Exhibit 10.4
Published CUSIP Number:
------------
AMENDED AND RESTATED CREDIT AGREEMENT
among
QUEST DIAGNOSTICS INCORPORATED
as Borrower,
AND
CERTAIN SUBSIDIARIES OF THE BORROWER
as Guarantors,
AND
THE LENDERS IDENTIFIED HEREIN,
AND
BANK OF AMERICA, N.A.,
as Administrative Agent
AND
WACHOVIA BANK, NATIONAL ASSOCIATION
as Syndication Agent
AND
BANK ONE, NA,
PNC BANK, NATIONAL ASSOCIATION
AND
KEYBANK NATIONAL ASSOCIATION
As Co-Documentation Agents
DATED AS OF APRIL 20, 0000
XXXX XX XXXXXXX SECURITIES LLC
and
WACHOVIA CAPITAL MARKETS, LLC
as Co-Book Managers and Co-Lead Arrangers
TABLE OF CONTENTS
SECTION 1 DEFINITIONS AND ACCOUNTING TERMS...................................1
1.1 Definitions........................................................1
1.2 Other Interpretive Provisions.....................................24
1.3 Accounting Terms/Calculation of Financial Covenants...............25
1.4 Time..............................................................25
1.5 Rounding..........................................................25
1.6 References to Agreements and Laws.................................26
1.7 Letter of Credit Amounts..........................................26
SECTION 2 CREDIT FACILITIES.................................................26
2.1 Revolving Loans...................................................26
2.2 Letter of Credit Subfacility......................................28
2.3 Swing Line Loans Subfacility......................................34
2.4 Competitive Bid Loans Subfacility.................................35
2.5 Continuations and Conversions.....................................38
2.6 Minimum Amounts...................................................38
SECTION 3 GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF CREDIT......39
3.1 Interest..........................................................39
3.2 Place and Manner of Payments......................................39
3.3 Prepayments.......................................................40
3.4 Fees..............................................................41
3.5 Payment in full at Maturity.......................................42
3.6 Computations of Interest and Fees.................................42
3.7 Pro Rata Treatment................................................43
3.8 Sharing of Payments...............................................44
3.9 Capital Adequacy/Regulation D.....................................45
3.10 Inability To Determine Interest Rate..............................45
3.11 Illegality........................................................45
3.12 Requirements of Law...............................................46
3.13 Taxes.............................................................46
3.14 Compensation......................................................50
3.15 Determination and Survival of Provisions..........................50
3.16 Notification by Lenders...........................................50
3.17 Mitigation; Mandatory Assignment..................................51
SECTION 4 GUARANTY..........................................................51
4.1 Guaranty of Payment...............................................51
4.2 Obligations Unconditional.........................................52
4.3 Modifications.....................................................52
4.4 Waiver of Rights..................................................53
4.5 Reinstatement.....................................................53
4.6 Remedies..........................................................53
4.7 Limitation of Guaranty............................................54
4.8 Rights of Contribution............................................54
4.9 Release of Guarantors.............................................54
i
SECTION 5 CONDITIONS PRECEDENT..............................................54
5.1 Closing Conditions................................................54
5.2 Conditions to All Extensions of Credit............................56
SECTION 6 REPRESENTATIONS AND WARRANTIES....................................57
6.1 Organization and Good Standing....................................57
6.2 Due Authorization.................................................57
6.3 Enforceable Obligations...........................................57
6.4 No Conflicts......................................................58
6.5 Consents..........................................................58
6.6 Financial Condition...............................................58
6.7 No Material Change................................................59
6.8 Disclosure........................................................59
6.9 No Default........................................................59
6.10 Litigation........................................................59
6.11 Taxes.............................................................59
6.12 Compliance with Law...............................................59
6.13 Licensing and Accreditation.......................................60
6.14 Title to Properties, Liens........................................60
6.15 Insurance.........................................................61
6.16 Use of Proceeds...................................................61
6.17 Government Regulation.............................................61
6.18 ERISA.............................................................61
6.19 Environmental Matters.............................................62
6.20 Intellectual Property.............................................64
6.21 Subsidiaries......................................................64
6.22 Solvency..........................................................64
SECTION 7 AFFIRMATIVE COVENANTS.............................................64
7.1 Information Covenants.............................................64
7.2 Financial Covenants...............................................68
7.3 Preservation of Existence and Franchises..........................68
7.4 Books and Records.................................................69
7.5 Compliance with Law...............................................69
7.6 Payment of Taxes and Other Indebtedness...........................69
7.7 Insurance.........................................................70
7.8 Maintenance of Property...........................................70
7.9 Performance of Obligations........................................70
7.10 Use of Proceeds...................................................70
7.11 Audits/Inspections................................................70
7.12 Additional Credit Parties.........................................71
7.13 Compliance Program................................................71
7.14 Existing Term Credit Agreement....................................72
SECTION 8 NEGATIVE COVENANTS................................................72
8.1 Indebtedness......................................................72
8.2 Liens.............................................................73
8.3 Nature of Business................................................73
8.4 Consolidation and Merger..........................................73
ii
8.5 Sale or Lease of Assets...........................................74
8.6 Investments.......................................................74
8.7 Transactions with Affiliates......................................74
8.8 Fiscal Year; Accounting; Organizational Documents.................75
8.9 Stock Repurchases.................................................75
8.10 Sale/Leasebacks...................................................75
SECTION 9 EVENTS OF DEFAULT.................................................76
9.1 Events of Default.................................................76
9.2 Acceleration; Remedies............................................78
9.3 Allocation of Payments After Event of Default.....................79
SECTION 10 AGENCY PROVISIONS.................................................80
10.1 Appointment.......................................................80
10.2 Delegation of Duties..............................................81
10.3 Exculpatory Provisions............................................81
10.4 Reliance on Communications........................................82
10.5 Notice of Default.................................................83
10.6 Non-Reliance on Administrative Agent and Other Lenders............83
10.7 Indemnification...................................................83
10.8 Administrative Agent in Its Individual Capacity...................84
10.9 Successor Agent...................................................84
10.10. Agent May File Proofs of Claim....................................85
SECTION 11 MISCELLANEOUS.....................................................86
11.1 Notices, Etc......................................................86
11.2 Right of Set-Off..................................................87
11.3 Benefit of Agreement..............................................88
11.4 No Waiver; Remedies Cumulative....................................91
11.5 Payment of Expenses; Indemnification..............................91
11.6 Amendments, Waivers and Consents..................................93
11.7 Counterparts......................................................94
11.8 Headings..........................................................94
11.9 Defaulting Lender.................................................94
11.10 Survival of Indemnification.......................................94
11.11 Governing Law; Venue; Jurisdiction................................94
11.12 Waiver of Jury Trial; Waiver of Consequential Damages.............95
11.13 Severability......................................................95
11.14 Further Assurances................................................95
11.15 Confidentiality...................................................95
11.16 Entirety..........................................................96
11.17 Binding Effect; Continuing Agreement..............................96
11.18. USA Patriot Act Notice............................................97
iii
SCHEDULES
Schedule 1.1(a) Commitment Percentages/Lending Offices
Schedule 2.2(c) Existing Letters of Credit
Schedule 6.7 Material Changes
Schedule 6.10 Litigation
Schedule 6.21 Subsidiaries
Schedule 8.1 Indebtedness
Schedule 8.2 Liens
Schedule 8.6 Investments
Schedule 8.7 Affiliate Transactions
Schedule 11.1 Notices
EXHIBITS
Exhibit 2.1(b) Form of Notice of Borrowing
Exhibit 2.1(e) Form of Revolving Note
Exhibit 2.3(b) Form of Swing Line Loan Request
Exhibit 2.3(d) Form of Swing Line Note
Exhibit 2.4(b) Form of Competitive Bid Request
Exhibit 2.4(g) Form of Competitive Bid Loan Note
Exhibit 2.5 Form of Notice of Continuation/Conversion
Exhibit 7.1(c) Form of Officer's Certificate
Exhibit 7.12 Form of Joinder Agreement
Exhibit 11.3(b) Form of Assignment and Assumption
iv
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT (this "Credit Agreement"), is
entered into as of April 20, 2004 among QUEST DIAGNOSTICS INCORPORATED, a
Delaware corporation (the "Borrower"), certain of the Subsidiaries of the
Borrower (individually a "Guarantor" and collectively the "Guarantors"), the
Lenders (as defined herein), and BANK OF AMERICA, N.A., as Administrative Agent
for the Lenders and as Issuing Lender.
RECITALS
WHEREAS, the Borrower, the Guarantors, the lenders party thereto and Bank
of America, N.A., as administrative agent and issuing lender entered into that
certain Credit Agreement dated as of June 27, 2001 (as previously amended or
modified, the "Existing Revolving Credit Agreement";
WHEREAS, the Borrower has requested that the parties thereto amend and
restate the terms of the Existing Revolving Credit Agreement;
WHEREAS, certain existing lenders will no longer be a party to the amended
and restated credit facility and certain new lenders will become a party to the
amended and restated credit facility; and
WHEREAS, the parties hereto have agreed to amend and restate the terms of
the Existing Revolving Credit Agreement as set forth herein.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS AND ACCOUNTING TERMS
1.1 Definitions.
As used herein, the following terms shall have the meanings herein
specified unless the context otherwise requires. Defined terms herein shall
include in the singular number the plural and in the plural the singular:
"Acquisition" means the acquisition by any Person of (a) more than 50%
of the Capital Stock of another Person, (b) all or substantially all of the
assets of another Person or (c) all or substantially all of a line of
business of another Person, in each case whether or not involving a merger
or consolidation with such other Person.
"Additional Credit Party" means each Person that becomes a Guarantor
after the Closing Date, as provided in Section 7.12 or otherwise.
"Adjusted Eurodollar Rate" means the Eurodollar Rate plus the
Applicable Percentage.
"Administrative Agent" means Bank of America, N.A. (or any successor
thereto) or any successor administrative agent appointed pursuant to
Section 10.9.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling (including but not limited to all
directors and officers of such Person), controlled by or under direct or
indirect common control with such Person. A Person shall be deemed to
control a corporation if such Person possesses, directly or indirectly, the
power (a) to vote 10% or more of the securities having ordinary voting
power for the election of directors of such corporation or (b) to direct or
cause direction of the management and policies of such corporation, whether
through the ownership of voting securities, by contract or otherwise.
"Agency Services Address" means Bank of America, N.A., NC1-001-15-04,
000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attn: Agency
Services, Attn: Credit Services, or such other address as may be identified
by written notice from the Administrative Agent to the Borrower.
"Agent-Related Person" means the Administrative Agent (including any
successor administrative agent), together with its Affiliates (including,
in the case of Bank of America in its capacity as the Administrative Agent,
BAS), and their respective officers, directors, employees, agents, counsel
and attorneys-in-fact.
"Agents" means Bank of America N.A., in its capacity as Administrative
Agent, Wachovia Bank, National Association in its capacity as Syndication
Agent, Bank One, NA in its capacity as Co-Documentation Agent, PNC Bank,
National Association in its capacity as Co-Documentation Agent, and KeyBank
National Association in its capacity as Co-Documentation Agent.
2
"Applicable Percentage" means the appropriate applicable percentages
corresponding to the Debt Rating of the Borrower in effect from time to
time as described below:
==========================================================================================================================
Applicable
Applicable Applicable Percentage for
Percentage for Percentage for Commercial Applicable
Pricing Revolving Loans that Standby Letter of Letter of Percentage for
Level Debt Rating are Eurodollar Loans Credit Fees Credit Fees Facility Fee
---------------------------------------------------------------------------------------------------------------------------
I >=A- from S&P/ .275% .275% .1325% .100%
>=A3 from Moody's
--------------------------------------------------------------------------------------------------------------------------
II >=BBB+ but < A-from S&P/ .375% .375% .1875% .125%
>=Baa1 but < A3 from Moody's
--------------------------------------------------------------------------------------------------------------------------
III >=BBB but < BBB+ from S&P/ .475% .475% .2375% .150%
>=Baa2 but < Baa1 from Moody's
--------------------------------------------------------------------------------------------------------------------------
IV >=BBB- but < BBB from S&P/ .575% .575% .2875% .175%
>=Baa3 but < Baa2 from Moody's
--------------------------------------------------------------------------------------------------------------------------
V >=BB+ but < BBB- from S&P/ 1.00% 1.00% .5000% .250%
>=Ba1 but < Baa3 from Moody's
--------------------------------------------------------------------------------------------------------------------------
VI < BB+ or unrated by S&P/ 1.20% 1.20% .6000% .300%
< Ba1 or unrated by Moody's
==========================================================================================================================
The Applicable Percentage for Eurodollar Loans, the Letter of Credit Fees
and the Facility Fees shall, in each case, be determined and adjusted on
the date (each a "Calculation Date") one Business Day after the date on
which the Borrower's Debt Rating is upgraded or downgraded in a manner
which requires a change in the then applicable Pricing Level set forth
above. If at any time there is a split in the Borrower's Debt Ratings
between S&P and Moody's, the Applicable Percentages shall be determined by
the higher of the two Debt Ratings (i.e. the lower pricing); provided that
if the two Debt Ratings are more than one level apart, the Applicable
Percentage shall be based on the Debt Rating which is one level higher than
the lower rating. Each Applicable Percentage shall be effective from one
Calculation Date until the next Calculation Date. Any adjustment in the
Applicable Percentage shall be applicable to all existing Eurodollar Loans
and Letters of Credit as well as any new Eurodollar Loans made or Letters
of Credit issued.
"Approved Fund" means any Fund that is administered or managed by (a)
a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of
an entity that administers or manages a Lender.
"Assignment and Assumption" means an Assignment and Assumption
substantially in the form of Exhibit 11.3(b).
"Attorney Costs" means all reasonable fees and disbursements of any
law firm or other external counsel and the reasonable allocated cost of
internal legal services and all disbursements of internal counsel.
"Attributable Debt" means, with respect to a Sale and Leaseback
Transaction, an amount equal to the lesser of: (a) the fair market value
of the Principal Property (as determined in good faith by the Borrower's
board of directors); and (b) the present value of the total net amount of
rent payments to be made under the lease during its remaining
3
term, discounted at the rate of interest set forth or implicit in the terms
of the lease, compounded semi-annually.
"Authorized Officer" means any of the chief executive officer,
president, chief financial officer, corporate controller, treasurer or
assistant treasurer of the Borrower.
"Bank of America" means Bank of America, N.A. or any successor
thereto.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the United
States Code, as amended, modified, succeeded or replaced from time to time.
"BAS" means Banc of America Securities LLC.
"Base Rate" means, for any day, the rate per annum equal to the
greater of (a) the Federal Funds Rate in effect on such day plus 1/2 of 1%
or (b) the Prime Rate in effect on such day. If for any reason the
Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable after due inquiry to
ascertain the Federal Funds Rate for any reason, including the inability or
failure of the Administrative Agent to obtain sufficient quotations in
accordance with the terms hereof, the Base Rate shall be determined without
regard to clause (a) of the first sentence of this definition until the
circumstances giving rise to such inability no longer exist. Any change in
the Base Rate due to a change in the Prime Rate or the Federal Funds Rate
shall be effective at the opening of business on the day specified in the
public announcement of such change.
"Base Rate Loan" means any Revolving Loan bearing interest at a rate
determined by reference to the Base Rate.
"Borrower" means Quest Diagnostics Incorporated, a Delaware
corporation, together with any successors and permitted assigns.
"Business Day" means any day other than a Saturday, a Sunday, a legal
holiday or a day on which banking institutions are authorized or required
by law or other governmental action to close in Xxx Xxxx, Xxx Xxxx xx
Xxxxxxxxx, Xxxxx Xxxxxxxx; provided that in the case of Eurodollar Loans,
such day is also a day on which dealings between banks are carried on in
U.S. dollar deposits in the London interbank market.
"Calculation Date" has the meaning set forth in the definition of
Applicable Percentage.
"CAP" means the College of American Pathologists.
"Capital Expenditures" means all expenditures of the Borrower and its
Subsidiaries on a consolidated basis which, in accordance with GAAP, would
be classified as capital expenditures, including, without limitation,
Capital Leases which would be so classified in accordance with GAAP.
4
"Capital Lease" means, as applied to any Person, any lease of any
Property (whether real, personal or mixed) by that Person as lessee which,
in accordance with GAAP, is or should be accounted for as a capital lease
on the balance sheet of that Person and the amount of such obligation shall
be the capitalized amount thereof determined in accordance with GAAP.
"Capital Stock" means (a) in the case of a corporation, all classes of
capital stock of such corporation, (b) in the case of a partnership,
partnership interests (whether general or limited), (c) in the case of a
limited liability company, membership interests and (d) any other interest
or participation that confers on a Person the right to receive a share of
the profits and losses of, or distributions of assets of, the issuing
Person.
"Cash Equivalents" means (a) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof having maturities of not more than eighteen months
from the date of acquisition, (b) Dollar denominated time and demand
deposits, certificates of deposit and banker's acceptances of (i) any
Lender, (ii) any domestic commercial bank having capital and surplus in
excess of $500,000,000 or (iii) any bank whose short-term commercial paper
rating from S&P is at least A-1 or the equivalent thereof or from Xxxxx'x
is at least P-1 or the equivalent thereof (any such bank being an "Approved
Bank"), in each case with maturities of not more than 270 days from the
date of acquisition, (c) commercial paper and variable or fixed rate notes
issued by any Approved Bank (or by the parent company thereof) or any
variable rate notes issued by, or guaranteed by, any domestic corporation
rated A-1 (or the equivalent thereof) or better by S&P or P-1 (or the
equivalent thereof) or better by Moody's and maturing within six months of
the date of acquisition, (d) repurchase agreements with a bank or trust
company (including any of the Lenders) or recognized securities dealer
having capital and surplus in excess of $500,000,000 for direct obligations
issued by or fully guaranteed by the United States of America in which the
Borrower shall have a perfected first priority security interest (subject
to no other Liens) and having, on the date of purchase thereof, a fair
market value of at least 100% of the amount of the repurchase obligations,
(e) Investments in tax-exempt municipal bonds rated A (or the equivalent
thereof) or better by S&P or MIG2 (or the equivalent thereof) or better by
Moody's, (f) auction rate securities rated AA or better by S&P or Moody's,
in either case with a reset of no longer than 90 days and (g) Investments,
classified in accordance with GAAP as current assets, in money market
investment programs registered under the Investment Company Act of 1940, as
amended, which are administered by reputable financial institutions having
capital of at least $500,000,000 and the portfolios of which are limited to
Investments of the character described in the foregoing subdivisions (a)
through (f).
"Cash Interest Expenses" means all Interest Expense actually paid in
cash by the Borrower and its Subsidiaries.
"CHAMPUS" means the United States Department of Defense Civilian
Health and Medical Program of the United States or any successor thereto
including, without limitation, TRICARE.
5
"Change of Control" means either of the following events:
(a) any "person" or "group" (within the meaning of Section 13(d)
or 14(d) of the Exchange Act) has become, directly or indirectly, the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act), by way of merger, consolidation or otherwise of 35% or
more of the Voting Stock of the Borrower on a fully-diluted basis,
after giving effect to the conversion and exercise of all outstanding
warrants, options and other securities of the Borrower convertible
into or exercisable for Voting Stock of the Borrower (whether or not
such securities are then currently convertible or exercisable); or
(b) during any period of twelve calendar months, individuals who
at the beginning of such period constituted the board of directors of
the Borrower together with any new members of such board of directors
whose elections by such board or board of directors or whose
nomination for election by the stockholders of the Borrower was
approved by a vote of a majority of the members of such board of
directors then still in office who either were directors at the
beginning of such period or whose election or nomination for election
was previously so approved cease for any reason to constitute a
majority of the directors of the Borrower then in office.
"CLIA" means the Clinical Laboratory Improvement Act as set forth at
42 U.S.C. 263a and the regulations promulgated thereunder, as amended.
"Closing Date" means the date hereof.
"CMS" means the Centers for Medicare and Medicaid Services of HHS, any
successor thereof and any predecessor thereof, including HCFA.
"Code" means the Internal Revenue Code of 1986 and the rules and
regulations promulgated thereunder, as amended, modified, succeeded or
replaced from time to time.
"Commitments" means (a) the commitment of each Lender with respect to
the Revolving Committed Amount, (b) the commitment of the Issuing Lender
with respect to the LOC Commitment and (c) the commitment of the Swing Line
Lender with respect to the Swing Line Committed Amount.
"Competitive Bid" means an offer by a Lender to make a Competitive Bid
Loan pursuant to the terms of Section 2.4.
"Competitive Bid Loan" means a loan made by a Lender in its discretion
pursuant to the provisions of Section 2.4.
"Competitive Bid Loan Notes" means the promissory notes of the
Borrower in favor of each Lender evidencing the Competitive Bid Loans
provided pursuant to
6
Section 2.4, individually or collectively, as appropriate, as such
promissory notes may be amended, modified, supplemented or replaced from
time to time and as evidenced in the form of Exhibit 2.4(g).
"Competitive Bid Fee" means $1,000 for each Competitive Bid Request.
"Competitive Bid Rate" means, as to any Competitive Bid made by a
Lender in accordance with the provisions of Section 2.4, the rate of
interest offered by the Lender making the Competitive Bid.
"Competitive Bid Request" means a request by the Borrower for
Competitive Bids in the form of Exhibit 2.4(b).
"Credit Documents" means this Credit Agreement, the Notes, any Joinder
Agreement, the LOC Documents, any Notice of Borrowing, any Competitive Bid
Request and any Swing Line Loan Request.
"Credit Exposure" has the meaning set forth in the definition of
Required Lenders in this Section 1.1.
"Credit Parties" means the Borrower and the Guarantors and "Credit
Party" means any one of them.
"Credit Party Obligations" means, without duplication, all of the
obligations of the Credit Parties to the Lenders (including the Issuing
Lender and the Swing Line Lender) and the Administrative Agent, whenever
arising, under this Credit Agreement, the Notes, or any of the other Credit
Documents.
"Debt Rating" means the long-term senior unsecured, non-credit
enhanced debt rating of the Borrower from S&P and Xxxxx'x.
"Default" means any event, act or condition which with notice or lapse
of time, or both, would constitute an Event of Default.
"Defaulting Lender" means, at any time, any Lender that, (a) has
failed to make a Loan or purchase a Participation Interest required
pursuant to the terms of this Credit Agreement (but only for so long as
such Loan is not made or such Participation Interest is not purchased), (b)
has failed to pay to the Administrative Agent or any Lender an amount owed
by such Lender pursuant to the terms of this Credit Agreement (but only for
so long as such amount has not been repaid) or (c) has been deemed
insolvent or has become subject to a bankruptcy or insolvency proceeding or
to a receiver, trustee or similar official.
"Dividends" means any payment of dividends or any other distribution
upon any shares of any class of Capital Stock of the Borrower.
"Dollars" and "$" means dollars in lawful currency of the United
States of America.
7
"Domestic Subsidiary" means each direct and indirect Subsidiary of the
Borrower that is domiciled or organized under the laws of any State of the
United States or the District of Columbia.
"EBITDA" means, for any period, with respect to the Borrower and its
Subsidiaries on a consolidated basis, (a) Net Income for such period
(excluding the effect of any extraordinary or other non-recurring gains and
losses (including any gain or loss from the sale of Property)) plus (b) an
amount which, in the determination of Net Income for such period, has been
deducted for (i) Interest Expense for such period, (ii) total Federal,
state, foreign or other income or franchise taxes for such period, (iii)
all depreciation and amortization for such period, (iv) other items of
expense during such period that do not involve a cash payment at any time
(other than the provision for bad debt in connection with uncollectible
accounts receivable), (v) cash charges during such period for which the
Borrower and its Subsidiaries are reimbursed by a third party during such
period and (vi) special or restructuring items during any such period
included in Net Income that do not involve a cash payment during such
period (collectively, "Non-Cash Items") minus (c) any actual cash payments
during the applicable period related to Non-Cash Items expensed or reserved
under clauses (v) and (vi) above plus (d) Tender Costs during such period.
"Effective Date" means the date on which the conditions set forth in
Section 5.1 shall have been fulfilled (or waived in the sole discretion of
the Lenders) and on which the initial Loans shall have been made and/or the
initial Letters of Credit shall have been issued.
"Eligible Assets" means any assets or any business (or any substantial
part thereof) used or useful in the same or a similar line of business as
the Borrower and its Subsidiaries are engaged on the Closing Date or other
healthcare-related businesses or businesses reasonably related thereto.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender;
(c) an Approved Fund and (d) any other Person approved by the
Administrative Agent, the Issuing Lender and the Borrower (such approval
not to be unreasonably withheld or delayed); provided that (i) the
Borrower's consent is not required during the existence and continuation of
a Default or an Event of Default, (ii) approval by the Borrower shall be
deemed given if no objection is received by the assigning Lender and the
Administrative Agent from the Borrower within five Business Days after
notice of such proposed assignment has been delivered to the Borrower;
(iii) neither the Borrower nor an Affiliate of the Borrower shall qualify
as an Eligible Assignee; and (iv) no competitor of the Borrower shall
qualify as an Eligible Assignee.
"Environmental Laws" means any current or future legally enforceable
requirement of any Governmental Authority pertaining to (a) the protection
of the indoor or outdoor environment, (b) the conservation, management, or
use of natural resources and wildlife, (c) the protection or use of surface
water and groundwater or (d) the management, manufacture, possession,
presence, use, generation, transportation, treatment, storage, disposal,
release,
8
threatened release, abatement, removal, remediation or handling of, or
exposure to, any hazardous or toxic substance or material or (e) pollution
(including any release to land surface water and groundwater) and includes,
without limitation, the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, 42 USC 9601 et seq., Solid Waste Disposal Act,
as amended by the Resource Conservation and Recovery Act of 1976 and
Hazardous and Solid Waste Amendments of 1984, 42 USC 6901 et seq., Federal
Water Pollution Control Act, as amended by the Clean Water Act of 1977, 33
USC 1251 et seq., Clean Air Act of 1966, as amended, 42 USC 7401 et seq.,
Toxic Substances Control Act of 1976, 15 USC 2601 et seq., Hazardous
Materials Transportation Act, 49 USC App. 1801 et seq., Occupational Safety
and Health Act of 1970, as amended, 29 USC 651 et seq., Oil Pollution Act
of 1990, 33 USC 2701 et seq., Emergency Planning and Community
Right-to-Know Act of 1986, 42 USC 11001 et seq., National Environmental
Policy Act of 1969, 42 USC 4321 et seq., Safe Drinking Water Act of 1974,
as amended, 42 USC 300(f) et seq., any analogous implementing or successor
law, and any amendment, rule, regulation, order, or directive issued
thereunder.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute thereto, as interpreted by the rules and
regulations thereunder, all as the same may be in effect from time to time.
References to sections of ERISA shall be construed also to refer to any
successor sections.
"ERISA Affiliate" means an entity, whether or not incorporated, which
is treated as a single employer with the Borrower or any Subsidiary of the
Borrower under Sections 414(b) or (c) of the Code and solely for purposes
of Section 412 of the Code under Section 414(m) of the Code.
"ERISA Event" means (a) with respect to any Single Employer or
Multiple Employer Plan, the occurrence of a Reportable Event or the
substantial cessation of operations (within the meaning of Section 4062(e)
of ERISA); (b) the withdrawal of the Borrower, any Subsidiary of the
Borrower or any ERISA Affiliate from a Multiple Employer Plan during a plan
year in which it was a substantial employer (as such term is defined in
Section 4001(a)(2) of ERISA), or the termination of a Multiple Employer
Plan; (c) the distribution of a notice of intent to terminate or the actual
termination of a Plan pursuant to Section 4041(a)(2) or 4041A of ERISA; (d)
the institution of proceedings to terminate or the actual termination of
any Plan by the PBGC under Section 4042 of ERISA; (e) any event or
condition which might constitute grounds under Section 4042 of ERISA for
the termination of, or the appointment of a trustee to administer, any
Plan; (f) the complete or partial withdrawal of the Borrower, any
Subsidiary of the Borrower or any ERISA Affiliate from a Multiemployer Plan
or notification that a Multiemployer Plan is in reorganization; (g) the
conditions for imposition of a lien under Section 302(f) of ERISA exist
with respect to any Plan; or (h) the adoption of an amendment to any Plan
requiring the provision of security to such Plan pursuant to Section 307 of
ERISA.
"Eurodollar Loan" means a Loan bearing interest based at a rate
determined by reference to the Eurodollar Rate.
9
"Eurodollar Rate" means, for the Interest Period for each Eurodollar
Loan comprising part of the same borrowing (including conversions,
extensions and renewals), a per annum interest rate equal to the London
Interbank Offered Rate.
"Eurodollar Reserve Percentage" means, with respect to each Lender,
the percentage (expressed as a decimal) applicable to such Lender which is
in effect from time to time under Regulation D as the reserve requirement
(including, without limitation, any basic, supplemental, emergency,
special, or marginal reserves) applicable with respect to its Eurocurrency
liabilities, as that term is defined in Regulation D (or against any other
category of liabilities that includes deposits by reference to which the
interest rate of Eurodollar Loans is determined). Eurodollar Loans made by
a Lender shall be deemed to constitute Eurocurrency liabilities and as such
shall be deemed subject to reserve requirements, if applicable, without
benefits of credits for proration, exceptions or offsets that may be
available from time to time to such Lender.
"Event of Default" means any of the events or circumstances specified
in Section 9.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder, as amended, modified,
succeeded or replaced from time to time.
"Existing Letters of Credit" means the letters of credit described on
Schedule 2.2(c).
"Existing Revolving Credit Agreement" has the meaning set forth in the
Recitals.
"Existing Term Credit Agreement" means that certain Term Loan Credit
Agreement, dated as of June 21, 2002, among the Borrower, the Guarantors,
the lenders party thereto and Bank of America, N.A., as administrative
agent and issuing lender.
"Extension of Credit" means, as to any Lender, the making of a Loan by
such Lender (or a participation therein by a Lender) or the issuance of, or
participation in, a Letter of Credit by such Lender.
"Facility Fees" means the fees payable to the Lenders pursuant to
Section 3.4(a).
"Federal Funds Rate" means for any day the 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 on
such day, as published by the Federal Reserve Bank of New York on the
Business Day next succeeding such day; provided that (a) if such day is not
a Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day as so published on the
next succeeding Business Day and (b) if no such rate is so published on
such next preceding Business Day, the Federal Funds Rate for such day shall
be the average rate (rounded
10
upward, if necessary, to a whole multiple of 1/100 of 1%) charged to the
Administrative Agent on such day on such transactions as determined by the
Administrative Agent.
"Fee Letters" means (a) that certain letter agreement dated as of
April 2, 2004 among the Borrower, BAS, and Bank of America and (b) that
certain letter agreement, dated as of April 2, 2004, among the Borrower,
Wachovia Capital Markets, LLC and Wachovia Bank, National Association.
"Foreign Subsidiary" means any Subsidiary of the Borrower that is not
a Domestic Subsidiary.
"Fund" means any Person (other than a natural person) that is (or will
be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of
its business.
"Funded Debt" means, without duplication, the sum of (a) all
Indebtedness of the Borrower and its Subsidiaries for borrowed money, (b)
all purchase money Indebtedness of the Borrower and its Subsidiaries, (c)
the principal portion of all obligations of the Borrower and its
Subsidiaries under Capital Leases, (d) all drawn but unreimbursed amounts
under all letters of credit (other than letters of credit supporting trade
payables in the ordinary course of business) issued for the account of the
Borrower or any of its Subsidiaries, (e) all Funded Debt of another Person
secured by a Lien on any Property of the Borrower and its Subsidiaries
whether or not such Funded Debt has been assumed by a Borrower or any of
its Subsidiaries, (f) all Funded Debt of any partnership or unincorporated
joint venture to the extent the Borrower or one of its Subsidiaries is
legally obligated with respect thereto and (g) the amount of principal
attributable under any outstanding Synthetic Lease. It is understood and
agreed that Indebtedness incurred pursuant to Hedging Agreements is not
Funded Debt.
"GAAP" means generally accepted accounting principles in the United
States applied on a consistent basis and subject to Section 1.3.
"Governmental Authority" means any Federal, state, local, provincial
or foreign court or governmental agency, authority, instrumentality or
regulatory body.
"Guarantor" means each of the Material Domestic Subsidiaries of the
Borrower, any other Subsidiary of the Borrower that guaranties any Pari
Passu Debt and each Additional Credit Party, together with their successors
and assigns.
"Guaranty" means the guaranty of the Credit Party Obligations provided
by the Guarantors pursuant to Section 4.
"Guaranty Obligations" means, with respect to any Person, without
duplication, any obligations (other than endorsements in the ordinary
course of business of negotiable instruments for deposit or collection)
guaranteeing any Indebtedness of any other Person in any manner, whether
direct or indirect, and including without limitation any obligation,
11
whether or not contingent, (a) to purchase any such Indebtedness or other
obligation or any Property constituting security therefor, (b) to advance
or provide funds or other support for the payment or purchase of such
Indebtedness or obligation or to maintain working capital, solvency or
other balance sheet condition of such other Person (including, without
limitation, maintenance agreements, comfort letters, take or pay
arrangements, put agreements or similar agreements or arrangements) for the
benefit of the holder of Indebtedness of such other Person, (c) to lease or
purchase Property, securities or services primarily for the purpose of
assuring the owner of such Indebtedness or (d) to otherwise assure or hold
harmless the owner of such Indebtedness or obligation against loss in
respect thereof. The amount of any Guaranty Obligation hereunder shall
(subject to any limitations set forth therein) be deemed to be an amount
equal to the outstanding principal amount (or maximum principal amount, if
larger) of the Indebtedness in respect of which such Guaranty Obligation is
made.
"Hazardous Materials" means any substance, material or waste defined
in or regulated under any Environmental Laws.
"HCFA" means the United States Health Care Financing Administration
and any successor thereto, including CMS.
"Hedging Agreements" means, collectively, interest rate protection
agreements, foreign currency exchange agreements, commodity purchase or
option agreements or other interest or exchange rate or commodity price
hedging agreements, in each case, entered into or purchased by a Credit
Party.
"HHS" means the United States Department of Health and Human Services
and any successor thereof.
"HIPAA" means the Health Insurance Portability and Accountability Act
of 1996, Pub. L. 104-191, Aug. 21, 1996, 110 Stat. 1936.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, or
upon which interest payments are customarily made, (c) all obligations of
such Person under conditional sale or other title retention agreements
relating to Property purchased by such Person to the extent of the value of
such Property (other than customary reservations or retentions of title
under agreements with suppliers entered into in the ordinary course of
business), (d) all obligations, other than intercompany items, of such
Person issued or assumed as the deferred purchase price of property or
services purchased by such Person which would appear as liabilities on a
balance sheet of such Person, (e) all Indebtedness of others secured by (or
for which the holder of such Indebtedness has an existing right, contingent
or otherwise, to be secured by) any Lien on, or payable out of the proceeds
of production from, property owned or acquired by such Person, whether or
not the obligations secured thereby have been assumed, (f) all Guaranty
Obligations of such Person, (g) the principal portion of all obligations of
such Person under (i) Capital Leases and (ii) any synthetic lease, tax
retention operating lease,
12
off-balance sheet loan or similar off-balance sheet financing product of
such Person where such transaction is considered borrowed money
indebtedness for tax purposes but is classified as an operating lease in
accordance with GAAP, (h) all obligations of such Person to repurchase any
securities which repurchase obligation is related to the issuance thereof,
including, without limitation, obligations commonly known as residual
equity appreciation potential shares, (i) all net obligations of such
Person in respect of Hedging Agreements, (j) the maximum amount of all
performance and standby letters of credit issued or bankers' acceptances
facilities created for the account of such Person and, without duplication,
all drafts drawn thereunder (to the extent unreimbursed), and (k) the
aggregate amount of uncollected accounts receivable of such Person subject
at such time to a sale of receivables (or similar transaction) regardless
of whether such transaction is effected without recourse to such Person or
in a manner that would not be reflected on the balance sheet of such Person
in accordance with GAAP. The Indebtedness of any Person shall include the
Indebtedness of any partnership or unincorporated joint venture in which
such Person is legally obligated.
"Indemnified Liabilities" has the meaning set forth in Section 11.5.
"Intellectual Property" has the meaning set forth in Section 6.20.
"Interest Coverage Ratio" means, as of the last day of each fiscal
quarter, the ratio of (a) EBITDA for the twelve month period ending on such
date to (b) Cash Interest Expense for the twelve month period ending on
such date.
"Interest Expense" means, for any period, with respect to the Borrower
and its Subsidiaries on a consolidated basis, all interest expense,
including, without duplication, the interest component under Capital
Leases, as determined in accordance with GAAP.
"Interest Payment Date" means (a) as to Base Rate Loans and Swing Line
Loans, the last day of each calendar quarter and the Maturity Date, (b) as
to Eurodollar Loans, the last day of each applicable Interest Period and
the Maturity Date and in addition, where the applicable Interest Period for
a Eurodollar Loan is greater than three months, then also the date three
months from the beginning of the Interest Period and each three months
thereafter and (c) as to Competitive Bid Loans, on the last day of the
Interest Period for each Competitive Bid Loan and on the Maturity Date. If
an Interest Payment Date falls on a date which is not a Business Day, such
Interest Payment Date shall be deemed to be the next succeeding Business
Day, except that in the case of Eurodollar Loans where the next succeeding
Business Day falls in the next succeeding calendar month, then on the next
preceding Business Day.
"Interest Period" means (a) as to Eurodollar Loans, a period of one,
two, three or six months' duration, as the Borrower may elect, commencing,
in each case, on the date of the borrowing (including continuations and
conversions thereof) and (b) as to Competitive Bid Loans, a period
beginning on the date the Competitive Bid Loan is made and ending on the
date specified in the respective Competitive Bid whereby the offer to make
the Competitive Loan was extended, which shall not be less than 14 days nor
more than 180 days duration; provided, however, (i) if any Interest Period
would end on a day which is not a Business
13
Day, such Interest Period shall be extended to the next succeeding Business
Day (except that where the next succeeding Business Day falls in the next
succeeding calendar month, then on the next preceding Business Day), (ii)
no Interest Period shall extend beyond the Maturity Date and (iii) where an
Interest Period begins on a day for which there is no numerically
corresponding day in the calendar month in which the Interest Period is to
end, such Interest Period shall end on the last Business Day of such
calendar month.
"Investment" in any Person means (a) the acquisition (whether for
cash, property, services, assumption of Indebtedness, securities or
otherwise) of assets, shares of Capital Stock, bonds, notes, debentures,
partnership, joint ventures or other ownership interests or other
securities of such other Person or (b) any deposit with, or advance, loan
or other extension of credit to, such Person (other than deposits or
advances made in connection with the purchase of equipment or other assets
or services in the ordinary course of business) or (c) any other capital
contribution to or investment in such Person, including, without
limitation, any Guaranty Obligation (including any support for a letter of
credit issued on behalf of such Person) incurred for the benefit of such
Person.
"Issuing Lender" means Bank of America.
"Issuing Lender Fees" has the meaning set forth in Section 3.4(b)(ii).
"Joinder Agreement" means a Joinder Agreement substantially in the
form of Exhibit 7.12.
"Lender" means any of the Persons identified as a "Lender" on the
signature pages hereto, and any Eligible Assignee which may become a Lender
by way of assignment in accordance with the terms hereof, together with
their successors and permitted assigns.
"Lending Office" means, as to any Lender, the office or offices of
such Lender described as such on Schedule 1.1(a), or such other office or
offices as a Lender may from time notify to the Borrower and the
Administrative Agent.
"Letter of Credit" means any letter of credit issued for the account
of the Borrower by the Issuing Lender pursuant to Section 2.2, as such
letter of credit may be amended, modified, extended, renewed or replaced.
"Letter of Credit Fees" has the meaning set forth in Section
3.4(b)(i).
"Leverage Ratio" means, as of the last day of each fiscal quarter, the
ratio of (a) Funded Debt on such date to (b) EBITDA for the twelve month
period ending on such date.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, security interest, encumbrance, lien (statutory or otherwise),
preference, priority or charge of any kind, including, without limitation,
any agreement to give any of
14
the foregoing, any conditional sale or other title retention agreement, and
any lease in the nature thereof (other than operating leases).
"Loan" or "Loans" means the Revolving Loans, the Competitive Bid Loans
and the Swing Line Loans (or any portion thereof), individually or
collectively, as appropriate.
"Loan Participant" has the meaning set forth in Section 11.3(d).
"LOC Commitment" means the commitment of the Issuing Lender to issue
Letters of Credit for the account of the Borrower in an aggregate face
amount outstanding (together with the amounts of any unreimbursed drawings
thereon) at any time of up to the LOC Committed Amount.
"LOC Committed Amount" means ONE HUNDRED TWENTY-FIVE MILLION DOLLARS
($125,000,000).
"LOC Documents" means, with respect to any Letter of Credit, such
Letter of Credit, any amendments thereto, any documents delivered in
connection therewith, any application therefor, and any agreements,
instruments, guarantees or other documents (whether general in application
or applicable only to such Letter of Credit) governing or providing for (a)
the rights and obligations of the parties concerned or at risk or (b) any
collateral security for such obligations.
"LOC Obligations" means, at any time, the sum of (a) the maximum
amount which is, or at any time thereafter may become, available to be
drawn under Letters of Credit then outstanding, assuming compliance with
all requirements for drawings referred to in such Letters of Credit plus
(b) the aggregate amount of all drawings under Letters of Credit honored by
the Issuing Lender but not theretofore reimbursed.
"London Interbank Offered Rate" means for any Interest Period with
respect to any Eurodollar Loan: (a) the rate per annum equal to the rate
determined by the Administrative Agent to be the offered rate that appears
on the page of the Telerate screen (or any successor thereto) that displays
an average British Bankers Association Interest Settlement Rate for
deposits in Dollars (for delivery on the first day of such Interest Period)
with a term equivalent to such Interest Period, determined as of
approximately 11:00 A.M. (London time) two Business Days prior to the first
day of such Interest Period, or (b) if the rate referenced in the preceding
clause (a) does not appear on such page or service or such page or service
shall cease to be available, the rate per annum equal to the rate
determined by the Administrative Agent to be the offered rate on such other
page or other service that displays an average British Bankers Association
Interest Settlement Rate for deposits in Dollars (for delivery on the first
day of such Interest Period) with a term equivalent to such Interest
Period, determined as of approximately 11:00 A.M. (London time) two
Business Days prior to the first day of such Interest Period, or (c) if the
rates referenced in the preceding clauses (a) and (b) are not available,
the rate per annum determined by the Administrative Agent as the rate of
interest at which deposits in Dollars for delivery on the first day of such
Interest Period in
15
same day funds in the approximate amount of the Eurodollar Loan being made,
continued or converted by Bank of America and with a term equivalent to
such Interest Period would be offered by Bank of America's London Branch to
major banks in the London interbank Eurodollar market at their request at
approximately 4:00 p.m. (London time) two Business Days prior to the first
day of such Interest Period.
"Mandatory Borrowing" has the meaning set forth in Section 2.2(e).
"Material Adverse Effect" means a material adverse effect on (a) the
business, operations or financial condition of the Borrower and its
Subsidiaries taken as a whole, (b) the ability of a Credit Party to perform
its obligations under this Credit Agreement or any of the other Credit
Documents, or (c) the validity or enforceability of this Credit Agreement,
any of the other Credit Documents, or the rights and remedies of the
Lenders hereunder or thereunder taken as a whole.
"Material Domestic Subsidiary" means any wholly-owned Domestic
Subsidiary of the Borrower that, directly or indirectly, (a) owns assets in
excess of $20,000,000 or (b) has annual revenues, as of the most recently
ended fiscal year of the Borrower, in excess of two percent (2%) of the
total revenues of the Borrower and its Subsidiaries on a consolidated
basis; provided that Quest Receivables shall not be deemed to be a Material
Domestic Subsidiary.
"Maturity Date" means April 20, 2009.
"Medicaid" shall mean that entitlement program under Title XIX of the
Social Security Act that provides federal grants to states for medical
assistance based on specific eligibility criteria.
"Medicaid Provider Agreement" means an agreement entered into between
a state agency or other such entity administering the Medicaid program and
a health care provider or supplier under which the health care provider or
supplier agrees to provide services for Medicaid patients in accordance
with the terms of the agreement and Medicaid Regulations.
"Medicaid Regulations" means, collectively, (a) all federal statutes
(whether set forth in Title XIX of the Social Security Act or elsewhere)
affecting Medicaid and any statutes succeeding thereto; (b) all applicable
provisions of all federal rules, regulations, manuals and orders and
administrative, reimbursement and other guidelines having the force of law
of all Governmental Authorities promulgated pursuant to or in connection
with the statutes described in clause (a) above; (c) all state statutes and
plans for medical assistance enacted in connection with the statutes and
provisions described in clauses (a) and (b) above; and (d) all applicable
provisions of all rules, regulations, manuals and orders and
administrative, reimbursement and other guidelines having the force of law
of all Governmental Authorities promulgated pursuant to or in connection
with the statutes described in clause (c) above and all state
administrative, reimbursement and other guidelines of all Governmental
Authorities having the force of law promulgated pursuant
16
to or in connection with the statutes described in clause (b) above, in
each case as may be amended, supplemented or otherwise modified from time
to time.
"Medical Reimbursement Programs" shall mean the Medicare, Medicaid,
CHAMPUS and TRICARE programs and any other healthcare program operated by
or financed in whole or in part by any foreign, domestic, federal, state or
local government and any other non-government funded third party payor
programs.
"Medicare Provider Agreement" means an agreement entered into between
CMS or other such entity administering the Medicare program on behalf of
CMS, and a health care provider or supplier under which the health care
provider or supplier agrees to provide services for Medicare patients in
accordance with the terms of the agreement and Medicare Regulations.
"Medicare" shall mean that government-sponsored entitlement program
under Title XVIII of the Social Security Act that provides for a health
insurance system for eligible elderly and disabled individuals.
"Medicare Regulations" shall mean, collectively, all federal statutes
(whether set forth in Title XVIII of the Social Security Act or elsewhere)
affecting the health insurance program for the aged and disabled
established by Title XVIII of the Social Security Act and any statutes
succeeding thereto; together with all applicable provisions of all rules,
regulations, manuals and orders and administrative, reimbursement and other
guidelines having the force of law of all Governmental Authorities
(including, without limitation, the HHS, CMS, the OIG, or any person
succeeding to the functions of any of the foregoing) promulgated pursuant
to or in connection with any of the foregoing having the force of law, as
each may be amended, supplemented or otherwise modified from time to time.
"Moody's" means Xxxxx'x Investors Service, Inc., or any successor or
assignee of the business of such company in the business of rating
securities.
"Multiemployer Plan" means a Plan which is a multiemployer plan as
defined in Sections 3(37) or 4001(a)(3) of ERISA.
"Multiple Employer Plan" means a Plan covered by Title IV of ERISA
(other than a Multiemployer Plan) in which the Borrower, any Subsidiary of
the Borrower or any ERISA Affiliate and at least one employer other than
the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate are
contributing sponsors.
"Net Income" means, for any period, the net income after taxes for
such period of the Borrower and its Subsidiaries on a consolidated basis,
as determined in accordance with GAAP.
"Non-Cash Items" has the meaning set forth in the definition of EBITDA
in Section 1.1.
17
"Non-Material Domestic Subsidiary" means any wholly-owned Domestic
Subsidiary that is not a Guarantor other than Quest Receivables.
"Note" or "Notes" means the Revolving Notes, the Competitive Bid Loan
Notes and the Swing Line Loan Note, individually or collectively, as
appropriate.
"Notice of Borrowing" means a request by the Borrower for a Loan, in
the form of Exhibit 2.1(b).
"Notice of Continuation/Conversion" means a request by the Borrower to
continue an existing Eurodollar Loan to a new Interest Period or to convert
a Eurodollar Loan to a Base Rate Loan or a Base Rate Loan to a Eurodollar
Loan, in the form of Exhibit 2.5.
"OIG" means the Office of Inspector General of HHS and any successor
thereof.
"Pari Passu Debt" means all unsecured indebtedness of the Borrower.
"Participants" means Lenders with a Revolving Loan Commitment
Percentage greater than zero.
"Participation Interest" means the Extension of Credit by a Lender by
way of a purchase of a participation in (a) Letters of Credit or LOC
Obligations as provided in Section 2.2, (b) Swing Line Loans as provided in
Section 2.3 or (c) any Loans as provided in Section 3.8.
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA and any successor thereto.
"Permitted Acquisition" means an Acquisition by the Borrower or any of
its Subsidiaries; provided that (a) substantially all of the Property
acquired (or the Property of the Person acquired) in such Acquisition
constitutes Eligible Assets (or goodwill associated therewith), (b) in the
case of an Acquisition of the Capital Stock of another Person, the board of
directors (or other comparable governing body) of such other Person or its
parent shall have duly approved such Acquisition, (c) on the date of such
Acquisition no Event of Default exists, (d) after giving effect to such
Acquisition, no Default or Event of Default shall exist, (e) if such
Acquisition involves the formation of a new Subsidiary of the Borrower,
such Subsidiary complies with Section 7.12 and (f) such Acquisition is
undertaken in accordance with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees and awards to which any party to such
Acquisition may be subject.
"Permitted Investments" means Investments which constitute the
following: (a) cash or Cash Equivalents, (b) trade accounts receivable
created, acquired or made in the ordinary course of business, (c)
inventory, raw materials, general intangibles and other current assets
acquired in the ordinary course of business, (d) Investments by the
Borrower or one of its
18
Subsidiaries in each other, (e) Permitted Acquisitions, (f) advances to
management personnel and employees in the ordinary course of business, (g)
Investments existing as of the Closing Date; provided that any such
Investment in excess of $2,000,000 is set forth on Schedule 8.6, (h)
Investments consisting of non-cash consideration received in the form of
securities, notes or similar obligations in connection with any conveyance,
sale, lease, assignment, transfer or other disposition of any Property by
the Borrower or one of its Subsidiaries to any Person, and which are
permitted hereunder, and (i) any other Investment as long as (i) on the
date of such Investment, no Event of Default exists and (ii) after giving
effect to such Investment no Default or Event of Default shall exist.
"Permitted Liens" means (a) Liens securing Credit Party Obligations,
if any, (b) Liens for taxes not yet due or Liens for taxes being contested
in good faith by appropriate proceedings for which adequate reserves
determined in accordance with GAAP have been established (and as to which
the Property subject to any such Lien is not yet subject to foreclosure,
sale, collection, levy or loss on account thereof), (c) Liens in respect of
Property imposed by law arising in the ordinary course of business such as
materialmen's, mechanics', warehousemen's, carrier's, landlords' and other
nonconsensual statutory Liens which are not yet due and payable or which
are being contested in good faith by appropriate proceedings for which
adequate reserves determined in accordance with GAAP have been established
(and as to which the Property subject to any such Lien is not yet subject
to foreclosure, sale or loss on account thereof), (d) Liens (other than
Liens imposed under ERISA) consisting of pledges or deposits made in the
ordinary course of business to secure payment of worker's compensation
insurance, unemployment insurance, pensions or social security programs,
(e) Liens arising from good faith deposits in connection with or to secure
performance of tenders, bids, leases, government contracts, performance and
return-of-money bonds and other similar obligations incurred in the
ordinary course of business (other than obligations in respect of the
payment of borrowed money), (f) Liens arising from good faith deposits in
connection with or to secure performance of statutory obligations and
surety and appeal bonds, (g) easements, rights-of-way, restrictions
(including zoning restrictions), matters of plat, minor defects or
irregularities in title and other similar charges or encumbrances not, in
any material respect, impairing the use of the encumbered Property for its
intended purposes, (h) judgment Liens that would not constitute an Event of
Default, (i) Liens in connection with Indebtedness permitted by Sections
8.1(d), (j) Liens arising by virtue of any statutory or common law
provision relating to banker's liens, rights of setoff or similar rights as
to deposit accounts or other funds maintained with a creditor depository
institution, (k) Liens existing on the date hereof and identified on
Schedule 8.2, (l) Liens upon Property acquired (or the Property of a
Subsidiary that is acquired) after the Effective Date by the Borrower or
its Subsidiaries, which Liens either (i) existed on such Property before
the time of such acquisition and was not created in anticipation thereof or
(ii) were created solely for the purpose of securing Indebtedness
representing, or incurred to finance or refinance, the cost of such
Property or improvements thereon; provided, however; that (A) no such Lien
shall extend to or cover any Property of any Credit Party other than the
Property so acquired and improvements thereon and proceeds thereof, (B) the
principal amount of Indebtedness secured by any such Lien shall at no time
exceed 100% of the fair market value of such Property at the time it was
acquired or constructed and (C) the Indebtedness secured by any such Lien
is permitted
19
hereunder; provided that (x) no such Lien shall extend to any Property
other than the Property subject thereto on the closing date of such
acquisition and (y) the principal amount of the Indebtedness secured by
such Liens shall not be increased, (m) Liens in connection with Permitted
Receivables Financing, (n) Liens with respect to lease filings for notice
purposes only, (o) Liens on purchase money Indebtedness incurred by the
Borrower in an amount not to exceed, in the aggregate, $100,000,000 less
Indebtedness incurred by Subsidiaries of the Borrower pursuant to Section
8.1(d), (p) Liens on Property of non-wholly owned Subsidiaries of the
Borrowers incurred to finance working capital and (q) renewals and
extensions of the foregoing so long as such Lien (i) does not cover any
additional Property, (ii) does not secure additional Indebtedness and (iii)
is not otherwise prohibited by this Credit Agreement.
"Permitted Receivables Financing" means any transaction entered into
pursuant to documentation reasonably acceptable to the Administrative Agent
in which (a) one or more Credit Parties sells, conveys or otherwise
transfers to Quest Receivables and (b) Quest Receivables sells, conveys or
otherwise transfers to any other Person or grants a security interest to
any Person in, any Receivables (whether now existing or hereafter acquired)
of a Credit Party, and any assets related thereto including all collateral
securing such Receivables, all contracts and all Guaranty Obligations or
other obligations in respect of such Receivables, all proceeds of such
Receivables and all other assets that are customarily transferred or in
respect of which security interests are customarily granted in connection
with asset securitization transactions involving Receivables.
"Person" means any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other
enterprise (whether or not incorporated), or any Governmental Authority.
"Plan" means any employee benefit plan (as defined in Section 3(3) of
ERISA) which is covered by ERISA and with respect to which the Borrower,
any Subsidiary of the Borrower or any ERISA Affiliate is (or, if such plan
were terminated at such time, would under Section 4069 of ERISA be deemed
to be) an "employer" within the meaning of Section 3(5) of ERISA.
"Prime Rate" means the per annum rate of interest established from
time to time by the Administrative Agent at its principal office in
Charlotte, North Carolina (or such other principal office of the
Administrative Agent as communicated in writing to the Borrower and the
Lenders) as its Prime Rate. Any change in the interest rate resulting from
a change in the Prime Rate shall become effective as of 12:01 a.m. of the
Business Day on which each change in the Prime Rate is announced by the
Administrative Agent. The Prime Rate is a reference rate used by the
Administrative Agent in determining interest rates on some loans which may
be priced at, above or below such announced rate and is not intended to be
the lowest rate of interest charged on any extension of credit to any
debtor.
"Principal Property" means any real property and any related
buildings, fixtures or other improvements located in the United States
owned by the Borrower or its Subsidiaries (a) on or in which one of its 30
largest domestic clinical laboratories conducts operations, as
20
determined by net revenues for the four most recent fiscal quarters for
which financial statements have been filed with the Securities and Exchange
Commission, or (b) the net book value of which at the time of the
determination exceeds 1% of Total Assets.
"Property" means any right, title or interest in or to any property or
asset of any kind whatsoever, whether real, personal or mixed and whether
tangible or intangible.
"Quest Receivables" means Quest Diagnostics Receivables Incorporated,
a Delaware corporation, a wholly-owned, bankruptcy-remote, special purpose
Subsidiary of the Borrower.
"Real Properties" has the meaning given thereto in Section 6.19.
"Receivable" means the indebtedness and payment obligations of any
Person to any Credit Party or acquired by any Credit Party (including
obligations constituting an account or general intangible or evidenced by a
note, instrument, contract, security agreement, chattel paper or other
evidence of indebtedness or security) arising from a sale of merchandise or
the provision of services in the ordinary course of business by such Credit
Party or the Person from which such indebtedness and payment obligation
were acquired by any Credit Party, including (a) any right to payment for
goods sold or for services rendered and (b) the right to payment of any
interest, sales taxes, finance charges, returned check or late charges and
other obligations of such Person with respect thereto.
"Regulation A, D, T, U or X" means Regulation A, D, T, U or X,
respectively, of the Board of Governors of the Federal Reserve System as
from time to time in effect and any successor to all or a portion thereof.
"Required Lenders" means Lenders whose aggregate Credit Exposure (as
hereinafter defined) constitutes more than 50% of the Credit Exposure of
all Lenders at such time; provided, however, that if any Lender shall be a
Defaulting Lender at such time then there shall be excluded from the
determination of Required Lenders the aggregate principal amount of Credit
Exposure of such Lender at such time. For purposes hereof, the term "Credit
Exposure" as applied to each Lender shall mean (a) at any time prior to the
termination of the Commitments, the sum of the Revolving Loan Commitment
Percentage of such Lender multiplied by the Revolving Committed Amount and
(b) at any time after the termination of the Commitments, the sum of (i)
the principal balance of the outstanding Loans of such Lender plus (ii)
such Lender's Participation Interests in the face amount of the outstanding
Letters of Credit and outstanding Swing Line Loans.
"Requirement of Law" means, as to any Person, the articles or
certificate of incorporation and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or regulation
or final, non-appealable determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such
Person or to which any of its material Property is subject.
21
"Reportable Event" means any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the notice
requirement has been waived by regulation or by the PBGC.
"Revolving Committed Amount" means FIVE HUNDRED MILLION DOLLARS
($500,000,000) or such lesser amount to which the Revolving Committed
Amount may be reduced pursuant to Section 2.1(d).
"Revolving Loan Commitment Percentage" means, for each Lender, the
percentage identified as its Revolving Loan Commitment Percentage on
Schedule 1.1(a), as such percentage may be modified in connection with any
assignment made in accordance with the provisions of Section 11.3.
"Revolving Loans" means the Revolving Loans made to the Borrower
pursuant to Section 2.1.
"Revolving Notes" means the promissory notes of the Borrower in favor
of each of the Lenders evidencing the Revolving Loans provided pursuant to
Section 2.1, individually or collectively, as appropriate, as such
promissory notes may be amended, modified, supplemented, extended, renewed
or replaced from time to time and as evidenced in the form of Exhibit
2.1(e).
"Sale and Leaseback Transaction" means any arrangement with any Person
providing for the leasing by the Borrower or one of its Subsidiaries of any
Principal Property that has been or is to be sold or transferred by the
Borrower or any Guarantor to such Person, as the case may be.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. or any successor or assignee of the business of
such division in the business of rating securities.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder, as amended, modified,
succeeded or replaced from time to time.
"Single Employer Plan" means any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan or a Multiple Employer Plan.
"Social Security Act" means the Social Security Act as set forth in
Title 42 of the United States Code, as amended, and any successor statute
thereto, as interpreted by the rules and regulations issued thereunder, in
each case as in effect from time to time. References to sections of the
Social Security Act shall be construed also to refer to any successor
sections.
"Solvent" means, with respect to any Person as of a particular date,
that on such date (a) such Person is able to pay its debts and other
liabilities, contingent obligations and other
22
commitments as they mature in the normal course of business, (b) such
Person does not intend to, and does not believe that it will, incur debts
or liabilities beyond such Person's ability to pay as such debts and
liabilities mature in their ordinary course, (c) such Person is not engaged
in a business or a transaction, and is not about to engage in a business or
a transaction, for which such Person's assets would constitute unreasonably
small capital after giving due consideration to the prevailing practice in
the industry in which such Person is engaged or is to engage, (d) the fair
value of the assets of such Person is greater than the total amount of
liabilities, including, without limitation, contingent liabilities, of such
Person and (e) the present fair saleable value of the assets of such Person
is not less than the amount that will be required to pay the probable
liability of such Person on its debts as they become absolute and matured.
In computing the amount of contingent liabilities at any time, it is
intended that such liabilities will be computed at the amount which, in
light of all the facts and circumstances existing at such time, represents
the amount that can reasonably be expected to become an actual or matured
liability reduced by the amount of any contribution or indemnity that can
reasonably be expected to be received.
"Stock Repurchase" has the meaning set forth in Section 8.9.
"Strategic Investment Portfolio" means all Investments in Persons in
which the Borrower and its Subsidiaries own less than 50% of the Voting
Stock of such Person.
"Subsidiary" means, as to any Person, (a) any corporation more than
50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time, any class or
classes of such corporation shall have or might have voting power by reason
of the happening of any contingency) is at the time owned by such Person
directly or indirectly through Subsidiaries, and (b) any partnership,
association, joint venture or other entity in which such person directly or
indirectly through Subsidiaries has more than a 50% equity interest at any
time.
"Swing Line Committed Amount" means FIFTY MILLION DOLLARS
($50,000,000).
"Swing Line Lender" means Bank of America.
"Swing Line Loans" means the loans made by the Swing Line Lender
pursuant to Section 2.3.
"Swing Line Loan Note" means the promissory note of the Borrower in
favor of the Swing Line Lender evidencing the Swing Line Loans provided
pursuant to Section 2.3, as such promissory note may be amended, modified,
supplemented, extended, renewed or replaced from time to time in and as
evidenced by the form of Exhibit 2.3(d).
"Swing Line Loan Request" means a request by the Borrower for a Swing
Line Loan in substantially the form of Exhibit 2.3(b).
23
"Synthetic Lease" means any synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet financing
product where such transaction is considered borrowed money indebtedness
for tax purposes but is classified as an operating lease in accordance with
GAAP.
"Tender Costs" means the costs incurred by the Borrower in connection
with any tender for outstanding indebtedness of the Borrower, and the
termination of the interest rate swap contracts related thereto in an
aggregate amount not to exceed $35,000,000 during the term of this Credit
Agreement.
"Total Assets" means all items that in accordance with GAAP would be
classified as assets of the Borrower and its Subsidiaries on a consolidated
basis.
"TRICARE" means the United States Department of Defense health care
program for service families including, but not limited to, TRICARE Prime,
TRICARE Extra and TRICARE Standard, and any successor to or predecessor
thereof (including, without limitation, CHAMPUS).
"Voting Stock" means all classes of the Capital Stock of such Person
then outstanding and normally entitled to vote in the election of directors
(or similar governing authority).
1.2 Other Interpretive Provisions.
With reference to this Credit Agreement and each other Credit Document,
unless otherwise specified herein or in such other Credit Document:
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) (i) The words "herein", "hereto", "hereof" and "hereunder" and
words of similar import when used in any Credit Document shall refer to
such Credit Document as a whole and not to any particular provisions
thereof.
(ii) Article, Section, Exhibit and Schedule references are to the
Credit Document in which such reference appears.
(iii) The term "including" is by way of example and not
limitation.
(iv) the term "documents" includes any and all instruments,
documents, agreements, certificates, notices, reports, financial
statements and other writings, however evidenced, whether in physical
or electronic form.
(c) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including"; the words
"to" and "until" each mean "to but excluding"; and the word "through" means
"to and including".
24
(d) Section headings herein and in the other Credit Documents are
included for convenience of reference only and shall not affect the
interpretation of this Credit Agreement or any other Credit Document.
1.3 Accounting Terms/Calculation of Financial Covenants.
(a) Except as otherwise expressly provided herein, all accounting
terms used herein shall be interpreted, and all financial statements and
certificates and reports as to financial matters required to be delivered
to the Lenders hereunder shall be prepared, in accordance with GAAP applied
on a consistent basis. All calculations made for the purposes of
determining compliance with this Credit Agreement shall (except as
otherwise expressly provided herein) be made by application of GAAP applied
on a basis consistent with the most recent annual or quarterly financial
statements delivered pursuant to Section 7.1 (or, prior to the delivery of
the first financial statements pursuant to Section 7.1, consistent with the
financial statements delivered to the Lenders prior to the Closing Date);
provided, however, if (a) the Borrower shall object to determining such
compliance on such basis at the time of delivery of such financial
statements due to any change in GAAP or the rules promulgated with respect
thereto or (b) the Administrative Agent or the Required Lenders shall so
object in writing within 30 days after delivery of such financial
statements, then such calculations shall be made on a basis consistent with
GAAP as in effect as of the date of the most recent financial statements
delivered by the Borrower to the Lenders to which no such objection shall
have been made.
(b) Notwithstanding anything herein to the contrary, for the purposes
of calculating the financial covenants set forth in Section 7.2, (i) income
statement items (positive or negative) attributable to any Person or
Property acquired in a Permitted Acquisition and Indebtedness incurred in
connection with such Permitted Acquisition shall, without duplication, be
treated as if such Person or Property was acquired or such Indebtedness
incurred as of the first day of the twelve month period ending as of the
most recently completely fiscal quarter of the Borrower and (ii) income
statement items (positive or negative) attributable to Property disposed of
in any asset sale permitted by Section 8.5(g) and Indebtedness retired in
connection with such sale shall, without duplication, be treated as if such
sale occurred as of the first day of the twelve month period ending as of
the most recently completed fiscal quarter of the Borrower.
1.4 Time.
All references to time herein shall be references to Eastern Standard Time
or Eastern Daylight time, as the case may be, unless specified otherwise.
1.5 Rounding.
Any financial ratios required to be maintained by the Borrower pursuant to
this Credit Agreement shall be calculated by dividing the appropriate component
by the other component,
25
carrying the result to one place more than the number of places by which such
ratio is expressed herein and rounding the result up or down to the nearest
number (with a rounding-up if there is no nearest number).
1.6 References to Agreements and Laws.
Unless otherwise expressly provided herein, (a) references to organization
documents, agreements (including the Credit Documents) and other contractual
instruments shall be deemed to include all subsequent amendments, restatements,
extensions, supplements and other modifications thereto, but only to the extent
that such amendments, restatements, extensions, supplements and other
modifications are not prohibited by any Credit Document and (b) references to
any law shall include all statutory and regulatory provisions (having the force
of law) consolidating, amending, replacing, supplementing or interpreting such
law.
1.7 Letter of Credit Amounts.
Unless otherwise specified, all references herein to the amount of a Letter
of Credit at any time shall be deemed to mean the maximum face amount of such
Letter of Credit after giving effect to all increases thereof contemplated by
such Letter of Credit or the LOC Documents related thereto, whether or not such
maximum face amount is in effect at such time.
SECTION 2
CREDIT FACILITIES
2.1 Revolving Loans.
(a) Loan Commitment. Subject to the terms and conditions set forth
herein, including but not limited to Section 5.2, each Lender severally
agrees to make revolving loans (each a "Revolving Loan" and collectively
the "Revolving Loans") to the Borrower, in Dollars, in an amount equal to
its Revolving Loan Commitment Percentage, if any, of such Revolving Loan,
at any time and from time to time, during the period from and including the
Effective Date to but not including the Maturity Date (or such earlier date
if the Commitments have been terminated as provided herein); provided,
however, that the sum of the aggregate amount of Revolving Loans
outstanding plus the aggregate amount of LOC Obligations outstanding plus
the aggregate amount of Competitive Bid Loans outstanding plus the
aggregate amount of Swing Line Loans outstanding shall not exceed the
Revolving Committed Amount. Subject to the terms of this Credit Agreement,
the Borrower may borrow, repay and reborrow Revolving Loans.
(b) Method of Borrowing for Revolving Loans. By no later than 11:00
a.m. (i) on the date of the requested borrowing of Revolving Loans that
will be Base Rate Loans or (ii) three Business Days prior to the date of
the requested borrowing of Revolving Loans that will be Eurodollar Loans,
the Borrower shall provide telephonic notice to the Administrative Agent,
followed promptly by a written Notice of Borrowing in the form of
26
Exhibit 2.1(b) (which may be submitted by telecopy), each of such
telephonic notice and such written Notice of Borrowing setting forth (A)
the amount requested, (B) whether such Revolving Loans shall accrue
interest at the Base Rate or the Adjusted Eurodollar Rate, (C) with respect
to Revolving Loans that will be Eurodollar Loans, the Interest Period
applicable thereto and (D) certification that the Borrower has complied in
all respects with Section 5.2.
(c) Funding of Loans. Upon receipt of a Notice of Borrowing, the
Administrative Agent shall promptly inform the Lenders as to the terms
thereof. Each Lender shall make its Revolving Loan Commitment Percentage of
the requested Revolving Loans available to the Administrative Agent by 1:00
p.m. on the date specified in the Notice of Borrowing by deposit, in
Dollars, of immediately available funds at the Agency Services Address. The
amount of the requested Revolving Loans will then be made available to the
Borrower by the Administrative Agent as directed by the Borrower, to the
extent the amount of such Revolving Loans are made available to the
Administrative Agent.
No Lender shall be responsible for the failure or delay by any other
Lender in its obligation to make Revolving Loans hereunder; provided,
however, that the failure of any Lender to fulfill its obligations
hereunder shall not relieve any other Lender of its obligations hereunder.
Unless the Administrative Agent shall have been notified by any Lender
prior to the date of any such Revolving Loan that such Lender does not
intend to make available to the Administrative Agent its portion of the
Revolving Loans to be made on such date, the Administrative Agent may
assume that such Lender has made such amount available to the
Administrative Agent on the date of such Revolving Loans, and the
Administrative Agent in reliance upon such assumption, may (in its sole
discretion but without any obligation to do so) make available to the
Borrower a corresponding amount. If such corresponding amount is not in
fact made available to the Administrative Agent, the Administrative Agent
shall be able to recover such corresponding amount from such Lender. If
such Lender does not pay such corresponding amount upon the Administrative
Agent's demand therefor, the Administrative Agent will promptly notify the
Borrower, and the Borrower shall immediately pay such corresponding amount
to the Administrative Agent. The Administrative Agent shall also be
entitled to recover from such Lender or the Borrower, as the case may be,
interest on such corresponding amount in respect of each day from the date
such corresponding amount was made available by the Administrative Agent to
the Borrower to the date such corresponding amount is recovered by the
Administrative Agent at a per annum rate equal to (i) from the Borrower at
the applicable rate for such Revolving Loan pursuant to the Notice of
Borrowing or (ii) from such Lender, at a rate per annum equal to, during
the period to but excluding the date two Business Days after demand
therefor, the Federal Funds Rate, and, thereafter, the Base Rate plus two
percent (2%) per annum.
(d) Reductions of Revolving Committed Amount. Upon at least three
Business Days' prior written notice, the Borrower shall have the right to
permanently reduce, without premium or penalty, all or part of the
aggregate unused amount of the Revolving Committed Amount at any time or
from time to time; provided that (i) each partial reduction shall be in an
aggregate amount at least equal to $10,000,000 and in integral multiples of
$1,000,000
27
above such amount and (ii) no reduction shall be made which would reduce
the Revolving Committed Amount to an amount less than the aggregate amount
of outstanding Revolving Loans plus the aggregate amount of outstanding LOC
Obligations plus the aggregate amount of outstanding Competitive Bid Loans
plus the aggregate amount of outstanding Swing Line Loans. Any reduction in
(or termination of) the Revolving Committed Amount pursuant to this Section
2.1(d) shall be permanent and may not be reinstated. The Administrative
Agent shall immediately notify the Lenders of any reduction in the
Revolving Committed Amount pursuant to this Section 2.1(d).
(e) Revolving Loan Notes. The Revolving Loans made by each Lender
shall be evidenced by a duly executed promissory note of the Borrower to
each Lender that requests a Revolving Loan Note in substantially the form
of Exhibit 2.1(e).
2.2 Letter of Credit Subfacility.
(a) Issuance. Subject to the terms and conditions hereof and of the
LOC Documents, if any, and any other terms and conditions which the Issuing
Lender may reasonably require (so long as such terms and conditions do not
impose any financial obligation on or require any Lien (not otherwise
contemplated by this Credit Agreement) to be given by any Credit Party or
conflict with any obligation of, or detract from any action which may be
taken by, the Borrower or its Subsidiaries under this Credit Agreement),
the Issuing Lender agrees, in reliance upon the agreements of the other
Lenders set forth in this Section 2.2, from time to time upon request, in
its reasonable discretion, to issue (from the Effective Date to thirty days
prior to the Maturity Date and in a form reasonably acceptable to the
Issuing Lender), in Dollars, and the Participants shall participate in,
Letters of Credit for the account of the Borrower; provided, however, that
(i) the aggregate amount of LOC Obligations shall not at any time exceed
the LOC Committed Amount, (ii) the aggregate amount of commercial Letters
of Credit shall not at any time exceed $40,000,000, (iii) the sum of the
aggregate amount of outstanding LOC Obligations plus the aggregate amount
of outstanding Revolving Loans plus the aggregate amount of outstanding
Competitive Bid Loans plus the aggregate amount of outstanding Swing Line
Loans shall not exceed the Revolving Committed Amount and (iv) if any
Participant shall be a Defaulting Lender at the time of issuance of any
Letter of Credit, the amount of such Letter of Credit shall be reduced by
the amount of such Participant's Participation Interest in such Letter of
Credit, unless otherwise agreed by the Issuing Lender in its sole
discretion. The Issuing Lender may require the issuance and expiry date of
each Letter of Credit to be a Business Day. Each Letter of Credit shall be
either (A) a standby letter of credit issued to support the obligations
(including pension or insurance obligations), contingent or otherwise, of
the Borrower or any of its Subsidiaries, or (B) a commercial letter of
credit in respect of the purchase of goods or services by the Borrower or
any of its Subsidiaries in the ordinary course of business; provided that
any "time" commercial Letter of Credit shall not have a tenor exceeding 180
days. Except as otherwise expressly agreed upon by all the Participants, no
Letter of Credit shall have an original expiry date more than one year from
the date of issuance nor, as extended or otherwise, shall have an expiry
date beyond the Maturity Date. Each Letter of Credit shall comply with the
related LOC Documents. The Borrower shall promptly examine a copy of each
Letter of Credit and each amendment thereto that is
28
delivered to it and, in the event of any claim of noncompliance with the
Borrower's instructions or other irregularity, the Borrower will
immediately notify the Issuing Lender.
(b) Notice and Reports. The request for the issuance of a Letter of
Credit shall be submitted to the Issuing Lender at least three Business
Days prior to the requested date of issuance. The Issuing Lender will, at
least quarterly and more frequently upon request, provide to the
Administrative Agent for dissemination to the Lenders a report specifying
the Letters of Credit which are then issued and outstanding. The Issuing
Lender will further provide to the Administrative Agent, promptly upon
request, copies of the Letters of Credit and the other LOC Documents.
(c) Participations.
(i) On the Effective Date, each Participant shall automatically
acquire a participation in the liability of the Issuing Lender under
each Existing Letter of Credit in an amount equal to its Revolving
Loan Commitment Percentage of such Existing Letters of Credit.
(ii) Each Participant, upon issuance of a Letter of Credit, shall
be deemed to have purchased without recourse a risk participation from
the Issuing Lender in such Letter of Credit and each LOC Document
related thereto and the rights and obligations arising thereunder and
any collateral relating thereto, in each case in an amount equal to
its Revolving Loan Commitment Percentage of the obligations under such
Letter of Credit, and shall absolutely, unconditionally and
irrevocably assume, as primary obligor and not as surety, and be
obligated to pay to the Issuing Lender therefor and discharge when
due, its Revolving Loan Commitment Percentage of the obligations
arising under such Letter of Credit. Without limiting the scope and
nature of each Participant's participation in any Letter of Credit, to
the extent that the Issuing Lender has not been reimbursed as required
hereunder or under any such Letter of Credit or pursuant to a
Mandatory Borrowing under Section 2.2(e)(i), each such Participant
shall fund its Participation Interest in such unreimbursed drawing in
accordance with the terms of Section 2.2(e)(ii). Any such
reimbursement shall not relieve or otherwise impair the obligation of
the Borrower or any other Credit Party to reimburse the Issuing Lender
under any Letter of Credit, together with interest as hereinafter
provided.
(d) Reimbursement by Borrower. In the event of any drawing under any
Letter of Credit, the Issuing Lender will promptly notify the Borrower.
Unless the Borrower shall notify the Issuing Lender of its intent to
otherwise reimburse the Issuing Lender and shall reimburse the Issuing
Lender in same day funds within one hour of receipt of notice of such
drawing from the Issuing Lender, the Borrower shall be deemed to have
requested a Revolving Loan at the Base Rate in the amount of the drawing,
the proceeds of which will be used to satisfy the reimbursement
obligations. The Borrower's reimbursement obligations hereunder shall be
absolute and unconditional under all circumstances irrespective of (but
without waiver of) (i) any rights of set-off, counterclaim or defense to
payment the applicable account party or the Borrower may claim or have
against the Issuing
29
Lender, the Administrative Agent, the Lenders, the beneficiary of the
Letter of Credit drawn upon or any other Person, including without
limitation, any defense based on any failure of the applicable account
party, the Borrower or any other Credit Party to receive consideration or
(ii) the legality, validity, regularity or unenforceability of the Letter
of Credit, this Credit Agreement or any other Credit Document.
(e) Reimbursement by Lenders.
(i) Reimbursement with Revolving Loans. On any day on which the
Borrower shall have requested, or been deemed to have requested, a
Revolving Loan borrowing to reimburse a drawing under a Letter of
Credit (as set forth in clause (d) above), the Administrative Agent
shall give notice to the Lenders that a Revolving Loan has been
requested or deemed requested in connection with a drawing under a
Letter of Credit, in which case a Revolving Loan borrowing comprised
solely of Base Rate Loans (each such borrowing, a "Mandatory
Borrowing") shall be made from all Lenders (without giving effect to
any termination of the Commitments pursuant to Section 9.2) pro rata
based on each Lender's respective Revolving Loan Commitment Percentage
and the proceeds thereof shall be paid directly to the Issuing Lender
for application to the respective LOC Obligations. Each applicable
Lender hereby irrevocably agrees to make such Revolving Loans upon any
such request or deemed request on account of each such Mandatory
Borrowing in the amount and in the manner specified in the preceding
sentence and in accordance with the terms of Section 2.2(e)(iii)
notwithstanding (A) the amount of Mandatory Borrowing may not comply
with the minimum amount for borrowings of Revolving Loans otherwise
required hereunder, (B) whether any conditions specified in Section
5.2 are then satisfied, (C) whether a Default or Event of Default then
exists, (D) failure of any such request or deemed request for
Revolving Loans to be made by the time otherwise required hereunder,
(E) the date of such Mandatory Borrowing, (F) any reduction in the
Revolving Committed Amount or any termination of the Commitments, or
(G) any set-off, counterclaim, recoupment, defense or other right
which such Lender may have against the Issuing Lender, the Borrower or
any other Person for any reason whatsoever.
(ii) Reimbursement Through Funding of Participation Interests. In
the event that any Mandatory Borrowing cannot for any reason be made
on the date otherwise required above (including, without limitation,
as a result of the commencement of a proceeding under the Bankruptcy
Code with respect to the Borrower or any other Credit Party), the
Issuing Lender will promptly notify the Participants of the amount of
any unreimbursed drawing (as of the date the Mandatory Borrowing would
otherwise have occurred, but adjusted for any payments received from
the Borrower on or after such date and prior to the funding of the
Participation Interests therein) and each Participant shall fund its
Participation Interest in such unreimbursed drawing by paying to the
Issuing Lender, in Dollars and in immediately available funds, the
amount of such Participant's Revolving Loan Commitment Percentage of
such unreimbursed drawing. Each Participant's obligation to make such
payment to the Issuing Lender, and the right of the Issuing
30
Lender to receive the same, shall be absolute and unconditional, shall
not be affected by any circumstance whatsoever and without regard to
(A) the termination of this Credit Agreement or the Commitments
hereunder, (B) the existence of a Default or Event of Default, (C) the
acceleration of the obligations hereunder and (D) any set-off,
counterclaim, recoupment, defense or other right which such
Participant may have against the Issuing Lender, the Borrower or any
other Person for any reason whatsoever. Simultaneously with the making
of each such payment by a Participant to the Issuing Lender, such
Participant shall, automatically and without any further action on the
part of the Issuing Lender or such Participant, acquire a
participation in an amount equal to such payment (excluding the
portion of such payment constituting interest owing to the Issuing
Lender) in the related unreimbursed drawing portion of the LOC
Obligation and in the interest thereon and in the related LOC
Documents, and shall have a claim against the Borrower and the other
Credit Parties with respect thereto.
(iii) Funding of Mandatory Borrowing or Participation Interest.
Each applicable Lender (including the Lender acting as Issuing Lender)
and each Participant shall upon any notice pursuant to Section
2.2(e)(i) or Section 2.2(e)(ii), respectively, make its Revolving Loan
Commitment Percentage of the unreimbursed drawing available to the
Administrative Agent, for the benefit of the Issuing Lender, by 1:00
p.m. on the day of the notice if notice is given on or before 11:00
a.m. or by 1:00 p.m. the next Business Day if notice is given after
11:00 a.m., in Dollars, of immediately available funds at the Agency
Services Address. The Administrative Agent shall remit the funds so
received to the Issuing Lender.
(iv) Failure to Fund. In the event any Lender or any Participant
shall fail to fund its portion of a Mandatory Borrowing or its
Participation Interest, respectively, on the date required pursuant to
Section 2.2(e)(iii), the amount of such Lender's unfunded portion of
the Mandatory Borrowing or such Participant's unfunded Participation
Interest shall bear interest payable to the Issuing Lender upon
demand, at a rate per annum equal to, during the period to but
excluding the date two Business Days after demand therefor, the
Federal Funds Rate, and, thereafter, the Base Rate plus two percent
(2%) per annum.
(f) Modification and Extension. The issuance of any supplement,
modification, amendment, renewal, or extensions to any Letter of Credit
shall, for purposes hereof, be treated in all respects the same as the
issuance of a new Letter of Credit hereunder.
(g) Applicability of ISP98 and UCP. Unless otherwise expressly agreed
by the Issuing Lender and the Borrower when a Letter of Credit is issued
(including any such agreement applicable to an Existing Letter of Credit),
(i) the rules of the "International Standby Practices 1998" published by
the Institute of International Banking Law & Practice (or such later
version thereof as may be in effect at the time of issuance) shall apply to
each standby Letter of Credit, and (ii) the rules of the Uniform Customs
and Practice for Documentary Credits, as most recently published by the
31
International Chamber of Commerce at the time of issuance shall apply to
each commercial Letter of Credit.
(h) Responsibility of Issuing Lender.
(i) It is expressly understood and agreed as between the Lenders
that the obligations of the Issuing Lender hereunder to the
Participants are only those expressly set forth in this Credit
Agreement and that the Issuing Lender shall be entitled to assume that
the conditions precedent set forth in Section 5.2 have been satisfied
unless it shall have acquired actual knowledge that any such condition
precedent has not been satisfied; provided, however, that nothing set
forth in this Section 2.2 shall be deemed to prejudice the right of
any Participant to recover from the Issuing Lender any amounts made
available by such Participant to the Issuing Lender pursuant to this
Section 2.2 in the event that it is determined by a court of competent
jurisdiction that the payment with respect to a Letter of Credit
constituted gross negligence or willful misconduct on the part of the
Issuing Lender.
(ii) The Issuing Lender shall be under no obligation to issue any
Letter of Credit if (a) any order, judgment or decree of any
Governmental Authority or arbitrator shall by its terms purport to
enjoin or restrain the Issuing Lender from issuing such Letter of
Credit, (b) any Requirement of Law applicable to the Issuing Lender or
any request or directive (whether or not having the force of law) from
any Governmental Authority with jurisdiction over the Issuing Lender
shall prohibit, or request that the Issuing Lender refrain from, the
issuance of letters of credit generally or such Letter of Credit in
particular or shall impose upon the Issuing Lender with respect to
such Letter of Credit any restriction, reserve or capital requirement
(for which the Issuing Lender is not otherwise compensated hereunder)
not in effect on the Closing Date, or shall impose upon the Issuing
Lender any unreimbursed loss, cost or expense which was not applicable
on the Closing Date and which the Issuing Lender in good xxxxx xxxxx
material to it, or (c) the issuance of such Letter of Credit would
violate one or more policies of the Issuing Lender.
(i) Conflict with LOC Documents. In the event of any conflict between
this Credit Agreement and any LOC Document, this Credit Agreement shall
govern.
(j) Indemnification of Issuing Lender.
(i) In addition to its other obligations under this Credit
Agreement, the Borrower hereby agrees to protect, indemnify, pay and
save the Issuing Lender harmless from and against any and all claims,
demands, liabilities, damages, losses, costs, charges and expenses
(including Attorney Costs) that the Issuing Lender may incur or be
subject to as a consequence, direct or indirect, of (A) the issuance
of any Letter of Credit or (B) the failure of the Issuing Lender to
honor a drawing under a Letter of Credit as a result of any act or
omission, whether rightful or wrongful, of any present or future de
jure or de facto Governmental Authority (all such acts or omissions,
herein called "Government Acts").
32
(ii) As between the Borrower and the Issuing Lender, the Borrower
shall assume all risks of the acts, omissions or misuse of any Letter
of Credit by the beneficiary thereof. The Issuing Lender shall not be
responsible for (except in the case of (A), (B) and (C) below if the
Issuing Lender has actual knowledge to the contrary): (A) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for
and issuance of any Letter of Credit, even if it should in fact prove
to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (B) the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or
assign any Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, that may prove to be invalid or
ineffective for any reason; (C) failure of the beneficiary of a Letter
of Credit to comply fully with conditions required in order to draw
upon a Letter of Credit; (D) errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable,
telegraph, telex or otherwise, whether or not they be in cipher; (E)
any loss or delay in the transmission or otherwise of any document
required in order to make a drawing under a Letter of Credit or of the
proceeds thereof; and (F) any consequences arising from causes beyond
the control of the Issuing Lender, including, without limitation, any
Government Acts. None of the above shall affect, impair, or prevent
the vesting of the Issuing Lender's rights or powers hereunder.
(iii) In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted
by the Issuing Lender, under or in connection with any Letter of
Credit or the related certificates, if taken or omitted in good faith,
shall not put the Issuing Lender under any resulting liability to the
Borrower or any other Credit Party. It is the intention of the parties
that this Credit Agreement shall be construed and applied to protect
and indemnify the Issuing Lender against any and all risks involved in
the issuance of the Letters of Credit, all of which risks are hereby
assumed by the Borrower, including, without limitation, any and all
risks of the acts or omissions, whether rightful or wrongful, of any
present or future Government Acts. The Issuing Lender shall not, in
any way, be liable for any failure by the Issuing Lender or anyone
else to pay any drawing under any Letter of Credit as a result of any
Government Acts or any other cause beyond the control of the Issuing
Lender.
(iv) Nothing in this subsection (j) is intended to limit the
reimbursement obligation of the Borrower contained in this Section
2.2. The obligations of the Borrower under this subsection (j) shall
survive the termination of this Credit Agreement. No act or omission
of any current or prior beneficiary of a Letter of Credit shall in any
way affect or impair the rights of the Issuing Lender to enforce any
right, power or benefit under this Credit Agreement.
(v) Notwithstanding anything to the contrary contained in this
subsection (j), the Borrower shall have no obligation to indemnify the
Issuing Lender in respect of any liability incurred by the Issuing
Lender arising out of the
33
gross negligence or willful misconduct of the Issuing Lender, as
determined by a court of competent jurisdiction.
(k) Designation of other Persons as Account Parties. Notwithstanding
anything to the contrary set forth in this Credit Agreement, including
without limitation Section 2.2(a) hereof, a Letter of Credit issued
hereunder may contain a statement to the effect that such Letter of Credit
is issued for the account of a Subsidiary of the Borrower; provided that
notwithstanding such statement, the Borrower shall be the actual account
party for all purposes of this Credit Agreement for such Letter of Credit
and such statement shall not affect the Borrower's reimbursement
obligations hereunder with respect to such Letter of Credit.
(l) Payments Set Aside. If any payment received by the Issuing Lender
(or by the Administrative Agent for the account of the Issuing Lender)
pursuant to Section 2.2(d) or (e) is subsequently invalidated, declared to
be fraudulent or preferential, set aside or required (including pursuant to
any settlement entered into by the Issuing Lender in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any
proceeding under the Bankruptcy Code or any other Requirement of Law or
otherwise, each Participant shall fund its Participation Interest in such
payment by paying to the Issuing Lender its Revolving Loan Commitment
Percentage of such payment on demand of the Administrative Agent, plus
interest thereon from the date of such demand to the date such
Participation Interest is funded by such Lender, at a rate per annum equal
to the Federal Funds Rate from time to time in effect.
2.3 Swing Line Loans Subfacility.
(a) Swing Line Loans. The Swing Line Lender hereby agrees, on the
terms and subject to the conditions set forth herein and in the other
Credit Documents, to make loans (each a "Swing Line Loan" and collectively,
the "Swing Line Loans") to the Borrower, in Dollars, at any time and from
time to time, during the period from and including the Effective Date to
but not including the Maturity Date (or such earlier date if the
Commitments have been terminated as provided herein); provided that (i) the
aggregate principal amount of the Swing Line Loans outstanding at any one
time shall not exceed the Swing Line Committed Amount and (ii) the
aggregate amount of outstanding Swing Line Loans plus the aggregate amount
of outstanding Revolving Loans plus the aggregate amount of outstanding LOC
Obligations plus the aggregate amount of outstanding Competitive Bid Loans
shall not exceed the Revolving Committed Amount. Subject to the terms of
this Credit Agreement, the Borrower may borrow, repay and reborrow Swing
Line Loans.
(b) Method of Borrowing and Funding Swing Line Loans. By no later than
1:00 p.m. on the date of the requested borrowing of Swing Line Loans, the
Borrower shall provide telephone notice to the Swing Line Lender, followed
promptly by a written Swing Line Loan Request in the form of Exhibit 2.3(b)
(which may be submitted by telecopy) setting forth (i) the amount of the
requested Swing Line Loan and (ii) the date of the requested Swing Line
Loan and complying in all respects with Section 5.2. The Swing Line
34
Lender shall initiate the transfer of funds representing the Swing Line
Loan advance to the Borrower by 3:00 p.m. on the Business Day of the
requested borrowing.
(c) Repayment and Participations of Swing Line Loans. The Borrower
agrees to repay all Swing Line Loans immediately upon the existence of a
Default or Event of Default or otherwise within three Business Days of
demand therefor by the Swing Line Lender. Each repayment of a Swing Line
Loan may be accomplished by requesting Revolving Loans which request is not
subject to the conditions set forth in Section 5.2. In the event that the
Borrower shall fail to timely repay any Swing Line Loan, and in any event
upon (i) a request by the Swing Line Lender, (ii) the occurrence of an
Event of Default described in Section 9.1(f) or (iii) the acceleration of
any Loan or termination of any Commitment pursuant to Section 9.2, each
other Participant shall irrevocably and unconditionally purchase from the
Swing Line Lender, without recourse or warranty, an undivided interest and
participation in such Swing Line Loan in an amount equal to such other
Lender's Revolving Loan Commitment Percentage thereof, by directly
purchasing a participation in such Swing Line Loan in such amount
(regardless of whether the conditions precedent thereto set forth in
Section 5.2 are then satisfied, whether or not the Borrower has submitted a
Notice of Borrowing and whether or not the Commitments are then in effect,
any Event of Default exists or all the Loans have been accelerated) and
paying the proceeds thereof to the Swing Line Lender at the Agency Services
Address, or at such other address as the Swing Line Lender may designate,
in Dollars and in immediately available funds. If such amount is not in
fact made available to the Swing Line Lender by any Participant, the Swing
Line Lender shall be entitled to recover such amount on demand from such
Participant, together with accrued interest thereon for each day from the
date of demand thereof, at a rate equal to, if paid within two Business
Days of such date, the Federal Funds Rate, and thereafter at a rate equal
to the Base Rate plus two percent (2%) per annum. If such Participant does
not pay such amount forthwith upon the Swing Line Lender's demand therefor,
and until such time as such Participant makes the required payment, the
Swing Line Lender shall be deemed to continue to have outstanding Swing
Line Loans in the amount of such unpaid participation obligation for all
purposes of the Credit Documents other than those provisions requiring the
other Participants to purchase a participation therein. Further, such
Participant shall be deemed to have assigned any and all payments made of
principal and interest on its Loans, and any other amounts due to it
hereunder to the Swing Line Lender to fund Swing Line Loans in the amount
of the participation in Swing Line Loans that such Participant failed to
purchase pursuant to this Section 2.3(c) until such amount has been
purchased (as a result of such assignment or otherwise).
(d) Swing Line Loan Note. The Swing Line Loans made by the Swing Line
Lender shall, if requested by the Swing Line Lender, be evidenced by a duly
executed promissory note of the Borrower to the Swing Line Lender in
substantially the form of Exhibit 2.3(d).
2.4 Competitive Bid Loans Subfacility.
(a) Competitive Bid Loans. Subject to the terms and conditions set
forth herein, the Borrower may, from time to time, during the period from
the Closing Date to
35
the Maturity Date, request, in Dollars, and each Lender may, in its sole
discretion, agree to make loans to the Borrower in accordance with the
terms of this Section 2.4 (each a "Competitive Bid Loan" and collectively
the "Competitive Bid Loans"); provided, however, that (i) the sum of the
aggregate amount of outstanding Revolving Loans plus the aggregate amount
of outstanding Competitive Bid Loans plus the aggregate amount of
outstanding Swing Line Loans plus the aggregate amount of outstanding LOC
Obligations shall not exceed the Revolving Loan Commitment, (ii) the
aggregate amount of Competitive Bid Loans outstanding at any one time
cannot exceed $300,000,000 and (iii) if a Lender does make a Competitive
Bid Loan it shall not reduce such Lender's obligation to make its pro rata
share of any Revolving Loan.
(b) Competitive Bid Requests. The Borrower may solicit Competitive
Bids by delivery of a Competitive Bid Request to the Administrative Agent
by 11:00 a.m. on a Business Day not less than one nor more than five
Business Days prior to the date of the requested Competitive Bid Loan. A
Competitive Bid Request must be substantially in the form of Exhibit 2.4(b)
and shall specify (i) the date of the requested Competitive Bid Loan (which
shall be a Business Day), (ii) the amount of the requested Competitive Bid
Loan and (iii) the applicable Interest Period or Interest Periods requested
and be accompanied by the Competitive Bid Fee. The Administrative Agent
shall notify the Lenders of its receipt of a Competitive Bid Request and
the contents thereof and invite the Lenders to submit Competitive Bids in
response thereto. The Borrower may not request a Competitive Bid for more
than four different Interest Periods per Competitive Bid Request and
Competitive Bid Requests may be made no more frequently than six times
every calendar month.
(c) Competitive Bid Procedure. Each Lender may, in its sole
discretion, make one or more Competitive Bids to the Borrower in response
to a Competitive Bid Request. Each Competitive Bid must be received by the
Administrative Agent not later than 11:00 a.m. on the proposed date of the
requested Competitive Bid Loan; provided, however, that should the
Administrative Agent, in its capacity as a Lender, desire to submit a
Competitive Bid it shall notify the Borrower of its Competitive Bid and the
terms thereof not later than 15 minutes prior to the time the other Lenders
are required to submit their Competitive Bid. A Lender may offer to make
all or part of the requested Competitive Bid Loan and may submit multiple
Competitive Bids in response to a Competitive Bid Request. Any Competitive
Bid must specify (i) the particular Competitive Bid Request as to which the
Competitive Bid is submitted, (ii) the minimum (which shall be not less
than $10,000,000 and integral multiples of $1,000,000 in excess thereof)
and maximum principal amounts of the requested Competitive Bid Loan or
Loans as to which the Lender is willing to make and (iii) the applicable
interest rate or rates and Interest Period or Interest Periods therefor. A
Competitive Bid submitted by a Lender in accordance with the provisions
hereof shall be irrevocable. The Administrative Agent shall promptly notify
the Borrower of all Competitive Bids made and the terms thereof. The
Administrative Agent shall send a copy of each of the Competitive Bids to
the Borrower and each of the Lenders for its records as soon as
practicable.
36
(d) Acceptance of Competitive Bids. The Borrower may, in its sole
discretion, subject only to the provisions of this subsection (d), accept
or refuse any Competitive Bid offered to it. To accept a Competitive Bid,
the Borrower shall give oral notification of its acceptance of any or all
such Competitive Bids (which shall be promptly confirmed in writing) to the
Administrative Agent by 12:00 noon on the proposed date of the Competitive
Bid Loan; provided, however, (i) the failure by the Borrower to give timely
notice of its acceptance of a Competitive Bid shall be deemed to be a
refusal thereof, (ii) to the extent Competitive Bids are for comparable
Interest Periods, the Borrower may accept Competitive Bids only in
ascending order of rates, (iii) the aggregate amount of Competitive Bids
accepted by the Borrower shall not exceed the principal amount specified in
the Competitive Bid Request, (iv) if the Borrower shall accept a bid or
bids made at a particular Competitive Bid Rate, but the amount of such bid
or bids shall cause the total amount of bids to be accepted by the Borrower
to be in excess of the amount specified in the Competitive Bid Request,
then the Borrower shall accept a portion of such bid or bids in an amount
equal to the amount specified in the Competitive Bid Request less the
amount of all other Competitive Bids accepted with respect to such
Competitive Bid Request, which acceptance in the case of multiple bids at
such Competitive Bid Rate, shall be made pro rata in accordance with the
amount of each such bid at such Competitive Bid Rate and (v) no bid shall
be accepted for a Competitive Bid Loan unless such Competitive Bid Loan is
in a minimum principal amount of $10,000,000 and integral multiples of
$1,000,000 in excess thereof, except that where a portion of a Competitive
Bid is accepted in accordance with the provisions of clause (iv) of
subsection (d) hereof, then in a minimum principal amount of $500,000 and
integral multiples of $100,000 (but not in any event less than the minimum
amount specified in the Competitive Bid), and in calculating the pro rata
allocation of acceptances of portions of multiple bids at a particular
Competitive Bid Rate pursuant to clause (iv) of subsection (d) hereof, the
amounts shall be rounded to integral multiples of $100,000 in a manner
which shall be in the discretion of the Borrower. A notice of acceptance of
a Competitive Bid given by the Borrower in accordance with the provisions
hereof shall be irrevocable. The Administrative Agent shall, not later than
1:00 p.m. on the proposed date of such Competitive Bid Loan, notify each
bidding Lender whether or not its Competitive Bid has been accepted (and if
so, in what amount and at what Competitive Bid Rate), and each successful
bidder will thereupon become bound, subject to the other applicable
conditions hereof, to make the Competitive Bid Loan in respect of which its
bid has been accepted.
(e) Funding of Competitive Bid Loans. Each Lender which is to make a
Competitive Bid Loan shall make its Competitive Bid Loan available to the
Administrative Agent by 2:00 p.m. on the date specified in the Competitive
Bid Request by deposit of immediately available funds at the Agency
Services Address or at such other address as the Administrative Agent may
designate in writing. The Administrative Agent will, upon receipt, make the
proceeds of such Competitive Bid Loans available to the Borrower.
(f) Maturity of Competitive Bid Loans. Each Competitive Bid Loan shall
mature and be due and payable in full on the last day of the Interest
Period applicable
37
thereto. Unless the Borrower shall give notice to the Administrative Agent
otherwise (or repays such Competitive Bid Loan), or a Default or Event of
Default exists and is continuing, the Borrower shall be deemed to have
requested Revolving Loans from all of the Lenders (in the amount of the
maturing Competitive Bid Loan and accruing interest at the Base Rate), the
proceeds of which will be used to repay such Competitive Bid Loan.
(g) Competitive Bid Loan Notes. The Competitive Bid Loans made by each
Lender shall be evidenced by a duly executed promissory note of the
Borrower to each Lender that requests a Competitive Bid Loan Note in
substantially the form of Exhibit 2.4(g).
2.5 Continuations and Conversions.
Subject to the terms below, the Borrower shall have the option, on any
Business Day, to continue existing Eurodollar Loans for a subsequent Interest
Period, to convert Base Rate Loans into Eurodollar Loans or to convert
Eurodollar Loans into Base Rate Loans. By no later than 11:00 a.m. (a) on the
date of the requested conversion of a Eurodollar Loan to a Base Rate Loan or (b)
three Business Days prior to the date of the requested continuation of a
Eurodollar Loan or conversion of a Base Rate Loan to a Eurodollar Loan, the
Borrower shall provide telephonic notice to the Administrative Agent, followed
promptly by a written Notice of Continuation/Conversion, in the form of Exhibit
2.5 setting forth (i) whether the Borrower wishes to continue or convert such
Loans and (ii) if the request is to continue a Eurodollar Loan or convert a Base
Rate Loan to a Eurodollar Loan, the Interest Period applicable thereto.
Notwithstanding anything herein to the contrary, (A) except as provided in
Section 3.11, Eurodollar Loans may only be continued or converted into Base Rate
Loans on the last day of the Interest Period applicable thereto, (B) Eurodollar
Loans may not be continued nor may Base Rate Loans be converted into Eurodollar
Loans during the existence and continuation of a Default or an Event of Default,
(C) any request to continue a Eurodollar Loan that fails to comply with the
terms hereof or any failure to request a continuation of a Eurodollar Loan at
the end of an Interest Period shall constitute a conversion to a Base Rate Loan
on the last day of the applicable Interest Period and (D) any failure to state
the Interest Period with respect to the continuation of a Eurodollar Loan or the
conversion of a Base Rate Loan to a Eurodollar Loan shall constitute a request
for a one month Interest Period. It is understood and agreed that Competitive
Bid Loans and Swing Line Loans may not be continued or converted.
2.6 Minimum Amounts.
Each request for a borrowing, conversion or continuation shall be subject
to the requirements that (a) each Eurodollar Loan and each Competitive Bid Loan
shall be in a minimum amount of $10,000,000 and in integral multiples of
$1,000,000 in excess thereof, (b) each Base Rate Loan shall be in a minimum
amount of the lesser of $5,000,000 (and in integral multiples of $1,000,000 in
excess thereof) or the remaining amount available under the Revolving Committed
Amount, (c) each Swing Line Loan shall be in a minimum amount of the lesser of
$1,000,000 (and in integral multiples of $100,000 in excess thereof) or the
remaining amount available under the Swing Line Committed Amount and (d) no more
than ten Eurodollar Loans shall be outstanding hereunder at any one time. For
the purposes of this Section 2.6, all Eurodollar Loans with the same
38
Interest Periods that begin and end on the same date shall be considered as one
Eurodollar Loan, but Eurodollar Loans with different Interest Periods, even if
they begin on the same date, shall be considered as separate Eurodollar Loans.
SECTION 3
GENERAL PROVISIONS APPLICABLE
TO LOANS AND LETTERS OF CREDIT
3.1 Interest.
(a) Interest Rate. Subject to Section 3.1(b), (i) all Base Rate Loans
shall accrue interest at the Base Rate, (ii) all Eurodollar Loans shall
accrue interest at the Adjusted Eurodollar Rate, (iii) all Swing Line Loans
shall accrue interest at the Base Rate and (iv) all Competitive Bid Loans
shall accrue interest at the applicable Competitive Bid Rate with respect
to each Competitive Bid Loan.
(b) Default Rate of Interest. Upon the occurrence, and during the
continuation, of an Event of Default pursuant to Section 9.1(a), the
principal of and, to the extent permitted by law, interest on the Loans and
any other amounts owing hereunder or under the other Credit Documents
(including without limitation fees and expenses) shall bear interest,
payable on demand, at a per annum rate equal to 2% plus the rate which
would otherwise be applicable (or if no rate is applicable, then the Base
Rate plus two percent (2%) per annum).
(c) Interest Payments. Interest on Loans shall be due and payable in
arrears on each Interest Payment Date.
3.2 Place and Manner of Payments.
All payments of principal, interest, fees, expenses and other amounts to be
made by a Credit Party under this Credit Agreement shall be made unconditionally
and without any setoff, deduction, counterclaim, defense, recoupment or
withholding of any kind and received not later than 2:00 p.m. on the date when
due, in Dollars and in immediately available funds, by the Administrative Agent
at the Agency Services Address. Payments received after such time shall be
deemed to have been received on the next Business Day. The Borrower shall, at
the time it makes any payment under this Credit Agreement, specify to the
Administrative Agent the Loans, Letters of Credit, fees or other amounts payable
by the Borrower hereunder to which such payment is to be applied (and in the
event that it fails to specify, or if such application would be inconsistent
with the terms hereof, the Administrative Agent shall, subject to Section 3.7,
distribute such payment to the Lenders in such manner as the Administrative
Agent may reasonably deem appropriate). The Administrative Agent will distribute
such payments to the Lenders on the same Business Day if any such payment is
received at or before 2:00 p.m.; otherwise the Administrative Agent will
distribute such payment to the Lenders on the next succeeding Business Day.
Whenever any payment hereunder shall be stated to be due on a day which is not a
Business Day, the due date thereof shall be extended to the next succeeding
Business Day (subject to accrual of interest and fees for the period of such
39
extension), except that, in the case of Eurodollar Loans (or interest payable
with respect thereto), if the extension would cause the payment to be made in
the next following calendar month, then such payment shall instead be made on
the next preceding Business Day.
3.3 Prepayments.
(a) Voluntary Prepayments. The Borrower shall have the right to prepay
Loans in whole or in part from time to time without premium or penalty;
provided, however, that (i) Eurodollar Loans may only be prepaid on three
Business Days' prior written notice to the Administrative Agent, (ii) each
such partial prepayment of Eurodollar Loans or Base Rate Loans shall be in
the minimum principal amount of $5,000,000 and integral multiples of
$1,000,000, (iii) each such partial prepayment of Swing Line Loans shall be
in the minimum principal amount of $1,000,000 and integral multiples of
$100,000 and (iv) Competitive Bid Loans may not be prepaid unless a
breakage fee equal to the amount of damages suffered by the Lender (other
than loss of anticipated profits) whose Competitive Bid Loan is prepaid is
paid to such Lender (as determined by such Lender in its reasonable
discretion). Amounts prepaid pursuant to this Section 3.3(a) shall be
applied as the Borrower may elect; however, if the Borrower fails to
specify, such prepayment will be applied in the manner set forth in Section
3.3(c) below.
(b) Mandatory Prepayments. If at any time (i) the sum of the aggregate
amount of outstanding Revolving Loans plus the aggregate amount of
outstanding LOC Obligations plus the aggregate amount of outstanding
Competitive Bid Loans plus the aggregate amount of outstanding Swing Line
Loans exceeds the Revolving Committed Amount, (ii) the aggregate amount of
outstanding Swing Line Loans exceeds the Swing Line Committed Amount, (iii)
the aggregate amount of outstanding LOC Obligations exceeds the LOC
Committed Amount, (iv) the aggregate amount of outstanding commercial
Letters of Credit exceeds $40,000,000 or (v) the amount of outstanding
Competitive Bid Loans exceeds $300,000,000, the Borrower shall immediately
make a principal payment to the Administrative Agent (or with respect to
LOC Obligations an amount to be held as cash collateral) in a manner and in
an amount necessary to be in compliance with Sections 2.1, 2.2, 2.3 and
2.4, as applicable and as directed by the Administrative Agent (any such
prepayment with respect to clause (i) above to be applied as set forth in
Section 3.3(c) below).
(c) Application of Prepayments. All amounts paid pursuant to Sections
3.3(a) and 3.3(b)(i), if the Borrower has not otherwise elected an
application of such amounts, shall be applied first to Swing Line Loans,
second to Revolving Loans (first to Base Rate Loans and then to Eurodollar
Loans in direct order of Interest Period Maturities), third, pro rata, to
Competitive Bid Loans and fourth to a cash collateral account in respect of
LOC Obligations. All prepayments under this Section 3.3 shall be subject to
Section 3.14.
40
3.4 Fees.
(a) Facility Fees. In consideration of the Revolving Committed Amount
being made available by the Lenders hereunder, the Borrower agrees to pay
to the Administrative Agent, for the pro rata benefit of each Lender (based
on such Lender's Revolving Loan Commitment Percentage of the Revolving
Committed Amount), a per annum fee equal to the Applicable Percentage for
Facility Fees (the "Facility Fees"). The Facility Fees shall commence to
accrue on the Effective Date and shall be due and payable in arrears on the
last day of each fiscal quarter (beginning with the fiscal quarter ending
June 30, 2004) of the Borrower (as well as on the Maturity Date and on any
date that the Revolving Committed Amount is reduced) for the immediately
preceding fiscal quarter, or portion thereof, (or with respect to the
fiscal quarter ending June 30, 2004, for the period from the Closing Date
to June 30, 2004).
(b) Letter of Credit Fees.
(i) Letter of Credit Fees. In consideration of the issuance of
Letters of Credit hereunder, the Borrower agrees to pay to the Issuing
Lender, for the pro rata benefit of each Lender (based on each
Lender's Commitment Percentage), a per annum fee (the "Letter of
Credit Fees") (i) for each commercial Letter of Credit equal to the
Applicable Percentage for Commercial Letter of Credit Fees on the
average daily maximum amount available to be drawn under each such
Letter of Credit (whether or not such maximum amount is then in effect
under such Letter of Credit) from the date of issuance to the date of
expiration and (ii) for each standby Letter of Credit equal to the
Applicable Percentage for Standby Letter of Credit Fees on the average
daily maximum amount available to be drawn under each such Letter of
Credit (whether or not such maximum amount is then in effect under
such Letter of Credit) from the date of issuance to the date of
expiration. The Letter of Credit Fees will be payable in arrears on
the last day of each fiscal quarter (beginning with the fiscal quarter
ending June 30, 2004) of the Borrower (as well as on the Maturity
Date) for the immediately preceding fiscal quarter, or portion
thereof, (or with respect to the fiscal quarter ending June 30, 2004,
for the period from the Closing Date to June 30, 2004).
(ii) Issuing Lender Fees. In addition to the Letter of Credit
Fees payable pursuant to subsection (i) above, the Borrower shall pay
to the Issuing Lender for its own account, without sharing by the
other Lenders, (A) the customary, incidental and/or out of pocket
charges from time to time to the Issuing Lender for its services in
connection with the issuance, amendment, payment, transfer,
administration, cancellation and conversion of, and drawings under,
Letters of Credit and (B) (1) with respect to each commercial Letter
of Credit, a one time commercial letter of credit fronting fee based
on the Issuing Lender's commercial letter of credit fee schedule then
in effect, payable on demand by the Issuing Lender upon the issuance
of any commercial Letter of Credit and (2) with respect to each
standby Letter of Credit, a standby letter of credit fronting fee of
.125% per annum of the face amount of each Letter of Credit payable
quarterly on the last day of each fiscal quarter of the
41
Borrower (beginning with the fiscal quarter ending June 30, 2004) and
on the Maturity Date (collectively, the "Issuing Lender Fees").
(c) Administrative Fees. The Borrower agrees to pay to the
Administrative Agent, for its own account, an annual fee as agreed to
between the Borrower and the Administrative Agent.
3.5 Payment in full at Maturity.
On the Maturity Date, the entire outstanding principal balance of all Loans
and all LOC Obligations, together with accrued but unpaid interest and all other
sums owing with respect thereto, shall be due and payable in full, unless
accelerated sooner pursuant to Section 9.
3.6 Computations of Interest and Fees.
(a) Except for Base Rate Loans and Swing Line Loans that are based
upon the Prime Rate, in which case interest shall be computed on the basis
of the actual number of days elapsed over a year of 365 or 366 days, as the
case may be, all computations of interest and fees hereunder shall be made
on the basis of the actual number of days elapsed over a year of 360 days.
Interest shall accrue from and include the date of borrowing (or
continuation or conversion) but exclude the date of payment.
(b) It is the intent of the Lenders and the Credit Parties to conform
to and contract in strict compliance with applicable usury law from time to
time in effect. All agreements between the Lenders and the Credit Parties
are hereby limited by the provisions of this paragraph which shall override
and control all such agreements, whether now existing or hereafter arising
and whether written or oral. In no way, nor in any event or contingency
(including but not limited to prepayment or acceleration of the maturity of
any obligation), shall the interest taken, reserved, contracted for,
charged, or received under this Credit Agreement, under the Notes or
otherwise, exceed the maximum nonusurious amount permissible under
applicable law. If, from any possible construction of any of the Credit
Documents or any other document, interest would otherwise be payable in
excess of the maximum nonusurious amount, any such construction shall be
subject to the provisions of this paragraph and such documents shall be
automatically reduced to the maximum nonusurious amount permitted under
applicable law, without the necessity of execution of any amendment or new
document. If any Lender shall ever receive anything of value which is
characterized as interest on the Loans under applicable law and which
would, apart from this provision, be in excess of the maximum nonusurious
amount, an amount equal to the amount which would have been excessive
interest shall, without penalty, be applied to the reduction of the
principal amount owing on the Loans and not to the payment of interest, or
refunded to the Borrower or the other payor thereof if and to the extent
such amount which would have been excessive exceeds such unpaid principal
amount of the Loans. The right to demand payment of the Loans or any other
Indebtedness evidenced by any of the Credit Documents does not include the
right to accelerate the payment of any interest which has not otherwise
accrued on the date of such demand, and the Lenders do not intend to charge
or receive any unearned interest in the event of such demand. All interest
paid or agreed to
42
be paid to the Lenders with respect to the Loans shall, to the extent
permitted by applicable law, be amortized, prorated, allocated, and spread
throughout the full stated term (including any renewal or extension) of the
Loans so that the amount of interest on account of such Indebtedness does
not exceed the maximum nonusurious amount permitted by applicable law.
3.7 Pro Rata Treatment.
Except to the extent otherwise provided herein:
(a) Revolving Loans. Each Revolving Loan borrowing (including, without
limitation, each Mandatory Borrowing), each payment or prepayment of
principal of any Revolving Loan, each payment of fees (other than the
Issuing Lender Fees retained by the Issuing Lender for its own account and
the Administrative Fees retained by the Administrative Agent for its own
account), each reduction of the Revolving Committed Amount, and each
conversion or continuation of any Revolving Loan, shall (except as
otherwise provided in Section 3.11) be allocated pro rata among the
relevant Lenders in accordance with the respective Revolving Loan
Commitment Percentages of such Lenders, as applicable, (or, if the
Commitments of such Lenders have expired or been terminated, in accordance
with the respective principal amounts of the outstanding Revolving Loans
and Participation Interests of such Lenders); provided that, if any Lender
shall have failed to pay its applicable pro rata share of any Revolving
Loan, then any amount to which such Lender would otherwise be entitled
pursuant to this subsection (a) shall instead be payable to the
Administrative Agent until the share of such Loan not funded by such Lender
has been repaid; provided further, that in the event any amount paid to any
Lender pursuant to this subsection (a) is rescinded or must otherwise be
returned by the Administrative Agent, each Lender shall, upon the request
of the Administrative Agent, repay to the Administrative Agent the amount
so paid to such Lender, with interest for the period commencing on the date
such payment is returned by the Administrative Agent until the date the
Administrative Agent receives such repayment at a rate per annum equal to,
during the period to but excluding the date two Business Days after such
request, the Federal Funds Rate, and thereafter, the Base Rate plus two
percent (2%) per annum; and
(b) Letters of Credit. Each payment of unreimbursed drawings in
respect of LOC Obligations shall be allocated to each Participant pro rata
in accordance with its Revolving Loan Commitment Percentage; provided that,
if any Participant shall have failed to pay its applicable pro rata share
of any drawing under any Letter of Credit, then any amount to which such
Participant would otherwise be entitled pursuant to this subsection (b)
shall instead be payable to the Issuing Lender until the share of such
unreimbursed drawing not funded by such Lender has been repaid; provided
further, that in the event any amount paid to any Participant pursuant to
this subsection (b) is rescinded or must otherwise be returned by the
Issuing Lender, each Participant shall, upon the request of the Issuing
Lender, repay to the Administrative Agent for the account of the Issuing
Lender the amount so paid to such Participant, with interest for the period
commencing on the date such payment is returned by the Issuing Lender until
the date the Issuing Lender receives such repayment at a rate per annum
equal to, during the period to but excluding the date two
43
Business Days after such request, the Federal Funds Rate, and thereafter,
the Base Rate plus two percent (2%) per annum.
(c) Swing Line Loans. The Swing Line Lender shall receive, for its own
account, all payments or prepayments of principal and interest with respect
to the Swing Line Loans; provided, however, upon the funding of the
Participants' participation interests with respect to a Swing Line Loan
pursuant to Section 2.3(c), such Participants shall be entitled to receive
their pro rata share of any payment or prepayment of principal and interest
with respect to such Swing Line Loan.
3.8 Sharing of Payments.
The Lenders agree among themselves that, except to the extent otherwise
provided herein, in the event that any Lender shall obtain payment in respect of
any Loan, unreimbursed drawing with respect to any LOC Obligations or any other
obligation owing to such Lender under this Credit Agreement through the exercise
of a right of setoff, banker's lien or counterclaim, or pursuant to a secured
claim under Section 506 of the Bankruptcy Code or other security or interest
arising from, or in lieu of, such secured claim, received by such Lender under
any applicable bankruptcy, insolvency or other similar law or otherwise, or by
any other means, in excess of its pro rata share of such payment as provided for
in this Credit Agreement, such Lender shall promptly pay in cash or purchase
from the other Lenders a participation in such Loans, LOC Obligations, and other
obligations in such amounts, and make such other adjustments from time to time,
as shall be equitable to the end that all Lenders share such payment in
accordance with their respective ratable shares as provided for in this Credit
Agreement. The Lenders further agree among themselves that if payment to a
Lender obtained by such Lender through the exercise of a right of setoff,
banker's lien, counterclaim or other event as aforesaid shall be rescinded or
must otherwise be restored, each Lender which shall have shared the benefit of
such payment shall, by payment in cash or a repurchase of a participation
theretofore sold, return its share of that benefit (together with its share of
any accrued interest payable with respect thereto) to each Lender whose payment
shall have been rescinded or otherwise restored. The Borrower agrees that any
Lender so purchasing such a participation may, to the fullest extent permitted
by law, exercise all rights of payment, including setoff, banker's lien or
counterclaim, with respect to such participation as fully as if such Lender were
a holder of such Loan, LOC Obligation or other obligation in the amount of such
participation. Except as otherwise expressly provided in this Credit Agreement,
if any Lender or the Administrative Agent shall fail to remit to any other
Lender an amount payable by such Lender or the Administrative Agent to such
other Lender pursuant to this Credit Agreement on the date when such amount is
due, such payments shall be made together with interest thereon for each date
from the date such amount is due until the date such amount is paid to the
Administrative Agent or such other Lender at a rate per annum equal to the
Federal Funds Rate. If under any applicable bankruptcy, insolvency or other
similar law, any Lender receives a secured claim in lieu of a setoff to which
this Section 3.8 applies, such Lender shall, to the extent practicable, exercise
its rights in respect of such secured claim in a manner consistent with the
rights of the Lenders under this Section 3.8 to share in the benefits of any
recovery on such secured claim.
44
3.9 Capital Adequacy/Regulation D.
(a) If, after the date thereof, any Lender determines that the
introduction after the Closing Date of any law, rule or regulation or other
Requirement of Law regarding capital adequacy or any change therein or in
the interpretation thereof, or compliance by such Lender (or its Lending
Office) therewith, has or would have the effect of reducing the rate of
return on the capital or assets of such Lender or any corporation
controlling such Lender as a consequence of such Lender's obligations
hereunder (taking into consideration its policies with respect to capital
adequacy and such Lender's desired return on capital), then from time to
time upon demand of such Lender (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to such Lender such
additional amounts as will compensate such Lender for such reduction.
(b) The Borrower shall pay to each Lender, as long as such Lender
shall be required under regulations of the Board of Governors of the
Federal Reserve System of the United States of America to maintain reserves
with respect to liabilities or assets consisting of or including
Eurocurrency funds or deposits (currently known as "Eurocurrency
liabilities"), additional interest on the unpaid principal amount of each
Eurodollar Loan equal to (i) (A) the applicable Eurodollar Rate divided by
(B) one minus the Eurodollar Reserve Percentage minus (ii) the applicable
Eurodollar Rate. Such additional interest shall be due and payable on each
date on which interest is payable on such Loan; provided the Borrower shall
have received at least five days' prior notice (with a copy to the
Administrative Agent) of such additional interest from such Lender. If a
Lender fails to give notice five days prior to the relevant Interest
Payment Date, such additional interest shall be due and payable five days
from the receipt by the Borrower of such notice.
3.10 Inability To Determine Interest Rate.
If the Administrative Agent determines (which determination shall be
conclusive and binding upon the Borrower) in connection with any request for a
Eurodollar Loan or a conversion to or continuation thereof that (a) Dollar
deposits are not being offered to banks in the applicable offshore Dollar market
for the applicable amount and Interest Period of such Eurodollar Loan, (b)
adequate and reasonable means do not exist for determining the Eurodollar Rate
for such Eurodollar Loan, or (c) the Eurodollar Rate for such Eurodollar Loan
does not adequately and fairly reflect the cost to the Lenders of funding such
Eurodollar Loan, the Administrative Agent will promptly notify the Borrower and
all the Lenders. Thereafter, the obligation of the Lenders to make or maintain
Eurodollar Loans shall be suspended until the Administrative Agent revokes such
notice. Upon receipt of such notice, the Borrower may revoke any pending Notice
of Borrowing or Notice of Continuation/Conversion with respect to Eurodollar
Loans or, failing that, will be deemed to have converted such request into a
request for a borrowing of or conversion into a Base Rate Loan in the amount
specified therein.
3.11 Illegality.
If any Lender determines that any Requirement of Law has made it unlawful,
or that any Governmental Authority has asserted that it is unlawful, for any
Lender or its applicable Lending
45
Office to make, maintain or fund Eurodollar Loans, or materially restricts the
authority of such Lender to purchase or sell, or to take deposits of, Dollars in
the applicable offshore Dollar market, or to determine or charge interest rates
based upon the Eurodollar Rate, then, on notice thereof by such Lender to the
Borrower through the Administrative Agent, any obligation of such Lender to make
or continue Eurodollar Loans or to convert Base Rate Loans to Eurodollar Loans
shall be suspended until such Lender notifies the Administrative Agent and the
Borrower that the circumstances giving rise to such determination no longer
exist. Upon receipt of such notice, the Borrower shall, upon demand from such
Lender (with a copy to the Administrative Agent), prepay or, if applicable,
convert all Eurodollar Loans of such Lender to Base Rate Loans, either on the
last day of the Interest Period thereof, if such Lender may lawfully continue to
maintain such Eurodollar Loans to such day, or immediately, if such Lender may
not lawfully continue to maintain such Eurodollar Loans. Upon any such
prepayment or conversion, the Borrower shall also pay interest on the amount so
prepaid or converted, together with any amounts due with respect thereto
pursuant to Section 3.14. Each Lender agrees to designate a different Lending
Office if such designation will avoid the need for such notice and will not, in
the good faith judgment of such Lender, otherwise be materially disadvantageous
to such Lender.
3.12 Requirements of Law.
If any Lender determines that as a result of the introduction of or any
change in, or in the interpretation of, any Requirement of Law, or such Lender's
compliance therewith, there shall be any increase in the cost to such Lender of
agreeing to make or making, funding or maintaining Eurodollar Loans or (as the
case may be) issuing or participating in Letters of Credit, or a reduction in
the amount received or receivable by such Lender in connection with any of the
foregoing (excluding for purposes of this subsection (a) any such increased
costs or reduction in amount resulting from (i) Taxes or Other Taxes (as to
which Section 3.13 shall govern) and (ii) reserve requirements utilized in the
determination of the Eurodollar Rate), then from time to time, within 10 days of
demand of such Lender (with a copy of such demand to the Administrative Agent),
the Borrower shall pay to such Lender such additional amounts as will compensate
such Lender for such increased cost or reduction in yield.
3.13 Taxes.
(a) Any and all payments by a Credit Party to or for the account of
the Administrative Agent or any Lender under any Credit Document shall be
made free and clear of and without deduction for any and all present or
future income, stamp or other taxes, duties, levies, imposts, deductions,
assessments, fees, withholdings or similar charges, and all liabilities
with respect thereto, but excluding, in the case of the Administrative
Agent and each Lender, any branch profit taxes or taxes imposed on or
measured by its net income, and franchise taxes imposed on it (in lieu of
net income taxes), by the jurisdiction (or any political subdivision
thereof) under the laws of which the Administrative Agent or such Lender,
as the case may be, is organized or maintains its Lending Office (all such
non-excluded present or future income, stamp or other taxes, duties,
levies, imposts, deductions, assessments, fees, withholdings or similar
charges, and liabilities being hereinafter referred to as "Taxes"). If a
Credit Party shall be required
46
by any Requirement of Law to deduct any Taxes from or in respect of any sum
payable under any Credit Document to the Administrative Agent or any
Lender, (i) 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 3.13(a)), the Administrative
Agent or such Lender, as the case may be, receives an amount equal to the
sum it would have received had no such deductions been made, (ii) such
Credit Party shall make such deductions, (iii) such Credit Party shall pay
the full amount deducted to the relevant taxation authority or other
Governmental Authority in accordance with applicable Requirements of Law,
and (iv) within 30 days after the date of such payment, such Credit Party
shall furnish to the Administrative Agent (which shall forward the same to
such Lender) the original or a certified copy of a receipt evidencing
payment thereof, to the extent such receipt is issued therefor, or other
written proof of payment thereof that is reasonably satisfactory to the
Administrative Agent.
(b) In addition, each Credit Party agrees to pay any and all present
or future stamp, court or documentary taxes and any other excise or
property taxes or charges or similar levies which arise from any payment
made under any Credit Document or from the execution, delivery,
performance, enforcement or registration of, or otherwise with respect to,
any Credit Document (hereinafter referred to as "Other Taxes").
(c) If a Credit Party shall be required to deduct or pay any Taxes or
Other Taxes from or in respect of any sum payable under any Credit Document
to the Administrative Agent or any Lender, such Credit Party shall also pay
to the Administrative Agent (for the account of such Lender) or to such
Lender, at the time interest is paid, such additional amount that such
Lender reasonably specifies by written notice to such Credit Party as
necessary to preserve the after-tax yield (after factoring in all taxes,
including taxes imposed on or measured by net income) such Lender would
have received if such Taxes or Other Taxes had not been imposed; provided
that if such Lender fails to provide such notice to such Credit Party
before the date which is five days prior to the date such interest is paid,
such Credit Party shall pay at the time such interest is paid such amount
as such Credit Party reasonably estimates will preserve such Lender's
after-tax yield (after factoring in only such Taxes or Other Taxes) and pay
the balance within five days after receiving such notice.
(d) Each Credit Party agrees to indemnify the Administrative Agent and
each Lender for (i) the full amount of Taxes and Other Taxes (including any
Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts
payable under this Section 3.13(d)) paid by the Administrative Agent and
such Lender, and (ii) any liability (including penalties, interest and
reasonable expenses) arising therefrom or with respect thereto.
(e) In the case of any payment hereunder or under any other Credit
Document by or on behalf of a Credit Party through an account or branch
outside the United States, or on behalf of a Credit Party by a payor that
is not a United States person, if such Credit Party determines that no
taxes are payable in respect thereof, such Credit Party shall furnish, or
shall cause such payor to furnish, to the Administrative Agent, an opinion
of
47
counsel reasonably acceptable to the Administrative Agent stating that such
payment is exempt from Taxes. For purposes of this subsection (e), the
terms "United States" and "United States person" shall have the meanings
specified in Section 7701 of the Code.
(f) Each Lender that is a foreign corporation, foreign partnership or
foreign trust within the meaning of the Code shall deliver to the
Administrative Agent, prior to receipt of any payment subject to
withholding under the Code, two duly signed completed copies of either IRS
Form W-8BEN or any successor thereto (relating to such Lender and entitling
it to an exemption from, or reduction of, withholding tax on all payments
to be made to such Lender by the Credit Parties pursuant to this Credit
Agreement) or IRS Form W-8ECI or any successor thereto (relating to all
payments to be made to such Lender by a Credit Party pursuant to this
Credit Agreement), as appropriate, or such other evidence satisfactory to
the Borrower and the Administrative Agent that such Lender is entitled to
an exemption from, or reduction of, United States withholding tax. Upon the
request of the Administrative Agent or the Borrower, each Lender that is a
"United States person" within the meaning of Section 7701(a)(30) of the
Code shall deliver to the Administrative Agent two duly signed completed
copies of IRS Form W-9 or any successor thereto or such other evidence
satisfactory to the Borrower and the Administrative Agent that such Lender
is entitled to an exemption from, or reduction of, United States
withholding tax. Thereafter and from time to time, each such Lender shall
(i) promptly submit to the Administrative Agent such additional duly
completed and signed copies of one of such forms (or such successor forms
as shall be adopted from time to time by the relevant United States taxing
authorities), as appropriate, as may reasonably be requested by the
Borrower or the Administrative Agent and then be available under then
current United States laws and regulations to avoid, or such evidence as is
satisfactory to the Borrower and the Administrative Agent of any available
exemption from or reduction of, United States withholding taxes in respect
of all payments to be made to such Lender by the Borrower pursuant to this
Credit Agreement, (ii) promptly notify the Administrative Agent of any
change in circumstances which would modify or render invalid any claimed
exemption or reduction (or it is determined the earlier claimed exemption
was incorrectly claimed for any reason), and (iii) take such steps as shall
not be materially disadvantageous to it, in the reasonable judgment of such
Lender, and as may be reasonably necessary (including the re-designation of
its Lending Office) to avoid any Requirement of Law that the Credit Parties
make any deduction or withholding for taxes from amounts payable to such
Lender. If the forms or other evidence provided by such Lender at the time
such Lender first becomes a party to this Credit Agreement indicate a
United States interest withholding tax rate in excess of zero, withholding
tax at such rate shall be considered excluded from Taxes for purpose of any
indemnity or gross up unless and until such Lender provides the appropriate
forms certifying that a lesser rate applies, whereupon withholding tax at
such lesser rate only shall be considered excluded from Taxes for periods
governed by such forms; provided, however, that, if at the date of any
assignment pursuant to which a Lender becomes a party to this Credit
Agreement, the Lender assignor was entitled to payments under subsection
(a) of this Section 3.13 in respect of United States withholding tax with
respect to interest paid at such date, then, to such extent, the term Taxes
shall include (in addition to withholding taxes that may be imposed in the
future or other amounts
48
otherwise includable in Taxes) United States withholding tax, if any,
applicable with respect to the Lender assignee on such date. If such Lender
fails to deliver the above forms or other evidence, then the Borrower or
the Administrative Agent may withhold from any interest payment to such
Lender an amount equal to the applicable withholding tax imposed by the
Code, without reduction. If any Governmental Authority asserts that the
Borrower or the Administrative Agent did not properly withhold any tax or
other amount from payments made in respect of such Lender, such Lender
shall indemnify the Borrower or the Administrative Agent therefor,
including all penalties and interest, any taxes imposed by any jurisdiction
on the amounts payable to the Borrower or the Administrative Agent under
this Section 3.13(f), and costs and expenses (including Attorney Costs) of
the Borrower or the Administrative Agent. For any period with respect to
which a Lender has failed to provide the Administrative Agent with the
above forms or other evidence (other than if such failure is due to a
change in the applicable law, or in the interpretation or application
thereof, occurring after the date on which such form or other evidence
originally was required to be provided or if such form or other evidence
otherwise is not required), such Lender shall not be entitled to
indemnification under subsection (d) of this Section 3.13 nor shall the
Credit Party be required to deduct or withhold under subsections (a) or (c)
of this Section 3.13 with respect to Taxes imposed by the United States by
reason of such failure; provided, however, that should a Lender become
subject to Taxes because of its failure to deliver such form or other
evidence required hereunder, the Borrower shall take such steps as such
Lender shall reasonably request to assist such Lender in recovering such
Taxes. (v) The obligation of the Lenders under this Section 3.13(f) shall
survive the payment of all Obligations and the resignation or replacement
of the Administrative Agent.
(g) In the event that an additional payment is made under Section
3.13(a) or (c) for the account of any Lender and such Lender, in its
reasonable judgment, determines that it has finally and irrevocably
received or been granted a credit against or release or remission for, or
repayment of, any tax paid or payable by it in respect of or calculated
with reference to the deduction or withholding giving rise to such payment,
such Lender shall, to the extent that it determines that it can do so
without prejudice to the retention of the amount of such credit, relief,
remission or repayment, pay to the Borrower such amount as such Lender
shall, in its reasonable judgment, have determined to be attributable to
such deduction or withholding and which will leave such Lender (after such
payment) in no worse position than it would have been in if the Borrower
had not been required to make such deduction or withholding. Nothing herein
contained shall interfere with the right of a Lender to arrange its tax
affairs in whatever manner it thinks fit nor oblige any Lender to claim any
tax credit or to disclose any information relating to its tax affairs or
any computations in respect thereof or require any Lender to do anything
that would prejudice its ability to benefit from any other credits,
reliefs, remissions or repayments to which it may be entitled.
49
3.14 Compensation.
Upon the written demand of any Lender, the Borrower shall promptly
compensate such Lender for and hold such Lender harmless from any loss, cost or
expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any
Eurodollar Loan on a day other than the last day of the Interest Period for
such Eurodollar Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise); or
(b) any failure by the Borrower (for a reason other than the failure
of such Lender to make a Eurodollar Loan) to prepay, borrow, continue or
convert any Eurodollar Loan on the date or in the amount previously
requested by the Borrower; or
(c) any repayment of a Competitive Bid Loan on a date which is not the
last day of the Interest Period applicable thereto or any failure by the
Borrower to borrow a Competitive Bid Loan on the date in the amount
previously agreed to by the Borrower.
The amount each such Lender shall be compensated pursuant to this Section 3.14
shall include, without limitation, (i) any loss incurred by such Lender in
connection with the re-employment of funds prepaid, repaid, not borrowed or
paid, as the case may be and (ii) any reasonable out-of-pocket expenses
(including Attorney Costs) incurred and reasonably attributable thereto.
For purposes of calculating amounts payable by the Borrower to the Lenders under
this Section 3.14, each Lender may deem that it funded each Eurodollar Loan made
by it at the Eurodollar Rate for such Eurodollar Loan by a matching deposit or
other borrowing in the applicable offshore Dollar interbank market for a
comparable amount and for a comparable period, whether or not such Eurodollar
Loan was in fact so funded.
3.15 Determination and Survival of Provisions.
All determinations by the Administrative Agent or a Lender of amounts owing
under Sections 3.9 through 3.14, inclusive, shall, absent manifest error, be
conclusive and binding on the parties hereto. In determining such amount, the
Administrative Agent or such Lender may use any reasonable averaging and
attribution methods. Section 3.9 through 3.14, inclusive, shall survive the
termination of this Credit Agreement and the payment of all Credit Party
Obligations.
3.16 Notification by Lenders.
Subject to Section 3.13(c), each Lender shall notify the Borrower (and any
applicable Credit Party) of any event that will entitle such Lender to
compensation under Section 3.9, 3.12, 3.13 or 3.14 as promptly as practicable,
but in any event within 90 days after such Lender obtains actual knowledge
thereof; provided, however, that if any Lender fails to give such notice within
90 days after it obtains actual knowledge of such an event, such Lender shall,
with respect to compensation payable pursuant to Section 3.9, 3.12, 3.13 or 3.14
in respect of any costs resulting from such event, only be entitled to payment
under Section 3.9, 3.12, 3.13 or 3.14 for costs
50
incurred from and after the date 90 days prior to the date that such Lender
gives such notice. If requested by the Borrower, each Lender will furnish to
Borrower within ten Business Days of the time the Lender requests compensation
under Section 3.9, 3.12, 3.13 or 3.14, a certificate setting forth the basis,
amount and reasonable detail of computation of each request by such Lender for
compensation under Section 3.9, 3.12, 3.13 or 3.14, which certificate shall,
except for demonstrable error, be final, conclusive and binding for all
purposes.
3.17 Mitigation; Mandatory Assignment.
Each Lender shall use reasonable efforts to avoid or mitigate any increased
cost or suspension of the availability of an interest rate under Sections 3.9
through 3.14 above to the greatest extent practicable (including transferring
the Loans to another Lending Office or Affiliate of a Lender) unless, in the
reasonable opinion of such Lender, such efforts would be likely to have an
adverse effect upon it. In the event a Lender makes a request to the Borrower
for additional payments in accordance with Section 3.9, 3.11, 3.12, 3.13 or
3.14, then, provided that no Default or Event of Default has occurred and is
continuing at such time, the Borrower may, at its own expense (such expense to
include, without limitation, any transfer fee payable to the Administrative
Agent under Section 11.3(b)) and in its sole discretion, require such Lender to
transfer and assign in whole (but not in part), without recourse (in accordance
with and subject to the terms and conditions of Section 11.3(b)), all of its
interests, rights and obligations under this Credit Agreement to an Eligible
Assignee which shall assume such assigned obligations (which assignee may be
another Lender, if a Lender accepts such assignment); provided that (a) such
assignment shall not conflict with any law, rule or regulation or order of any
court or other Governmental Authority and (b) the Borrower or such assignee
shall have paid to the assigning Lender in immediately available funds the
principal of and interest accrued to the date of such payment on the portion of
the Loans hereunder held by such assigning Lender and all other amounts owed to
such assigning Lender hereunder, including amounts owed pursuant to Sections 3.9
through 3.14 hereof.
SECTION 4
GUARANTY
4.1 Guaranty of Payment.
Subject to Section 4.7 below, each of the Guarantors hereby, jointly and
severally, unconditionally guarantees to each Lender and the Administrative
Agent the prompt payment of the Credit Party Obligations in full when due
(whether at stated maturity, as a mandatory prepayment, by acceleration or
otherwise) and the timely performance of all other obligations under the Credit
Documents. This Guaranty is a guaranty of payment and not of collection and is a
continuing guaranty and shall apply to all Credit Party Obligations whenever
arising.
51
4.2 Obligations Unconditional.
The obligations of the Guarantors hereunder are absolute and unconditional,
irrespective of the value, genuineness, validity, regularity or enforceability
of any of the Credit Documents, or any other agreement or instrument referred to
therein, to the fullest extent permitted by applicable law, irrespective of any
other circumstance whatsoever which might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor. Each Guarantor agrees
that this Guaranty may be enforced by the Lenders without the necessity at any
time of resorting to or exhausting any other security or collateral and without
the necessity at any time of having recourse to the Notes or any other of the
Credit Documents or any collateral, if any, hereafter securing the Credit Party
Obligations or otherwise and each Guarantor hereby waives the right to require
the Lenders to proceed against the Borrower or any other Person (including a
co-guarantor) or to require the Lenders to pursue any other remedy or enforce
any other right. Each Guarantor further agrees that it shall have no right of
subrogation, indemnity, reimbursement or contribution against the Borrower or
any other Guarantor of the Credit Party Obligations for amounts paid under this
Guaranty until such time as the Lenders have been paid in full, all Commitments
under the Credit Agreement have been terminated. Each Guarantor further agrees
that nothing contained herein shall prevent the Lenders from suing on the Notes
or any of the other Credit Documents or foreclosing its security interest in or
Lien on any collateral, if any, securing the Credit Party Obligations or from
exercising any other rights available to it under this Credit Agreement, the
Notes, any other of the Credit Documents, or any other instrument of security,
if any, and the exercise of any of the aforesaid rights and the completion of
any foreclosure proceedings shall not constitute a discharge of any of any
Guarantor's obligations hereunder; it being the purpose and intent of each
Guarantor that its obligations hereunder shall be absolute, independent and
unconditional under any and all circumstances. Neither any Guarantor's
obligations under this Guaranty nor any remedy for the enforcement thereof shall
be impaired, modified, changed or released in any manner whatsoever by an
impairment, modification, change, release or limitation of the liability of the
Borrower or by reason of the bankruptcy or insolvency of the Borrower. Each
Guarantor waives any and all notice of the creation, renewal, extension or
accrual of any of the Credit Party Obligations and notice of or proof of
reliance of by the Administrative Agent or any Lender upon this Guaranty or
acceptance of this Guaranty. The Credit Party Obligations, and any of them,
shall conclusively be deemed to have been created, contracted or incurred, or
renewed, extended, amended or waived, in reliance upon this Guaranty. All
dealings between the Borrower and any of the Guarantors, on the one hand, and
the Administrative Agent and the Lenders, on the other hand, likewise shall be
conclusively presumed to have been had or consummated in reliance upon this
Guaranty. The Guarantors further agree to all rights of set-off as set forth in
Section 11.2.
4.3 Modifications.
Each Guarantor agrees that (a) all or any part of the collateral, if any,
now or hereafter held for the Credit Party Obligations, if any, may be
exchanged, compromised or surrendered from time to time; (b) the Lenders shall
not have any obligation to protect, perfect, secure or insure any such security
interests, liens or encumbrances now or hereafter held, if any, for the Credit
Party Obligations or the properties subject thereto; (c) the time or place of
payment of the Credit Party Obligations may be changed or extended, in whole or
in part, to a time certain or otherwise, and may be renewed or accelerated, in
whole or in part; (d) the Borrower and any other party liable for
52
payment under the Credit Documents may be granted indulgences generally; (e) any
of the provisions of the Notes or any of the other Credit Documents may be
modified, amended or waived; (f) any party (including any co-guarantor) liable
for the payment thereof may be granted indulgences or be released; and (g) any
deposit balance for the credit of the Borrower or any other party liable for the
payment of the Credit Party Obligations or liable upon any security therefor may
be released, in whole or in part, at, before or after the stated, extended or
accelerated maturity of the Credit Party Obligations, all without notice to or
further assent by such Guarantor, which shall remain bound thereon,
notwithstanding any such exchange, compromise, surrender, extension, renewal,
acceleration, modification, indulgence or release.
4.4 Waiver of Rights.
Each Guarantor expressly waives to the fullest extent permitted by
applicable law: (a) notice of acceptance of this Guaranty by the Lenders and of
all extensions of credit to the Borrower by the Lenders; (b) presentment and
demand for payment or performance of any of the Credit Party Obligations; (c)
protest and notice of dishonor or of default (except as specifically required in
the Credit Agreement) with respect to the Credit Party Obligations or with
respect to any security therefor; (d) notice of the Lenders obtaining, amending,
substituting for, releasing, waiving or modifying any security interest, lien or
encumbrance, if any, hereafter securing the Credit Party Obligations, or the
Lenders' subordinating, compromising, discharging or releasing such security
interests, liens or encumbrances, if any; and (e) all other notices to which
such Guarantor might otherwise be entitled.
4.5 Reinstatement.
The obligations of the Guarantors under this Section 4 shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Credit Party Obligations is
rescinded or must be otherwise restored by any holder of any of the Credit Party
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and each Guarantor agrees that it will indemnify
the Administrative Agent and each Lender on demand for all reasonable costs and
expenses (including, without limitation, reasonable Attorney Costs) incurred by
the Administrative Agent or such Lender in connection with such rescission or
restoration, including any such costs and expenses incurred in defending against
any claim alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or similar law.
4.6 Remedies.
The Guarantors agree that, as between the Guarantors, on the one hand, and
the Administrative Agent and the Lenders, on the other hand, the Credit Party
Obligations may be declared to be forthwith due and payable as provided in
Section 9 (and shall be deemed to have become automatically due and payable in
the circumstances provided in Section 9) notwithstanding any stay, injunction or
other prohibition preventing such declaration (or preventing such Credit Party
Obligations from becoming automatically due and payable) as against any other
Person and that, in the event of such declaration (or such Credit Party
Obligations being deemed to have
53
become automatically due and payable), such Credit Party Obligations (whether or
not due and payable by any other Person) shall forthwith become due and payable
by the Guarantors.
4.7 Limitation of Guaranty.
Notwithstanding any provision to the contrary contained herein or in any of
the other Credit Documents, to the extent the obligations of any Guarantor shall
be adjudicated to be invalid or unenforceable for any reason (including, without
limitation, because of any applicable state or federal law relating to
fraudulent conveyances or transfers) then the obligations of such Guarantor
hereunder shall be limited to the maximum amount that is permissible under
applicable law (whether federal or state or otherwise and including, without
limitation, the Bankruptcy Code).
4.8 Rights of Contribution.
The Credit Parties agree among themselves that, in connection with payments
made hereunder, each Credit Party shall have contribution rights against the
other Credit Parties as permitted under applicable law. Such contribution rights
shall be subordinate and subject in right of payment to the obligations of the
Credit Parties under the Credit Documents and no Credit Party shall exercise
such rights of contribution until all Credit Party Obligations have been paid in
full and the Commitments terminated.
4.9 Release of Guarantors.
Subject to Section 7.12(b), if any of the Guarantors shall cease to be a
Material Domestic Subsidiary of the Borrower for any reason subject to and in
accordance with the terms of the Credit Agreement, then such Guarantor shall,
automatically and without any further action on the part of any party to any
Credit Document, and upon notice to the Administrative Agent, be fully released
and discharged from all its liabilities and obligations under or in respect of
the Credit Documents to which such Guarantor is a party (other than liabilities
and obligations resulting from a demand on such Guarantor's Guaranty pursuant to
Section 9.2) and, promptly upon the request of the Borrower and at the expense
of the Borrower, the Administrative Agent shall execute such documents and take
such other action as is reasonably requested by the Borrower to evidence the
release and discharge of such Guarantor from all such liabilities and
obligations and shall, if applicable, certify to the Borrower that such
Guarantor has no liabilities or obligations resulting from a demand on such
Guarantor's Guaranty pursuant to Section 9.2.
SECTION 5
CONDITIONS PRECEDENT
5.1 Closing Conditions.
The obligation of the Lenders to enter into this Credit Agreement and make
the initial Extension of Credit is subject to satisfaction (or waiver) of the
following conditions:
54
(a) Executed Credit Documents. Receipt by the Administrative Agent of
duly executed copies of: (i) this Credit Agreement; (ii) the Notes
requested by Lenders (or the Swing Line Lender) prior to the Closing Date;
and (iii) all other Credit Documents, each in form and substance reasonably
acceptable to the Lenders in their sole discretion.
(b) Authority Documents. Receipt by the Administrative Agent of the
following with respect to each Credit Party:
(i) Organizational Documents. Copies of the articles or
certificates of incorporation or other organizational documents of
each Credit Party certified to be true and complete as of a recent
date by the appropriate Governmental Authority of the state or other
jurisdiction of its formation and certified by a secretary or
assistant secretary of such Credit Party to be true and correct as of
the Closing Date.
(ii) Bylaws. A copy of the bylaws or other governing documents of
each Credit Party certified by a secretary or assistant secretary of
such Credit Party to be true and correct as of the Closing Date.
(iii) Resolutions. Copies of resolutions of the Board of
Directors or other governing body of each Credit Party approving and
adopting the Credit Documents to which it is a party, the transactions
contemplated therein and authorizing execution and delivery thereof,
certified by a secretary or assistant secretary of such Credit Party
to be true and correct and in full force and effect as of the Closing
Date.
(iv) Good Standing. Copies of certificates of good standing,
existence or its equivalent with respect to each Credit Party
certified as of a recent date by the appropriate Governmental
Authority of the state or other jurisdiction of its formation.
(v) Incumbency. An incumbency certificate of each Credit Party
certified by a secretary or assistant secretary of such Credit Party
to be true and correct as of the Closing Date.
(c) Opinions of Counsel. Receipt by the Administrative Agent of
opinions reasonably satisfactory to the Administrative Agent, addressed to
the Administrative Agent on behalf of the Lenders and dated as of the
Closing Date.
(d) Consents. Receipt by the Administrative Agent of evidence that all
necessary governmental, shareholder and third party consents and approvals,
if any, have been received and no condition or Requirement of Law exists
which would reasonably be likely to restrain, prevent or impose any
material adverse conditions on the transactions contemplated hereby.
(e) Officer's Certificates. The Administrative Agent shall have
received a certificate or certificates executed by an Authorized Officer of
the Borrower as of the Closing Date stating that (i) the financial
statements and information delivered to the
55
Administrative Agent on or before the Closing Date were prepared in good
faith and that such financial statements were prepared in accordance with
GAAP and (ii) immediately after giving effect to this Credit Agreement, the
other Credit Documents and all the transactions contemplated herein or
therein to occur on such date, (A) each Credit Party is Solvent and the
Borrower and its Subsidiaries taken as a whole are Solvent, (B) no Default
or Event of Default exists, (C) all representations and warranties
contained herein and in the other Credit Documents are true and correct in
all material respects, and (D) the Credit Parties are in compliance with
each of the financial covenants set forth in Section 7.2.
(f) Existing Revolving Credit Agreement. Receipt by the Administrative
Agent of evidence satisfactory to it that all of the Indebtedness of the
Credit Parties under the Existing Revolving Credit Agreement has been paid
in full (or will be paid in full with the proceeds of the initial Loans
made herein) and all documents executed or delivered in connection
therewith have been terminated.
(g) Fees and Expenses. Payment by the Credit Parties of all fees (and
all expenses for which invoices have been presented at least three Business
Days prior to the Closing Date) owed by them as of the Closing Date to the
Agents and the Lenders, including, without limitation, as set forth in the
Fee Letters.
(h) Other. Receipt by the Lenders of such other documents,
instruments, agreements or information as reasonably and timely requested
by any Lender.
5.2 Conditions to All Extensions of Credit.
In addition to the conditions precedent stated elsewhere herein, the
Lenders shall not be obligated to make Loans nor shall the Issuing Lender be
required to issue or extend a Letter of Credit unless:
(a) Notice. The Borrower shall have delivered (i) in the case of any
new Revolving Loan, to the Administrative Agent, an appropriate Notice of
Borrowing, duly executed and completed, by the time specified in Section
2.1, (ii) in the case of any Letter of Credit, to the Issuing Lender, an
appropriate request for issuance of a Letter of Credit in accordance with
the provisions of Section 2.2, (iii) in the case of any Swing Line Loan, to
the Swing Line Lender, a Swing Line Loan Request, duly executed and
completed, by the time specified in Section 2.3, and (iv) in the case of
any Competitive Bid Loan, to the Administrative Agent, an appropriate
Competitive Bid Request, duly executed and completed, by the time specified
in Section 2.4.
(b) Representations and Warranties. The representations and warranties
made by the Credit Parties in any Credit Document are true and correct in
all material respects at and as if made as of such date except to the
extent they expressly and exclusively relate to an earlier date.
(c) No Default. No Default or Event of Default shall exist and be
continuing either prior to or after giving effect to such Extension of
Credit.
56
(d) Availability. Immediately after giving effect to the making of a
Loan (and the application of the proceeds thereof) or to the issuance of a
Letter of Credit, as the case may be, (i) the sum of the outstanding
Revolving Loans plus outstanding LOC Obligations plus outstanding Swing
Line Loans plus outstanding Competitive Bid Loans shall not exceed the
Revolving Committed Amount, (ii) the sum of outstanding LOC Obligations
shall not exceed the LOC Committed Amount, (iii) the sum of outstanding
commercial Letters of Credit shall not exceed $40,000,000, (iv) the sum of
outstanding Swing Line Loans shall not exceed the Swing Line Committed
Amount and (v) the sum of outstanding Competitive Bid Loans shall not
exceed $300,000,000.
The delivery of each Notice of Borrowing, each request for a Letter of Credit,
each Swing Line Loan Request and each Competitive Bid Loan Request shall
constitute a representation and warranty by the Borrower of the correctness of
the matters specified in subsections (b), (c), and (d) above.
SECTION 6
REPRESENTATIONS AND WARRANTIES
The Credit Parties hereby represent to the Administrative Agent and each
Lender that:
6.1 Organization and Good Standing.
Each Credit Party (a) is either a partnership, a corporation or a limited
liability company duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (b) is duly qualified and in
good standing as a foreign organization and authorized to do business in every
other jurisdiction where its ownership or operation of property or the conduct
of its business would require it to be qualified, in good standing and
authorized, unless the failure to be so qualified, in good standing or
authorized would not have or would not reasonably be expected to have a Material
Adverse Effect and (c) has the power and authority to own and operate its
properties and to carry on its business as now conducted and as currently
proposed to be conducted.
6.2 Due Authorization.
Each Credit Party (a) has the power and authority to execute, deliver and
perform this Credit Agreement and the other Credit Documents to which it is a
party and to incur the obligations herein and therein provided for and (b) has
duly taken all necessary action to authorize, and is duly authorized, to
execute, deliver and perform this Credit Agreement and the other Credit
Documents to which it is a party.
6.3 Enforceable Obligations.
Each Credit Party has duly executed this Credit Agreement and each other
Credit Document to which such Credit Party is a party and this Credit Agreement
and such other Credit Documents
57
constitute legal, valid and binding obligations of such Credit Party enforceable
against such Credit Party in accordance with their respective terms, except as
may be limited by bankruptcy or insolvency laws or similar laws affecting
creditors' rights generally or by general equitable principles.
6.4 No Conflicts.
Neither the execution and delivery of the Credit Documents to which it is a
party, nor the consummation of the transactions contemplated herein and therein,
nor the performance of or compliance with the terms and provisions hereof and
thereof by a Credit Party will (a) violate, contravene or conflict with any
provision of such Credit Party's organizational documents, (b) violate,
contravene or conflict with any Requirement of Law (including, without
limitation, Regulations T, U or X), order, writ, judgment, injunction, decree,
license or permit applicable to such Credit Party which violation would have or
would reasonably be expected to have a Material Adverse Effect, (c) violate,
contravene or conflict with contractual provisions of, or cause an event of
default under, any indenture, loan agreement, mortgage, deed of trust, contract
or other agreement or instrument to which such Credit Party is a party or by
which it or its properties may be bound which violation would have or would
reasonably be expected to have a Material Adverse Effect, or (d) result in or
require the creation of any Lien upon or with respect to the properties of such
Credit Party.
6.5 Consents.
Except for consents, approvals and authorizations which have been obtained
or the absence of which would not have or would not reasonably be expected to
have a Material Adverse Effect, no consent, approval, authorization or order of,
or filing, registration or qualification with, any Governmental Authority,
equity owner or third party in respect of any Credit Party is required in
connection with the execution, delivery or performance of this Credit Agreement
or any of the other Credit Documents, or the consummation of any transaction
contemplated herein or therein by such Credit Party.
6.6 Financial Condition.
The financial statements delivered to the Administrative Agent and the
Lenders pursuant to Sections 7.1(a) and (b): (a) have been prepared in
accordance with GAAP and (b) present fairly the consolidated financial
condition, results of operations and cash flows of the Borrower and its
Subsidiaries as of such date and for such periods. Since December 31, 2003,
there has been no sale, transfer or other disposition by the Borrower or any of
its Subsidiaries of any material part of the business or property of the
Borrower and its Subsidiaries, taken as a whole, or purchase or other
acquisition by any such Person of any business or property (including any
Capital Stock of any other Person) material in relation to the consolidated
financial condition of the Borrower and its Subsidiaries, taken as a whole, in
each case, which, is not (i) reflected in the most recent financial statements
delivered to the Lenders prior to the Closing Date or pursuant to Section 7.1 or
in the notes thereto or (ii) otherwise permitted by the terms of this Credit
Agreement and communicated to the Administrative Agent and the Lenders.
58
6.7 No Material Change.
Except as disclosed on Schedule 6.7, since December 31, 2003, there has
been no development or event relating to or affecting the Borrower or any of its
Subsidiaries which has had or would reasonably be expected to have a Material
Adverse Effect.
6.8 Disclosure.
Neither this Credit Agreement, nor any other Credit Document, nor any
financial statements delivered to the Administrative Agent or the Lenders nor
any other document, certificate or statement furnished to the Administrative
Agent or the Lenders by or on behalf of any Credit Party in connection with the
transactions contemplated hereby, taken as a whole, contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements contained therein or herein not misleading.
6.9 No Default.
No Default or Event of Default has occurred and is continuing or would
result from the consummation of the transactions contemplated by this Credit
Agreement and the other Credit Documents.
6.10 Litigation.
Except as set forth in Schedule 6.10, no litigation, investigation, claim,
criminal prosecution, civil investigative demand, imposition of criminal or
civil fines and penalties, or any other proceeding of or before any arbitrator
or Governmental Authority is pending or, to the knowledge of the Borrower,
threatened by or against the Borrower or any of its Subsidiaries or against any
of its or their respective Properties (a) with respect to the Credit Documents
or any Loan or any of the transactions contemplated hereby or (b) which would
reasonably be expected to have a Material Adverse Effect.
6.11 Taxes.
The Borrower and each of its Subsidiaries has filed, or caused to be filed,
all material tax returns (federal, state, local and foreign) required to be
filed and has paid (a) all amounts of taxes shown thereon to be due (including
interest and penalties) and (b) all other material taxes, fees, assessments and
other governmental charges (including mortgage recording taxes, documentary
stamp taxes and intangibles taxes) owing by it, except for such taxes (i) which
are not yet delinquent or (ii) that are being contested in good faith and by
proper proceedings, and against which adequate reserves are being maintained in
accordance with GAAP.
6.12 Compliance with Law.
Except to the extent the same would not have or would not reasonably be
expected to have a Material Adverse Effect:
59
(a) The Borrower and each of its Subsidiaries is in compliance with
all Requirements of Law (including, without limitation, Environmental Laws,
ERISA, HIPAA, Medicaid Regulations and Medicare Regulations) and all
material orders, writs, injunctions and decrees applicable to it, or to its
Properties.
(b) (i) Neither the Borrower nor any of its Subsidiaries nor any
individual employed by the Borrower or any of its Subsidiaries has been, or
may reasonably be expected to be, excluded or suspended from participation
in any Medical Reimbursement Program for their corporate or individual
actions or failures to act; and (ii) there is no member of management
continuing to be employed by the Borrower or any of its Subsidiaries who
has been, or may reasonably be expected to have, individual criminal
culpability for healthcare matters under investigation by any Governmental
Authority unless such member of management has been, within a reasonable
period of time after discovery of such actual or potential culpability,
either suspended or removed from positions of responsibility related to
those activities under challenge by the Governmental Authority.
(c) Current billing policies, arrangements, protocols and instructions
comply with all material requirements of Medical Reimbursement Programs and
are administered by properly trained personnel.
(d) Current medical director compensation arrangements and other
arrangements with referring physicians comply with state and federal
self-referral and anti-kickback laws, including without limitation 42
U.S.C. Section 1320a-7b(b)(1) - (b)(2) and 42 U.S.C. Section 1395nn.
6.13 Licensing and Accreditation.
Except to the extent the same would not have or would not be reasonably
expected to have a Material Adverse Effect, each of the Credit Parties has, to
the extent applicable: (a) obtained and maintains in good standing all required
licenses, permits, authorization and approvals of each Governmental Authority
necessary to the conduct of its business; (b) to the extent prudent and
customary in the industry in which it is engaged, obtained and maintains
accreditation from all generally recognized accrediting agencies (including, but
not limited to, CAP); (c) obtained and maintains CLIA certification; (d) entered
into and maintains in good standing its Medicare Provider Agreements and its
Medicaid Provider Agreements; and (e) ensured that all such required licenses,
certifications and accreditations are in full force and effect on the date
hereof and have not been revoked or suspended or otherwise limited.
6.14 Title to Properties, Liens.
The Borrower and each of its Subsidiaries, is the owner of, and has good
title to, or has a valid license or lease to use, all of its material
Properties. All Liens on the Properties of the Borrower and its Subsidiaries are
Permitted Liens.
60
6.15 Insurance.
The properties of the Borrower and each of its Subsidiaries are insured
with financially sound and reputable insurance companies that are not Affiliates
of the Borrower (except to the extent that self-insurance is maintained in
reasonable amounts), in such amounts, with such deductibles and covering such
risks, as is reasonable and prudent.
6.16 Use of Proceeds.
The proceeds of the Loans will be used solely for the purposes specified in
Section 7.10. No proceeds of the Loans will be used for the Acquisition of
another Person unless such Acquisition is a Permitted Acquisition.
6.17 Government Regulation.
(a) "Margin stock" within the meaning of Regulation U does not
constitute more than 25% of the value of the consolidated assets of the
Borrower and its Subsidiaries. None of the transactions contemplated by the
Credit Documents (including, without limitation, the direct or indirect use
of the proceeds of the Loans) will violate or result in a violation of (i)
the Securities Act, (ii) the Exchange Act or (iii) Regulations T, U or X.
(b) Neither the Borrower nor any of its Subsidiaries is subject to
regulation under the Public Utility Holding Company Act of 1935, the
Federal Power Act or the Investment Company Act of 1940, each as amended.
6.18 ERISA.
Except as would not result in or would not reasonably be expected to result
in a Material Adverse Effect:
(a) (i) No ERISA Event has occurred, and, to the best knowledge of the
Borrower, each of its Subsidiaries and each ERISA Affiliate, no event or
condition has occurred or exists as a result of which any ERISA Event could
reasonably be expected to occur, with respect to any Plan; (ii) no
"accumulated funding deficiency," as such term is defined in Section 302 of
ERISA and Section 412 of the Code, whether or not waived, has occurred with
respect to any Plan and no application for a funding waiver or an extension
of any amortization period pursuant to Section 412 of the Code has been
made with respect to any Plan; (iii) each Plan has been maintained,
operated, and funded in compliance with its own terms and in material
compliance with the provisions of ERISA, the Code, and any other applicable
federal or state laws; (iv) each Plan that is intended to qualify under
Section 401(a) of the Code has received a favorable determination letter
from the IRS or an application for such a letter is currently being
processed by the IRS with respect thereto and, to the best knowledge of the
Borrower, each of its Subsidiaries and each ERISA Affiliate, nothing has
occurred which would prevent, or cause the loss of, such qualification; and
(v)
61
no Lien in favor or the PBGC or a Plan has arisen or is reasonably likely
to arise on account of any Plan.
(b) Neither the Borrower nor any Subsidiary of the Borrower nor any
ERISA Affiliate has incurred, or, to the best of each such party's
knowledge, is reasonably expected to incur, any liability under Title IV of
ERISA with respect to any Single Employer Plan, or any withdrawal liability
under ERISA to any Multiemployer Plan or Multiple Employer Plan. Neither
the Borrower nor any Subsidiary of the Borrower nor any ERISA Affiliate has
received any notification that any Multiemployer Plan is in reorganization
(within the meaning of Section 4241 of ERISA), is insolvent (within the
meaning of Section 4245 of ERISA), or has been terminated (within the
meaning of Title IV of ERISA), and no Multiemployer Plan is, to the best of
each such Person's knowledge, reasonably expected to be in reorganization,
insolvent, or terminated. Neither the Borrower nor any Subsidiary of the
Borrower nor any ERISA Affiliate has engaged in a transaction that could be
subject to Sections 4069 or 4212(c) of ERISA.
(c) No prohibited transaction (within the meaning of Section 406 of
ERISA or Section 4975 of the Code) or breach of fiduciary responsibility
has occurred with respect to a Plan which has subjected or may subject the
Borrower, any Subsidiary of the Borrower or any ERISA Affiliate to any
liability under Sections 406, 409, 502(i), or 502(l) of ERISA or Section
4975 of the Code, or under any agreement or other instrument pursuant to
which the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate
has agreed or is required to indemnify any person against any such
liability. There are no pending or, to the best knowledge of the Borrower,
each of its Subsidiaries and each ERISA Affiliate, threatened claims,
actions or lawsuits, or action by any Governmental Authority, with respect
to any Plan that could reasonably be expected to have a Material Adverse
Effect.
(d) Each Plan that is a welfare plan (as defined in Section 3(1) of
ERISA) to which Sections 601-609 of ERISA and Section 4980B of the Code
apply has been administered in compliance in all material respects with
such sections.
6.19 Environmental Matters.
(a) Except as would not result in or would not reasonably be expected
to result in a Material Adverse Effect:
(i) Each of the real properties owned, leased or operated by the
Borrower or any of its Subsidiaries (the "Real Properties") and all
operations at the Real Properties are in compliance with all
applicable Environmental Laws, and there is no violation of any
Environmental Law with respect to the Real Properties or the
businesses operated by the Borrower or any of its Subsidiaries (the
"Businesses"), and there are no conditions relating to the Businesses
or Real Properties that would reasonably be expected to give rise to
liability under any applicable Environmental Laws.
62
(ii) No Credit Party has received any written notice of, or
inquiry from any Governmental Authority regarding, any violation,
alleged violation, non-compliance, liability or potential liability
regarding Hazardous Materials or compliance with Environmental Laws
with regard to any of the Real Properties or the Businesses, nor, to
the knowledge of the Borrower or any of its Subsidiaries, is any such
notice being threatened.
(iii) Hazardous Materials have not been transported or disposed
of from the Real Properties, or generated, treated, stored or disposed
of at, on or under any of the Real Properties or any other location,
in each case by, or on behalf or with the permission of, the Borrower
or any of its Subsidiaries in a manner that would give rise to
liability under any applicable Environmental Laws.
(iv) No judicial proceeding or governmental or administrative
action is pending or, to the knowledge of the Borrower or any of its
Subsidiaries, threatened, under any Environmental Law to which the
Borrower or any of its Subsidiaries is or will be named as a party,
nor are there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with
respect to the Borrower or any of its Subsidiaries, the Real
Properties or the Businesses.
(v) There has been no release (including, without limitation,
disposal) or threat of release of Hazardous Materials at or from the
Real Properties, or arising from or related to the operations of the
Borrower or any of its Subsidiaries in connection with the Real
Properties or otherwise in connection with the Businesses where such
release constituted a violation of, or would give rise to liability
under, any applicable Environmental Laws.
(vi) None of the Real Properties contains, or has previously
contained, any Hazardous Materials at, on or under the Real Properties
in amounts or concentrations that, if released, constitute or
constituted a violation of, or could give rise to liability under,
Environmental Laws.
(vii) Neither the Borrower, nor any of its Subsidiaries, has
assumed any liability of any Person (other than among themselves)
under any Environmental Law.
(b) The Credit Parties have adopted procedures that are designed to
(i) ensure that each Credit Party, any of its operations and each of the
Real Properties complies with applicable Environmental Laws and (ii)
minimize any liabilities or potential liabilities that each Credit Party,
any of its operations and each of the Real Properties may have under
applicable Environmental Laws.
63
6.20 Intellectual Property.
The Borrower and each of its Subsidiaries owns, or has the legal right to
use, all material patents, trademarks, tradenames, copyrights, technology,
know-how and processes (the "Intellectual Property") necessary for each of them
to conduct its business as currently conducted other than as would not have or
would not be reasonably expected to have a Material Adverse Effect. No claim has
been asserted and is pending by any Person challenging or questioning the use of
any Intellectual Property owned by the Borrower or any of its Subsidiaries or
that the Borrower or any of its Subsidiaries has a right to use or the validity
or effectiveness of any such Intellectual Property, nor does the Borrower or any
of its Subsidiaries have knowledge of any such claim, and, to the knowledge of
the Borrower and its Subsidiaries, the use of any Intellectual Property by the
Borrower and its Subsidiaries does not infringe on the rights of any Person,
except for such claims and infringements that in the aggregate, would not have
or would not reasonably be expected to have a Material Adverse Effect.
6.21 Subsidiaries.
As of the Closing Date, set forth on Schedule 6.21 is a complete and
accurate list of all Subsidiaries of the Borrower and which of such Subsidiaries
are Material Domestic Subsidiaries.
6.22 Solvency.
Each Credit Party is and, after consummation of the transactions
contemplated by this Credit Agreement, will be Solvent.
SECTION 7
AFFIRMATIVE COVENANTS
Each Credit Party hereby covenants and agrees that so long as this Credit
Agreement is in effect and until the Loans and LOC Obligations, together with
interest and fees and other obligations then due and payable hereunder, have
been paid in full and the Commitments and Letters of Credit hereunder shall have
terminated:
7.1 Information Covenants.
The Credit Parties will furnish, or cause to be furnished, to the
Administrative Agent and each of the Lenders an electronic (if readily
available) and a hard copy of:
(a) Annual Financial Statements. As soon as available, and in any
event within the earlier of (i) 95 days after the close of each fiscal year
of the Borrower or (ii) ten Business Days after the date the Borrower files
its Form 10-K with the Securities and Exchange Commission, a consolidated
balance sheet and income statement of the Borrower and its Subsidiaries, as
of the end of such fiscal year, together with related consolidated
statements of operations, cash flows and changes in stockholders' equity
for such fiscal
64
year, setting forth in comparative form consolidated figures for the
preceding fiscal year, all such consolidated financial information
described above to be audited by independent certified public accountants
of recognized national standing and whose opinion shall be to the effect
that such financial statements fairly present in all material respects the
consolidated financial position, results of operations and cash flows of
the Borrower and its Subsidiaries as at the end of, and for, such fiscal
year in accordance with GAAP and shall not be limited as to the scope of
the audit or qualified in any manner.
(b) Quarterly Financial Statements. As soon as available, and in any
event within the earlier of (i) 50 days after the close of each of the
first three fiscal quarters of the Borrower or (ii) ten Business Days after
the date the Borrower files its Form 10-Q with the Securities and Exchange
Commission, a consolidated balance sheet and income statement of the
Borrower and its Subsidiaries, as of the end of such fiscal quarter,
together with related consolidated statements of operations, cash flows and
changes in stockholders' equity for such fiscal quarter setting forth in
each case in comparative form the corresponding consolidated statements of
operations and cash flows for the corresponding period of the preceding
fiscal year, and accompanied by a certificate of an Authorized Officer of
the Borrower to the effect that such quarterly financial statements fairly
present in all material respects the consolidated financial condition of
the Borrower and its Subsidiaries and in accordance with GAAP, subject to
changes resulting from audit and normal year-end audit adjustments.
Notwithstanding the above, it is understood and agreed that delivery of the
Borrower's applicable Form 10-Q shall satisfy the requirements of this
Section 7.1(b).
(c) Officer's Certificate. At the time of delivery of the financial
statements provided for in Sections 7.1(a) and 7.1(b) above, a certificate
of an Authorized Officer of the Borrower substantially in the form of
Exhibit 7.1(c), (i) demonstrating compliance with the financial covenants
contained in Section 7.2 and the covenant requirements in Section 7.12(b)
by calculation thereof as of the end of each such fiscal period, (ii)
demonstrating compliance with any other terms of this Credit Agreement as
reasonably requested by the Administrative Agent, (iii) stating that no
Default or Event of Default exists, or if any Default or Event of Default
does exist, specifying the nature and extent thereof and what action the
Borrower proposes to take with respect thereto and (iv) updating Schedule
6.21 as of the end of such fiscal period.
(d) Reports. Promptly upon transmission or receipt thereof, copies of
all financial statements, proxy statements, notices and reports as the
Borrower or any of its Subsidiaries shall send to shareholders of the
Borrower generally and, upon request of the Administrative Agent, copies of
any filings and registrations with, and reports to or from, any
Governmental Authority which has regulatory authority with respect to the
Borrower and its Subsidiaries.
(e) Notices. Upon a Credit Party obtaining knowledge thereof, the
Borrower will give written notice to the Administrative Agent promptly (and
in any event within five Business Days) of (i) the occurrence of an event
or condition consisting of a Default or Event of Default, specifying the
nature and existence thereof and what action the Borrower proposes to take
with respect thereto, (ii) the occurrence of any of the following with
respect
65
to the Borrower or any of its Subsidiaries (A) the pendency or commencement
of any litigation, arbitration or governmental proceeding against the
Borrower or any of its Subsidiaries which (x) would have or would
reasonably be expected to have a Material Adverse Effect, or (y) would
result in a significant liability to the Credit Parties or (B) material
non-compliance with, or the institution of any proceedings against the
Borrower or any of its Subsidiaries with respect to, or the receipt of
written notice by such Person of potential liability or responsibility for
violation, or alleged violation of, any Requirement of Law (including,
without limitation, Environmental Laws) the violation of which would have
or would reasonably be expected to have a Material Adverse Effect (iii) any
change to the Debt Rating of the Borrower, and (iv) any investigation or
proceeding against the Borrower or any of its Subsidiaries to suspend,
revoke or terminate, any Medicaid Provider Agreement, Medicare Provider
Agreement, or exclusion from any Medical Reimbursement Program, which is
reasonably expected to have a Material Adverse Effect; and (v) any breach
by the Borrower or any of its Subsidiaries or any predecessor of the
Borrower or any of its Subsidiaries of the Corporate Integrity Agreement
entered into with the OIG if such breach causes the OIG to take any adverse
action as a result of such breach.
(f) ERISA. Upon the Borrower, any Subsidiary of the Borrower or any
ERISA Affiliate obtaining knowledge thereof, such Person shall give written
notice to the Administrative Agent and each of the Lenders promptly (and in
any event within two Business Days) of the occurrence of any of the
following events which has had or would be reasonably expected to have a
Material Adverse Effect: (i) any Reportable Event, that constitutes an
ERISA Event; (ii) with respect to any Multiemployer Plan, the receipt of
notice as prescribed in ERISA or otherwise of any withdrawal liability
assessed against the Borrower, any Subsidiary of the Borrower or any ERISA
Affiliate, or of a determination that any Multiemployer Plan is in
reorganization or insolvent (both within the meaning of Title IV of ERISA);
(iii) the failure to make full payment on or before the due date (including
extensions) thereof of all amounts which the Borrower, any Subsidiary of
the Borrower or any ERISA Affiliate is required to contribute to each Plan
pursuant to its terms and as required to meet the minimum funding standard
set forth in ERISA and the Code with respect thereto; or (iv) any change in
the funding status of any Plan that could have a Material Adverse Effect;
in each case together with a description of any such event or condition or
a copy of any such notice and a statement by an Authorized Officer of the
Borrower briefly setting forth the details regarding such event, condition,
or notice, and the action, if any, which has been or is being taken or is
proposed to be taken by such Person with respect thereto. Promptly upon
request, the Credit Parties shall furnish the Administrative Agent and the
Lenders with such additional information concerning any Plan as may be
reasonably requested, including, but not limited to, copies of each annual
report/return (Form 5500 series), as well as all schedules and attachments
thereto required to be filed with the Department of Labor and/or the
Internal Revenue Service pursuant to ERISA and the Code, respectively, for
each "plan year" (within the meaning of Section 3(39) of ERISA).
66
(g) Environmental.
(i) Subsequent to a written notice from any Governmental
Authority that would reasonably be expected to result in a Material
Adverse Effect, or during the existence of an Event of Default, and
upon the written request of Administrative Agent, the Credit Parties
will furnish or cause to be furnished to the Administrative Agent, at
the Credit Parties' expense, a report of an environmental assessment
of reasonable scope, form and depth, including, where appropriate,
invasive soil or groundwater sampling, by a consultant reasonably
acceptable to the Administrative Agent addressing the subject of such
notice or, if during the existence of an Event of Default, regarding
any release or threat of release of Hazardous Materials on any
Property owned, leased or operated by a Credit Party and the
compliance by the Credit Parties with Environmental Laws. If the
Credit Parties fail to deliver such an environmental report within
seventy-five (75) days after receipt of such written request, then the
Administrative Agent may arrange for same, and the Credit Parties
hereby grant to the Administrative Agent and its representatives
access to the Real Properties and a license of a scope reasonably
necessary to undertake such an assessment (including, where
appropriate, invasive soil or groundwater sampling). The reasonable
cost of any assessment arranged for by the Administrative Agent
pursuant to this provision will be payable by the Credit Parties on
demand.
(ii) Each Credit Party will conduct and complete, or cause to be
conducted and completed, all investigations, studies, sampling, and
testing and all remedial, removal, and other actions necessary to
address all Hazardous Materials on, from, or affecting any Real
Properties to the extent necessary to be in compliance with all
Environmental Laws and all other applicable federal, state, and local
laws, regulations, rules and policies and with the orders and
directives of all Governmental Authorities exercising jurisdiction
over such Real Properties to the extent any failure would have or
would reasonably be expected to have a Material Adverse Effect.
(h) Other Information. With reasonable promptness upon any such
request, such other information regarding the business, properties or
financial condition of the Borrower and its Subsidiaries as the
Administrative Agent may reasonably request.
(i) Public/Private Information. The Borrower hereby acknowledges that
(i) the Administrative Agent will make available to the Lenders materials
and/or information provided by or on behalf of the Borrower hereunder
(collectively, "Borrower Materials") by posting the Borrower Materials on
IntraLinks or another similar electronic system (the "Platform") and (ii)
certain of the Lenders may be "public-side" Lenders (i.e., Lenders that do
not wish to receive material non-public information with respect to the
Borrower or its securities) (each, a "Public Lender"). The Borrower hereby
agrees that (A) all Borrower Materials that are to be made available to the
Public Lenders shall be clearly and conspicuously marked "PUBLIC" which, at
a minimum, shall mean that the word "PUBLIC" shall appear prominently on
the first page thereof; (B) by marking Borrower Materials "PUBLIC", the
Borrower shall be deemed to have authorized the Administrative
67
Agent and the Lenders to treat such Borrower Materials as either publicly
available information or not material information (although it may be
sensitive and proprietary) with respect to the Borrower or its securities
for purposes of United States federal and state securities laws; (C) all
Borrower Materials marked "PUBLIC" are permitted to be made available
through a portion of the Platform designated as "Public"; and (D) the
Administrative Agent shall be entitled to treat any Borrower Materials that
are not marked "PUBLIC" as being suitable only for posting on a portion of
the Platform not marked "Public".
(j) Electronic Delivery. Documents required to be delivered pursuant
to Section 7.1(a) or (b) (to the extent any such documents are included in
materials otherwise filed with the Securities and Exchange Commission) may
be delivered electronically and if so delivered, shall be deemed to have
been delivered on the date (i) on which the Borrower posts such documents,
or provides a link thereto on the Borrower's website on the Internet at the
website address listed on Schedule 11.1 or (ii) on which such documents are
posted on the Borrower's behalf on an Internet or intranet website, if any,
to which each Lender and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the Administrative
Agent); provided that: (A) the Borrower shall deliver paper copies of such
documents to the Administrative Agent or any Lender that requests the
Borrower to deliver such paper copies until a written request to cease
delivering paper copies is given by the Administrative Agent or such Lender
and (B) the Borrower shall notify (which may be facsimile or electronic
mail) the Administrative Agent and each Lender of the posting of any such
documents and provide to the Administrative Agent by electronic mail
electronic versions (i.e., soft copies) of such documents. Notwithstanding
anything contained herein, in every instance the Borrower shall be required
to provide paper copies of the compliance certificates required by Section
7.1(c) to the Administrative Agent. Except for such compliance
certificates, the Administrative Agent shall have no obligation to request
the delivery or to maintain copies of the documents referred to above, and
in any event shall have no responsibility to monitor compliance by the
Borrower with any such request for delivery, and each Lender shall be
solely responsible for requesting delivery to it or maintaining its copies
of such documents.
7.2 Financial Covenants.
(a) Leverage Ratio. The Leverage Ratio, as of the last day of each
fiscal quarter of the Borrower, shall be less than or equal to 3.25 to 1.0.
(b) Interest Coverage Ratio. The Interest Coverage Ratio, as of the
last day of each fiscal quarter of the Borrower, shall be greater than or
equal to 3.5 to 1.0.
7.3 Preservation of Existence and Franchises.
The Borrower will, and will cause its Subsidiaries to, do all things
necessary to preserve and keep in full force and effect its existence, rights,
franchises, Intellectual Property and authority except as permitted by Section
8.4; provided that neither the Borrower nor any of its Subsidiaries shall be
required to preserve any rights, franchises, Intellectual Property or authority
if the Borrower
68
or such Subsidiary shall determine that the preservation thereof is no longer
desirable in the conduct of its business and if the loss thereof would not have
or would not reasonably be expected to have a Material Adverse Effect.
7.4 Books and Records.
The Borrower will, and will cause its Subsidiaries to, keep complete and
accurate books and records of its transactions in order to produce its financial
statements in accordance with GAAP (including the establishment and maintenance
of appropriate reserves).
7.5 Compliance with Law.
Except to the extent the failure to do so would not have or would not
reasonably be expected to have a Material Adverse Effect, the Borrower will, and
will cause each of its Subsidiaries to, (a) comply with all Requirements of Law,
and all applicable restrictions imposed by all Governmental Authorities,
applicable to it and its Property (including, without limitation, Environmental
Laws and ERISA), (b) conform with and duly observe in all material respects all
laws, rules and regulations and all other valid requirements of any regulatory
authority with respect to the conduct of its business, including without
limitation, HIPAA, Medicare Regulations, Medicaid Regulations, and all laws,
rules and regulations of Governmental Authorities, pertaining to the business of
the Credit Parties; (c) obtain and maintain all licenses, permits,
certifications and approvals of all applicable Governmental Authorities as are
required for the conduct of its business as currently conducted and herein
contemplated, including without limitation professional licenses, CLIA
certifications, Medicare Provider Agreements and Medicaid Provider Agreements;
(d) ensure that (i) billing policies, arrangements, protocols and instructions
will comply with reimbursement requirements under Medicare, Medicaid and other
Medical Reimbursement Programs and will be administered by properly trained
personnel; (ii) medical director compensation arrangements and other
arrangements with referring physicians will comply with applicable state and
federal self-referral and anti-kickback laws, including without limitation 42
U.S.C. Section 1320a-7b(b)(1) - (b)(2) 42 U.S.C. and 42 U.S.C. Section 1395nn;
and (iii) no event or related events occur that results in the exclusion of the
Borrower or any of its Subsidiaries from participation in any Medical
Reimbursement Program and (e) make commercially reasonable efforts to implement
policies that are consistent with HIPAA on or before the date that any Credit
Party is required to comply therewith.
7.6 Payment of Taxes and Other Indebtedness.
The Borrower will, and will cause its Subsidiaries to, pay, settle or
discharge (a) all material taxes, assessments and governmental charges or levies
imposed upon it, or upon its income or profits, or upon any of its properties,
before they shall become delinquent, (b) all material lawful claims (including
claims for labor, materials and supplies) which, if unpaid, might give rise to a
Lien upon any of its properties, and (c) all of its other material Indebtedness
as it shall become due (to the extent such repayment is not otherwise prohibited
by this Credit Agreement); provided, however, that a Credit Party shall not be
required to pay any such tax, assessment, charge, levy, claim or Indebtedness
which is being contested in good faith by appropriate proceedings and as to
which adequate reserves therefor have been established in accordance with GAAP,
unless the
69
failure to make any such payment (i) would give rise to an immediate right to
foreclose or collect on a Lien securing such amounts or (ii) would have or would
reasonably be expected to have a Material Adverse Effect.
7.7 Insurance.
The Borrower will, and will cause each of its Subsidiaries to, at all times
maintain in full force and effect insurance (including worker's compensation,
liability, casualty and business interruption insurance) with reputable national
companies that are not Affiliates of the Borrower (except to the extent that
self-insurance is maintained in reasonable amounts), in such amounts, covering
such risks and liabilities as is reasonable and prudent.
7.8 Maintenance of Property.
The Borrower will, and will cause its Subsidiaries to, maintain and
preserve its properties and equipment in good repair, working order and
condition, normal wear and tear excepted, and will make, or cause to be made, in
such properties and equipment from time to time all repairs, renewals,
replacements, extensions, additions, betterments and improvements thereto as may
be needed or proper, in each case to the extent and in the manner customary for
companies in similar businesses.
7.9 Performance of Obligations.
Except to the extent the failure to do so would not have or would not
reasonably be expected to have a Material Adverse Effect, the Borrower will, and
will cause its Subsidiaries to, perform all of its obligations under the terms
of all contracts, agreements or other agreements not evidencing Indebtedness to
which it is a party or by which it or its Properties may be bound.
7.10 Use of Proceeds.
The Borrower will use the proceeds of the Loans solely (a) to repay
Indebtedness outstanding under the Existing Revolving Credit Agreement and any
other Indebtedness of the Borrower and its Subsidiaries, (b) to provide working
capital for the Borrower and its Subsidiaries and (c) for general corporate
purposes of the Borrower and its Subsidiaries. The Borrower will use the Letters
of Credit solely for the purposes set forth in Section 2.2(a).
7.11 Audits/Inspections.
Upon reasonable notice and during normal business hours, but not more than
once per calendar year, the Borrower will, and will cause each of its
Subsidiaries to, permit representatives appointed by the Administrative Agent or
any Lender, including, without limitation, independent accountants, agents,
attorneys and appraisers to visit and inspect the Borrower's or any Subsidiary's
Property, including its books and records, its accounts receivable and
inventory, its facilities and its other business assets, and to make photocopies
or photographs thereof and to write down and record any information such
representative obtains and shall permit the Administrative Agent, any Lender or
its representatives to investigate and verify the accuracy of information
provided to the Administrative Agent or the Lenders and to discuss all such
matters with the officers, employees
70
and representatives of the Borrower and/or its Subsidiaries; provided, however,
during the existence of a Default or Event of Default, the Administrative Agent
and the Lenders may request as many inspections as reasonable under the
circumstances. Any expenses incurred in connection with this Section 7.11 shall
be for the account of the Lenders unless an Event of Default exists in which
case such expenses shall be for the account of the Borrower. Any representatives
appointed by the Administrative Agent shall sign a confidentiality agreement
reasonably acceptable to the Borrower prior to any visit, investigation,
inspection or verification permitted by this Section 7.11.
7.12 Additional Credit Parties.
(a) At the time any Person becomes a Material Domestic Subsidiary or
at the time any Subsidiary of the Borrower guaranties any Pari Passu Debt
(if it is not already a Guarantor), the Borrower shall so notify the
Administrative Agent and promptly thereafter (but in any event within 30
days) shall cause such Person to (i) execute a Joinder Agreement in
substantially the same form as Exhibit 7.12, and (ii) deliver such other
documentation as the Administrative Agent may reasonably request in
connection with the foregoing, including, without limitation, certified
resolutions and other organizational and authorizing documents of such
Person and favorable opinions of counsel to such Person (which shall cover,
among other things, the legality, validity, binding effect and
enforceability of the documentation referred to above), all in form,
content and scope reasonably satisfactory to the Administrative Agent.
(b) If at any time Non-Material Domestic Subsidiaries own assets in an
aggregate amount greater than five percent (5%) of Total Assets or produce
revenues in an aggregate amount greater than five percent (5%) of the total
revenues of the Borrower and its Subsidiaries on a consolidated basis, the
Borrower will designate one or more Non-Material Domestic Subsidiaries to
become a Guarantor (and such Non-Material Domestic Subsidiary shall become
a Guarantor in accordance with clause (a) above) so that after giving
effect to such designation and action, Non-Material Domestic Subsidiaries
own assets in the aggregate of equal to or less than five percent (5%) of
Total Assets and produce revenues in an aggregate amount equal to or less
than five percent (5%) of the total revenues of the Borrower and its
Subsidiaries on a consolidated basis.
7.13 Compliance Program.
The Borrower will, and will cause each of its Domestic Subsidiaries that
operates a clinical laboratory to, maintain, and be operated in accordance with,
a compliance program which is reasonably designed to provide effective internal
controls that promote adherence to applicable federal and state law and the
program requirements of federal and state health plans, and which includes the
implementation of internal audits and monitoring on a regular basis to monitor
compliance with the requirements of the compliance program and applicable law,
regulations and company policies.
71
7.14 Existing Term Credit Agreement.
The Borrower will repay in full all outstanding obligations under the
Existing Term Credit Agreement on the earlier of (a) the last day of the
applicable Eurodollar interest periods in effect as of the Closing Date and (b)
May 15, 2004.
SECTION 8
NEGATIVE COVENANTS
Each Credit Party hereby covenants and agrees that so long as this Credit
Agreement is in effect and until the Loans and LOC Obligations, together with
interest, fees and other obligations then due and payable hereunder, have been
paid in full and the Commitments and Letters of Credit hereunder shall have
terminated:
8.1 Indebtedness.
The Borrower will not permit any of its Subsidiaries to, contract, create,
incur, assume or permit to exist any Indebtedness, other than:
(a) Guaranty Obligations arising under this Credit Agreement and the
other Credit Documents;
(b) Indebtedness in respect of current accounts payable and accrued
expenses incurred in the ordinary course of business;
(c) Indebtedness owing by a Subsidiary of the Borrower to the Borrower
or another Subsidiary of the Borrower;
(d) purchase money Indebtedness (including Capital Leases) to finance
the purchase of fixed assets (including equipment); provided that (i) the
total of all such Indebtedness shall not exceed an aggregate principal
amount of $100,000,000 (less any purchase money Indebtedness incurred by
the Borrower) at any one time outstanding; (ii) such Indebtedness when
incurred shall not exceed the purchase price of the asset(s) financed; and
(iii) no such Indebtedness shall be refinanced for a principal amount in
excess of the principal balance outstanding thereon at the time of such
refinancing;
(e) Indebtedness arising from Permitted Receivables Financings in an
amount not to exceed $600,000,000, in the aggregate (less any Indebtedness
incurred by the Borrower arising from Permitted Receivables Financings), at
any one time outstanding;
(f) Indebtedness evidenced by Hedging Agreements entered into in the
ordinary course of business and not for speculative purposes;
(g) Any guaranty of Indebtedness of the Borrower;
72
(h) Indebtedness incurred after the Effective Date in connection with
the acquisition of a Person or Property as long as such Indebtedness
existed prior to such acquisition and was not created in anticipation
thereof;
(i) Indebtedness existing on the Closing Date as set forth on Schedule
8.1; and
(j) other unsecured Indebtedness in an amount not to exceed
$200,000,000, in the aggregate, at any one time outstanding.
8.2 Liens.
The Borrower will not, nor will it permit its Subsidiaries to, contract,
create, incur, assume or permit to exist any Lien with respect to any of its
Property of any kind (whether real or personal, tangible or intangible), whether
now owned or after acquired, other than Permitted Liens.
8.3 Nature of Business.
The Borrower will not, nor will it permit its Subsidiaries to, alter the
character of its business from that conducted as of the Effective Date or engage
in any substantial manner in any business other than (a) the business conducted
by the Borrower and its Subsidiaries as of the Effective Date and (b) other
healthcare-related businesses and businesses reasonably related thereto.
8.4 Consolidation and Merger.
The Borrower will not, nor will it permit any Subsidiary to, enter into any
transaction of merger or consolidation or liquidate, wind up or dissolve itself,
or suffer any such liquidation, wind-up or dissolution; provided that (subject
to Sections 7.12 and 7.13) (a) a Subsidiary of the Borrower may merge into the
Borrower or another Subsidiary of the Borrower, (b) a Subsidiary of the Borrower
may merge or consolidate with another Person in a transaction otherwise
permitted by Section 8.5 or (c) the Borrower or a Subsidiary of the Borrower may
merge or consolidate with or into another Person if the following conditions are
satisfied:
(i) if such transaction involves total consideration (cash and
non-cash) in excess of $750,000,000, the Administrative Agent is given
prior written notice of such action;
(ii) if the merger or consolidation involves a Credit Party, the
surviving entity of such merger or consolidation shall either (A) be such
Credit Party or (B) be a Subsidiary of the Borrower and expressly assume in
writing all of the obligations of such Credit Party under the Credit
Documents; provided that if the transaction is between the Borrower and
another Person, the Borrower must be the surviving entity;
(iii) the Credit Parties execute and deliver such documents,
instruments and certificates as the Administrative Agent may reasonably
request; and
73
(iv) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing.
8.5 Sale or Lease of Assets.
The Borrower will not, nor will it permit its Subsidiaries to, convey,
sell, lease, transfer or otherwise voluntarily dispose of, in one transaction or
a series of transactions, all or any part of its business or assets whether now
owned or hereafter acquired, including, without limitation, inventory,
receivables, equipment, real property interests (whether owned or leasehold) and
securities, other than a sale, lease, transfer or other disposal of (a) subject
to Sections 7.12 and 7.13, assets from the Borrower or one of its Subsidiaries
to each other; (b) inventory and supplies in the ordinary course of business;
(c) obsolete, surplus, slow-moving, idle or worn-out assets no longer used or
useful in the business of such Credit Party or the trade-in of equipment for
equipment in better condition or of better quality; (d) assets which constitute
a Permitted Investment in the ordinary course of business; (e) Receivables
pursuant to a Permitted Receivables Financing; (f) Investments in the Strategic
Investments Portfolio and (g) assets of the Borrower and its Subsidiaries, in
addition to those permitted above in this Section 8.5; provided that in the case
of this clause (g) (i) no Event of Default exists prior to such transfer, (ii)
no Default or Event of Default exists after giving effect to such transfer and
(iii) after giving effect to such transfer, the aggregate amount of all such
transfers, calculated on a net book value basis, does not exceed ten percent
(10%) of Total Assets, as determined on the last day of the most recently ended
fiscal quarter of the Borrower for which an officer's certificate has been
delivered pursuant to Section 7.1(c).
8.6 Investments.
The Borrower will not, nor will it permit its Subsidiaries to, make or
permit to exist any Investments except for Permitted Investments.
8.7 Transactions with Affiliates.
The Borrower will not, nor will it permit its Subsidiaries to, enter into
any transaction or series of transactions, whether or not in the ordinary course
of business, with any officer, director, shareholder, Subsidiary or Affiliate
other than on terms and conditions substantially as favorable as would be
obtainable in a comparable arm's-length transaction with a Person other than an
officer, director, shareholder, Subsidiary or Affiliate, except that,
notwithstanding the foregoing, each of the following shall be permitted: (a)
transactions between or among the Credit Parties; (b) transactions between or
among the Borrower and its wholly owned Subsidiaries as long as such transaction
is not disadvantageous to the Lenders in any material respect; (c) transactions
between or among the Borrower or one or more of its wholly owned Subsidiaries
(on the one hand) and one of the non-wholly owned Subsidiaries of the Borrower
(on the other hand) as long as none of the equity of such non-wholly owned
Subsidiary is owned or controlled by an officer or director of any Credit Party;
(d) advances to employees permitted by clause (f) of the definition of Permitted
Investments; (e) Dividends; (f) fees, compensation and other benefits paid to,
and customary indemnity and reimbursement provided on behalf of, officers,
directors and employees of any Credit Party in the ordinary course of business;
(g) any employment agreements entered into by
74
the Borrower or any of its Subsidiaries in the ordinary course of business; (h)
any Permitted Receivables Financing; and (i) transactions and agreements in
existence on the Closing Date and listed on Schedule 8.7 and, in each case, any
amendment thereto, that is not disadvantageous to the Lenders in any material
respect.
8.8 Fiscal Year; Accounting; Organizational Documents.
The Borrower will not, nor will it permit its Subsidiaries to, unless such
action (i) would not affect the calculation of the financial covenants in
Section 7.2 and (ii) would not or would not reasonably be likely to affect the
rights of the Lenders under the Credit Documents: (a) change its fiscal year
other than changing the fiscal year of a Subsidiary of the Borrower to a
calendar year end, (b) change its accounting procedures, except as a result of
changes in GAAP and in accordance with Section 1.3 or (c) change its
organizational or governing documents.
8.9 Stock Repurchases.
The Borrower will not, nor will it permit its Subsidiaries to, directly or
indirectly, purchase, redeem or otherwise acquire or retire or make any
provisions for redemption, acquisition or retirement of any shares of the
Capital Stock of the Borrower of any class or any warrants or options to
purchase any such shares (collectively, a "Stock Repurchase"); provided that the
Borrower or its Subsidiaries may consummate Stock Repurchases as long as on the
date of such Stock Repurchase and after giving effect to such Stock Repurchase
no Default or Event of Default exists and is continuing.
8.10 Sale/Leasebacks.
(a) Except as set forth in clause (b) below, the Borrower will not,
and will not permit any Subsidiary to, enter into any Sale and Leaseback
Transaction with respect to any Principal Property unless:
(i) the Sale and Leaseback Transaction is solely with the
Borrower or a Guarantor; or
(ii) the lease is for a period not in excess of five years,
including renewal rights; or
(iii) prior to or within 270 days after the completion of the
sale of such Principal Property in connection with the Sale and
Leaseback Transaction, the Borrower or its Subsidiary applies the net
cash proceeds of the sale of such Principal Property to: (A) the
prepayment of the Revolving Loans (with a corresponding permanent
reduction in the Revolving Committed Amount) or the prepayment of debt
ranking equally with the Loans; or (B) the acquisition of different
property, facilities or equipment or the expansion of the Borrower and
its Subsidiaries' existing business, including the acquisition of
other businesses.
75
(b) In addition to the Sale and Leaseback Transactions permitted by
clause (a) above, the Borrower or any of its Subsidiaries may enter into
any Sale and Leaseback Transactions if all Attributable Debt (measured, in
each case, at the time such Sale and Leaseback Transaction is entered into
by the Borrower or its Subsidiary) in respect of such Sale and Leaseback
Transactions (not including any Sale and Leaseback Transactions permitted
under clause (a) above), in the aggregate, does not exceed 5% of Total
Assets.
SECTION 9
EVENTS OF DEFAULT
9.1 Events of Default.
An Event of Default shall exist upon the occurrence, and during the
continuation, of any of the following specified events (each an "Event of
Default"):
(a) Payment. Any Credit Party shall default in the payment (i) when
due of any principal of any of the Loans or any reimbursement obligation
arising from drawings under Letters of Credit or (ii) within three Business
Days of when due of any interest on the Loans or any fees or other amounts
owing hereunder, under any of the other Credit Documents or in connection
herewith.
(b) Representations. Any representation, warranty or statement made or
deemed to be made by any Credit Party herein, in any of the other Credit
Documents, or in any statement or certificate delivered or required to be
delivered pursuant hereto or thereto shall prove untrue in any material
respect on the date as of which it was made or deemed to have been made.
(c) Covenants. Any Credit Party shall:
(i) default in the due performance or observance of any term,
covenant or agreement contained in Sections 7.2, 7.3, 7.10, 7.12, or
7.14 or Section 8 inclusive;
(ii) default in the due performance or observance by it of any
term, covenant or agreement contained in Section 7.1 (excepting
Section 7.1(e) for which the unremedied period shall only be five
Business Days) and 7.11 and such default shall continue unremedied for
a period of ten Business Days; or
(iii) default in the due performance or observance by it of any
term, covenant or agreement (other than those referred to in
subsections (a), (b) or (c)(i) or (ii) of this Section 9.1) contained
in this Credit Agreement and such default shall continue unremedied
for a period of at least 30 days after the earlier of an Authorized
Officer of the Borrower becoming aware of such default or notice
thereof given by the Administrative Agent.
76
(d) Other Credit Documents. (i) Any Credit Party shall default in the
due performance or observance of any term, covenant or agreement in any of
the other Credit Documents and such default shall continue unremedied for a
period of at least 30 days after the earlier of an Authorized Officer of
the Borrower becoming aware of such default or notice thereof given by the
Administrative Agent, (ii) any Credit Document shall fail to be in full
force and effect or any Credit Party shall so assert or (iii) any Credit
Document shall fail to give the Administrative Agent and/or the Lenders the
rights, powers and privileges purported to be created by such Credit
Document.
(e) Guaranties. The guaranty given by the Credit Parties hereunder or
by any Additional Credit Party or material provision thereof shall cease to
be in full force and effect, or any Guarantor or any Person acting by or on
behalf of such Guarantor shall deny or disaffirm such Guarantor's
obligations under such guaranty or such Guarantor shall default in the due
payment or performance of such guaranty.
(f) Bankruptcy, etc. The occurrence of any of the following with
respect to a Credit Party (i) a court or governmental agency having
jurisdiction in the premises shall enter a decree or order for relief in
respect of a Credit Party in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
appoint a receiver, liquidator, assignee, custodian, trustee, sequestrator,
administrator or similar official of a Credit Party or for any substantial
part of its Property or ordering the winding up or liquidation of, or an
administrator in respect of, its affairs; or (ii) an involuntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter
in effect is commenced against a Credit Party and such petition remains
unstayed and in effect for a period of 60 consecutive days; or (iii) a
Credit Party shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
consent to the entry of an order for relief in an involuntary case under
any such law, or consent to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator,
administrator or similar official of such Person or any substantial part of
its Property or make any general assignment for the benefit of creditors;
or (iv) a Credit Party shall fail generally, or shall admit in writing its
inability, to pay its debts as they become due or any action shall be taken
by such Person in furtherance of any of the aforesaid purposes.
(g) Defaults under Other Indebtedness. With respect to any
Indebtedness in excess of $100,000,000 (other than Indebtedness outstanding
under this Credit Agreement) of the Borrower or any of its Subsidiaries (A)
such Person shall (x) default in any payment (beyond the applicable grace
period with respect thereto, if any) with respect to any such Indebtedness,
or (y) default (after giving effect to any applicable grace period) in the
observance or performance relating to such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or any
other event or condition shall occur or condition exist, the effect of
which default or other event or condition is to cause, or permit, the
holder or holders of such Indebtedness (or trustee or agent on behalf of
such holders, if any) to require (determined without regard to whether any
notice or lapse of time is required) any such Indebtedness to become due
prior to its stated maturity; or (B) any
77
such Indebtedness shall be declared due and payable, or required to be
prepaid other than by a regularly scheduled required prepayment prior to
the stated maturity thereof; or (C) any such Indebtedness shall mature and
remain unpaid.
(h) Judgments. One or more judgments, orders, or decrees shall be
entered against any one or more of the Borrower and its Subsidiaries
involving a liability of $100,000,000 or more, in the aggregate, (to the
extent not paid, covered by insurance provided by a carrier who has
acknowledged coverage or covered by an indemnification from Corning
Incorporated or SmithKline Xxxxxxx PLC) and such judgments, orders or
decrees (i) are the subject of any enforcement proceeding commenced by any
creditor or (ii) shall continue unsatisfied, undischarged and unstayed for
a period ending on the first to occur of (A) the last day on which such
judgment, order or decree becomes final and unappealable or (B) 60 days.
(i) ERISA. The occurrence of any of the following events or conditions
which individually or in the aggregate has had or would reasonably be
expected to have a Material Adverse Effect: (i) any "accumulated funding
deficiency," as such term is defined in Section 302 of ERISA and Section
412 of the Code, whether or not waived, shall exist with respect to any
Plan, other than a Multiemployer Plan, or any Lien shall arise on the
assets of the Borrower, any Subsidiary of the Borrower or any ERISA
Affiliate in favor of the PBGC or a Plan, other than a Multiemployer Plan;
(ii) an ERISA Event shall occur with respect to a Single Employer Plan,
which is reasonably likely to result in the termination of such Plan for
purposes of Title IV of ERISA; (iii) an ERISA Event shall occur with
respect to a Multiemployer Plan or Multiple Employer Plan, which is
reasonably likely to result in (A) the termination of such plan for
purposes of Title IV of ERISA, or (B) the Borrower, any Subsidiary of the
Borrower or any ERISA Affiliate incurring any liability in connection with
a withdrawal from, reorganization of (within the meaning of Section 4241 of
ERISA), or insolvency (within the meaning of Section 4245 of ERISA) of such
plan; (iv) any prohibited transaction (within the meaning of Section 406 of
ERISA or Section 4975 of the Code) or breach of fiduciary responsibility
shall occur which may subject the Borrower, any Subsidiary of the Borrower
or any ERISA Affiliate to any liability under Sections 406, 409, 502(i), or
502(l) of ERISA or Section 4975 of the Code, or under any agreement or
other instrument pursuant to which the Borrower, any Subsidiary of the
Borrower or any ERISA Affiliate has agreed or is required to indemnify any
Person against any such liability; or (v) the Borrower, any Subsidiary of
the Borrower or any ERISA Affiliate fails to pay when due, after the
expiration of any applicable grace period, any installment payment with
respect to its withdrawal liability under Section 4201 of ERISA under a
Multiemployer Plan in an aggregate amount in excess of $100,000,000.
(j) Ownership. There shall occur a Change of Control.
9.2 Acceleration; Remedies.
Upon the occurrence and during the continuation of an Event of Default, the
Administrative Agent may or shall, upon the request and direction of the
Required Lenders, take the following
78
actions without prejudice to the rights of the Administrative Agent or any
Lender to enforce its claims against the Credit Parties, except as otherwise
specifically provided for herein:
(a) Termination of Commitments. Declare the Commitments terminated
whereupon the Commitments shall be immediately terminated.
(b) Acceleration of Loans. Declare the unpaid principal of and any
accrued interest in respect of all Loans, any reimbursement obligations
arising from drawings under Letters of Credit and any and all other
Indebtedness or obligations of any and every kind owing by a Credit Party
to any of the Lenders under the Credit Documents to be due whereupon the
same shall be immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Credit Parties.
(c) Cash Collateral. Direct the Borrower to pay (and the Borrower
agrees that upon receipt of such notice, or upon the occurrence of an Event
of Default under Section 9.1(f), it will immediately pay) to the
Administrative Agent additional cash, to be held by the Administrative
Agent, for the benefit of the Lenders, in a cash collateral account as
additional security for the LOC Obligations in respect of subsequent
drawings under all then outstanding Letters of Credit in an amount equal to
the maximum aggregate amount which may be drawn under all Letters of
Credits then outstanding.
(d) Enforcement of Rights. To the extent permitted by law, enforce any
and all rights and interests created and existing under the Credit
Documents, including, without limitation, all rights and remedies against a
Guarantor and all rights of set-off.
Notwithstanding the foregoing, if an Event of Default specified in Section
9.1(f) shall occur, then the Commitments shall automatically terminate and all
Loans, all reimbursement obligations under Letters of Credit, all accrued
interest in respect thereof, all accrued and unpaid fees and other indebtedness
or obligations owing to the Lenders hereunder shall immediately become due and
payable without the giving of any notice or other action by the Administrative
Agent or the Lenders, which notice or other action is expressly waived by the
Credit Parties.
Notwithstanding the fact that enforcement powers reside primarily with the
Administrative Agent, each Lender has, to the extent permitted by law, a
separate right of payment and shall be considered a separate "creditor" holding
a separate "claim" within the meaning of Section 101(5) of the Bankruptcy Code
or any other insolvency statute.
9.3 Allocation of Payments After Event of Default.
Notwithstanding any other provisions of this Credit Agreement, after the
exercise of any remedies by the Administrative Agent or the Lenders pursuant to
Section 9.2 (or after any Event of Default that causes the Commitments to
terminate and/or all of the Credit Party Obligations to be due hereunder), all
amounts collected or received by the Administrative Agent or any Lender on
account of amounts outstanding under any of the Credit Documents shall be paid
over or delivered as follows:
79
FIRST, to the payment of all reasonable out-of-pocket costs and
expenses (including without limitation reasonable Attorney Costs) of the
Administrative Agent or any of the Lenders in connection with enforcing the
rights of the Lenders under the Credit Documents, pro rata as set forth
below;
SECOND, to payment of any fees owed to the Administrative Agent, the
Issuing Lender, the Swing Line Lender or any Lender, pro rata as set forth
below;
THIRD, to the payment of all accrued interest payable to the Lenders
hereunder, pro rata as set forth below;
FOURTH, to the payment of the outstanding principal amount of the
Loans and unreimbursed drawings under Letters of Credit, and to the payment
or cash collateralization of the outstanding LOC Obligations, pro rata as
set forth below;
FIFTH, to all other obligations which shall have become due and
payable under the Credit Documents and not repaid pursuant to clauses
"FIRST" through "FOURTH" above; and
SIXTH, to the payment of the surplus, if any, to whoever may be
lawfully entitled to receive such surplus.
In carrying out the foregoing, (a) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category; (b) each of the Lenders shall receive an amount equal to
its pro rata share (based on the proportion that the then outstanding Loans, and
LOC Obligations held by such Lender bears to the aggregate then outstanding
Loans and LOC Obligations of amounts available to be applied; and (c) to the
extent that any amounts available for distribution pursuant to clause "FOURTH"
above are attributable to the issued but undrawn amount of outstanding Letters
of Credit, such amounts shall be held by the Administrative Agent in a cash
collateral account and applied (i) first, to reimburse the Issuing Lender from
time to time for any drawings under such Letters of Credit and (ii) then,
following the expiration of all Letters of Credit, to all other obligations of
the types described in clauses "FOURTH" and "FIFTH" above in the manner provided
in this Section 9.3.
SECTION 10
AGENCY PROVISIONS
10.1 Appointment.
(a) Each Lender hereby irrevocably appoints, designates and authorizes
the Administrative Agent to take such action on its behalf under the
provisions of this Credit Agreement and each other Credit Document and to
exercise such powers and perform such duties as are expressly delegated to
it by the terms of this Credit Agreement or any
80
other Credit Document, together with such powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary contained
elsewhere herein or in any other Credit Document, the Administrative Agent
shall not have any duties or responsibilities, except those expressly set
forth herein, nor shall the Administrative Agent have or be deemed to have
any fiduciary or trustee relationship with any Lender or participant, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Credit Agreement or any other Credit
Document or otherwise exist against the Administrative Agent. Without
limiting the generality of the foregoing sentence, the use of the term
"agent" herein and in the other Credit Documents with reference to the
Administrative Agent is not intended to connote any fiduciary or other
implied (or express) obligations arising under agency doctrine of any
applicable law. Instead, such term is used merely as a matter of market
custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.
(b) The Issuing Lender shall act on behalf of the Lenders with respect
to any Letters of Credit issued by it and the documents associated
therewith until such time (and except for so long) as the Administrative
Agent may agree at the request of the Required Lenders to act for the
Issuing Lender with respect thereto; provided, however, that the Issuing
Lender shall have all of the benefits and immunities (i) provided to the
Administrative Agent in this Section 10 with respect to any acts taken by
or omissions of the Issuing Lender in connection with Letters of Credit
issued by it or proposed to be issued by it and the application and
agreements for letters of credit pertaining to the Letters of Credit as
fully as if the term "Administrative Agent" as used in this Section 10
included the Issuing Lender with respect to such acts or omissions, and
(ii) as additionally provided herein with respect to the Issuing Lender.
(c) Each of (i) Wachovia Bank, National Association in its capacity as
Syndication Agent and (ii) Bank One, NA, PNC Bank, National Association and
KeyBank National Association in their capacities as Co-Documentation Agents
shall have no duties or obligations whatsoever under this Credit Agreement
or the other Credit Documents.
10.2 Delegation of Duties.
The Administrative Agent may execute any of its duties under this Credit
Agreement or any other Credit Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agent or attorney-in-fact that it selects with reasonable care.
10.3 Exculpatory Provisions.
No Agent-Related Person shall (a) be liable for any action taken or omitted
to be taken by any of them under or in connection with this Credit Agreement or
any other Credit Document or the transactions contemplated hereby (except for
its own gross negligence or willful misconduct in connection with its duties
expressly set forth herein), or (b) be responsible in any manner to
81
any Lender or participant for any recital, statement, representation or warranty
made by any Credit Party or any officer thereof, contained herein or in any
other Credit Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by the Administrative Agent
under or in connection with, this Credit Agreement or any other Credit Document,
or the validity, effectiveness, genuineness, enforceability or sufficiency of
this Credit Agreement or any other Credit Document, or for any failure of any
Credit Party or any other party to any Credit Document to perform its
obligations hereunder or thereunder. No Agent-Related Person shall be under any
obligation to any Lender or participant to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Credit Agreement or any other Credit Document, or to inspect the
properties, books or records of any Credit Party or any Affiliate thereof.
10.4 Reliance on Communications.
(a) The Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, communication, signature,
resolution, representation, notice, consent, certificate, affidavit,
letter, telegram, facsimile, telex or telephone message, statement or other
document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons, and upon
advice and statements of legal counsel (including counsel to any Credit
Party), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat each
Lender as the owner of its interests hereunder for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall have
been delivered to the Administrative Agent in accordance with Section
11.3(b). The Administrative Agent shall be fully justified in failing or
refusing to take any action under any Credit Document unless it shall first
receive such advice or concurrence of the Required Lenders as it deems
appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such
action. The Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Credit Agreement or any
other Credit Document in accordance with a request or consent of the
Required Lenders or all the Lenders, if required hereunder, and such
request and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders and participants, and their respective
successors and assigns. Where this Credit Agreement expressly permits or
prohibits an action unless the Required Lenders otherwise determine, the
Administrative Agent shall, and in all other instances, the Administrative
Agent may, but shall not be required to, initiate any solicitation for the
consent or a vote of the Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 5.1, each Lender that has signed this Credit Agreement
shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter either sent by the
Administrative Agent to such Lender for consent, approval, acceptance or
satisfaction, or required thereunder to be consented to or approved by or
acceptable or satisfactory to a Lender.
82
10.5 Notice of Default.
The Administrative Agent shall not be deemed to have knowledge or notice of
the occurrence of any Default or Event of Default, except with respect to
defaults in the payment of principal, interest and fees required to be paid to
the Administrative Agent for the account of the Lenders, unless the
Administrative Agent shall have received written notice from a Lender or the
Borrower referring to this Credit Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default." The
Administrative Agent will notify the Lenders of its receipt of any such notice.
The Administrative Agent shall take such action with respect to such Default or
Event of Default as may be reasonably directed by the Required Lenders in
accordance with Section 9.2; provided, however, that unless and until the
Administrative Agent has received any such direction, the Administrative Agent
may (but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such Default or Event of Default as it shall deem
advisable or in the best interest of the Lenders.
10.6 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereinafter taken, including any consent to and acceptance of any assignment or
review of the affairs of any Credit Party or any Affiliate thereof, shall be
deemed to constitute any representation or warranty by any Agent-Related Person
to any Lender as to any matter, including whether Agent-Related Persons have
disclosed material information in their possession. Each Lender represents to
the Administrative Agent that it has, independently and without reliance upon
any Agent-Related Person or any other Lender and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, Property, financial and
other condition and creditworthiness of the Credit Parties and their respective
Affiliates, and all applicable bank or other regulatory laws relating to the
transactions contemplated hereby, and made its own decision to enter into this
Credit Agreement and to extend credit to the Borrower hereunder. Each Lender
also represents that it will, independently and without reliance upon any
Agent-Related Person or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Credit Agreement and the other Credit Documents, and to make such
investigations as it deems necessary to inform itself as to the business,
prospects, operations, Property, financial and other condition and
creditworthiness of the Borrower. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent herein, the Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, Property, financial and other
condition or creditworthiness of any of the Credit Parties or any of their
respective Affiliates which may come into the possession of any Agent-Related
Person.
10.7 Indemnification.
Whether or not the transactions contemplated hereby are consummated, the
Lenders shall indemnify upon demand each Agent-Related Person (to the extent not
reimbursed by or on
83
behalf of any Credit Party and without limiting the obligation of any Credit
Party to do so), pro rata, and hold harmless each Agent-Related Person from and
against any and all Indemnified Liabilities incurred by it; provided, however,
that no Lender shall be liable for the payment to any Agent-Related Person of
any portion of such Indemnified Liabilities resulting from such Agent-Related
Person's gross negligence or willful misconduct; it being understood that no
action taken in accordance with the directions of the Required Lenders shall be
deemed to constitute gross negligence or willful misconduct for purposes of this
Section 10.7. Without limitation of the foregoing, each Lender shall reimburse
the Administrative Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) incurred by the Administrative
Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Credit Agreement, any other Credit Document, or any
document contemplated by or referred to herein, to the extent that the
Administrative Agent is not reimbursed for such expenses by or on behalf of the
Credit Parties. The undertaking in this Section 10.7 shall survive termination
of the Commitments, the payment of all Obligations hereunder and the resignation
or replacement of the Administrative Agent.
10.8 Administrative Agent in Its Individual Capacity.
Bank of America and its Affiliates may make loans to, issue letters of
credit for the account of, accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial advisory, underwriting
or other business with each of the Credit Parties and their respective
Affiliates as though Bank of America were not the Administrative Agent or the
Issuing Lender hereunder and without notice to or consent of the Lenders. The
Lenders acknowledge that, pursuant to such activities, Bank of America or its
Affiliates may receive information regarding any Credit Party or its Affiliates
(including information that may be subject to confidentiality obligations in
favor of such Credit Party or such Affiliate) and that the Administrative Agent
shall be under no obligation to provide such information to them. With respect
to its Loans, Bank of America shall have the same rights and powers under this
Credit Agreement as any other Lender and may exercise such rights and powers as
though it were not the Administrative Agent or the Issuing Lender, and the terms
"Lender" and "Lenders" include Bank of America in its individual capacity.
10.9 Successor Agent.
The Administrative Agent may resign as Administrative Agent upon 30 days'
notice to the Lenders. If the Administrative Agent resigns under this Credit
Agreement, the Required Lenders shall appoint from among the Lenders a successor
administrative agent for the Lenders which successor administrative agent (such
appointment, absent the existence of an Event of Default, to be subject to the
consent of the Borrower, which consent of the Borrower shall not be unreasonably
withheld or delayed). If no successor administrative agent is appointed prior to
the effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and the
Borrower, a successor administrative agent from among the Lenders. Upon the
acceptance of its appointment as successor administrative agent hereunder, such
successor administrative agent shall succeed to all the rights, powers and
84
duties of the retiring Administrative Agent and the term "Administrative Agent"
shall mean such successor administrative agent and the retiring Administrative
Agent's appointment, powers and duties as Administrative Agent shall be
terminated. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Section 10 and Sections 11.5 and
11.10 shall continue to inure to its benefit as to any actions taken or omitted
to be taken by it while it was Administrative Agent under this Credit Agreement.
If no successor administrative agent has accepted appointment as Administrative
Agent by the date which is 30 days following a retiring Administrative Agent's
notice of resignation, the retiring Administrative Agent's resignation shall
nevertheless thereupon become effective and the Lenders shall perform all of the
duties of the Administrative Agent hereunder until such time, if any, as the
Required Lenders appoint a successor agent as provided for above.
10.10. Agent May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Borrower or any of its Subsidiaries, the
Administrative Agent (irrespective of whether the principal of any Loan shall
then be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the Administrative Agent shall have made any demand on
the Borrower) shall be entitled and empowered, by intervention in such
proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal
and interest owing and unpaid in respect of the Loans and all other Credit
Party Obligations that are owing and unpaid and to file such other
documents as may be necessary or advisable in order to have the claims of
the Lenders and the Administrative Agent (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Lenders and the Administrative Agent and their respective agents and
counsel and all other amounts due the Lenders and the Administrative Agent)
allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its Administrative Agents and counsel, and any other
amounts due the Administrative Agent under the Credit Documents.
Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender any
plan of reorganization, arrangement, adjustment or composition affecting the
Credit Party Obligations or the rights of any Lender or to authorize the
Administrative Agent to vote in respect of the claim of any Lender in any such
proceeding.
85
SECTION 11
MISCELLANEOUS
11.1 Notices, Etc.
(a) General. Unless otherwise expressly provided herein, all notices
and other communications provided for hereunder shall be in writing
(including by facsimile transmission). All such written notices shall be
mailed certified or registered mail, faxed or delivered to the applicable
address, facsimile number or (subject to subsection (c) below) electronic
mail address, and all notices and other communications expressly permitted
hereunder to be given by telephone shall be made to the applicable
telephone number, as follows:
(i) if to a Credit Party or the Administrative Agent to the
address, facsimile number, electronic mail address or telephone number
specified for such Person on Schedule 11.1 or to such other address,
facsimile number, electronic mail address or telephone number as shall
be designated by such party in a notice to the other parties; and
(ii) if to any other Lender, to the address, facsimile number,
electronic mail address or telephone number specified in its
administrative questionnaire provided by the Administrative Agent or
to such other address, facsimile number, electronic mail address or
telephone number as shall be designated by such party in a notice to
such Credit Party and the Administrative Agent.
Notices sent by hand or overnight courier service, or mailed by
certified or registered mail, shall be deemed to have been given when
received; notices sent by facsimile shall be deemed to have been given when
sent (except that, if not given during normal business hours for the
recipient, shall be deemed to have been given at the opening of business on
the next business day for the recipient). Notices delivered through
electronic communications to the extent provided in subsection (b) below,
shall be effective as provided in such subsection (b).
(b) Electronic Communications. Notices and other communications to the
Lenders hereunder may be delivered or furnished by electronic communication
(including e-mail and Internet or intranet websites) pursuant to procedures
approved by the Administrative Agent, provided that the foregoing shall not
apply to notices to any Lender pursuant to Section 2 if such Lender has
notified the Administrative Agent that it is incapable of receiving notices
under such Section 2 by electronic communication. The Administrative Agent
or the Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures may be
limited to particular notices or communications.
86
(c) Effectiveness of Facsimile Documents and Signatures. Credit
Documents may be transmitted and/or signed by facsimile. The effectiveness
of any such documents and signatures shall, subject to applicable law, have
the same force and effect as manually-signed originals and shall be binding
on the Borrower, the Administrative Agent and the Lenders. The
Administrative Agent may also require that any such documents and
signatures be confirmed by a manually-signed original thereof; provided,
however, that the failure to request or deliver the same shall not limit
the effectiveness of any facsimile document or signature.
(d) Reliance by Administrative Agent and Lenders. The Administrative
Agent and the Lenders shall be entitled to rely and act upon any notices
(including telephonic notices) purportedly given by or on behalf of a
Credit Party even if (i) such notices were not made in a manner specified
herein, were incomplete or were not preceded or followed by any other form
of notice specified herein, or (ii) the terms thereof, as understood by the
recipient, varied from any confirmation thereof. The Credit Parties shall
indemnify each Agent-Related Person and each Lender from all losses, costs,
expenses and liabilities resulting from the reliance by such Person on each
notice purportedly given by or on behalf of a Credit Party. All telephonic
notices to and other communications with the Administrative Agent may be
recorded by the Administrative Agent, and each of the parties hereto hereby
consents to such recording.
11.2 Right of Set-Off.
In addition to any rights now or hereafter granted under applicable
law or otherwise, and not by way of limitation of any such rights, upon the
occurrence of an Event of Default and the commencement of remedies
described in Section 9.2, each Lender is authorized at any time and from
time to time, without presentment, demand, protest or other notice of any
kind (all of which rights being hereby expressly waived), to set-off and to
appropriate and apply any and all deposits (general or special) and any
other indebtedness at any time held or owing by such Lender (including,
without limitation, branches, agencies or Affiliates of such Lender
wherever located) to or for the credit or the account of any Credit Party
against obligations and liabilities of such Credit Party to the Lenders
hereunder, under the Notes, the other Credit Documents or otherwise,
irrespective of whether the Administrative Agent or the Lenders shall have
made any demand hereunder and although such obligations, liabilities or
claims, or any of them, may be contingent or unmatured, and any such
set-off shall be deemed to have been made immediately upon the occurrence
of an Event of Default even though such charge is made or entered on the
books of such Lender subsequent thereto. The Credit Parties hereby agree
that any Person purchasing a participation in the Loans and Commitments
hereunder pursuant to Sections 11.3(e) or 3.8 may exercise all rights of
set-off with respect to its participation interest as fully as if such
Person were a Lender hereunder.
87
11.3 Benefit of Agreement.
(a) Generally. The provisions of this Credit Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that the
Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender and
no Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an Eligible Assignee in accordance with the
provisions of subsection (b) of this Section, (ii) by way of participation
in accordance with the provisions of subsection (d) of this Section, or
(iii) by way of pledge or assignment of a security interest subject to the
restrictions of subsection (f) of this Section (and any other attempted
assignment or transfer by any party hereto shall be null and void). Nothing
in this Credit Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby, Participants to the extent
provided in subsection (d) of this Section and, to the extent expressly
contemplated hereby, the Indemnitees) any legal or equitable right, remedy
or claim under or by reason of this Credit Agreement.
(b) Assignments. Any Lender may at any time assign to one or more
Eligible Assignees all or a portion of its rights and obligations under
this Credit Agreement (including all or a portion of its Commitment and the
Loans at the time owing to it); provided that (i) except in the case of an
assignment of the entire remaining amount of the assigning Lender's
Commitment and the Loans at the time owing to it or in the case of an
assignment to a Lender or an Affiliate of a Lender or an Approved Fund with
respect to a Lender, the aggregate amount of the Revolving Committed Amount
(which for this purpose includes Loans outstanding thereunder) subject to
each such assignment, determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the
Administrative Agent or, if "Trade Date" is specified in the Assignment and
Assumption, as of the Trade Date, shall not be less than $5,000,000 unless
each of the Administrative Agent and, so long as no Event of Default has
occurred and is continuing, the Borrower otherwise consents (each such
consent not to be unreasonably withheld or delayed); (ii) each partial
assignment shall be made as an assignment of a proportionate part of all
the assigning Lender's rights and obligations under this Credit Agreement
with respect to the Loans or the Commitment assigned; (iii) any assignment
of a Commitment must be approved by the Administrative Agent unless the
Person that is the proposed assignee is itself a Lender or an Affiliate of
a Lender (whether or not the proposed assignee would otherwise qualify as
an Eligible Assignee); and (iv) the parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and
Assumption, together with a processing and recordation fee of $3,500.
Subject to acceptance and recording thereof by the Administrative Agent
pursuant to subsection (c) of this Section, from and after the effective
date specified in each Assignment and Assumption, the Eligible Assignee
thereunder shall be a party to this Credit Agreement and, to the extent of
the interest assigned by such Assignment and Assumption, have the rights
and obligations of a Lender under this Credit Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its
88
obligations under this Credit Agreement (and, in the case of an Assignment
and Assumption covering all of the assigning Lender's rights and
obligations under this Credit Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections
3.9, 3.13, 3.14 and 11.5 with respect to facts and circumstances occurring
prior to the effective date of such assignment). Upon request, the Borrower
(at its expense) shall execute and deliver applicable Note(s) to the
assignee Lender. Any assignment or transfer by a Lender of rights or
obligations under this Credit Agreement that does not comply with this
subsection shall be treated for purposes of this Credit Agreement as a sale
by such Lender of a participation in such rights and obligations in
accordance with subsection (d) of this Section.
(c) Register. The Administrative Agent, acting solely for this purpose
as an agent of the Borrower, shall maintain a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitments of, and principal amounts
of the Loans owing to, each Lender pursuant to the terms hereof from time
to time (the "Register"). The entries in the Register shall be conclusive,
and the Borrower, the Administrative Agent and the Lenders may treat each
Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Credit Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower, at any reasonable time and from time to time
upon reasonable prior notice. In addition, at any time that a request for a
consent for a material or other substantive change to the Credit Documents
is pending, any Lender wishing to consult with other Lenders in connection
therewith may request and receive from the Administrative Agent a copy of
the Register.
(d) Participations. Any Lender may at any time, without the consent
of, or notice to, the Borrower or the Administrative Agent, sell
participations to any Person (other than a natural person or the Borrower
or any of the Borrower's Affiliates or Subsidiaries or any competitor of
the Borrower or any affiliate of a competitor of the Borrower) (each, a
"Loan Participant") in all or a portion of such Lender's rights and/or
obligations under this Credit Agreement (including all or a portion of its
Commitment and/or the Loans; provided that (i) such Lender's obligations
under this Credit Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance
of such obligations and (iii) the Borrower, the Administrative Agent and
the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Credit Agreement. Any agreement or instrument pursuant to which a Lender
sells such a participation shall provide that such Lender shall retain the
sole right to enforce this Credit Agreement and to approve any amendment,
modification or waiver of any provision of this Credit Agreement; provided
that such agreement or instrument may provide that such Lender will not,
without the consent of the Loan Participant, agree to any amendment, waiver
or other modification that would change the amount, interest rate or
maturity of the Loans or any other matter that requires unanimous consent
of all of the Lenders. Subject to subsection (e) of this Section, the
Borrower agrees that each Loan Participant shall be entitled to the
benefits of Sections 3.9, 3.13 and 3.14 to the same
89
extent as if it were a Lender and had acquired its interest by assignment
pursuant to subsection (b) of this Section. To the extent permitted by law,
each Participant also shall be entitled to the benefits of Section 11.2 as
though it were a Lender, provided such Participant agrees to be subject to
Section 3.8 as though it were a Lender.
(e) Participant's Rights. A Loan Participant shall not be entitled to
receive any greater payment under Section 3.9 or 3.14 than the applicable
Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrower's prior written
consent. A Loan Participant that would be a foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 3.13 unless the
Borrower is notified of the participation sold to such Loan Participant and
such Loan Participant agrees, for the benefit of the Borrower, to comply
with Section 3.13 as though it were a Lender.
(f) Unrestricted Assignments. Any Lender may at any time pledge or
assign a security interest in all or any portion of its rights under this
Credit Agreement (including under its Note(s), if any) to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank; provided that no such pledge or
assignment shall release such Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party
hereto.
(g) Special Purpose Entities. Notwithstanding anything to the contrary
contained herein, so long as any action in accordance with this Section
11.3(g) does not cause increased costs or expenses for the Borrower, any
Lender (a "Granting Lender") may grant to a special purpose funding vehicle
(an "SPC") the option to fund all or any part of any Loan that such
Granting Lender would otherwise be obligated to fund pursuant to this
Credit Agreement; provided that (i) nothing herein shall constitute a
commitment by any SPC to fund any Loan, (ii) if an SPC elects not to
exercise such option or otherwise fails to fund all or any part of such
Loan, the Granting Lender shall be obligated to fund such Loan pursuant to
the terms hereof, (iii) no SPC shall have any voting rights pursuant to
Section 11.6 and (iv) with respect to notices, payments and other matters
hereunder, the Borrower, the Administrative Agent and the Lenders shall not
be obligated to deal with an SPC, but may limit their communications and
other dealings relevant to such SPC to the applicable Granting Lender. The
funding of a Loan by an SPC hereunder shall utilize the Commitment of the
Granting Lender to the same extent that, and as if, such Loan were funded
by such Granting Lender. Each party hereto hereby agrees that no SPC shall
be liable for any indemnity or payment under this Credit Agreement for
which a Lender would otherwise be liable for so long as, and to the extent,
the Granting Lender provides such indemnity or makes such payment.
Notwithstanding anything to the contrary contained in this Credit
Agreement, any SPC may disclose any non-public information relating to its
funding of Loans to any rating agency, commercial paper dealer or provider
of any surety or guarantee to such SPC so long as such disclosure is
clearly designated as being made on a confidential basis. This Section
11.3(g) may not be amended without the prior written consent of each
Granting Lender, all or any part of whose Loan is being funded by an SPC at
the time of such amendment.
90
11.4 No Waiver; Remedies Cumulative.
No failure or delay on the part of the Administrative Agent or any Lender
in exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between the Borrower or any Credit Party and
the Administrative Agent or any Lender shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power or privilege hereunder
or under any other Credit Document preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder or
thereunder. The rights and remedies provided herein are cumulative and not
exclusive of any rights or remedies which the Administrative Agent or any Lender
would otherwise have. No notice to or demand on any Credit Party in any case
shall entitle any Credit Party to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the rights of the
Administrative Agent or the Lenders to any other or further action in any
circumstances without notice or demand.
11.5 Payment of Expenses; Indemnification.
(a) The Borrower shall pay on demand:
(i) any and all attorneys' fees and disbursements and
out-of-pocket costs and expenses incurred by the Administrative Agent
in connection with the development, drafting, negotiation and
administration of the Credit Documents, any amendments thereto and the
syndication and closing of the transactions contemplated thereby; and
(ii) all costs and expenses (including fees and disbursements of
in-house and other attorneys, appraisers and consultants) incurred by
the Agents or the Lenders in any workout, restructuring or similar
arrangements or, after an Event of Default, in connection with the
protection, preservation, exercise or enforcement of any of the terms
of the Credit Documents or in connection with any foreclosure,
collection or bankruptcy proceedings.
The foregoing costs and expenses shall include all out-of-pocket expenses
incurred by the Administrative Agent and the cost of independent public
accountants and other outside experts retained by the Administrative Agent or
any Lender. If requested by the Borrower, the Administrative Agent or a Lender,
as applicable, will furnish to the Borrower, within ten Business Days of such
request, a certificate setting forth the basis in reasonable detail with respect
to any amounts requested under this Section 11.5(a). All amounts due under this
Section 11.5(a) shall be payable within twenty Business Days after demand
therefor. The agreements in this Section shall survive the termination of the
Commitments and repayment of all Credit Party Obligations.
(b) Indemnification.
(i) Whether or not the transactions contemplated hereby are
consummated, the Borrower shall indemnify and hold harmless each
91
Agent-Related Person, each Lender and their respective Affiliates,
directors, officers, employees, counsel, agents and attorneys-in-fact
(collectively the "Indemnitees") from and against any and all
liabilities, obligations, losses, damages, penalties, claims, demands,
actions, judgments, suits, costs, expenses and disbursements
(including attorney costs) of any kind or nature whatsoever which may
at any time be imposed on, incurred by or asserted against any such
Indemnitee in any way relating to or arising out of or in connection
with (A) the execution, delivery, enforcement, performance or
administration of any Credit Document or any other agreement, letter
or instrument delivered in connection with the transactions
contemplated thereby or the consummation of the transactions
contemplated thereby, (B) any Commitment or Loan or the use or
proposed use of the proceeds therefrom, (C) any actual or alleged
presence or release of hazardous materials on or from any property
currently or formerly owned or operated by the Borrower or any of its
Subsidiaries or any environmental liability related in any way to the
Borrower or any of its Subsidiaries or (D) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory
(including any investigation of, preparation for, or defense of any
pending or threatened claim, investigation, litigation or proceeding)
and regardless of whether any Indemnitee is a party thereto (all the
foregoing, collectively, the "Indemnified Liabilities"); provided that
such indemnity shall not, as to any Indemnitee, be available to the
extent that such liabilities, obligations, losses, damages, penalties,
claims, demands, actions, judgments, suits, costs, expenses or
disbursements are determined by a final judgment of a court of
competent jurisdiction to have resulted from the gross negligence or
willful misconduct of such Indemnitee. No Indemnitee shall be liable
for any damages arising from the use by others of any information or
other materials obtained through IntraLinks or other similar
information transmission systems in connection with this Credit
Agreement, nor shall any Indemnitee have any liability for any
indirect or consequential damages relating to this Credit Agreement or
any other Credit Document or arising out of its activities in
connection herewith or therewith (whether before or after the Closing
Date). All amounts due under this Section 11.5(b) shall be payable
within ten Business Days after demand therefor. The agreements in this
Section shall survive the resignation of the Administrative Agent, the
replacement of any Lender, the termination of the Commitments and the
repayment, satisfaction or discharge of all the Credit Party
Obligations.
(ii) To the extent that the undertaking to indemnify and hold
harmless set forth in Section 11.5(b)(i) may be unenforceable as
violative of any applicable law or public policy, the Borrower shall
make the maximum contribution to the payment and satisfaction of each
of the Indemnified Liabilities that is permissible under applicable
law.
92
11.6 Amendments, Waivers and Consents.
Neither this Credit Agreement nor any other Credit Document nor any of the
terms hereof or thereof may be amended, changed, waived, discharged or
terminated unless such amendment, change, waiver, discharge or termination is in
writing and signed by the Required Lenders and the then Credit Parties; provided
that no such amendment, change, waiver, discharge or termination shall without
the consent of each Lender affected thereby:
(a) extend the Maturity Date or extend or postpone the time for any
payment or prepayment of principal;
(b) reduce the rate or extend the time of payment of interest (other
than as a result of waiving the applicability of any post-default increase
in interest rates) thereon or fees hereunder;
(c) reduce or waive the principal amount of any Loan;
(d) increase or extend the Commitment of a Lender (it being understood
and agreed that a waiver of any Default or Event of Default or a waiver of
any mandatory reduction in the Commitments shall not constitute a change in
the terms of any Commitment of any Lender);
(e) release the Borrower from its obligations or consent to the
assignment or transfer by the Borrower of any of its rights and obligations
under (or in respect of) the Credit Documents or release all or
substantially all of the Guarantors from their respective obligations under
the Credit Documents;
(f) amend, modify or waive any provision of this Section 11.6 or
Section 3.4(a), 3.4(b)(i), 3.7, 3.8, 9.1(a), 11.2, 11.3 or 11.5; or
(g) reduce any percentage specified in, or otherwise modify, the
definition of Required Lenders.
Notwithstanding the above, (i) no provisions of Section 10 may be amended or
modified without the consent of the Administrative Agent, (ii) no provisions of
Section 2.2 may be amended or modified without the consent of the Issuing Lender
and (iii) no provisions of Section 2.3 may be amended or modified without the
consent of the Swing Line Lender.
Notwithstanding the fact that the consent of all the Lenders is required in
certain circumstances as set forth above, (x) each Lender is entitled to vote as
such Lender sees fit on any reorganization plan that affects the Loans or the
Letters of Credit, and each Lender acknowledges that the provisions of Section
1126(c) of the Bankruptcy Code supersedes the unanimous consent provisions set
forth herein and (y) the Required Lenders may consent to allow a Credit Party to
use cash collateral in the context of a bankruptcy or insolvency proceeding.
93
11.7 Counterparts.
This Credit Agreement may be executed in any number of counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall constitute one and the same instrument.
11.8 Headings.
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Credit Agreement.
11.9 Defaulting Lender.
Each Lender understands and agrees that if such Lender is a Defaulting
Lender then notwithstanding the provisions of Section 11.6 it shall not be
entitled to vote on any matter requiring the consent of the Required Lenders or
to object to any matter requiring the consent of all the Lenders; provided,
however, that all other benefits and obligations under the Credit Documents
shall apply to such Defaulting Lender.
11.10 Survival of Indemnification.
All indemnities set forth herein shall survive the execution and delivery
of this Credit Agreement, the making of the Loans, the issuance of the Letters
of Credit and the repayment of the Loans, LOC Obligations and other obligations
and the termination of the Commitments hereunder.
11.11 Governing Law; Venue; Jurisdiction.
(a) THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK. Any legal action or proceeding with respect to this
Credit Agreement or any other Credit Document may be brought in the courts
of the State of New York or of the United States sitting in New York City,
and, by execution and delivery of this Credit Agreement, each Credit Party
hereby irrevocably accepts for itself and in respect of its Property,
generally and unconditionally, the jurisdiction of such courts. Each Credit
Party irrevocably consents to the service of process in any action or
proceeding with respect to this Credit Agreement or any other Credit
Document by the mailing of copies thereof by registered or certified mail,
postage prepaid, to it at the address for notices pursuant to Section 11.1,
such service to become effective 10 days after such mailing. Nothing herein
shall affect the right of a Lender to serve process in any other manner
permitted by law or to commence legal proceedings or otherwise proceed
against a Credit Party in any other jurisdiction. Each Credit Party agrees
that a final judgment in any action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any
other manner provided by law; provided that nothing in this Section
11.11(a) is intended to impair a Credit Party's right under applicable law
to appeal or seek a stay of any judgment.
94
(b) Each Credit Party hereby irrevocably waives any objection which it
may now or hereafter have to the laying of venue of any of the aforesaid
actions or proceedings arising out of or in connection with this Credit
Agreement or any other Credit Document in the courts referred to in
subsection (a) hereof and hereby further irrevocably waives and agrees not
to plead or claim in any such court that any such action or proceeding
brought in any such court has been brought in an inconvenient forum.
11.12 Waiver of Jury Trial; Waiver of Consequential Damages.
EACH OF THE PARTIES TO THIS CREDIT AGREEMENT HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF
OR RELATING TO THIS CREDIT AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY. Each Credit Party agrees not to assert any
claim against the Administrative Agent, the Issuing Lenders, any Lender, any of
their Affiliates, or any of their respective directors, officers, employees,
attorneys or agents, on any theory of liability, for special, indirect,
consequential or punitive damages arising out of or otherwise relating to any of
the transactions contemplated herein.
11.13 Severability.
If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
11.14 Further Assurances.
The Credit Parties agree, upon the request of the Administrative Agent, to
promptly take such actions, as reasonably requested, as is necessary to carry
out the intent of this Credit Agreement and the other Credit Documents.
11.15 Confidentiality.
Each of the Administrative Agent and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its Affiliates and to its Affiliates' respective
partners, directors, officers, employees, agents, advisors and representatives
(it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such Information confidential); (b) to the extent requested by any regulatory
authority purporting to have jurisdiction over it; (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process; (d)
to any other party to this Credit Agreement; (e) in connection with the exercise
of any remedies hereunder or any suit, action or proceeding relating to this
Credit Agreement or the enforcement of rights hereunder; (f) subject to an
agreement containing provisions substantially the same as those of this Section,
to (i) any Eligible Assignee of or Loan Participant in, or any prospective
Eligible Assignee of or Loan Participant in, any of
95
its rights or obligations under this Credit Agreement or (ii) any direct or
indirect contractual counterparty or prospective counterparty (or such
contractual counterparty's or prospective counterparty's professional advisor)
to any credit derivative transaction relating to obligations of the Credit
Parties; (g) with the consent of the Borrower; (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section or (ii) becomes available to the Administrative Agent or any Lender
on a nonconfidential basis from a source other than the Borrower; or (i) to the
National Association of Insurance Commissioners or any other similar
organization. In addition, the Administrative Agent and the Lenders may disclose
the existence of this Credit Agreement and information about this Credit
Agreement to market data collectors, similar service providers to the lending
industry, and service providers to the Administrative Agent and the Lenders in
connection with the administration and management of this Credit Agreement, the
other Credit Documents and the Commitments. For the purposes of this Section,
"Information" means all information received from the Borrower or any of its
Subsidiaries relating to the Borrower or any Subsidiary or any of their
respective businesses, other than any such information that is available to the
Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by the Borrower or any Subsidiary; provided that, in the case of
information received from the Borrower or any Subsidiary after the date hereof,
such information is clearly identified in writing at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information
as provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
In addition, the Administrative Agent may disclose to any agency or
organization that assigns standard identification numbers to loan facilities
such basic information describing the facilities provided hereunder as is
necessary to assign unique identifiers (and, if requested, supply a copy of this
Credit Agreement), it being understood that the Person to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to make available to the public only such Information as such person
normally makes available in the course of its business of assigning
identification numbers.
11.16 Entirety.
This Credit Agreement together with the other Credit Documents and the Fee
Letter represent the entire agreement of the parties hereto and thereto, and
supersede all prior agreements and understandings, oral or written, if any,
including any commitment letters or correspondence relating to the Credit
Documents or the transactions contemplated herein and therein.
11.17 Binding Effect; Continuing Agreement.
(a) This Credit Agreement shall become effective at such time when all
of the conditions set forth in Section 5.1 have been satisfied or waived by
the Lenders and it shall have been executed by the Borrower, the Guarantors
and the Administrative Agent, and the Administrative Agent shall have
received copies hereof (telefaxed or otherwise) which, when taken together,
bear the signatures of each Lender, and thereafter this Credit Agreement
shall be binding upon and inure to the benefit of the Borrower, the
96
Guarantors, the Administrative Agent and each Lender and their respective
successors and assigns.
(b) This Credit Agreement shall be a continuing agreement and shall
remain in full force and effect until all Loans, LOC Obligations, interest,
fees and other Credit Party Obligations have been paid in full and all
Commitments and Letters of Credit have been terminated. Upon termination,
the Credit Parties shall have no further obligations (other than the
indemnification provisions that survive) under the Credit Documents;
provided that should any payment, in whole or in part, of the Credit Party
Obligations be rescinded or otherwise required to be restored or returned
by the Administrative Agent or any Lender, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise, then the Credit
Documents shall automatically be reinstated and all amounts required to be
restored or returned and all costs and expenses incurred by the
Administrative Agent or any Lender in connection therewith shall be deemed
included as part of the Credit Party Obligations.
11.18. USA Patriot Act Notice.
Each Lender and the Administrative Agent (for itself and not on behalf of
any Lender) hereby notifies the Borrower that pursuant to the requirements of
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the "Act"), it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the
Borrower and other information that will allow such Lender or the Administrative
Agent, as applicable, to identify the Borrower in accordance with the Act.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
97
Each of the parties hereto has caused a counterpart of this Amended and
Restated Credit Agreement to be duly executed and delivered as of the date first
above written.
BORROWER:
QUEST DIAGNOSTICS INCORPORATED,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxx
----------------------------------------
Title: Vice President and Treasurer
---------------------------------------
Signature Page to Amended and Restated Credit Agreement
Quest Diagnostics Incorporated
GUARANTORS:
QUEST DIAGNOSTICS HOLDINGS
INCORPORATED
a Delaware corporation
QUEST DIAGNOSTICS CLINICAL
LABORATORIES, INC.,
a Delaware corporation
APL PROPERTIES LIMITED LIABILITY
COMPANY,
a Nevada limited liability company
QUEST DIAGNOSTICS INCORPORATED,
a California corporation
QUEST DIAGNOSTICS INCORPORATED,
a Maryland corporation
QUEST DIAGNOSTICS INCORPORATED,
a Nevada corporation
QUEST DIAGNOSTICS LLC,
an Illinois limited liability company
QUEST DIAGNOSTICS INCORPORATED,
a Michigan corporation
QUEST DIAGNOSTICS XXXXXXX INSTITUTE, INC.
a Virginia corporation
QUEST DIAGNOSTICS OF PENNSYLVANIA, INC.,
a Delaware corporation
METWEST INC.,
a Delaware corporation
XXXXXXX INSTITUTE DIAGNOSTICS,
a California corporation
DPD HOLDINGS, INC.,
a Delaware corporation
DIAGNOSTICS REFERENCE SERVICES INC.,
a Maryland corporation
QUEST DIAGNOSTICS LLC,
a Connecticut limited liability company
QUEST DIAGNOSTICS LLC,
a Massachusetts limited liability company
UNILAB CORPORATION,
a Delaware corporation
UNILAB ACQUISITION CORPORATION,
a Delaware corporation
AMERICAN MEDICAL LABORATORIES, INCORPORATED,
a Delaware corporation
AML INC,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Vice President and Treasurer
of each of the above Guarantors
Signature Page to Amended and Restated Credit Agreement
Quest Diagnostics Incorporated
PATHOLOGY BUILDING PARTNERSHIP,
a Maryland general partnership
By: Quest Diagnostics Incorporated, a Maryland
corporation, its general partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Treasurer
By: Diagnostic Reference Services Inc., a
Maryland corporation, its general
partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Treasurer
QUEST DIAGNOSTICS INVESTMENTS INCORPORATED,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxx
-----------------------------------------
Title: Vice President
----------------------------------------
QUEST DIAGNOSTICS FINANCE INCORPORATED,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxx
-----------------------------------------
Title: Vice President
----------------------------------------
Signature Page to Amended and Restated Credit Agreement
Quest Diagnostics Incorporated
LENDERS:
BANK OF AMERICA, N.A.,
individually in its capacity as a Lender and
in its capacity as Administrative Agent and
Issuing Lender
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------------------
Title: Managing Director
----------------------------------------
Signature Page to Amended and Restated Credit Agreement
Quest Diagnostics Incorporated
BANK ONE, NA,
as a Lender
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
-----------------------------------------
Title: Director
----------------------------------------
Signature Page to Amended and Restated Credit Agreement
Quest Diagnostics Incorporated
NATIONAL CITY BANK,
as a Lender
By: /s/ Xxxxxxx X. XxXxxxxx
-------------------------------------------
Name: Xxxxxxx X. XxXxxxxx
-----------------------------------------
Title: Assistant Vice President
----------------------------------------
Signature Page to Amended and Restated Credit Agreement
Quest Diagnostics Incorporated
KEYBANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ X.X. Xxxxxx
-------------------------------------------
Name: X.X. Xxxxxx
-----------------------------------------
Title: Vice President and Senior Portfolio
Manager
----------------------------------------
Signature Page to Amended and Restated Credit Agreement
Quest Diagnostics Incorporated
SUNTRUST BANK,
as a Lender
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxx X. Xxxxxxx
-----------------------------------------
Title: Managing Director
----------------------------------------
Signature Page to Amended and Restated Credit Agreement
Quest Diagnostics Incorporated
XXXXXXX XXXXX BANK USA,
as a Lender
By: /s/ Xxxxx Xxxxx
-------------------------------------------
Name: Xxxxx Xxxxx
-----------------------------------------
Title: Director
----------------------------------------
Signature Page to Amended and Restated Credit Agreement
Quest Diagnostics Incorporated
SUMITOMO MITSUI BANKING CORP., NEW YORK
as a Lender
By: /s/ Xxxxxx X. Xxxxx III
-------------------------------------------
Name: Xxxxxx X. Xxxxx III
-----------------------------------------
Title: Senior Vice President
----------------------------------------
Signature Page to Amended and Restated Credit Agreement
Quest Diagnostics Incorporated
THE BANK OF NEW YORK,
as a Lender
By: /s/ Xxxxxx X. XxXxxxxxx
-------------------------------------------
Name: Xxxxxx X. XxXxxxxxx
-----------------------------------------
Title: Vice President
----------------------------------------
Signature Page to Amended and Restated Credit Agreement
Quest Diagnostics Incorporated
FIFTH THIRD BANK,
as a Lender
By: /s/ Xxxxxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
-----------------------------------------
Title: Vice President
----------------------------------------
Signature Page to Amended and Restated Credit Agreement
Quest Diagnostics Incorporated
CREDIT LYONNAIS NEW YORK BRANCH,
as a Lender
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
-----------------------------------------
Title: Senior Vice President
----------------------------------------
Signature Page to Amended and Restated Credit Agreement
Quest Diagnostics Incorporated
WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
-----------------------------------------
Title: Director
----------------------------------------
Signature Page to Amended and Restated Credit Agreement
Quest Diagnostics Incorporated
MANUFACTURERS AND TRADERS TRUST COMPANY,
as a Lender
By: /s/ W. Xxxxx Xxxxxxx
-------------------------------------------
Name: W. Xxxxx Xxxxxxx
-----------------------------------------
Title: Vice President
----------------------------------------
Signature Page to Amended and Restated Credit Agreement
Quest Diagnostics Incorporated
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxx X. Xxxxxxx
-------------------------------------------
Name: Xxx X. Xxxxxxx
-----------------------------------------
Title: Vice President
----------------------------------------
Signature Page to Amended and Restated Credit Agreement
Quest Diagnostics Incorporated
XXXXXX XXXXXXX BANK,
as a Lender
By: /s/ Xxxxxx Xxxxxx
-------------------------------------------
Name: Xxxxxx Xxxxxx
-----------------------------------------
Title: Vice President
----------------------------------------
Signature Page to Amended and Restated Credit Agreement
Quest Diagnostics Incorporated
PNC BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxxxx
-----------------------------------------
Title: Vice President
----------------------------------------
