applicable law, if any Borrower becomes insolvent, however evidenced, or
any Default occurs and is continuing, any and all deposits (including all
account balances, whether provisional or final and whether or not collected or
available) and any other Indebtedness at any time held or owing by any Lender or
any Affiliate of any Lender to or for the credit or account of any Borrower may
be offset and applied toward the payment of the Obligations owing to such
Lender, whether or not the Obligations, or any part hereof, shall then be due.
11.2 Ratable Payments.
If any Lender, whether by setoff or otherwise, has payment made to it
upon its Loans (other than payments received pursuant to Section 3.1, 3.2, 3.4
or 3.5) in a greater proportion than that received by any other Lender, such
Lender agrees, promptly upon demand, to purchase a portion of the Loans held by
the other Lenders so that after such purchase each Lender will hold its ratable
proportion of Loans. If any Lender, whether in connection with setoff or amounts
which might be subject to setoff or otherwise, receives collateral or other
protection for its Obligations or such amounts which may be subject to setoff,
such Lender agrees, promptly upon
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<PAGE> 51
demand, to take such action necessary such that all Lenders share in the
benefits of such collateral ratably in proportion to their Loans. In case any
such payment is disturbed by legal process, or otherwise, appropriate further
adjustments shall be made.
If an amount to be setoff is to be applied to Indebtedness of the
Company to a Lender other than Indebtedness comprised of Loans made by such
Lender, such amount shall be applied ratably to such other Indebtedness and to
the Indebtedness comprised of such Loans.
ARTICLE XII.
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1 Successors and Assigns.
The terms and provisions of the Loan Documents shall be binding upon
and inure to the benefit of the Borrowers and the Lenders and their respective
successors and assigns, except that (i) the Borrowers shall not have the right
to assign their rights or obligations under the Loan Documents and (ii) any
assignment by any Lender must be made in compliance with Section 12.3.
Notwithstanding clause (ii) of this Section, any Lender may at any time, without
the consent of the Borrowers or the Administrative Agent, assign all or any
portion of its rights under this Agreement and any Note to a Federal Reserve
Bank; provided, however, that no such assignment to a Federal Reserve Bank shall
release the transferor Lender from its obligations hereunder. The Administrative
Agent may treat the Person which made any Loan or which holds any Note as the
owner thereof for all purposes hereof unless and until such Person complies with
Section 12.3 in the case of an assignment thereof or, in the case of any other
transfer, a written notice of the transfer is filed with the Administrative
Agent. Any assignee or transferee of the rights to any Loan or any Note agrees
by acceptance of such transfer or assignment to be bound by all the terms and
provisions of the Loan Documents. Any request, authority or consent of any
Person, who at the time of making such request or giving such authority or
consent is the owner of the rights to any Loan (whether or not a Note has been
issued in evidence thereof), shall be conclusive and binding on any subsequent
holder, transferee or assignee of the rights to such Loan.
12.2 Participations.
12.2.1. Permitted Participants; Effect.
Any Lender may, in its sole discretion, in the ordinary course of its
business and in accordance with applicable law, at any time sell to one or more
banks or other entities ("Participants") participating interests in any Loan
owing to such Lender, any Note held by such Lender, any Commitment of such
Lender or any other interest of such Lender under the Loan Documents. In the
event of any such sale by a Lender of participating interests to a Participant,
such Lender's obligations under the Loan Documents shall remain unchanged, such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, such Lender shall remain the owner of its Loans
and the holder of any Note issued to it in
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<PAGE> 52
evidence thereof for all purposes under the Loan Documents, all amounts payable
by the Borrowers under this Agreement shall be determined as if such Lender had
not sold such participating interests, and the Borrowers and the Administrative
Agent shall continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under the Loan Documents.
12.2.2. Voting Rights.
Each Lender shall retain the sole right to approve, without the consent
of any Participant, any amendment, modification or waiver of any provision of
the Loan Documents other than any amendment, modification or waiver with respect
to any Loan or Commitment in which such Participant has an interest which
forgives principal, interest or fees or reduces the interest rate or fees
payable with respect to any such Loan or Commitment, extends the Facility
Termination Date, postpones any date fixed for any regularly-scheduled payment
of principal of, or interest or fees on, any such Loan or Commitment, releases
the Company as guarantor of any such Loan or releases all or substantially all
of the collateral, if any, securing any such Loan.
12.2.3. Benefit of Setoff.
The Company agrees that each Participant shall be deemed to have the
right of setoff provided in Section 11.1 in respect of its participating
interest in amounts owing under the Loan Documents to the same extent as if the
amount of its participating interest were owing directly to it as a Lender under
the Loan Documents, provided that each Lender shall retain the right of setoff
provided in Section 11.1 with respect to the amount of participating interests
sold to each Participant. The Lenders agree to share with each Participant, and
each Participant, by exercising the right of setoff provided in Section 11.1,
agrees to share with each Lender, any amount received pursuant to the exercise
of its right of setoff, such amounts to be shared in accordance with Section
11.2 as if each Participant were a Lender.
12.3 Assignments.
12.3.1. Permitted Assignments.
Any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time assign to one or more financial
institutions, mutual funds, insurance companies or other entities engaged in the
business of extending credit for borrowed money ("Purchasers") all or any part
of its rights and obligations under the Loan Documents. Such assignment shall be
substantially in the form of Exhibit C or in such other form as may be agreed to
by the parties thereto. The consent of the Company and the Administrative Agent
shall be required prior to an assignment becoming effective with respect to a
Purchaser which is not a Lender or an Affiliate thereof; provided, however, that
if a Default has occurred and is continuing, the consent of the Company shall
not be required. Such consent shall not be unreasonably withheld or delayed. The
assignor shall give prompt written notice to the Company of any assignment
becoming effective without the consent of the Company. Each such assignment with
respect to a Purchaser which is not a Lender or an Affiliate thereof shall
(unless each of the Company and the Administrative Agent otherwise consents) be
in an amount not less than the lesser of (i)
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<PAGE> 53
$5,000,000 and in multiples of $1,000,000 or (ii) the remaining amount of the
assigning Lender's Commitment (calculated as at the date of such assignment) or
outstanding Loans (if the applicable Commitment has been terminated).
12.3.2. Effect; Effective Date.
Upon (i) delivery to the Administrative Agent of an assignment,
together with any consents required by Section 12.3.1, and (ii) payment of a
$3,500 fee to the Administrative Agent for processing such assignment (unless
such fee is waived by the Administrative Agent), such assignment shall become
effective on the effective date specified in such assignment. The assignment
shall contain a representation by the Purchaser to the effect that none of the
consideration used to make the purchase of the Commitment and Loans under the
applicable assignment agreement constitutes "plan assets" as defined under ERISA
and that the rights and interests of the Purchaser in and under the Loan
Documents will not be "plan assets" under ERISA. On and after the effective date
of such assignment, such Purchaser shall for all purposes be a Lender party to
this Agreement and any other Loan Document executed by or on behalf of the
Lenders and shall have all the rights and obligations of a Lender under the Loan
Documents, to the same extent as if it were an original party hereto, and no
further consent or action by the Company, the Lenders or the Administrative
Agent shall be required to release the transferor Lender with respect to the
percentage of the Aggregate Commitment and Loans assigned to such Purchaser.
Upon the consummation of any assignment to a Purchaser pursuant to this Section
12.3.2, the transferor Lender, the Administrative Agent and the Borrowers shall,
if the transferor Lender or the Purchaser desires that its Loans be evidenced by
Notes, make appropriate arrangements so that new Notes or, as appropriate,
replacement Notes are issued to such transferor Lender and new Notes or, as
appropriate, replacement Notes, are issued to such Purchaser, in each case in
principal amounts reflecting their respective Commitments, as adjusted pursuant
to such assignment.
12.4 Dissemination of Information.
The Company authorizes each Lender to disclose to any Participant or
Purchaser or any other Person acquiring an interest in the Loan Documents by
operation of law (each a "Transferee") and any prospective Transferee any and
all information in such Lender's possession concerning the creditworthiness of
the Company and its Subsidiaries, provided that each Transferee and prospective
Transferee agrees in writing to be bound by Section 9.11 of this Agreement.
12.5 Tax Treatment.
If any interest in any Loan Document is transferred to any Transferee
which is organized under the laws of any jurisdiction other than the United
States or any State thereof, the transferor Lender shall cause such Transferee,
concurrently with the effectiveness of such transfer, to comply with the
provisions of Section 3.5(iv).
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<PAGE> 54
12.6 Transfer to an SPC.
Notwithstanding anything to the contrary contained herein, any Lender
(a "Granting Lender") may grant to a special purpose funding vehicle (an "SPC"),
identified as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Company, the option to provide to the Borrowers all
or any part of any Loan (other than an Alternate Currency Loan) that such
Granting Lender would otherwise be obligated to make to the Borrower pursuant to
this Agreement; provided that (i) nothing herein shall constitute a commitment
by any SPC to make any Loan and (ii) if an SPC elects not to exercise such
option or otherwise fails to provide all or any part of such Loan, the Granting
Lender shall be obligated to make such Loan pursuant to the terms hereof. The
making of a Loan by an SPC hereunder shall utilize the Commitment of the
Granting Lender to the same extent, and as if, such Loan were made by such
Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for
any indemnity or similar payment obligation under this Agreement (all liability
for which shall remain with the Granting Lender). In furtherance of the
foregoing, each party hereto hereby agrees (which agreement shall survive the
termination of this Agreement) that, prior to the date that is one year and one
day after the payment in full of all outstanding commercial paper or other
senior indebtedness of any SPC, it will not institute against, or join any other
person in instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under the laws of the United
States or any State thereof. In addition, notwithstanding anything to the
contrary in this Section 12.6, any SPC may (i) with notice to, but without the
prior written consent of, the Company and the Administrative Agent and without
paying any processing fee therefor, assign all or a portion of its interests in
any Loans to the Granting Lender or to any financial institutions (consented to
by the Company and the Administrative Agent) providing liquidity and/or credit
support to or for the account of such SPC to support the funding or maintenance
of Loans and (ii) disclose on a confidential basis any non-public information
relating to its Loans to any rating agency, commercial paper dealer or provider
of any surety, guarantee or credit or liquidity enhancement to such SPC. As this
Section applies to any particular SPC, this section may not be amended without
the written consent of such SPC.
ARTICLE XIII.
NOTICES
13.1 Notices.
Except as otherwise permitted by Section 2.15 with respect to borrowing
notices, all notices, requests and other communications to any party hereunder
shall be in writing (including electronic transmission, facsimile transmission
or similar writing) and shall be given to such party: (x) in the case of the
Borrowers or the Administrative Agent, at its address or facsimile number set
forth on the signature pages hereof, (y) in the case of any Lender, at its
address or facsimile number set forth below its signature hereto or (z) in the
case of any party, at such other address or facsimile number as such party may
hereafter specify for the purpose by notice to the Administrative Agent and the
Borrowers in accordance with the provisions of this Section 13.1.
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<PAGE> 55
Each such notice, request or other communication shall be effective (i) if given
by facsimile transmission, when transmitted to the facsimile number specified in
this Section and confirmation of receipt is received, (ii) if given by mail, 72
hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid, or (iii) if given by any other means,
when delivered (or, in the case of electronic transmission, received) at the
address specified in this Section; provided that notices to the Administrative
Agent under Article II shall not be effective until received.
13.2 Change of Address.
The Borrowers, the Administrative Agent and any Lender may each change
the address for service of notice upon it by 5 days' prior written notice to the
other parties hereto.
ARTICLE XIV.
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Borrowers, the
Administrative Agent and the Lenders and each party has notified the
Administrative Agent by facsimile transmission or telephone that it has taken
such action.
ARTICLE XV.
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
15.1 CHOICE OF LAW.
THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A CONTRARY EXPRESS
CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS
(INCLUDING, WITHOUT LIMITATION, 735 ILCS SECTION 105/5-1 ET SEQ, BUT OTHERWISE
WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
15.2 CONSENT TO JURISDICTION.
EACH BORROWER HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE COURT SITTING IN
CHICAGO, ILLINOIS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY
LOAN DOCUMENTS AND EACH BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN
RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH
COURT AND IRREVOCABLY WAIVES ANY
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<PAGE> 56
OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION
OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT
FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE AGENT OR ANY LENDER TO BRING
PROCEEDINGS AGAINST ANY BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY
JUDICIAL PROCEEDING BY ANY BORROWER AGAINST THE AGENT OR ANY LENDER OR ANY
AFFILIATE OF THE AGENT OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN
DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN CHICAGO, ILLINOIS.
15.3 WAIVER OF JURY TRIAL.
THE BORROWERS, THE AGENT AND EACH LENDER HEREBY WAIVE TRIAL BY JURY IN
ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER
SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO,
OR CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
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<PAGE> 57
IN WITNESS WHEREOF, the Borrowers, the Lenders and the Administrative
Agent have executed this Agreement as of the date first above written.
CARDINAL HEALTH, INC.
By:___________________________
Title:________________________
7000 Cardinal Place
Dublin, Ohio 43017
Attention: Suzanne L. Stoddard
Telephone: (614) 717-7542
FAX: (614) 717-8542
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<PAGE> 58
Commitment:
$21,875,000 THE FIRST NATIONAL BANK OF CHICAGO,
Individually and as Administrative Agent
By:_____________________________________
Title:__________________________________
611 Woodward Avenue
Detroit, Michigan 48226
Attention: Daniel J. Pienta
Telephone: (313) 225-1525
FAX: (313) 225-1671
57
<PAGE> 59
Commitment:
$20,625,000 BANK OF AMERICA NT & SA
By:________________________
Title:_____________________
700 Louisiana Street
Houston, TX 77002
Attention: Scott Singhoff
Telephone: (713) 247-6961
FAX: (713) 247-6719
58
<PAGE> 60
Commitment:
$20,625,000 CITICORP USA, INC.
By:________________________
Title:_____________________
399 Park Avenue
New York, NY 10043
Attention:_________________
Telephone:_________________
FAX:_______________________
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<PAGE> 61
Commitment:
$20,625,000 CREDIT SUISSE FIRST BOSTON
By:________________________
Title:_____________________
By:________________________
Title:_____________________
11 Madison Avenue
New York, NY 10010
Attention:_________________
Telephone:_________________
FAX:_______________________
60
<PAGE> 62
Commitment:
$15,625,000 FIRST UNION NATIONAL BANK
By:_________________________________
Title:______________________________
301 South College Street, 10th Floor
Charlotte, NC 28288-0745
Attention: John Reid
Telephone: (704) 383-1385
FAX: (704) 383-7236
61
<PAGE> 63
Commitment:
$15,625,000 PNC BANK, NATIONAL ASSOCIATION
By:___________________________
Title:________________________
201 East Fifth Street
Cincinnati, OH 45202
Attention: C. Joseph Richardson
Telephone: (513) 651-8984
FAX: (513) 651-8951
62
<PAGE> 64
Commitment:
$15,625,000 WACHOVIA BANK, NA
By:___________________________
Title:________________________
191 Peachtree Street, NE
Atlanta, GA 30303
Attention: Bradford L. Watkins
Telephone: (404) 332-1093
FAX: (404) 332-6898
63
<PAGE> 65
Commitment:
$13,125,000 BARCLAYS BANK PLC
By:________________________
Title:_____________________
222 Broadway, 8th Floor
New York, NY 10038
Attention: Matthew Tuck
Telephone: (212) 412-1131
FAX: (212) 412-1075
64
<PAGE> 66
Commitment:
$13,125,000 FLEET BANK, NATIONAL ASSOCIATION
By:______________________________
Title:___________________________
300 Broad Hollow Road
Melville, NY 11747
Attention: Magda Hayden
Telephone: (516) 547-7726
FAX: (516) 447-7815
65
<PAGE> 67
Commitment:
$13,125,000 DEUTSCHE BANK AG - NEW YORK BRANCH
A/O CAYMAN ISLANDS BRANCH
By:________________________________
Title:_____________________________
By:________________________________
Title:_____________________________
31 W. 52nd Street
New York, NY 10019
Attention: Sue Pearson
Telephone: (212) 469-7140
FAX: (212) 469-8701
66
<PAGE> 68
Commitment:
$8,000,000 BANCA COMMERCIALE ITALIANA -
CHICAGO BRANCH
By:__________________________
Title:_______________________
150 N. Michigan Avenue
Chicago, Illinois 60601
Attention: Diana R. Lamb
Telephone: (312) 346-1112
FAX: (312) 346-5758
67
<PAGE> 69
Commitment:
$8,000,000 BANK OF MONTREAL
By:________________________
Title:_____________________
115 S. LaSalle Street
Chicago, Illinois 60603
Attention: Patrice Wetzel
Telephone: (312) 750-3472
FAX: (312) 750-6057
68
<PAGE> 70
Commitment:
$8,000,000 THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH
By:_________________________________
Title:______________________________
227 W. Monroe Street, Suite 2300
Chicago, Illinois 60606
Attention: William Murray
Telephone: (312) 696-4500
FAX: (312) 696-4535
69
<PAGE> 71
Commitment:
$8,000,000 MORGAN GUARANTY TRUST COMPANY OF
NEW YORK
By:______________________________
Title:___________________________
60 Wall Street, 32nd Floor
New York, NY 10271
Attention:_______________________
Telephone:_______________________
FAX:_____________________________
70
<PAGE> 72
Commitment:
$8,000,000 NATIONAL CITY BANK
By:________________________
Title:_____________________
155 East Broad Street
Columbus, OH 43251
Attention: Patricia Jackson
Telephone: (614) 463-8065
FAX: (614) 463-6770
71
<PAGE> 73
Commitment:
$8,000,000 THE NORTHERN TRUST COMPANY
By:___________________________
Title:________________________
50 S. LaSalle Street
Chicago, Illinois 60675
Attention: Michelle M. Teteak
Telephone: (312) 444-3506
FAX: (312) 444-5055
72
<PAGE> 74
Commitment:
$8,000,000 SUNTRUST BANK, ATLANTA
By:__________________________________
Title:_______________________________
303 Peachtree Street, N.E., 3rd Floor
Mail Code 1928
Atlanta, Georgia 30308
Attention: Linda L. Dash
Telephone: (404) 658-4923
FAX: (404) 658-4905
73
<PAGE> 75
Commitment:
$8,000,000 STANDARD CHARTERED BANK
By:________________________
Title:_____________________
Seven World Trade Center
New York, NY 10048
Attention: David Cutting
Telephone: (212) 667-0213
FAX: (212) 667-0225
74
<PAGE> 76
Commitment:
$8,000,000 THE BANK OF NEW YORK
By:________________________
Title:_____________________
One Wall Street
New York, NY 10286
Attention: Edward Dougherty
Telephone: (212) 635-1330
FAX: (212) 635-6434
75
<PAGE> 77
Commitment:
$8,000,000 WELLS FARGO BANK, NATIONAL
ASSOCIATION
By:____________________________
Title:_________________________
222 W. Adams Street, Suite 2180
Chicago, Illinois 60606
Attention: Karen DeSantes
Telephone: (312) 845-8602
FAX: (312) 553-2353
76
<PAGE> 78
PRICING SCHEDULE
The Applicable Margin shall be as determined by the matrix below:
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------
Level I Level II Level III Level IV Level V Level VI
Status Status Status Status Status Status
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Reference Rating A+ or A1 A or A2 A- or A3 BBB+ or BBB or (Less Than or Equal to)
(Greater Than or Equal to) Baa1 Baa2 BBB- or Baa3
- -----------------------------------------------------------------------------------------------------------------------------
Facility Fee 5.0 6.0 7.0 8.0 10.0 12.5
- -----------------------------------------------------------------------------------------------------------------------------
Eurodollar Rate
Applicable Margin 15.0 19.0 23.0 27.0 30.0 37.5
- -----------------------------------------------------------------------------------------------------------------------------
Utilization fee
(Greater Than) 33% 2.5 2.5 5.0 5.0 10.0 15.0
- -----------------------------------------------------------------------------------------------------------------------------
Utilization fee
(Greater Than) 67% 5.0 5.0 10.0 15.0 20.0 20.0
- -----------------------------------------------------------------------------------------------------------------------------
</TABLE>
For the purposes of this Schedule, the following terms have the
following meanings, subject to the final paragraph of this Schedule:
"Level I Status" exists at any date if, on such date, the Company's
Moody's Rating is A1 or better or the Company's S&P Rating is A+ or better.
"Level II Status" exists at any date if, on such date, (i) the Company
has not qualified for Level I Status and (ii) the Company's Moody's Rating is A2
or better or the Company's S&P Rating is A or better.
"Level III Status" exists at any date if, on such date, (i) the Company
has not qualified for Level I Status or Level II Status and (ii) the Company's
Moody's Rating is A3 or better or the Company's S&P Rating is A- or better.
"Level IV Status" exists at any date if, on such date, (i) the Company
has not qualified for Level I Status, Level II Status or Level III Status and
(ii) the Company's Moody's Rating is Baa1 or better or the Company's S&P rating
is BBB+ or better.
"Level V Status" exists at any date if, on such date, (i) the Company
has not qualified for Level I Status, Level II Status, Level III Status or Level
IV Status and (ii) the Company's Moody's rating is Baa2 or better or the
Company's S&P rating is BBB or better.
"Level VI Status" exists at any date if, on such date, the Company has
not qualified for Level I Status, Level II Status, Level III Status, Level IV
Status or Level V Status.
77
<PAGE> 79
"Moody's Rating" means, at any time, the rating issued by Moody's
Investors Service, Inc. and then in effect with respect to the Company's senior
unsecured long-term debt securities without third-party credit enhancement.
"S&P Rating" means, at any time, the rating issued by Standard and
Poor's Rating Services, a division of The McGraw Hill Companies, Inc., and then
in effect with respect to the Company's senior unsecured long-term debt
securities without third-party credit enhancement.
"Status" means either Level I Status, Level II Status, Level III
Status, Level IV Status, Level V Status or Level VI Status.
The Applicable Margin shall be determined in accordance with the
foregoing table based on the Company's Status as determined from its
then-current Moody's and S&P Ratings. The credit rating in effect on any date
for the purposes of this Schedule is that in effect at the close of business on
such date. If at any time the Company has no Moody's Rating or no S&P Rating,
Level VI Status shall exist.
78
<PAGE> 80
EXHIBIT A
FORM OF OPINION
462-2685
May 7, 1999
The Administrative Agent and the Lenders who are the
parties to the Credit Agreement described below.
SUBJECT: CARDINAL HEALTH, INC. - FIVE-YEAR CREDIT AGREEMENT
Gentlemen/Ladies:
We are counsel for Cardinal Health, Inc., an Ohio corporation (the
"COMPANY"), and have represented the Company in connection with its execution
and delivery of a Five-Year Credit Agreement dated as of March ___, 1999 (the
"AGREEMENT"), among the Company, the Subsidiary Borrowers, the Lenders named
therein, and The First National Bank of Chicago, as Administrative Agent,
providing for Advances in an aggregate principal amount not exceeding
$750,000,000 at any one time outstanding. All capitalized terms used in this
opinion and not otherwise defined herein shall have the meanings attributed to
them in the Agreement. This opinion is being delivered to you pursuant to
ss.4.1(a)(v) of the Agreement.
In connection with the issuance of this opinion letter, we have
examined the following documents:
(a) An executed copy of the Agreement dated as of March ___,
1999, among the Company, the Subsidiary Borrowers, the Lenders named
therein, and The First National Bank of Chicago, as Administrative
Agent;
(b) The Company's Articles of Incorporation as certified by
the Ohio Secretary of State;
(c) The Company's Code of Regulations as certified by the
Company's assistant secretary;
(d) A certificate of good standing of the Company issued by
the Ohio Secretary of State;
(e) Resolutions of the executive committee of the Company's
board of directors as certified by the Company's assistant secretary;
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<PAGE> 81
(f) [INSERT DESCRIPTION OF NOTE(S) TO BE EXECUTED AT CLOSING];
(g) An executed copy of the Guaranty of the Company dated as
of March ___, 1999;
(h) A certificate of certain officers of the Company as to
certain factual matters; and
(i) Such other documents and matters of law as we deemed
necessary or advisable in order to render the opinions set forth in
this letter.
The documents referenced in items (a), (f), and (g) are sometimes
referred to hereinafter as the "LOAN DOCUMENTS".
In our review and in rendering the opinions expressed herein, we have
assumed, without independent verification, the genuineness of all signatures,
the legal capacity of all natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified, facsimile, or photostatic copies, the
completeness and correctness of any representations and certifications made to
us by officers of the Company, the completeness and correctness of any
representations and certificates of public officials and public filing records,
and that the Loan Documents have been duly and validly authorized, executed, and
delivered by all parties thereto other than the Company, and that the Loan
Documents are binding and legally enforceable against all of the parties
thereto, including without limitation the Subsidiary Borrowers, other than the
Company.
Based upon the foregoing, and subject to the qualifications set forth
below, we are of the opinion that:
1. The Company is a corporation validly existing and in good standing
under the laws of the State of Ohio.
2. The execution and delivery by the Company of the Loan Documents to
which it is a party and the performance by the Company of its obligations
thereunder have been duly authorized by proper corporate proceedings on the part
of the Company and will not:
(a) Require any consent of the Company's shareholders;
(b) (i) Violate (A) any order, judgment, or decree of any
court or governmental agency binding on the Company and known to us,
(B) any statute of the State of Ohio or the United States, or any
written regulation thereunder, (C) the Company's articles of
incorporation or code of regulations, or (D) the provisions of any
indenture, instrument, or agreement to which the Company is a party or
is subject, or by which it, or its Property, is bound, and which is
filed or incorporated by reference as an exhibit to the Company's
periodic reports under the Securities Exchange Act of 1934, pursuant to
item 601(b)(10) of Regulation S-K of the Securities and Exchange
Commission, or (ii) conflict with or constitute a default under any
such indenture, instrument, or agreement; or
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<PAGE> 82
(c) Result in, or require, the creation or imposition of any
Lien in or on the Property of the Company pursuant to the terms of any
indenture, instrument or agreement binding upon the Company, and which
is filed or incorporated by reference as an exhibit to the Company's
periodic reports under the Securities Exchange Act of 1934, pursuant to
item 601(b)(10) of Regulation S-K of the Securities and Exchange
Commission.
3. The Loan Documents to which the Company is a party have been duly
executed and delivered by the Company and constitute legal, valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms.
4. To the best of our knowledge, there is no litigation, arbitration,
governmental investigation, proceeding, or inquiry pending or threatened against
the Company which, if adversely determined, could reasonably be expected to have
a Material Adverse Effect.
5. No authorization or approval of, or filing with, any governmental
agency of the United States or of the State of Ohio which has not been obtained
or made is necessary for the execution and delivery of, and performance of the
Company's obligations under the Agreement.
In addition to any other qualification set forth herein, our opinions
are qualified as follows:
(A) We wish to advise you that we do not express any opinion
with respect to: (1) the power or authority of the Lenders to make the
loans contemplated by the Agreement; (2) compliance by the Lenders with
any federal or state banking law, rule, regulation, or restriction; or
(3) compliance by the Lenders with any federal, state, or foreign law,
rule, regulation, or restriction which is or was required to be
complied with by the Lenders (as opposed to compliance therewith by the
Company) in order to enforce any rights or remedies of the Lenders
under the Loan Documents. Accordingly, all of the foregoing opinions
expressed by us are qualified to the extent set forth in the preceding
sentence.
(B) To the extent that the foregoing opinions are stated to be
to the best of our knowledge, or relate to matters which are known to
us, we have, with your consent, relied on one or more certificates of
officers of the Company as to factual matters, and the absence of any
contrary knowledge of those attorneys of our firm familiar with the
affairs of the Company, and we have neither independently investigated
nor attempted to verify any of such matters.
(C) We have made no examination of and express no opinion as
to: (1) the right, title, or interest of any person to any property;
(2) the accuracy or sufficiency of the description in the Loan
Documents of any real or personal property; or (3) the existence of or
freedom of any property from any liens, security interests, or other
encumbrances.
(D) Our opinions are subject to and affected by: (1) any
bankruptcy, insolvency, avoidance, fraudulent conveyance,
reorganization, moratorium, or similar
81
<PAGE> 83
laws affecting the rights and remedies of creditors generally; and (2)
general principles of equity (whether considered in a proceeding in
equity or at law).
(E) We express no opinion as to whether a court would limit
the exercise or enforcement of rights or remedies by the Lenders under
the Loan Documents: (1) in the event of any default by the Company, if
it is determined that such default is not material or if such exercise
or enforcement is not reasonably necessary for the protection of the
Lenders; or (2) if the exercise or enforcement thereof under the
circumstances would violate an implied covenant of good faith and fair
dealing.
(F) Certain waivers and exculpatory clauses contained in the
Loan Documents may be limited or unenforceable.
(G) No opinion is expressed with respect to the validity or
enforceability of those provisions of the Loan Documents which purport
by their terms to relieve any party of, or to indemnify such party
against, any liability for such party's own negligence, gross
negligence, or willful misconduct, or to obligate the Company to bear
the legal and other expenses of any other party.
(H) All parties to the Loan Documents other than the Company
have received adequate consideration for their execution and delivery
of, and performance of their respective obligations under, the Loan
Documents to which each of them is a party.
(I) All conditions and other transactions contemplated by the
Agreement to have occurred at or prior to the funding of [the initial
Loans] have occurred or have been waived by the appropriate parties and
Loans in the amount of the Aggregate Commitment will be fully available
pursuant to the terms of the Agreement.
(F) [Insert reasoned choice of law opinion]
(G) We are authorized to practice law in Ohio, and no
opinion is expressed herein other than as to the laws of the State of
Ohio and federal law. With your permission, for purposes of the opinion
set forth in paragraph ___, we have assumed that the substantive laws
of the State of Ohio, except for conflicts of laws principles, would
govern the Loan Documents.
The opinions set forth herein are given as of the date hereof,
and we disclaim any obligation to notify you or any other person or entity if
any change in fact or law, or both (whether statutory, regulatory, regulatory
interpretation or judicial interpretation), should change our opinion with
respect to any matter set forth herein. This opinion may be relied upon and is
solely for the benefit of the Addressees at the beginning of this opinion, but
not any of their successors or assigns, and it is not to be made available to or
relied upon by any party or communicated or disclosed to any other person
without our prior written consent.
Very truly yours,
82
<PAGE> 84
BAKER & HOSTETLER LLP
83
<PAGE> 85
EXHIBIT B
COMPLIANCE CERTIFICATE
Date:___________________________
_______________
The First National Bank of Chicago
_______________
_______________
Dear __________:
This notice serves to confirm that, to the best of my
knowledge, Cardinal Health, Inc. (the "Company") has observed or performed in
all material respects all of the covenants, conditions and agreements contained
in the Five-Year Credit Agreement and the 364-Day Credit Agreement, each dated
March __, 1999 and each among the Company, certain subsidiaries of the Company
named therein, The First National Bank of Chicago, as Administrative Agent, and
the lenders named therein.
Detailed calculations are attached.
In addition, please find enclosed a copy of our most recently
filed Form 10-Q.
Sincerely,
______________________________________________
[Chief Financial Officer/Controller/Treasurer]
84
<PAGE> 86
Section 6.17, Minimum Net Worth.
[INSERT CALCULATION]
85
<PAGE> 87
EXHIBIT C
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between (the
"Assignor") and (the "Assignee") is dated as of __________, 19__. The parties
hereto agree as follows:
1) PRELIMINARY STATEMENT. The Assignor is a party to a 364-Day Credit
Agreement dated as of March ___, 1999 (the "Agreement") among the Company,
the Subsidiary Borrowers, the Lenders named therein, and The First National
Bank of Chicago, as Administrative Agent (which, as it may be amended,
modified, renewed or extended from time to time is herein called the
"Credit Agreement") described in Item 1 of Schedule 1 attached hereto
("Schedule 1"). Capitalized terms used herein and not otherwise defined
herein shall have the meanings attributed to them in the Credit Agreement.
2) ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns to
the Assignee, and the Assignee hereby purchases and assumes from the
Assignor, an interest in and to the Assignor's rights and obligations under
the Credit Agreement and the other Loan Documents, such that after giving
effect to such assignment the Assignee shall have purchased pursuant to
this Assignment Agreement the percentage interest specified in Item 3 of
Schedule 1 of all outstanding rights and obligations under the Credit
Agreement and the other Loan Documents relating to the facilities listed in
Item 3 of Schedule 1. The aggregate Commitment (or Loans, if the applicable
Commitment has been terminated) purchased by the Assignee hereunder is set
forth in Item 4 of Schedule 1.
3) EFFECTIVE DATE. The effective date of this Assignment Agreement (the
"Effective Date") shall be the later of the date specified in Item 5 of
Schedule 1 or two Business Days (or such shorter period agreed to by the
Administrative Agent) after this Assignment Agreement, together with any
consents required under the Credit Agreement, are delivered to the
Administrative Agent. In no event will the Effective Date occur if the
payments required to be made by the Assignee to the Assignor on the
Effective Date are not made on the proposed Effective Date.
4) PAYMENT OBLIGATIONS. In consideration for the sale and assignment of
Loans hereunder, the Assignee shall pay the Assignor, on the Effective
Date, the amount agreed to by the Assignor and the Assignee. On and after
the Effective Date, the Assignee shall be entitled to receive from the
Administrative Agent all payments of principal, interest and fees with
respect to the interest assigned hereby. The Assignee will promptly remit
to the Assignor any interest on Loans and fees received from the
Administrative Agent which relate
86
<PAGE> 88
to the portion of the Commitment or Loans assigned to the Assignee
hereunder for periods prior to the Effective Date and not previously paid
by the Assignee to the Assignor. In the event that either party hereto
receives any payment to which the other party hereto is entitled under this
Assignment Agreement, then the party receiving such amount shall promptly
remit it to the other party hereto. 5) RECORDATION FEE. The Assignor and
Assignee each agree to pay one-half of the recordation fee required to be
paid to the Administrative Agent in connection with this Assignment
Agreement unless otherwise specified in Item 6 of Schedule 1.
6) REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants that (i) it is the legal
and beneficial owner of the interest being assigned by it hereunder, (ii)
such interest is free and clear of any adverse claim created by the
Assignor and (iii) the execution and delivery of this Assignment Agreement
by the Assignor is duly authorized. It is understood and agreed that the
assignment and assumption hereunder are made without recourse to the
Assignor and that the Assignor makes no other representation or warranty of
any kind to the Assignee. Neither the Assignor nor any of its officers,
directors, employees, agents or attorneys shall be responsible for (i) the
due execution, legality, validity, enforceability, genuineness, sufficiency
or collectability of any Loan Document, including without limitation,
documents granting the Assignor and the other Lenders a security interest
in assets of the Company or any guarantor, (ii) any representation,
warranty or statement made in or in connection with any of the Loan
Documents, (iii) the financial condition or creditworthiness of the Company
or any guarantor, (iv) the performance of or compliance with any of the
terms or provisions of any of the Loan Documents, (v) inspecting any of the
property, books or records of the Company, (vi) the validity,
enforceability, perfection, priority, condition, value or sufficiency of
any collateral securing or purporting to secure the Loans or (vii) any
mistake, error of judgment, or action taken or omitted to be taken in
connection with the Loans or the Loan Documents.
7) REPRESENTATIONS AND UNDERTAKINGS OF THE ASSIGNEE. The Assignee (i)
confirms that it has received a copy of the Credit Agreement, together with
copies of the financial statements requested by the Assignee and such other
documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment Agreement, (ii)
agrees that it will, independently and without reliance upon the
Administrative Agent, the Assignor or any other Lender and based on such
documents and information at it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under the Loan Documents, (iii) appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such
powers under the Loan Documents as are delegated to the Administrative
Agent by the terms thereof, together with such powers as are reasonably
incidental thereto, (iv) confirms that the execution and delivery of this
Assignment Agreement by the Assignee is duly authorized, (v) agrees that it
will perform in accordance with their terms all of the obligations
87
<PAGE> 89
which by the terms of the Loan Documents are required to be performed by it
as a Lender, (vi) agrees that its payment instructions and notice
instructions are as set forth in the attachment to Schedule 1, (vii)
confirms that none of the funds, monies, assets or other consideration
being used to make the purchase and assumption hereunder are "plan assets"
as defined under ERISA and that its rights, benefits and interests in and
under the Loan Documents will not be "plan assets" under ERISA, (viii)
agrees to indemnify and hold the Assignor harmless against all losses,
costs and expenses (including, without limitation, reasonable attorneys'
fees) and liabilities incurred by the Assignor in connection with or
arising in any manner from the Assignee's non-performance of the
obligations assumed under this Assignment Agreement, and (ix) if
applicable, attaches the forms prescribed by the Internal Revenue Service
of the United States certifying that the Assignee is entitled to receive
payments under the Loan Documents without deduction or withholding of any
United States federal income taxes.
8) GOVERNING LAW. This Assignment Agreement shall be governed by the
internal law, and not the law of conflicts, of the State of Illinois.
9) NOTICES. Notices shall be given under this Assignment Agreement in
the manner set forth in the Credit Agreement. For the purpose hereof, the
addresses of the parties hereto (until notice of a change is delivered)
shall be the address set forth in the attachment to Schedule 1.
10) COUNTERPARTS; DELIVERY BY FACSIMILE. This Assignment Agreement may
be executed in counterparts. Transmission by facsimile of an executed
counterpart of this Assignment Agreement shall be deemed to constitute due
and sufficient delivery of such counterpart and such facsimile shall be
deemed to be an original counterpart of this Assignment Agreement.
IN WITNESS WHEREOF, the duly authorized officers of the parties hereto
have executed this Assignment Agreement by executing Schedule 1 hereto as of the
date first above written.
88
<PAGE> 90
SCHEDULE 1
TO ASSIGNMENT AGREEMENT
1) Description and Date of Credit Agreement:
2) Date of Assignment Agreement: , 19
3) Amounts (As of Date of Item 2 above):
<TABLE>
<CAPTION>
Facility Facility Facility Facility
1* 2* 3* 4*
-------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
a. Assignee's ____% ____% ____% _____%
percentage of each
Facility purchased
under the Assignment
Agreement ***, ****
b. Amount of each $____ $____ $____ $
Facility purchased
under the Assignment
Agreement ***, ****
- ------------------------------------------------------------------------------------------------------------------------
4) Assignee's Commitment $_________________________________
(or Loans with respect
to terminated Commitments)
purchased hereunder:
- ------------------------------------------------------------------------------------------------------------------------
5) Proposed Effective Date: ______________________________
- ------------------------------------------------------------------------------------------------------------------------
6) Non-standard Recordation Fee Arrangement N/A
[Assignor/Assignee to pay 100% of fee]
[Fee waived by Administrative Agent]
</TABLE>
89
<PAGE> 91
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By:_________________________ By:________________________
Title:______________________ Title:_____________________
ACCEPTED AND CONSENTED TO BY ACCEPTED AND CONSENTED
TO BY
[NAME OF COMPANY] [NAME OF AGENT]
By:_________________________ By:________________________
Title:______________________ Title:_____________________
*Insert specific facility names per Credit Agreement
**Percentage taken to 10 decimal places
***If fee is split 50-50, pick N/A as option
****Assignments must be pro rata
90
<PAGE> 92
Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT
ADMINISTRATIVE INFORMATION SHEET
Attach Assignor's Administrative Information Sheet, which must include
notice addresses for the Assignor and the Assignee
(Sample form shown below)
ASSIGNOR INFORMATION
CONTACT:
Name:_________________________________ Telephone No.:__________________
Fax No.:______________________________ Telex No.:______________________
Answerback:______________________
PAYMENT INFORMATION:
Name & ABA # of Destination Bank:______________________________________
_________________________________
Account Name & Number for Wire Transfer:_______________________________
_______________________________
Other Instructions:____________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Address for Notices for Assignor:______________________________________
________________________________________________________________________________
________________________________________________________________________________
ASSIGNEE INFORMATION
CREDIT CONTACT:
Name:_________________________________ Telephone No.:__________________
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<PAGE> 93
Fax No.:______________________________ Telex No.:______________________
Answerback:______________________
KEY OPERATIONS CONTACTS:
Booking Installation:______________ Booking Installation:______________
Name:______________________________ Name:______________________________
Telephone No.:_____________________ Telephone No.:_____________________
Fax No.:___________________________ Fax No.:___________________________
Telex No.:_________________________ Telex No.:_________________________
Answerback:________________________ Answerback:________________________
PAYMENT INFORMATION:
Name & ABA # of Destination Bank:______________________________________
__________________________________________
Account Name & Number for Wire Transfer:_______________________________
________________________________________________________________________________
Other Instructions:____________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Address for Notices for Assignee:______________________________________
________________________________________________________________________________
________________________________________________________________________________
92
<PAGE> 94
EXHIBIT D
LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
To The First National Bank of Chicago,
as Administrative Agent (the "Administrative Agent") under the Credit
Agreement Described Below.
Re: Credit Agreement, dated March __, 1999 (as the same may be amended or
modified, the "Credit Agreement"), among Cardinal Health, Inc. (the
"Company"), the Lenders named therein and the Administrative Agent.
Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned thereto in the Credit Agreement.
The Administrative Agent is specifically authorized and directed to act
upon the following standing money transfer instructions with respect to the
proceeds of Advances or other extensions of credit from time to time until
receipt by the Administrative Agent of a specific written revocation of such
instructions by the Company, provided, however, that the Administrative Agent
may otherwise transfer funds as hereafter directed in writing by the Company in
accordance with Section 13.1 of the Credit Agreement or based on any telephonic
notice made in accordance with Section 2.14 of the Credit Agreement.
Facility Identification Number(s)______________________________________
Customer/Account Name__________________________________________________
Transfer Funds To______________________________________________________
________________________________________________________________________________
________________________________________________________________________________
For Account No.________________________________________________________
Reference/Attention To_________________________________________________
Authorized Officer (Customer Representative) Date
____________________________________________ _______________
(Please Print) Signature
Bank Officer Name Date
____________________________________________ _______________
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<PAGE> 95
(Please Print) Signature
EXHIBIT E
NOTE
[Date]
Cardinal Health, Inc., an Ohio corporation (the "Borrower"), promises
to pay to the order of ____________________________________ (the "Lender") the
aggregate unpaid principal amount of all Loans made by the Lender to the
Borrower pursuant to Article II of the Agreement (as hereinafter defined), in
immediately available funds at the place specified pursuant to Article II of the
Agreement together with interest on the unpaid principal amount hereof at the
rates and on the dates set forth in the Agreement. The Borrower shall pay the
principal of and accrued and unpaid interest on the Loans in full on the
Facility Termination Date.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Loan and the date and amount of each principal
payment hereunder.
This Note is one of the Notes issued pursuant to, and is entitled to
the benefits of, the 364-Day Credit Agreement dated as of March 31, 1999 (which,
as it may be amended or modified and in effect from time to time, is herein
called the "Agreement"), among the Borrower, the Subsidiary Borrowers and the
lenders party thereto, including the Lender, and The First National Bank of
Chicago, as Administrative Agent, to which Agreement reference is hereby made
for a statement of the terms and conditions governing this Note, including the
terms and conditions under which this Note may be prepaid or its maturity date
accelerated. This Note is guaranteed pursuant to the Guaranty, as more
specifically described in the Agreement, and reference is made thereto for a
statement of the terms and provisions thereof. Capitalized terms used herein and
not otherwise defined herein are used with the meanings attributed to them in
the Agreement.
By:_________________________________________
Print Name:_________________________________
Title:______________________________________
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<PAGE> 96
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF ______________,
DATED ______________,
<TABLE>
<CAPTION>
Date Principal Amount of Maturity of Interest Principal Amount Unpaid Balance
Loan Period Paid
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
<S> <C> <C> <C> <C>
</TABLE>
95
<PAGE> 97
SCHEDULE 1
SUBSIDIARIES AND OTHER INVESTMENTS
(SEE SECTIONS 5.8 AND 6.12)
<TABLE>
<CAPTION>
- ----------------------------------------------------------------- ----------------------------------------------------
NAME JURISDICTION OF INCORPORATION
---- -----------------------------
- ----------------------------------------------------------------- ----------------------------------------------------
<S> <C>
C. International, Inc. Ohio
- ----------------------------------------------------------------- ----------------------------------------------------
Cardal, Inc. Ohio
- ----------------------------------------------------------------- ----------------------------------------------------
Cardinal Florida, Inc. Florida
- ----------------------------------------------------------------- ----------------------------------------------------
Cardinal Health Systems, Inc. Ohio
- ----------------------------------------------------------------- ----------------------------------------------------
Cardinal Mississippi, Inc. Mississippi
- ----------------------------------------------------------------- ----------------------------------------------------
Cardinal Syracuse, Inc. New York
- ----------------------------------------------------------------- ----------------------------------------------------
CORD Logistics, Inc. Ohio
- ----------------------------------------------------------------- ----------------------------------------------------
Chapman Drug Company Tennessee
- ----------------------------------------------------------------- ----------------------------------------------------
Renlar Systems, Inc. Kentucky
- ----------------------------------------------------------------- ----------------------------------------------------
Comprehensive Reimbursement Consultants, Inc. Minnesota
- ----------------------------------------------------------------- ----------------------------------------------------
</TABLE>
96
<PAGE> 98
<TABLE>
<CAPTION>
- ----------------------------------------------------------------- ----------------------------------------------------
NAME JURISDICTION OF INCORPORATION
---- -----------------------------
- ----------------------------------------------------------------- ----------------------------------------------------
<S> <C>
James W. Daly, Inc. Massachusetts
- ----------------------------------------------------------------- ----------------------------------------------------
Ellicott Drug Company New York
- ----------------------------------------------------------------- ----------------------------------------------------
The Griffin Group, Inc. Nevada
- ----------------------------------------------------------------- ----------------------------------------------------
Allied Healthcare Services, Inc. Nevada
- ----------------------------------------------------------------- ----------------------------------------------------
Brighton Capital, Inc. Nevada
- ----------------------------------------------------------------- ----------------------------------------------------
Cardinal Information Corporation Nevada
- ----------------------------------------------------------------- ----------------------------------------------------
Cardinal West, Inc. Nevada
- ----------------------------------------------------------------- ----------------------------------------------------
Cascade Development, Inc. Nevada
- ----------------------------------------------------------------- ----------------------------------------------------
CDI Investments, Inc. Delaware
- ----------------------------------------------------------------- ----------------------------------------------------
Griffin Capital Corporation Nevada
- ----------------------------------------------------------------- ----------------------------------------------------
Pinnacle Intellectual Property Services, Inc. Nevada
- ----------------------------------------------------------------- ----------------------------------------------------
Pinnacle Intellectual Property Services
International, Inc. Nevada
- ----------------------------------------------------------------- ----------------------------------------------------
</TABLE>
97
<PAGE> 99
<TABLE>
<CAPTION>
- ----------------------------------------------------------------- ----------------------------------------------------
NAME JURISDICTION OF INCORPORATION
---- -----------------------------
- ----------------------------------------------------------------- ----------------------------------------------------
<S> <C>
ScriptLINE, Inc. Nevada
- ----------------------------------------------------------------- ----------------------------------------------------
Leader Drugstores, Inc. Delaware
- ----------------------------------------------------------------- ----------------------------------------------------
Marmac Distributors, Inc. Connecticut
- ----------------------------------------------------------------- ----------------------------------------------------
Medical Strategies, Inc. Massachusetts
- ----------------------------------------------------------------- ----------------------------------------------------
Medicine Shoppe International, Inc. Delaware
- ----------------------------------------------------------------- ----------------------------------------------------
Pharmacy Operations of New York, Inc. New York
- ----------------------------------------------------------------- ----------------------------------------------------
Pharmacy Operations, Inc. Delaware
- ----------------------------------------------------------------- ----------------------------------------------------
Medicine Shoppe Internet, Inc. Missouri
- ----------------------------------------------------------------- ----------------------------------------------------
Managed Pharmacy Benefits, Inc. Missouri
- ----------------------------------------------------------------- ----------------------------------------------------
Pharmacy Service Corporation Missouri
- ----------------------------------------------------------------- ----------------------------------------------------
MediQual Systems, Inc. Delaware
- ----------------------------------------------------------------- ----------------------------------------------------
National Pharmpak Services, Inc. Ohio
- ----------------------------------------------------------------- ----------------------------------------------------
National Specialty Services, Inc. Tennessee
- ----------------------------------------------------------------- ----------------------------------------------------
</TABLE>
98
<PAGE> 100
<TABLE>
<CAPTION>
- ----------------------------------------------------------------- ----------------------------------------------------
NAME JURISDICTION OF INCORPORATION
---- -----------------------------
- ----------------------------------------------------------------- ----------------------------------------------------
<S> <C>
The Heron Corporation Ohio
- ----------------------------------------------------------------- ----------------------------------------------------
Nexus Healthcare, Inc. Ohio
- ----------------------------------------------------------------- ----------------------------------------------------
Ohio Valley-Clarksburg, Inc. Delaware
- ----------------------------------------------------------------- ----------------------------------------------------
Owen Healthcare, Inc. Texas
- ----------------------------------------------------------------- ----------------------------------------------------
MediTROL, Inc. Nevada
- ----------------------------------------------------------------- ----------------------------------------------------
MediTROL Automation Systems, Inc. Texas
- ----------------------------------------------------------------- ----------------------------------------------------
Cardinal Health International Ventures, Limited Bermuda foreign sales corp.
- ----------------------------------------------------------------- ----------------------------------------------------
Owen Healthcare Building, Inc. Texas
- ----------------------------------------------------------------- ----------------------------------------------------
Owen Shared Services, Inc. Texas
- ----------------------------------------------------------------- ----------------------------------------------------
PCI Services, Inc. Delaware
- ----------------------------------------------------------------- ----------------------------------------------------
Packaging Coordinators, Inc. Pennsylvania
- ----------------------------------------------------------------- ----------------------------------------------------
Packaging Coordinators Incorporated, Caribe Delaware
- ----------------------------------------------------------------- ----------------------------------------------------
PCI/DELVCO, Inc. Delaware
- ----------------------------------------------------------------- ----------------------------------------------------
</TABLE>
99
<PAGE> 101
<TABLE>
<CAPTION>
- ----------------------------------------------------------------- ----------------------------------------------------
NAME JURISDICTION OF INCORPORATION
---- -----------------------------
- ----------------------------------------------------------------- ----------------------------------------------------
<S> <C>
The Tri-Line Co., Inc. Delaware
- ----------------------------------------------------------------- ----------------------------------------------------
PCI/Tri-Line (USA), Inc. Delaware
- ----------------------------------------------------------------- ----------------------------------------------------
PCI/Allpack Holdings, Inc. Delaware
- ----------------------------------------------------------------- ----------------------------------------------------
PCI allpack GmbH Germany
- ----------------------------------------------------------------- ----------------------------------------------------
PCI Acquisition I, Inc. Delaware
- ----------------------------------------------------------------- ----------------------------------------------------
PCI Acquisition II, Inc. Delaware
- ----------------------------------------------------------------- ----------------------------------------------------
PCI Holdings (UK) Co. England and Wales
- ----------------------------------------------------------------- ----------------------------------------------------
Unipack Limited (UK) Co. England and Wales
- ----------------------------------------------------------------- ----------------------------------------------------
Phillipi Holdings, Inc. Ohio
- ----------------------------------------------------------------- ----------------------------------------------------
Pyxis Corporation Canada
- ----------------------------------------------------------------- ----------------------------------------------------
R.P. Scherer Corporation Delaware
- ----------------------------------------------------------------- ----------------------------------------------------
F & F Holding GmbH Germany
- ----------------------------------------------------------------- ----------------------------------------------------
R.P. Scherer GmbH Germany
- ----------------------------------------------------------------- ----------------------------------------------------
</TABLE>
100
<PAGE> 102
<TABLE>
<CAPTION>
- ----------------------------------------------------------------- ----------------------------------------------------
NAME JURISDICTION OF INCORPORATION
---- -----------------------------
- ----------------------------------------------------------------- ----------------------------------------------------
<S> <C>
Allcaps Weichgelatinekapseln GmbH Germany
- ----------------------------------------------------------------- ----------------------------------------------------
Gelatine Products International Delaware
- ----------------------------------------------------------------- ----------------------------------------------------
R.P. Scherer Argentina S.A.I.C. Argentina
- ----------------------------------------------------------------- ----------------------------------------------------
Vivax Interamericana S.A. Argentina
- ----------------------------------------------------------------- ----------------------------------------------------
R.P. Scherer Canada Inc. Canada
- ----------------------------------------------------------------- ----------------------------------------------------
R.P. Scherer do Brasil Encapsulacoes, Ltda. Brazil
- ----------------------------------------------------------------- ----------------------------------------------------
R.P. Scherer Egypt Egypt
- ----------------------------------------------------------------- ----------------------------------------------------
R.P. Scherer (Europe) AG Switzerland
- ----------------------------------------------------------------- ----------------------------------------------------
R.P. Scherer Hardcapsule (West) Utah
- ----------------------------------------------------------------- ----------------------------------------------------
R.P. Scherer Holdings Ltd. England
- ----------------------------------------------------------------- ----------------------------------------------------
R.P. Scherer Limited England
- ----------------------------------------------------------------- ----------------------------------------------------
Scherer DDS Limited England
- ----------------------------------------------------------------- ----------------------------------------------------
R.P. Scherer Holdings Pty. Ltd. Australia
- ----------------------------------------------------------------- ----------------------------------------------------
</TABLE>
101
<PAGE> 103
<TABLE>
<CAPTION>
- ----------------------------------------------------------------- ----------------------------------------------------
NAME JURISDICTION OF INCORPORATION
---- -----------------------------
- ----------------------------------------------------------------- ----------------------------------------------------
<S> <C>
R.P. Scherer K.K. Japan
- ----------------------------------------------------------------- ----------------------------------------------------
R.P. Scherer Korea Limited Korea
- ----------------------------------------------------------------- ----------------------------------------------------
R.P. Scherer Production S.A. France
- ----------------------------------------------------------------- ----------------------------------------------------
R.P. Scherer S.A. France
- ----------------------------------------------------------------- ----------------------------------------------------
R.P. Scherer S.p.A. Italy
- ----------------------------------------------------------------- ----------------------------------------------------
R.P. Scherer DDS BV Holland
- ----------------------------------------------------------------- ----------------------------------------------------
R.P. Scherer Pharmaceutical, Inc. New Jersey
- ----------------------------------------------------------------- ----------------------------------------------------
RPS Technical Services, Inc. Delaware
- ----------------------------------------------------------------- ----------------------------------------------------
R.P. Scherer Verwaltungs GmgH Germany
- ----------------------------------------------------------------- ----------------------------------------------------
Allcaps Wichgelatinekapseln Verwaltungs GmbH Germany
- ----------------------------------------------------------------- ----------------------------------------------------
R.P. Scherer International (FSC), Ltd. Barbados
- ----------------------------------------------------------------- ----------------------------------------------------
R.P. Scherer (Spain) SA Spain
- ----------------------------------------------------------------- ----------------------------------------------------
The LVC Corporation Missouri
- ----------------------------------------------------------------- ----------------------------------------------------
</TABLE>
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<PAGE> 104
<TABLE>
<CAPTION>
- ----------------------------------------------------------------- ----------------------------------------------------
NAME JURISDICTION OF INCORPORATION
---- -----------------------------
- ----------------------------------------------------------------- ----------------------------------------------------
<S> <C>
RedKey, Inc. Ohio
- ----------------------------------------------------------------- ----------------------------------------------------
Solomons Company Georgia
- ----------------------------------------------------------------- ----------------------------------------------------
Whitmire Distribution Corporation Delaware
- ----------------------------------------------------------------- ----------------------------------------------------
Williams Drug Distributors, Inc. Delaware
- ----------------------------------------------------------------- ----------------------------------------------------
Allegiance Corporation Delaware
- ----------------------------------------------------------------- ----------------------------------------------------
Allegiance Healthcare Corporation Delaware
- ----------------------------------------------------------------- ----------------------------------------------------
Allegiance Healthcare Foreign Sales Corporation Barbados
- ----------------------------------------------------------------- ----------------------------------------------------
West Hudson, Inc. Nevada
- ----------------------------------------------------------------- ----------------------------------------------------
Allegiance Healthcare International, Inc. Delaware
- ----------------------------------------------------------------- ----------------------------------------------------
Allegiance Healthcare Canada Inc. Canada
- ----------------------------------------------------------------- ----------------------------------------------------
Source Medical, Inc. Canada
- ----------------------------------------------------------------- ----------------------------------------------------
Cirmex de Chihuahua S.A. de C.V. Mexico
- ----------------------------------------------------------------- ----------------------------------------------------
</TABLE>
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<PAGE> 105
<TABLE>
<CAPTION>
- ----------------------------------------------------------------- ----------------------------------------------------
NAME JURISDICTION OF INCORPORATION
---- -----------------------------
- ----------------------------------------------------------------- ----------------------------------------------------
<S> <C>
Cirpro de Delicias S.A. de C.V. Mexico
- ----------------------------------------------------------------- ----------------------------------------------------
Convertors de Mexico S.A. de C.V. Mexico
- ----------------------------------------------------------------- ----------------------------------------------------
Productos Urologos de Mexico S.A. de C.V. Mexico
- ----------------------------------------------------------------- ----------------------------------------------------
Quiroproductos de Cuauhtemoc S.A. de C.V. Mexico
- ----------------------------------------------------------------- ----------------------------------------------------
Dutch American Manufacturers (D.A.M.) B.V. Netherlands
- ----------------------------------------------------------------- ----------------------------------------------------
Allegiance Healthcare Holding B.V. Netherlands
- ----------------------------------------------------------------- ----------------------------------------------------
Allegiance Healthcare Deutschland Holding GmbH Germany
- ----------------------------------------------------------------- ----------------------------------------------------
Allegiance Healthcare Deutschland GmbH Germany
- ----------------------------------------------------------------- ----------------------------------------------------
International Medical Produces (Deutschland) GmbH Germany
- ----------------------------------------------------------------- ----------------------------------------------------
Surgi-Tech Deutschland GmbH Germany
- ----------------------------------------------------------------- ----------------------------------------------------
Allegiance Healthcare GmbH Switzerland
- ----------------------------------------------------------------- ----------------------------------------------------
Allegiance Healthcare Limited United Kingdom
- ----------------------------------------------------------------- ----------------------------------------------------
Allegiance Industries Sdn. Bhd. New Synthetics Company Malaysia
- ----------------------------------------------------------------- ----------------------------------------------------
</TABLE>
104
<PAGE> 106
<TABLE>
<CAPTION>
- ----------------------------------------------------------------- ----------------------------------------------------
NAME JURISDICTION OF INCORPORATION
---- -----------------------------
- ----------------------------------------------------------------- ----------------------------------------------------
<S> <C>
Allegiance International Manufacturing B.V. Netherlands
- ----------------------------------------------------------------- ----------------------------------------------------
Allegiance Medica S.R.L. Italy
- ----------------------------------------------------------------- ----------------------------------------------------
Allegiance S.L. Spain
- ----------------------------------------------------------------- ----------------------------------------------------
Allegiance S.P.R.L. Belgium
- ----------------------------------------------------------------- ----------------------------------------------------
Allegiance Sante S.A. France
- ----------------------------------------------------------------- ----------------------------------------------------
International Medical Products Group B.V. Netherlands
- ----------------------------------------------------------------- ----------------------------------------------------
International Medical Products Holding B.V. Netherlands
- ----------------------------------------------------------------- ----------------------------------------------------
International Medical Products, B.V. Netherlands
- ----------------------------------------------------------------- ----------------------------------------------------
Medpro Medische Produkten B.V. Netherlands
- ----------------------------------------------------------------- ----------------------------------------------------
SOHO Disposables B.V. Netherlands
- ----------------------------------------------------------------- ----------------------------------------------------
Surgical Technologies Europa B.V. Netherlands
- ----------------------------------------------------------------- ----------------------------------------------------
Surgi-Tech Europa Divisione Surgi-Tech Italia S.R.L. Italy
- ----------------------------------------------------------------- ----------------------------------------------------
</TABLE>
105
<PAGE> 107
<TABLE>
<CAPTION>
- ----------------------------------------------------------------- ----------------------------------------------------
NAME JURISDICTION OF INCORPORATION
---- -----------------------------
- ----------------------------------------------------------------- ----------------------------------------------------
<S> <C>
Allegiance Healthcare (Thailand) Ltd. Thailand
- ----------------------------------------------------------------- ----------------------------------------------------
Allegiance Healthcare Sdn. Bhd. Malaysia
- ----------------------------------------------------------------- ----------------------------------------------------
Allegiance International GmbH Austria
- ----------------------------------------------------------------- ----------------------------------------------------
Allegiance International Manufacturing (Bermuda) Ltd. Bermuda
- ----------------------------------------------------------------- ----------------------------------------------------
Bauer Branch Dominican Republic
- ----------------------------------------------------------------- ----------------------------------------------------
Converters Branch Dominican Republic
- ----------------------------------------------------------------- ----------------------------------------------------
Eurovac Limited Malta
- ----------------------------------------------------------------- ----------------------------------------------------
</TABLE>
106
<PAGE> 108
SCHEDULE 3
EURODOLLAR PAYMENT OFFICES OF THE AGENT
Eurodollar Payment Office
-------------------------
The First National Bank of Chicago
Detroit, Michigan
107
<PAGE> 109
SCHEDULE 4
LENDING INSTALLATIONS
<TABLE>
<CAPTION>
Lender Floating Rate Loans Eurodollar Loans (list all)
------ ------------------- ---------------------------
<S> <C> <C>
The First National Bank of Chicago The First National Bank of Chicago, The First National Bank of Chicago,
Detroit, Michigan London Branch
</TABLE>
108
<PAGE> 110
SCHEDULE 7
LITIGATION AND CONTINGENT OBLIGATIONS
109
<PAGE> 111
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
Article I. DEFINITIONS............................................................................................1
Article II. THE CREDITS..........................................................................................12
2.1 Commitments of the Lenders; Revolving Credit Advances..........................................12
2.2 Termination....................................................................................12
2.3 Ratable Loans..................................................................................12
2.4 Types of Advances..............................................................................12
2.5 Facility Fee; Reductions in Aggregate Commitment; Utilization Fee..............................12
2.6 Minimum Amount of Each Advance.................................................................12
2.7 Prepayments....................................................................................13
2.8 Method of Selecting Types and Interest Periods for New Advances................................13
2.9 Conversion and Continuation of Outstanding Advances............................................13
2.10 Method of Borrowing............................................................................14
2.11 Changes in Interest Rate, etc..................................................................14
2.12 Rates Applicable After Default.................................................................15
2.13 Method of Payment..............................................................................15
2.14 Noteless Agreement; Evidence of Indebtedness...................................................15
2.15 Telephonic Notices.............................................................................16
2.16 Interest Payment Dates; Interest and Fee Basis.................................................16
2.17 Notification of Advances, Interest Rates, Prepayments and Commitment Reductions................17
2.18 Lending Installations..........................................................................17
2.19 Non-Receipt of Funds by the Administrative Agent...............................................17
2.20 Judgment Currency..............................................................................18
2.21 Replacement of Lender..........................................................................19
Article III. YIELD PROTECTION; TAXES.............................................................................19
3.1 Yield Protection...............................................................................19
</TABLE>
110
<PAGE> 112
<TABLE>
<S> <C> <C>
3.2 Changes in Capital Adequacy Regulations........................................................20
3.3 Availability of Types of Advances..............................................................21
3.4 Funding Indemnification........................................................................21
3.5 Taxes..........................................................................................21
3.6 Lender Statements; Survival of Indemnity.......................................................23
Article IV. CONDITIONS PRECEDENT.................................................................................24
4.1 Initial Advance................................................................................24
4.2 Each Advance...................................................................................25
Article V. REPRESENTATIONS AND WARRANTIES........................................................................26
5.1 Existence and Standing.........................................................................26
5.2 Authorization and Validity.....................................................................26
5.3 No Conflict; Government Consent................................................................26
5.4 Financial Statements...........................................................................27
5.5 Material Adverse Change........................................................................27
5.6 Taxes..........................................................................................27
5.7 Litigation and Contingent Obligations..........................................................27
5.8 Subsidiaries...................................................................................28
5.9 ERISA..........................................................................................28
5.10 Accuracy of Information........................................................................28
5.11 Regulation U...................................................................................29
5.12 Material Agreements............................................................................29
5.13 Compliance With Laws...........................................................................29
5.14 Plan Assets; Prohibited Transactions...........................................................29
5.15 Environmental Matters..........................................................................29
5.16 Investment Company Act.........................................................................30
5.17 Public Utility Holding Company Act.............................................................30
5.18 Year 2000......................................................................................30
5.19 Default........................................................................................30
Article VI. COVENANTS............................................................................................30
</TABLE>
111
<PAGE> 113
<TABLE>
<S> <C> <C>
6.1 Financial Reporting............................................................................30
6.2 Use of Proceeds................................................................................31
6.3 Notice of Default..............................................................................31
6.4 Conduct of Business............................................................................32
6.5 Taxes..........................................................................................32
6.6 Insurance......................................................................................32
6.7 Compliance with Laws...........................................................................32
6.8 Inspection.....................................................................................32
6.9 Merger.........................................................................................33
6.10 Sale of Assets.................................................................................33
6.11 Investments....................................................................................34
6.12 Liens..........................................................................................34
6.13 Year 2000......................................................................................36
6.14 Subsidiary Indebtedness. ......................................................................36
6.15 Limitation on Restrictions on Significant Subsidiary Distributions. ...........................37
6.16 Contingent Obligations.........................................................................37
6.17 Minimum Net Worth..............................................................................38
Article VII. DEFAULTS............................................................................................38
Article VIII. ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES.....................................................40
8.1 Acceleration...................................................................................40
8.2 Amendments.....................................................................................40
8.3 Preservation of Rights.........................................................................41
Article IX. GENERAL PROVISIONS...................................................................................41
9.1 Survival of Representations....................................................................41
9.2 Governmental Regulation........................................................................42
9.3 Headings.......................................................................................42
9.4 Entire Agreement...............................................................................42
9.5 Several Obligations; Benefits of this Agreement................................................42
9.6 Expenses; Indemnification......................................................................42
</TABLE>
112
<PAGE> 114
<TABLE>
<S> <C> <C>
9.7 Numbers of Documents...........................................................................43
9.8 Accounting.....................................................................................43
9.9 Severability of Provisions.....................................................................43
9.10 Nonliability of Lenders........................................................................43
9.11 Confidentiality................................................................................44
9.12 Nonreliance....................................................................................44
Article X. THE AGENT.............................................................................................44
10.1 Appointment; Nature of Relationship............................................................44
10.2 Powers.........................................................................................45
10.3 General Immunity...............................................................................45
10.4 No Responsibility for Loans, Recitals, etc.....................................................45
10.5 Action on Instructions of Lenders..............................................................46
10.6 Employment of Agents and Counsel...............................................................46
10.7 Reliance on Documents; Counsel.................................................................46
10.8 Administrative Agent's Reimbursement and Indemnification.......................................46
10.9 Notice of Default..............................................................................47
10.10 Rights as a Lender.............................................................................47
10.11 Lender Credit Decision.........................................................................47
10.12 Successor Administrative Agent.................................................................48
10.13 Administrative Agent's Fee.....................................................................49
10.14 Delegation to Affiliates.......................................................................49
10.15 Administrative Agent, Syndication Agent, Co-Documentation Agents, Lead Arranger, etc...........49
Article XI. SETOFF; RATABLE PAYMENTS.............................................................................49
11.1 Setoff.........................................................................................49
11.2 Ratable Payments...............................................................................49
Article XII. BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS...................................................50
12.1 Successors and Assigns.........................................................................50
12.2 Participations.................................................................................50
</TABLE>
113
<PAGE> 115
<TABLE>
<S> <C> <C>
12.3 Assignments....................................................................................51
12.4 Dissemination of Information...................................................................52
12.5 Tax Treatment..................................................................................52
Article XIII. NOTICES............................................................................................53
13.1 Notices........................................................................................53
13.2 Change of Address..............................................................................54
Article XIV. COUNTERPARTS........................................................................................54
Article XV. CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.........................................54
15.1 CHOICE OF LAW..................................................................................54
15.2 CONSENT TO JURISDICTION........................................................................54
15.3 WAIVER OF JURY TRIAL...........................................................................55
</TABLE>
114
<PAGE> 1
EXHIBIT 10.02
CARDINAL HEALTH, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
Grant Date:
Grant vesting date:
Grant expiration date:
Grant Price:
Cardinal Health, Inc., an Ohio corporation (the "Company"), has granted to
[employee name] ("Grantee"), an option (the "Option") to purchase [# of shares]
(the "Shares") of common stock in the Company for a total purchase price of [#
of shares *stock price], (i.e., the equivalent of [stock price] for each full
Share). The Option has been granted pursuant to the Cardinal Health, Inc. Equity
Incentive Plan (the "Plan") and shall include and be subject to all provisions
of the Plan, which are hereby incorporated herein by reference, and shall be
subject to the provisions of this agreement. Capitalized terms used herein which
are not specifically defined herein shall have the meanings ascribed to such
terms in the Plan. This option shall be exercisable at any time on or after and
prior to .
CARDINAL HEALTH, INC.
By:____________________ By: ____________________
Robert D. Walter Steven Alan Bennett
Chairman and CEO EVP, General Counsel
1
<PAGE> 2
1. Method of Exercise. At any time when the Option is exercisable under the Plan
and this agreement, the Option shall be exercisable from time to time by written
notice to the Company which shall:
(a) state that the Option is thereby being exercised, the number of Shares with
respect to which the Option is being exercised, each person in whose name any
certificates for the Shares should be registered and his address and social
security number;
(b) be signed by the person or persons entitled to exercise the Option and, if
the Option is being exercised by anyone other than the Grantee, be accompanied
by proof satisfactory to counsel for the Company of the right of such person or
persons to exercise the Option under the Plan and all applicable laws and
regulations; and
(c) contain such representations and agreements with respect to the investment
intent of such person or persons in form and substance satisfactory to counsel
for the Company.
2. Payment of Price. The full exercise price for the Option shall be paid to the
Company as provided in the Plan.
3. Transferability. The Option shall be transferable (I) at the Grantee's death,
by the Grantee by will or pursuant to the laws of descent and distribution, and
(II) by the Grantee during the Grantee's lifetime, to (a) the spouse, parents,
parents-in-law, siblings, children, grandchildren, nieces, or nephews of the
Grantee ("Immediate Family Members"), (b) a trust or trusts for the primary
benefit of the Grantee or such Immediate Family Members, or (c) a partnership in
which the Grantee or such Immediate Family Members are the majority or
controlling partners, provided that subsequent transfers of the transferred
Option shall be prohibited except (X) if the transferee is an individual, at the
transferee's death by the transferee by will or pursuant to the laws of descent
and distribution and (Y) to the individuals or entities listed in subitems
II(a), (b), or (c), above, with respect to the original Grantee. The Committee
may, in its discretion, permit transfers to other persons and entities as
permitted by the Plan. Within ten days of any transfer, the Grantee shall notify
the Stock Option Administrator of the Company in writing of the transfer.
Following transfer, the Option shall continue to be subject to the same terms
and conditions as were applicable immediately prior to transfer and, except as
otherwise provided in the Plan or this agreement, references to the original
Grantee shall be deemed to refer to the transferee. The events of termination of
employment of the Grantee provided in item 4 hereof shall continue to be applied
with respect to the original Grantee, following which the Option shall be
exercisable by the transferee only to the extent, and for the periods, specified
in item 4. The Company shall have no obligation to notify any transferee of the
Grantee's termination of employment with the Company for any reason. The conduct
prohibited of Grantee in items 6 and 7 hereof shall continue to be prohibited of
Grantee following transfer to the same extent as immediately prior to transfer
and the Option (or its economic value, as applicable) shall be subject to
forfeiture by the transferee and recoupment from the Grantee to the same extent
as would have been the case of the Grantee had the Option not been transferred.
The Grantee shall remain
2
<PAGE> 3
subject to the recoupment provisions of items 6 and 7 of this agreement and tax
withholding provisions of Section 13(d) of the Plan following transfer of the
Option.
4. Termination of Relationship.
(a) Termination by Death. If the Grantee's employment by the Company and its
subsidiaries (collectively, the "Cardinal Group") terminates by reason of death,
then, unless otherwise determined by the Committee within five days of such
death, any unexercised portion of the Option shall thereafter be exercisable in
full and any unvested portion thereof shall immediately vest. The Option may
thereafter be exercised by any transferee of the Option, if applicable, or by
the legal representative of the estate or by the legatee of the Grantee under
the will of the Grantee for a period of one year (or such other period as the
Committee may specify at or after grant or death) from the date of death or
until the expiration of the stated term of the Option, whichever period is
shorter.
(b) Termination by Reason of Retirement. If the Grantee's employment by the
Cardinal Group terminates by reason of retirement (as defined in the Plan),
then, unless otherwise determined by the Committee within sixty days of such
retirement, any unexercised portion of the Option will vest in accordance with
the terms indicated on the first page of this agreement and may thereafter be
exercised by the Grantee (or any transferee, if applicable) until the earlier of
(the "Exercise Period") the fifth anniversary of the date of such retirement or
the expiration of the stated term of the Option. If the Grantee has at least
fifteen years of service with the Cardinal Group at the time of retirement, the
Option may thereafter be exercised by the Grantee (or any transferee, if
applicable) until the expiration of the stated term of the Option.
Notwithstanding the foregoing, if the Grantee dies after retirement but before
the expiration of the period stated above, unless otherwise determined by the
Committee within 5 days of such death, any unexercised portion of the Option
shall thereafter be exercisable in full and any unvested portion thereof shall
immediately vest and the Option may thereafter be exercised by any transferee of
the Option, if applicable, or by the legal representative of the estate or by
the legatee of the Grantee under the will of the Grantee for a period of one
year (or such other period as the Committee may specify at or after grant or
death) from the date of death or until the expiration of the Exercise Period,
whichever period is shorter.
(c) Other Termination of Employment. If the Grantee's employment by the Cardinal
Group terminates for any reason other than death or retirement (subject to
Section 10 of the Plan regarding acceleration of the vesting of the Option upon
a Change of Control), any unexercised portion of the Option which has not vested
on such date of termination will automatically terminate on the date of such
termination. Unless otherwise determined by the Committee at or after grant or
termination, the Grantee (or any transferee, if applicable) will have ninety
days (or such other period as the Committee may specify at or after grant or
termination) from the date of termination or until the expiration of the stated
term of the Option, whichever period is shorter, to exercise any portion of the
Option that is then exercisable on the date of termination; provided,
3
<PAGE> 4
however, that if the termination was for Cause, the Option may be immediately
canceled by the Committee (whether then held by Grantee or any transferee).
5. Restrictions on Exercise. The Option is subject to all restrictions in this
agreement or in the Plan. As a condition of any exercise of the Option, the
Company may require the Grantee or his transferee or successor to make any
representation and warranty to comply with any applicable law or regulation or
to confirm any factual matters (including Grantee's compliance with the terms of
items 6 and 7 of this agreement or any employment or severance agreement between
any member of the Cardinal Group and the Grantee) reasonably requested by the
Company.
6. Triggering Conduct/Competitor Triggering Conduct. As used in this agreement,
"Triggering Conduct" shall include disclosing or using in any capacity other
than as necessary in the performance of duties assigned by the Cardinal Group
any confidential information or material concerning the Cardinal Group;
violation of Company policies, including conduct which would constitute a breach
of the then-most recent version of the Certificate of Compliance with Company
Policies signed by the Grantee; directly or indirectly employing, contacting
concerning employment, or participating in any way in the recruitment for
employment (whether as an employee, officer, director, agent, consultant or
independent contractor) any person who was or is at any time during the previous
twelve months an employee, representative, officer, or director of the Cardinal
Group; and breaching any provision of any employment or severance agreement with
a member of the Cardinal Group. As used herein, "Competitor Triggering Conduct"
shall include accepting employment with or serving as a consultant, advisor, or
in any other capacity to an entity that is in competition with the business
conducted by any member of the Cardinal Group (a "Competitor") either during or
within one year following Grantee's termination of employment with the Cardinal
Group ("Competitor Triggering Conduct"). The Committee shall resolve in good
faith any disputes concerning whether particular conduct constitutes Triggering
Conduct or Competitor Triggering Conduct, and any such determination by the
Committee shall be conclusive and binding on all interested persons.
7. Special Forfeiture/Repayment Rules. For so long as Grantee continues as an
employee with the Cardinal Group and for three years following Grantee's
termination of employment with the Cardinal Group, Grantee agrees not to engage
in Triggering Conduct. If Grantee engages in such Triggering conduct or in
Competitor Triggering Conduct during such time, then: (a) the Option (or any
part thereof that has not been exercised) shall immediately and automatically
terminate, be forfeited, and shall cease to be exercisable at any time; and (b)
the Grantee shall, within 30 days following written notice from the Company, pay
to the Company an amount equal to the gross option gain realized or obtained by
the Grantee or any transferee resulting from the exercise of such Option,
measured at the date of exercise (i.e., the difference between the market value
of the Option Shares on the exercise date and the exercise price paid for such
Option Shares), with respect to any portion of the Option that has already been
exercised at any time within three years prior to the Triggering Conduct (the
"Look-Back Period"), less
4
<PAGE> 5
$1.00. If Grantee engages only in Competitor Triggering Conduct, then the
Look-Back Period shall be shortened to exclude any period more than one year
prior to Grantee's termination of employment with the Cardinal Group. The
Grantee may be released from Grantee's obligations under this item 7 only if the
Committee (or its duly appointed agent) determines, in writing and in its sole
discretion, that such action is in the best interests of the Company. Nothing in
this item 7 constitutes a so-called "noncompete" covenant. However, this item 7
does prohibit certain conduct while Grantee is associated with the Cardinal
Group and thereafter and does provide for the forfeiture or repayment of the
benefits granted by this agreement under certain circumstances, including but
not limited to the Grantee's acceptance of employment with a Competitor. Grantee
agrees to provide the Company with at least ten days written notice prior to
directly or indirectly accepting employment with or serving as a consultant,
advisor, or in any other capacity to a Competitor, and further agrees to inform
any such new employer, before accepting employment, of the terms of this item 7
and the Grantee's continuing obligations contained herein. No provision of this
agreement shall diminish, negate, or otherwise impact any separate noncompete
agreement to which Grantee may be a party. Grantee acknowledges and agrees that
the provisions contained in this item 7 are being made for the benefit of the
Company in consideration of Grantee's receipt of the Option, in consideration of
employment, in consideration of exposing Grantee to the Company's business
operations and confidential information, and for other good and valuable
consideration, the adequacy of which consideration is hereby expressly
confirmed. Grantee further acknowledges that the receipt of the Option and
execution of this agreement are voluntary actions on the part of Grantee, and
that the Company is unwilling to provide the Option to Grantee without including
this item 7.
8. Right of Set-Off. By accepting this Option, the Grantee consents to a
deduction from and set-off against any amounts owed to the Grantee by any member
of the Cardinal Group from time to time (including but not limited to amounts
owed to the Grantee as wages, severance payments, or other fringe benefits) to
the extent of the amounts owed to the Cardinal Group by the Grantee under this
agreement.
9. Governing Law/Venue. This agreement shall be governed by the laws of the
State of Ohio, without regard to principles of conflicts of law, except to the
extent superseded by the laws of the United States of America. In addition, all
legal actions or proceedings relating to this agreement shall be brought in
state or federal courts located in Franklin County, Ohio, and the parties
executing this agreement hereby consent to the personal jurisdiction of such
courts. Grantee acknowledges that the covenants contained in items 6 and 7 of
this agreement are reasonable in nature, are fundamental for the protection of
the Company's legitimate business and proprietary interests, and do not
adversely affect the Grantee's ability to earn a living in any capacity that
does not violate such covenants. The parties further agree that, in the event of
any violation by Grantee of any such covenants, the Company will suffer
immediate and irreparable injury for which there is no adequate remedy at law.
In the event of any violation or attempted violations of item 6 or 7 of this
agreement, the Company shall be entitled to specific performance and injunctive
relief or other equitable relief without any showing of irreparable harm or
damage, and Grantee
5
<PAGE> 6
hereby waives any requirement for the securing or posting of any bond in
connection with such remedy, without prejudice to the rights and remedies
afforded the Company hereunder or by law. In the event that it becomes necessary
for the Company to institute legal proceedings under this agreement, Grantee
shall be responsible to the Company for all costs and reasonable legal fees
incurred by the Company with regard to such proceedings. Any provision of this
agreement which is determined by a court of competent jurisdiction to be invalid
or unenforceable should be construed or limited in a manner that is valid and
enforceable and that comes closest to the business objectives intended by such
provision, without invalidating or rendering unenforceable the remaining
provisions of this agreement.
10. Prompt Acceptance of Agreement. The Option grant evidenced by this agreement
shall, at the discretion of the Committee, be forfeited if this agreement is not
executed by the Grantee and returned to the Company within sixty days of the
Grant Date set forth on the first page of this agreement.
CARDINAL HEALTH, INC.
_____________________________
Steven Alan Bennett
Executive Vice President
6
<PAGE> 7
ACCEPTANCE OF AGREEMENT
The Grantee hereby: (a) acknowledges receiving a copy of the Plan, which has
either been previously delivered or is provided with this agreement, and
represents that he is familiar with all provisions of the Plan; and (b) accepts
this agreement and the Option granted to him under this agreement subject to all
provisions of the Plan and this agreement. The Grantee further acknowledges
receiving a copy of the Company's most recent Annual Report and other
communications routinely distributed to the Company's shareholders and a copy of
the Plan Description dated March 1, 1999 pertaining to the Plan.
________________________________
Signature
________________________________
Print Name
________________________________
Grantee's Social Security Number
________________________________
Date
7
<PAGE> 1
EXHIBIT 10.03
RESTRICTED SHARES AGREEMENT
Cardinal Health, Inc., an Ohio corporation (the "Company"), has
granted to _________________ (the "Grantee"), ______ Common Shares in the
Company (the "Restricted Shares"). The Restricted Shares have been granted
pursuant to the Cardinal Health, Inc. Equity Incentive Plan (the "Plan") and
shall be subject to all provisions of the Plan, which are hereby incorporated
herein by reference, and shall be subject to the provisions of this agreement.
Capitalized terms used herein which are not specifically defined herein shall
have the meanings ascribed to such terms in the Plan.
1. Vesting. The Restricted Shares shall vest in accordance with the
following schedule (which dates shall be "Vesting Date(s)"):
<TABLE>
<CAPTION>
Vesting Date % of Restricted Shares
------------ ----------------------
<S> <C>
%
%
%
----
Total 100%
</TABLE>
2. Purchase Price. The purchase price of the Restricted Shares shall be
$-0-.
3. Transferability. Prior to the applicable Vesting Date(s) (the
"Restriction Period"), the Grantee shall not be permitted to sell, transfer,
pledge, assign or otherwise encumber the Restricted Shares, except as otherwise
provided in Section 4 of this agreement. The Restricted Shares will be held by
the Company; provided, however, that the Company will deliver certificates
representing these Restricted Shares which have fully vested to the Grantee
within a reasonable time after being requested in writing to do so.
4. Termination of Service. Unless otherwise determined by the Committee
at or after grant or termination, and except as set forth below, if the
Grantee's Continuous Service to the Company and its subsidiaries (collectively,
the "Cardinal Group") terminates during the Restriction Period, all of the
Restricted Shares that have not vested shall be forfeited by the Grantee. If the
Grantee's Continuous Service terminates prior to the vesting of all of the
Restricted Shares by reason of the Grantee's death or total or partial
disability, then the restrictions with respect to a ratable portion of the
Restricted Shares shall lapse and such shares shall not be forfeited. Such
ratable portion shall be determined with respect to each separate award of
Restricted Shares and shall be an amount equal to (i) the number of Restricted
Shares awarded to the Grantee multiplied by the portion of the Restriction
Period that has expired at the date of the Grantee's death or total or partial
disability, reduced by (ii) the number of Restricted Shares awarded with respect
to which the restrictions had lapsed as of the date of the death or total or
partial disability of the Grantee. For purposes of this agreement, the term
"Continuous Service" shall mean the absence of any interruption or termination
of service as an employee or director of any entity within the Cardinal Group.
5. Triggering Conduct/Competitor Triggering Conduct. As used in this
agreement, "Triggering Conduct" shall include disclosing or using in any
capacity other than as necessary in the performance of duties assigned by the
Cardinal Group any confidential information or material concerning the Cardinal
Group; violation of Company policies, including conduct which would constitute a
breach of the then-most recent version of the Certificate of Compliance with
Company Policies signed by the Grantee;
<PAGE> 2
directly or indirectly employing, contacting concerning employment, or
participating in any way in the recruitment for employment (whether as an
employee, officer, director, agent, consultant or independent contractor) any
person who was or is at any time during the previous twelve months an employee,
representative, officer, or director of the Cardinal Group; and breaching any
provision of any employment or severance agreement with a member of the Cardinal
Group. As used herein, "Competitor Triggering Conduct" shall include accepting
employment with or serving as a consultant, advisor, or in any other capacity to
an entity that is in competition with the business conducted by any member of
the Cardinal Group (a "Competitor") either during or within one year following
Grantee's termination of employment with the Cardinal Group ("Competitor
Triggering Conduct"). The Committee shall resolve in good faith any disputes
concerning whether particular conduct constitutes Triggering Conduct or
Competitor Triggering Conduct, and any such determination by the Committee shall
be conclusive and binding on all interested persons.
6. Special Forfeiture/Repayment Rules. For so long as Grantee continues
as an employee with the Cardinal Group and for three years following Grantee's
termination of employment with the Cardinal Group, Grantee agrees not to engage
in Triggering Conduct. If Grantee engages in such Triggering conduct or in
Competitor Triggering Conduct during such time, then: (a) the Restricted Shares
(or any part thereof that have not vested) shall immediately and automatically
terminate, be forfeited, and shall cease to vest at any time; and (b) the
Grantee shall, within 30 days following written notice from the Company, pay to
the Company an amount equal to the gross gain realized or obtained by the
Grantee resulting from the vesting of such Restricted Shares, measured at the
date of vesting (i.e., the market value of the Restricted Shares on the vesting
date), with respect to any portion of the Restricted Shares that has already
vested at any time within three years prior to the Triggering Conduct (the
"Look-Back Period"), less $1.00. If Grantee engages only in Competitor
Triggering Conduct, then the Look-Back Period shall be shortened to exclude any
period more than one year prior to Grantee's termination of employment with the
Cardinal Group. The Grantee may be released from Grantee's obligations under
this item 6 only if the Committee (or its duly appointed agent) determines, in
writing and in its sole discretion, that such action is in the best interests of
the Company. Nothing in this item 6 constitutes a so-called "noncompete"
covenant. However, this item 6 does prohibit certain conduct while Grantee is
associated with the Cardinal Group and thereafter and does provide for the
forfeiture or repayment of the benefits granted by this agreement under certain
circumstances, including but not limited to the Grantee's acceptance of
employment with a Competitor. Grantee agrees to provide the Company with at
least ten days written notice prior to directly or indirectly accepting
employment with or serving as a consultant, advisor, or in any other capacity to
a Competitor, and further agrees to inform any such new employer, before
accepting employment, of the terms of this item 6 and the Grantee's continuing
obligations contained herein. No provision of this agreement shall diminish,
negate, or otherwise impact any separate noncompete agreement to which Grantee
may be a party. Grantee acknowledges and agrees that the provisions contained in
this item 6 are being made for the benefit of the Company in consideration of
Grantee's receipt of the Restricted Shares, in consideration of employment, in
consideration of exposing Grantee to the Company's business operations and
confidential information, and for other good and valuable consideration, the
adequacy of which consideration is hereby expressly confirmed. Grantee further
acknowledges that the receipt of the Restricted Shares and execution of this
agreement are voluntary actions on the part of Grantee, and that the Company is
unwilling to provide the Restricted Shares to Grantee without including this
item 6.
7. Right of Set-Off. By accepting these Restricted Shares, the Grantee
consents to a deduction from and set-off against any amounts owed to the Grantee
by any member of the Cardinal Group from time to time (including but not limited
to amounts owed to the Grantee as wages, severance
2
<PAGE> 3
payments, or other fringe benefits) to the extent of the amounts owed to the
Cardinal Group by the Grantee under this agreement.
8. Shareholder Rights and Restrictions. Except with regard to the
disposition of Restricted Shares, the Grantee shall generally have all rights of
a shareholder with respect to the Restricted Shares from the date of grant,
including, without limitation, the right to receive dividends with respect to
such Restricted Shares and the right to vote such Restricted Shares, but
subject, however, to those restrictions in this agreement or in the Plan.
9. Withholding Tax. The Company shall have the right to require the
Grantee to pay to the Company the amount of any taxes which the Company is
required to withhold with respect to the Restricted Shares (including the amount
of any taxes which the Company is required to withhold with respect to dividends
on the Restricted Shares) or, in lieu thereof, to retain, or sell without
notice, a sufficient number of Restricted Shares to cover the amount required to
be withheld.
10. Governing Law/Venue. This agreement shall be governed by the laws
of the State of Ohio, without regard to principles of conflicts of law, except
to the extent superseded by the laws of the United States of America. In
addition, all legal actions or proceedings relating to this agreement shall be
brought in state or federal courts located in Franklin County, Ohio, and the
parties executing this agreement hereby consent to the personal jurisdiction of
such courts. Grantee acknowledges that the covenants contained in items 5 and 6
of this agreement are reasonable in nature, are fundamental for the protection
of the Company's legitimate business and proprietary interests, and do not
adversely affect the Grantee's ability to earn a living in any capacity that
does not violate such covenants. The parties further agree that, in the event of
any violation by Grantee of any such covenants, the Company will suffer
immediate and irreparable injury for which there is no adequate remedy at law.
In the event of any violation or attempted violations of item 5 or 6 of this
agreement, the Company shall be entitled to specific performance and injunctive
relief or other equitable relief without any showing of irreparable harm or
damage, and Grantee hereby waives any requirement for the securing or posting of
any bond in connection with such remedy, without prejudice to the rights and
remedies afforded the Company hereunder or by law. In the event that it becomes
necessary for the Company to institute legal proceedings under this agreement,
Grantee shall be responsible to the Company for all costs and reasonable legal
fees incurred by the Company with regard to such proceedings. Any provision of
this agreement which is determined by a court of competent jurisdiction to be
invalid or unenforceable should be construed or limited in a manner that is
valid and enforceable and that comes closest to the business objectives intended
by such provision, without invalidating or rendering unenforceable the remaining
provisions of this agreement.
11. Prompt Acceptance of Agreement. The Restricted Shares grant
evidenced by this agreement shall, at the discretion of the Committee, be
forfeited if this agreement is not executed by the Grantee and returned to the
Company within sixty days of the Grant Date set forth below.
CARDINAL HEALTH, INC.
DATE OF GRANT:__________________ By:_______________________________
Steven Alan Bennett
Executive Vice President
3
<PAGE> 4
ACCEPTANCE OF AGREEMENT
The Grantee hereby: (a) acknowledges that he has received a copy
of the Plan, a copy of the Company's most recent Annual Report and other
communications routinely distributed to the Company's shareholders, and a copy
of the Plan Description dated March 1, 1999, pertaining to the Plan; (b) accepts
this Agreement and the Restricted Shares granted to him under this Agreement
subject to all provisions of the Plan and this Agreement; (c) represents and
warrants to the Company that he is purchasing the Restricted Shares for his own
account, for investment, and not with a view to or any present intention of
selling or distributing the Restricted Shares either now or at any specific or
determinable future time or period or upon the occurrence or nonoccurrence of
any predetermined or reasonably foreseeable event; and (d) agrees that no
transfer of the Restricted Shares shall be made unless the Restricted Shares
have been duly registered under all applicable Federal and state securities laws
pursuant to a then-effective registration which contemplates the proposed
transfer or unless the Company has received a written opinion of, or
satisfactory to, its legal counsel that the proposed transfer is exempt from
such registration:
________________________________
Grantee's Signature
________________________________
Grantee's Social Security Number
________________________________
Date
4
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> JUN-30-1999
<PERIOD-START> JUL-1-1998
<PERIOD-END> MAR-31-1999
<CASH> 176
<SECURITIES> 0
<RECEIVABLES> 1,663
<ALLOWANCES> (64)
<INVENTORY> 3,142
<CURRENT-ASSETS> 5,427
<PP&E> 2,700
<DEPRECIATION> (1,187)
<TOTAL-ASSETS> 8,480
<CURRENT-LIABILITIES> 3,045
<BONDS> 1,541
0
0
<COMMON> 116
<OTHER-SE> 2,156
<TOTAL-LIABILITY-AND-EQUITY> 8,480
<SALES> 18,484
<TOTAL-REVENUES> 18,484
<CGS> 16,589
<TOTAL-COSTS> 16,589
<OTHER-EXPENSES> 1,160
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (75)
<INCOME-PRETAX> 527
<INCOME-TAX> 220
<INCOME-CONTINUING> 307
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 307
<EPS-PRIMARY> 1.13
<EPS-DILUTED> 1.10
</TABLE>
<PAGE> 1
EXHIBIT 99.01
The Private Securities Litigation Reform Act of 1995 (the "Act") provides a
"safe harbor" for "forward-looking statements" (as defined in the Act). The
Company's Form 10-K, the Company's Annual Report to Shareholders, any Form 10-Q
or any Form 8-K of the Company, or any other written or oral statements made by
or on behalf of the Company may include or incorporate by reference
forward-looking statements which reflect the Company's current view (as of the
date such forward-looking statement is made) with respect to future events,
prospects, projections or financial performance. These forward-looking
statements are subject to certain uncertainties and other factors that could
cause actual results to differ materially from those made, implied or projected
in such statements. These uncertainties and other factors include, but are not
limited to:
- - uncertainties relating to general economic conditions;
- - the loss of one or more key customer or supplier relationships, such as
pharmaceutical and medical/surgical manufacturers for which alternative
supplies may not be available;
- - the malfunction or failure of our information systems or those of third
parties with whom we do business, such as malfunctions or failures
associated with Year 2000 readiness problems;
- - the costs and difficulties related to the integration of recently acquired
businesses;
- - changes to the presentation of financial results and position resulting
from adoption of new accounting principles or upon the advice of our
independent auditors or the staff of the SEC;
- - changes in the distribution or outsourcing pattern for pharmaceutical and
medical/surgical products and services, including an increase in direct
distribution or a decrease in contract packaging by pharmaceutical
manufacturers;
- - changes in government regulations or our failure to comply with those
regulations;
- - the costs and other effects of legal and administrative proceedings;
- - injury to person or property resulting from our manufacturing, packaging,
repackaging, drug delivery system development and manufacturing, or
pharmacy management services;
- - competitive factors in our healthcare service businesses, including
pricing pressures;
- - unforeseen changes in our existing agency and distribution arrangements;
- - the continued financial viability and success of our customers, suppliers,
and franchisees;
- - technological developments and products offered by competitors;
- - failure to retain or continue to attract senior management or key
personnel;
- - risks associated with international operations, including fluctuations in
currency exchange ratios and implementation of the Euro currency;
- - successful challenges to the validity of our patents, copyrights or
trademarks;
- - difficulties or delays in the development, production, manufacturing, and
marketing of new products and services;
- - strikes or other labor disruptions;
- - labor and employee benefit costs;
- - pharmaceutical and medical/surgical manufacturers' pricing policies and
overall drug price inflation;
- - changes in hospital buying groups or hospital buying practices; and
- - other factors described in this Form 10-Q or the documents we file with
the SEC.
The words "believe", "expect", "anticipate", "project", and similar expressions
identify "forward-looking statements", which speak only as of the date the
statement was made. The Company undertakes no obligation to publicly update or
revise any forward-looking statements, whether as a result of new information,
future events or otherwise.
