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Title: |
Five Year Credit Agreement |
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Entities: |
ABN AMRO Bank N.V.; BNY Capital Markets, Inc.; CVS Corp.; First Union National Bank; J.C. Penney Co., Inc.; McGraw-Hill Companies Inc.; National City Bank; PNC Bank, NA; Sumitomo Mitsui Banking Corp.; Union Bank of California, NA; Wachovia Bank, NA; Wachovia Securities Inc.; Bank of America, NA; Bank of New York; Keybank NA |
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Date: |
2004 |
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Size: |
Preview shows 30KB of 284KB total |
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Price: |
$74 |
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ID: |
#315476 |
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FIVE YEAR CREDIT AGREEMENT
by and among
CVS CORPORATION,
THE LENDERS PARTY HERETO,
BANK OF AMERICA, N.A., CREDIT SUISSE FIRST BOSTON, and
WACHOVIA SECURITIES, INC.,
as Co-Syndication Agents,
ABN AMRO BANK N.V.,
as Documentation Agent,
and
THE BANK OF NEW YORK,
as Administrative Agent
-----------------------------
Dated as of June 11, 2004
-----------------------------
BNY CAPITAL MARKETS, INC.
as Lead Arranger and Book Runner
{Page}
TABLE OF CONTENTS
{Table}
{S} {C}
1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION....................................................1
1.1 Definitions...........................................................................1
1.2 Principles of Construction...........................................................17
2. AMOUNT AND TERMS OF LOANS....................................................................17
2.1 Revolving Credit Loans...............................................................17
2.2 Swing Line Loans.....................................................................18
2.3 Notice of Borrowing Revolving Credit Loans and Swing Line Loans......................20
2.4 Competitive Bid Loans and Procedure..................................................21
2.5 Use of Proceeds......................................................................23
2.6 Termination or Reduction of Commitments..............................................23
2.7 Prepayments of Loans.................................................................24
2.8 Letter of Credit Sub-facility........................................................24
2.9 Letter of Credit Participation.......................................................25
2.10 Absolute Obligation with respect to Letter of Credit Payments........................26
2.11 Notes................................................................................27
3. PROCEEDS, PAYMENTS, CONVERSIONS, INTEREST, YIELD PROTECTION AND FEES.........................27
3.1 Disbursement of the Proceeds of the Loans............................................27
3.2 Payments.............................................................................28
3.3 Conversions; Other Matters...........................................................28
3.4 Interest Rates and Payment Dates.....................................................30
3.5 Indemnification for Loss.............................................................31
3.6 Reimbursement for Costs, Etc.........................................................32
3.7 Illegality of Funding................................................................33
3.8 Option to Fund; Substituted Interest Rate............................................33
3.9 Certificates of Payment and Reimbursement............................................34
3.10 Taxes; Net Payments..................................................................35
3.11 Fees.................................................................................36
3.12 Letter of Credit Participation Fee...................................................36
3.13 Replacement of Lender................................................................37
4. REPRESENTATIONS AND WARRANTIES...............................................................37
4.1 Existence and Power..................................................................38
4.2 Authority............................................................................38
4.3 Binding Agreement....................................................................38
4.4 Litigation...........................................................................38
4.5 No Conflicting Agreements............................................................39
{/Table}
ii
{Page}
{Table}
{S} {C}
4.6 Taxes................................................................................39
4.7 Compliance with Applicable Laws; Filings.............................................39
4.8 Governmental Regulations.............................................................40
4.9 Federal Reserve Regulations; Use of Proceeds.........................................40
4.10 No Misrepresentation.................................................................40
4.11 Plans................................................................................40
4.12 Environmental Matters................................................................41
4.13 Financial Statements.................................................................41
5. CONDITIONS OF LENDING - FIRST LOANS AND LETTERS OF CREDIT ON THE FIRST BORROWING DATE........42
5.1 Evidence of Corporate Action.........................................................42
5.2 Notes................................................................................42
5.3 Opinion of Counsel to the Borrower...................................................42
6. CONDITIONS OF LENDING - ALL LOANS AND LETTERS OF CREDIT......................................43
6.1 Compliance...........................................................................43
6.2 Requests.............................................................................43
6.3 Loan Closings........................................................................43
7. AFFIRMATIVE COVENANTS........................................................................43
7.1 Legal Existence......................................................................43
7.2 Taxes................................................................................44
7.3 Insurance............................................................................44
7.4 Performance of Obligations...........................................................44
7.5 Condition of Property................................................................44
7.6 Observance of Legal Requirements.....................................................44
7.7 Financial Statements and Other Information...........................................45
7.8 Records..............................................................................46
7.9 Authorizations.......................................................................46
7.10 Existing Five Year Credit Agreement..................................................46
8. NEGATIVE COVENANTS...........................................................................46
8.1 Subsidiary Indebtedness..............................................................47
8.2 Liens................................................................................47
8.3 Dispositions.........................................................................48
8.4 Merger or Consolidation, Etc.........................................................48
8.5 Acquisitions.........................................................................48
8.6 Restricted Payments..................................................................48
8.7 Limitation on Upstream Dividends by Subsidiaries.....................................48
8.8 Limitation on Negative Pledges.......................................................49
8.9 Ratio of Consolidated Indebtedness to Total Capitalization...........................49
{/Table}
iii
{Page}
{Table}
{S} {C}
9. DEFAULT......................................................................................50
9.1 Events of Default....................................................................50
9.2 Remedies.............................................................................52
10. AGENT........................................................................................53
10.1 Appointment..........................................................................53
10.2 Delegation of Duties.................................................................53
10.3 Exculpatory Provisions...............................................................53
10.4 Reliance by Administrative Agent.....................................................54
10.5 Notice of Default....................................................................54
10.6 Non-Reliance.........................................................................55
10.7 [Intentionally Omitted]..............................................................55
10.8 Administrative Agent in Its Individual Capacity......................................55
10.9 Successor Administrative Agent.......................................................55
10.10 Co-Syndication Agents and Documentation Agent........................................56
11. OTHER PROVISIONS.............................................................................56
11.1 Amendments, Waivers, Etc.............................................................56
11.2 Notices..............................................................................57
11.3 No Waiver; Cumulative Remedies.......................................................59
11.4 Survival of Representations and Warranties...........................................59
11.5 Payment of Expenses and Taxes; Indemnified Liabilities...............................59
11.6 Lending Offices......................................................................60
11.7 Successors and Assigns...............................................................60
11.8 Counterparts.........................................................................63
11.9 Set-off and Sharing of Payments......................................................63
11.10 Indemnity............................................................................64
11.11 Governing Law........................................................................65
11.12 Severability.........................................................................65
11.13 Integration..........................................................................66
11.14 Treatment of Certain Information.....................................................66
11.15 Acknowledgments......................................................................67
11.16 Consent to Jurisdiction..............................................................67
11.17 Service of Process...................................................................67
11.18 No Limitation on Service or Suit.....................................................67
11.19 WAIVER OF TRIAL BY JURY..............................................................68
11.20 Effective Date.......................................................................68
{/Table}
iv
{Page}
{Table}
{S} {C}
EXHIBITS
Exhibit A List of Commitments
Exhibit B Form of Note
Exhibit C Form of Borrowing Request
Exhibit D-1 Form of Opinion of Counsel to the Borrower
Exhibit D-2 Form of Opinion of Special Counsel to the Borrower
Exhibit E Form of Assignment and Acceptance Agreement
Exhibit F Form of Competitive Bid Request
Exhibit G Form of Invitation to Bid
Exhibit H Form of Competitive Bid
Exhibit I Form of Competitive Bid Accept/Reject Letter
Exhibit J Form of Letter of Credit Request
{/Table}
v
{Page}
FIVE YEAR CREDIT AGREEMENT, dated as of June 11, 2004, by and among
CVS CORPORATION, a Delaware corporation (the "BORROWER"), the Lenders party
hereto from time to time (each a "LENDER" and, collectively, the "LENDERS"),
BANK OF AMERICA, N.A., CREDIT SUISSE FIRST BOSTON, and WACHOVIA SECURITIES,
INC., as co-syndication agents (in such capacity, each a "CO-SYNDICATION
AGENT"), ABN AMRO BANK N.V., as documentation agent (in such capacity, a
"DOCUMENTATION AGENT"), and THE BANK OF NEW YORK ("BNY"), as administrative
agent for the Lenders (in such capacity, the "ADMINISTRATIVE AGENT").
1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION
1.1 Definitions
When used in any Loan Document (as defined below), each of the
following terms shall have the meaning ascribed thereto unless the context
otherwise specifically requires:
"ABR ADVANCES": the Revolving Credit Loans (or any portions thereof) at
such time as they (or such portions) are made or are being maintained at a rate
of interest based upon the Alternate Base Rate.
"ACCUMULATED FUNDING DEFICIENCY": as defined in Section 302 of ERISA.
"ACQUISITION": with respect to any Person, the purchase or other
acquisition by such Person, by any means whatsoever (including by devise,
bequest, gift, through a dividend or otherwise), of (a) stock of, or other
equity securities of, any other Person if, immediately thereafter, such other
Person would be either a consolidated subsidiary of such Person or otherwise
under the control of such Person, (b) any business, going concern or division or
segment thereof, or (c) the Property of any other Person other than in the
ordinary course of business, PROVIDED that (i) no acquisition of substantially
all of the assets, or any division or segment, of such other Person shall be
deemed to be in the ordinary course of business and (ii) no redemption,
retirement, purchase or acquisition by any Person of the stock or other equity
securities of such Person shall be deemed to constitute an Acquisition.
"ADMINISTRATIVE AGENT": as defined in the preamble.
"ADMINISTRATIVE QUESTIONNAIRE": an Administrative Questionnaire in a form
supplied by the Administrative Agent.
"AFFECTED ADVANCE": as defined in Section 3.8(b).
"AFFILIATE": with respect to any Person at any time and from time to time,
any other Person (other than a wholly-owned subsidiary of such Person) which, at
such time (a) controls such Person, (b) is controlled by such Person or (c) is
under common control with such Person. The term "control", as used in this
definition with respect to any Person, means the power, whether direct or
indirect through one or more intermediaries, to direct or cause the direction of
the management and policies of such Person, whether through the ownership of
voting securities or other interests, by contract or otherwise.
{Page}
"AGGREGATE COMMITMENT AMOUNT": at any time, the sum of the Commitment
Amounts of the Lenders at such time under this Agreement.
"AGGREGATE CREDIT EXPOSURE": at any time, the sum at such time of (a) the
aggregate Committed Credit Exposure of the Lenders at such time under this
Agreement and (b) the aggregate outstanding principal balance of all Competitive
Bid Loans at such time under this Agreement.
"AGREEMENT": this Credit Agreement, as the same may be amended,
supplemented or otherwise modified from time to time.
"ALTERNATE BASE RATE": for any day, a rate per annum equal to the greater
of (a) the BNY Rate in effect on such day, or (b) 0.50% plus the Federal Funds
Effective Rate (rounded, if necessary, to the nearest l/100th of 1% or, if there
is no nearest 1/100 of 1%, then to the next higher 1/100 of 1%) in effect on
such day.
"APPLICABLE MARGIN": (i) with respect to the unpaid principal balance of
ABR Advances, the applicable percentage set forth below in the column entitled
"ABR Advances", (ii) with respect to the unpaid principal balance of Eurodollar
Advances, the applicable percentage set forth below in the column entitled
"Eurodollar Advances", (iii) with respect to the Facility Fee, the applicable
percentage set forth below in the column entitled "Facility Fee", (iv) with
respect to the Letter of Credit Participation Fee, the applicable percentage set
forth below in the column entitled "Participation Fee", and (v) with respect to
the Utilization Fee, the applicable percentage set forth below in the column
entitled "Utilization Fee", in each case opposite the applicable Pricing Level:
{Table}
{Caption}
ABR EURODOLLAR FACILITY PARTICIPATION UTILIZATION
PRICING LEVEL ADVANCES ADVANCES FEE FEE FEE
------------------------------------------------------------------------------------------------------------------
{S} {C} {C} {C} {C} {C}
Pricing Level I 0% 0.130% 0.070% 0.130% 0.050%
Pricing Level II 0% 0.170% 0.080% 0.170% 0.050%
Pricing Level III 0% 0.215% 0.085% 0.215% 0.050%
Pricing Level IV 0% 0.275% 0.100% 0.275% 0.050%
Pricing Level V 0% 0.325% 0.125% 0.325% 0.100%
Pricing Level VI 0% 0.400% 0.150% 0.400% 0.100%
Pricing Level VII 0% 0.4625% 0.1875% 0.4625% 0.100%
{/Table}
Decreases in the Applicable Margin resulting from a change in Pricing Level
shall become effective upon the delivery by the Borrower to the Administrative
Agent of a notice pursuant to Section 7.7(d). Increases in the Applicable Margin
resulting from a change in Pricing Level shall
2
{Page}
become effective on the effective date of any downgrade or withdrawal in the
rating by Moody's or S&P of the senior unsecured long term debt rating of the
Borrower.
"APPROVED FUND": with respect to any Lender that is a fund that invests in
commercial loans, any other fund that invests in commercial loans and is managed
or advised by the same investment advisor as such Lender or by an Affiliate of
such investment advisor.
"ASSIGNMENT AND ACCEPTANCE AGREEMENT": an assignment and acceptance
agreement executed by an assignor and an assignee pursuant to which, subject to
the terms and conditions hereof and thereof, the assignor assigns to the
assignee all or any portion of such assignor's Loans, Notes and Commitment,
substantially in the form of Exhibit E.
"BENEFITED LENDER": as defined in Section 11.9(b).
"BNY": as defined in the preamble.
"BNY RATE": a rate of interest per annum equal to the rate of interest
publicly announced in New York City by BNY from time to time as its prime
commercial lending rate, such rate to be adjusted automatically (without notice)
on the effective date of any change in such publicly announced rate.
"BORROWER": as defined in the preamble.
"BORROWING DATE": (i) in respect of Revolving Credit Loans, any Domestic
Business Day or Eurodollar Business Day, as the case may be, on which the
Lenders shall make Revolving Credit Loans pursuant to a Borrowing Request or
pursuant to a Mandatory Borrowing, (ii) in respect of Competitive Bid Loans, any
Domestic Business Day on which a Lender shall make a Competitive Bid Loan
pursuant to a Competitive Bid Request, (iii) in respect of Swing Line Loans, any
Domestic Business Day on which the Swing Line Lender shall make a Swing Line
Loan pursuant to a Borrowing Request and (iv) in respect of Letters of Credit,
any Domestic Business Day on which the Issuer shall issue a Letter of Credit
pursuant to a Letter of Credit Request.
"BORROWING REQUEST": a request for Revolving Credit Loans or Swing Line
Loans in the form of Exhibit C.
"BRIDGE FACILITY CREDIT AGREEMENT": the Bridge Facility Credit Agreement,
dated as of June 11, 2004, by and among the Borrower, the lenders party thereto,
Bank of America, N.A., Credit Suisse First Boston, and Wachovia Securities,
Inc., as co-syndication agents, and BNY, as administrative agent, as the same
may be amended, supplemented or otherwise modified from time to time.
"CHANGE OF CONTROL": any of the following:
(i) any Person or group (as such term is used in Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended), (a) shall have or acquire
beneficial ownership of securities having 30% or more of the ordinary voting
power of the Borrower or (b) shall possess, directly or
3
{Page}
indirectly, the power to direct or cause the direction of the management and
policies of the Borrower, whether through the ownership of voting securities, by
contract or otherwise; or
(ii) the Continuing Directors shall cease for any reason to constitute a
majority of the board of directors of the Borrower then in office.
"COMMITMENT": in respect of any Lender, such Lender's undertaking to make
Revolving Credit Loans, subject to the terms and conditions hereof, in an
aggregate outstanding principal amount not to exceed the Commitment Amount of
such Lender.
"COMMITMENT AMOUNT": at any time and with respect to any Lender, the amount
set forth adjacent to such Lender's name under the heading "Commitment Amount"
in Exhibit A at such time or, in the event that such Lender is not listed on
Exhibit A, the "Commitment Amount" which such Lender shall have assumed from
another Lender in accordance with Section 11.7 on or prior to such time, as the
same may be adjusted from time to time pursuant to Sections 2.6 and 11.7(c).
"COMMITMENT PERCENTAGE": at any time and with respect to any Lender, a
fraction the numerator of which is such Lender's Commitment Amount at such time,
and the denominator of which is the Aggregate Commitment Amount at such time.
"COMMITMENT PERIOD": the period commencing on the Effective Date and ending
on the Commitment Termination Date, or on such earlier date as all of the
Commitments shall have been terminated in accordance with the terms hereof.
"COMMITMENT TERMINATION DATE": the earlier of June 11, 2009 and the date on
which the Loans shall become due and payable, whether by acceleration, notice of
intention to prepay or otherwise.
"COMMITTED CREDIT EXPOSURE": with respect to any Lender at any time, the
sum at such time of (a) the outstanding principal balance of such Lender's
Revolving Credit Loans, (b) the Swing Line exposure of such Lender and (c) the
Letter of Credit Exposure of such Lender.
"COMPENSATORY INTEREST PAYMENT": as defined in Section 3.4(c).
"COMPETITIVE BID": an offer by a Lender, in the form of Exhibit H, to make
one or more Competitive Bid Loans.
"COMPETITIVE BID ACCEPT/REJECT LETTER": a notification made by the Borrower
pursuant to Section 2.4(d) in the form of Exhibit I.
"COMPETITIVE BID LOAN": as defined in Section 2.4(a).
"COMPETITIVE BID RATE": as to any Competitive Bid made by a Lender pursuant
to Section 2.4(b), the fixed rate of interest (which shall be expressed in the
form of a decimal to no more than four decimal places) offered by such Lender
and accepted by the Borrower.
4
{Page}
"COMPETITIVE BID REQUEST": a request by the Borrower, in the form of
Exhibit F, for Competitive Bids.
"COMPETITIVE INTEREST PERIOD": as to any Competitive Bid Loan, the period
commencing on the date of such Competitive Bid Loan and ending on the date
requested in the Competitive Bid Request with respect thereto, which shall not
be earlier than 3 days after the date of such Competitive Bid Loan or later than
180 days after the date of such Competitive Bid Loan, PROVIDED that if any
Competitive Interest Period would end on a day other than a Domestic Business
Day, such Interest Period shall be extended to the next succeeding Domestic
Business Day, unless such next succeeding Domestic Business Day would be a date
on or after the Commitment Termination Date, in which case such Competitive
Interest Period shall end on the next preceding Domestic Business Day. Interest
shall accrue from and including the first day of a Competitive Interest Period
to but excluding the last day of such Competitive Interest Period.
"CONSOLIDATED": the Borrower and the Subsidiaries on a consolidated basis
in accordance with GAAP.
"CONTINGENT OBLIGATION": as to any Person (the "secondary obligor"), any
obligation of such secondary obligor (a) guaranteeing or in effect guaranteeing
any return on any investment made by another Person, or (b) guaranteeing or in
effect guaranteeing any Indebtedness, lease, dividend or other obligation
("primary obligation") of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, including any obligation of such
secondary obligor, whether or not contingent, (i) to purchase any such primary
obligation or any Property constituting direct or indirect security therefor,
(ii) to advance or supply funds (A) for the purchase or payment of any such
primary obligation or (B) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase Property, securities or services primarily
for the purpose of assuring the beneficiary of any such primary obligation of
the ability of the primary obligor to make payment of such primary obligation,
(iv) otherwise to assure or hold harmless the beneficiary of such primary
obligation against loss in respect thereof, and (v) in respect of the
Indebtedness of any partnership in which such secondary obligor is a general
partner, except to the extent that such Indebtedness of such partnership is
nonrecourse to such secondary obligor and its separate Property, PROVIDED that
the term "Contingent Obligation" shall not include the indorsement of
instruments for deposit or collection in the ordinary course of business.
"CONTINUING DIRECTOR": any member of the board of directors of the Borrower
who (i) is a member of that board of directors on the Effective Date or (ii) was
nominated for election by the board of directors a majority of whom were
directors on the Effective Date or whose election or nomination for election was
previously approved by one or more of such directors.
"CONTROL PERSON": as defined in Section 3.6.
"CONVERT", "CONVERSION" and "CONVERTED": each, a reference to a conversion
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