Exhibit 10.1
Execution Copy
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AMERIPATH, INC.
CREDIT AGREEMENT
Originally Dated as of May 29, 1996
Amended and Restated as of December 16, 1999
Amended and Restated as of June 11, 2001
FLEET NATIONAL BANK,
Administrative Agent
BANK OF AMERICA, N.A.
Syndication Agent
CITICORP USA, INC.
Documentation Agent
BANK ONE, NA,
Co-Agent
FIRST UNION NATIONAL BANK,
Co-Agent
BANCBOSTON XXXXXXXXX XXXXXXXX INC.,
Arranger
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TABLE OF CONTENTS
Page
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1. Restatement; Definitions......................................................... 1
1.1. Restatement................................................................ 1
1.2. Definitions; Certain Rules of Construction................................. 1
2. The Credits...................................................................... 23
2.1. Revolving Credit........................................................... 23
2.2. Swingline Credit........................................................... 24
2.3. Letters of Credit.......................................................... 26
2.4. Application of Proceeds.................................................... 29
2.5. Nature of Obligations of Lenders to Make Extensions of Credit.............. 29
3. Interest; LIBOR Pricing Options; Fees............................................. 30
3.1. Interest................................................................... 30
3.2. LIBOR Pricing Options...................................................... 30
3.3. Interest on Swingline Loan................................................. 32
3.4. Commitment Fees............................................................ 33
3.5. Letter of Credit Fees...................................................... 33
3.6. Changes in Circumstances; Yield Protection................................. 33
3.7. Computations of Interest and Fees.......................................... 35
4. Payment.......................................................................... 35
4.1. Payment at Maturity........................................................ 35
4.2. Contingent Required Prepayments............................................ 35
4.3. Voluntary Prepayments...................................................... 36
4.4. Letters of Credit.......................................................... 36
4.5. Reborrowing; Application of Payments, etc.................................. 36
5. Conditions to Extending Credit................................................... 37
5.1. Conditions on Initial Closing Date......................................... 37
5.2. Conditions to Each Extension of Credit..................................... 38
6. General Covenants................................................................ 39
6.1. Taxes and Other Charges; Accounts Payable.................................. 39
6.2. Conduct of Business, etc................................................... 39
6.3. Insurance.................................................................. 40
6.4. Financial Statements and Reports........................................... 41
6.5. Certain Financial Tests.................................................... 45
6.6. Indebtedness............................................................... 47
6.7. Guarantees; Letters of Credit.............................................. 48
6.8. Liens...................................................................... 48
6.9. Investments and Permitted Acquisitions..................................... 49
6.10. Distributions.............................................................. 50
6.11. Asset Dispositions and Mergers............................................. 50
6.12. Lease Obligations.......................................................... 51
6.13. Issuance of Stock by Subsidiaries; Subsidiary Distributions................ 51
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6.14. Voluntary Prepayments of Other Indebtedness................................ 52
6.15. Derivative Contracts....................................................... 52
6.16. Negative Pledge Clauses.................................................... 52
6.17. ERISA, etc................................................................. 52
6.18. Transactions with Affiliates............................................... 53
6.19. Interest Rate Protection................................................... 53
6.20. Environmental Laws......................................................... 53
6.21. Permitted Acquisitions; General............................................ 53
6.22. Year 2000 Compliant........................................................ 56
7. Representations and Warranties................................................... 56
7.1. Organization and Business.................................................. 56
7.2. Financial Statements and Other Information; Material Agreements............ 57
7.3. Agreements Relating to Financing Debt, Investments, etc.................... 58
7.4. Changes in Condition....................................................... 58
7.5. Title to Assets............................................................ 59
7.6. Operations in Conformity With Law, etc..................................... 59
7.7. Litigation................................................................. 59
7.8. Authorization and Enforceability........................................... 59
7.9. No Legal Obstacle to Agreements............................................ 59
7.10. Defaults................................................................... 60
7.11. Licenses, etc.............................................................. 60
7.12. Tax Returns................................................................ 61
7.13. Certain Business Representations........................................... 61
7.14. Environmental Regulations.................................................. 62
7.15. Pension Plans.............................................................. 63
7.16. Acquisition Agreement, etc................................................. 63
7.17. Foreign Trade Regulations; Government Regulation; Margin Stock............. 63
7.18. Disclosure................................................................. 63
7.19. Year 2000 Compliance....................................................... 64
8. Defaults......................................................................... 64
8.1. Events of Default.......................................................... 64
8.2. Certain Actions Following an Event of Default.............................. 67
8.3. Annulment of Defaults...................................................... 69
8.4. Waivers.................................................................... 69
9. Guarantees....................................................................... 69
9.1. Guarantees of Credit Obligations........................................... 69
9.2. Continuing Obligation...................................................... 70
9.3. Waivers with Respect to Credit Obligations................................. 70
9.4. Lenders' Power to Waive, etc............................................... 72
9.5. Information Regarding the Borrower, etc.................................... 73
9.6. Certain Guarantor Representations.......................................... 73
9.7. Subrogation................................................................ 74
9.8. Subordination.............................................................. 74
9.9. Further Assurances......................................................... 74
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10. Security........................................................................... 74
10.1. Credit Security............................................................ 74
10.2. Additional Credit Security................................................. 77
10.3. Representations, Warranties and Covenants with Respect to Credit Security.. 77
10.4. Administration of Credit Security.......................................... 80
10.5. Right to Realize upon Credit Security...................................... 81
10.6. Custody of Credit Security................................................. 84
11. Expenses; Indemnity................................................................ 85
11.1. Expenses................................................................... 85
11.2. General Indemnity.......................................................... 85
11.3. Indemnity With Respect to Letters of Credit................................ 86
12. Operations; Agent.................................................................. 86
12.1. Interests in Credits....................................................... 86
12.2. Agent's Authority to Act, etc.............................................. 86
12.3. Borrower to Pay Agent, etc................................................. 86
12.4. Lender Operations for Advances, Letters of Credit, etc..................... 87
12.5. Sharing of Payments, etc................................................... 88
12.6. Actions by Agent, Amendments, Consents, Waivers, etc....................... 89
12.7. Agent's Resignation........................................................ 90
12.8. Concerning the Agent....................................................... 90
12.9. Rights as a Lender......................................................... 92
12.10. Independent Credit Decision................................................ 93
12.11. Indemnification............................................................ 93
13. Successors and Assigns; Lender Assignments and Participations...................... 93
13.1. Assignments by Lenders...................................................... 93
13.2. Credit Participants......................................................... 96
13.3. Replacement of Lender....................................................... 97
13.4. Foreign Lenders............................................................. 98
14. Confidentiality.................................................................... 99
15. Acknowledgments and Consents....................................................... 100
16. Notices............................................................................ 100
17. Course of Dealing; Amendments and Waivers.......................................... 100
18. Defeasance......................................................................... 101
19. Venue; Service of Process.......................................................... 101
20. WAIVER OF JURY TRIAL............................................................... 101
21. No Strict Construction............................................................. 102
22. General............................................................................ 102
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EXHIBITS
1 - Applicable Interest Rates
2.1.4 - Revolving Note
2.2.3 - Swingline Note
5.2.1 - Officer's Certificate
6.6 - Existing Indebtedness
6.8 - Existing Liens
6.11 - Asset Dispositions and Mergers
6.18 - Transactions with Affiliates
6.21.1(a) - Subordination Agreement
6.21.1(b) - Joinder Agreement
6.21.1(f) - 6.21.1 Permitted Acquisition Compliance Certificate
6.21.2(d) - 6.21.2 Permitted Acquisition Compliance Certificate
7.1 - Company and its Subsidiaries
7.1.4 - Stockholders of the Company
7.2.2 - Material Agreements
7.3 - Financing Debt, Certain Investments, etc.
7.4 - Changes in Condition
7.7 - Litigation
7.14 - Environmental
7.15 - Multi-employer and Defined Benefit Plans
10.4.2 - Depository Institutions
12.1 - Interests in Credits
13.1.1 - Assignment and Acceptance
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AMERIPATH, INC.
CREDIT AGREEMENT
This Agreement, originally dated as of May 29, 1996 and amended and
restated as of December 16, 1999, is among AmeriPath, Inc., a Delaware
corporation, certain Subsidiaries of AmeriPath, Inc. from time to time party
hereto, the Lenders from time to time party hereto and Fleet National Bank, both
in its capacity as a Lender and in its capacity as administrative agent for
itself and the other Lenders. The parties agree as follows:
1. Restatement; Definitions.
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1.1. Restatement. Effective as of the Initial Closing Date, this Agreement
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amends and restates in its entirety the Credit Agreement dated as of May 29,
1996, as amended and restated as of December 16, 1999, as amended and in effect
on the date hereof prior to giving effect to this Agreement, among the Company,
its Subsidiaries and a group of lenders for which Fleet National Bank is acting
as agent. Citicorp USA, Inc. and Credit Suisse First Boston are joining as
Lenders to the Credit Agreement and have committed $37,500,000 and $15,000,000
respectively to the Revolving Credit. The commitments from Citicorp USA, Inc.
and Bank Suisse First Boston increase the Revolving Credit to $282,500,000 from
$230,000,000. This increase is permitted by the advanced approval provided in
Section 2.1.2 of the Credit Agreement. The addition of Citicorp USA, Inc. as
Documentation Agent requires that the Credit Agreement be amended and restated.
This Agreement will incorporate the three amendments to the Credit Agreement
adopted since the December 16, 1999 Restatement. This Agreement is not a
termination or novation of such existing Credit Agreement, which shall continue
in effect as modified hereby. The Credit Obligations, Credit Security and other
Credit Documents presently outstanding in connection with such existing Credit
Agreement shall remain in effect from and after the Initial Closing Date, as
modified by this Agreement. On the Initial Closing Date the Agent will make
such arrangements to reallocate the Loan and Letter of Credit Exposure held by
the Lenders in accordance with their Percentage Interests as set forth on
Exhibit 12.1 hereto. Amounts in respect of interest, commitment fees, Letter of
Credit fees and other amounts payable hereunder shall be payable in accordance
with the terms of such existing Credit Agreement as in effect prior to the
amendment and restatement on the Initial Closing Date for periods prior to the
Initial Closing Date and in accordance with this Agreement (as it modifies such
existing Credit Agreement) for periods from and after the Initial Closing Date.
1.2. Definitions; Certain Rules of Construction. Certain capitalized terms are
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used in this Agreement and in the other Credit Documents with the specific
meanings defined below in this Section 1. Except as otherwise explicitly
specified to the contrary or unless the context clearly requires otherwise, (a)
the capitalized term "Section" refers to sections of this Agreement, (b) the
capitalized term "Exhibit" refers to exhibits to this Agreement, (c) references
to a particular Section include all subsections thereof, (d) the word
"including" shall be construed as "including without limitation", (e) accounting
terms not otherwise defined herein have the
meaning provided under GAAP, (f) terms defined in the UCC and not otherwise
defined herein have the meaning provided under the UCC, (g) references to a
particular statute or regulation include all rules and regulations thereunder
and any successor statute, regulation or rules, in each case as from time to
time in effect and (h) references to a particular Person include such Person's
successors and assigns to the extent not prohibited by this Agreement and the
other Credit Documents. References to "the date hereof" mean December [16],
1999.
"Accounts" is defined in Section 10.1.2.
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"Accumulated Benefit Obligations" means the actuarial present value of the
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accumulated benefit obligations under any Plan, calculated in accordance with
Statement No. 87 of the Financial Accounting Standards Board.
"Acquired Party" shall mean any Person, 100% of the outstanding capital
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stock or beneficial interests or substantially all of the assets of which are
acquired by the Borrower in connection with a Permitted Acquisition.
"Acquired Party EBITDA Adjustment" means (a) for any calculation made with
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respect to Sections 6.5.1 or 6.21 of this Agreement in which six or less full
months of the Net Income of an Acquired Party have been included, and only to
the extent not already included in, Consolidated Net Income, an amount equal to
the product of (i) the number of months in the applicable period in which none
of the Net Income of such Acquired Party was included in Consolidated Net
Income, multiplied by (ii) one-twelfth of Pro Forma EBITDA of such Acquired
Party as of the date of the Acquisition of such Acquired Party or (b) for any
calculation made with respect to Section 6.5.1 or 6.21 of this Agreement in
which more than six months but less than one full year of the Net Income of an
Acquired Party have been included, and only to the extent not already included
in, Consolidated Net Income, an amount equal to the product of (X) the number of
months in the applicable period in which none of the Net Income of such Acquired
Party was included in Consolidated Net Income, multiplied by (Y) the amount of
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actual EBITDA of such Acquired Party for each full month following its
Acquisition by the Borrower, divided by (Z) the number of full months for which
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EBITDA of the Acquired Party was included in Consolidated Net Income.
"Acquisition Agreement" means the documentation pursuant to which the
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Borrower commits itself to make a Permitted Acquisition.
"Acquisition Closing Date" is defined in Section 6.21.1(a).
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"Affected Lender" is defined in Section 13.3.
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"Affiliate" means, with respect to the Borrower (or any other specified
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Person), any other Person directly or indirectly controlling, controlled by or
under direct or indirect common control with the Borrower (or such specified
Person), and shall include (a) any officer or director or general partner of the
Borrower (or such specified Person) and (b) any Person of which the Borrower (or
such specified Person) or any Affiliate (as defined in clause (a) above) of the
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Borrower (or such specified Person) shall, directly or indirectly, beneficially
own either (i) at least 5% of the outstanding equity securities having the
general power to vote or (ii) at least 5% of all equity interests.
"Agent" means Fleet National Bank in its capacity as administrative agent
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for the Lenders hereunder, as well as its successors and assigns in such
capacity pursuant to Section 12.7.
"Aggregate Percentage Interest" means, with respect to the Loan, the ratio
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that the respective Commitments of the Lenders bear to the total Commitments of
all Lenders as from time to time in effect and reflected in the Register.
"Agreement" means this Agreement as from time to time amended, modified and
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in effect.
"Applicable Commitment Fee Rate" means (a) through the date on which the
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financial statements for the fiscal year of the Borrower ending December 31,
1999 are delivered to the Agent in accordance with Section 6.4.1, the rate for
applicable commitment fees set forth opposite Level II in the Pricing Grid and
(b) at any date thereafter, the rate shown on the Pricing Grid that corresponds
to the ratio of Consolidated Total Debt to Consolidated Adjusted EBITDA for the
most recently completed period of four consecutive fiscal quarters
(notwithstanding any subsequent change in such ratio on any Closing Date due to
the occurrence of a Permitted Acquisition and the resulting inclusion of an
Acquired Party's Pro Forma EBITDA in Consolidated Adjusted EBITDA and additional
Financing Debt in Consolidated Total Debt). Changes in the Applicable Rate
shall occur on each Pricing Reset Date; provided, however, that in the event
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that the financial statements required to be delivered pursuant to Section 6.4.1
or 6.4.2, as applicable, are not delivered by the latest date permissible under
Section 6.4.1 or 6.4.2, as the case may be (the "Late Delivery Date"), and if,
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upon delivery of such financial statements, it is determined that delivery of
such financial statements on the Late Delivery Date would have resulted in an
increase in the Applicable Margin on the first Pricing Reset Date after the Late
Delivery Date (the "Late Pricing Reset Date"), such increase will be deemed
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effective as of the Late Pricing Reset Date.
"Applicable Rate" means (a) through the date on which the financial
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statements for the fiscal year of the Borrower ending December 31, 1999 are
delivered to the Agent in accordance with Section 6.4.1, the rate set forth
opposite Level II in the Pricing Grid and (b) at any date thereafter, the sum
of:
(x) the rate shown on the Pricing Grid that corresponds to the current
ratio of Consolidated Total Debt to Consolidated Adjusted EBITDA for
the most recently completed period of four consecutive fiscal quarters
(notwithstanding any subsequent change in such ratio on any Closing
Date due to the occurrence of a Permitted Acquisition and the
resulting inclusion of an Acquired Party's Pro Forma EBITDA in
Consolidated Adjusted EBITDA and additional Financing Debt in
Consolidated Total Debt);
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plus (y) an additional 3.00% effective on the day the Agent notifies the
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Company that the interest rates hereunder are increasing as a result
of the occurrence and continuance of an Event of Default until the
earlier of such time as (i) such Event of Default is no longer
continuing or (ii) such Event of Default is deemed no longer to exist,
in each case pursuant to Section 8.3.
Changes in the Applicable Rate shall occur on each Pricing Reset Date;
provided, however, that in the event that the financial statements
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required to be delivered pursuant to Section 6.4.1 or 6.4.2, as
applicable, are not delivered by the Late Delivery Date and, if upon
delivery of such financial statements, it is determined that delivery
of such financial statements on the Late Delivery Date would have
resulted in an increase in the Applicable Margin on the Late Pricing
Reset Date such increase will be deemed effective as of the Late
Pricing Reset Date.
"Arranger" means BancBoston Xxxxxxxxx Xxxxxxxx Inc.
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"Assignee" is defined in Section 13.1.1.
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"Assignment and Acceptance" is defined in Section 13.1.1.
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"Banking Day" means any day other than Saturday, Sunday or a day on which
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banks in Boston, Massachusetts are authorized or required by law or other
governmental action to close and, if such term is used with reference to a LIBOR
Pricing Option, any day on which dealings are effected by first-class banks in
the inter-bank LIBOR markets in London, England.
"Bankruptcy Code" means Title 11 of the United States Code.
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"Bankruptcy Default" means an Event of Default referred to in Section
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8.1.10.
"Base Rate" means, on any date, the greater of (a) the rate of interest
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announced by Fleet National Bank at the Boston Office as its Base Rate or (b)
the sum of 1/2% plus the Federal Funds Rate.
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"Borrower" means the Company.
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"Boston Office" means the principal banking office of Fleet National Bank
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in Boston, Massachusetts.
"By-laws" means all written by-laws, rules, regulations and all other
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documents relating to the management, governance or internal regulation of any
Person other than an individual, or interpretive of the Charter of such Person,
all as from time to time in effect.
"Capital Expenditures" means, for any period, amounts added or required to
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be added to the property, plant and equipment or other fixed assets account on
the Consolidated balance sheet of the Company and its Subsidiaries, prepared in
accordance with GAAP, in respect of
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(a) the acquisition, construction, improvement or replacement of land,
buildings, machinery, equipment, leaseholds and any other real or personal
property, (b) to the extent not included in clause (a) above, materials,
contract labor and direct labor relating thereto (excluding amounts properly
expensed as repairs and maintenance in accordance with GAAP) and (c) software
development costs to the extent not expensed.
"Capitalized Lease" means any lease which is required to be capitalized on
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the balance sheet of the lessee in accordance with GAAP, including Statement
Nos. 13 and 98 of the Financial Accounting Standards Board.
"Capitalized Lease Obligations" means the amount of the liability
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reflecting the aggregate discounted amount of future payments under all
Capitalized Leases calculated in accordance with GAAP, including Statement Nos.
13 and 98 of the Financial Accounting Standards Board.
"Cash Equivalents" means:
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(a) negotiable certificates of deposit time deposits (including sweep
accounts), demand deposits and bankers' acceptances having a maturity of
nine months or less and issued by any United States financial institution
having capital and surplus and undivided profits aggregating at least
$100,000,000 and rated at least Prime-1 by Xxxxx'x Investors Service, Inc.
or A-1 by Standard & Poor's Ratings Group or issued by any Lender;
(b) corporate obligations having a maturity of nine months or less and
rated at least Prime-1 by Xxxxx'x Investors Service, Inc. or A-1 by
Standard & Poor's Ratings Group or issued by any Lender;
(c) any direct obligation of the United States of America or any
agency or instrumentality thereof, or of any state or municipality thereof,
(i) which has a remaining maturity at the time of purchase of not more than
one year or which is subject to a repurchase agreement with any Lender (or
any other financial institution referred to in clause (a) above)
exercisable within one year from the time of purchase and (ii) which, in
the case of obligations of any state or municipality, is rated at least Aa
by Xxxxx'x Investors Service, Inc. or AA by Standard & Poor's Ratings
Group; and
(d) any mutual fund or other pooled investment vehicle rated at least
Aa by Xxxxx'x Investors Service, Inc. or AA by Standard & Poor's Ratings
Group which invests principally in obligations described above.
"Cash Purchase Price" means the portion of consideration for any Permitted
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Acquisition that constitutes the sum of (i) cash or Cash Equivalents plus (ii)
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any Financing Debt of the Acquired Party that the Borrower or one of its
subsidiaries assumes (except Financing Debt permitted by Section 6.6) minus
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(iii) cash or Cash Equivalents acquired in such acquisition.
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"CERCLA" means the federal Comprehensive Environmental Response,
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Compensation and Liability Act of 1980.
"CERCLIS" means the federal Comprehensive Environmental Response
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Compensation Liability Information System List (or any successor document)
promulgated under CERCLA.
"Change of Control" means (i) the acquisition by any Person or group of
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Persons acting as a group of beneficial ownership (within the meaning of the
Securities Exchange Act of 1934, as amended), directly or indirectly, of thirty-
five percent (35%) or more of the voting capital stock of the Borrower, (ii) the
board of directors of the Borrower ceasing to consist of at least a majority of
(x) directors of the Borrower in office on the Initial Closing Date plus (y)
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directors elected since the Initial Closing Date by a majority of directors in
office on the Initial Closing Date or (iii) the President or Chief Financial
Officer who were holding such offices as of the Initial Closing Date shall cease
for any reason to hold such offices and replacements reasonably satisfactory to
the Required Lenders shall not have been elected by the board within 180 days.
"Charter" means the articles of organization, certificate of incorporation,
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statute, constitution, joint venture agreement, partnership agreement, trust
indenture, limited liability company agreement or other charter document of any
Person other than an individual, each as from time to time in effect.
"Closing Date" means the Initial Closing Date and each other date on which
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any extension of credit is made pursuant to Sections 2.1, 2.2 or 2.3.
"Code" means the federal Internal Revenue Code of 1986, as amended from
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time to time.
"Commitment" means, with respect to any Lender, such Lender's obligations
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to extend the credits contemplated by the Credit Documents; the original
Commitments being set forth in Section 12.1 and the current Commitments being
recorded from time to time in the Register.
"Company" means AmeriPath, Inc., a Delaware corporation.
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"Computation Covenants" means Sections 6.5, 6.6.7, 6.6.11, 6.9.5, 6.10,
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6.11, 6.12, 6.17 and 6.21.
"Consolidated" and "Consolidating", when used with reference to any term,
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mean that term as applied to the accounts of the Company (or other specified
Person) and all of its Subsidiaries (or other specified group of Persons), or
such of its Subsidiaries as may be specified, consolidated (or combined) or
consolidating (or combining), as the case may be, in accordance with GAAP and
with appropriate deductions for minority interests in Subsidiaries.
"Consolidated Adjusted EBITDA" means, for any period, an amount equal to
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the sum of (a) Consolidated Net Income of the Company and its Subsidiaries for
such period plus (b) all amounts deducted in computing such Consolidated Net
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Income in respect of (i) taxes based upon
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or measured by income, (ii) Consolidated Interest Expense and (iii) depreciation
and amortization expense plus (c) any Acquired Party EBITDA Adjustment.
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"Consolidated EBITDA" means, for any period, an amount equal to the sum of
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(a) Consolidated Net Income of the Company and its Subsidiaries for such period
plus (b) all amounts deducted in computing such Consolidated Net Income in
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respect of (i) taxes based upon or measured by income, (ii) Consolidated
Interest Expense and (iii) depreciation and amortization.
"Consolidated Interest Expense" means, for any period, the Interest Expense
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paid and accrued by the Company and its Subsidiaries on a Consolidated basis.
"Consolidated Net Income" means, for any period, the net income (or loss)
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of the Company and its Subsidiaries, determined in accordance with GAAP on a
Consolidated basis; provided, however, that Consolidated Net Income shall not
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include the net amount after taxes of:
(a) the income (or loss) of any other Person accrued prior to the date
such other Person becomes a Subsidiary or is merged into or consolidated
with such Person;
(b) the income (or loss) of any other Person (other than a Subsidiary)
in which such Person has an ownership interest; provided, however, that (i)
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Net Income shall include amounts in respect of the income of such other
Person when actually received in cash by such Person in the form of
dividends or similar Distributions and (ii) Net Income shall be reduced by
the aggregate amount of all Investments, regardless of the form thereof,
made by such Person in such other Person for the purpose of funding any
deficit or loss of such other Person;
(c) all amounts included in computing such net income (or loss) in
respect of the write-up of any asset or the retirement of any Indebtedness
or equity at less than face value after any acquisition;
(d) extraordinary and nonrecurring gains;
(e) the income of any Subsidiary to the extent the payment of such
income in the form of a Distribution or repayment of Indebtedness to such
Person is not permitted, whether on account of any Charter or By-law
restriction, any agreement, instrument, deed or lease or any law, statute,
judgment, decree or governmental order, rule or regulation applicable to
such Subsidiary; and
(f) any after-tax gains or losses attributable to returned surplus
assets of any Plan.
"Consolidated Operating Cash Flow" means, for any period, the total of (i)
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Consolidated EBITDA minus (ii) taxes, based upon or measured by net taxable
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income, paid in cash by the Company and its Subsidiaries minus (iii) Capital
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Expenditures.
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"Consolidated Senior Debt" means all Financing Debt of the Company and the
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Subsidiaries on a Consolidated basis other than in respect of Subordinated
Indebtedness.
"Consolidated Total Debt" means, at any date, all Financing Debt of the
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Company and its Subsidiaries on a Consolidated basis.
"Consolidated Total Debt Service" means, for any period, the sum of (i)
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Consolidated Interest Expense plus (ii) the aggregate amount of all mandatory
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scheduled payments, prepayments and sinking fund payments paid or accrued by the
Company and its Subsidiaries during such period with respect to Financing Debt,
including contingent obligations under agreements relating to Permitted
Acquisitions (made before or after the date of this Agreement) or with respect
to principal paid or accrued by the Company in respect of Subordinated
Indebtedness and Contingent Notes.
"Consolidated Total Liabilities" means, at any date, all Indebtedness of
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the Company and its Subsidiaries on a Consolidated basis.
"Contingent Notes" means the contingent promissory notes constituting
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Subordinated Indebtedness issued to the Sellers in connection with a Permitted
Acquisition made hereunder or under this Agreement prior to its amendment and
restatement on the Initial Closing Date.
"Credit Documents" means:
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(a) this Agreement, the Notes, each Letter of Credit, each draft
presented or accepted under a Letter of Credit, each Interest Rate
Protection Agreement provided by a Lender (or an Affiliate of a Lender) to
the Borrower or any of its Subsidiaries and the Subordination Agreement,
each as from time to time in effect;
(b) all financial statements, reports, notices, mortgages,
assignments, UCC financing statements or certificates delivered to the
Agent or any of the Lenders by the Company, any of its Subsidiaries or any
other Obligor in connection herewith or therewith; and
(c) any other present or future agreement or instrument from time to
time entered into among the Company, any of its Subsidiaries or any other
Obligor, on one hand, and the Agent, any Letter of Credit Issuer or all the
Lenders, on the other hand, relating to, amending or modifying this
Agreement or any other Credit Document referred to above or which is stated
to be a Credit Document, each as from time to time in effect.
"Credit Obligations" means all present and future liabilities, obligations
------------------
and Indebtedness of the Company, any of its Subsidiaries or any other Obligor
owing to the Agent or any Lender under or in connection with this Agreement or
any other Credit Document, including obligations in respect of principal,
interest, reimbursement obligations under Letters of Credit and Interest Rate
Protection Agreements provided by a Lender (or an affiliate of a Lender),
commitment fees,
-8-
Letter of Credit fees, amounts provided for in Sections 3.2.4, 3.5 and 11 and
other fees, charges, indemnities and expenses from time to time owing hereunder
or under any other Credit Document (whether accruing before or after a
Bankruptcy Default).
"Credit Participant" is defined in Section 13.2.
------------------
"Credit Security" means all assets now or from time to time hereafter
---------------
subjected to a security interest, mortgage or charge (or intended or required so
to be subjected pursuant to this Agreement or any other Credit Document) to
secure the payment or performance of any of the Credit Obligations, including
the assets described in Section 10.1.
"Default" means any Event of Default and any event or condition which with
-------
the passage of time or giving of notice, or both, would become an Event of
Default and the filing against the Company, any of its Subsidiaries or any other
Obligor of a petition commencing an involuntary case under the Bankruptcy Code.
"Delinquency Period" is defined in Section 12.4.4.
------------------
"Delinquent Lender" is defined in Section 12.4.4.
-----------------
"Delinquent Payment" is defined in Section 12.4.4.
------------------
"Distribution" means, with respect to the Company (or other specified
------------
Person):
(a) the declaration or payment of any dividend or distribution,
including dividends payable in shares of capital stock of or other equity
interests in the Company (or such specified Person), on or in respect of
any shares of any class of capital stock of or other equity interests in
the Company (or such specified Person);
(b) the purchase or redemption of any shares of any class of capital
stock of or other equity interest in the Company (or such specified Person)
or of options, warrants or other rights for the purchase of such shares,
directly, indirectly through a Subsidiary or otherwise;
(c) any other distribution on or in respect of any shares of any
class of capital stock of or equity or other beneficial interest in the
Company (or such specified Person);
(d) any payment of principal or interest with respect to, or any
purchase, redemption or defeasance of, any Indebtedness of the Company (or
such specified Person) which by its terms or the terms of any agreement is
subordinated to the payment of the Credit Obligations; and
(e) any payment, loan or advance by the Company (or such specified
Person) to, or any other Investment by the Company (or such specified
Person) in, the holder of
-9-
any shares of any class of capital stock of or equity interest in the
Company (or such specified Person), or any Affiliate of such holder;
provided, however, that the term "Distribution" shall not include (i)
-------- -------
dividends payable in perpetual common stock of or other similar equity
interests in the Company (or such specified Person) or (ii) payments in the
ordinary course of business in respect of (A) reasonable compensation paid
to employees, officers and directors, (B) advances to employees for travel
expenses, drawing accounts and similar expenditures, or (C) rent paid to,
or accounts payable for services rendered or goods sold by, non-Affiliates
that own capital stock of or other equity interests in the Company (or such
specified Person).
"EBITDA" means, for any period, an amount equal to the sum of (a) the Net
------
Income (or loss) of any Person for such period plus (b) all amounts deducted in
----
computing such Net Income in respect of (i) taxes based upon or measured by
income, (ii) Interest Expense and (iii) depreciation and amortization.
"Environmental Laws" means all applicable federal, state or local
------------------
statutes, laws, ordinances, codes, rules, regulations and guidelines (including
consent decrees and administrative orders) relating to public health and safety
and protection of the environment, including OSHA.
"Equity Transaction" means any issuance or sale by the Company or any of
------------------
its Subsidiaries of any shares of capital stock, other equity interests or
options, warrants or other purchase rights to acquire such capital stock or
other equity interests, of the Company or any of its Subsidiaries, to any
Person; provided, however, that the term "Equity Transaction" shall not include
-------- -------
such issuances or sales (i) to any of the Obligors or their officers, employees
and directors, (ii) to any Person pursuant to the Company's Amended and Restated
1996 Stock Option Plan or 1996 Director Stock Option Plan or (iii) that comprise
a portion of the Purchase Price in any Permitted Acquisition.
"ERISA" means the federal Employee Retirement Income Security Act of 1974.
-----
"ERISA Group Person" means the Company, any Subsidiary of the Company and
------------------
any Person which is a member of the controlled group or under common control
with the Company or any Subsidiary within the meaning of section 414 of the Code
or section 4001(a)(14) of ERISA.
"Event of Default" is defined in Section 8.1.
----------------
"Exchange Act" means the federal Securities Exchange Act of 1934.
------------
"Federal Funds Rate" means, for any day, the rate equal to the weighted
------------------
average (rounded upward to the nearest 1/8%) of the rates on overnight federal
funds transactions with members of the Federal Reserve System arranged by
federal funds brokers, (a) as such weighted average is published for such day
(or, if such day is not a Banking Day, for the immediately
-10-
preceding Banking Day) by the Federal Reserve Bank of New York or (b) if such
rate is not so published for such Banking Day, as determined by the Agent using
any reasonable means of determination. Each determination by the Agent of the
Federal Funds Rate shall, in the absence of manifest error, be conclusive.
"Final Maturity Date" means the fifth anniversary of the date hereof.
-------------------
"Financial Officer" of the Company (or other specified Person) means its
-----------------
chief executive officer, chief financial officer, chief operating officer,
chairman, president, treasurer or any of its vice presidents whose primary
responsibility is for its financial affairs, all of whose incumbency and
signatures have been certified to the Agent by the secretary or other
appropriate attesting officer of the Company (or such specified Person).
"Financing Debt" means each of the items described in clauses (a) through
--------------
(e) of the definition of the term "Indebtedness."
"Fleet National Bank" means Fleet National Bank, a national banking
--------------------
association.
"Foreign Trade Regulations" means (a) any act that prohibits or restricts,
-------------------------
or empowers the President or any executive agency of the United States of
America to prohibit or restrict, exports to or financial transactions with any
foreign country or foreign national, (b) the regulations with respect to certain
prohibited foreign trade transactions set forth at 22 C.F.R. Parts 120-130 and
31 C.F.R. Parts 500-590 and (c) any order, regulation, ruling, interpretation,
direction, instruction or notice relating to any of the foregoing.
"Friendly Acquisition" means any acquisition which has received the prior
--------------------
approval of the board of directors of the Person being acquired.
"Funding Liability" means (a) any LIBOR deposit which was used (or deemed
-----------------
by Section 3.2.6 to have been used) to fund any portion of the Loan subject to a
LIBOR Pricing Option, and (b) any portion of the Loan subject to a LIBOR Pricing
Option funded (or deemed by Section 3.2.6 to have been funded) with the proceeds
of any such LIBOR deposit.
"GAAP" means generally accepted accounting principles as from time to time
----
in effect, including the statements and interpretations of the United States
Financial Accounting Standards Board.
"Guarantee" means, with respect to the Company (or other specified Person):
---------
(a) any guarantee by the Company (or such specified Person) of the
payment or performance of, or any contingent obligation by the Company (or
such specified Person) in respect of, any Indebtedness or other obligation
of any primary obligor;
(b) any other arrangement whereby credit is extended to a primary
obligor on the basis of any promise or undertaking of the Company (or such
specified Person),
-11-
including any binding "comfort letter" or "keep well agreement" written by
the Company (or such specified Person), to a creditor or prospective
creditor of such primary obligor, to (i) pay the Indebtedness of such
primary obligor, (ii) purchase an obligation owed by such primary obligor,
(iii) pay for the purchase or lease of assets or services regardless of the
actual delivery thereof or (iv) maintain the capital, working capital,
solvency or general financial condition of such primary obligor;
(c) any liability of the Company (or such specified Person), as a
general partner of a partnership in respect of Indebtedness or other
obligations of such partnership;
(d) any liability of the Company (or such specified Person) as a joint
venturer of a joint venture in respect of Indebtedness or other obligations
of such joint venture;
(e) any liability of the Company (or such specified Person) with
respect to the tax liability of others as a member of a group that is
consolidated for tax purposes; and
(f) reimbursement obligations, whether contingent or matured, of the
Company (or such specified Person) with respect to letters of credit,
bankers acceptances, surety bonds, other financial guarantees and Interest
Rate Protection Agreements,
whether or not any of the foregoing are reflected on the balance sheet of
the Company (or such specified Person) or in a footnote thereto; provided,
--------
however, that the term "Guarantee" shall not include endorsements for
-------
collection or deposit in the ordinary course of business. The amount of
any Guarantee and the amount of Indebtedness resulting from such Guarantee
shall be the maximum amount that the guarantor may become obligated to pay
in respect of the obligations (whether or not such obligations are
outstanding at the time of computation).
"Guarantor" means each Subsidiary of the Borrower listed on the signature
---------
page hereto or which subsequently becomes party to this Agreement as a
Guarantor.
"Hazardous Material" means any pollutant, toxic or hazardous material or
------------------
waste, including any "hazardous substance" or "pollutant" or "contaminant" as
defined in section 101(14) of CERCLA or any other Environmental Law or regulated
as toxic or hazardous under RCRA or any other Environmental Law.
"Historical Average Payment" means, on any date, with respect to any
--------------------------
Contingent Notes or Restructured Seller Notes, the quotient of (x) the sum of
the amount of principal payments actually made on such notes in respect of all
fiscal years completed before such date and (y) the number of such completed
fiscal years; provided, however, that on any date on or prior to the end of the
-------- -------
second full fiscal year completed after the issuance of such notes, the
Historical Average Payment for such notes shall be deemed to be $0.
-12-
"Impermissible Reference" means, relative to the opinion or certification
-----------------------
of any independent public accountant as to any financial statement of any
Obligor, any qualification or exception to such opinion or certification
(a) which expresses concern about whether or not such Obligor will be
able to meet its obligations as such become due, or otherwise will be able
to operate or conduct its business in the future;
(b) which relates to the limited scope of examination of matters
relevant to such financial statement;
(c) which relates to the treatment or classification of any item in
such financial statement and which, as a condition to its removal, would
require an adjustment to such item the effect of which would be to cause
there to be a Default under Sections 6.5 through 6.23; or
(d) which, in the reasonable judgment of the Required Lenders, is not
acceptable.
"Indebtedness" means all obligations, contingent or otherwise, which in
------------
accordance with GAAP are required to be reported upon the balance sheet of the
Company (or other specified Person) as liabilities, but in any event including
(without duplication):
(a) borrowed money;
(b) indebtedness evidenced by notes, debentures or similar
instruments, including Contingent Notes and Restructured Seller Notes;
(c) Capitalized Lease Obligations;
(d) obligations, whether contingent or matured, with respect to
letters of credit, bankers acceptances, surety bonds, other financial
guarantees and Interest Rate Protection Agreements (without duplication of
other Indebtedness supported or guaranteed thereby);
(e) unfunded pension liabilities;
(f) mandatory redemption or dividend rights on capital stock (or other
equity);
(g) obligations (other than Contingent Notes or Restructured Seller
Notes) that are immediately and directly due and payable out of the
proceeds of or production from property;
-13-
(h) liabilities secured by any Lien existing on property owned or
acquired by the Company (or such specified Person), whether or not the
liability secured thereby shall have been assumed; and
(i) all Guarantees in respect of Indebtedness of others.
"Indemnified Party" is defined in Section 11.2.
-----------------
"Initial Closing Date" means the first date on or prior to May __, 2001 on
--------------------
which all the conditions set forth in Section 5.1 have been satisfied.
"Interest Expense" means, for any period, the aggregate amount of interest,
----------------
including commitment fees and payments in the nature of interest under
Capitalized Leases and Interest Rate Protection Agreements (whether such
interest is reflected as an item of expense or capitalized), paid or accrued by
any Person in accordance with GAAP.
"Interest Rate Protection Agreement" means any interest rate swap, interest
----------------------------------
rate cap, interest rate hedge or other contractual arrangement that converts
variable interest rates into fixed interest rates, fixed interest rates into
variable interest rates or other similar arrangements.
"Investment" means, with respect to the Borrower (or other specified
----------
Person):
(a) any share of capital stock, partnership or other equity interest,
evidence of Indebtedness or other security issued by any other Person;
(b) any loan, advance or extension of credit to, or contribution to
the capital of, any other Person;
(c) any Guarantee of the Indebtedness of any other Person;
(d) any acquisition of all or any part of the business of any other
Person or the assets comprising such business or part thereof; and
(e) any other similar investment.
The investments described in the foregoing clauses (a) through (e) shall be
included in the term "Investment" whether they are made or acquired by purchase,
exchange, issuance of stock or other securities, merger, reorganization or any
other method; provided, however, that the term "Investment" shall not include
-------- -------
(i) trade and customer accounts receivable for property leased, goods furnished
or services rendered in the ordinary course of business and payable in
accordance with customary trade terms, (ii) advances and prepayments to
suppliers for property leased, goods furnished and services rendered in the
ordinary course of business, (iii) advances to employees for travel expenses,
drawing accounts and similar expenditures, (iv) stock or other securities
acquired in connection with the satisfaction or enforcement of Indebtedness or
claims
-14-
due to the Company (or such specified Person) or as security for any such
Indebtedness or claim or (v) demand deposits in banks or similar financial
institutions.
In determining the amount of outstanding Investments:
(A) the amount of any Investment shall be the cost thereof
minus any returns of capital in cash on such Investment
-----
(determined in accordance with GAAP without regard to
amounts realized as income on such Investment);
(B) the amount of any Investment in respect of a purchase
described in clause (d) above shall include the amount of
any Financing Debt assumed in connection with such purchase
or secured by any asset acquired in such purchase (whether
or not any Financing Debt is assumed) or for which any
Person that becomes a Subsidiary is liable on the date on
which the securities of such Person are acquired; and
(C) no Investment shall be increased as the result of an
increase in the undistributed retained earnings of the
Person in which the Investment was made or decreased as a
result of an equity interest in the losses of such Person.
"Late Delivery Date" is defined in the definition of Applicable Commitment
------------------
Fee Rate.
"Late Pricing Reset Date" is defined in the definition of Applicable
-----------------------
Commitment Fee Rate.
"Legal Requirement" means any present or future requirement imposed upon
-----------------
any of the Lenders or the Company and its Subsidiaries by any law, statute,
rule, regulation, directive, order, decree, guideline (or any interpretation
thereof by courts or of administrative bodies) of the United States of America,
or any jurisdiction in which any LIBOR Office is located or any state or
political subdivision of any of the foregoing, or by any board, governmental or
administrative agency, central bank or monetary authority of the United States
of America, any jurisdiction in which any LIBOR Office is located, or any
political subdivision of any of the foregoing. Any such requirement imposed on
any of the Lenders which such Lender reasonably believes has the force of law
shall be deemed to be a Legal Requirement.
"Lender" means each of the Persons listed as lenders on the signature page
------
hereto, including Fleet National Bank in its capacity as a Lender and such other
Persons who may from time to time own an Aggregate Percentage Interest in the
Loan, but the term "Lender" shall not include any Credit Participant.
-15-
"Lending Officer" means such individuals whom the Agent may designate by
---------------
notice to the Company from time to time as an officer who may receive telephone
requests for borrowings under Section 2.1.3.
"Letter of Credit" is defined in Section 2.3.1.
----------------
"Letter of Credit Exposure" means, at any date, the sum of (a) the
-------------------------
aggregate face amount of all drafts that may then or thereafter be presented by
beneficiaries under all Letters of Credit then outstanding, plus (b) the
----
aggregate face amount of all drafts that the Letter of Credit Issuer has
previously accepted under Letters of Credit but has not paid.
"Letter of Credit Issuer" means, for any Letter of Credit, Fleet National
-----------------------
Bank or, in the event Fleet National Bank does not for any reason issue a
requested Letter of Credit, another Lender with a Percentage Interest in the
Revolving Loan willing to issue such Letter of Credit in accordance with Section
2.3 and who is reasonably acceptable to the Agent.
"LIBOR Base Rate" means, for any LIBOR Interest Period, the average
---------------
(rounded upward to the nearest whole multiple of one sixteenth of one percent
(1/16 of 1%)) of the rate of interest per annum at which deposits in United
States Dollars in a principal amount approximately equal to the principal amount
of the portion of the Loan to be subject to such Interest Period would be quoted
on Telerate page 3750 (or such other page as may replace the 3750 page on the
Telerate Service or such other service or services as may be nominated by the
British Bankers' Association for United States Dollar deposits) as of 11:00
A.M., London time, at least two London banking days prior to the first day of
the LIBOR Interest Period, the determination of which by the Agent shall, in the
absence of manifest error, be conclusive.
"LIBOR Interest Period" means any period, selected as provided in Section
---------------------
3.2.1, of one, two, three or six months, commencing on any Banking Day and
ending on the corresponding date in the subsequent calendar month so indicated
(or, if such subsequent calendar month has no corresponding date, on the last
day of such subsequent calendar month); provided, however, that subject to
-------- -------
Section 3.2.3, if any LIBOR Interest Period so selected would otherwise begin or
end on a date that is not a Banking Day, such LIBOR Interest Period shall
instead begin or end, as the case may be, on the immediately preceding or
succeeding Banking Day as determined by the Agent in accordance with the then
current banking practice in the inter-bank LIBOR market with respect to LIBOR
deposits at the applicable LIBOR Office, which determination by the Agent shall,
in the absence of manifest error, be conclusive.
"LIBOR Office" means such non-United States office or international banking
------------
facility of the Agent as the Agent may from time to time select.
"LIBOR Pricing Options" means the options granted pursuant to Section 3.2.1
---------------------
to have the interest on any portion of the Loan computed on the basis of a LIBOR
Rate.
"LIBOR Rate" for any LIBOR Interest Period means the rate, rounded upward
----------
to the nearest 1/100%, obtained by dividing (a) the LIBOR Base Rate for such
LIBOR Interest Period
-16-
by (b) an amount equal to 1 minus the LIBOR Reserve Rate; provided, however,
----- -------- -------
that if at any time during such LIBOR Interest Period the LIBOR Reserve Rate
applicable to any outstanding LIBOR Pricing Option changes, the LIBOR Rate for
such LIBOR Interest Period shall automatically be adjusted to reflect such
change, effective as of the date of such change.
"LIBOR Reserve Rate" means the stated maximum rate (expressed as a decimal)
------------------
of all reserves (including any basic, supplemental, marginal or emergency
reserve or any reserve asset), if any, as from time to time in effect, required
by any Legal Requirement to be maintained by any Lender against (a)
"Eurocurrency liabilities" as specified in Regulation D of the Board of
Governors of the Federal Reserve System applicable to LIBOR Pricing Options, (b)
any other category of liabilities that includes LIBOR deposits by reference to
which the interest rate on portions of the Loan subject to LIBOR Pricing Options
is determined, (c) the principal amount of or interest on any portion of the
Loan subject to a LIBOR Pricing Option or (d) any other category of extensions
of credit, or other assets, that includes loans subject to a LIBOR Pricing
Option by a non-United States office of any of the Lenders to United States
residents, in each case without the benefits of credits for prorations,
exceptions or offsets that may be available to a Lender.
"Lien" means, with respect to the Company (or any other specified Person):
----
(a) any lien, encumbrance, mortgage, pledge, charge or security
interest of any kind upon any property or assets of the Company (or such
specified Person), whether now owned or hereafter acquired, or upon the
income or profits therefrom;
(b) the acquisition of, or the agreement to acquire, any property or
asset upon conditional sale or subject to any other title retention
agreement, device or arrangement (including a Capitalized Lease);
(c) the sale, assignment, pledge or transfer for security of any
accounts, general intangibles or chattel paper of the Company (or such
specified Person), with or without recourse;
(d) the transfer of any tangible property or assets for the purpose of
subjecting such items to the payment of previously outstanding Indebtedness
in priority to payment of the general creditors of the Company (or such
specified Person); and
(e) the existence for a period of more than 120 consecutive days of
any Indebtedness against the Company (or such specified Person) which if
unpaid would by law or upon a Bankruptcy Default be given any priority over
general creditors.
"Loan" means the Revolving Loan.
----
"Loan Account" is defined in Section 2.1.4.
------------
-17-
"Management Services Agreements" shall mean the agreements entered into by
------------------------------
the Company or any of its Subsidiaries, on the one hand, and a professional
association or corporation which employs physicians engaged in a pathology
practice, on the other hand, for the long-term management of such physician
practice.
"Mandatory Borrowing" is defined in Section 2.2.4.
-------------------
"Margin Stock" means "margin stock" within the meaning of Regulations T, U
------------
or X of the Board of Governors of the Federal Reserve System.
"Material Adverse Change" means, since any specified date or from the
-----------------------
circumstances existing immediately prior to the happening of any specified
event, a material adverse change in (a) the business, assets, financial
condition, income or prospects of the Company (on an individual basis) or the
Company and its Subsidiaries (on a Consolidated basis), whether as a result of
(i) general economic conditions affecting the industry in which the Company and
its Subsidiaries are engaged, (ii) difficulties in obtaining supplies and raw
materials, (iii) fire, flood or other natural calamities, (iv) environmental
pollution, (v) regulatory changes, judicial decisions, war or other governmental
action or (vi) any other event or development, whether or not related to those
enumerated above or (b) the ability of the Obligors to perform their obligations
under the Credit Documents or (c) the rights and remedies of the Agent and the
Lenders under the Credit Documents.
"Material Agreements" is defined in Section 7.2.2.
-------------------
"Material Plan" means any Plan or Plans, collectively, as to which (a) the
-------------
excess of (i) the aggregate Accumulated Benefit Obligations under such Plan or
Plans over (ii) the aggregate fair market value of the assets of such Plan or
Plans allocable to such benefits, all determined as of the then most recent
valuation date or dates for such Plan or Plans, is greater than (b) $500,000.
"Maximum Amount of Revolving Credit" is defined in Section 2.1.2.
----------------------------------
"Multiemployer Plan" means any Plan that is a "multiemployer plan" as
------------------
defined in section 4001(a)(3) of ERISA.
"Net Equity Proceeds" means the cash proceeds received by the Company or
-------------------
any of its Subsidiaries in connection with any Equity Transaction (net of
related actual out-of-pocket fees and expenses incurred by the Company in the
exercise of the reasonable business judgment of its officers).
"Net Income" means, for any period, the net income (or loss) of any Person,
----------
determined in accordance with GAAP; provided, however, that Net Income shall not
-------- -------
include:
(a) all amounts included in computing such net income (or loss) in
respect of the write-up of any asset or the retirement of any Indebtedness
or equity at less than face value after any acquisition;
-18-
(b) extraordinary and nonrecurring gains;
(c) any after-tax gains or losses attributable to returned surplus
assets of any Plan.
"Nonperforming Lender" is defined in Section 12.4.4.
--------------------
"Notes" means each of the Revolving Notes.
-----
"Obligors" means the Company and each Guarantor, each individually an
--------
"Obligor".
--------
"Operating Earnings" means, with respect to any Person, the sum of (a) the
------------------
Net Income of such Person plus (b) all amounts deducted in computing such Net
----
Income in respect of (i) taxes based upon or measured by income, (ii) Interest
Expense, (iii) normalized salaries, benefits, and other compensation to be paid
to physicians employed by, or serving as consultants or independent contractors
to, such Person plus (c) in the case of subsidiaries that are not required to
pay 100% of Operating Earnings under a Management Services Agreement, any other
amounts paid to physicians employed by, or serving as consultants or independent
contractors to, such Person.
"OSHA" means the federal Occupational Health and Safety Act.
----
"Overdue Reimbursement Rate" means, at any date, the highest Applicable
--------------------------
Rate then in effect.
"Payment Date" means the first Banking Day of each month, commencing with
------------
the first such date after the Initial Closing Date.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
----
entity.
"Percentage Interest" means, with respect to the Revolving Loan or Letter
-------------------
of Credit Exposure, the ratio that the respective Commitments of the Lenders
with respect to such portion of the Loan (or Letter of Credit Exposure) bear to
the total Commitments in respect of such portion of the Loan (or Letter of
Credit Exposure) of all Lenders as from time to time in effect and reflected in
the Register.
"Performing Lender" is defined in Section 12.4.4.
-----------------
"Permitted Acquisition" means an Investment by the Borrower permitted under
---------------------
Section 6.9.5.
"Person" means any present or future natural person or any corporation,
------
association, partnership, joint venture, limited liability, joint stock or other
company, business trust, trust, organization, business or government or any
governmental agency or political subdivision thereof.
-19-
"Plan" means, at any date, any pension benefit plan subject to Title IV of
----
ERISA maintained, or to which contributions have been made or are required to be
made, by any ERISA Group Person within six years prior to such date.
"Pledged Indebtedness" is defined in Section 10.1.6.
--------------------
"Pledged Rights" is defined in Section 10.1.5.
--------------
"Pledged Securities" means the Pledged Stock, the Pledged Rights and the
------------------
Pledged Indebtedness, collectively.
"Pledged Stock" is defined in Section 10.1.4.
-------------
"Pricing Grid" means the pricing grid matrix set forth on Exhibit 1.
------------
"Pricing Reset Date" means the first Banking Day after annual or quarterly
------------------
financial statements have been furnished to the Lenders in accordance with
Sections 6.4.1 and 6.4.2 from time to time.
"Pro Forma EBITDA" shall mean, for any period, an amount calculated on a
----------------
pro forma basis taking into account the Permitted Acquisition equal to (a) the
historical EBITDA of the Acquired Party and (b) any non-GAAP adjustment to Net
Income to the extent that such adjustment is approved by the Required Lenders.
"Purchase Price" means the amount of the consideration, including, but not
--------------
limited to, cash or Cash Equivalents, capital stock, assets, debt, including
contingent or other promissory notes, and any other form of payment, for any
Permitted Acquisition; provided, however, that the amount of any Contingent Note
-------- -------
included in this definition of Purchase Price shall be one-half of the maximum
principal amount of such Contingent Note.
"RCRA" means the federal Resource Conservation and Recovery Act, 42 U.S.C.
----
(S) 690, et seq.
-- ---
"Register" is defined in Section 13.1.3.
--------
"Replacement Lender" is defined in Section 13.3.
------------------
"Restructured Seller Notes" means notes issued in exchange for Contingent
-------------------------
Notes or existing Restructured Seller Notes; provided, however, that,
-------- -------
(a) The Company and the holders of such new notes shall, on or prior
to the date of exchange, have executed and delivered a Subordination
Agreement in the form attached hereto as Exhibit 6.21.1(a), pursuant to
which the obligations of the Company and its Subsidiaries to the holders of
the new notes are subordinated to the Credit Obligations;
-20-
(b) The weighted average life to maturity of such new notes shall be
equal to or greater than the weighted average life to maturity of the
outstanding principal of the old notes, in each case calculated as if the
maximum outstanding principal amount were paid;
(c) Immediately before and after such exchange, no Default shall
exist; and
(d) such new notes are either:
(i) new contingent notes for which:
(1) all payments of principal of the new notes are contingent on
the Net Income of a Subsidiary of the Borrower (or a division
thereof);
(2) The aggregate maximum principal amount does not exceed the
aggregate maximum outstanding principal amount of old notes;
and
(3) The "Minimum Target" for each year (as defined in such new
notes) is greater than or equal to such target for such year
in the old notes; provided, however, that if the old notes
------- -------
being exchanged have different "Minimum Targets", or dates
therefor, then the "Minimum Targets" for each year in the new
notes shall not be less than the sum of the "Minimum Targets"
for such year under the terms of the old notes; or
(ii) new non-contingent notes for which the aggregate principal
amount does not exceed the greater of (x) one-half the remaining
aggregate maximum principal amount of old notes for which payments of
principal were contingent on the Net Income of a Subsidiary of the
Company (or a division thereof) or (y) the Historical Average Payment
on the old notes multiplied by the number of years remaining.
"Required Lenders" means, with respect to any approval, consent,
modification, waiver or other action to be taken by the Agent or the Lenders
under the Credit Documents which require action by the Required Lenders, any two
or more Lenders that own at least a majority of the Aggregate Percentage
Interests in the Loan; provided, however, that with respect to any matters
-------- -------
referred to in the proviso to Section 12.6, Required Lenders means such Lenders
that own at least the respective portions of the Aggregate Percentage Interests
in the Loan required by such proviso.
"Revolving Loan" is defined in Section 2.1.4.
--------------
"Revolving Notes" is defined in Section 2.1.4.
---------------
"Securities Act" means the federal Securities Act of 1933.
--------------
-21-
"Sellers" means the Person or Persons selling or otherwise transferring the
-------
capital stock, partnership or other equity interest or assets of the Acquired
Party to the Borrower pursuant to a Permitted Acquisition.
"Subordinated Indebtedness" means Indebtedness of the Borrower which is
-------------------------
subordinated to the Credit Obligations pursuant to a Subordination Agreement or
on terms approved by the Required Lenders in writing.
"Subordination Agreement" shall be an agreement in form and substance
-----------------------
substantially similar to Exhibit 6.21.1(a).
"Subsidiary" means any Person of which the Company (or other specified
----------
Person) shall at the time, directly or indirectly through one or more of its
Subsidiaries, or through a trust or similar entity controlled by the Company (or
other specified Person) or a Subsidiary, (a) owns at least 50% of the
outstanding capital stock (or other shares of beneficial interest) entitled to
vote generally, (b) holds at least 50% of the partnership, joint venture or
similar interests, (c) is a general partner or joint venturer or (d) with which
the Company or one or more of its Subsidiaries has entered into a Management
Services Agreement.
"Swingline Borrower" means the Borrower.
------------------
"Swingline Lender" means Fleet National Bank, in its capacity as swingline
----------------
lender hereunder.
"Swingline Loan" is defined in Section 2.2.3.
--------------
"Swingline Loan Account" is defined in Section 2.2.3.
----------------------
"Swingline Note" is defined in Section 2.2.3.
--------------
"Swingline Rate" means the rate equal to the sum of (a) the Base Rate, plus
-------------- ----
(b) an additional 3% per annum effective on the Banking Day the Agent notifies
the Company that the interest rates hereunder are increasing as a result of the
occurrence and continuance of an Event of Default until the earlier of such time
as (i) such Event of Default is no longer continuing or (ii) such Event of
Default is deemed no longer to exist, in each case pursuant to Section 8.3.
"Tax" means any present or future tax, levy, duty, impost, deduction,
---
withholding or other charges of whatever nature at any time required by any
Legal Requirement (a) to be paid by any Lender or (b) to be withheld or deducted
from any payment otherwise required hereby to be made to any Lender, in each
case on or with respect to its obligations hereunder, the Loan, any payment in
respect of the Credit Obligations or any Funding Liability not included in the
foregoing; provided, however, that the term "Tax" shall not include taxes
-------- -------
imposed upon or measured by the net income of such Lender (other than
withholding taxes) or franchise taxes.
-22-
"UCC" means the Uniform Commercial Code as in effect in Massachusetts on
---
the date hereof; provided, however, that with respect to the perfection of the
-------- -------
Agent's Lien in the Credit Security and the effect of nonperfection thereof, the
term "UCC" means the Uniform Commercial Code as in effect in any jurisdiction
the laws of which are made applicable by Section 9-103 of the Uniform Commercial
Code as in effect in Massachusetts.
"Uniform Customs and Practice" is defined in Section 2.3.7.
----------------------------
"United States Funds" means such coin or currency of the United States of
-------------------
America as at the time shall be legal tender therein for the payment of public
and private debts.
"Wholly Owned Subsidiary" means any Subsidiary of which all of the
-----------------------
outstanding capital stock (or other shares of beneficial interest) entitled to
vote generally (other than directors' qualifying shares) is owned by the Company
(or other specified Person) directly, or indirectly through one or more Wholly
Owned Subsidiaries.
"Year 2000 Compliant" means, with regard to any entity, that all software,
-------------------
embedded microchips, and other processing capabilities utilized by, and material
to the business operations or financial condition of such entity, are able to
interpret and manipulate data involving all calendar dates correctly and without
causing and abnormal ending scenario, including dates in and after the year
2000.
2. The Credits.
-----------
2.1. Revolving Credit.
----------------
2.1.1. Revolving Loan. Subject to all the terms and conditions of
--------------
this Agreement and so long as no Default then exists, from time to time on
and after the Initial Closing Date and prior to the Final Maturity Date the
Lenders will, severally in accordance with their respective Percentage
Interests in the Revolving Loan, make loans to the Borrower in such amounts
as may be requested by the Borrower in accordance with Section 2.1.3. The
sum of the aggregate principal amount of loans made under this Section
2.1.1 at any one time outstanding plus the Swingline Loan, plus the Letter
---- ----
of Credit Exposure shall in no event exceed the Maximum Amount of Revolving
Credit. In no event will the principal amount of loans at any one time
outstanding made by any Lender pursuant to this Section 2.1 exceed such
Lender's Commitment.
2.1.2. Maximum Amount of Revolving Credit. The term "Maximum Amount
---------------------------------- --------------
of Revolving Credit" means on any date, the lesser of (a) $282,500,000 or
-------------------
such higher amount up to $300,000,000 as equals the aggregate amount of the
Commitments then in effect, or (b) the amount (in an integral multiple of
$1,000,000) to which the then applicable amount shall have been irrevocably
reduced from time to time by notice from the Company to the Agent.
-23-
2.1.3. Borrowing Requests. The Borrower may from time to time
------------------
request a loan under Section 2.1.1 by providing to the Agent a notice
(which may be given by a telephone call received by a Lending Officer if
promptly confirmed in writing). Such notice must be not later than noon
(Boston time) on the first Banking Day (third Banking Day if any portion of
such loan will be subject to a LIBOR Pricing Option on the requested
Closing Date) prior to the requested Closing Date for such loan. If such
notice requested that a loan, or any portion thereof, be made subject to a
LIBOR Pricing Option, and the Agent shall have notified the Borrower
pursuant to Section 3.2.2 that such election did not become effective, the
notice shall be deemed to have been made for a loan at the Base Rate. The
notice must specify (a) the amount of the requested loan (which shall be
not less than $100,000 and an integral multiple of $50,000), (b) the
requested Closing Date therefor (which shall be a Banking Day) and (c) the
portion of the requested loan that is to be used for working capital. Upon
receipt of such notice, the Agent will promptly inform each other Lender
with Percentage Interests in the Revolving Loan (by telephone or
otherwise). Each such loan will be made at the Boston Office by depositing
the amount thereof to the general account of the Borrower with the Agent.
In connection with each such loan, the Borrower shall furnish to the Agent
a certificate in substantially the form of Exhibit 5.2.1.
2.1.4. Loan Account; Notes. The Agent will establish on its books a
-------------------
loan account for the Borrower (the "Loan Account"), which the Agent shall
------------
administer as follows: (a) the Agent shall add to the Loan Account, and the
Loan Account shall evidence, the principal amount of all loans from time to
time made by the Lenders to the Borrower pursuant to Section 2.1.1 and (b)
the Agent shall reduce the Loan Account by the amount of all payments made
on account of the Indebtedness evidenced by the Loan Account. The aggregate
principal amount of the Indebtedness evidenced by the Loan Account is
referred to as the "Revolving Loan". The Revolving Loan shall be deemed
--------------
owed to each Lender severally in accordance with such Lender's Percentage
Interest in the Revolving Loan, and all payments credited to the Loan
Account shall be for the account of each Lender in accordance with its
Percentage Interest in the Revolving Loan. The Borrower's obligations to
pay each Lender's Percentage Interest in the Revolving Loan shall be
evidenced by a separate note of such Borrower in substantially the form of
Exhibit 2.1.4 (the "Revolving Notes"), payable to each Lender in maximum
---------------
principal amount equal to such Lender's Percentage Interest in the
Revolving Loan.
2.2. Swingline Credit.
----------------
2.2.1. Swingline Loan. Subject to all the terms and conditions of
--------------
this Agreement and so long as no Default exists, from time to time on and
after the Initial Closing Date and prior to the Final Maturity Date, the
Swingline Lender will make loans to the Borrower in such amounts as may be
requested by the Borrower in accordance with Section 2.2.2. The sum of the
aggregate principal amount of loans made under this Section 2.2 at any one
time outstanding plus the Revolving Loan plus the Letter of Credit Exposure
---- ----
shall in no event exceed the Maximum Amount of Revolving Credit. In no
-24-
event will the principal amount of loans made pursuant to this Section 2.2
at any one time outstanding exceed $10,000,000.
2.2.2. Borrowing Requests. The Borrower may from time to time request
------------------
a loan under Section 2.2.1 by providing to the Swingline Lender a notice
(which may be given by a telephone call received by a Lending Officer of
the Swingline Lender). Such notice must be not later than 2:00 P.M. (Boston
time) on the requested Closing Date (which must be a Banking Day) for such
loan. The notice must specify the amount of the requested loan. Each such
loan will be made at the Boston office by depositing the amount thereof to
the general account of the Borrower with the Swingline Lender. In
connection with each such loan, the Borrower shall furnish to the Swingline
Lender a certificate in substantially the form of Exhibit 5.2.1.
2.2.3. Swingline Loan Account; Swingline Notes. The Swingline Lender
---------------------------------------
will establish on its books a loan account for the Borrower (the "Swingline
---------
Loan Account") which the Swingline Lender shall administer as follows: (a)
------------
the Swingline Lender shall add to the Swingline Loan Account, and the
Swingline Loan Account shall evidence, the principal amount of all loans
from time to time made by the Swingline Lender to the Borrower pursuant to
Section 2.2.1 and (b) the Swingline Lender shall reduce the Swingline Loan
Account by the amount of all payments made on account of the Indebtedness
evidenced by the Swingline Loan Account. The aggregate principal amount of
the Indebtedness evidenced by the Swingline Loan Account is referred to as
the "Swingline Loan". The Company's obligation to pay the Swingline Loan
--------------
shall be evidenced by a note of the Company in substantially the form of
Exhibit 2.2.3 (the "Swingline Note"), payable to the Swingline Lender in
--------------
maximum principal amount equal to the Swingline Loan.
2.2.4. Conversion of Swingline Loan into Revolving Loan. On any
------------------------------------------------
Banking Day after the occurrence and during the continuance of an Event of
Default, the Swingline Lender may, in its sole discretion, give notice to
the other Lenders and the Borrower that the Swingline Loan shall be paid in
full with a special mandatory borrowing under the Revolving Loan (the
"Mandatory Borrowing"). Such a notice of a Mandatory Borrowing shall be
-------------------
deemed to have been automatically given upon a Bankruptcy Default or upon
the exercise of any of the remedies provided in Section 8.2. Upon the
giving of any such notice or deemed notice, a Mandatory Borrowing under the
Revolving Loan in the amount of the Swingline Loan shall be made on the
next Banking Day from all Lenders in accordance with their respective
Percentage Interests in the Revolving Loan, the proceeds thereof shall be
applied to the Swingline Lender as a repayment of the Swingline Loan and
the Revolving Loan resulting from such Mandatory Borrowing shall bear
interest at the rates applicable to Revolving Loans. Each Lender
irrevocably agrees to make such loan pursuant to each such Mandatory
Borrowing notice in the amount and in the manner specified above in this
Section 2.2.4, notwithstanding (a) whether any conditions specified in
Section 5 have been satisfied, (b) that a Default or an Event of Default
has occurred and is continuing or (c) the date of such Mandatory Borrowing.
-25-
In the event that any Mandatory Borrowing cannot for any reason be made on
the date required above (including as a result of the commencement of a
proceeding under the Bankruptcy Code), each Lender shall promptly purchase
from the Swingline Lender as of the date the Mandatory Borrowing otherwise
would have occurred such participation in the Swingline Loan as shall be
necessary to cause the Lenders to share in the Swingline Loan ratably based
upon their respective Percentage Interests in the Revolving Loan. In the
event of such participations, all interest payable on the Swingline Loan
shall be for the account of the Swingline Lender until the date on which
the participations are required to be purchased and, to the extent
attributable to the purchased participations, shall be payable to the
participants from and after such date. At the time any such purchase of
participations is actually made, the purchasing Lender shall pay the
Swingline Lender interest on the principal amount of the participation
purchased at the overnight Federal Funds Rate for each day, commencing with
the date the Mandatory Borrowing otherwise would have occurred to the date
of payment for such participation. In no event shall any Lender be required
to make any Revolving Loan, including, pursuant to a Mandatory Borrowing,
if the making of such Revolving Loan would cause the outstanding principal
amount of such Lender's Revolving Loan to exceed such Lender's Commitment.
2.3. Letters of Credit.
-----------------
2.3.1. Issuance of Letters of Credit. Subject to all the terms and
-----------------------------
conditions of this Agreement and so long as no Default then exists, from
time to time on and after the Initial Closing Date and prior to the Final
Maturity Date, the Letter of Credit Issuer will issue for the account of
the Borrower one or more irrevocable documentary or standby letters of
credit (the "Letters of Credit"). Letter of Credit Exposure shall in no
-----------------
event exceed $10,000,000.
2.3.2. Requests for Letters of Credit. The Borrower may from time to
------------------------------
time request a Letter of Credit to be issued by providing to the Letter of
Credit Issuer (and the Agent if the Letter of Credit Issuer is not the
Agent) a notice which is actually received not less than five Banking Days
prior to the requested Closing Date for such Letter of Credit specifying
(a) the amount of the requested Letter of Credit, (b) the beneficiary
thereof, (c) the requested Closing Date and (d) the principal terms of the
text for such Letter of Credit. Each Letter of Credit will be issued by
forwarding it to the Borrower or to such other Person as directed in
writing by the Borrower. In connection with the issuance of any Letter of
Credit, the Borrower shall furnish to the Letter of Credit Issuer (and the
Agent if the Letter of Credit Issuer is not the Agent) a certificate in
substantially the form of Exhibit 5.2.1 and any customary application forms
required by the Letter of Credit Issuer.
2.3.3. Form and Expiration of Letters of Credit. Each Letter of
----------------------------------------
Credit issued under this Section 2.3 and each draft accepted or paid under
such a Letter of Credit shall be issued, accepted or paid, as the case may
be, by the Letter of Credit Issuer at its
-26-
principal office. No Letter of Credit shall provide for the payment of
drafts drawn thereunder, and no draft shall be payable, at a date which is
later than the Final Maturity Date. Each Letter of Credit and each draft
accepted under a Letter of Credit shall be in such form and minimum amount,
and shall contain such terms, as the Letter of Credit Issuer and the
Borrower may agree upon at the time such Letter of Credit is issued,
including a requirement of not less than three Banking Days after
presentation of a draft before payment must be made thereunder.
2.3.4. Lenders' Participation in Letters of Credit. Upon the
-------------------------------------------
issuance of any Letter of Credit, a participation therein, in an amount
equal to each Lender's Percentage Interest in the Revolving Loan, shall
automatically be deemed granted by the Letter of Credit Issuer to each
Lender with a Percentage Interest in the Revolving Loan on the date of such
issuance and the Lenders shall automatically be obligated, as set forth in
Section 12.4, to reimburse the Letter of Credit Issuer to the extent of
their respective Percentage Interests in the Revolving Loan for all
obligations incurred by the Letter of Credit Issuer to third parties in
respect of such Letter of Credit not reimbursed by the Company. The Letter
of Credit Issuer will send to each Lender with a Percentage Interest in the
Revolving Loan (and the Agent if the Letter of Credit Issuer is not the
Agent) a confirmation regarding the participations in Letters of Credit
outstanding during such month.
2.3.5. Presentation. The Letter of Credit Issuer may accept or pay
------------
any draft presented to it, regardless of when drawn and whether or not
negotiated, if such draft, the other required documents and any transmittal
advice are presented to the Letter of Credit Issuer and dated on or before
the expiration date of the Letter of Credit under which such draft is
drawn. Except insofar as instructions actually received may be given by the
Borrower in writing expressly to the contrary with regard to, and prior to,
the Letter of Credit Issuer's issuance of any Letter of Credit for the
account of the Borrower and such contrary instructions are reflected in
such Letter of Credit, the Letter of Credit Issuer may honor as complying
with the terms of the Letter of Credit and with this Agreement any drafts
or other documents otherwise in order signed or issued by an administrator,
executor, conservator, trustee in bankruptcy, debtor in possession,
assignee for benefit of creditors, liquidator, receiver or other legal
representative of the party authorized under such Letter of Credit to draw
or issue such drafts or other documents.
2.3.6. Payment of Drafts. At such time as a Letter of Credit Issuer
-----------------
makes any payment on a draft presented or accepted under a Letter of
Credit, the Borrower will on demand pay to such Letter of Credit Issuer in
immediately available funds the amount of such payment. Unless the Borrower
shall otherwise pay to the Letter of Credit Issuer the amount required by
the foregoing sentence, such amount shall be considered a loan under
Section 2.1.1 to the Borrower and part of the Revolving Loan.
2.3.7. Uniform Customs and Practice. The Uniform Customs and
----------------------------
Practice for Documentary Credits (1993 Revision), International Chamber of
Commerce Publication
-27-
No. 500, and any subsequent revisions thereof approved by a Congress of the
International Chamber of Commerce and adhered to by the Letter of Credit
Issuer (the "Uniform Customs and Practice"), shall be binding on the
----------------------------
Company and the Letter of Credit Issuer except to the extent otherwise
provided herein, in any Letter of Credit or in any other Credit Document.
Anything in the Uniform Customs and Practice to the contrary
notwithstanding:
(a) Neither the Borrower nor any beneficiary of any Letter of Credit
shall be deemed an agent of any Letter of Credit Issuer.
(b) With respect to each Letter of Credit, neither the Letter of
Credit Issuer nor its correspondents shall be responsible for or shall have
any duty to ascertain:
(i) the genuineness of any signature;
(ii) the validity, form, sufficiency, accuracy, genuineness or
legal effect of any endorsements;
(iii) delay in giving, or failure to give, notice of arrival,
notice of refusal of documents or of discrepancies in respect of which
any Letter of Credit Issuer refuses the documents or any other notice,
demand or protest;
(iv) the performance by any beneficiary under any Letter of
Credit of such beneficiary's obligations to the Borrower;
(v) inaccuracy in any notice received by the Letter of Credit
Issuer; or
(vi) the validity, form, sufficiency, accuracy, genuineness or
legal effect of any instrument, draft, certificate or other document
required by such Letter of Credit to be presented before payment of a
draft, or the office held by or the authority of any Person signing
any of the same.
(c) The occurrence of any of the events referred to in the Uniform
Customs and Practice or in the preceding clauses of this Section 2.3.7
shall not affect or prevent the vesting of any of the Letter of Credit
Issuer's rights or powers hereunder or the Borrower's obligation to make
reimbursement of amounts paid under any Letter of Credit or any draft
accepted thereunder.
(d) The Borrower will promptly examine (i) each Letter of Credit (and
any amendments thereof) sent to it by the Letter of Credit Issuer and (ii)
all instruments and documents delivered to it from time to time by the
Letter of Credit Issuer. The Borrower will notify the Letter of Credit
Issuer of any claim of noncompliance by notice actually received within
three Banking Days after receipt of any of the foregoing documents, the
Borrower being conclusively deemed to have waived any such claim against
such Letter of Credit Issuer and its correspondents unless such notice is
given. The Letter of Credit
-28-
Issuer shall have no obligation or responsibility to send any such Letter
of Credit or any such instrument or document to the Borrower.
(e) In the event of any conflict between the provisions of this
Agreement and the Uniform Customs and Practice, the provisions of this
Agreement shall govern.
2.3.8. Subrogation. Upon any payment by a Letter of Credit Issuer
-----------
under any Letter of Credit and until the reimbursement of such Letter of
Credit Issuer by the Borrower with respect to such payment, the Letter of
Credit Issuer shall be entitled to be subrogated to, and to acquire and
retain, the rights which the Person to whom such payment is made may have
against the Borrower, all for the benefit of the Lenders.
2.3.9. Modification, Consent, etc. If the Borrower requests or
--------------------------
consents in writing to any modification or extension of any Letter of
Credit, or waives any failure of any draft, certificate or other document
to comply with the terms of such Letter of Credit, and if the Letter of
Credit Issuer consents thereto, the Letter of Credit Issuer shall be
entitled to rely on such request, consent or waiver. This Agreement shall
be binding upon the Borrower with respect to such Letter of Credit as so
modified or extended, and with respect to any action taken or omitted by
such Letter of Credit Issuer pursuant to any such request, consent or
waiver.
2.4. Application of Proceeds.
-----------------------
2.4.1. Revolving Loan. Subject to Section 2.4.4, the Borrower will
--------------
apply the proceeds of the Revolving Loan (a) to fund Permitted
Acquisitions, (b) to refinance existing indebtedness, and (c) for working
capital to the extent of the Borrowing Base.
2.4.2. Swingline Loan. Subject to Section 2.4.4, the Borrower will
--------------
apply the proceeds of the Swingline Loan for working capital and other
lawful corporate purposes.
2.4.3. Letters of Credit. Letters of Credit shall be issued only
-----------------
for such lawful corporate purposes as the Borrower has requested in writing
and to which the Letter of Credit Issuer agrees.
2.4.4. Specifically Prohibited Applications. The Borrower will not,
------------------------------------
directly or indirectly, apply any part of the proceeds of any extension of
credit made pursuant to the Credit Documents to purchase or to carry Margin
Stock or to any transaction prohibited by the Foreign Trade Regulations, by
other Legal Requirements applicable to the Lenders or by the Credit
Documents.
2.5. Nature of Obligations of Lenders to Make Extensions of Credit. The
-------------------------------------------------------------
Lenders' obligations to extend credit under this Agreement are several and are
not joint or joint and several. If on any Closing Date any Lender shall fail to
perform its obligations under this Agreement, the aggregate amount of
Commitments to make the extensions of credit under this Agreement shall be
reduced by the amount of unborrowed Commitment of the Lender so failing
-29-
to perform and the Percentage Interests in the portion of the Loan to which such
Commitment relates shall be appropriately adjusted. Lenders that have not failed
to perform their obligations to make the extensions of credit contemplated by
Section 2 may, if any such Lender so desires, assume, in such proportions as the
Required Lenders may agree, the obligations of any Lender who has so failed and
the Percentage Interests in the portion of the Loan to which such obligations
relate shall be appropriately adjusted. The provisions of this Section 2.5 shall
not affect the rights of the Borrower against any Lender failing to perform its
obligations hereunder. The obligation to make a Swingline Loan shall be an
obligation solely of the Swingline Lender.
3. Interest; LIBOR Pricing Options; Fees.
-------------------------------------
3.1. Interest. The Loan shall accrue and bear interest at a rate per annum
--------
which shall at all times equal the Applicable Rate. Prior to any stated or
accelerated maturity of any portion of the Loan, the Borrower will, on each
Payment Date, pay the accrued and unpaid interest on the portions of the Loan
which were not subject to a LIBOR Pricing Option. On the last day of each LIBOR
Interest Period or on any earlier termination of any LIBOR Pricing Option, the
Borrower will pay the accrued and unpaid interest on the portions of the Loan
that were subject to the LIBOR Pricing Option, which expired or terminated on
such date. In the case of any LIBOR Interest Period longer than three months,
the Borrower will also pay the accrued and unpaid interest on the portion of the
Loan subject to the LIBOR Pricing Option having such LIBOR Interest Period at
three-month intervals, the first such payment to be made on the last Banking Day
of the three-month period that begins on the first day of such LIBOR Interest
Period. On the stated or any accelerated maturity of the Loan, the Borrower
will pay all accrued and unpaid interest on the portion of the Loan evidenced by
its Loan Account, including any accrued and unpaid interest on any portion of
such Loan which is subject to a LIBOR Pricing Option. Upon the occurrence and
during the continuance of an Event of Default, the Required Lenders may require
accrued interest to be payable on demand or at regular intervals more frequent
than each Payment Date. All payments of interest hereunder for each portion of
the Loan shall be made to the Agent for the account of each Lender in accordance
with such Lender's Percentage Interest in such portion of the Loan.
3.2. LIBOR Pricing Options.
---------------------
3.2.1. Election of LIBOR Pricing Options. Subject to all of the
----------------------------------
terms and conditions hereof and so long as no Default exists, the Borrower
may from time to time, by irrevocable notice to the Agent actually received
not less than three Banking Days prior to the commencement of the LIBOR
Interest Period selected in such notice, elect to have such portion of the
Loan as the Borrower may specify in such notice accrue and bear interest
during the LIBOR Interest Period so selected at the Applicable Rate
computed on the basis of the LIBOR Rate. No such election shall become
effective:
(a) if, prior to the commencement of any such LIBOR Interest Period,
the Agent determines that (i) the electing or granting of the LIBOR Pricing
Option in question would violate a Legal Requirement, (ii) LIBOR deposits
in an amount
-30-
comparable to the principal amount of the Loan as to which
such LIBOR Pricing Option has been elected and which have a term
corresponding to the proposed LIBOR Interest Period are not readily
available in the inter-bank LIBOR market, or (iii) by reason of
circumstances affecting the inter-bank LIBOR market, adequate and
reasonable methods do not exist for ascertaining the interest rate
applicable to such deposits for the proposed LIBOR Interest Period; or
(b) if any Lender shall have advised the Agent by telephone or
otherwise at or prior to noon (Boston time) on the second Banking Day prior
to the commencement of such proposed LIBOR Interest Period (and shall have
subsequently confirmed in writing) that, after reasonable efforts to
determine the availability of such LIBOR deposits, such Lender reasonably
anticipates that LIBOR deposits in an amount equal to the Percentage
Interest of such Lender in the portion of the Loan as to which such LIBOR
Pricing Option has been elected and which have a term corresponding to the
LIBOR Interest Period in question will not be offered in the LIBOR market
to such Lender at a rate of interest that does not exceed the anticipated
LIBOR Base Rate.
3.2.2. Notice to Lenders and the Borrower. The Agent will promptly
----------------------------------
inform each Lender (by telephone or otherwise) of each notice received by
it from the Borrower pursuant to Section 3.2.1 and of the LIBOR Interest
Period specified in such notice. Upon determination by the Agent of the
LIBOR Rate for such LIBOR Interest Period or in the event such election
shall not become effective, the Agent will promptly notify the Borrower and
each Lender (by telephone or otherwise) of the LIBOR Rate so determined or
why such election did not become effective, as the case may be.
3.2.3. Selection of LIBOR Interest Periods. LIBOR Interest Periods
-----------------------------------
shall be selected so that:
(a) the minimum portion of the Loan subject to any LIBOR Pricing
Option shall be $500,000 and an integral multiple of $100,000;
(b) no more than 6 LIBOR Pricing Options shall be outstanding at
any one time;
(c) no LIBOR Interest Period with respect to any part of the Loan
subject to a LIBOR Pricing Option shall expire later than the Final
Maturity Date.
3.2.4. Additional Interest. If any portion of the Loan subject to a
-------------------
LIBOR Pricing Option is repaid, or any LIBOR Pricing Option is terminated
for any reason (including acceleration of maturity), on a date which is
prior to the last Banking Day of the LIBOR Interest Period applicable to
such LIBOR Pricing Option, the Borrower will pay to the Agent for the
account of each Lender in accordance with such Lender's Percentage Interest
in such portion of the Loan, in addition to any amounts of interest
otherwise payable hereunder, an amount equal to the present value
(calculated in accordance with this Section 3.2.4) of interest for the
unexpired portion of such LIBOR Interest Period on
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the portion of the Loan so repaid, or as to which a LIBOR Pricing Option
was so terminated, at a per annum rate equal to the excess, if any, of (a)
the LIBOR Rate applicable to such LIBOR Pricing Option minus (b) the lowest
-----
rate of interest obtainable by the Agent upon the purchase of debt
securities customarily issued by the Treasury of the United States of
America which have a maturity date approximating the last Banking Day of
such LIBOR Interest Period. The present value of such additional interest
shall be calculated by discounting the amount of such interest for each day
in the unexpired portion of such LIBOR Interest Period from such day to the
date of such repayment or termination at a per annum interest rate equal to
the interest rate determined pursuant to clause (b) of the preceding
sentence, and by adding all such amounts for all such days during such
period. The determination by the Agent of such amount of interest shall, in
the absence of manifest error, be conclusive. For purposes of this Section
3.2.4, if any portion of the Loan which was to have been subject to a LIBOR
Pricing Option is not outstanding on the first day of the LIBOR Interest
Period applicable to such LIBOR Pricing Option other than for reasons
described in Section 3.2.1, the Borrower shall be deemed to have terminated
such LIBOR Pricing Option.
3.2.5. Violation of Legal Requirements. If any Legal Requirement
-------------------------------
shall prevent any Lender from funding or maintaining through the purchase
of deposits in the interbank LIBOR market any portion of the Loan subject
to a LIBOR Pricing Option or otherwise from giving effect to such Lender's
obligations as contemplated by Section 3.2, (a) the Agent may by notice to
the Borrower terminate all of the affected LIBOR Pricing Options, (b) the
portion of the Loan subject to such terminated LIBOR Pricing Options shall
immediately bear interest thereafter at the Applicable Rate computed on the
basis of the Base Rate and (c) the Borrower shall make any payment required
by Section 3.2.4.
3.2.6. Funding Procedure. The Lenders may fund any portion of the
-----------------
Loan subject to a LIBOR Pricing Option out of any funds available to the
Lenders. Regardless of the source of the funds actually used by any of the
Lenders to fund any portion of the Loan subject to a LIBOR Pricing Option,
however, all amounts payable hereunder, including the interest rate
applicable to any such portion of the Loan and the amounts payable under
Sections 3.2.4 or 3.5, shall be computed as if each Lender had actually
funded such Lender's Percentage Interest in such portion of the Loan
through the purchase of deposits in such amount of the type by which the
LIBOR Base Rate was determined with a maturity the same as the applicable
LIBOR Interest Period relating thereto and through the transfer of such
deposits from an office of the Lender having the same location as the
applicable LIBOR Office to one of such Lender's offices in the United
States of America.
3.3. Interest on Swingline Loan. The Swingline Loan shall accrue and
--------------------------
bear interest at a rate per annum which shall at all times equal the Swingline
Rate. Interest on the Swingline Loan shall be calculated on a daily basis and on
the basis of a year of 360 days. Prior to any stated or accelerated maturity of
the Swingline Loan, the Swingline Borrower will on each Payment Date, beginning
on the first Payment Date after the Initial Closing Date, pay the accrued and
unpaid interest on such Indebtedness. On any stated or accelerated maturity of
the
-32-
Swingline Loan all accrued and unpaid interest thereon shall be forthwith due
and payable. All payments of interest hereunder in respect of the Swingline Loan
shall be made by the Swingline Borrower to the Agent for the account of the
Swingline Lender.
3.4. Commitment Fees. In consideration of the Lenders' commitments to make
---------------
the extensions of credit provided for in Section 2.1, while such commitments are
outstanding, the Borrower will pay to the Agent for the account of the Lenders
in accordance with the Lenders' respective Percentage Interests in the Revolving
Loan, on the first Banking Day of each fiscal quarter, an amount equal to
interest computed at the Applicable Commitment Fee Rate on the amount by which
(a) the average daily Maximum Amount of Revolving Credit during the fiscal
quarter or portion thereof most recently ended exceeded (b) the sum of (i) the
average daily Revolving Loan during such period or portion thereof plus (ii) the
----
average daily Letter of Credit Exposure during such period or portion
thereof.
3.5. Letter of Credit Fees. The Borrower will pay to the Agent for the
---------------------
account of each of the Lenders, in accordance with the Lenders' respective
Percentage Interests, on each Payment Date, a Letter of Credit fee equal to
interest at a rate per annum equal to the applicable margin added to the LIBOR
Rate indicated on Exhibit 1 applicable to a Revolving Loan on the average daily
Letter of Credit exposure during the monthly period or portion thereof ending on
such Payment Date. In addition, the Borrower will pay to the Letter of Credit
Issuer (a) on each Payment Date a fronting fee equal to interest at a rate per
annum of 0.125% on the aggregate face amount of each Letter of Credit
outstanding during the three-month period or portion thereof ending on such
Payment Date; and (b) customary service charges and expenses for its services in
connection with the Letters of Credit at the times and in the amounts from time
to time in effect in accordance with its general rate structure, including
reasonable fees and expenses relating to issuance, amendment, negotiation,
cancellation and similar operations.
3.6. Changes in Circumstances; Yield Protection.
------------------------------------------
3.6.1. Reserve Requirements, etc. If any Legal Requirement shall (a)
-------------------------
impose, modify, increase or deem applicable any insurance assessment,
reserve, special deposit or similar requirement against any Funding
Liability or the Letters of Credit, (b) impose, modify, increase or deem
applicable any other requirement or condition with respect to any Funding
Liability or the Letters of Credit, or (c) change the basis of taxation of
Funding Liabilities or payments in respect of any Letter of Credit (other
than changes in the rate of taxes measured by the overall net income of
such Lender) and the effect of any of the foregoing shall be to increase
the cost to any Lender of issuing, making, funding or maintaining its
respective Percentage Interest in any portion of the Loan subject to a
LIBOR Pricing Option or any Letter of Credit, to reduce the amounts
received or receivable by such Lender under this Agreement or to require
such Lender to make any payment or forego any amounts otherwise payable to
such Lender under this Agreement, then, the Lender may claim compensation
under Section 3.6.5; provided, however, that the foregoing provisions shall
-------- -------
not apply to any Tax or to any reserves which are included in computing the
LIBOR Reserve Rate.
-33-
3.6.2. Taxes. All payments of the Credit Obligations shall be made
-----
without set-off or counterclaim and free and clear of any deductions,
including deductions for Taxes, unless the Borrower is required by law to
make such deductions. If (a) any Lender shall be subject to any Tax with
respect to any payment of the Credit Obligations or its obligations
hereunder or (b) the Borrower shall be required to withhold or deduct any
Tax on any payment on the Credit Obligations, then, the Lender may claim
compensation under Section 3.6.5. Whenever Taxes must be withheld by the
Borrower with respect to any payments of the Credit Obligations, the
Borrower shall promptly furnish to the Agent for the account of the
applicable Lender official receipts (to the extent that the relevant
governmental authority delivers such receipts) evidencing payment of any
such Taxes so withheld. If the Borrower fails to pay any such Taxes when
due or fails to remit to the Agent for the account of the applicable Lender
the required receipts evidencing payment of any such Taxes so withheld or
deducted, the Borrower shall indemnify the affected Lender for any
incremental Taxes and interest or penalties that may become payable by such
Lender as a result of any such failure.
3.6.3. Capital Adequacy. If any Lender shall determine that
----------------
compliance by such Lender with any Legal Requirement regarding capital
adequacy of banks or bank holding companies has or would have the effect of
reducing the rate of return on the capital of such Lender and its
Affiliates as a consequence of such Lender's commitment to make the
extensions of credit contemplated hereby, or such Lender's maintenance of
the extensions of credit contemplated hereby, to a level below that which
such Lender could have achieved but for such compliance (taking into
consideration the policies of such Lender and its Affiliates with respect
to capital adequacy immediately before such compliance and assuming that
the capital of such Lender and its Affiliates was fully utilized prior to
such compliance) by an amount deemed by such Lender to be material, then,
the Lender may claim compensation under Section 3.6.5.
3.6.4. Regulatory Changes. If any Lender shall determine that (a) any
------------------
change in any Legal Requirement (including any new Legal Requirement) after
the date hereof shall directly or indirectly (i) reduce the amount of any
sum received or receivable by such Lender with respect to the Loan or the
Letters of Credit or the return to be earned by such Lender on the Loan or
the Letters of Credit, (ii) impose a cost on such Lender or any Affiliate
of such Lender that is attributable to the making or maintaining of, or
such Lender's commitment to make, its portion of the Loan or the Letters of
Credit, or (iii) require such Lender or any Affiliate of such Lender to
make any payment on, or calculated by reference to, the gross amount of any
amount received by such Lender under any Credit Document, and (b) such
reduction, increased cost or payment shall not be fully compensated for by
an adjustment in the Applicable Rate or the Letter of Credit fees, then,
the Lender may claim compensation under Section 3.6.5.
3.6.5. Compensation Claims. If a Lender makes a determination that it
-------------------
will seek compensation pursuant to any of Sections 3.6.1, 3.6.2, 3.6.3 and
3.6.4, such Lender shall promptly thereafter give notice thereof to the
Company. Promptly after the receipt by the
-34-
Company of any such notice, the Company and the Lender shall attempt to
negotiate in good faith an adjustment to the amount payable by the Borrower
to the Lender under the relevant Section, which amount shall be sufficient
to compensate the Lender for such reduced return. If the Company and the
Lender are unable to agree to such adjustment within thirty days of the
date upon which the Company receives such notice, then the Borrower will,
on demand by the Lender, pay to the Lender such additional amount as shall
be sufficient, in the Lender's reasonable determination, to compensate the
Lender for such reduced return, together with interest at the Overdue
Reimbursement Rate from the 30th day until payment in full thereof. The
determination by such Lender of the amount to be paid to it and the basis
for computation thereof shall, in the absence of manifest error, be
conclusive. In determining such amount, such Lender may use any reasonable
averaging, allocation and attribution methods. The Borrower shall be
entitled to replace any such Lender in accordance with Section 13.3.
3.7. Computations of Interest and Fees. For purposes of this Agreement,
---------------------------------
interest, commitment fees and Letter of Credit fees (and any other amount
expressed as interest or such fees) shall be computed on the basis of a 360-day
year for actual days elapsed. If any payment required by this Agreement becomes
due on any day that is not a Banking Day, such payment shall, except as
otherwise provided in the LIBOR Interest Period, be made on the next succeeding
Banking Day. If the due date for any payment of principal is extended as a
result of the immediately preceding sentence, interest shall be payable for the
time during which payment is extended at the Applicable Rate or the applicable
commitment fee or letter of credit fee rate.
4. Payment.
-------
4.1. Payment at Maturity. On the Final Maturity Date or any accelerated
-------------------
maturity of the Loan, the Borrower will pay to the Agent for the account of the
Lenders an amount equal to the portion of the Loan then due, together with all
accrued and unpaid interest thereon and all other Credit Obligations then
outstanding.
4.2. Contingent Required Prepayments.
-------------------------------
4.2.1. Excess Credit Exposure. If at any time the Revolving Loan
----------------------
exceeds the limits set forth in Section 2.1, the Borrower shall within
three Banking Days pay the amount of such excess to the Agent for the
account of the Lenders.
4.2.2. Letter of Credit Exposure. If at any time the Letter of
-------------------------
Credit Exposure exceeds the limits set forth in Section 2.3, the Borrower
shall within three Banking Days pay the amount of such excess to the Agent
for the account of the Lenders to be applied as provided in Section 4.5.
4.2.3. Net Equity Proceeds. Within three Banking Days after the
-------------------
receipt of Net Equity Proceeds, the Borrower shall pay to the Agent as a
prepayment of the Loan, to be applied as provided in Section 4.5, the
lesser of (a) the amount of Net Equity Proceeds or (b) the amount of the
Loan. The Company shall give the Agent at least five Banking
-35-
Days' prior notice of its intention to prepay the Loans, or any portion
thereof, under this Section 4.3.3.
4.3. Voluntary Prepayments. In addition to the prepayments required by
---------------------
Section 4.2, the Borrower may from time to time prepay all or any portion of the
Loan (in a minimum amount of $100,000 and an integral multiple of $100,000),
without premium or penalty of any type (except as provided in Section 3.2.4 with
respect to the early termination of LIBOR Pricing Options). The Borrower shall
give the Agent at least one Banking Day prior notice of its intention to prepay,
specifying the date of payment, the total amount of the Loan to be paid on such
date and the amount of interest to be paid with such prepayment. At any time or
from time to time upon telephone notice to the Swingline Lender, given not later
than 3:00 P.M. (Boston time) on any Banking Day, the Swingline Borrower shall
have the right to prepay, without premium or penalty of any type, all or any
part of the outstanding principal amount of its Swingline Loan in such amounts
as are not less than $100,000 and in integral multiples of $50,000, unless such
payment is equal to the entire outstanding principal amount of the Swingline
Loan.
4.4. Letters of Credit. If on the stated or any accelerated maturity of
-----------------
the Credit Obligations the Lenders shall be obligated in respect of a Letter of
Credit or a draft accepted under a Letter of Credit, the Borrower will either:
(a) prepay such obligation by depositing with the Agent an amount of
cash, or
(b) deliver to the Agent a standby letter of credit (designating the
Agent as beneficiary and issued by a bank and on terms reasonably
acceptable to the Agent),
in each case in an amount equal to the portion of the then Letter of Credit
Exposure issued for the account of the Borrower. Any such cash so deposited and
the cash proceeds of any draw under any standby letter of credit so furnished,
including any interest thereon, shall be returned by the Agent to the Borrower
only when, and to the extent that, the amount of such cash held by the Agent
exceeds the Letter of Credit Exposure at a time when no Default exists;
provided, however, that if an Event of Default occurs and the Credit Obligations
-------- -------
become or are declared immediately due and payable, the Agent may apply such
cash, including any interest thereon, to the payment of any of the Credit
Obligations as provided in Section 10.5.6.
4.5. Reborrowing; Application of Payments, etc. The amounts of the
-----------------------------------------
Revolving Loan prepaid pursuant to Section 4.4 may be reborrowed from time to
time prior to the Final Maturity Date in accordance with Section 2.1, subject to
the limits set forth therein. Any prepayment of a portion of the Loan shall be
applied first to the portion of the Loan not then subject to LIBOR Pricing
Options, then the balance of any such prepayment shall be applied to the portion
of the Loan then subject to LIBOR Pricing Options, in the chronological order of
the respective maturities thereof, together with any payments required by
Section 3.2.4. All payments of principal of a portion of the Loan shall be made
to the Agent for the account of the Lenders in accordance with the Lenders'
respective Percentage Interests in such portion of the Loan.
-36-
5. Conditions to Extending Credit.
------------------------------
5.1. Conditions on Initial Closing Date. The obligations of the Lenders to
----------------------------------
make any extension of credit pursuant to Section 2 shall be subject to the
satisfaction, on or before the Initial Closing Date, of the conditions set forth
in this Section 5.1 as well as the further conditions in Section 5.2. If the
conditions set forth in this Section 5.1 and 5.2 are not met on or prior to the
Initial Closing Date, the Lenders shall have no obligation to make any
extensions of credit hereunder.
5.1.1. Notes. The Borrower shall have duly executed and delivered
-----
to the Agent a Revolving Note for each Lender.
5.1.2. Perfection of Security. Each Obligor shall have duly
----------------------
authorized, executed, acknowledged, delivered, filed, registered and
recorded such security agreements, notices, financing statements and other
instruments as the Agent may have requested in order to perfect the Liens
contemplated pursuant to the Credit Documents to be created in the Credit
Security. To the extent requested by the Agent, each Obligor shall have
duly authorized, executed, acknowledged and delivered to the Agent a
mortgage on each parcel of real property owned by such Obligor in form and
substance satisfactory to the Agent, together with, for each such parcel of
real property: (a) mortgage title insurance with such insurer, in such
amount, in such form and with such exceptions as are reasonably
satisfactory to the Agent and (b) an environmental site assessment report
in such form, with such conclusions and from such environmental engineering
firm as are reasonably satisfactory to the Agent.
5.1.3. Legal Opinions. On the Initial Closing Date, the Lenders
--------------
shall have received from the following counsel their respective opinions
with respect to the transactions contemplated by the Credit Documents,
which opinions shall be in form and substance satisfactory to the Required
Lenders:
(a) Xxxxxxxxx Xxxxxxx, P.A., special counsel for the Obligors.
(b) Ropes & Xxxx, special counsel for the Agent.
The Obligors authorize and direct their counsel to furnish the foregoing
opinions.
5.1.4. Payment of Fee. The Borrower shall have paid to the Agent
--------------
(a) for the Lenders' accounts a facility fee in accordance with the
separate letter agreements with the Lenders and (b) the reasonable fees and
disbursements of the Agent's special counsel for which statements have been
rendered on or prior to the Initial Closing Date.
5.1.5. Adverse Market Change. Since September 29, 1999, no
---------------------
material adverse change shall have occurred in the syndication markets for
credit facilities similar in nature to this Agreement, and no material
disruption for or material adverse change in the financial, banking or
capital markets that would have an adverse effect on such
-37-
syndication market shall have occurred, in each case as determined by the
Agent and the Arranger in their sole discretion.
5.2. Conditions to Each Extension of Credit. The obligations of the
--------------------------------------
Lenders to make any extension of credit pursuant to Section 2 shall be subject
to the satisfaction, on or before the Closing Date for such extension of credit,
of the following conditions:
5.2.1. Officer's Certificate. The representations and warranties
---------------------
contained in Sections 7 and 10.3 shall be true and correct on and as of
such Closing Date with the same force and effect as though made on and as
of such date (except as to any representation or warranty which refers to a
specific earlier date); no Default shall exist on such Closing Date prior
to or immediately after giving effect to the requested extension of credit;
no Material Adverse Change shall have occurred since December 31, 1998 or
the date of the most recent audited financial statements provided pursuant
to Section 6.4.1; and the Borrower shall have furnished to the Agent in
connection with the requested extension of credit a certificate to these
effects, in substantially the form of Exhibit 5.2.1, signed by a Financial
-------------
Officer.
5.2.2. Legality, etc. The making of the requested extension of
-------------
credit shall not (a) subject any Lender to any penalty or special tax
(other than a Tax for which the Borrower is required to reimburse the
Lenders under Section 3.5.2, (b) be prohibited by any Legal Requirement or
(c) violate any credit restraint program of the executive branch of the
government of the United States of America, the Board of Governors of the
Federal Reserve System or any other governmental or administrative agency
so long as any Lender reasonably believes that compliance is required by
law.
5.2.3. Proper Proceedings. This Agreement, each other Credit
------------------
Document and the transactions contemplated hereby and thereby shall have
been authorized by all necessary corporate or other proceedings of the
Obligors. All necessary consents, approvals and authorizations of any
governmental or administrative agency or any other Person of any of the
transactions contemplated hereby or by any other Credit Document shall have
been obtained and shall be in full force and effect.
5.2.4. Conditions to Making Each Permitted Acquisition Advance. In
-------------------------------------------------------
the case of any loan contemplated by Section 2.1 to fund a Permitted
Acquisition, the Borrower shall have complied with all of the requirements
of Section 6.21 with respect to the Permitted Acquisition.
5.2.5. General. All legal and corporate proceedings in connection
-------
with the transactions contemplated by this Agreement shall be satisfactory
in form and substance to the Agent and the Agent shall have received copies
of all documents, including certified copies of the Charter and By-Laws of
the Borrower and the other Obligors, records of corporate proceedings,
certificates as to signatures and incumbency of officers and opinions of
counsel, which the Agent may have reasonably requested in connection
-38-
therewith, such documents where appropriate to be certified by proper
corporate or governmental authorities.
6. General Covenants. Each of the Borrower and the Guarantors covenants that,
-----------------
until all of the Credit Obligations shall have been paid in full and until the
Lenders' commitments to extend credit under this Agreement and any other Credit
Document shall have been irrevocably terminated, it will comply, and will cause
its Subsidiaries (including such Subsidiaries as are not Guarantors) to comply,
with the following provisions:
6.1. Taxes and Other Charges; Accounts Payable.
-----------------------------------------
6.1.1. Taxes and Other Charges. Each of the Borrower and its
-----------------------
Subsidiaries shall duly pay and discharge, or cause to be paid and
discharged, before the same become in arrears, all taxes, assessments and
other governmental charges imposed upon such Person and its properties,
sales or activities, or upon the income or profits therefrom, as well as
all claims for labor, materials or supplies which if unpaid might by law
become a Lien upon any of its property; provided, however, that any such
-------- -------
tax, assessment, charge or claim need not be paid if the validity or amount
thereof shall at the time be contested in good faith by appropriate
proceedings and if such Person shall, in accordance with GAAP, have set
aside on its books adequate reserves with respect thereto; and provided,
--------
further, that each of the Borrower and its Subsidiaries shall pay or bond,
-------
or cause to be paid or bonded, all such taxes, assessments, charges or
other governmental claims immediately upon the commencement of proceedings
to foreclose any Lien which may have attached as security therefor (except
to the extent such proceedings have been dismissed or stayed).
6.1.2. Accounts Payable. Each of the Borrower and its Subsidiaries
----------------
shall promptly pay when due, or in conformity with customary trade terms,
all other Indebtedness, including accounts payable, incident to the
operations of such Person not referred to in Section 6.1.1; provided,
--------
however, that any such Indebtedness need not be paid if the validity or
-------
amount thereof shall at the time be contested in good faith and if such
Person shall, in accordance with GAAP, have set aside on its books adequate
reserves with respect thereto.
6.2. Conduct of Business, etc.
------------------------
6.2.1. Types of Business. The Borrower and its Subsidiaries shall
-----------------
engage only in the business of (a) providing pathology services, laboratory
services (including full service clinical and anatomical pathology
laboratory services) and (b) other activities and services incident
thereto.
6.2.2. Maintenance of Properties. Each of the Borrower and its
-------------------------
Subsidiaries:
(a) shall keep its properties in such repair, working order and
condition, and shall from time to time make such repairs, replacements,
additions and improvements
-39-
thereto as are necessary for the efficient operation of its businesses and
shall comply at all times in all material respects with all franchises,
licenses, leases and other material agreements to which it is party so as
to prevent any loss or forfeiture thereof or thereunder, except where (i)
compliance is at the time being contested in good faith by appropriate
proceedings or (ii) failure to comply with the provisions being contested
has not resulted, or does not create a material risk of resulting, in the
aggregate in any Material Adverse Change; provided, however, that this
-------- -------
Section 6.2.2(a) shall not apply to assets or entities disposed of in
transactions permitted by Section 6.11; and
(b) shall do all things necessary to preserve, renew and keep in
full force and effect and in good standing its legal existence and
authority necessary to continue its business; provided, however, that this
-------- -------
Section 6.2.2(b) shall not prevent the merger, consolidation or liquidation
of Subsidiaries permitted by Section 6.11.
6.2.3. Statutory Compliance. Each of the Borrower and its
--------------------
Subsidiaries shall comply in all material respects with all valid and
applicable statutes, laws, ordinances, zoning and building codes and other
rules and regulations of the United States of America, of the states and
territories thereof and their counties, municipalities and other
subdivisions and of any foreign country or other jurisdictions applicable
to such Person, except where (a) compliance therewith shall at the time be
contested in good faith by appropriate proceedings or (b) failure so to
comply with the provisions being contested has not resulted, or does not
create a material risk of resulting, in the aggregate in any Material
Adverse Change.
6.2.4. No Subsidiaries. The Borrower shall not form or suffer to
---------------
exist any Subsidiary, except for such Subsidiaries as shall have executed
and delivered to the Agent either (a) this Agreement and each other
applicable Credit Document as of the Initial Closing Date or (b) a Joinder
Agreement in the form of Exhibit 6.21.1(b) pursuant to which such
Subsidiary shall have become a Guarantor hereunder; provided, however, that
-------- -------
in the event that applicable state law or regulation prohibits any
Subsidiary of the Company from guaranteeing the Credit Obligations, such
Subsidiary shall not be required to execute this Agreement or such a
Joinder Agreement.
6.2.5. Compliance with Material Agreements. Each of the Borrower
-----------------------------------
and its Subsidiaries shall comply in all material respects with the
Material Agreements (to the extent not in violation of the other provisions
of this Agreement or any other Credit Document). Except with respect to
Acquisition Agreements, without the prior written consent of the Required
Lenders, which consent shall not be unreasonably withheld, no Material
Agreement shall be amended, modified, waived or terminated in any manner
that would have in any material respect an adverse effect on the interests
of the Lenders.
6.3. Insurance.
---------
6.3.1. Property Insurance. Each of the Borrower and its
------------------
Subsidiaries shall keep its assets which are of an insurable character
insured by financially sound and reputable
-40-
insurers against theft and fraud and against loss or damage by fire,
explosion and hazards and such other extended coverage risks insured
against by extended coverage to the extent, in amounts and with deductibles
at least as favorable as those generally maintained by businesses of
similar size engaged in similar activities in similar localities.
6.3.2. Liability Insurance. Each of the Borrower and its
-------------------
Subsidiaries shall maintain with financially sound and reputable insurers
insurance against liability for hazards, risks and liability to persons
(for both death and bodily injury) and property, including product
liability insurance and medical malpractice insurance, to the extent, in
amounts and with deductibles at least as favorable as those generally
maintained by businesses of similar size engaged in similar activities in
similar localities; provided, however, that it may affect workers'
-------- -------
compensation insurance or similar coverage with respect to operations in
any particular state or other jurisdiction through an insurance fund
operated by such state or jurisdiction or by meeting the self-insurance
requirements of such state or jurisdiction.
6.3.3. Key Executive Life Insurance. The Borrower and its
----------------------------
Subsidiaries shall collaterally assign to the Agent for the benefit of the
Lenders all life insurance policies for which any of the Borrower and its
Subsidiaries are the beneficiary, on each officer or doctor employed by the
Borrower or any of its Subsidiaries.
6.3.4. Flood Insurance. Each of the Borrower and its Subsidiaries
---------------
shall at all times keep each parcel of real property owned or leased by it
which is (a) included in the Credit Security, (b) in an area determined by
the Director of the Federal Emergency Management Agency to be subject to
special flood hazard and (c) in a community participating in the National
Flood Insurance Program, insured against such special flood hazards in an
amount equal to the maximum limit of coverage available for the particular
type of property under the federal National Flood Insurance Act of 1968.
6.4. Financial Statements and Reports. Each of the Borrower and its
--------------------------------
Subsidiaries shall maintain a system of accounting in which correct entries
shall be made of all transactions in relation to their business and affairs in
accordance with generally accepted accounting practice. The fiscal year of the
Borrower and its Subsidiaries shall end on December 31 in each year and the
fiscal quarters of such Persons shall end on March 31, June 30, September 30 and
December 31 in each year.
6.4.1. Annual Reports. The Borrower shall furnish to the Agent as
--------------
soon as available, and in any event within 95 days after the end of each
fiscal year, the Form 10-K of the Borrower for such year. The Borrower
shall furnish to the Agent as soon as available, and in any event within
120 days after the end of each fiscal year, the Consolidated and
Consolidating balance sheets of the Obligors as at the end of such fiscal
year, the Consolidated and Consolidating statements of income and
Consolidated statements of changes in shareholders' equity and of cash
flows of the Obligors for such fiscal year (all in reasonable detail) and
together, in the case of Consolidated financial
-41-
statements, with comparative figures for the immediately preceding fiscal
year, all accompanied by:
(a) Unqualified reports of independent certified public
accountants of recognized national standing reasonably satisfactory to the
Agent, containing no material uncertainty and without any Impermissible
Reference, to the effect that they have audited the foregoing Consolidated
financial statements in accordance with generally accepted auditing
standards and that such Consolidated financial statements present fairly,
in all material respects, the financial position of the Obligors covered
thereby at the dates thereof and the results of their operations for the
periods covered thereby in conformity with GAAP.
(b) The statement of such accountants that they have caused this
Agreement to be reviewed and that in the course of their audit of the
Borrower and its Subsidiaries no facts have come to their attention that
cause them to believe that any Default exists and in particular that they
have no knowledge of any Default under Sections 6.5 through 6.23 or, if
such is not the case, specifying such Default and the nature thereof. This
statement is furnished by such accountants with the understanding that the
examination of such accountants cannot be relied upon to give such
accountants knowledge of any such Default except as it relates to
accounting or auditing matters within the scope of their audit.
(c) A certificate of the Borrower signed by a Financial Officer
to the effect that such officer has caused this Agreement to be reviewed
and has no knowledge of any Default, or if such officer has such knowledge,
specifying such Default and the nature thereof, and what action the
Borrower has taken, is taking or proposes to take with respect thereto.
(d) Computations by the Borrower comparing the financial
statements referred to above with the most recent budget for such fiscal
year furnished to the Agent in accordance with Section 6.4.3.
(e) Computations by the Borrower demonstrating, as of the end of
such fiscal year, compliance with the Computation Covenants, certified by a
Financial Officer.
(f) Calculations, as at the end of such fiscal year, of (i) the
Accumulated Benefit Obligations for each Plan covered by Title IV of ERISA
(other than Multiemployer Plans) and (ii) the fair market value of the
assets of such Plan allocable to such benefits.
(g) Supplements to Exhibits 7.1, 7.3 and 10.4.2 showing any
changes in the information set forth in such Exhibits not previously
furnished to the Agent in writing, as well as any changes in the Charter,
Bylaws or incumbency of officers of the Obligors from those previously
certified to the Agent.
-42-
(h) In the event of a change in GAAP after the Initial Closing Date,
computations by the Borrower, certified by a Financial Officer, reconciling the
financial statements referred to above with financial statements prepared in
accordance with GAAP as applied to the other covenants in Section 6 and related
definitions.
6.4.2. Quarterly Reports. The Borrower shall furnish to the Agent
------------------
as soon as available and, in any event, within 45 days after the end of each of
the first three fiscal quarters of the Borrower, the internally prepared
Consolidated and Consolidating balance sheets of the Obligors as of the end of
such fiscal quarter, the Consolidated and Consolidating statements of income and
Consolidated statements of changes in shareholders' equity and of cash flows of
the Obligors for such fiscal quarter and for the portion of the fiscal year then
ended (all in reasonable detail) and together, in the case of Consolidated
statements, with comparative figures for the same period in the preceding fiscal
year, all accompanied by:
(a) A certificate of the Borrower signed by a Financial Officer to
the effect that such financial statements have been prepared in accordance with
GAAP and present fairly, in all material respects, the financial position of the
Obligors covered thereby at the dates thereof and the results of their
operations for the periods covered thereby, subject only to normal year-end
audit adjustments and the addition of footnotes.
(b) A certificate of the Borrower signed by a Financial Officer to
the effect that such officer has caused this Agreement to be reviewed and has no
knowledge of any Default, or if such officer has such knowledge, specifying such
Default and the nature thereof and what action the Borrower has taken, is taking
or proposes to take with respect thereto.
(c) Computations by the Borrower comparing the financial statements
referred to above with the most recent budget for the period covered thereby
furnished to the Agent in accordance with Section 6.4.3.
(d) Computations by the Borrower demonstrating, as of the end of such
quarter, compliance with the Computation Covenants, certified by a Financial
Officer.
(e) Supplements to Exhibits 7.1, 7.3 and 10.4.2 showing any changes
in the information set forth in such Exhibits not previously furnished to the
Agent in writing, as well as any changes in the Charter, Bylaws or incumbency of
officers of the Borrower or its Subsidiaries from those previously certified to
the Agent.
(f) In the event of a change in GAAP after the Initial Closing Date,
computations by the Borrower, certified by a Financial Officer, reconciling the
financial statements referred to above with financial statements prepared in
accordance with GAAP as applied to the other covenants in Section 6 and related
definitions.
6.4.3. Other Reports. The Borrower shall promptly furnish to the
-------------
Agent:
-43-
(a) As soon as prepared and in any event prior to the beginning of
each fiscal year, an annual budget and operating projections for such fiscal
year of the Borrower and its Subsidiaries, prepared in a manner consistent with
the manner in which the financial projections described in Section 7.2.1 were
prepared.
(b) Any material updates of such budget and projections.
(c) Any management letters furnished to the Borrower or any of its
Subsidiaries by the Company's auditors.
(d) All budgets, projections, statements of operations and other
reports furnished generally to the shareholders of the Borrower.
(e) As soon as practicable but, in any event, within 20 Banking Days
after the filing thereof, such registration statements, proxy statements and
reports, including, to the extent applicable, Forms X-0, X-0, X-0, X-0, 10-K,
10-Q and 8-K, as may be filed by the Borrower or any of its Subsidiaries with
the Securities and Exchange Commission.
(f) Any 90-day letter or 30-day letter from the federal Internal
Revenue Service (or the equivalent notice received from state or other taxing
authorities) asserting tax deficiencies against the Borrower or any of its
Subsidiaries.
(g) Any material information relating to (i) a material audit or
investigation of the Borrower or any of its Subsidiaries in its capacity as a
Medicare or Medicaid provider by a governmental or administrative agency, (ii)
any claim against the Borrower or any of its Subsidiaries under the Federal
False Claims Act, (iii) any self reporting of any violation by the Borrower or
any of its Subsidiaries and (iv) any request by the Borrower or any of its
Subsidiaries for an Advisory Opinion from the Office of the Inspector General of
the Department of Health and Human Services.
(h) The financial and operational projections for the Obligors on a
Consolidated and Consolidating basis.
6.4.4. Notice of Litigation, Defaults, etc. Each of the Borrower and
------------------------------------
its Subsidiaries shall promptly furnish to the Agent notice of any litigation or
any administrative or arbitration proceeding including the impanneling of a
grand jury, (a) which creates a material risk of resulting, after giving effect
to any applicable insurance, in the payment by the Borrower or any of its
Subsidiaries of more than $100,000 or (b) which results, or creates a material
risk of resulting, in a Material Adverse Change. Within five Banking Days after
acquiring knowledge thereof, the Borrower shall notify the Lenders of the
existence of any Default or Material Adverse Change, specifying the nature
thereof and what action the Borrower or such Subsidiary has taken, is taking or
proposes to take with respect thereto.
-44-
6.4.5. ERISA Reports. Each of the Borrower and its Subsidiaries shall
-------------
furnish to the Agent promptly after the same shall become available the
following items with respect to any Plan:
(a) any request for a waiver of the funding standards or an extension
of the amortization period,
(b) any reportable event (as defined in section 4043 of ERISA),
unless the notice requirement with respect thereto has been waived by
regulation,
(c) any notice received by any ERISA Group Person that the PBGC has
instituted or intends to institute proceedings to terminate any Plan, or that
any Multiemployer Plan is insolvent or in reorganization,
(d) notice of the possibility of the termination of any Plan by its
administrator pursuant to section 4041 of ERISA, and
(e) notice of the intention of any ERISA Group Person to withdraw, in
whole or in part, from any Multiemployer Plan.
6.4.6. Other Information; Audit. From time to time at reasonable
-------------------------
intervals upon request of any authorized officer of the Agent or any Lender,
each of the Borrower and its Subsidiaries shall furnish to the Agent or such
Lender such other information regarding the business, assets, financial
condition, income or prospects of the Borrower and its Subsidiaries as such
officer may reasonably request, including copies of all tax returns, licenses,
agreements, leases and instruments to which any of the Borrower and its
Subsidiaries is party. The Agent's, or such Lender's authorized officers and
representatives shall have the right during normal business hours upon
reasonable notice and at reasonable intervals to examine the books and records
of the Borrower and its Subsidiaries, to make copies and notes therefrom for the
purpose of ascertaining compliance with or obtaining enforcement of this
Agreement or any other Credit Document. Any Lender requesting any such
information or examination shall coordinate with the Agent the frequency and
timing of such requests and examinations so as to reasonably minimize the burden
imposed on the Borrower and its Subsidiaries. The Agent, upon reasonable advance
notice, may undertake to have the Borrower and its Subsidiaries reviewed by the
Agent's commercial financial examiners and fixed asset appraisers. The Borrower
shall bear the reasonable expenses related to one such review annually unless an
Event of Default has occurred and is continuing in which event the Borrower
shall bear all reasonable expenses of any reasonable number of reviews.
6.5. Certain Financial Tests.
-----------------------
6.5.1. Consolidated Total Debt Coverage. At all times, the amount of
--------------------------------
(a) Consolidated Total Debt minus (b) that portion of the outstanding principal
-----
amount of any Contingent Notes and Restructured Seller Notes to the extent that
such portion is not
-45-
required to be reflected on the financial statements of the Borrower in
accordance with GAAP, shall not exceed 250% of the Consolidated Adjusted EBITDA
for the period of four consecutive fiscal quarters most recently ended.
6.5.2. Consolidated Interest Expense. On the last day of each fiscal
-----------------------------
quarter of the Borrower, Consolidated EBITDA for the period of four consecutive
fiscal quarters then ending shall be at least 250% of the Consolidated Interest
Expense for such period.
6.5.3. Consolidated Operating Cash Flow. On the last day of each
--------------------------------
fiscal quarter of the Borrower, Consolidated Operating Cash Flow for the period
of four consecutive fiscal quarters then ending shall equal or exceed the
percentage specified in the table below of the sum of (i) Consolidated Total
Debt Service for such period minus (ii) voluntary prepayments of the Loan:
-----
Period Ending Percentage
------------- ----------
Initial Closing Date through
September 30, 2000 125%
December 31, 2000 120%
March 31, 2001 through
June 30, 2001 115%
September 30, 2001 through
December 31, 2001 120%
March 31, 2002 through
December 30, 2003 130%
December 31, 2003 and thereafter 145%
Notwithstanding the foregoing, in calculating Consolidated Operating
Cash Flow for purposes of this Section 6.5.3, for periods ending June
30, 2000 through March 31, 2001, charges totaling $5,240,000 in
connection with the impairment of assets and related charges for
AmeriPath PCC, Inc. shall not be subtracted from Consolidated
Operating Cash Flow.
Notwithstanding the foregoing, in calculating Consolidated Operating
Cash Flow for purposes of this Section 6.5.3, charges of up to
$22,900,000 (comprised of one time cash transaction and restructuring
charges of up to $12,800,000 in connection with the acquisition of
Pathology Consultants of America Inc., and nonrecurring non-cash
charges of up to $10,100,000, including charges resulting from an
increase in the accounts receivable reserve in connection with the
-46-
acquisition of Pathology Consultants of America Inc., and potential
unidentified impairment charges relating to good will and other
intangibles of not more than $5,000,000) shall not be subtracted from
Consolidated Operating Cash Flow; provided, however, that no such
-------- -------
amount shall be subtracted from Consolidated Operating Cash Flow for
longer than the fiscal quarter in which such amount is first
subtracted and the three consecutive fiscal quarters immediately
following the first fiscal quarter in which such amount is first
subtracted."
6.6. Indebtedness. Neither the Borrower nor any of its Subsidiaries shall
------------
create, incur, assume or otherwise become or remain liable with respect to any
Indebtedness except the following:
6.6.1. Indebtedness in respect of the Credit Obligations.
6.6.2. Guarantees permitted by Section 6.7.
6.6.3. Current liabilities, other than Financing Debt, incurred in
the ordinary course of business.
6.6.4. To the extent that payment thereof shall not at the time be
required by Section 6.1, Indebtedness in respect of taxes, assessments,
governmental charges and claims for labor, materials and supplies.
6.6.5. Indebtedness secured by Liens of carriers, warehouses,
mechanics and landlords permitted by Sections 6.8.5 and 6.8.6.
6.6.6. Indebtedness in respect of judgments or awards (a) which have
been in force for less than the applicable appeal period or (b) in respect
of which the Borrower or any of its Subsidiaries shall at the time in good
faith be prosecuting an appeal or proceedings for review and, in the case
of each of clauses (a) and (b), the Borrower or such Subsidiary shall have
taken appropriate reserves therefor in accordance with GAAP and execution
of such judgment or award shall not be levied.
6.6.7. To the extent permitted by Section 6.8.9, Indebtedness in
respect of Capitalized Lease Obligations or secured by purchase money
security interests; provided, however, that the aggregate principal amount
-------- -------
of all Indebtedness permitted by this Section 6.6.7 at any one time
outstanding shall not exceed $3,000,000.
6.6.8. Indebtedness with respect to deferred compensation in the
ordinary course of business and Indebtedness with respect to employee
benefit programs (including liabilities in respect of deferred
compensation, pension or severance benefits, early termination benefits,
disability benefits, vacation benefits and tuition benefits) incurred in
the ordinary course of business so long as the Borrower and its
Subsidiaries is in compliance with Section 6.17.
-47-
6.6.9. Indebtedness in respect of customer advances and deposits,
deferred income, deferred taxes and other deferred credits arising in the
ordinary course of business.
6.6.10. Indebtedness relating to deferred gains and deferred taxes
arising in connection with sale of assets permitted under Section 6.11.
6.6.11. Indebtedness in respect of inter-company loans and advances
among the Borrower and its Subsidiaries which are not prohibited by Section
6.9.
6.6.12. Contingent Notes and Restructured Seller Notes.
6.6.13. Indebtedness to the extent set forth on Exhibit 6.6.
-----------
6.7. Guarantees; Letters of Credit. Neither the Borrower nor any of its
-----------------------------
Subsidiaries, shall become or remain liable with respect to any Guarantee,
including reimbursement obligations, whether contingent or matured, under
letters of credit or other financial guarantees by third parties, except the
following:
6.7.1. Letters of Credit and Guarantees of the Credit Obligations.
6.7.2. Guarantees by the Borrower of Indebtedness incurred by its
Subsidiaries and permitted by Section 6.6.
6.7.3. Guarantees by the Borrower of the obligations of its
Subsidiaries under employment agreements between such Subsidiary and its
employees.
6.8. Liens. Neither the Borrower nor any of its Subsidiaries shall create,
-----
incur or enter into, or suffer to be created or incurred or to exist, any Lien,
except the following:
6.8.1. Liens on the Credit Security that secure the Credit
Obligations.
6.8.2. Liens to secure taxes, assessments and other governmental
charges, to the extent that payment thereof shall not at the time be required by
Section 6.1.
6.8.3. Deposits or pledges made (a) in connection with, or to secure
payment of, workers' compensation, unemployment insurance, old age pensions
or other social security, (b) in connection with casualty insurance
maintained in accordance with Section 6.3, (c) to secure the performance of
bids, tenders, contracts (other than contracts relating to Financing Debt)
or leases, (d) to secure statutory obligations or surety or appeal bonds,
(e) to secure indemnity, performance or other similar bonds in the ordinary
course of business or (f) in connection with contested amounts to the
extent that payment thereof shall not at that time be required by Section
6.1.
-48-
6.8.4. Liens in respect of judgments or awards, to the extent that
such judgments or awards are permitted by Section 6.6.6.
6.8.5. Liens of carriers, warehouses, mechanics and similar Liens, in
each case (a) in existence less than 120 days from the date of creation
thereof or (b) being contested in good faith by the Borrower or any
Subsidiary in appropriate proceedings (so long as the Borrower or such
Subsidiary shall, in accordance with GAAP, have set aside on its books
adequate reserves with respect thereto).
6.8.6. Encumbrances in the nature of (a) zoning restrictions, (b)
easements, (c) restrictions of record on the use of real property, (d)
landlords' and lessors' Liens on rented premises and (e) restrictions on
transfers or assignment of leases, which in each case do not materially
detract from the value of the encumbered property or impair the use thereof
in the business of the Borrower or any Subsidiary.
6.8.7. Restrictions under federal and state securities laws on the
transfer of securities.
6.8.8. Restrictions under Foreign Trade Regulations on the transfer
or licensing of certain assets of the Borrower and its Subsidiaries.
6.8.9. Liens constituting (a) purchase money security interests
(including mortgages, conditional sales, Capitalized Leases and any other
title retention or deferred purchase devices) in real property, interests
in leases or tangible personal property (other than inventory) existing or
created on the date on which such property is acquired, and (b) the
renewal, extension or refunding of any security interest referred to in the
foregoing clause (a) in an amount not to exceed the amount thereof
remaining unpaid immediately prior to such renewal, extension or refunding;
provided, however, that (i) each such security interest shall attach solely
-------- -------
to the particular item of property so acquired, and the principal amount of
Indebtedness (including Indebtedness in respect of Capitalized Lease
Obligations) secured thereby shall not exceed the cost (including all such
Indebtedness secured thereby, whether or not assumed) of such item of
property, and (ii) the aggregate principal amount of all Indebtedness
secured by Liens permitted by this Section 6.8.9 shall not exceed the
amount permitted by Section 6.6.7.
6.8.10. Other Liens and Capitalized Lease Obligations on the property
secured by such Liens or the subject of such Capitalized Lease as set forth
on Exhibit 6.8 and any renewals thereof, but not any increase in the amount
-----------
thereof.
6.9. Investments and Permitted Acquisitions. either the Borrower nor any
---------------------------------------
of its Subsidiaries shall have outstanding, acquire, commit itself to acquire or
hold any Investment (including any Investment consisting of the Permitted
Acquisition of any business) except for the following:
6.9.1. Cash Investments of the Borrower in its Subsidiaries.
-49-
6.9.2. Intercompany loans and advances from the Borrower and its
Subsidiaries to any Subsidiary but in each case only to the extent
reasonably necessary for Consolidated tax planning and working capital
management.
6.9.3. Investments in Cash Equivalents.
6.9.4. Guarantees permitted by Section 6.7.
6.9.5. Acquisitions permitted by Section 6.21 (each a "Permitted
Acquisition").
6.9.6. Investments representing Indebtedness of any Person owing as
a result of the sale by the Borrower in the ordinary course of business to
such Person of products, services or tangible property no longer required
in the Borrower's business.
6.9.7. Promissory Note payable to the Borrower issued in March,
1999 by Dr. A. Xxxxxxx Xxxxxxxx, M.D. in the amount of $600,000 at an
annual interest rate of 6%, due March, 2003.
6.9.8. Minority equity Investment of up to $3,000,000 in Genomics
Collaborative, Inc.
6.10. Distributions. Neither the Borrower nor any of its Subsidiaries
-------------
shall make any Distribution except for the following:
6.10.1. Subsidiaries of the Borrower may make Distributions to the
Borrower or any other Subsidiary of the Borrower.
6.10.2. Distributions consisting of Investments permitted by
Sections 6.9.1 and 6.9.2.
6.10.3. Distributions in respect of the redemption of capital
stock of the Company from employees of the Borrower or any of its
Subsidiaries; provide however, that the amount of all such Distributions
------- -------
shall not exceed $50,000 in the aggregate in any fiscal year.
6.10.4. Distributions on Subordinated Indebtedness to the extent
permitted by a Subordination Agreement or such other documentation relating
to Subordinated Indebtedness that has been approved by the Required
Lenders.
6.11. Asset Dispositions and Mergers. Except as otherwise set forth in
------------------------------
Exhibit 6.11, neither the Borrower nor any of its Subsidiaries shall merge or
------------
enter into a consolidation or sell, lease, sell and lease back, sublease or
otherwise dispose of any of its assets, except the following:
-50-
6.11.1. So long as immediately prior to and after giving effect
thereto there shall exist no Default, the Borrower and any of its
Subsidiaries may sell or otherwise dispose of: (a) inventory in the
ordinary course of business; (b) tangible assets to be replaced in the
ordinary course of business within 12 months by other assets of equal or
greater value; and (c) tangible assets no longer used or useful in the
business of the Borrower or such Subsidiary; provided, however, that the
-------- -------
aggregate fair market value (or book value, if greater) of the assets sold
or disposed of pursuant to this clause (c) shall not exceed $500,000 in any
fiscal year.
6.11.2. Any Subsidiary may merge or be liquidated into the
Borrower or any other Subsidiary of the Borrower so long as after giving
effect to any such merger to which an Obligor is a party, an Obligor shall
be the surviving or resulting Person.
6.12. Lease Obligations. Neither the Borrower nor any of its Subsidiaries
-----------------
shall be or become obligated as lessee under any lease except:
6.12.1. Capitalized Leases permitted by Sections 6.6.7 and 6.8.9.
6.12.2. Leases other than Capitalized Leases; provided, however,
-------- -------
that the aggregate fixed rental obligations for any year (excluding
payments required to be made by the lessee in respect of taxes and
insurance whether or not denominated as rent) shall not exceed $5,000,000.
6.13. Issuance of Stock by Subsidiaries; Subsidiary Distributions.
-----------------------------------------------------------
6.13.1. Issuance of Stock by Subsidiaries of the Company. No
------------------------------------------------
Subsidiary shall issue or sell any shares of its capital stock or other
evidence of beneficial ownership to any Person other than the Borrower or
any other Wholly-Owned Subsidiary of the Borrower, which shares shall have
been pledged to the Agent as part of the Credit Security; provided,
--------
however, that (i) in the event that applicable state law or regulation
-------
prohibits the Company from directly holding the capital stock of a medical
practice that is a Subsidiary of the Company, such shares may be issued or
sold to a trust or similar entity controlled solely by the Borrower or a
Wholly-Owned Subsidiary of the Borrower, (ii) Xxxxx X. Xxxxxxxxxx, M.D. may
hold one share of AmeriPath Kentucky, Inc., so long as the Shareholders'
Agreement among Xxxxx X. Xxxxxxxxxx, M.D., the Company and AmeriPath
Kentucky, Inc. remains in full force and effect, (iii) Xxxx Xxxxx, M.D. may
hold all the issued and outstanding Shares of AmeriPath Pittsburgh, P.C. so
long as the Shareholder's Agreement among Xxxx Xxxxx, M.D., the Company and
AmeriPath Pittsburgh, P.C. remains in full force and
-51-
effect, (iv) H. Xxxxxxx Xxxxx, M.D. may hold all the issued and outstanding
Shares of AmeriPath Consulting Pathology Services, P.A. so long as the
Shareholders' Agreement among H. Xxxxxxx Xxxxx, M.D., the Company and
AmeriPath Consulting Pathology Services, P.A. remains in full force and
effect, (v) Xxxx Xxxxx, M.D. may hold all the issued and outstanding Shares
of Consulting Pathologists of Pennsylvania, P.C. so long as the
Shareholders' Agreement among Xxxx Xxxxx, M.D., the Company and Consulting
Pathologists of Pennsylvania, P.C. remains in full force and effect, (vi)
Xxxxxxx X. Xxxxxxxxx, M.D. may hold all the issued and outstanding Shares
of AmeriPath Milwaukee, S.C. so long as the Shareholders' Agreement among
Xxxxxxx X. Xxxxxxxxx, M.D., the company and AmeriPath Milwaukee, S.C.
remains in full force and effect, and (vii) Xxxx Xxxxx, M.D. may hold all
the issued and outstanding Shares of XX Xxxxx M.D. and
Associates/AmeriPath, P.C. so long as the Shareholders' Agreement among
Xxxx Xxxxx, M.D., the Company and XX Xxxxx M.D. and Associates/AmeriPath,
P.C. remains in full force and effect.
6.13.2. No Restrictions on Subsidiary Distributions. Except for
-------------------------------------------
this Agreement ad the Credit Documents, neither the Borrower nor any of its
Subsidiaries shall enter into or be bound by any agreement (including
covenants requiring the maintenance of specified amounts of net worth or
working capital) restricting the right of any Subsidiary to make
Distributions or extensions of credit to the Borrower (directly or
indirectly through another Subsidiary).
6.14. Voluntary Prepayments of Other Indebtedness. Neither the Borrower
-------------------------------------------
nor any of its Subsidiaries shall make any voluntary prepayment of principal of
or interest on any Financing Debt (other than the Credit Obligations) or make
any voluntary redemptions or repurchases of Financing Debt (other than the
Credit Obligations) without the prior written consent of the Required Lenders.
6.15. Derivative Contracts. Neither the Borrower nor any of its
--------------------
Subsidiaries shall enter into any Interest Rate Protection Agreement, foreign
currency exchange contract or other financial or commodity derivative contracts
except (i) to provide hedge protection for an underlying economic transaction in
the ordinary course of business, or (ii) as required by Section 6.19.
6.16. Negative Pledge Clauses. Neither the Borrower nor any of its
-----------------------
Subsidiaries shall enter into any agreement, instrument, deed or lease which
prohibits or limits the ability of such Person to create, incur, assume or
suffer to exist any Lien upon any of their respective properties, assets or
revenues, whether now owned or hereafter acquired, or which requires the grant
of any collateral for such obligation if collateral is granted for another
obligation, except the following:
6.16.1. This Agreement and the other Credit Documents.
6.16.2. Covenants in documents creating Liens permitted by Section
6.8 prohibiting further Liens on the assets encumbered thereby.
6.17. ERISA, etc. Each of the Borrower and its Subsidiaries shall
----------
comply, and shall cause all ERISA Group Persons to comply, in all material
respects, with the provisions of ERISA and the Code applicable to each Plan.
Each of the Borrower and its Subsidiaries shall meet, and shall cause all ERISA
Group Persons to meet, all minimum funding requirements applicable to them with
respect to any Plan pursuant to section 302 of ERISA or section 412 of the Code,
without giving effect to any waivers of such requirements or extensions of the
related amortization periods which may be granted. At no time shall the
Accumulated Benefit
-52-
Obligations under any Plan that is not a Multiemployer Plan exceed the fair
market value of the assets of such Plan allocable to such benefits by more than
$250,000. The Borrower and its Subsidiaries shall not withdraw, and shall cause
all other ERISA Group Persons not to withdraw, in whole or in part, from any
Multiemployer Plan so as to give rise to withdrawal liability exceeding $250,000
in the aggregate. At no time shall the actuarial present value of unfunded
liabilities for post-employment health care benefits, whether or not provided
under a Plan, calculated in a manner consistent with Statement No. 106 of the
Financial Accounting Standards Board, exceed $500,000.
6.18. Transactions with Affiliates. Except with respect to Management
----------------------------
Services Agreements and transactions set forth on Exhibit 6.18, neither the
------------
Borrower nor any of its Subsidiaries shall effect any transaction with any of
their respective Affiliates (except for the Borrower and its Subsidiaries) on a
basis less favorable to the Borrower and its Subsidiaries than would be the case
if such transaction had been effected with a non-Affiliate.
6.19. Interest Rate Protection. The Borrower shall keep in effect the
------------------------
existing Interest Rate Protection Agreements.
6.20. Environmental Laws.
------------------
6.20.1. Compliance with Law and Permits. Each of the Borrower and
-------------------------------
its Subsidiaries shall use and operate all of their respective facilities
and properties in material compliance with all Environmental Laws, keep all
necessary permits, approvals, certificates, licenses and other
authorizations relating to environmental matters in effect and remain in
material compliance therewith, and handle all Hazardous Materials in
material compliance with all applicable Environmental Laws.
6.20.2. Notice of Claims, etc. Each of the Borrower and its
----------------------
Subsidiaries shall immediately notify the Agent, and provide copies upon
receipt, of all written claims, complaints, notices or inquiries from
governmental authorities relating to the condition of its facilities and
properties or compliance with Environmental Laws, and shall promptly cure
and have dismissed with prejudice to the satisfaction of the Agent any
actions and proceedings relating to compliance with Environmental Laws.
6.21. Permitted Acquisitions; General. Any Obligor may make any
-------------------------------
acquisition of all of the capital stock, equity, partnership interests, limited
liability company membership or other beneficial interests in, or a purchase of
substantially all of the assets of any Person if (a) that acquisition is a
Friendly Acquisition and (b) that Person derives substantially all of its
revenues from, a business that the Borrower would be permitted to engage in
under Section 6.2.1; provided, however, that
-------- -------
6.21.1. In the case of any such acquisition for which the Purchase
Price is less than $5,000,000:
-53-
(a) Subordination Agreement. If any Person is being issued a
-----------------------
Contingent Note in connection with the acquisition, no later than the
closing date of such acquisition (the "Acquisition Closing Date"), the
Borrower and any such Person shall execute and deliver to the Agent a
subordination agreement substantially in the form of Exhibit 6.21.1(a);
-----------------
(b) Joinder Agreement and Corporate Documents. Not later than five
-----------------------------------------
days after the Acquisition Closing Date the Borrower and the Guarantors
shall (A) execute and deliver a Joinder Agreement substantially in the form
of Exhibit 6.21.1(b), making any new subsidiary created or acquired in
-----------------
connection with such acquisition a Guarantor under this Agreement and (B)
deliver to the Agent a certificate of the Secretary of any new Subsidiary
with respect to the incumbency of the officers of the new Subsidiary, the
Charter and By-laws of such new Subsidiary, and the votes taken by such
Subsidiary to authorize its joinder to this Agreement;
(c) Credit Security. Not later than five days after the Acquisition
---------------
Closing Date, the Borrower shall (A) deliver to the Agent such financing
statements, mortgages and other documentation as the Agent shall request to
attach a security interest to the assets of such new Subsidiary and to
perfect such security interests and (B) deliver to the Agent all of the
capital stock of such new Subsidiary (or make other arrangement reasonably
satisfactory to the Agent to perfect the security interest of the Lenders
in any equity interest in such new Subsidiary). The failure of the
Borrower to comply with this Section 6.21.1(c) shall constitute an Event of
Default; and
(d) No Default. Immediately before and after giving effect to such
----------
acquisition, no Default shall exist.
(e) Management Services Agreement. The Management Services Agreement,
-----------------------------
if any, executed and delivered in connection with such acquisition shall
provide that 100% of Operating Earnings of a physician practice be payable
to the Borrower or a Guarantor.
(f) Acquisition Compliance Certificate. The Borrower provides to
----------------------------------
the Agent, not later than 5 days after the Acquisition Closing Date, a
certificate in the form of Exhibit 6.21.1(f) certifying compliance with
-----------------
this Section 6.21.1.
6.21.2. In the case of any such acquisition for which the Purchase
Price is greater than or equal to $5,000,000 and the Cash Purchase Price is
less than $10,000,000, the Borrower shall comply with all the requirements
of Section 6.21.1, with the exception of 6.21.1(f), and:
(a) Purchase Price Limitation. The Financing Debt component of the
-------------------------
consideration for such acquisition (i) shall not exceed the sum of 450% of
the Pro Forma EBITDA of the Acquired Party for the most recently completed
period of four consecutive fiscal quarters plus the cash and Cash
Equivalents of the Acquired Party that
-54-
are being purchased and (ii) shall not exceed 70% of the Purchase Price. In
addition, no less than 30% of the total Purchase Price shall consist of
common stock of the Company and no more than 20% of the total Purchase
Price shall consist of Contingent Notes.
(b) Acquisition Documents. The Borrower shall provide to the Agent:
---------------------
(i) not later than five days prior to the Acquisition Closing
Date, a copy of the due diligence report provided to the board of
directors of the Company with respect to such acquisition;
(ii) not later than three days prior to the Acquisition Closing
Date, a copy of a draft of the Acquisition Agreement, together with
all amendments, exhibits and schedules thereto, for such acquisition;
and from such time until the Acquisition Closing Date, the Borrower
shall provide to the Agent all changes and additions to the foregoing;
(iii) not later than five days after the Acquisition Closing
Date, a final executed copy of the Acquisition Agreement and all
exhibits and schedules thereto.
(c) Pro Forma Covenant Compliance. Not later than five Banking Days
-----------------------------
before the Acquisition Closing Date, the Borrower shall provide to the
Agent, a computation, certified by a Financial Officer of the Borrower,
showing pro forma compliance as of the date of such acquisition with the
financial tests set forth in Section 6.5, after giving effect to any
increases in Financing Debt incurred in connection with such acquisition
and adding to the financial statements most recently delivered to the Agent
the Pro Forma EBITDA of the Acquired Party for the most recently completed
period of four consecutive fiscal quarters;
Each Lender shall be deemed to have approved any non-GAAP adjustments used
in such certified calculation of the Pro Forma EBITDA (as shown in the due
diligence report sent to the Lenders) unless, within five Banking Days
after the Company (via the Agent) gives notice to such Lender of the
proposed Pro Forma EBITDA calculations showing such non-GAAP adjustments,
such Lender has given notice to the Company and the Agent of its objection
to such non-GAAP adjustments.
(d) Acquisition Compliance Certificate. The Borrower provides to
----------------------------------
the Agent, not later than 5 days after the Acquisition Closing Date, a
certificate in the form of Exhibit 6.21.2(d) certifying compliance with
-----------------
Section 6.21.1 and Section 6.21.2 hereof, and further certifying that (a)
the Acquisition has been consummated, (b) the representations and
warranties of the Sellers were true and correct as of the Acquisition
Closing Date and (c) any material consent, authorization, order or approval
of any Person required in connection with the transactions contemplated by
the Acquisition Agreement has been obtained and is in full force and
effect.
-55-
6.21.3. In the case of any such acquisition for which the Cash
Purchase Price is equal to or exceeds $10,000,000, in addition to meeting
the requirements of Sections 6.21.1 and 6.21.2 the Borrower shall receive
prior written consent of the Required Lenders and provide all further
documentation and meet all further requirements reasonably requested by the
Agent.
6.22. Year 2000 Compliant. In a timely manner, but not later than the
-------------------
Initial Closing Date, the Borrower shall certify to the Agent in writing that
its and its Subsidiaries' material critical systems are Year 2000 Compliant.
7. Representations and Warranties. In order to induce the Lenders to extend
------------------------------
credit to the Borrower hereunder, each of the Obligors jointly and severally
represents and warrants as follows:
7.1. Organization and Business.
-------------------------
7.1.1. The Borrower. The Borrower is a duly organized and validly
------------
existing corporation, in good standing under the laws of Delaware with all
power and authority, corporate or otherwise, necessary to (a) enter into
and perform this Agreement and each other Credit Document to which it is
party, (b) grant the Agent for the benefit of the Lenders the security
interests in the Credit Security owned by it to secure the Credit
Obligations and (c) own its properties and carry on the business now
conducted or proposed to be conducted by it. Certified copies of the
Charter and By-laws of the Borrower have been previously delivered to the
Agent and are correct and complete. Exhibit 7.1, as from time to time
hereafter supplemented in accordance with Sections 6.4.1 and 6.4.2, sets
forth, as of the later of the date hereof or as of the end of the most
recent fiscal quarter for which financial statements are required to be
furnished in accordance with such Sections, (i) the jurisdiction of
incorporation of the Borrower, (ii) the address of the Borrower's principal
executive office and chief place of business, (iii) each name, including
any trade name, under which the Borrower conducts its business and (iv) the
jurisdictions in which the Borrower keeps tangible personal property.
7.1.2. Subsidiaries. Each Subsidiary of the Borrower is duly
------------
organized, validly existing and in good standing under the laws of the
jurisdiction in which it is organized, with all power and authority,
corporate or otherwise, necessary to (a) enter into and perform this
Agreement and each other Credit Document to which it is party, (b)
guarantee the Credit Obligations, (c) grant the Lenders the security
interest in the Credit Security owned by such Subsidiary to secure the
Credit Obligations and (d) own its properties and carry on the business now
conducted or proposed to be conducted by it; provided, however, that the
-------- -------
foregoing clauses (a), (b) and (c) shall not apply to any such Subsidiary
that is not a Guarantor. Certified copies of the Charter and By-laws of
each Subsidiary of the Borrower have been previously delivered to the Agent
and are correct and complete. Exhibit 7.1, as from time to time hereafter
supplemented in accordance
-56-
with Sections 6.4.1 and 6.4.2, sets forth, as of the later of the date
hereof or as of the end of the most recent fiscal quarter for which
financial statements are required to be furnished in accordance with such
Sections, (i) the name and jurisdiction of organization of each Subsidiary
of the Borrower, (ii) the address of the chief executive office and
principal place of business of each such Subsidiary, (iii) each name under
which each such Subsidiary conducts its business; (iv) each jurisdiction in
which each such Subsidiary keeps tangible personal property, and (v) the
number of authorized and issued shares and ownership of each such
Subsidiary.
7.1.3. Qualification. Each of the Borrower and its Subsidiaries is
-------------
duly and legally qualified to do business as a foreign corporation or other
entity and is in good standing in each state or jurisdiction in which such
qualification is required and is duly authorized, qualified and licensed
under all laws, regulations, ordinances or orders of public authorities, or
otherwise, to carry on its business in the places and in the manner in
which it is conducted, except for failures to be so qualified, authorized
or licensed which would not in the aggregate result, or create a material
risk of resulting, in any Material Adverse Change.
7.1.4. Capitalization. No options, warrants, conversion rights,
--------------
preemptive rights or other statutory or contractual rights to purchase
shares of capital stock or other securities of any Subsidiary now exist,
nor has any Subsidiary authorized any such right, nor is any Subsidiary
obligated in any other manner to issue shares of its capital stock or other
securities. Attached as Exhibit 7.1.4. is a list of all Persons who,
together with such Person's Affiliates, hold greater than 5% of the
outstanding capital stock of the Borrower, together with the number of
shares held by each such Person.
7.2. Financial Statements and Other Information; Material Agreements.
---------------------------------------------------------------
7.2.1. Financial Statements and Other Information. The Borrower has
------------------------------------------
previously furnished to the Lenders copies of the following:
(a) The audited Consolidated balance sheets of the Obligors as of
December 31, 1998 and the audited statements of income, of changes in
shareholders' equity and of cash flows of the Obligors for the fiscal year
of the Borrower then ended.
(b) The unaudited balance sheets of the Obligors on a Consolidated
basis as of September 30, 1999 and the unaudited statements of income, of
changes in shareholders' equity and of cash flows of the Company and its
Subsidiaries on a Consolidated basis for the portion of the fiscal year
then ended.
(c) Calculations demonstrating pro forma compliance with the
Computation Covenants as of the end of the most recent quarter, as
applicable, preceding the date hereof.
-57-
(d) The three-year financial and operational projections for the
Borrower and its Subsidiaries provided in the Confidential Information
Memorandum dated September 1999.
The audited financial statements (including the notes thereto)
referred to in clause (a) above were prepared in accordance with GAAP and
fairly present the financial position of the Borrower and its Subsidiaries
on a Consolidated basis at the date thereof and the results of their
operations for the periods covered thereby. The unaudited financial
statements referred to in clause (b) above were prepared in accordance with
GAAP and fairly present the financial position of the Borrower and its
Subsidiaries on a Consolidated basis at the respective dates thereof and
the results of their operations for the periods covered thereby, subject to
normal year-end audit adjustment and the addition of footnotes in the case
of interim financial statements. Neither the Borrower nor any of its
Subsidiaries has any known contingent liability material to the Borrower
and its Subsidiaries on a Consolidated basis which is not reflected in the
balance sheets referred to in clauses (a) or (b) above (or delivered
pursuant to Sections 6.4.1 or 6.4.2) or in the notes thereto.
In the Borrower's judgment, the financial and operational projections
referred to in clause (d) above constitute a reasonable basis as of the
Initial Closing Date for the assessment of the future performance of the
Borrower and its Subsidiaries during the periods indicated therein, it
being understood that any projected financial information represents an
estimate, based on various assumptions, of future results of operations
which may or may not in fact occur.
7.2.2. Material Agreements. The Borrower has previously furnished
-------------------
to the Lenders correct and complete copies, including all exhibits,
schedules and amendments thereto, of the agreements, each as in effect on
the date hereof, listed in Exhibit 7.2.2 (the "Material Agreements").
------------- -------------------
7.3. Agreements Relating to Financing Debt, Investments, etc. Exhibit 7.3,
------------------------------------------------------- ------------
from time to time hereafter supplemented in accordance with Sections 6.4.1 and
6.4.2, sets forth (a) the amounts (as of the dates indicated in Exhibit 7.3, as
-----------
so supplemented) of all Financing Debt of the Borrower and its Subsidiaries and
all agreements which relate to such Financing Debt, (b) all Liens and Guarantees
with respect to such Financing Debt and (c) all agreements which directly or
indirectly require the Borrower or any Subsidiary to make any Investment. The
Borrower has furnished the Lenders with correct and complete copies of any
agreements described in clauses (a), (b) and (c) above requested by the Required
Lenders.
7.4. Changes in Condition. Since December 31, 1998 no Material Adverse
--------------------
Change has occurred and since such date, except as set forth in Exhibit 7.4,
-----------
neither the Borrower nor any of its Subsidiaries has entered into any material
transaction outside the ordinary course of business except for the transactions
contemplated by or otherwise permitted or authorized pursuant to this Agreement
and the Material Agreements.
-58-
7.5. Title to Assets. The Borrower and its Subsidiaries have good and
---------------
marketable title to, or rights to use under lease all assets necessary for or
used in the operations of their business as now conducted by them and reflected
in the most recent balance sheet referred to in Section 7.2.1 (or the balance
sheet most recently furnished to the Lenders pursuant to Sections 6.4.1 or
6.4.2), and to all assets acquired subsequent to the date of such balance sheet,
subject to no Liens except for Liens permitted by Section 6.8 and except for
assets disposed of as permitted by Section 6.11.
7.6. Operations in Conformity With Law, etc. The operations of the
---------------------------------------
Borrower and its Subsidiaries as now conducted or proposed to be conducted are
not in violation of, nor is the Borrower or any of its Subsidiaries in default
under, any Legal Requirement presently in effect, except for such violations and
defaults as do not and will not, in the aggregate, result, or create a material
risk of resulting, in any Material Adverse Change. Neither the Borrower nor any
of its Subsidiaries has received notice of any such violation or default or has
knowledge of any basis on which the operations of the Borrower or its
Subsidiaries, as now conducted and as currently proposed to be conducted after
the date hereof, would be held so as to violate or to give rise to any such
violation or default.
7.7. Litigation. Except as otherwise set forth in Exhibit 7.7, no
---------- -----------
litigation, at law or in equity, or any proceeding before any court, board or
other governmental or administrative agency or any arbitrator is pending or, to
the knowledge of the Borrower or any of its Subsidiaries, threatened which may
involve any material risk of any final judgment, order or liability which, after
giving effect to any applicable insurance, has resulted, or creates a material
risk of resulting, in any Material Adverse Change or which seeks to enjoin the
consummation, or which questions the validity, of any of the transactions
contemplated by this Agreement or any other Credit Document. No judgment, decree
or order of any court, board or other governmental or administrative agency or
any arbitrator has been issued against or binds the Borrower or any of
Subsidiaries which has resulted, or creates a material risk of resulting, in any
Material Adverse Change.
7.8. Authorization and Enforceability. Each of the Obligors has taken all
--------------------------------
corporate action required to execute, deliver and perform this Agreement and
each other Credit Document to which it is party. No consent of stockholders of
any Obligor is necessary in order to authorize the execution, delivery or
performance of this Agreement or any other Credit Document to which such Obligor
is party. Each of this Agreement and each other Credit Document constitutes the
legal, valid and binding obligation of each Obligor party thereto and is
enforceable against such Obligor in accordance with its terms.
7.9. No Legal Obstacle to Agreements. Neither the execution and delivery
-------------------------------
of this Agreement or any other Credit Document, nor the making of any borrowings
hereunder, nor the guaranteeing of the Credit Obligations, nor the securing of
the Credit Obligations with the Credit Security, nor the consummation of any
transaction referred to in or contemplated by this Agreement or any other Credit
Document, nor the fulfillment of the terms hereof or thereof or of
-59-
any other agreement, instrument, deed or lease contemplated by this Agreement or
any other Credit Document, has constituted or resulted in or will constitute or
result in:
(a) any breach or termination of the provisions of any agreement,
instrument, deed or lease to which the Borrower, any of its Subsidiaries or
any other Obligor is a party or by which it is bound, or of the Charter or
By-laws of the Borrower, any of its Subsidiaries or any other Obligor;
(b) the violation of any law, statute, judgment, decree or
governmental order, rule or regulation applicable to the Borrower, any of
its Subsidiaries or any other Obligor;
(c) the creation under any agreement, instrument, deed or lease of
any Lien (other than Liens on the Credit Security which secure the Credit
Obligations) upon any of the assets of the Borrower, any of its
Subsidiaries or any other Obligor; or
(d) any redemption, retirement or other repurchase obligation of
the Borrower, any of its Subsidiaries or any other Obligor under any
Charter, By-law, agreement, instrument, deed or lease.
No approval, authorization or other action by, or declaration to or filing with,
any governmental or administrative authority or any other Person is required to
be obtained or made by the Borrower, any of its Subsidiaries or any other
Obligor in connection with the execution, delivery and performance of this
Agreement, the Notes or any other Credit Document, the transactions contemplated
hereby or thereby, the making of any borrowing hereunder, the guaranteeing of
the Credit Obligations or the securing of the Credit Obligations with the Credit
Security.
7.10. Defaults. Neither the Borrower nor any of its Subsidiaries is in
--------
default under any provision of its Charter or By-laws or of this Agreement or
any other Credit Document. Neither the Borrower nor any of its Subsidiaries is
in default under any provision of any agreement, instrument, deed or lease to
which it is party or by which it or its property is bound. Neither the Borrower
nor any of its Subsidiaries has violated any law, judgment, decree or
governmental order, rule or regulation, in each case so as to result, or create
a material risk of resulting, in any Material Adverse Change.
7.11. Licenses, etc. The Borrower and its Subsidiaries have all patents,
-------------
patent applications, patent licenses, patent rights, trademarks, trademark
rights, trade names, trade name rights, copyrights, licenses, franchises,
permits, authorizations and other rights as are necessary for the conduct of the
business of the Borrower and its Subsidiaries as now conducted by them. All of
the foregoing are in full force and effect in all material respects, and each of
the Borrower and its Subsidiaries is in substantial compliance with the
foregoing without any known conflict with the valid rights of others which has
resulted, or creates a material risk of resulting, in any Material Adverse
Change. No event has occurred which permits, or after notice or lapse of time
or both would permit, the revocation or termination of any such license,
franchise or other right or which affects the rights of any of the Borrower and
its Subsidiaries thereunder so as to result, or to create a material risk of
resulting, in any Material Adverse Change. No litigation or other
-60-
proceeding or dispute exists with respect to the validity or, where applicable,
the extension or renewal, of any of the foregoing which has resulted, or creates
a material risk of resulting, in any Material Adverse Change.
7.12. Tax Returns. Each of the Borrower and its Subsidiaries has filed
-----------
all material tax and information returns which are required to be filed by it
and has paid, or made adequate provision for the payment of, all taxes which
have or may become due pursuant to such returns or to any assessment received by
it. Neither the Borrower nor any of its Subsidiaries knows of any material
additional assessments or any basis therefor. Neither the Borrower nor any of
its Subsidiaries reasonably believes that the charges, accruals and reserves on
the books of the Borrower and its Subsidiaries in respect of taxes or other
governmental charges are adequate.
7.13. Certain Business Representations.
--------------------------------
7.13.1. Labor Relations. No dispute or controversy between the
---------------
Borrower or any of its Subsidiaries and any of their respective employees
has resulted, or is reasonably likely to result, in any Material Adverse
Change, and neither the Borrower nor any of its Subsidiaries anticipates
that its relationships with its unions or employees will result, or are
reasonably likely to result, in any Material Adverse Change. Each of the
Borrower and its Subsidiaries is in compliance in all material respects
with all federal and state laws with respect to (a) non-discrimination in
employment with which the failure to comply, in the aggregate, has
resulted, or creates a material risk of resulting, in a Material Adverse
Change and (b) the payment of wages.
7.13.2. Antitrust. Each of the Borrower and its Subsidiaries is
---------
in compliance in all material respects with all federal and state antitrust
laws relating to its business and the geographic concentration of its
business.
7.13.3. Consumer Protection. Neither the Borrower nor any of its
-------------------
Subsidiaries is in violation of any rule, regulation, order, or
interpretation of any rule, regulation or order of the Federal Trade
Commission (including truth-in-lending), with which the failure to comply,
in the aggregate, has resulted, or creates a material risk of resulting, in
a Material Adverse Change.
7.13.4. Burdensome Obligations. Neither the Borrower nor any of
----------------------
its Subsidiaries is party to or bound by any agreement, instrument, deed or
lease or is subject to any Charter, By-law or other restriction, commitment
or requirement which, in the opinion of the management of such Person, is
so unusual or burdensome as in the foreseeable future to result, or create
a material risk of resulting, in a Material Adverse Change.
7.13.5. Future Expenditures. Neither the Borrower nor any of its
-------------------
Subsidiaries anticipate that the future expenditures, if any, by the
Borrower and its Subsidiaries needed to meet the provisions of any federal,
state or foreign governmental statutes,
-61-
orders, rules or regulations will be so burdensome as to result, or create a
material risk of resulting, in any Material Adverse Change.
7.14. Environmental Regulations.
-------------------------
7.14.1. Environmental Compliance. Each of the Borrower and its
------------------------
Subsidiaries is in compliance in all material respects with the Clean Air Act,
the Federal Water Pollution Control Act, the Marine Protection Research and
Sanctuaries Act, RCRA, CERCLA and any other Environmental Law in effect in any
jurisdiction in which any properties of the Borrower and its Subsidiaries are
located or where any of them conducts its business, and with all applicable
published rules and regulations (and applicable standards and requirements) of
the federal Environmental Protection Agency and of any similar agencies in
states or foreign countries in which the Borrower and its Subsidiaries conduct
their businesses other than those which in the aggregate have not resulted, and
do not create a material risk of resulting, in a Material Adverse Change.
7.14.2. Environmental Litigation. No suit, claim, action or proceeding of
------------------------
which any Obligor has been given notice or otherwise has knowledge is now
pending before any court, governmental agency or board or other forum, or to the
knowledge of any of the Borrower and its Subsidiaries, threatened by any Person
(nor to the knowledge of any of the Borrower and its Subsidiaries, does any
factual basis exist therefor) for, and none of the Borrower and its Subsidiaries
have received written correspondence from any federal, state or local
governmental authority with respect to:
(a) noncompliance by the Borrower or any Subsidiary thereof with any
Environmental Law;
(b) personal injury, wrongful death or other tortious conduct
relating to materials, commodities or products used, generated, sold,
transferred or manufactured by the Borrower or any Subsidiary thereof (including
products made of, containing or incorporating asbestos, lead or other hazardous
materials, commodities or toxic substances); or
(c) the release into the environment by the Borrower or any
Subsidiary thereof of any Hazardous Material generated by the Borrower or any
Subsidiary thereof whether or not occurring at or on a site owned, leased or
operated by the Borrower or any Subsidiary thereof.
7.14.3. Environmental Condition of Properties. None of the properties
-------------------------------------
owned or leased by the Borrower or any Subsidiary thereof has been used as a
treatment, storage or disposal site, other than as disclosed in Exhibit 7.14.
------------
No Hazardous Material is present in any real property currently or formerly
owned or operated by the Borrower or any Subsidiary thereof except that which
has not resulted, and does not create a material risk of resulting, in a
Material Adverse Change.
-62-
7.15. Pension Plans. Each Plan (other than a Multiemployer Plan) and, to
-------------
the knowledge of each of the Borrower and its Subsidiaries, each Multiemployer
Plan is in material compliance with the applicable provisions of ERISA and the
Code. Each Multiemployer Plan and each Plan that constitutes a "defined benefit
plan" (as defined in ERISA) are set forth in Exhibit 7.15. Each ERISA Group
------------
Person has met all of the funding standards applicable to all Plans that are not
Multiemployer Plans, and no condition exists which would permit the institution
of proceedings to terminate any Plan that is not a Multiemployer Plan under
section 4042 of ERISA. To the best knowledge of the Borrower and each of its
Subsidiaries, no Plan that is a Multiemployer Plan is currently insolvent or in
reorganization or has been terminated within the meaning of ERISA.
7.16. Acquisition Agreement, etc. Each Acquisition Agreement is a valid and
--------------------------
binding contract as to the Borrower and each Subsidiary party thereto and, to
the best of the Borrower's knowledge, as to the Sellers party thereto. The
Borrower and its Subsidiaries are not in default in any material respect of its
obligations under any Acquisition Agreement and, to the best of the Borrower's
knowledge, the Sellers party thereto are not in default in any material respect
of any of their obligations thereunder. The representations and warranties of
the Borrower set forth in each Acquisition Agreement are true and correct in all
material respect as of the date hereof with the same force and effect as though
made on and as of the date hereof. To the best of the Borrower's knowledge all
of the representations and warranties of the Sellers set forth in each
Acquisition Agreement are true and correct in all material respects as of the
date hereof with the same force and effect as though made on and as of the date
hereof.
7.17. Foreign Trade Regulations; Government Regulation; Margin Stock.
--------------------------------------------------------------
7.17.1. Foreign Trade Regulations. Neither the execution and delivery
-------------------------
of this Agreement or any other Credit Document, nor the making by the
Borrower of any borrowings hereunder, nor the guaranteeing of the Credit
Obligations by any Guarantor, nor the securing of the Credit Obligations
with the Credit Security, has constituted or resulted in or will constitute
or result in the violation of any Foreign Trade Regulation.
7.17.2. Government Regulation. Neither the Borrower nor any
---------------------
Subsidiary, nor any Person controlling the Borrower or any of its
Subsidiaries or under common control with the Borrower or any of its
Subsidiaries, is subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Investment Company Act, the
Interstate Commerce Act or any statute or regulation which regulates the
incurring by the Borrower or any of its Subsidiaries of Financing Debt as
contemplated by this Agreement and the other Credit Documents.
7.17.3. Margin Stock. Neither the Borrower nor any of its
------------
Subsidiaries owns any Margin Stock.
7.18. Disclosure. Neither this Agreement nor any other Credit Document to
----------
be furnished to the Lenders by or on behalf of the Borrower or any of its
Subsidiaries in connection with the transactions contemplated hereby or by such
Credit Document contains any untrue
-63-
statement of material fact or omits to state a material fact necessary in order
to make the statements contained herein or therein not misleading in light of
the circumstances under which they were made. No fact is actually known to
Borrower or any of its Subsidiaries which has resulted, or in the future (so far
as the Borrower or any of its Subsidiaries can reasonably foresee) will result,
or creates a material risk of resulting, in any Material Adverse Change, except
to the extent that present or future general economic conditions may result in a
Material Adverse Change.
7.19. Year 2000 Compliance.
--------------------
7.19.1. Borrower and its Subsidiaries have (i) undertaken a detailed
inventory, review and assessment of all areas within its business and
operations that could be adversely affected by the failure of the Borrower
or its Subsidiaries to be Year 2000 Compliant on a timely basis, (ii)
developed a detailed plan and timeline for becoming Year 2000 Compliant on
a timely basis, and (iii) implemented that plan in accordance with that
timetable in all material respects.
7.19.2. Borrower and its Subsidiaries have developed a plan and
timeline for making written inquiry of their key suppliers, vendors and
customers as to whether such persons will be Year 2000 Compliant in all
material respects and have materially implemented that plan in accordance
with that timetable. For purposes hereof, "key suppliers, vendors and
customers" refers to those suppliers, vendors and customers of Borrower and
its Subsidiaries whose business failure or significant disruption would,
with reasonable probability, result in a material adverse change in the
business, properties or financial condition of the Borrower or its
Subsidiaries.
7.19.3. Based on the foregoing, Borrower reasonably believes that its
and its Subsidiaries' material critical systems are Year 2000 Compliant as
of the Initial Closing Date.
8. Defaults.
--------
8.1. Events of Default. The following events are referred to as "Events of
----------------- ---------
Default":
-------
8.1.1. Payment. The Borrower shall fail to make any payment in
-------
respect of: (a) any interest or any fee on or in respect of any of the
Credit Obligations owed by it as the same shall become due and payable, and
such failure shall continue for a period of three Banking Days, or (b) any
Credit Obligation with respect to payments made by any Letter of Credit
Issuer under any Letter of Credit or any draft drawn thereunder within
three Banking Days after demand therefor by such Letter of Credit Issuer or
(c) principal of any of the Credit Obligations owed by it as the same shall
become due, whether at maturity or by acceleration or otherwise.
8.1.2. Specified Covenants. The Borrower or any of its Subsidiaries
-------------------
shall fail to perform or observe any of the provisions of Section 6.4.5 or
Sections 6.5 through 6.22.
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8.1.3. Other Covenants. The Borrower, any of its Subsidiaries or any
---------------
other Obligor shall fail to perform or observe any other covenant,
agreement or provision to be performed or observed by it under this
Agreement or any other Credit Document, and such failure shall not be
rectified or cured to the written satisfaction of the Required Lenders
within 30 days after the earlier of (a) notice thereof by the Agent to the
Borrower or (b) a Financial Officer shall have actual knowledge thereof.
8.1.4. Representations and Warranties. Any representation or warranty
------------------------------
of or with respect to the Borrower or any of its Subsidiaries or any other
Obligor made to the Lenders or the Agent in, pursuant to or in connection
with this Agreement or any other Credit Document shall be materially false
on the date as of which it was made.
8.1.5. Cross Default, etc.
------------------
(a) The Borrower or any of Subsidiaries shall fail to make any
payment when due (after giving effect to any applicable grace periods) in
respect of any Capitalized Lease or in respect of any Financing Debt (other
than the Credit Obligations) outstanding in an aggregate amount of
principal (whether or not due) and accrued interest exceeding $250,000;
(b) the Borrower or any of its Subsidiaries shall fail to perform
or observe the terms of any agreement or instrument relating to any
Capitalized Lease or any Financing Debt (other than the Credit Obligations)
outstanding in an aggregate amount of principal (whether or not due) and
accrued interest exceeding $250,000, and such failure shall continue,
without having been duly cured, waived or consented to, beyond the period
of grace, if any, specified in such agreement or instrument, and such
failure shall permit the acceleration of such Financing Debt or Capitalized
Lease;
(c) all or any part of any Financing Debt (other than the Credit
Obligations) outstanding in an aggregate amount of principal (whether or
not due) and accrued interest exceeding $250,000 of the Borrower or any of
its Subsidiaries shall be accelerated or shall become due or payable prior
to its stated maturity (except with respect to voluntary prepayments
thereof) for any reason whatsoever;
(d) any Lien on any property of the Borrower or any of its
Subsidiaries securing any Financing Debt (other than the Credit
Obligations) outstanding in an aggregate amount of principal (whether or
not due) and accrued interest exceeding $250,000 shall be enforced by
foreclosure or similar action; or
(e) any holder of any Financing Debt (other than the Credit
Obligations) outstanding in an aggregate amount of principal (whether or
not due) and accrued interest exceeding $250,000 shall exercise any right
of rescission or put right with respect thereto.
8.1.6. Ownership; Liquidation; etc. Except as permitted by either
---------------------------
Section 6.11 or Section 6.13:
-65-
(a) the Borrower shall cease to own, directly or indirectly, all
the capital stock or other beneficial interests of each of the Guarantors;
(b) any Change of Control shall occur; or
(c) the Borrower, any of its Subsidiaries or any other Obligor
shall initiate any action to dissolve, liquidate or otherwise terminate its
existence.
8.1.7. Enforceability, etc. Any Credit Document shall cease for any
-------------------
reason (other than the scheduled termination thereof in accordance with its
terms) to be enforceable in accordance with its terms or in full force and
effect; or the Borrower, any of its Subsidiaries or any other Obligor in
respect of any Credit Document shall so assert in a judicial or similar
proceeding; or the security interests created by this Agreement or any
other Credit Documents shall cease to be enforceable and of the same effect
and priority purported to be created hereby.
8.1.8. Judgments. A final judgment (a) which, with other outstanding
---------
final judgments against the Borrower or any of its Subsidiaries, exceeds an
aggregate of $250,000 in excess of applicable insurance coverage shall be
rendered against the Borrower or any of its Subsidiaries, or (b) which
grants injunctive relief that results, or creates a material risk of
resulting, in a Material Adverse Change and in either case if, (i) within
60 days after entry thereof, such judgment shall not have been discharged
or execution thereof stayed pending appeal or (ii) within 60 days after the
expiration of any such stay, such judgment shall not have been discharged.
8.1.9. ERISA. Any "reportable event" (as defined in section 4043 of
-----
ERISA) shall have occurred that reasonably could be expected to result in
termination of a Material Plan or the appointment by the appropriate United
States District Court of a trustee to administer any Material Plan or the
imposition of a Lien in favor of a Material Plan; or any ERISA Group Person
shall fail to pay when due amounts aggregating in excess of $100,000 which
it shall have become liable to pay to the PBGC or to a Material Plan under
Title IV of ERISA; or notice of intent to terminate a Material Plan shall
be filed under Title IV of ERISA by any ERISA Group Person or
administrator; or the PBGC shall institute proceedings under Title IV of
ERISA to terminate or to cause a trustee to be appointed to administer any
Material Plan or a proceeding shall be instituted by a fiduciary of any
Material Plan against any ERISA Group Person to enforce section 515 or
4219(c)(5) of ERISA and such proceeding shall not have been dismissed
within 30 days thereafter; or a condition shall exist by reason of which
the PBGC would be entitled to obtain a decree adjudicating that any
Material Plan must be terminated.
8.1.10. Bankruptcy, etc. The Borrower, any of its Subsidiaries or any
----------------
other Obligor shall:
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(a) commence a voluntary case under the Bankruptcy Code or
authorize, by appropriate proceedings of its board of directors or other
governing body, the commencement of such a voluntary case;
(b) (i) have filed against it a petition commencing an
involuntary case under the Bankruptcy Code that shall not have been
dismissed within 60 days after the date on which such petition is filed, or
(ii) file an answer or other pleading within such 60-day period admitting
or failing to deny the material allegations of such a petition or seeking,
consenting to or acquiescing in the relief therein provided, or (iii) have
entered against it an order for relief in any involuntary case commenced
under the Bankruptcy Code;
(c) seek relief as a debtor under any applicable law, other than
the Bankruptcy Code, of any jurisdiction relating to the liquidation or
reorganization of debtors or to the modification or alteration of the
rights of creditors, or consent to or acquiesce in such relief;
(d) have entered against it an order by a court of competent
jurisdiction (i) finding it to be bankrupt or insolvent, (ii) ordering or
approving its liquidation or reorganization as a debtor or any modification
or alteration of the rights of its creditors or (iii) assuming custody of,
or appointing a receiver or other custodian for, all or a substantial
portion of its property; or
(e) make an assignment for the benefit of, or enter into a
composition with, its creditors, or appoint, or consent to the appointment
of, or suffer to exist a receiver or other custodian for, all or a
substantial portion of its property.
8.1.11. Acquisitions. The Borrower shall fail to comply with the
------------
requirements of Section 6.21.1(c) with respect to any Permitted
Acquisition.
8.2. Certain Actions Following an Event of Default. If any one or more
---------------------------------------------
Events of Default shall occur and be continuing, then in each and every such
case:
8.2.1. Terminate Obligation to Extend Credit. The Agent on behalf of
-------------------------------------
the Lenders may (and upon written request of the Required Lenders the Agent
shall) terminate the obligations of the Lenders to make any further
extensions of credit under the Credit Documents by furnishing notice of
such termination to the Borrower; provided, however, that if a Bankruptcy
-------- -------
Default shall have occurred, the obligations of the Lenders to make any
further extensions of credit under the Credit Documents shall immediately
terminate..
8.2.2. Specific Performance; Exercise of Rights. The Agent on behalf
----------------------------------------
of the Lenders may (and upon written request of the Required Lenders the
Agent shall) proceed to protect and enforce the Lenders' rights by suit in
equity, action at law and/or other appropriate proceeding, either for
specific performance of any covenant or condition contained in this
Agreement or any other Credit Document or in any instrument or
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assignment delivered to the Lenders pursuant to this Agreement or any other
Credit Document, or in aid of the exercise of any power granted in this
Agreement or any other Credit Document or any such instrument or
assignment.
8.2.3. Acceleration. The Agent on behalf of the Lenders may (and upon
------------
written request of the Required Lenders the Agent shall) by notice in
writing to the Borrower (a) declare all or any part of the unpaid balance
of the Credit Obligations then outstanding to be immediately due and
payable, and (b) require the Borrower immediately to deposit with the Agent
in cash an amount equal to the then Letter of Credit Exposure (which cash
shall be held and applied as provided in Section 4.5), and thereupon such
unpaid balance or part thereof and such amount equal to the Letter of
Credit Exposure shall become so due and payable without presentation,
protest or further demand or notice of any kind, all of which are hereby
expressly waived; provided, however, that if a Bankruptcy Default shall
-------- -------
have occurred, the unpaid balance of the Credit Obligations shall
automatically become immediately due and payable.
8.2.4. Enforcement of Payment; Credit Security; Setoff. The Agent on
-----------------------------------------------
behalf of the Lenders may (and upon written request of the Required Lenders
the Agent shall) proceed to enforce payment of the Credit Obligations in
such manner as it may elect, to cancel, or instruct other Letter of Credit
Issuers to cancel, any outstanding Letters of Credit which permit the
cancellation thereof and to realize upon any and all rights in the Credit
Security. The Lenders may offset and apply toward the payment of the Credit
Obligations (and/or toward the curing of any Event of Default) any
Indebtedness from the Lenders to the respective Obligors, including any
Indebtedness represented by deposits in any account maintained with the
Lenders, regardless of the adequacy of any security for the Credit
Obligations. The Lenders shall have no duty to determine the adequacy of
any such security in connection with any such offset.
8.2.5. Cumulative Remedies. To the extent not prohibited by
-------------------
applicable law which cannot be waived, all of the Lenders' rights hereunder
and under each other Credit Document shall be cumulative.
8.2.6. Exercise of Call Right. The Company shall, upon the reasonable
----------------------
request of the Agent, exercise its rights (i) to purchase the share of
stock of AmeriPath Kentucky, Inc. owned by Xxxxx X. Xxxxxxxxxx, M.D.
pursuant to Section 3 of the Shareholders' Agreement among AmeriPath
Kentucky, Inc., Xxxxx X. Xxxxxxxxxx, M.D. and the Company, (ii) to purchase
the shares of stock of AmeriPath Pittsburgh, P.C. owned by Xxxx Xxxxx, M.D.
pursuant to the Shareholders Agreement among AmeriPath Pittsburgh, P.C.,
Xxxx Xxxxx, M.D. and the Company, (iii) to purchase the shares of stock of
AmeriPath Consulting Pathology Services, P.A. owned by H. Xxxxxxx Xxxxx,
M.D. pursuant to the Shareholders' Agreement among AmeriPath Consulting
Pathology Services, P.A., H. Xxxxxxx Xxxxx, M.D. and the Company, (iv) to
purchase the shares of consulting Pathologists of Pennsylvania, P.C. owned
by Xxxx Xxxxx, M.D. pursuant to the Shareholders' Agreement among
Consulting Pathologists of Pennsylvania, P.C., Xxxx
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Xxxxx, M.D. and the Company, (v) to purchase the shares of stock of
AmeriPath Milwaukee, S.C. owned by Xxxxxxx X. Xxxxxxxxx, M.D. pursuant to
the Shareholders' Agreement among AmeriPath Milwaukee, S.C., Xxxxxxx X.
Xxxxxxxxx, M.D. and the Company, and (vi) to purchase the shares of stock
of XX Xxxxx M.D. and Associates/AmeriPath, P.C. owned by Xxxx Xxxxx, M.D.
pursuant to the Shareholders' Agreement among XX Xxxxx M.D. and
Associates/AmeriPath, P.C., Xxxx Xxxxx, M.D. and the Company
8.3. Annulment of Defaults. Any Default or Event of Default shall be
---------------------
deemed not to exist or to have occurred for any purpose of the Credit Documents
if the Required Lenders or the Agent (with the consent of the Required Lenders)
shall have waived such Default or Event of Default in writing, stated in writing
that the same has been cured to such Lenders' reasonable satisfaction or entered
into an amendment to this Agreement which by its express terms cures such Event
of Default, at which time such Event of Default shall no longer be deemed to
exist or to have continued. No such action by the Lenders or the Agent shall
extend to or affect any subsequent Event of Default or impair any rights of the
Lenders upon the occurrence thereof. The making of any extension of credit
during the existence of any Default or Event of Default shall not constitute a
waiver thereof.
8.4. Waivers. To the extent that such waiver is not prohibited by the
-------
provisions of applicable law that cannot be waived, each of the Borrower and the
other Obligors waives:
(a) all presentments, demands for performance, notices of
nonperformance (except to the extent required by this Agreement or any
other Credit Document), protests, notices of protest and notices of
dishonor;
(b) any requirement of diligence or promptness on the part of any
Lender in the enforcement of its rights under this Agreement, the Notes or
any other Credit Document;
(c) any and all notices of every kind and description which may be
required to be given by any statute or rule of law; and
(d) any defense (other than indefeasible payment in full), which it
may now or hereafter have with respect to its liability under this
Agreement, the Notes or any other Credit Document or with respect to the
Credit Obligations.
9. Guarantees.
----------
9.1. Guarantees of Credit Obligations. Each Guarantor unconditionally
--------------------------------
jointly and severally guarantees that the Credit Obligations will be performed
and will be paid in full in immediately available funds when due and payable,
whether at the stated or accelerated maturity thereof or otherwise, this
guarantee being a guarantee of payment and not of collectability and being
absolute and in no way conditional or contingent. In the event any part of the
Credit Obligations shall not have been so paid in full when due and payable,
each Guarantor will,
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immediately upon notice by the Agent or, without notice, immediately upon the
occurrence of a Bankruptcy Default, pay or cause to be paid to the Agent for the
account of each Lender in accordance with the Lenders' respective Aggregate
Percentage Interests in the Loan the amount of such Credit Obligations which are
then due and payable and unpaid. The obligations of each Guarantor hereunder
shall not be affected by the invalidity, unenforceability or irrecoverability of
any of the Credit Obligations as against any other Obligor, any other guarantor
thereof or any other Person. For purposes hereof, the Credit Obligations shall
be due and payable when and as the same shall be due and payable under the terms
of this Agreement or any other Credit Document notwithstanding the fact that the
collection or enforcement thereof may be stayed or enjoined under the Bankruptcy
Code or other applicable law.
9.2. Continuing Obligation. Each Guarantor acknowledges that the Lenders
---------------------
and the Agent have entered into this Agreement (and, to the extent that the
Lenders or the Agent may enter into any future Credit Document, will have
entered into such agreement) in reliance on this Section 9 being a continuing
irrevocable agreement, and such Guarantor agrees that its guarantee may not be
revoked in whole or in part. The obligations of the Guarantors hereunder shall
terminate when the commitment of the Lenders to extend credit under this
Agreement shall have terminated and all of the Credit Obligations have been
indefeasibly paid in full in immediately available funds and discharged;
provided, however, that:
-------- -------
(a) if a claim is made upon the Lenders at any time for repayment or
recovery of any amounts or any property received by the Lenders from any
source on account of any of the Credit Obligations and the Lenders repay or
return any amounts or property so received (including interest thereon to
the extent required to be paid by the Lenders) or
(b) if the Lenders become liable for any part of such claim by reason
of (i) any judgment or order of any court or administrative authority
having competent jurisdiction, or (ii) any settlement or compromise of any
such claim,
then the Guarantors shall remain liable under this Agreement for the amounts so
repaid or property so returned or the amounts for which the Lenders become
liable (such amounts being deemed part of the Credit Obligations) to the same
extent as if such amounts or property had never been received by the Lenders,
notwithstanding any termination hereof or the cancellation of any instrument or
agreement evidencing any of the Credit Obligations. Not later than five days
after receipt of notice from the Agent, the Guarantors shall jointly and
severally pay to the Agent an amount equal to the amount of such repayment or
return for which the Lenders have so become liable. Payments hereunder by a
Guarantor may be required by the Agent on any number of occasions.
9.3. Waivers with Respect to Credit Obligations. Except to the extent
------------------------------------------
expressly required by this Agreement or any other Credit Document, each
Guarantor waives, to the fullest extent permitted by the provisions of
applicable law, all of the following (including all defenses, counterclaims and
other rights of any nature based upon any of the following):
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(a) presentment, demand for payment and protest of nonpayment of any
of the Credit Obligations, and notice of protest, dishonor or
nonperformance;
(b) notice of acceptance of this guarantee and notice that credit has
been extended in reliance on the Guarantor's guarantee of the Credit
Obligations;
(c) notice of any Default or of any inability to enforce performance
of the obligations of the Company or any other Person with respect to any
Credit Document, or notice of any acceleration of maturity of any Credit
Obligations;
(d) demand for performance or observance of, and any enforcement of
any provision of, the Credit Obligations, this Agreement or any other
Credit Document or any pursuit or exhaustion of rights or remedies with
respect to any Credit Security or against the Company or any other Person
in respect of the Credit Obligations or any requirement of diligence or
promptness on the part of the Agent or the Lenders in connection with any
of the foregoing;
(e) any act or omission on the part of the Agent or the Lenders which
may impair or prejudice the rights of the Guarantor, including rights to
obtain subrogation, exoneration, contribution, indemnification or any other
reimbursement from the Company or any other Person, or otherwise operate as
a deemed release or discharge;
(f) failure or delay to perfect or continue the perfection of any
security interest in any Credit Security or any other action which xxxxx or
impairs the value of, or any failure to preserve or protect the value of,
any Credit Security;
(g) any statute of limitations or any statute or rule of law which
provides that the obligation of a surety must be neither larger in amount
nor in other respects more burdensome than the obligation of the principal;
(h) any "single action" or "anti-deficiency" law which would
otherwise prevent the Lenders from bringing any action, including any claim
for a deficiency, against the Guarantor before or after the Agent's or the
Lenders' commencement or completion of any foreclosure action, whether
judicially, by exercise of power of sale or otherwise, or any other law
which would otherwise require any election of remedies by the Agent or the
Lenders;
(i) all demands and notices of every kind with respect to the
foregoing; and
(j) to the extent not referred to above, all defenses (other than
payment) which the Company may now or hereafter have to the payment of the
Credit Obligations, together with all suretyship defenses, which could
otherwise be asserted by such Guarantor.
-71-
Each Guarantor represents that it has obtained the advice of counsel as to the
extent to which suretyship and other defenses may be available to it with
respect to its obligations hereunder in the absence of the waivers contained in
this Section 9.3.
No delay or omission on the part of the Agent or the Lenders in exercising
any right under this Agreement or any other Credit Document or under any
guarantee of the Credit Obligations or with respect to the Credit Security shall
operate as a waiver or relinquishment of such right. No action which the Agent
or the Lenders or the Company may take or refrain from taking with respect to
the Credit Obligations, including any amendments thereto or modifications
thereof or waivers with respect thereto, shall affect the provisions of this
Agreement or the obligations of the Guarantor hereunder. None of the Lenders'
or the Agent's rights shall at any time in any way be prejudiced or impaired by
any act or failure to act on the part of any Obligor, or by any noncompliance by
the Company with the terms, provisions and covenants of this Agreement,
regardless of any knowledge thereof which the Agent or the Lenders may have or
otherwise be charged with.
9.4. Lenders' Power to Waive, etc. Each Guarantor grants to the Lenders
----------------------------
full power in their discretion, without notice to or consent of such Guarantor,
such notice and consent being expressly waived to the fullest extent permitted
by applicable law, and without in any way affecting the liability of the
Guarantor under its guarantee hereunder:
(a) To waive compliance with, and any Default under, and to consent
to any amendment to or modification or termination of any terms or
provisions of, or to give any waiver in respect of, this Agreement, any
other Credit Document, the Credit Security, the Credit Obligations or any
guarantee thereof (each as from time to time in effect);
(b) To grant any extensions of the Credit Obligations (for any
duration), and any other indulgence with respect thereto, and to effect any
total or partial release (by operation of law or otherwise), discharge,
compromise or settlement with respect to the obligations of the Obligors or
any other Person in respect of the Credit Obligations, whether or not
rights against the Guarantor under this Agreement are reserved in
connection therewith;
(c) To take security in any form for the Credit Obligations, and to
consent to the addition to or the substitution, exchange, release or other
disposition of, or to deal in any other manner with, any part of any
property contained in the Credit Security whether or not the property, if
any, received upon the exercise of such power shall be of a character or
value the same as or different from the character or value of any property
disposed of, and to obtain, modify or release any present or future
guarantees of the Credit Obligations and to proceed against any of the
Credit Security or such guarantees in any order;
(d) To collect or liquidate or realize upon any of the Credit
Obligations or the Credit Security in any manner or to refrain from
collecting or liquidating or realizing upon any of the Credit Obligations
or the Credit Security; and
-72-
(e) To extend credit under this Agreement, any other Credit Document
or otherwise in such amount as the Lenders may determine, including
increasing the amount of credit and the interest rate and fees with respect
thereto, even though the condition of the Obligors (financial or otherwise
on an individual or Consolidated basis) may have deteriorated since the
date hereof.
9.5. Information Regarding the Borrower, etc. Each Guarantor has made such
---------------------------------------
investigation as it deems desirable of the risks undertaken by it in entering
into this Agreement and is fully satisfied that it understands all such risks.
Each Guarantor waives any obligation which may now or hereafter exist on the
part of the Agent or the Lenders to inform it of the risks being undertaken by
entering into this Agreement or of any changes in such risks and, from and after
the date hereof, each Guarantor undertakes to keep itself informed of such risks
and any changes therein. Each Guarantor expressly waives any duty which may now
or hereafter exist on the part of the Agent or the Lenders to disclose to the
Guarantor any matter related to the business, operations, character, collateral,
credit, condition (financial or otherwise), income or prospects of the Borrower
or its Affiliates or their properties or management, whether now or hereafter
known by the Agent or the Lenders. Each Guarantor represents, warrants and
agrees that it assumes sole responsibility for obtaining from the Borrower all
information concerning this Agreement and all other Credit Documents and all
other information as to the Borrower and its Affiliates or their properties or
management as such Guarantor deems necessary or desirable.
9.6. Certain Guarantor Representations. Each Guarantor represents that:
---------------------------------
(a) it is in its best interest and in pursuit of the purposes for
which it was organized as an integral part of the business conducted and
proposed to be conducted by the Borrower and its Subsidiaries, and
reasonably necessary and convenient in connection with the conduct of the
business conducted and proposed to be conducted by them, to induce the
Lenders to enter into this Agreement and to extend credit to the Borrower
by making the Guarantees contemplated by this Section 9,
(b) the credit available hereunder will directly or indirectly inure
to its benefit,
(c) by virtue of the foregoing it is receiving at least reasonably
equivalent value from the Lenders for its Guarantee,
(d) it will not be rendered insolvent as a result of entering into
this Agreement,
(e) after giving effect to the transactions contemplated by this
Agreement, it will have assets having a fair saleable value in excess of
the amount required to pay its probable liability on its existing debts as
they become absolute and matured,
(f) it has, and will have, access to adequate capital for the conduct
of its business,
-73-
(g) it has the ability to pay its debts from time to time incurred
in connection with its business as such debts mature, and
(h) it has been advised by the Agent that the Lenders are unwilling
to enter into this Agreement unless the Guarantees contemplated by this
Section 9 are given by it.
9.7. Subrogation. Each Guarantor agrees that, until the Credit
-----------
Obligations are paid in full, it will not exercise any right of reimbursement,
subrogation, contribution, offset or other claims against the other Obligors
arising by contract or operation of law in connection with any payment made or
required to be made by such Guarantor under this Agreement. After the payment in
full of the Credit Obligations, each Guarantor shall be entitled to exercise
against the Borrower and the other Obligors all such rights of reimbursement,
subrogation, contribution and offset, and all such other claims, to the fullest
extent permitted by law.
9.8. Subordination. Each Guarantor covenants and agrees that, after the
-------------
occurrence of an Event of Default, all Indebtedness, claims and liabilities then
or thereafter owing by the Borrower or any other Obligor to such Guarantor
whether arising hereunder or otherwise are subordinated to the prior payment in
full of the Credit Obligations and are so subordinated as a claim against such
Obligor or any of its assets, whether such claim be in the ordinary course of
business or in the event of voluntary or involuntary liquidation, dissolution,
insolvency or bankruptcy, so that no payment with respect to any such
Indebtedness, claim or liability will be made or received while any Event of
Default exists.
9.9. Further Assurances. Each Guarantor will, promptly upon the request
------------------
of the Agent from time to time, execute, acknowledge and deliver, and file and
record, all such instruments, and take all such action, as the Agent deems
necessary or advisable to carry out the intent and purposes of this Section 9.
10. Security.
--------
10.1. Credit Security. As security for the payment and performance of the
---------------
Credit Obligations, each Obligor mortgages, pledges and collaterally grants and
assigns to the Agent for the benefit of the Lenders and the holders from time to
time of any Credit Obligation, and creates a security interest in favor of the
Agent for the benefit of the Lenders and such holders in, all of such Obligor's
right, title and interest in and to (but none of its obligations or liabilities
with respect to) the items and types of present and future property described in
Sections 10.1.1 through 10.1.15 (subject, however, to Section 10.1.16), whether
now owned or hereafter acquired, all of which shall be included in the term
"Credit Security":
---------------
10.1.1. Tangible Personal Property. All goods, machinery,
--------------------------
equipment, inventory and all other tangible personal property of any nature
whatsoever, wherever located, including raw materials, work in process,
finished parts and products, supplies, spare parts, replacement parts,
merchandise for resale, computers, tapes, disks and computer equipment.
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10.1.2. Rights to Payment of Money. All rights to receive the
--------------------------
payment of money, including accounts (as defined in the UCC) and
receivables, rights to receive the payment of money under contracts,
franchises, licenses, permits, subscriptions or other agreements (whether
or not earned by performance), and rights to receive payments from any
other source (all such rights, other than Financing Debt, being referred to
herein as "Accounts").
--------
10.1.3. Intangibles. All of the following (to the extent not
-----------
included in Section 10.1.2): (a) contracts (including the Management
Services Agreements), franchises, licenses, permits, subscriptions and
other agreements and all rights thereunder; (b) rights granted by others
which permit the Obligor to sell or market items of personal property; (c)
United States and foreign common law and statutory copyrights and rights in
literary property and rights and licenses thereunder; (d) trade names,
United States and foreign trademarks, service marks, any registrations
thereof and any related good will; (e) United States and foreign patents
and patent applications; (f) computer software, designs, models, know-how,
trade secrets, rights in proprietary information, formulae, customer lists,
backlog, orders, subscriptions, royalties, catalogues, sales material,
documents, good will, inventions and processes; (g) judgments, causes in
action and claims, whether or not inchoate, and (h) all other general
intangibles (as defined in the UCC) and intangible property and all rights
thereunder.
10.1.4. Pledged Stock. (a) All shares of capital stock or other
-------------
evidence of beneficial interest in any corporation, business trust or
limited liability company, (b) all limited partnership interests in any
limited partnership, (c) all general partnership interests in any general
partnership, (d) all joint venture interests in any joint venture and (e)
all options, warrants and similar rights to acquire such capital stock or
such interests. All such capital stock, interests, options, warrants and
other rights are collectively referred to as the "Pledged Stock".
-------------
10.1.5. Pledged Rights. All rights to receive profits or surplus
--------------
of, or other Distributions (including income, return of capital and
liquidating distributions) from, any partnership, limited liability company
or joint venture, including any distributions by any such Person to
partners or joint venturers. All such rights are collectively referred to
as the "Pledged Rights".
--------------
10.1.6. Pledged Indebtedness. All Financing Debt from time to
--------------------
time owing to such Obligor from any Person (all such Financing Debt being
referred to as the "Pledged Indebtedness").
--------------------
10.1.7. Chattel Paper, Instruments and Documents. All chattel
----------------------------------------
paper (as defined in the UCC), non-negotiable instruments, negotiable
instruments (as defined in the UCC) and documents (as defined in the UCC).
10.1.8. Leases. All leases of personal property, whether the
------
Obligor is lessor or the lessee thereunder.
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10.1.9. Deposit Accounts. All general or special deposit
----------------
accounts, including any demand, time, savings, passbook or similar account
maintained by the Obligor with any bank, trust company, savings and loan
association, credit union or similar organization, and all money, cash and
cash equivalents of the Obligor, whether or not deposited in any such
deposit account.
10.1.10. Collateral. All collateral granted by third party
----------
obligors to, or held by, the Obligor with respect to the Accounts, Pledged
Securities, chattel paper, instruments, leases and other items of Credit
Security.
10.1.11. Books and Records. All books and records, including
-----------------
books of account and ledgers of every kind and nature, all electronically
recorded data (including all computer programs, disks, tapes, electronic
data processing media and software used in connection with maintaining the
Obligor's books and records), all files and correspondence and all
receptacles and containers for the foregoing.
10.1.12. Insurance. All insurance policies which insure against
---------
any loss or damage to any other Credit Security and any key executive life
insurance policies.
10.1.13. Investment Property. All of the following (to the extent
-------------------
not included in Sections 10.1.1 through 10.1.12): (i) securities, whether
certificated or uncertificated; (ii) security entitlements; (iii)
securities accounts; (iv) commodities contracts; and (v) commodities
accounts.
10.1.14. All Other Property. All other property, assets and
------------------
items of value of every kind and nature, tangible, or intangible, absolute
or contingent, legal or equitable, including the rights of any Obligors
under the Material Agreements set forth in Exhibit 7.2.2.
10.1.15. Proceeds and Products. All proceeds, including
---------------------
insurance proceeds, and products of the items of Credit Security described
or referred to in Sections 10.1.1 through 10.1.14 and, to the extent not
included in the foregoing, all Distributions with respect to the Pledged
Securities.
10.1.16. Excluded Property. Notwithstanding Sections 10.1.1
-----------------
through 10.1.15, the payment and performance of the Credit Obligations
shall not be secured by:
(a) any rights arising under, and any property, tangible or
intangible, acquired under, any agreement which validly prohibits the
creation by such Obligor of a security interest in such rights or property;
(b) any rights or property to the extent that any valid and
enforceable law or regulation applicable to such rights or property
prohibits the creation of a security interest therein;
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(c) more than 66% of the outstanding stock or other equity in any
foreign Subsidiary; or
(d) the items described in Section 10.2 (but only in the event and
to the extent the Agent has not specified that such items be included in
the Credit Security pursuant thereto).
In addition, in the event an Obligor disposes of assets to third parties in
a transaction permitted by Section 6.11, such assets, but not the proceeds or
products thereof, shall automatically be released from the Lien of the Credit
Security.
10.2. Additional Credit Security. As additional Credit Security, each
--------------------------
Obligor covenants that it will mortgage, pledge and collaterally grant and
assign to the Agent for the benefit of the Lenders and the holders from time to
time of any Credit Obligation, and will create a security interest in favor of
the Agent for the benefit of the Lenders and such holders in, all of its right,
title and interest in and to (but none of its obligations with respect to) such
of the following present or future items as the Agent may from time to time
specify by notice to the Borrower, whether now owned or hereafter acquired, and
the proceeds and products thereof, except to the extent consisting of rights or
property of the types referred to in Section 10.1.16(a) through (d), subject
only to Liens permitted by Section 10.3.4, all of which shall thereupon be
included in the term "Credit Security" .
---------------
10.2.1. Real Property. All real property and immovable property
-------------
and fixtures, leasehold interests and easements, owned by any Obligor,
wherever located, together with any and all estates and interests of the
Obligor therein, including lands, buildings, stores, manufacturing
facilities and other structures erected on such property, fixed plant,
fixed equipment and all permits, rights, licenses, benefits and other
interests of any kind or nature whatsoever in respect of such real and
immovable property.
10.2.2. Motor Vehicles and Aircraft. All motor vehicles and
---------------------------
aircraft.
10.3. Representations, Warranties and Covenants with Respect to
---------------------------------------------------------
Credit Security. Each Obligor represents, warrants and covenants that:
---------------
10.3.1. Pledged Stock. All shares of capital stock, limited
-------------
partnership interests and similar securities included in the Pledged Stock
are and shall be at all times duly authorized, validly issued, fully paid
and (in the case of capital stock and limited partnership interests)
nonassessable. Each Obligor will deliver to the Agent certificates
representing the Pledged Stock, registered, if the Agent so requests, in
the name of the Agent or its nominee, as pledgee, or accompanied by a stock
transfer power executed in blank and, if the Agent so requests, with the
signature guaranteed, all in form and manner satisfactory to the Agent.
Pledged Stock that is not evidenced by a certificate will be registered in
the Agent's name as pledgee on the issuer's records, all in form and
substance satisfactory to the Agent. The Agent may at any time following
and during the continuation of the occurrence of an Event of Default (but
shall not be obligated to)
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transfer into its name or the name of its nominee, as pledgee, any Pledged
Securities. In the event the Pledged Stock includes any Margin Stock, the
Obligors will furnish to the Lenders Federal Reserve Form U-1 and take such
other action as the Agent may request to ensure compliance with applicable
laws.
10.3.2. Accounts and Pledged Indebtedness. All Accounts and
---------------------------------
Pledged Indebtedness owed by any Affiliate of the Obligors shall be on open
account and shall not be evidenced by any note or other instrument;
provided, however, that all Pledged Indebtedness owed by any Affiliate of
-------- -------
any Obligor shall, if the Agent requests, be evidenced by a promissory
note, which note shall be delivered to the Agent after having been endorsed
in blank. Each Obligor will, immediately upon the receipt thereof, deliver
to the Agent any promissory note or similar instrument representing any
Pledged Indebtedness, after having endorsed such promissory note or
instrument in blank.
10.3.3. No Liens or Restrictions on Transfer or Change of Control.
---------------------------------------------------------
All Credit Security shall be free and clear of any Liens and restrictions
on the transfer thereof, including contractual provisions which prohibit
the assignment of rights under contracts, except for Liens permitted by
Section 6.8 and except for restrictions on transfer under the Securities
Act and under applicable state securities laws. Without limiting the
generality of the foregoing, each Obligor will exclude from contracts to
which it becomes a party after the date hereof provisions that would
prevent such Obligor from creating a security interest in such contract or
any property acquired thereunder as contemplated hereby. None of the
Pledged Stock is subject to any option to purchase or similar rights of any
Person. Except with the written consent of the Agent, no Obligor is, and
none of them will be, party to or bound by any agreement, instrument, deed
or lease that restricts the change of control or ownership, or the creation
of a security interest in the ownership, of the Company or any of its
Subsidiaries.
10.3.4. Location of Credit Security. Each Obligor shall at all
---------------------------
times keep its records concerning the Accounts at its chief executive
office and principal place of business, which office and place of business
shall be set forth in Exhibit 7.1, or, so long as such Obligor shall have
taken all steps reasonably necessary to perfect the Lenders' security
interest in the Credit Security with respect to such new address, at such
other address as such Obligor may specify by notice actually received by
the Agent not less than 10 Banking Days prior to such change of address. No
Obligor shall at any time keep tangible personal property of the type
referred to in Section 10.1.1 in any jurisdiction other than the
jurisdictions specified in Exhibit 7.1, or, so long as such Obligor shall
have taken all steps reasonably necessary to perfect the Lenders' security
interest in the Credit Security with respect to such other jurisdiction,
other jurisdictions as such Obligor may specify by notice actually received
by the Agent not less than 10 days prior to moving such tangible personal
property into such other jurisdiction.
10.3.5. Trade Names. No Obligor will adopt or do business under
-----------
any name other than its name or names designated in Exhibit 7.1 or any
other name specified by
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notice actually received by the Agent not less than 10 days prior to the
conduct of business under such additional name. Since its incorporation, no
Obligor has changed its corporate name or adopted or conducted business
under any trade name other than a name specified on Exhibit 7.1.
10.3.6. Insurance. Each insurance policy included in, or insuring
---------
against loss or damage to, the Credit Security shall name the Agent as
additional insured party or as loss payee. No such insurance policy shall
be cancelable or subject to termination or reduction in amount or scope of
coverage until after at least 30 days' prior written notice from the
insurer to the Agent. At least 10 days prior to the expiration of any such
insurance policy for any reason, each Obligor shall furnish the Agent with
a renewal or replacement policy and evidence of payment of the premiums
therefor when due. Each Obligor grants to the Agent full power and
authority as its attorney-in-fact, effective upon notice to such Obligor
after the occurrence of an Event of Default to obtain, cancel, transfer,
adjust and settle any such insurance policy and to endorse any drafts
thereon. Any amounts that the Agent receives under any such policy
(including return of unearned premiums) insuring against loss or damage to
the Credit Security prior to the occurrence of an Event of Default shall be
delivered to the Obligors for the replacement, restoration and maintenance
of the Credit Security. Any such amounts that the Agent receives after the
occurrence of an Event of Default shall, at the Agent's option, be applied
to payment of the Credit Obligations or to the replacement, restoration and
maintenance of the Credit Security. If any Obligor fails to provide
insurance as required by this Agreement, the Agent may, at its option,
purchase such insurance, and such Obligor will on demand pay to the Agent
the amount of any payments made by the Agent or the Lenders for such
purpose, together with interest on the amounts so disbursed from five
Banking Days after the date demanded until payment in full thereof at the
Overdue Reimbursement Rate.
10.3.7. Modifications to Credit Security. Except with the
--------------------------------
prior written consent of the Required Lenders, no Obligor shall amend or
modify, or waive any of its rights under or with respect to, any material
Accounts, general intangibles, Pledged Securities or leases if the effect
of such amendment, modification or waiver would be to reduce the amount of
any such items or to extend the time of payment thereof, to waive any
default by any other party thereto, or to waive or impair any remedies of
the Obligors or the Lenders under or with respect to any such Accounts,
general intangibles, Pledged Securities or leases, in each case other than
consistent with past practice in the ordinary course of business and on an
arm's-length basis. Each Obligor will promptly give the Agent written
notice of any request by any Person for any material credit or adjustment
with respect to any Account, general intangible, Pledged Securities or
leases.
10.3.8. Delivery of Documents. At the Agent's request, each
---------------------
Obligor shall deliver to the Agent, promptly upon such Obligor's receipt
thereof, copies of any agreements, instruments, documents or invoices
comprising or relating to the Credit Security. Pending such request, such
Obligor shall keep such items at its chief executive office and principal
place of business (as specified pursuant to Section 10.3.5).
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10.3.9. Perfection of Credit Security. Upon the Agent's request
-----------------------------
from time to time, the Obligors will execute and deliver, and file and
record in the proper filing and recording places, all such instruments,
including financing statements, collateral assignments of copyrights,
trademarks and patents, mortgages or deeds of trust, and notations on
certificates of title and will take all such other action, as the Agent
deems advisable for confirming to it the Credit Security or to carry out
any other purposes of this Agreement or any other Credit Document.
10.4. Administration of Credit Security. The Credit Security shall be
---------------------------------
administered as follows, and if an Event of Default shall have occurred,
Section 10.5 shall also apply.
10.4.1. Use of Credit Security. Until the Agent provides written
----------------------
notice to the contrary, each Obligor may use, commingle and dispose of any
part of the Credit Security in the ordinary course of its business, all
subject to Section 6.11.
10.4.2. Deposits; Accounts.
------------------
(a) Unless the Agent shall otherwise consent in writing, which
consent shall not be unreasonably withheld, each Obligor shall keep all its
bank and deposit accounts only with the Agent, other Lenders, financial
institutions designated on Exhibit 10.4.2 or any financial institution
--------------
approved by the Agent.
(b) To the extent specified by prior written notice from the Agent,
whether prior to or after the occurrence of an Event of Default, all sums
collected or received and all property recovered or possessed by any
Obligor in connection with any Credit Security shall be received and held
by such Obligor in trust for and on the Lenders' behalf, shall be
segregated from the assets and funds of such Obligor, and shall be
delivered to the Agent for the benefit of the Lenders.
(c) In addition, the Obligors shall direct that all Accounts
payable by Medicare or Medicaid and all Accounts payable in an amount
greater than $50 be paid directly into a locked box account maintained with
any financial institution designated on Exhibit 10.4.2 or such other
financial institution as approved by the Agent (which, in the event such
financial institution is not a Lender, must be party to an Assignment
Agreement in form and substance satisfactory to the Agent).
10.4.3. Pledged Securities.
------------------
(a) Distributions.
-------------
(i) Until an Event of Default shall occur, and thereafter once
such Event of Default has ceased to exist, the respective Obligors
shall be entitled, to the extent permitted by the Credit Documents, to
receive all Distributions on or with respect to the Pledged Securities
(other than Distributions constituting additional Pledged Securities).
All Distributions constituting additional Pledged
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Securities will be retained by the Agent (or if received by any
Obligor shall be held by such Person in trust and shall be
immediately delivered by such Person to the Agent in the original
form received, endorsed in blank) and held by the Agent as part of
the Credit Security.
(ii) If an Event of Default shall have occurred and be
continuing, all Distributions on or with respect to the Pledged
Securities shall be retained by the Agent (or if received by any
Obligor shall be held by such Person in trust and shall be
immediately delivered by it to the Agent in the original form
received, endorsed in blank) and held by the Agent as part of the
Credit Security or applied by the Agent to the payment of the Credit
Obligations in accordance with Section 10.5.6.
(b) Voting.
------
(i) Until an Event of Default shall occur, the respective
Obligors shall be entitled to vote or consent with respect to the
Pledged Securities in any manner not inconsistent with the terms of
any Credit Document, and the Agent will, if so requested, execute
appropriate revocable proxies therefor.
(ii) If an Event of Default shall have occurred, if and to the
extent that the Agent shall so notify in writing the Obligor
pledging the Pledged Securities in question, only the Agent shall be
entitled to vote or consent or take any other action with respect to
the Pledged Securities (and any Obligor will, if so requested,
execute or cause to be executed appropriate proxies therefor).
10.5. Right to Realize upon Credit Security. Except to the extent
-------------------------------------
prohibited by applicable law that cannot be waived, this Section 10.5 shall
govern the Lenders' right to realize upon the Credit Security if any Event of
Default shall have occurred and be continuing. The provisions of this Section
10.5 are in addition to any rights and remedies available at law or in equity
and in addition to the provisions of any other Credit Document. In the case of a
conflict between this Section 10.5 and any other Credit Document, this Section
10.5 shall govern. If any Event of Default shall have occurred and be
continuing:
10.5.1. Assembly of Credit Security; Receiver. Each of the
-------------------------------------
Obligors shall, upon the Agent's request, assemble the Credit Security and
otherwise make it available to the Agent. The Agent may have a receiver
appointed for all or any portion of the Obligor's assets or business which
constitutes the Credit Security in order to manage, protect, preserve, sell and
otherwise dispose of all or any portion of the Credit Security in accordance
with the terms of the Credit Documents, to continue the operations of the
Obligors and to collect all revenues and profits therefrom to be applied to the
payment of the Credit Obligations, including the compensation and expenses of
such receiver.
10.5.2. General Authority. To the extent specified in written
-----------------
notice from the Agent to the Obligor in question, each Obligor grants the
Agent full and exclusive power
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and authority, subject to the other terms hereof and applicable law, to
take any of the following actions (for the sole benefit of the Agent on
behalf of the Lenders and the holders from time to time of any Credit
Obligations, but at the Obligor's expense):
(a) To ask for, demand, take, collect, xxx for and receive all
payments in respect of any Accounts, general intangibles, Pledged
Securities or leases which the Obligor could otherwise ask for, demand,
take, collect, xxx for and receive for its own use.
(b) To extend the time of payment of any Accounts, general
intangibles, Pledged Securities or leases and to make any allowance or
other adjustment with respect thereto.
(c) To settle, compromise, prosecute or defend any action or
proceeding with respect to any Accounts, general intangibles, Pledged
Securities or leases and to enforce all rights and remedies thereunder
which the Obligor could otherwise enforce.
(d) To enforce the payment of any Accounts, general intangibles,
Pledged Securities or leases, either in the name of the Obligor or in its
own name, and to endorse the name of the Obligor on all checks, drafts,
money orders and other instruments tendered to or received in payment of
any Credit Security.
(e) To notify the third party payor with respect to any Accounts,
general intangibles, Pledged Securities or leases of the existence of the
security interest created hereby and to cause all payments in respect
thereof thereafter to be made directly to the Agent; provided, however,
-------- -------
that whether or not the Agent shall have so notified such payor, the
Obligors will at their expense render all reasonable assistance to the
Agent in collecting such items and in enforcing claims thereon.
(f) To sell, transfer, assign or otherwise deal in or with any Credit
Security or the proceeds thereof, as fully as any Obligor otherwise could
do.
10.5.3. Marshaling, etc. Neither the Agent nor the Lenders shall
---------------
be required to make any demand upon, or pursue or exhaust any of their
rights or remedies against, any Obligor or any other guarantor, pledgor or
any other Person with respect to the payment of the Credit Obligations or
to pursue or exhaust any of their rights or remedies with respect to any
collateral therefor or any direct or indirect guarantee thereof. Neither
the Agent nor the Lenders shall be required to marshal the Credit Security
or any guarantee of the Credit Obligations or to resort to the Credit
Security or any such guarantee in any particular order, and all of its and
their rights hereunder or under any other Credit Document shall be
cumulative. To the extent it may lawfully do so, each of the Obligors
absolutely and irrevocably waives and relinquishes the benefit and
advantage of, and covenants not to assert against the Agent or the Lenders,
any valuation, stay, appraisement, extension, redemption or similar laws
now or hereafter existing which, but for this provision, might be
applicable to the sale of any Credit Security made under the
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judgment, order or decree of any court, or privately under the power of
sale conferred by this Agreement, or otherwise. Without limiting the
generality of the foregoing, each of the Obligors (a) agrees that it will
not invoke or utilize any law which might prevent, cause a delay in or
otherwise impede the enforcement of the rights of the Agent or any Lender
in the Credit Security, (b) waives all such laws, and (c) agrees that it
will not invoke or raise as a defense to any enforcement by the Agent or
any Lender of any rights and remedies relating to the Credit Security or
the Credit Obligations any legal or contractual requirement with which the
Agent or any Lender may have in good faith failed to comply. In addition,
each of the Obligors waives any right to prior notice (except to the extent
expressly required by this Agreement) or judicial hearing in connection
with foreclosure on or disposition of any Credit Security, including any
such right which such Obligor would otherwise have under the Constitution
of the United States of America, any state or territory thereof or any
other jurisdiction.
10.5.4. Sales of Credit Security. All or any part of the Credit
------------------------
Security may be sold for cash or other value in any number of lots at
public or private sale, demand, advertisement or notice; provided, however,
-------- -------
that unless the Credit Security to be sold threatens to decline speedily in
value or is of a type customarily sold on a recognized market, the Agent
shall give the Obligor granting the security interest in such Credit
Security 10 days' prior written notice of the time and place of any public
sale, or the time after which a private sale may be made, which notice each
of the Obligors and the Lenders hereby agrees to be reasonable. At any sale
or sales of Credit Security, any Lender or any of its respective officers
acting on its behalf, or such Lender's assigns, may bid for and purchase
all or any part of the property and rights so sold, may use all or any
portion of the Credit Obligations owed to such Lender as payment for the
property or rights so purchased, and upon compliance with the terms of such
sale may hold and dispose of such property and rights without further
accountability to the respective Obligor, except for the proceeds of such
sale or sales pursuant to Section 10.5.6. The Obligors acknowledge that any
such sale will be made by the Agent on an "as is" basis with disclaimers of
all warranties, whether express or implied. The respective Obligors will
execute and deliver or cause to be executed and delivered such instruments,
documents, assignments, waivers, certificates and affidavits, will supply
or cause to be supplied such further information and will take such further
action as the Agent shall request in connection with any such sale.
10.5.5. Sale without Registration. If, at any time when the Agent
-------------------------
shall determine to exercise its rights hereunder to sell all or part of the
securities included in the Credit Security, the securities in question
shall not be effectively registered under the Securities Act (or other
applicable law), the Agent may, in its sole discretion, sell such
securities by private or other sale not requiring such registration in such
manner and in such circumstances as the Agent may deem necessary or
advisable in order that such sale may be effected in accordance with
applicable securities laws without such registration and the related
delays, uncertainty and expense. Without limiting the generality of the
foregoing, in any event the Agent may, in its sole discretion, (a) approach
and negotiate
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with a single purchaser or one or more possible purchasers to effect such
sale, (b) restrict such sale to one or more purchasers each of whom will
represent and agree that such purchaser is purchasing for its own account,
for investment and not with a view to the distribution or sale of such
securities and (c) cause to be placed on certificates representing the
securities in question a legend to the effect that such securities have not
been registered under the Securities Act (or other applicable law) and may
not be disposed of in violation of the provisions thereof. Each of the
Obligors agrees that such manner of disposition is commercially reasonable,
that it will upon the Agent's request give any such purchaser access to
such information regarding the issuer of the securities in question as the
Agent may reasonably request and that the Agent and the Lenders shall not
incur any responsibility for selling all or part of the securities included
in the Credit Security at any private or other sale not requiring such
registration, notwithstanding the possibility that a substantially higher
price might be realized if the sale were deferred until after registration
under the Securities Act (or other applicable law) or until made in
compliance with certain other rules or exemptions from the registration
provisions under the Securities Act (or other applicable law). Each of the
Obligors acknowledges that no adequate remedy at law exists for breach by
it of this Section 10.5.5 and that such breach would not be adequately
compensable in damages and therefore agrees that this Section 10.5.5 may be
specifically enforced.
10.5.6. Application of Proceeds. The proceeds of all sales and
-----------------------
collections in respect of any Credit Security or other assets of any
Obligor, all funds collected from the Obligors and any cash contained in
the Credit Security, the application of which is not otherwise specifically
provided for herein, shall be applied as follows:
First, to the payment of the costs and expenses of such sales and
collections, the reasonable expenses of the Agent and the reasonable fees
and expenses of its special counsel;
Second, any surplus then remaining to the payment of the Credit
Obligations in such order and manner as the Agent may in its sole
discretion determine; provided, however, that any such payment of Credit
-------- -------
Obligations owed to all Lenders shall be pro rata in accordance with the
respective Aggregate Percentage Interests of the Lenders in the Loan;
Third, any surplus then remaining shall be paid to the Obligors,
subject, however, to the rights of the holder of any then existing Lien of
which the Agent has actual notice.
10.6. Custody of Credit Security. Except as provided by applicable law
--------------------------
that cannot be waived, the Agent will have no duty as to the custody and
protection of the Credit Security, the collection of any part thereof or of any
income thereon or the preservation or exercise of any rights pertaining thereto,
including rights against prior parties, except for the use of reasonable care in
the custody and physical preservation of any Credit Security in its possession.
The Lenders will not be liable or responsible for any loss or damage to any
Credit Security, or for any
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diminution in the value thereof, by reason of the act or omission of any agent
selected by the Agent acting in good faith.
11. Expenses; Indemnity.
-------------------
11.1. Expenses. Whether or not the transactions contemplated hereby shall
--------
be consummated, the Borrower will pay:
(a) all reasonable expenses of the Agent (including the out-of-
pocket expenses related to forming the group of Lenders and reasonable fees
and disbursements of the counsel to the Agent) in connection with the
preparation and duplication of this Agreement, each other Credit Document,
examinations by, and reports of, the Agent's commercial financial
examiners, environmental surveys, the transactions contemplated hereby and
thereby and amendments, waivers, consents and other operations hereunder
and thereunder;
(b) all recording and filing fees and transfer and documentary
stamp and similar taxes at any time payable in respect of this Agreement,
any other Credit Document, any Credit Security or the incurrence of the
Credit Obligations; and
(c) to the extent not prohibited by applicable law that cannot be
waived, after the occurrence and during the continuance of any Default or
Event of Default, all other reasonable expenses incurred by the Lenders or
the holder of any Credit Obligation in connection with the enforcement of
any rights hereunder or under any other Credit Document, including costs of
collection and reasonable attorneys' fees (including a reasonable allowance
for the hourly cost of attorneys employed by the Lenders on a salaried
basis) and expenses.
11.2. General Indemnity. The Borrower shall indemnify the Lenders and the
-----------------
Agent and hold them harmless from any liability, loss or damage resulting from
the violation by the Company of Section 2.3. In addition, the Borrower shall
indemnify each Lender, the Agent, each of the Lenders' or the Agent's directors,
officers and employees, and each Person, if any, who controls any Lender or the
Agent (each Lender, the Agent and each of such directors, officers, employees
and control Persons is referred to as an "Indemnified Party") and hold each of
-----------------
them harmless from and against any and all claims, damages, liabilities and
reasonable expenses (including reasonable fees and disbursements of counsel with
whom any Indemnified Party may consult in connection therewith and all
reasonable expenses of litigation or preparation therefor) which any Indemnified
Party may incur or which may be asserted against any Indemnified Party in
connection with (a) the Indemnified Party's compliance with or contest of any
subpoena or other process issued against it in any proceeding involving any of
the Obligors or their Affiliates, (b) any litigation or investigation involving
the Obligors or their Affiliates, or any officer, director or employee thereof,
(c) the existence or exercise of any security rights with respect to the Credit
Security in accordance with the Credit Documents, (d) this Agreement, any other
Credit Document or any transaction contemplated hereby or thereby or (e) the use
of or proposed use of proceeds from this Credit Agreement; provided, however,
-------- --------
that
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the foregoing indemnity shall not apply to (i) to the extent such loss resulted
from the gross negligence or willful misconduct of the Indemnified Party; or
(ii) to litigation commenced by the Borrower or any Obligor against the Lenders
or the Agent which seeks enforcement of any of the rights of the Borrower or
such Obligor hereunder or under any other Credit Document and is determined
adversely to the Lenders or the Agent in a final nonappealable judgment or to
the extent such claims, damages, liabilities and expenses result from a Lender's
or the Agent's gross negligence or willful misconduct.
11.3. Indemnity With Respect to Letters of Credit. The Borrower shall
-------------------------------------------
indemnify each Letter of Credit Issuer and its correspondents and hold each of
them harmless from and against any and all claims, losses, liabilities, damages
and reasonable expenses (including reasonable attorneys' fees) arising from or
in connection with any Letter of Credit, including any such claim, loss,
liability, damage or expense arising out of any transfer, sale, delivery,
surrender or endorsement of any invoice, xxxx of lading, warehouse receipt or
other document at any time held by the Agent, any other Letter of Credit Issuer
or held for their respective accounts by any of their correspondents, in
connection with any Letter of Credit, except to the extent such claims, losses,
liabilities, damages and expenses result from gross negligence or willful
misconduct on the part of the Agent or any other Letter of Credit Issuer.
12. Operations; Agent.
-----------------
12.1. Interests in Credits. The Percentage Interest of each Lender in the
--------------------
Loan, and the related Commitments, shall be computed based on the maximum
principal amount for each Lender as set forth on Exhibit 12.1. Upon the
------------
consummation of any assignment pursuant to Section 13.1 or 13.3 or the addition
of any new Lender pursuant to Section 12.6(a), the Agent shall modify Exhibit
12.1 to reflect such assignment or addition.
12.2. Agent's Authority to Act, etc. Each of the Lenders appoints and
------------------------------
authorizes Fleet National Bank to act for the Lenders as the Lenders' Agent in
connection with the transactions contemplated by this Agreement and the other
Credit Documents on the terms set forth herein. In acting hereunder, the Agent
is acting for the account of Fleet National Bank to the extent of its Aggregate
Percentage Interest in the Loan and for the account of each other Lender to the
extent of the Lenders' respective Aggregate Percentage Interests in the Loan,
and all action in connection with the enforcement of, or the exercise of any
remedies (other than the Lenders' rights of set-off as provided in Section 8.2.4
or in any Credit Document) in respect of the Credit Obligations and Credit
Documents shall be taken by the Agent.
12.3. Borrower to Pay Agent, etc. The Borrower and each Guarantor shall be
---------------------------
fully protected in making all payments in respect of the Credit Obligations to
the Agent, in relying upon consents, modifications and amendments executed by
the Agent purportedly on the Lenders' behalf, and in dealing with the Agent as
herein provided. The Agent may charge the account of the Borrower, on the dates
when the amounts thereof become due and payable, with the amounts of the
principal of and interest on the Loan, any amounts paid by the Letter of Credit
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Issuers to third parties under Letters of Credit or drafts presented thereunder,
commitment fees, Letter of Credit fees and all other fees and amounts owing
under any Credit Document.
12.4. Lender Operations for Advances, Letters of Credit, etc.
-------------------------------------------------------
12.4.1. Advances. On each Closing Date, each Lender shall advance
--------
to the Agent in immediately available funds such Lender's Percentage
Interest in the portion of the Loan advanced on such Closing Date prior to
12:00 noon (Boston time). If such funds are not received at such time, but
all applicable conditions set forth in Section 5 have been satisfied, each
Lender authorizes and requests the Agent to advance for the Lender's
account, pursuant to the terms hereof, the Lender's respective Percentage
Interest in such portion of the Loan and agrees to reimburse the Agent in
immediately available funds for the amount thereof prior to 3:00 p.m.
(Boston time) on the day any portion of the Loan is advanced hereunder;
provided, however, that the Agent is not authorized to make any such
-------- -------
advance for the account of any Lender who has previously notified the Agent
in writing that such Lender will not be performing its obligations to make
further advances hereunder; and provided, further, that the Agent shall be
-------- -------
under no obligation to make any such advance.
12.4.2. Letters of Credit. Each of the Lenders authorizes and
-----------------
requests each Letter of Credit Issuer to issue the Letters of Credit
provided for in Section 2.2 and to grant each Lender a participation in
each of such Letters of Credit in an amount equal to its Percentage
Interest in the amount of each such Letter of Credit. Promptly upon the
request of the Letter of Credit Issuer, each Lender shall reimburse the
Letter of Credit Issuer in immediately available funds for such Lender's
Percentage Interest in the amount of all obligations to third parties
incurred by the Letter of Credit Issuer in respect of each Letter of Credit
and each draft accepted under a Letter of Credit to the extent not
reimbursed by the Borrower. The Letter of Credit Issuer will notify each
Lender of the issuance of any Letter of Credit, the amount and date of
payment of any draft drawn or accepted under a Letter of Credit and whether
in connection with the payment of any such draft the amount thereof was
added to the Revolving Loan or was reimbursed by the Borrower.
12.4.3. Agent to Allocate Payments, etc. All payments of principal
--------------------------------
and interest in respect of the extensions of credit made pursuant to this
Agreement, reimbursement of amounts paid by any Letter of Credit Issuer to
third parties under Letters of Credit or drafts presented thereunder,
commitment fees, Letter of Credit fees and other fees under this Agreement
shall, as a matter of convenience, be made by the Borrower and the
Guarantors to the Agent in immediately available funds. The share of each
Lender shall be credited to such Lender by the Agent in immediately
available funds in such manner that the principal amount of the Credit
Obligations to be paid shall be paid proportionately in accordance with the
Lenders' respective Percentage Interests in such Credit Obligations or
portion of the Loan to which such Credit Obligation relates, except as
otherwise provided in this Agreement. Under no circumstances shall any
Lender be
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required to produce or present its Notes as evidence of its interests in
the Credit Obligations in any action or proceeding relating to the Credit
Obligations.
12.4.4. Delinquent Lenders; Nonperforming Lenders. In the event
-----------------------------------------
that any Lender fails to reimburse the Agent pursuant to Section 12.4.1 for
the Percentage Interest of such lender (a "Delinquent Lender") in any
-----------------
credit advanced by the Agent pursuant hereto, overdue amounts (the
"Delinquent Payment") due from the Delinquent Lender to the Agent shall
------------------
bear interest, payable by the Delinquent Lender on demand, at a per annum
rate equal to (a) the Federal Funds Rate for the first three days overdue
and (b) the sum of 2% plus the Federal Funds Rate for any longer period.
----
Such interest shall be payable to the Agent for its own account for the
period commencing on the date of the Delinquent Payment and ending on the
date the Delinquent Lender reimburses the Agent on account of the
Delinquent Payment (to the extent not paid by the Company as provided
below) and the accrued interest thereon (the "Delinquency Period"), whether
------------------
pursuant to the assignments referred to below or otherwise. Upon notice by
the Agent, the Borrower will pay to the Agent the principal (but not the
interest) portion of the Delinquent Payment. During the Delinquency Period,
in order to make reimbursements for the Delinquent Payment and accrued
interest thereon, the Delinquent Lender shall be deemed to have assigned to
the Agent all interest, commitment fees and other payments made by the
Borrower under Section 3 that would have thereafter otherwise been payable
under the Credit Documents to the Delinquent Lender. During any other
period in which any Lender is not performing its obligations to extend
credit under Section 2 (a "Nonperforming Lender"), the Nonperforming Lender
---------------------
shall be deemed to have assigned to each Lender that is not a Nonperforming
Lender (a "Performing Lender") all principal and other payments made by the
-----------------
Borrower under Section 4 that would have thereafter otherwise been payable
under the Credit Documents to the Nonperforming Lender. The Agent shall
credit a portion of such payments to each Performing Lender in an amount
equal to the Percentage Interest of such Performing Lender in the portion
of the Loan with respect to which there is such nonperformance, in an
amount equal to such Percentage Interest of such Performing Lender divided
by one minus the Percentage Interest of the Nonperforming Lender in the
-----
portion of the Loan with respect to which there is such nonperformance,
until the respective portions of such portion of the Loan owed to all the
Lenders are the same as the Percentage Interests of the Lenders in such
portion of the Loan immediately prior to the failure of the Nonperforming
Lender to perform its obligations under Section 2. The foregoing provisions
shall be in addition to any other remedies the Agent, the Performing
Lenders or the Borrower may have under law or equity against the Delinquent
Lender as a result of the Delinquent Payment or against the Nonperforming
Lender as a result of its failure to perform its obligations under Section
2.
12.5. Sharing of Payments, etc. Each Lender agrees that (a) if by
-------------------------
exercising any right of set-off or counterclaim or otherwise, it shall receive
payment of (i) a proportion of the aggregate amount due with respect to its
Percentage Interest in a portion of the Loan and Letter of Credit Exposure which
is greater than (ii) the proportion received by any other Lender in
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respect of the aggregate amount due with respect to such other Lender's
Percentage Interest in such portion of the Loan and Letter of Credit Exposure
and (b) if such inequality shall continue for more than 10 days, the Lender
receiving such proportionately greater payment shall purchase participations in
the Percentage Interests in the portions of the Loan and Letter of Credit
Exposure held by the other Lenders, and such other adjustments shall be made
from time to time (including rescission of such purchases of participations in
the event the unequal payment originally received is recovered from such Lender
through bankruptcy proceedings or otherwise), as may be required so that all
such payments of principal and interest with respect to the portion of the Loan
and Letter of Credit Exposure held by the Lenders shall be shared by the Lenders
pro rata in accordance with their respective Percentage Interests in the
relevant portion of the Loan; provided, however, that this Section 12.5 shall
-------- -------
not impair the right of any Lender to exercise any right of set-off or
counterclaim it may have and to apply the amount subject to such exercise to the
payment of Indebtedness of any Obligor other than such Obligor's Indebtedness
with respect to the Loan and Letter of Credit Exposure. Each Lender that grants
a participation in the Credit Obligations to a Credit Participant shall require
as a condition to the granting of such participation that such Credit
Participant agree to share payments received in respect of the Credit
Obligations as provided in this Section 12.5. The provisions of this Section
12.5 are for the sole and exclusive benefit of the Lenders and no failure of any
Lender to comply with the terms hereof shall be available to any Obligor as a
defense to the payment of the Credit Obligations.
12.6. Actions by Agent, Amendments, Consents, Waivers, etc. Except as
-----------------------------------------------------
otherwise set forth in this Section 12.6, the Agent may (a) admit additional
Lenders who shall make Commitments for an Aggregate Percentage Interest in the
Loan; provided, however, that without consent obtained in accordance with
-------- -------
Section 12.6.2(c) the aggregate Commitments shall not exceed $300,000,000 and
(b) (and upon the written request of the Required Lenders the Agent shall) take
or refrain from taking any action under this Agreement or any other Credit
Document, including giving its written consent to any modification of or
amendment to and waiving in writing compliance with any covenant or condition in
this Agreement or any other Credit Document or any Default or Event of Default,
all of which actions shall be binding upon all of the Lenders; provided,
--------
however, that:
-------
12.6.1. Without the written consent of the Required Lenders (other
than Delinquent Lenders during the existence of a Delinquency Period so
long as such Delinquent Lender is treated the same as the other Lenders
with respect to any actions enumerated below), no written modification of,
amendment to, consent with respect to, waiver of compliance with or waiver
of a Default under any of the Credit Documents (other than Interest Rate
Protection Agreements) shall be made.
12.6.2. Without the written consent of such Lenders as own 100% of
the Aggregate Percentage Interests in the Loan (other than Delinquent
Lenders during the existence of a Delinquency Period so long as such
Delinquent Lender is treated the same as the other Lenders with respect to
any actions enumerated below):
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(a) No reduction shall be made in (i) the amount of principal of
the Loan or reimbursement obligations for payments made under Letters of
Credit, (ii) the interest rate on the Loan or the Swingline Loan or (iii)
the Letter of Credit fees or commitment fees.
(b) No change shall be made in the stated time of payment of all or
any portion of the Loan or interest thereon or reimbursement of payments
made under Letters of Credit or fees relating to any of the foregoing
payable to all of the Lenders and no waiver shall be made of any Default
under Section 8.1.1.
(c) Except for additional Commitments from new Lenders expressly
contemplated by Section 12.6.1(a) hereof, no increase shall be made in the
amount, or extension of the term, of the Commitments beyond that provided
for under Section 2.
(d) No alteration shall be made of the Lenders' rights of set-off
contained in Section 8.2.4.
(e) No release of any Credit Security or of any Guarantor shall be
made (except that the Agent may release particular items of Credit Security
or particular Guarantors in dispositions permitted by Section 6.11 and may
release all Credit Security pursuant to Section 18 upon payment in full of
the Credit Obligations and termination of the Commitments without the
written consent of the Lenders).
(f) No amendment to or modification of this Section 12.6 or of the
definition of Required Lenders shall be made.
12.7. Agent's Resignation. The Agent may resign at any time by giving at
-------------------
least 60 days' prior written notice of its intention to do so to each other of
the Lenders and the Borrower and upon the appointment by the Required Lenders of
a successor Agent satisfactory to the Borrower. If no successor Agent shall have
been so appointed and shall have accepted such appointment within 45 days after
the retiring Agent's giving of such notice of resignation, then the retiring
Agent may with the consent of the Borrower, which shall not be unreasonably
withheld, appoint a successor Agent which shall be a bank or a trust company
organized under the laws of the United States of America or any state thereof
and having a combined capital, surplus and undivided profit of at least
$100,000,000; provided, however, that any successor Agent appointed under this
-------- -------
sentence may be removed upon the written request of the Required Lenders, which
request shall also appoint a successor Agent satisfactory to the Borrower. Upon
the appointment of a new Agent hereunder, the term "Agent" shall for all
purposes of this Agreement thereafter mean such successor. After any retiring
Agent's resignation hereunder as Agent, or the removal hereunder of any
successor Agent, the provisions of this Agreement shall continue to inure to the
benefit of such Agent as to any actions taken or omitted to be taken by it while
it was Agent under this Agreement.
12.8. Concerning the Agent.
--------------------
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12.8.1. Action in Good Faith, etc. The Agent and its officers, directors,
-------------------------
employees and agents shall be under no liability to any of the Lenders or to any
future holder of any interest in the Credit Obligations for any action or
failure to act taken or suffered in good faith, and any action or failure to act
in accordance with an opinion of its counsel shall conclusively be deemed to be
in good faith. The Agent shall in all cases be entitled to rely, and shall be
fully protected in relying, on instructions given to the Agent by the required
holders of Credit Obligations as provided in this Agreement.
12.8.2. No Implied Duties, etc. The Agent shall have and may exercise such
----------------------
powers as are specifically delegated to the Agent under this Agreement or any
other Credit Document together with all other powers incidental thereto. The
Agent shall have no implied duties to any Person or any obligation to take any
action under this Agreement or any other Credit Document except for action
specifically provided for in this Agreement or any other Credit Document to be
taken by the Agent. Before taking any action under this Agreement or any other
Credit Document, the Agent may request an appropriate specific indemnity
satisfactory to it from each Lender in addition to the general indemnity
provided for in Section 12.11. Until the Agent has received such specific
indemnity, the Agent shall not be obligated to take (although it may in its sole
discretion take) any such action under this Agreement or any other Credit
Document. Each Lender confirms that the Agent does not have a fiduciary
relationship to it under the Credit Documents. Each of the Obligors party hereto
confirms that neither the Agent nor any other Lender has a fiduciary
relationship to it under the Credit Documents.
12.8.3. Validity, etc. The Agent shall not be responsible to any Lender or
-------------
any future holder of any interest in the Credit Obligations (a) for the
legality, validity, enforceability or effectiveness of this Agreement or any
other Credit Document, (b) for any recitals, reports, representations,
warranties or statements contained in or made in connection with this Agreement
or any other Credit Document, (c) for the existence or value of any assets
included in any security for the Credit Obligations, (d) for the effectiveness
of any Lien purported to be included in the Credit Security, (e) for the
specification or failure to specify any particular assets to be included in the
Credit Security, or (f) unless the Agent shall have failed to comply with
Section 12.8.1, for either the perfection of the security interests in the
Credit Security or for failure of the Agent to its obligations under Section
12.8.8.
12.8.4. Compliance. The Agent shall not be obligated to ascertain or
----------
inquire as to the performance or observance of any of the terms of this
Agreement or any other Credit Document; and in connection with any extension of
credit under this Agreement or any other Credit Document, the Agent shall be
fully protected in relying on a certificate of the Borrower as to the
fulfillment by the Borrower of any conditions to such extension of credit.
12.8.5. Employment of Agents and Counsel. The Agent may execute any of its
--------------------------------
duties as Agent under this Agreement or any other Credit Document by or through
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employees, agents and attorneys-in-fact and shall not be responsible to any
of the Lenders, the Borrower or any other Obligor for the default or
misconduct of any such agents or attorneys-in-fact selected by the Agent
acting in good faith. The Agent shall be entitled to advice of counsel
concerning all matters pertaining to the agency hereby created and its
duties hereunder or under any other Credit Document.
12.8.6. Reliance on Documents and Counsel. The Agent shall be
---------------------------------
entitled to rely, and shall be fully protected in relying, upon any
affidavit, certificate, cablegram, consent, instrument, letter, notice,
order, document, statement, telecopy, telegram, telex or teletype message
or writing reasonably believed in good faith by the Agent to be genuine and
correct and to have been signed, sent or made by the Person in question,
including any telephonic or oral statement made by such Person, and, with
respect to legal matters, upon an opinion or the advice of counsel selected
by the Agent.
12.8.7. Agent's Reimbursement. Each of the Lenders severally agrees
---------------------
to reimburse the Agent, in the amount of such Lender's Aggregate Percentage
Interest in the Loan, for any reasonable expenses not reimbursed by the
Borrower or the Guarantors (without limiting the obligation of the Borrower
or the Guarantors to make such reimbursement): (a) for which the Agent is
entitled to reimbursement by the Borrower or the Guarantors under this
Agreement or any other Credit Document, and (b) after the occurrence of a
Default, for any other reasonable expenses incurred by the Agent on the
Lenders' behalf in connection with the enforcement of the Lenders' rights
under this Agreement or any other Credit Document.
12.8.8. Conveying Reports to Lenders. The Agent shall provide to
----------------------------
each of the Lenders, in any reasonable form and reasonably promptly, a copy
of those communications received from the Company pursuant to Sections
4.3.3, 5.2, 6.4 and 6.2 1.
12.9. Rights as a Lender. With respect to any credit extended by it
------------------
hereunder, Fleet National Bank shall have the same rights, obligations and
powers hereunder as any other Lender and may exercise such rights and powers as
though it were not the Agent, and unless the context otherwise specifies, Fleet
National Bank shall be treated in its individual capacity as though it were not
the Agent hereunder. Without limiting the generality of the foregoing, the
Percentage Interest in any portion of the Loan, and the Aggregate Percentage
Interest in the Loan, of Fleet National Bank shall be included in any
computations of Percentage Interests and Aggregate Percentage Interests in the
Loan, respectively. Fleet National Bank and its Affiliates may accept deposits
from, lend money to, act as trustee for and generally engage in any kind of
banking or trust business with the Borrower, any of its Subsidiaries or any
Affiliate of any of them and any Person who may do business with or own an
equity interest in the Borrower, any of its Subsidiaries or any Affiliate of any
of them, all as if Fleet National Bank were not the Agent and without any duty
to account therefor to the other Lenders.
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12.10. Independent Credit Decision. Each of the Lenders acknowledges that
---------------------------
it has independently and without reliance upon the Agent, based on the financial
statements and other documents referred to in Section 7.2, on the other
representations and warranties contained herein and on such other information
with respect to the Obligors as such Lender deemed appropriate, made such
Lender's own credit analysis and decision to enter into this Agreement and to
make the extensions of credit provided for hereunder. Each Lender represents to
the Agent that such Lender will continue to make its own independent credit and
other decisions in taking or not taking action under this Agreement or any other
Credit Document. Each Lender expressly acknowledges that neither the Agent nor
any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates has made any representations or warranties to such Lender, and no act
by the Agent taken under this Agreement or any other Credit Document, including
any review of the affairs of the Obligors, shall be deemed to constitute any
representation or warranty by the Agent. Except for notices, reports and other
documents expressly required to be furnished to each Lender by the Agent under
this Agreement or any other Credit Document, the Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition, financial or
otherwise, or creditworthiness of any Obligor which may come into the possession
of the Agent or any of its officers, directors, employees, agents, attorneys-in-
fact or Affiliates.
12.11. Indemnification. The holders of the Credit Obligations shall
---------------
indemnify the Agent and its officers, directors, employees and agents (to the
extent not reimbursed by the Obligors and without limiting the obligation of any
of the Obligors to do so), pro rata in accordance with their respective
Aggregate Percentage Interests in the Loan, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever which may at any time be
imposed on, incurred by or asserted against the Agent or such Persons relating
to or arising out of this Agreement, any other Credit Document, the transactions
contemplated hereby or thereby, or any action taken or omitted by the Agent in
connection with any of the foregoing; provided, however, that the foregoing
-------- -------
shall not extend to actions or omissions which are taken by the Agent with gross
negligence or willful misconduct.
13. Successors and Assigns; Lender Assignments and Participations. Any
-------------------------------------------------------------
reference in this Agreement to any of the parties hereto shall be deemed to
include the successors and assigns of such party, and all covenants and
agreements by or on behalf of the Obligors, the Guarantors, the Agent or the
Lenders that are contained in this Agreement or any other Credit Documents shall
bind and inure to the benefit of their respective successors and assigns;
provided, however, that (a) the Obligors may not assign their rights or
obligations under this Agreement except for mergers or liquidations permitted by
Section 6.11, and (b) the Lenders shall be not entitled to assign their
respective Percentage Interests in portions of the Loan hereunder except as set
forth below in this Section 13.
13.1. Assignments by Lenders.
----------------------
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13.1.1. Assignees and Assignment Procedures. Each Lender may (a)
-----------------------------------
without the consent of the Agent or the Borrower if the proposed assignee
is already a Lender hereunder or a Wholly Owned Subsidiary of the same
corporate parent of which the assigning Lender is a Subsidiary, or (b)
otherwise with the consents of the Agent and (so long as no Event of
Default has occurred and is continuing) the Borrower (which consents will
not be unreasonably withheld), in compliance with applicable laws in
connection with such assignment, assign to one or more commercial banks or
other financial institutions (each, an "Assignee") all or a portion of its
--------
interests, rights and obligations under this Agreement and the other Credit
Documents, including all or a portion, which need not be pro rata between
the Loan and the Letter of Credit Exposure, of its Commitment, the portion
of the Loan and Letter of Credit Exposure at the time owing to it and the
Notes held by it, but excluding its rights and obligations as a Letter of
Credit Issuer; provided, however, that:
-------- -------
(i) the aggregate amount of the Commitment of the assigning
Lender subject to each such assignment to any Assignee other than
another Lender (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Agent)
shall be not less than $5,000,000 and in increments of $1,000,000; and
(ii) the parties to each such assignment shall execute and
deliver to the Agent an Assignment and Acceptance (the "Assignment and
--------------
Acceptance") substantially in the form of Exhibit 13.1.1, together
---------- --------------
with the Note subject to such assignment and a processing and
recordation fee of $3,500 payable to the Agent by the assigning Lender
or the Assignee.
Upon acceptance and recording pursuant to Section 13.1.4, from and
after the effective date specified in each Assignment and Acceptance
(which effective date shall be at least five Banking Days after the
execution thereof unless waived by the Agent):
(A) the Assignee shall be a party hereto and, to the extent
provided in such Assignment and Acceptance, have the rights
and obligations of a Lender under this Agreement and
(B) the assigning Lender shall, to the extent provided in such
assignment, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance
covering all or the remaining portion of an assigning Lender's
rights and obligations under this Agreement, such Lender shall
cease to be a party hereto but shall continue to be entitled
to the benefits of Sections 3.2.4, 3.5 and 11, as well as to
any fees accrued for its account hereunder and not yet paid).
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13.1.2. Terms of Assignment and Acceptance. By executing and
----------------------------------
delivering an Assignment and Acceptance, the assigning Lender and Assignee
shall be deemed to confirm to and agree with each other and the other
parties hereto as follows:
(a) other than the representation and warranty that it is the
legal and beneficial owner of the interest being assigned thereby free and
clear of any adverse claim, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement
or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement, any other Credit Document or any
other instrument or document furnished pursuant hereto;
(b) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Obligors or the performance or observance by any Obligor of any of its
obligations under this Agreement, any other Credit Document or any other
instrument or document furnished pursuant hereto;
(c) such Assignee confirms that it has received a copy of this
Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 7.2 or Section 6.4 and such other documents
and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance;
(d) such Assignee will independently and without reliance upon the
Agent, such Lender or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Agreement;
(e) such Assignee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under this
Agreement as are delegated to the Agent by the terms hereof, together with
such powers as are reasonably incidental thereto; and
(f) such Assignee agrees that it will perform in accordance with
the terms of this Agreement all the obligations which are required to be
performed by it as a Lender.
13.1.3. Register. The Agent shall maintain at the Boston Office a
--------
register (the "Register") for the recordation of (a) the names and
--------
addresses of the Lenders and the Assignees which assume rights and
obligations pursuant to an assignment under Section 13.1.1, (b) the
Percentage Interests of each such Lender in the Revolving Loan as set forth
in Section 12.1 and (c) the amount of the Loan and Letter of Credit
Exposure owing to each Lender from time to time. The entries in the
Register shall be conclusive, in the absence of manifest error, and the
Borrower, the Agent and the Lenders may treat each Person whose name is
registered therein for all purposes as a party to this
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Agreement. The Register shall be available for inspection by the Borrower
or any Lender at any reasonable time and from time to time upon reasonable
prior notice.
13.1.4. Acceptance of Assignment and Assumption. Upon its receipt of
---------------------------------------
a completed Assignment and Acceptance executed by an assigning Lender and
an Assignee together with the Note or Notes subject to such assignment, and
the processing and recordation fee referred to in Section 13.1.1, the Agent
shall (a) accept such Assignment and Acceptance, (b) record the information
contained therein in the Register and (c) give prompt notice thereof to the
Borrower. Within five Banking Days after receipt of notice, the Borrower,
at their own expense, shall execute and deliver to the Agent, in exchange
for the surrendered Note or Notes, a new Note or Notes to the order of such
Assignee in a principal amount equal to the applicable Commitment and Loan
assumed by it pursuant to such Assignment and Acceptance and, if the
assigning Lender has retained a Commitment and Loan, a new Note or Notes to
the order of such assigning Lender in a principal amount equal to the
applicable Commitment and Loan retained by it. Such new Note or Notes shall
be in an aggregate principal amount equal to the aggregate principal amount
of such surrendered Note or Notes, respectively, and shall be dated the
date of the surrendered Notes which they replace.
13.1.5. Federal Reserve Bank. Notwithstanding the foregoing
--------------------
provisions of this Section 13, any Lender may at any time pledge or assign
all or any portion of such Lender's rights under this Agreement and the
other Credit Documents to a Federal Reserve Bank; provided, however, that
-------- -------
no such pledge or assignment shall release such Lender from such Lender's
obligations hereunder or under any other Credit Document.
13.1.6. Further Assurances. The Obligors shall sign such documents
------------------
and take such other actions from time to time reasonably requested by an
Assignee to enable it to share in the benefits of the rights created by the
Credit Documents.
13.2. Credit Participants. Each Lender may, without the consent of the
-------------------
Borrower or the Agent, in compliance with applicable laws in connection with
such participation, sell to one or more commercial banks or other financial
institutions (each a "Credit Participant") participations, in all or a portion
------------------
of its interests, rights and obligations under this Agreement and the other
Credit Documents (including all or a portion of its Commitment, the Loan and
Letter of Credit Exposure owing to it and the Notes held by it); provided,
--------
however, that:
-------
(a) such Lender's obligations under this Agreement shall remain
unchanged;
(b) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations;
(c) the Credit Participant shall be entitled to the benefit of the
cost protection provisions contained in Sections 3.2.4, 3.5 and 11, but
shall not be entitled to receive any greater payment thereunder than the
selling Lender would have been entitled to receive with respect to the
interest so sold if such interest had not been sold; and
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(d) the Borrower, the 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 Agreement, and such Lender shall
retain the sole right as one of the Lenders to vote with respect to the
enforcement of the obligations of the Borrower relating to the Loan and
Letter of Credit Exposure and the approval of any amendment, modification
or waiver of any provision of this Agreement (other than amendments,
modifications, consents or waivers described in clause (c) of the proviso
to Section 12.6).
Each Obligor agrees, to the fullest extent permitted by applicable law, that any
Credit Participant and any Lender purchasing a participation from another Lender
pursuant to Section 12.5 may exercise all rights of payment (including the right
of set-off), with respect to its participation as fully as if such Credit
Participant or such Lender were the direct creditor of the Obligors and a Lender
hereunder in the amount of such participation.
13.3. Replacement of Lender. In the event that any Lender or, to the
---------------------
extent applicable, any Credit Participant (the "Affected Lender"):
---------------
(a) fails to perform its obligations to fund any portion of the
Loan or to issue any Letter of Credit on any Closing Date when required to
do so by the terms of the Credit Documents, or fails to provide its portion
of any LIBOR Pricing Option pursuant to Section 3.2.1 or on account of a
Legal Requirement as contemplated by Section 3.2.5;
(b) demands payment under the Reserve provisions of Section 3.5.1,
the Tax provisions of Section 3.5.2, the capital adequacy provisions of
Section 3.5.3 or the regulatory change provisions in Section 3.5.4 in an
amount the Company deems materially in excess of the amounts with respect
thereto demanded by the other Lenders; or
(c) refuses to consent to a proposed amendment, modification,
waiver or other action requiring consent of the holders of 100% of the
Aggregate Percentage Interests in the Loan under Section 12.6.1(c) that is
consented to by the other Lenders;
then, so long as no Event of Default exists and is continuing, the Borrower
shall have the right to seek a replacement lender which is reasonably
satisfactory to the Agent (the "Replacement Lender"). The Replacement Lender
------------------
shall purchase the interests of the Affected Lender in the Loan, Letters of
Credit and its Commitment and shall assume the obligations of the Affected
Lender hereunder and under the other Credit Documents upon execution by the
Replacement Lender of an Assignment and Acceptance and the tender by it to the
Affected Lender of a purchase price agreed between it and the Affected Lender
(or, if they are unable to agree, a purchase price in the aggregate amount of
the Affected Lender's Percentage Interests in each portion of the Loan and
Letter of Credit Exposure, or appropriate credit support for contingent amounts
included therein, and all other outstanding Credit Obligations then owed to the
Affected Lender). Such assignment by the Affected Lender shall be deemed an
early termination of any LIBOR Pricing Option to the extent of the Affected
Lender's portion thereof, and the Borrower will pay to the Affected Lender any
resulting amounts due under Section 3.2.4. Upon
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consummation of such assignment, the Replacement Lender shall become party to
this Agreement as a signatory hereto and shall have all the rights and
obligations of the Affected Lender under this Agreement and the other Credit
Documents with a Percentage Interest in each portion of the Loan equal to the
Percentage Interest in such portion of the Loan of the Affected Lender, the
Affected Lender shall be released from its obligations hereunder and under the
other Credit Documents, and no further consent or action by any party shall be
required. Upon the consummation of such assignment, the Borrower, the Agent and
the Affected Lender shall make appropriate arrangements so that a new Note is
issued to the Replacement Lender if it has acquired a portion of the Loan. The
Borrower and the Guarantors shall sign such documents and take such other
actions reasonably requested by the Replacement Lender to enable it to share in
the benefits of the rights created by the Credit Documents. Until the
consummation of an assignment in accordance with the foregoing provisions of
this Section 13.3, the Borrower shall continue to pay to the Affected Lender any
Credit Obligations as they become due and payable.
13.4. Foreign Lenders. If any Lender is not incorporated or organized
---------------
under the laws of the United States of America or a state thereof, such Lender
shall deliver to the Borrower and the Agent the following:
(a) Two duly completed copies of United States Internal Revenue
Service Form 1001 or 4224 or successor form, as the case may be, certifying
in each case that such Person is entitled to receive payments under this
Agreement, the Notes and reimbursement obligations under Letters of Credit
payable to it, without deduction or withholding of any United States
federal income taxes; and
(b) A duly completed Internal Revenue Service Form W-8 or W-9 or
successor form, as the case may be, to establish an exemption from United
States backup withholding tax.
Each such Lender that delivers to the Borrower and the Agent a Form 1001 or
4224 and Form W-8 or W-9 pursuant to this Section 13 further undertakes to
deliver to the Borrower and the Agent two further copies of Form 1001 or 4224
and Form W-8 or W-9, or successor applicable form, or other manner of
certification, as the case may be, on or before the date that any such form
expires or becomes obsolete or after the occurrence of any event requiring a
change in the most recent form previously delivered by it to the Borrower and
the Agent. Such Forms 1001 or 4224 shall certify that such Lender is entitled
to receive payments under this Agreement without deduction or withholding of any
United States federal income taxes. The foregoing documents need not be
delivered in the event any change in treaty, law or regulation or official
interpretation thereof has occurred which renders all such forms inapplicable or
which would prevent such Lender from delivering any such form with respect to
it, or such Lender advises the Borrower that it is not capable of receiving
payments without any deduction or withholding of United States federal income
tax and, in the case of a Form W-8 or W-9, establishing an exemption from United
States backup withholding tax. Until such time as the Borrower and the Agent
have received such forms indicating that payments hereunder are not subject to
United States withholding tax or are subject to such tax at a rate reduced by an
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applicable tax treaty, the Borrower shall withhold taxes from such payments at
the applicable statutory rate without regard to Section 3.5.2.
14. Confidentiality. Each Lender will make no disclosure of confidential
---------------
information furnished to it by any Obligor unless such information shall have
become public, except:
(a) in connection with operations under or the enforcement of this
Agreement or any other Credit Document;
(b) pursuant to any statutory or regulatory requirement or any
mandatory court order, subpoena or other legal process;
(c) to any parent or corporate Affiliate of such Lender or to any
Credit Participant, proposed Credit Participant or proposed Assignee;
provided, however, that any such Person shall agree to comply with the
-------- -------
restrictions set forth in this Section 14 with respect to such information;
(d) to its independent counsel, auditors and other professional
advisors with an instruction to such Person to keep such information
confidential; and
(e) with the prior written consent of the Borrower, to any other
Person.
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15. Acknowledgments and Consents. The Borrower and each Guarantor and each
----------------------------
Obligor, in their capacities as Borrower, as guarantors of the Credit
Obligations, grantors of security interests to secure the Credit Obligations
and/or holders of Subordinated Indebtedness, as the case may be, pursuant to the
Credit Agreement dated as of May 29, 1996, as amended and restated previously
and hereby and as in effect on the date hereof, hereby acknowledge and agree
that, as of the Initial Closing Date, (i) the Uniform Commercial Code Financing
Statements and other instruments previously filed in connection with the
perfection of the Liens created in the Credit Security pursuant to such Credit
Agreement shall be deemed to refer to the Credit Agreement as amended and
restated hereby and that the term "Credit Obligations" as used in such financing
statements and other instruments, shall be deemed to refer to the Credit
Obligations under the Credit Agreement as amended and restated hereby; and (ii)
such financing statements and other instruments are confirmed and ratified as
being in full force and effect.
16. Notices. Except as otherwise specified in this Agreement, any notice
-------
required to be given pursuant to this Agreement shall be given in writing. Any
notice, consent, approval, demand or other communication in connection with this
Agreement shall be deemed to be given if given in writing (including telex,
telecopy or similar teletransmission) addressed as provided below (or to the
addressee at such other address as the addressee shall have specified by notice
actually received by the addressor), and if either (a) actually delivered in
fully legible form to such address (evidenced in the case of a telex by receipt
of the correct answerback) or (b) in the case of a letter, unless actual receipt
of the notice is required by any Credit Document five days shall have elapsed
after the same shall have been deposited in the United States mails, with first-
class postage prepaid and registered or certified.
If to the Borrower or its Subsidiaries, to it at its address set forth in
Exhibit 7.1 (as supplemented pursuant to Sections 6.4.1 and 6.4.2), to the
attention of the chief financial officer.
If to any Lender or the Agent, to it at its address set forth on the
signature pages of this Agreement or in the Register, with a copy to the Agent,
with a copy to:
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxx X. XxXxx
17. Course of Dealing; Amendments and Waivers. No course of dealing between
-----------------------------------------
any Lender or the Agent, on one hand, and the Borrower or any other Obligor, on
the other hand, shall operate as a waiver of any of the Lenders' or the Agent's
rights under this Agreement or any other Credit Document or with respect to the
Credit Obligations. Each of the Borrower and the Guarantors acknowledges that
if the Lenders or the Agent, without being required to do so by this Agreement
or any other Credit Document, give any notice or information to, or obtain any
consent from, the Borrower or any other Obligor, the Lenders and the Agent shall
not by implication have amended, waived or modified any provision of this
Agreement or any other Credit Document, or created any duty to give any such
notice or information or to obtain any
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such consent on any future occasion. No delay or omission on the part of any
Lender of the Agent in exercising any right under this Agreement or any other
Credit Document or with respect to the Credit Obligations shall operate as a
waiver of such right or any other right hereunder or thereunder. A waiver on any
one occasion shall not be construed as a bar to or waiver of any right or remedy
on any future occasion. No waiver, consent or amendment with respect to this
Agreement or any other Credit Document shall be binding unless it is in writing
and signed by the Agent and the Required Lenders.
18. Defeasance. When all Credit Obligations have been paid, performed and
----------
reasonably determined by the Lenders to have been indefeasibly discharged in
full, and if at the time no Lender continues to be committed to extend any
credit to the Borrower hereunder or under any other Credit Document, this
Agreement shall terminate and, at the Borrower's written request, accompanied by
such certificates and other items as the Agent shall reasonably deem necessary,
the Credit Security shall revert to the Obligors and the right, title and
interest of the Lenders therein shall terminate. Thereupon, on the Obligor's
demand and at their cost and expense, the Agent shall execute proper
instruments, acknowledging satisfaction of and discharging this Agreement, and
shall redeliver to the Obligors any Credit Security then in its possession;
provided, however, that Sections 3.2.4, 3.5, 11, 12.8.7, 12.11, 14, 19 and 20
-------- -------
shall survive the termination of this Agreement.
19. Venue; Service of Process. Each of the Borrower and the other Obligors:
-------------------------
(a) Irrevocably submits to the nonexclusive jurisdiction of the state
courts of The Commonwealth of Massachusetts and to the nonexclusive
jurisdiction of the United States District Court for the District of
Massachusetts for the purpose of any suit, action or other proceeding
arising out of or based upon this Agreement or any other Credit Document or
the subject matter hereof or thereof.
(b) Waives to the extent not prohibited by applicable law that cannot
be waived, and agrees not to assert, by way of motion, as a defense or
otherwise, in any such proceeding brought in any of the above-named courts,
any claim that it is not subject personally to the jurisdiction of such
court, that its property is exempt or immune from attachment or execution,
that such proceeding is brought in an inconvenient forum, that the venue of
such proceeding is improper, or that this Agreement or any other Credit
Document, or the subject matter hereof or thereof, may not be enforced in
or by such court.
Each of the Borrower and the other Obligors consents to service of process in
any such proceeding in any manner at the time permitted by Chapter 223A of the
General Laws of The Commonwealth of Massachusetts and agrees that service of
process by registered or certified mail, return receipt requested, at its
address specified in or pursuant to Section 16 is reasonably calculated to give
actual notice.
20. WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT
--------------------
CANNOT BE WAIVED, EACH OF THE BORROWER, THE
-101-
OTHER OBLIGORS, THE AGENT AND THE LENDERS WAIVES, AND COVENANTS THAT IT WILL NOT
ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY
JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM OR PROCEEDING ARISING OUT OF
THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT OR THE SUBJECT MATTER HEREOF OR
THEREOF OR ANY CREDIT OBLIGATION OR IN ANY WAY CONNECTED WITH THE DEALINGS OF
THE LENDERS, THE AGENT, THE BORROWER OR ANY OTHER OBLIGOR IN CONNECTION WITH ANY
OF THE ABOVE, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER
IN CONTRACT, TORT OR OTHERWISE. Each of the Borrower and the other Obligors
acknowledges that it has been informed by the Agent that the provisions of this
Section 20 constitute a material inducement upon which each of the Lenders has
relied and will rely in entering into this Agreement and any other Credit
Document, and that it has reviewed the provisions of this Section 20 with its
counsel. Any Lender, the Agent, the Borrower or any other Obligor may file an
original counterpart or a copy of this Section 20 with any court as written
evidence of the consent of the Borrower, the other Obligors, the Agent and the
Lenders to the waiver of their rights to trial by jury.
21. No Strict Construction. The parties have participated jointly in the
----------------------
negotiation and drafting of this Agreement and the other Credit Documents with
counsel sophisticated in financing transactions. In the event an ambiguity or
question of intent or interpretation arises, this Agreement and the other Credit
Documents shall be construed as if drafted jointly by the parties and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Agreement and the other
Credit Documents.
22. General. All covenants, agreements, representations and warranties made in
-------
this Agreement or any other Credit Document or in certificates delivered
pursuant hereto or thereto shall be deemed to have been relied on by each
Lender, notwithstanding any investigation made by any Lender on its behalf, and
shall survive the execution and delivery to the Lenders hereof and thereof. The
invalidity or unenforceability of any provision hereof shall not affect the
validity or enforceability of any other provision hereof. The headings in this
Agreement are for convenience of reference only and shall not limit or otherwise
affect the meaning hereof. This Agreement and the other Credit Documents
(including any related fee agreements with the Agent or the Lenders) constitute
the entire understanding of the parties with respect to the subject matter
hereof and thereof and supersede all prior and contemporaneous understandings
and agreements, whether written or oral. This Agreement may be executed in any
number of counterparts which together shall constitute one instrument. This
Agreement shall be governed by and construed in accordance with the laws (other
than the conflict of laws rules) of The Commonwealth of Massachusetts, except as
may be required by the UCC with respect to matters involving the perfection of
the Agent's Lien on the Credit Security.
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Agreement to be executed and delivered by its duly authorized officer as an
agreement under seal as of the date first above written.
The Company
AMERIPATH, INC.
By _________________________________
Title:
The Guarantors
--------------
AMERIPATH ALABAMA, INC.
SHOALS PATHOLOGY ASSOCIATES, INC.
PCA OF LOS GATOS, INC.
CALIFORNIA PATHOLOGY CONSULTANTS OF AMERICA,
INC.
PCA OF DENVER, INC.
AMERIPATH FLORIDA, INC.
AMERIPATH MARKETING USA, INC.
SOUTH FLORIDA PATHOLOGY ASSOCIATES, INC.
HIALEAH PATHOLOGY ASSOCIATES, INC.
MEDGENETICS DIAGNOSTICS LABORATORIES, INC.
ORANGE PARK PATHOLOGY LABORATORY
CONSULTANTS, INC.
AMERIPATH, LLC
API NO. 2, LLC
OCMULGEE MEDICAL PATHOLOGY ASSOCIATION, INC.
AMERIPATH CARROLLTON, INC.
GEORGIA PATHOLOGY CONSULANTS OF AMERICA, INC.
AMERIPATH INDIANA, INC.
AMERIPATH KENTUCKY, INC.
PATHSOURCE - NEW ENGLAND, INC.
AMERIPATH MICHIGAN, INC.
AMERIPATH MISSISSIPPI, INC.
R.M.C. PATHOLOGY ASSOCIATES, INC.
PCA OF COLUMBUS, INC.
XXX X. XXXXXX, MD, FCAP, INC.
XXXX X. XXXXXX, XX, MD, FCAP, INC.
PCA SOUTHEAST II, INC.
PCA OF ST. XXXXX XX, INC.
AMERIPATH NEW YORK, INC.
PATHSOURCE, INC.
DERMPATH, INC.
AMERIPATH NORTH CAROLINA, INC.
AMERIPATH OHIO, INC.
AMERIPATH CINCINNATI, INC.
AMERIPATH CLEVELAND, INC.
AMERIPATH P.C.C., INC.
AMERIPATH YOUNGSTOWN, INC.
AMERIPATH YOUNGSTOWN LABS, INC.
DIAGNOSTIC PATHOLOGY MANAGEMENT SERVICES,
INC.
ANATOMIC PATHOLOGY SERVICES, INC.
AMERIPATH PENNSYLVANIA, INC.
AMERIPATH PHILADELPHIA, INC.
TID ACQUISITION CORPORATION
PATHOLOGY CONSULTANTS OF AMERICA, INC.
PCA/APR ACQUISITION CORPORATION
PCA OF NASHVILLE, INC.
PCA OF MEMPHIS, INC.
CPA I, INC.
CPA II, INC.
AMERIPATH 5.01(a) CORPORATION
DFW 5.01(a) CORPORATION
AMERIPATH SAN ANTONIO 5.01(a) CORPORATION
AMERIPATH LUBBOCK 5.01(a) CORPORATION
AMERIPATH TEXARKANA 5.01(A) CORPORATION
AMERIPATH TEXAS, LP
PATHOLOGY AFFILIATED SERVICES, INC.
AMERIPATH XXX, INC.
ARLINGTON PATHOLOGY ASSOCIATION 5.01(A)
CORPORATION
XXXXXXX PATHOLOGY 5.01(A) CORPORATION
AMERIPATH VIRGINIA, INC.
AMERIPATH WISCONSIN, INC.
By ________________________________
Authorized officer of each of the foregoing
corporations
FLEET NATIONAL BANK, as Agent
By ________________________________
FLEET NATIONAL BANK, as Lender
By ________________________________
Title:
BANK OF AMERICA, N.A.
as Lender and Syndication Agent
By ________________________________
Title:
BANK ONE, NA, as Lender and Co-Agent
By ________________________________
Title:
FIRST UNION NATIONAL BANK, as Lender and
Co-Agent
By ________________________________
Title:
CITIZENS BANK OF MASSACHUSETTS, a
Successor to US Trust
By ________________________________
Title:
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.
By ________________________________
Title:
By ________________________________
Title:
SUNTRUST BANK NATIONAL ASSOCIATION
By ________________________________
Title:
U.S. BANK NATIONAL ASSOCIATION
By ________________________________
Title:
AMSOUTH BANK
By ________________________________
Title:
IMPERIAL BANK
By ________________________________
Title:
BANKATLANTIC
By ________________________________
Title:
CITICORP USA, INC. as Lender and
Documentation Agent
By ________________________________
Title:
CREDIT SUISSE FIRST BOSTON
By ________________________________
Title:
By ________________________________
Title:
EXHIBIT 1
---------------------------------------------------------------------------------------------------------------------------------
Ratio of Consolidated Total Debt to Interest Rate on Portions Interest Rate on Portions
Consolidated Adjusted EBITDA for the of Revolving Loan Subject of Revolving Loan Not Applicable Commitment
Levels most recently completed four fiscal to LIBOR Pricing Options Subject to LIBOR Fee Rate
quarters Pricing Option
---------------------------------------------------------------------------------------------------------------------------------
Level I Greater than 2.0 to 1 but less than or LIBOR Rate plus 2.375% Base Rate plus 1.375% 0.50%
---- ----
equal to 2.5 to 1
---------------------------------------------------------------------------------------------------------------------------------
Level II Less than or equal to 2.0 to 1 LIBOR Rate plus 2.125% Base Rate plus 1.125% 0.375%
---- ----
---------------------------------------------------------------------------------------------------------------------------------
-1-
Exhibit 2.2.3
NON-NEGOTIABLE SWINGLINE NOTE
No. ___ _______________, 199_
Boston, Massachusetts
FOR VALUE RECEIVED, the undersigned AmeriPath, Inc., a Delaware
corporation, (the "Borrower") hereby promises to pay to FLEET NATIONAL BANK,
--------
(the "Holder") or order, on the Final Maturity Date (as defined in the Credit
------
Agreement referred to below) the aggregate unpaid Swingline Loan made to the
Borrower by the Holder, with daily interest from the date hereof, computed as
provided in the Credit Agreement, on the principal amount of such Swingline Loan
from time to time unpaid at a rate per annum on each portion of the principal
amount which shall at all times equal the Swingline Rate (as defined in the
Credit Agreement) applicable to such portion in accordance with the Credit
Agreement. Interest shall be payable on the dates specified in the Credit
Agreement, except that all accrued interest shall be paid at the stated or
accelerated maturity hereof or upon the prepayment in full hereof.
Payments hereunder shall be made to Fleet National Bank, as Agent for the
payee hereof, at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
This Note evidences the Swingline Loan under and is entitled to the
benefits and subject to the provisions of the Credit Agreement dated as of May
29, 1996, as amended and restated as of December 16, 1999, as from time to time
in effect (the "Credit Agreement"), among AmeriPath, Inc., certain of its
Subsidiaries from time to time party thereto, Fleet National Bank, and certain
Lenders for which Fleet National Bank, is acting as Agent. The principal of
this Note may be due and payable in whole or in part prior to the maturity date
stated above and is subject to required prepayment in the amounts and under the
circumstances set forth in the Credit Agreement, and may be prepaid in whole or
from time to time in part, all as set forth in the Credit Agreement. Amounts so
prepaid may be reborrowed by the Borrower in accordance with and subject to the
terms of the Credit Agreement. This Note may not be assigned or otherwise
transferred except in accordance with the Credit Agreement. Terms defined in
the Credit Agreement are used herein with the meanings so defined.
In case an Event of Default (as defined in the Credit Agreement) shall
occur, the entire principal amount of this Note may become or be declared due
and payable in the manner and with the effect provided in the Credit Agreement.
This Note shall be governed by and construed in accordance with the laws
(other than the conflict of laws rules) of The Commonwealth of Massachusetts.
The undersigned maker and all guarantors and endorsers, hereby waive
presentment, demand, notice, protest and all other demands and notices in
connection with the delivery, acceptance, performance and enforcement of this
Note, except as specifically otherwise provided
-1-
in the Credit Agreement, and assent to extensions of time of payment or
forbearance or other indulgence without notice.
AMERIPATH, INC.
By__________________________
Title:
-2-
Exhibit 12.1
LENDERS AND PERCENTAGE INTERESTS
--------------------------------
Revolving Loan
--------------
------------------------------------------------------------------------------------------
Lender Commitment Percentage
------ ---------- ----------
Interest
--------
------------------------------------------------------------------------------------------
Fleet National Bank, Administrative Agent $ 50,000,000 17.69911
------------------------------------------------------------------------------------------
Bank of America, N.A., Syndication Agent 40,000,000 14.15929
------------------------------------------------------------------------------------------
Citicorp USA, Inc. Documentation Agent 37,500,000 13.27433
------------------------------------------------------------------------------------------
Bank One, NA Co-Agent 25,000,000 8.84955
------------------------------------------------------------------------------------------
First Union National Bank, Co-Agent 25,000,000 8.84955
------------------------------------------------------------------------------------------
USTrust 17,500,000 6.19469
------------------------------------------------------------------------------------------
Bank Austria Creditanstalt Corporate Finance, Inc. 15,000,000 5.30973
------------------------------------------------------------------------------------------
Credit Suisse First Boston 15,000,000 5.30973
------------------------------------------------------------------------------------------
SunTrust Bank, Central Florida, National Association 15,000,000 5.30973
------------------------------------------------------------------------------------------
U.S. Bank National Association 15,000,000 5.30973
------------------------------------------------------------------------------------------
AmSouth Bank 10,000,000 3.53982
------------------------------------------------------------------------------------------
Imperial Bank 10,000,000 3.53982
------------------------------------------------------------------------------------------
BankAtlantic 7,500,000 2.65486
------------------------------------------------------------------------------------------
Total $282,500,000 100%
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-1-
