Exhibit 10.1
CREDIT AGREEMENT
among
QUEST DIAGNOSTICS INCORPORATED
as Borrower,
AND
CERTAIN SUBSIDIARIES OF THE BORROWER
as Guarantors,
AND
THE LENDERS IDENTIFIED HEREIN,
AND
BANK OF AMERICA, N.A.,
as Administrative Agent
AND
UBS AG, STAMFORD BRANCH and XXXXXXX XXXXX CAPITAL CORPORATION
as Co-Syndication Agents
AND
CREDIT SUISSE FIRST BOSTON and THE BANK OF NEW YORK
As Co-Documentation Agents
AND
WACHOVIA BANK, N.A.
As Managing Agent
DATED AS OF JUNE 27, 0000
XXXX XX XXXXXXX SECURITIES LLC
AND
UBS WARBURG LLC
as Joint Book Managers and Co-Lead Arrangers
TABLE OF CONTENTS
SECTION 1 DEFINITIONS AND ACCOUNTING TERMS.......................................................................1
1.1 Definitions.......................................................................................1
1.2 Computation of Time Periods and Other Definitional Provisions....................................25
1.3 Accounting Terms/Calculation of Financial Covenants..............................................25
1.4 Time.............................................................................................26
SECTION 2 CREDIT FACILITIES.....................................................................................26
2.1 Revolving Loans..................................................................................26
2.2 Letter of Credit Subfacility.....................................................................28
2.3 Swing Line Loans Subfacility.....................................................................33
2.4 Competitive Bid Loans Subfacility................................................................35
2.5 Term Loans.......................................................................................37
2.6 Continuations and Conversions....................................................................38
2.7 Minimum Amounts..................................................................................39
SECTION 3 GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF CREDIT..........................................39
3.1 Interest.........................................................................................39
3.2 Place and Manner of Payments.....................................................................40
3.3 Prepayments......................................................................................40
3.4 Fees.............................................................................................41
3.5 Payment in full at Maturity......................................................................42
3.6 Computations of Interest and Fees................................................................42
3.7 Pro Rata Treatment...............................................................................43
3.8 Sharing of Payments..............................................................................44
3.9 Capital Adequacy/Regulation D....................................................................45
3.10 Inability To Determine Interest Rate.............................................................46
3.11 Illegality.......................................................................................46
3.12 Requirements of Law..............................................................................47
3.13 Taxes............................................................................................47
3.14 Compensation.....................................................................................50
3.15 Determination and Survival of Provisions.........................................................51
3.16 Notification by Lenders..........................................................................51
3.17 Mitigation; Mandatory Assignment.................................................................51
SECTION 4 GUARANTY..............................................................................................52
4.1 Guaranty of Payment..............................................................................52
4.2 Obligations Unconditional........................................................................52
4.3 Modifications....................................................................................53
4.4 Waiver of Rights.................................................................................53
4.5 Reinstatement....................................................................................53
4.6 Remedies.........................................................................................54
4.7 Limitation of Guaranty...........................................................................54
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4.8 Rights of Contribution...........................................................................54
4.9 Release of Guarantors............................................................................54
SECTION 5 CONDITIONS PRECEDENT..................................................................................55
5.1 Closing Conditions...............................................................................55
5.2 Conditions to All Extensions of Credit...........................................................57
SECTION 6 REPRESENTATIONS AND WARRANTIES........................................................................58
6.1 Organization and Good Standing...................................................................58
6.2 Due Authorization................................................................................58
6.3 Enforceable Obligations..........................................................................58
6.4 No Conflicts.....................................................................................58
6.5 Consents.........................................................................................59
6.6 Financial Condition..............................................................................59
6.7 No Material Change...............................................................................59
6.8 Disclosure.......................................................................................59
6.9 No Default.......................................................................................60
6.10 Litigation.......................................................................................60
6.11 Taxes............................................................................................60
6.12 Compliance with Law..............................................................................60
6.13 Licensing and Accreditation......................................................................61
6.14 Title to Properties, Liens.......................................................................61
6.15 Insurance........................................................................................61
6.16 Use of Proceeds..................................................................................61
6.17 Government Regulation............................................................................61
6.18 ERISA............................................................................................62
6.19 Environmental Matters............................................................................63
6.20 Intellectual Property............................................................................64
6.21 Subsidiaries.....................................................................................64
6.22 Solvency.........................................................................................65
SECTION 7 AFFIRMATIVE COVENANTS.................................................................................65
7.1 Information Covenants............................................................................65
7.2 Financial Covenants..............................................................................68
7.3 Preservation of Existence and Franchises.........................................................68
7.4 Books and Records................................................................................68
7.5 Compliance with Law..............................................................................68
7.6 Payment of Taxes and Other Indebtedness..........................................................69
7.7 Insurance........................................................................................69
7.8 Maintenance of Property..........................................................................69
7.9 Performance of Obligations.......................................................................70
7.10 Use of Proceeds..................................................................................70
7.11 Audits/Inspections...............................................................................70
7.12 Additional Credit Parties........................................................................70
7.13 Credit Party Revenues............................................................................71
7.14 Compliance Program...............................................................................71
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SECTION 8 NEGATIVE COVENANTS....................................................................................71
8.1 Indebtedness.....................................................................................72
8.2 Liens............................................................................................72
8.3 Nature of Business...............................................................................73
8.4 Consolidation and Merger.........................................................................73
8.5 Sale or Lease of Assets..........................................................................73
8.6 Investments......................................................................................74
8.7 Transactions with Affiliates.....................................................................74
8.8 Fiscal Year; Accounting; Organizational Documents................................................74
8.9 Stock Repurchases................................................................................75
8.10 Sale/Leasebacks..................................................................................75
SECTION 9 EVENTS OF DEFAULT.....................................................................................76
9.1 Events of Default................................................................................76
9.2 Acceleration; Remedies...........................................................................78
9.3 Allocation of Payments After Event of Default....................................................79
SECTION 10 AGENCY PROVISIONS....................................................................................80
10.1 Appointment......................................................................................80
10.2 Delegation of Duties.............................................................................81
10.3 Exculpatory Provisions...........................................................................81
10.4 Reliance on Communications.......................................................................82
10.5 Notice of Default................................................................................82
10.6 Non-Reliance on Administrative Agent and Other Lenders...........................................83
10.7 Indemnification..................................................................................83
10.8 Administrative Agent in Its Individual Capacity..................................................84
10.9 Successor Agent..................................................................................84
SECTION 11 MISCELLANEOUS........................................................................................85
11.1 Notices..........................................................................................85
11.2 Right of Set-Off.................................................................................85
11.3 Benefit of Agreement.............................................................................86
11.4 No Waiver; Remedies Cumulative...................................................................89
11.5 Payment of Expenses; Indemnification.............................................................89
11.6 Amendments, Waivers and Consents.................................................................90
11.7 Counterparts/Telecopy............................................................................91
11.8 Headings.........................................................................................91
11.9 Defaulting Lender................................................................................91
11.10 Survival of Indemnification......................................................................91
11.11 Governing Law; Venue; Jurisdiction...............................................................91
11.12 Waiver of Jury Trial; Waiver of Consequential Damages............................................92
11.13 Severability.....................................................................................92
11.14 Further Assurances...............................................................................92
11.15 Confidentiality..................................................................................92
11.16 Entirety.........................................................................................93
11.17 Binding Effect; Continuing Agreement.............................................................93
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SCHEDULES
Schedule 1.1(a) Commitment Percentages/Lending Offices
Schedule 2.2(c) Existing Letters of Credit
Schedule 6.7 Material Changes
Schedule 6.10 Litigation
Schedule 6.21 Subsidiaries
Schedule 8.1 Indebtedness
Schedule 8.2 Liens
Schedule 8.6 Investments
Schedule 8.7 Affiliate Transactions
Schedule 11.1 Notices
EXHIBITS
Exhibit 2.1(b) Form of Notice of Borrowing
Exhibit 2.1(e) Form of Revolving Note
Exhibit 2.3(b) Form of Swing Line Loan Request
Exhibit 2.3(d) Form of Swing Line Note
Exhibit 2.4(b) Form of Competitive Bid Request
Exhibit 2.4(g) Form of Competitive Bid Loan Note
Exhibit 2.5(d) Form of Term Note
Exhibit 2.6 Form of Notice of Continuation/Conversion
Exhibit 7.1(c) Form of Officer's Certificate
Exhibit 7.12 Form of Joinder Agreement
Exhibit 11.3(b) Form of Assignment Agreement
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT (this "Credit Agreement"), is entered into as of
June 27, 2001 among QUEST DIAGNOSTICS INCORPORATED, a Delaware corporation (the
"Borrower"), certain of the Subsidiaries of the Borrower (individually a
"Guarantor" and collectively the "Guarantors"), the Lenders (as defined herein),
and BANK OF AMERICA, N.A., as Administrative Agent for the Lenders and as
Issuing Lender.
RECITALS
WHEREAS, the Borrower and the Guarantors have requested the Lenders to
provide a senior credit facility to the Borrower in an aggregate principal
amount of up to $500,000,000; and
WHEREAS, the Lenders party hereto have agreed to make the requested
senior credit facility available to the Borrower on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS AND ACCOUNTING TERMS
1.1 Definitions.
As used herein, the following terms shall have the meanings herein
specified unless the context otherwise requires. Defined terms herein shall
include in the singular number the plural and in the plural the singular:
"Acquisition" means the acquisition by any Person of (a) more
than 50% of the Capital Stock of another Person, (b) all or
substantially all of the assets of another Person or (c) all or
substantially all of a line of business of another Person, in each case
whether or not involving a merger or consolidation with such other
Person.
"Additional Credit Party" means each Person that becomes a
Guarantor after the Closing Date, as provided in Section 7.12 or
otherwise.
"Adjusted Eurodollar Rate" means the Eurodollar Rate plus the
Applicable Percentage.
"Administrative Agent" means Bank of America, N.A. (or any
successor thereto) or any successor administrative agent appointed
pursuant to Section 10.9.
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly controlling (including but not limited to
all directors and officers of such Person), controlled by or under
direct or indirect common control with such Person. A Person shall be
deemed to control a corporation if such Person possesses, directly or
indirectly, the power (a) to vote 10% or more of the securities having
ordinary voting power for the election of directors of such corporation
or (b) to direct or cause direction of the management and policies of
such corporation, whether through the ownership of voting securities,
by contract or otherwise.
"Agency Services Address" means Bank of America, N.A.,
NC1-001-15-04, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
Attn: Agency Services, Attn: Credit Services, or such other address as
may be identified by written notice from the Administrative Agent to
the Borrower.
"Agent-Related Person" means the Administrative Agent
(including any successor administrative agent), together with its
Affiliates (including, in the case of Bank of America in its capacity
as the Administrative Agent, BAS), and their respective officers,
directors, employees, agents, counsel and attorneys-in-fact.
"Agents" means Bank of America N.A., in its capacity as
Administrative Agent, UBS AG, Stamford Branch in its capacity as
Co-Syndication Agent, Xxxxxxx Xxxxx in its capacity as Co-Syndication
Agent, Credit Suisse First Boston in its capacity as Co-Documentation
Agent, The Bank of New York in its capacity as Co-Documentation Agent,
and Wachovia Bank, N.A. in its capacity as Managing Agent.
"Applicable Percentage" means the appropriate applicable
percentages corresponding to the Debt Rating of the Borrower in effect
from time to time as described below:
============================================================================================================
Applicable Applicable
Percentage for Percentage for Applicable Applicable
Pricing Revolving Loans Term Loans that Percentage for Percentage
Level Debt Rating that are are Eurodollar Letter of for
Eurodollar Loans Loans Credit Fees Facility Fee
------------------------------------------------------------------------------------------------------------
I (>)BBB+ from S&P/ .72% .875% .72% .1550%
-
(>)Baa1 from Moody's
-
------------------------------------------------------------------------------------------------------------
II (>)BBB but (<)BBB+ from S&P/ .9375% 1.1875% .9375% .2500%
-
(>)Baa2 but (<)Baa1 from
-
Moody's
------------------------------------------------------------------------------------------------------------
III (>)BBB- but (<)BBB from S&P/ 1.00% 1.3125% 1.00% .3125%
-
(>)Baa3 but (<)Baa2 from
-
Moody's
------------------------------------------------------------------------------------------------------------
IV (>)BB+ but (<)BBB- from S&P/ 1.10% 1.4375% 1.10% .3375%
-
(>)Ba1 but (<)Baa3 from
-
Moody's
------------------------------------------------------------------------------------------------------------
V (<)BB+ or unrated by S&P/ 1.25% 1.6875% 1.25% .4375%
(<)Ba1 or unrated by Moody's
============================================================================================================
The Applicable Percentage for Eurodollar Loans, the Letter of Credit
Fees and the Facility Fees shall, in each case, be determined and
adjusted on the date (each a "Calculation Date") one Business Day after
the date on which the Borrower's Debt Rating is upgraded or downgraded
in a manner which requires a change in the then applicable Pricing
Level set forth above. If at any time there is a split in the
Borrower's Debt Ratings between S&P and Moody's, the Applicable
Percentages shall be determined by the higher of the two Debt Ratings
(i.e. the lower pricing); provided that if the two Debt Ratings are
more than one
2
level apart, the Applicable Percentage shall be based on the Debt
Rating which is one level higher than the lower rating. Each Applicable
Percentage shall be effective from one Calculation Date until the next
Calculation Date. Any adjustment in the Applicable Percentage shall be
applicable to all existing Eurodollar Loans and Letters of Credit as
well as any new Eurodollar Loans made or Letters of Credit issued.
"Attorney Costs" means all reasonable fees and disbursements
of any law firm or other external counsel and the reasonable allocated
cost of internal legal services and all disbursements of internal
counsel.
"Attributable Debt" means, with respect to a Sale and
Leaseback Transaction, an amount equal to the lesser of : (a) the fair
market value of the Principal Property (as determined in good faith by
the Borrower's board of directors); and (b) the present value of the
total net amount of rent payments to be made under the lease during its
remaining term, discounted at the rate of interest set forth or
implicit in the terms of the lease, compounded semi-annually.
"Authorized Officer" means any of the chief executive officer,
president, chief financial officer, corporate controller, treasurer or
assistant treasurer of the Borrower.
"Bank of America" means Bank of America, N.A. or any successor
thereto.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the
United States Code, as amended, modified, succeeded or replaced from
time to time.
"BAS" means Banc of America Securities LLC.
"Base Rate" means, for any day, the rate per annum equal to
the greater of (a) the Federal Funds Rate in effect on such day plus
1/2 of 1% or (b) the Prime Rate in effect on such day. If for any
reason the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error) that it is
unable after due inquiry to ascertain the Federal Funds Rate for any
reason, including the inability or failure of the Administrative Agent
to obtain sufficient quotations in accordance with the terms hereof,
the Base Rate shall be determined without regard to clause (a) of the
first sentence of this definition until the circumstances giving rise
to such inability no longer exist. Any change in the Base Rate due to a
change in the Prime Rate or the Federal Funds Rate shall be effective
at the opening of business on the day specified in the public
announcement of such change.
"Base Rate Loan" means any Revolving Loan or Term Loan bearing
interest at a rate determined by reference to the Base Rate.
"Borrower" means Quest Diagnostics Incorporated, a Delaware
corporation, together with any successors and permitted assigns.
3
"Business Day" means any day other than a Saturday, a Sunday,
a legal holiday or a day on which banking institutions are authorized
or required by law or other governmental action to close in Xxx Xxxx,
Xxx Xxxx xx Xxxxxxxxx, Xxxxx Xxxxxxxx; provided that in the case of
Eurodollar Loans, such day is also a day on which dealings between
banks are carried on in U.S. dollar deposits in the London interbank
market.
"Calculation Date" has the meaning set forth in the definition
of Applicable Percentage.
"CAP" means the College of American Pathologists.
"Capital Expenditures" means all expenditures of the Borrower
and its Subsidiaries on a consolidated basis which, in accordance with
GAAP, would be classified as capital expenditures, including, without
limitation, Capital Leases which would be so classified in accordance
with GAAP.
"Capital Lease" means, as applied to any Person, any lease of
any Property (whether real, personal or mixed) by that Person as lessee
which, in accordance with GAAP, is or should be accounted for as a
capital lease on the balance sheet of that Person and the amount of
such obligation shall be the capitalized amount thereof determined in
accordance with GAAP.
"Capital Stock" means (a) in the case of a corporation, all
classes of capital stock of such corporation, (b) in the case of a
partnership, partnership interests (whether general or limited), (c) in
the case of a limited liability company, membership interests and (d)
any other interest or participation that confers on a Person the right
to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Cash Equivalents" means (a) securities issued or directly and
fully guaranteed or insured by the United States of America or any
agency or instrumentality thereof (provided that the full faith and
credit of the United States of America is pledged in support thereof)
having maturities of not more than eighteen months from the date of
acquisition, (b) Dollar denominated time and demand deposits,
certificates of deposit and banker's acceptances of (i) any Lender,
(ii) any domestic commercial bank having capital and surplus in excess
of $500,000,000 or (iii) any bank whose short-term commercial paper
rating from S&P is at least A-1 or the equivalent thereof or from
Xxxxx'x is at least P-1 or the equivalent thereof (any such bank being
an "Approved Bank"), in each case with maturities of not more than 270
days from the date of acquisition, (c) commercial paper and variable or
fixed rate notes issued by any Approved Bank (or by the parent company
thereof) or any variable rate notes issued by, or guaranteed by, any
domestic corporation rated A-1 (or the equivalent thereof) or better by
S&P or P-1 (or the equivalent thereof) or better by Moody's and
maturing within six months of the date of acquisition, (d) repurchase
agreements with a bank or trust company (including any of the Lenders)
or recognized securities dealer having capital and surplus in excess of
$500,000,000 for direct obligations issued by or fully guaranteed by
the United States of America in which the Borrower shall have a
perfected first priority security interest (subject to no other Liens)
and having, on the date of purchase thereof, a fair market
4
value of at least 100% of the amount of the repurchase obligations, (e)
Investments in tax-exempt municipal bonds rated A (or the equivalent
thereof) or better by S&P or MIG2 (or the equivalent thereof) or better
by Moody's and (f) Investments, classified in accordance with GAAP as
current assets, in money market investment programs registered under
the Investment Company Act of 1940, as amended, which are administered
by reputable financial institutions having capital of at least
$500,000,000 and the portfolios of which are limited to Investments of
the character described in the foregoing subdivisions (a) through (e).
"Cash Interest Expenses" means all Interest Expense actually
paid in cash by the Borrower and its Subsidiaries.
"Cash Taxes" means the total amount of federal, state, foreign
or other income or franchise taxes, paid in cash, of the Borrower and
its Subsidiaries on a consolidated basis.
"CHAMPUS" means the United States Department of Defense
Civilian Health and Medical Program of the United States or any
successor thereto including, without limitation, TRICARE.
"Change of Control" means either of the following events:
(a) any "person" or "group" (within the meaning of
Section 13(d) or 14(d) of the Exchange Act) has become,
directly or indirectly, the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act), by way of
merger, consolidation or otherwise of 35% or more of the
Voting Stock of the Borrower on a fully-diluted basis, after
giving effect to the conversion and exercise of all
outstanding warrants, options and other securities of the
Borrower convertible into or exercisable for Voting Stock of
the Borrower (whether or not such securities are then
currently convertible or exercisable); or
(b) during any period of twelve calendar months,
individuals who at the beginning of such period constituted
the board of directors of the Borrower together with any new
members of such board of directors whose elections by such
board or board of directors or whose nomination for election
by the stockholders of the Borrower was approved by a vote of
a majority of the members of such board of directors then
still in office who either were directors at the beginning of
such period or whose election or nomination for election was
previously so approved cease for any reason to constitute a
majority of the directors of the Borrower then in office.
"CLIA" means the Clinical Laboratory Improvement Act as set
forth at 42 U.S.C. 263a and the regulations promulgated thereunder, as
amended.
"Closing Date" means the date hereof.
5
"Code" means the Internal Revenue Code of 1986 and the rules
and regulations promulgated thereunder, as amended, modified, succeeded
or replaced from time to time.
"Commitments" means (a) the commitment of each Lender with
respect to the Revolving Committed Amount and the Term Loan Committed
Amount, (b) the commitment of the Issuing Lender with respect to the
LOC Commitment and (c) the commitment of the Swing Line Lender with
respect to the Swing Line Committed Amount.
"Competitive Bid" means an offer by a Lender to make a
Competitive Bid Loan pursuant to the terms of Section 2.4.
"Competitive Bid Loan" means a loan made by a Lender in its
discretion pursuant to the provisions of Section 2.4.
"Competitive Bid Loan Notes" means the promissory notes of the
Borrower in favor of each Lender evidencing the Competitive Bid Loans
provided pursuant to Section 2.4, individually or collectively, as
appropriate, as such promissory notes may be amended, modified,
supplemented or replaced from time to time and as evidenced in the form
of Exhibit 2.4(g).
"Competitive Bid Fee" means $1,000 for each Competitive Bid
Request.
"Competitive Bid Rate" means, as to any Competitive Bid made
by a Lender in accordance with the provisions of Section 2.4, the rate
of interest offered by the Lender making the Competitive Bid.
"Competitive Bid Request" means a request by the Borrower for
Competitive Bids in the form of Exhibit 2.4(b).
"Credit Documents" means this Credit Agreement, the Notes, any
Joinder Agreement, the LOC Documents, any Notice of Borrowing, any
Competitive Bid Request and any Swing Line Loan Request.
"Credit Exposure" has the meaning set forth in the definition
of Required Lenders in this Section 1.1.
"Credit Parties" means the Borrower and the Guarantors and
"Credit Party" means any one of them.
"Credit Party Obligations" means, without duplication, all of
the obligations of the Credit Parties to the Lenders (including the
Issuing Lender and the Swing Line Lender) and the Administrative Agent,
whenever arising, under this Credit Agreement, the Notes, or any of the
other Credit Documents.
"Debt Rating" means the long-term senior unsecured, non-credit
enhanced debt rating of the Borrower from S&P and Xxxxx'x.
6
"Default" means any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" means, at any time, any Lender that, (a)
has failed to make a Loan or purchase a Participation Interest required
pursuant to the terms of this Credit Agreement (but only for so long as
such Loan is not made or such Participation Interest is not purchased),
(b) has failed to pay to the Administrative Agent or any Lender an
amount owed by such Lender pursuant to the terms of this Credit
Agreement (but only for so long as such amount has not been repaid) or
(c) has been deemed insolvent or has become subject to a bankruptcy or
insolvency proceeding or to a receiver, trustee or similar official.
"Dividends" means any payment of dividends or any other
distribution upon any shares of any class of Capital Stock of the
Borrower.
"Dollars" and "$" means dollars in lawful currency of the
United States of America.
"Domestic Subsidiary" means each direct and indirect
Subsidiary of the Borrower that is domiciled or organized under the
laws of any State of the United States or the District of Columbia.
"EBITDA" means, for any period, with respect to the Borrower
and its Subsidiaries on a consolidated basis, (a) Net Income for such
period (excluding the effect of any extraordinary or other
non-recurring gains and losses (including any gain or loss from the
sale of Property)) plus (b) an amount which, in the determination of
Net Income for such period, has been deducted for (i) Interest Expense
for such period, (ii) total Federal, state, foreign or other income or
franchise taxes for such period, (iii) all depreciation and
amortization for such period, (iv) other items of expense during such
period that do not involve a cash payment at any time (other than the
provision for bad debt in connection with uncollectible accounts
receivable), (v) cash charges during such period for which the Borrower
and its Subsidiaries are reimbursed by a third party during such period
and (vi) special or restructuring items during any such period included
in Net Income that do not involve a cash payment during such period
(collectively, "Non-Cash Items") minus (c) any actual cash payments
during the applicable period related to Non-Cash Items expensed or
reserved under clause (v) above during an applicable period beginning
after March 31, 2001 plus (d) Tender Costs during such period.
"Effective Date" means the date on which the conditions set
forth in Section 5.1 shall have been fulfilled (or waived in the sole
discretion of the Lenders) and on which the initial Loans shall have
been made and/or the initial Letters of Credit shall have been issued.
"Eligible Assets" means (a) MedPlus and its Subsidiaries and
(b) any assets or any business (or any substantial part thereof) used
or useful in the same or a similar line of business as the Borrower and
its Subsidiaries are engaged on the Closing Date or other
healthcare-related businesses.
7
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a
Lender; and (c) any other Person approved by the Administrative Agent,
the Issuing Lender and the Borrower (such approval not to be
unreasonably withheld or delayed); provided that (i) the Borrower's
consent is not required during the existence and continuation of a
Default or an Event of Default, (ii) approval by the Borrower shall be
deemed given if no objection is received by the assigning Lender and
the Administrative Agent from the Borrower within five Business Days
after notice of such proposed assignment has been delivered to the
Borrower; (iii) neither the Borrower nor an Affiliate of the Borrower
shall qualify as an Eligible Assignee; and (iv) no competitor of the
Borrower shall qualify as an Eligible Assignee.
"Environmental Laws" means any current or future legally
enforceable requirement of any Governmental Authority pertaining to (a)
the protection of the indoor or outdoor environment, (b) the
conservation, management, or use of natural resources and wildlife, (c)
the protection or use of surface water and groundwater or (d) the
management, manufacture, possession, presence, use, generation,
transportation, treatment, storage, disposal, release, threatened
release, abatement, removal, remediation or handling of, or exposure
to, any hazardous or toxic substance or material or (e) pollution
(including any release to land surface water and groundwater) and
includes, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended by the Superfund
Amendments and Reauthorization Act of 1986, 42 USC 9601 et seq., Solid
Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act of 1976 and Hazardous and Solid Waste Amendments of 1984,
42 USC 6901 et seq., Federal Water Pollution Control Act, as amended by
the Clean Water Act of 1977, 33 USC 1251 et seq., Clean Air Act of
1966, as amended, 42 USC 7401 et seq., Toxic Substances Control Act of
1976, 15 USC 2601 et seq., Hazardous Materials Transportation Act, 49
USC App. 1801 et seq., Occupational Safety and Health Act of 1970, as
amended, 29 USC 651 et seq., Oil Pollution Act of 1990, 33 USC 2701 et
seq., Emergency Planning and Community Right-to-Know Act of 1986, 42
USC 11001 et seq., National Environmental Policy Act of 1969, 42 USC
4321 et seq., Safe Drinking Water Act of 1974, as amended, 42 USC
300(f) et seq., any analogous implementing or successor law, and any
amendment, rule, regulation, order, or directive issued thereunder.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute thereto, as interpreted by
the rules and regulations thereunder, all as the same may be in effect
from time to time. References to sections of ERISA shall be construed
also to refer to any successor sections.
"ERISA Affiliate" means an entity, whether or not
incorporated, which is treated as a single employer with the Borrower
or any Subsidiary of the Borrower under Sections 414(b) or (c) of the
Code and solely for purposes of Section 412 of the Code under Section
414(m) of the Code.
"ERISA Event" means (a) with respect to any Single Employer or
Multiple Employer Plan, the occurrence of a Reportable Event or the
substantial cessation of operations (within the meaning of Section
4062(e) of ERISA); (b) the withdrawal of the
8
Borrower, any Subsidiary of the Borrower or any ERISA Affiliate from a
Multiple Employer Plan during a plan year in which it was a substantial
employer (as such term is defined in Section 4001(a)(2) of ERISA), or
the termination of a Multiple Employer Plan; (c) the distribution of a
notice of intent to terminate or the actual termination of a Plan
pursuant to Section 4041(a)(2) or 4041A of ERISA; (d) the institution
of proceedings to terminate or the actual termination of any Plan by
the PBGC under Section 4042 of ERISA; (e) any event or condition which
might constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any
Plan; (f) the complete or partial withdrawal of the Borrower, any
Subsidiary of the Borrower or any ERISA Affiliate from a Multiemployer
Plan or notification that a Multiemployer Plan is in reorganization;
(g) the conditions for imposition of a lien under Section 302(f) of
ERISA exist with respect to any Plan; or (h) the adoption of an
amendment to any Plan requiring the provision of security to such Plan
pursuant to Section 307 of ERISA.
"Eurodollar Loan" means a Loan bearing interest based at a
rate determined by reference to the Eurodollar Rate.
"Eurodollar Rate" means, for the Interest Period for each
Eurodollar Loan comprising part of the same borrowing (including
conversions, extensions and renewals), a per annum interest rate equal
to the London Interbank Offered Rate.
"Eurodollar Reserve Percentage" means, with respect to each
Lender, the percentage (expressed as a decimal) applicable to such
Lender which is in effect from time to time under Regulation D as the
reserve requirement (including, without limitation, any basic,
supplemental, emergency, special, or marginal reserves) applicable with
respect to its Eurocurrency liabilities, as that term is defined in
Regulation D (or against any other category of liabilities that
includes deposits by reference to which the interest rate of Eurodollar
Loans is determined). Eurodollar Loans made by a Lender shall be deemed
to constitute Eurocurrency liabilities and as such shall be deemed
subject to reserve requirements, if applicable, without benefits of
credits for proration, exceptions or offsets that may be available from
time to time to such Lender.
"Event of Default" means any of the events or circumstances
specified in Section 9.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder, as
amended, modified, succeeded or replaced from time to time.
"Existing Credit Agreement" means that certain Credit
Agreement, dated as of August 16, 1999, among the Borrower, as
borrower, the guarantors party thereto, the lenders signatories
thereto, Xxxxxxx Xxxxx & Co. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, as joint lead arranger and syndication agent, BAS as
joint lead arranger, Bank of America, as administrative agent, Wachovia
Bank, N.A., as co-documentation agent, and The Bank of New York, as
co-documentation agent as amended or modified from time to time.
9
"Existing Letters of Credit" means the letters of credit
described on Schedule 2.2(c).
"Existing Senior Subordinated Notes" means those certain 10
3/4% senior subordinated notes due 2006 issued by the Borrower.
"Extension of Credit" means, as to any Lender, the making of a
Loan by such Lender (or a participation therein by a Lender) or the
issuance of, or participation in, a Letter of Credit by such Lender.
"Facility Fees" means the fees payable to the Lenders pursuant
to Section 3.4(a).
"Federal Funds Rate" means for any day the rate per annum
equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such day; provided
that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding
Business Day and (b) if no such rate is so published on such next
preceding Business Day, the Federal Funds Rate for such day shall be
the average rate quoted to the Administrative Agent on such day on such
transactions from three Federal Funds brokers of recognized standing
selected by it.
"Fee Letters" means (a) that certain letter agreement dated as
of May 21, 2001 among the Borrower, BAS, UBS Warburg LLC and the Agents
and (b) that certain letter agreement, dated as of May 21, 2001, among
the Borrower, BAS, UBS Warburg LLC, UBS AG, Stamford Branch and Bank of
America.
"Fixed Charge Coverage Ratio" means, as of the end of each
fiscal quarter of the Credit Parties for the twelve month period ending
on such date, with respect to the Borrower and its Subsidiaries on a
consolidated basis, the ratio of (a) the sum of (i) EBITDA for such
period minus (ii) Capital Expenditures for such period minus (iii) Cash
Taxes for such period to (b) the sum of (i) Cash Interest Expense for
such period plus (ii) Scheduled Funded Debt Payments, after giving
effect to any reductions arising from voluntary prepayments previously
made, for such period, plus (iii) cash Dividends for such period.
"Foreign Subsidiary" means any Subsidiary of the Borrower that
is not a Domestic Subsidiary.
"Funded Debt" means, without duplication, the sum of (a) all
Indebtedness of the Borrower and its Subsidiaries for borrowed money,
(b) all purchase money Indebtedness of the Borrower and its
Subsidiaries, (c) the principal portion of all obligations of the
Borrower and its Subsidiaries under Capital Leases, (d) all drawn but
unreimbursed amounts under all letters of credit (other than letters of
credit supporting trade payables in the ordinary course of business)
issued for the account of the Borrower or any of its Subsidiaries, (e)
all Funded Debt of another Person secured by a Lien on any Property of
the Borrower and its
10
Subsidiaries whether or not such Funded Debt has been assumed by a
Borrower or any of its Subsidiaries, (f) all Funded Debt of any
partnership or unincorporated joint venture to the extent the Borrower
or one of its Subsidiaries is legally obligated with respect thereto
and (g) the amount of principal attributable under any outstanding
Synthetic Lease. It is understood and agreed that Indebtedness incurred
pursuant to Hedging Agreements is not Funded Debt.
"GAAP" means generally accepted accounting principles in the
United States applied on a consistent basis and subject to Section 1.3.
"Governmental Authority" means any Federal, state, local,
provincial or foreign court or governmental agency, authority,
instrumentality or regulatory body.
"Guarantor" means each of the Material Domestic Subsidiaries
of the Borrower, any other Subsidiary of the Borrower that guaranties
the Senior Unsecured Notes and each Additional Credit Party, together
with their successors and assigns.
"Guaranty" means the guaranty of the Credit Party Obligations
provided by the Guarantors pursuant to Section 4.
"Guaranty Obligations" means, with respect to any Person,
without duplication, any obligations (other than endorsements in the
ordinary course of business of negotiable instruments for deposit or
collection) guaranteeing any Indebtedness of any other Person in any
manner, whether direct or indirect, and including without limitation
any obligation, whether or not contingent, (a) to purchase any such
Indebtedness or other obligation or any Property constituting security
therefor, (b) to advance or provide funds or other support for the
payment or purchase of such Indebtedness or obligation or to maintain
working capital, solvency or other balance sheet condition of such
other Person (including, without limitation, maintenance agreements,
comfort letters, take or pay arrangements, put agreements or similar
agreements or arrangements) for the benefit of the holder of
Indebtedness of such other Person, (c) to lease or purchase Property,
securities or services primarily for the purpose of assuring the owner
of such Indebtedness or (d) to otherwise assure or hold harmless the
owner of such Indebtedness or obligation against loss in respect
thereof. The amount of any Guaranty Obligation hereunder shall (subject
to any limitations set forth therein) be deemed to be an amount equal
to the outstanding principal amount (or maximum principal amount, if
larger) of the Indebtedness in respect of which such Guaranty
Obligation is made.
"Hazardous Materials" means any substance, material or waste
defined in or regulated under any Environmental Laws.
"HCFA" means the United States Health Care Financing
Administration and any successor thereto.
"Hedging Agreements" means, collectively, interest rate
protection agreements, foreign currency exchange agreements, commodity
purchase or option agreements or other
11
interest or exchange rate or commodity price hedging agreements, in
each case, entered into or purchased by a Credit Party.
"Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money, (b) all obligations
of such Person evidenced by bonds, debentures, notes or similar
instruments, or upon which interest payments are customarily made, (c)
all obligations of such Person under conditional sale or other title
retention agreements relating to Property purchased by such Person to
the extent of the value of such Property (other than customary
reservations or retentions of title under agreements with suppliers
entered into in the ordinary course of business), (d) all obligations,
other than intercompany items, of such Person issued or assumed as the
deferred purchase price of property or services purchased by such
Person which would appear as liabilities on a balance sheet of such
Person, (e) all Indebtedness of others secured by (or for which the
holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on, or payable out of the
proceeds of production from, property owned or acquired by such Person,
whether or not the obligations secured thereby have been assumed, (f)
all Guaranty Obligations of such Person, (g) the principal portion of
all obligations of such Person under (i) Capital Leases and (ii) any
synthetic lease, tax retention operating lease, off-balance sheet loan
or similar off-balance sheet financing product of such Person where
such transaction is considered borrowed money indebtedness for tax
purposes but is classified as an operating lease in accordance with
GAAP, (h) all obligations of such Person to repurchase any securities
which repurchase obligation is related to the issuance thereof,
including, without limitation, obligations commonly known as residual
equity appreciation potential shares, (i) all net obligations of such
Person in respect of Hedging Agreements, (j) the maximum amount of all
performance and standby letters of credit issued or bankers'
acceptances facilities created for the account of such Person and,
without duplication, all drafts drawn thereunder (to the extent
unreimbursed), and (k) the aggregate amount of uncollected accounts
receivable of such Person subject at such time to a sale of receivables
(or similar transaction) regardless of whether such transaction is
effected without recourse to such Person or in a manner that would not
be reflected on the balance sheet of such Person in accordance with
GAAP. The Indebtedness of any Person shall include the Indebtedness of
any partnership or unincorporated joint venture in which such Person is
legally obligated.
"Indemnified Liabilities" has the meaning set forth in Section
11.5.
"Intellectual Property" has the meaning set forth in Section
6.20.
"Interest Expense" means, for any period, with respect to the
Borrower and its Subsidiaries on a consolidated basis, all interest
expense, including, without duplication, the interest component under
Capital Leases, as determined in accordance with GAAP.
"Interest Payment Date" means (a) as to Base Rate Loans and
Swing Line Loans, the last day of each calendar quarter and the
Maturity Date, (b) as to Eurodollar Loans, the last day of each
applicable Interest Period and the Maturity Date and in addition, where
the applicable Interest Period for a Eurodollar Loan is greater than
three months, then also the date three months from the beginning of the
Interest Period and each three months thereafter
12
and (c) as to Competitive Bid Loans, on the last day of the Interest
Period for each Competitive Bid Loan and on the Maturity Date. If an
Interest Payment Date falls on a date which is not a Business Day, such
Interest Payment Date shall be deemed to be the next succeeding
Business Day, except that in the case of Eurodollar Loans where the
next succeeding Business Day falls in the next succeeding calendar
month, then on the next preceding Business Day.
"Interest Period" means (a) as to Eurodollar Loans, a period
of one, two, three or six months' duration, as the Borrower may elect,
commencing, in each case, on the date of the borrowing (including
continuations and conversions thereof) and (b) as to Competitive Bid
Loans, a period beginning on the date the Competitive Bid Loan is made
and ending on the date specified in the respective Competitive Bid
whereby the offer to make the Competitive Loan was extended, which
shall not be less than 14 days nor more than 180 days duration;
provided, however, (i) if any Interest Period would end on a day which
is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day (except that where the next succeeding
Business Day falls in the next succeeding calendar month, then on the
next preceding Business Day), (ii) no Interest Period shall extend
beyond the Maturity Date and (iii) where an Interest Period begins on a
day for which there is no numerically corresponding day in the calendar
month in which the Interest Period is to end, such Interest Period
shall end on the last Business Day of such calendar month.
"Investment" in any Person means (a) the acquisition (whether
for cash, property, services, assumption of Indebtedness, securities or
otherwise) of assets, shares of Capital Stock, bonds, notes,
debentures, partnership, joint ventures or other ownership interests or
other securities of such other Person or (b) any deposit with, or
advance, loan or other extension of credit to, such Person (other than
deposits or advances made in connection with the purchase of equipment
or other assets or services in the ordinary course of business) or (c)
any other capital contribution to or investment in such Person,
including, without limitation, any Guaranty Obligation (including any
support for a letter of credit issued on behalf of such Person)
incurred for the benefit of such Person.
"Issuing Lender" means Bank of America.
"Issuing Lender Fees" has the meaning set forth in Section
3.4(b)(ii).
"Joinder Agreement" means a Joinder Agreement substantially in
the form of Exhibit 7.12.
"Lender" means any of the Persons identified as a "Lender" on
the signature pages hereto, and any Eligible Assignee which may become
a Lender by way of assignment in accordance with the terms hereof,
together with their successors and permitted assigns.
"Lending Office" means, as to any Lender, the office or
offices of such Lender described as such on Schedule 1.1(a), or such
other office or offices as a Lender may from time notify to the
Borrower and the Administrative Agent.
13
"Letter of Credit" means any letter of credit issued for the
account of the Borrower by the Issuing Lender pursuant to Section 2.2,
as such letter of credit may be amended, modified, extended, renewed or
replaced.
"Letter of Credit Fees" has the meaning set forth in Section
3.4(b)(i).
"Leverage Ratio" means, as of the last day of each fiscal
quarter, the ratio of (a) (i) Funded Debt on such date less (ii) if no
Loans, other than Term Loans, are outstanding on such date, the amount
of Available Cash (as defined below) on such date to (b) EBITDA for the
twelve month period ending on such date. For the purposes hereof,
"Available Cash" means all cash and Cash Equivalents of the Borrower
and its Subsidiaries located in the United States and reflected on its
consolidated balance sheet in excess of $40,000,000.
"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, security interest, encumbrance, lien (statutory or
otherwise), preference, priority or charge of any kind, including,
without limitation, any agreement to give any of the foregoing, any
conditional sale or other title retention agreement, and any lease in
the nature thereof (other than operating leases).
"Loan" or "Loans" means the Revolving Loans, the Term Loans,
the Competitive Bid Loans and the Swing Line Loans (or any portion
thereof), individually or collectively, as appropriate.
"LOC Commitment" means the commitment of the Issuing Lender to
issue Letters of Credit for the account of the Borrower in an aggregate
face amount outstanding (together with the amounts of any unreimbursed
drawings thereon) at any time of up to the LOC Committed Amount.
"LOC Committed Amount" means ONE HUNDRED MILLION DOLLARS
($100,000,000).
"LOC Documents" means, with respect to any Letter of Credit,
such Letter of Credit, any amendments thereto, any documents delivered
in connection therewith, any application therefor, and any agreements,
instruments, guarantees or other documents (whether general in
application or applicable only to such Letter of Credit) governing or
providing for (a) the rights and obligations of the parties concerned
or at risk or (b) any collateral security for such obligations.
"LOC Obligations" means, at any time, the sum of (a) the
maximum amount which is, or at any time thereafter may become,
available to be drawn under Letters of Credit then outstanding,
assuming compliance with all requirements for drawings referred to in
such Letters of Credit plus (b) the aggregate amount of all drawings
under Letters of Credit honored by the Issuing Lender but not
theretofore reimbursed.
14
"London Interbank Offered Rate" means, with respect to any
Eurodollar Loan for the Interest Period applicable thereto, the rate of
interest per annum appearing on Telerate Page 3750 (or any successor
page) as the London interbank offered rate for deposits in Dollars at
approximately 11:00 A.M. (London time) two Business Days prior to the
first day of such Interest Period for a term comparable to such
Interest Period; provided, however, if more than one rate is specified
on Telerate Page 3750, the applicable rate shall be the arithmetic mean
of all such rates. If, for any reason, such rate is not available, the
term "London Interbank Offered Rate" shall mean, with respect to any
Eurodollar Loan for the Interest Period applicable thereto, the rate of
interest per annum appearing on Reuters Screen LIBO Page as the London
interbank offered rate for deposits in Dollars at approximately 11:00
A.M. (London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period;
provided, however, if more than one rate is specified on Reuters Screen
LIBO Page, the applicable rate shall be the arithmetic mean of all such
rates.
"Mandatory Borrowing" has the meaning set forth in Section
2.2(e).
"Material Adverse Effect" means a material adverse effect on
(a) the business, operations or financial condition of the Borrower and
its Subsidiaries taken as a whole, (b) the ability of a Credit Party to
perform its obligations under this Credit Agreement or any of the other
Credit Documents, or (c) the validity or enforceability of this Credit
Agreement, any of the other Credit Documents, or the rights and
remedies of the Lenders hereunder or thereunder taken as a whole.
"Material Domestic Subsidiary" means any wholly-owned Domestic
Subsidiary of the Borrower that, directly or indirectly, (a) owns
assets in excess of $20,000,000 or (b) has annual revenues, as of the
most recently ended fiscal year of the Borrower, in excess of two
percent (2%) of the total revenues of the Borrower and its Subsidiaries
on a consolidated basis; provided that Quest Receivables shall not be
deemed to be a Material Domestic Subsidiary.
"Maturity Date" means June 27, 2006.
"Medicaid" shall mean that entitlement program under Title XIX
of the Social Security Act that provides federal grants to states for
medical assistance based on specific eligibility criteria.
"Medicaid Provider Agreement" means an agreement entered into
between a state agency or other such entity administering the Medicaid
program and a health care provider or supplier under which the health
care provider or supplier agrees to provide services for Medicaid
patients in accordance with the terms of the agreement and Medicaid
Regulations.
"Medicaid Regulations" means, collectively, (a) all federal
statutes (whether set forth in Title XIX of the Social Security Act or
elsewhere) affecting the medical assistance program established by
Title XIX of the Social Security Act and any statutes
15
succeeding thereto; (b) all applicable provisions of all federal rules,
regulations, manuals and orders of all Governmental Authorities
promulgated pursuant to or in connection with the statutes described in
clause (a) above and all federal administrative, reimbursement and
other guidelines of all Governmental Authorities having the force of
law promulgated pursuant to or in connection with the statutes
described in clause (a) above; (c) all state statutes and plans for
medical assistance enacted in connection with the statutes and
provisions described in clauses (a) and (b) above; and (d) all
applicable provisions of all rules, regulations, manuals and orders of
all Governmental Authorities promulgated pursuant to or in connection
with the statutes described in clause (c) above and all state
administrative, reimbursement and other guidelines of all Governmental
Authorities having the force of law promulgated pursuant to or in
connection with the statutes described in clause (b) above, in each
case as may be amended, supplemented or otherwise modified from time to
time.
"Medical Reimbursement Programs" shall mean Medicare,
Medicaid, CHAMPUS and TRICARE programs and any other healthcare program
operated by or financed in whole or in part by any foreign, domestic,
federal, state or local government and any other non-government funded
third party payor programs.
"Medicare Provider Agreement" means an agreement entered into
between HCFA or other such entity administering the Medicare program on
behalf of the HCFA, and a health care provider or supplier under which
the health care provider or supplier agrees to provide services for
Medicare patients in accordance with the terms of the agreement and
Medicare Regulations.
"Medicare" shall mean that government-sponsored entitlement
program under Title XVIII of the Social Security Act that provides for
a health insurance system for eligible elderly and disabled
individuals.
"Medicare Regulations" shall mean, collectively, all Federal
statutes (whether set forth in Title XVIII of the Social Security Act
or elsewhere) affecting the health insurance program for the aged and
disabled established by Title XVIII of the Social Security Act and any
statutes succeeding thereto; together with all applicable provisions of
all rules, regulations, manuals and orders and administrative,
reimbursement and other guidelines having the force of law of all
Governmental Authorities (including, without limitation, the United
States Department of Health and Human Services ("HHS"), HCFA, the OIG,
or any person succeeding to the functions of any of the foregoing)
promulgated pursuant to or in connection with any of the foregoing
having the force of law, as each may be amended, supplemented or
otherwise modified from time to time.
"MedPlus" means MedPlus, Inc., an Ohio corporation.
"Moody's" means Xxxxx'x Investors Service, Inc., or any
successor or assignee of the business of such company in the business
of rating securities.
16
"Multiemployer Plan" means a Plan which is a multiemployer
plan as defined in Sections 3(37) or 4001(a)(3) of ERISA.
"Multiple Employer Plan" means a Plan covered by Title IV of
ERISA (other than a Multiemployer Plan) in which the Borrower, any
Subsidiary of the Borrower or any ERISA Affiliate and at least one
employer other than the Borrower, any Subsidiary of the Borrower or any
ERISA Affiliate are contributing sponsors.
"Net Income" means, for any period, the net income after taxes
for such period of the Borrower and its Subsidiaries on a consolidated
basis, as determined in accordance with GAAP.
"Non-Cash Items" has the meaning set forth in the definition
of EBITDA in Section 1.1
"Non-Material Domestic Subsidiary" means any wholly-owned
Domestic Subsidiary that is not a Guarantor other than Quest
Receivables.
"Note" or "Notes" means the Revolving Notes, the Term Notes,
the Competitive Bid Loan Notes and the Swing Line Loan Note,
individually or collectively, as appropriate.
"Notice of Borrowing" means a request by the Borrower for a
Loan, in the form of Exhibit 2.1(b).
"Notice of Continuation/Conversion" means a request by the
Borrower to continue an existing Eurodollar Loan to a new Interest
Period or to convert a Eurodollar Loan to a Base Rate Loan or a Base
Rate Loan to a Eurodollar Loan, in the form of Exhibit 2.3.
"OIG" means the Office of Inspector General of the United
States Department of Health and Human Services.
"Participants" means Lenders with a Revolving Loan Commitment
Percentage greater than zero.
"Participation Interest" means the Extension of Credit by a
Lender by way of a purchase of a participation in (a) Letters of Credit
or LOC Obligations as provided in Section 2.2, (b) Swing Line Loans as
provided in Section 2.3 or (c) any Loans as provided in Section 3.8.
"PBGC" means the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA and any
successor thereto.
"Permitted Acquisition" means an Acquisition by the Borrower
or any of its Subsidiaries; provided that (a) substantially all of the
Property acquired (or the Property of the Person acquired) in such
Acquisition constitutes Eligible Assets (or goodwill associated
therewith), (b) in the case of an Acquisition of the Capital Stock of
another
17
Person, the board of directors (or other comparable governing body) of
such other Person or its parent shall have duly approved such
Acquisition, (c) the Leverage Ratio (i) as of the most recently ended
fiscal quarter for which an officer's certificate has been delivered
pursuant to Section 7.1(c) is less than 2.75 to 1.0 and (ii) on a Pro
Forma Basis giving effect to such Acquisition is less than 2.75 to 1.0,
(d) if such Acquisition involves total consideration (cash and
non-cash) in excess of $100,000,000, the Borrower shall deliver to the
Administrative Agent, prior to the closing of such Acquisition, a
certificate of an Authorized Officer of the Borrower providing
calculations showing that the requirement in clause (c)(ii) above is
accurate, (e) on the date of such Acquisition no Event of Default
exists, (f) after giving effect to such Acquisition, no Default or
Event of Default shall exist, (g) if such Acquisition involves the
formation of a new Subsidiary of the Borrower, such Subsidiary complies
with Section 7.12 and (h) such Acquisition is undertaken in accordance
with all laws, rules, regulations, orders, writs, judgments,
injunctions, decrees and awards to which any party to such Acquisition
may be subject.
"Permitted Investments" means Investments which constitute the
following: (a) cash or Cash Equivalents, (b) trade accounts receivable
created, acquired or made in the ordinary course of business, (c)
inventory, raw materials, general intangibles and other current assets
acquired in the ordinary course of business, (d) Investments by a the
Borrower or one of its Subsidiaries in each other, (e) Permitted
Acquisitions, (f) advances to management personnel and employees in the
ordinary course of business, (g) Investments existing as of the Closing
Date; provided that any such Investment in excess of $2,000,000 is set
forth on Schedule 8.6, (h) Investments consisting of non-cash
consideration received in the form of securities, notes or similar
obligations in connection with any conveyance, sale, lease, assignment,
transfer or other disposition of any Property by the Borrower or one of
its Subsidiaries to any Person, and which are permitted hereunder, (i)
increases in the value of Persons in the Strategic Investment Portfolio
that did not result from any incremental investment by the Borrower or
one of its Subsidiaries, (j) other Investments (in addition to those
set forth above) not to exceed, in the aggregate, during any
consecutive period during the term of this Credit Agreement that the
Leverage Ratio is greater than or equal to 2.75 to 1.0, the sum of (i)
$50,000,000 plus (ii) the amount of cash proceeds from sales of assets
in the Strategic Investment Portfolio and (k) any other Investment as
long as (i) the Leverage Ratio (A) as of the end of the most recent
fiscal quarter for which an officer's certificate has been delivered
pursuant to Section 7.1(c) is less than 2.75 to 1.0 and (B) on a Pro
Forma Basis giving effect to such Investment is less than 2.75 to 1.0,
(ii) if such Investment involves total consideration (cash and
non-cash) in excess of $100,000,000, the Borrower shall deliver to the
Administrative Agent, prior to the closing of such Investment, a
certificate of an Authorized Officer of the Borrower providing
calculations showing that the requirement in clause (j)(i)(B) above is
accurate, (iii) on the date of such Investment, no Event of Default
exists and (iv) after giving effect to such Investment no Default or
Event of Default shall exist.
"Permitted Liens" means (a) Liens securing Credit Party
Obligations, if any, (b) Liens for taxes not yet due or Liens for taxes
being contested in good faith by appropriate proceedings for which
adequate reserves determined in accordance with GAAP have been
established (and as to which the Property subject to any such Lien is
not yet
18
subject to foreclosure, sale, collection, levy or loss on account
thereof), (c) Liens in respect of Property imposed by law arising in
the ordinary course of business such as materialmen's, mechanics',
warehousemen's, carrier's, landlords' and other nonconsensual statutory
Liens which are not yet due and payable or which are being contested in
good faith by appropriate proceedings for which adequate reserves
determined in accordance with GAAP have been established (and as to
which the Property subject to any such Lien is not yet subject to
foreclosure, sale or loss on account thereof), (d) Liens (other than
Liens imposed under ERISA) consisting of pledges or deposits made in
the ordinary course of business to secure payment of worker's
compensation insurance, unemployment insurance, pensions or social
security programs, (e) Liens arising from good faith deposits in
connection with or to secure performance of tenders, bids, leases,
government contracts, performance and return-of-money bonds and other
similar obligations incurred in the ordinary course of business (other
than obligations in respect of the payment of borrowed money), (f)
Liens arising from good faith deposits in connection with or to secure
performance of statutory obligations and surety and appeal bonds, (g)
easements, rights-of-way, restrictions (including zoning restrictions),
matters of plat, minor defects or irregularities in title and other
similar charges or encumbrances not, in any material respect, impairing
the use of the encumbered Property for its intended purposes, (h)
judgment Liens that would not constitute an Event of Default, (i) Liens
in connection with Indebtedness permitted by Sections 8.1(d), (j) Liens
arising by virtue of any statutory or common law provision relating to
banker's liens, rights of setoff or similar rights as to deposit
accounts or other funds maintained with a creditor depository
institution, (k) Liens existing on the date hereof and identified on
Schedule 8.2, (l) Liens upon Property acquired (or the Property of a
Subsidiary that is acquired) after the Effective Date by the Borrower
or its Subsidiaries, which Liens either (i) existed on such Property
before the time of such acquisition and was not created in anticipation
thereof or (ii) were created solely for the purpose of securing
Indebtedness representing, or incurred to finance or refinance, the
cost of such Property or improvements thereon; provided, however; that
(A) no such Lien shall extend to or cover any Property of any Credit
Party other than the Property so acquired and improvements thereon and
proceeds thereof, (B) the principal amount of Indebtedness secured by
any such Lien shall at no time exceed 100% of the fair market value of
such Property at the time it was acquired or constructed and (C) the
Indebtedness secured by any such Lien is permitted hereunder; provided
that (x) no such Lien shall extend to any Property other than the
Property subject thereto on the closing date of such acquisition and
(y) the principal amount of the Indebtedness secured by such Liens
shall not be increased, (m) Liens in connection with Permitted
Receivables Financing, (n) Liens with respect to lease filings for
notice purposes only, (o) Liens on purchase money Indebtedness incurred
by the Borrower in an amount not to exceed, in the aggregate,
$50,000,000 less Indebtedness incurred by Subsidiaries of the Borrower
pursuant to Section 8.1(d), (p) Liens on Property of non-wholly owned
Subsidiaries of the Borrowers incurred to finance working capital and
(q) renewals and extensions of the foregoing so long as such Lien (i)
does not cover any additional Property, (ii) does not secure additional
Indebtedness and (iii) is not otherwise prohibited by this Credit
Agreement.
"Permitted Receivables Financing" means any transaction
entered into pursuant to documentation reasonably acceptable to the
Administrative Agent in which (a) one or more
19
Credit Parties sells, conveys or otherwise transfers to Quest
Receivables and (b) Quest Receivables sells, conveys or otherwise
transfers to any other Person or grants a security interest to any
Person in, any Receivables (whether now existing or hereafter acquired)
of a Credit Party, and any assets related thereto including all
collateral securing such Receivables, all contracts and all Guaranty
Obligations or other obligations in respect of such Receivables, all
proceeds of such Receivables and all other assets that are customarily
transferred or in respect of which security interests are customarily
granted in connection with asset securitization transactions involving
Receivables.
"Person" means any individual, partnership, joint venture,
firm, corporation, limited liability company, association, trust or
other enterprise (whether or not incorporated), or any Governmental
Authority.
"Plan" means any employee benefit plan (as defined in Section
3(3) of ERISA) which is covered by ERISA and with respect to which the
Borrower, any Subsidiary of the Borrower or any ERISA Affiliate is (or,
if such plan were terminated at such time, would under Section 4069 of
ERISA be deemed to be) an "employer" within the meaning of Section 3(5)
of ERISA.
"Prime Rate" means the per annum rate of interest established
from time to time by the Administrative Agent at its principal office
in Charlotte, North Carolina (or such other principal office of the
Administrative Agent as communicated in writing to the Borrower and the
Lenders) as its Prime Rate. Any change in the interest rate resulting
from a change in the Prime Rate shall become effective as of 12:01 a.m.
of the Business Day on which each change in the Prime Rate is announced
by the Administrative Agent. The Prime Rate is a reference rate used by
the Administrative Agent in determining interest rates on certain loans
and is not intended to be the lowest rate of interest charged on any
extension of credit to any debtor.
"Principal Property" means any real property and any related
buildings, fixtures or other improvements located in the United States
owned by the Borrower or its Subsidiaries (a) on or in which one of its
30 largest domestic clinical laboratories conducts operations, as
determined by net revenues for the four most recent fiscal quarters for
which financial statements have been filed with the Securities and
Exchange Commission, or (b) the net book value of which at the time of
the determination exceeds 1% of Total Assets.
"Pro Forma Basis" means, in connection with any Permitted
Acquisition, Permitted Investment or Stock Repurchase, that such
Acquisition, Investment, or Stock Repurchase occurred as of the end of
the last fiscal quarter for which the Borrower has delivered an
officer's certificate pursuant to Section 7.1(c).
"Property" means any right, title or interest in or to any
property or asset of any kind whatsoever, whether real, personal or
mixed and whether tangible or intangible.
20
"Quest Receivables" means Quest Diagnostics Receivables
Incorporated, a Delaware corporation, a wholly-owned,
bankruptcy-remote, special purpose Subsidiary of the Borrower.
"Real Properties" has the meaning given thereto in Section
6.19.
"Receivable" means the indebtedness and payment obligations of
any Person to any Credit Party or acquired by any Credit Party
(including obligations constituting an account or general intangible or
evidenced by a note, instrument, contract, security agreement, chattel
paper or other evidence of indebtedness or security) arising from a
sale of merchandise or the provision of services in the ordinary course
of business by such Credit Party or the Person from which such
indebtedness and payment obligation were acquired by any Credit Party,
including (a) any right to payment for goods sold or for services
rendered and (b) the right to payment of any interest, sales taxes,
finance charges, returned check or late charges and other obligations
of such Person with respect thereto.
"Regulation A, D, T, U or X" means Regulation A, D, T, U or X,
respectively, of the Board of Governors of the Federal Reserve System
as from time to time in effect and any successor to all or a portion
thereof.
"Required Lenders" means Lenders whose aggregate Credit
Exposure (as hereinafter defined) constitutes more than 50% of the
Credit Exposure of all Lenders at such time; provided, however, that if
any Lender shall be a Defaulting Lender at such time then there shall
be excluded from the determination of Required Lenders the aggregate
principal amount of Credit Exposure of such Lender at such time. For
purposes hereof, the term "Credit Exposure" as applied to each Lender
shall mean (a) at any time prior to the termination of the Commitments,
the sum of (i) the Revolving Loan Commitment Percentage of such Lender
multiplied by the Revolving Committed Amount plus (ii) the Term Loan
Commitment Percentage of such Lender multiplied by the aggregate
principal amount of Term Loans outstanding at such time and (b) at any
time after the termination of the Commitments, the sum of (i) the
principal balance of the outstanding Loans of such Lender plus (ii)
such Lender's Participation Interests in the face amount of the
outstanding Letters of Credit and outstanding Swing Line Loans.
"Requirement of Law" means, as to any Person, the articles or
certificate of incorporation and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or
regulation or final, non-appealable determination of an arbitrator or a
court or other Governmental Authority, in each case applicable to or
binding upon such Person or to which any of its material Property is
subject.
"Reportable Event" means any of the events set forth in
Section 4043(c) of ERISA, other than those events as to which the
notice requirement has been waived by regulation or by the PBGC.
21
"Revolving Committed Amount" means THREE HUNDRED TWENTY FIVE
MILLION DOLLARS ($325,000,000) or such lesser amount to which the
Revolving Committed Amount may be reduced pursuant to Section 2.1(d).
"Revolving Loan Commitment Percentage" means, for each Lender,
the percentage identified as its Revolving Loan Commitment Percentage
on Schedule 1.1(a), as such percentage may be modified in connection
with any assignment made in accordance with the provisions of Section
11.3.
"Revolving Loans" means the Revolving Loans made to the
Borrower pursuant to Section 2.1.
"Revolving Notes" means the promissory notes of the Borrower
in favor of each of the Lenders evidencing the Revolving Loans provided
pursuant to Section 2.1, individually or collectively, as appropriate,
as such promissory notes may be amended, modified, supplemented,
extended, renewed or replaced from time to time and as evidenced in the
form of Exhibit 2.1(e).
"Sale and Leaseback Transaction" means any arrangement with
any Person providing for the leasing by the Borrower or one of its
Subsidiaries of any Principal Property that has been or is to be sold
or transferred by the Borrower or any Guarantor to such Person, as the
case may be.
"S&P" means Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc. or any successor or assignee of the
business of such division in the business of rating securities.
"SBCL Acquisition Agreement" means the Stock and Asset
Purchase Agreement, dated as of February 9, 1999, among the Borrower,
SmithKline Xxxxxxx plc and SmithKline Xxxxxxx Corporation, as amended.
"Scheduled Funded Debt Payments" means, for any period, with
respect to the Borrower and its Subsidiaries on a consolidated basis,
the sum of all scheduled payments of principal on Funded Debt
(including the implied principal component of payments due on Capital
Leases and Synthetic Leases). It is understood and agreed that any
amortization payments made in connection with a Permitted Receivables
Financing are not Scheduled Funded Debt Payments; provided, however,
should such Indebtedness pursuant to a Permitted Receivables Financing
be required to be repaid due to the termination (whether at its stated
maturity or otherwise) of such Permitted Receivables Financing and
should no replacement facility be in effect on such termination date,
the repayment of such Indebtedness shall constitute a Scheduled Funded
Debt Payment.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder, as amended,
modified, succeeded or replaced from time to time.
22
"Senior Unsecured Notes" means those certain senior unsecured
notes issued by the Borrower on the Closing Date.
"Single Employer Plan" means any Plan which is covered by
Title IV of ERISA, but which is not a Multiemployer Plan or a Multiple
Employer Plan.
"Social Security Act" means the Social Security Act as set
forth in Title 42 of the United States Code, as amended, and any
successor statute thereto, as interpreted by the rules and regulations
issued thereunder, in each case as in effect from time to time.
References to sections of the Social Security Act shall be construed
also to refer to any successor sections.
"Solvent" means, with respect to any Person as of a particular
date, that on such date (a) such Person is able to pay its debts and
other liabilities, contingent obligations and other commitments as they
mature in the normal course of business, (b) such Person does not
intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such debts and
liabilities mature in their ordinary course, (c) such Person is not
engaged in a business or a transaction, and is not about to engage in a
business or a transaction, for which such Person's assets would
constitute unreasonably small capital after giving due consideration to
the prevailing practice in the industry in which such Person is engaged
or is to engage, (d) the fair value of the assets of such Person is
greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person and (e) the present
fair saleable value of the assets of such Person is not less than the
amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured. In computing
the amount of contingent liabilities at any time, it is intended that
such liabilities will be computed at the amount which, in light of all
the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured
liability reduced by the amount of any contribution or indemnity that
can reasonably be expected to be received.
"Stock Repurchase" has the meaning set forth in Section 8.9.
"Strategic Investment Portfolio" means all Investments in
Persons in which the Borrower and its Subsidiaries own less than 50% of
the Voting Stock of such Person.
"Subsidiary" means, as to any Person, (a) any corporation more
than 50% of whose stock of any class or classes having by the terms
thereof ordinary voting power to elect a majority of the directors of
such corporation (irrespective of whether or not at the time, any class
or classes of such corporation shall have or might have voting power by
reason of the happening of any contingency) is at the time owned by
such Person directly or indirectly through Subsidiaries, and (b) any
partnership, association, joint venture or other entity in which such
person directly or indirectly through Subsidiaries has more than a 50%
equity interest at any time.
"Swing Line Committed Amount" means SIXTY FIVE MILLION DOLLARS
($65,000,000).
23
"Swing Line Lender" means Bank of America.
"Swing Line Loans" means the loans made by the Swing Line
Lender pursuant to Section 2.3.
"Swing Line Loan Note" means the promissory note of the
Borrower in favor of the Swing Line Lender evidencing the Swing Line
Loans provided pursuant to Section 2.3, as such promissory note may be
amended, modified, supplemented, extended, renewed or replaced from
time to time in and as evidenced by the form of Exhibit 2.3(d).
"Swing Line Loan Request" means a request by the Borrower for
a Swing Line Loan in substantially the form of Exhibit 2.3(b).
"Synthetic Lease" means any synthetic lease, tax retention
operating lease, off-balance sheet loan or similar off-balance sheet
financing product where such transaction is considered borrowed money
indebtedness for tax purposes but is classified as an operating lease
in accordance with GAAP.
"Tender Costs" means the costs incurred by the Borrower in
connection with the tender for the Existing Senior Subordinated Notes
and the termination of the interest rate swap contracts existing prior
to the Closing Date in an aggregate amount not to exceed $20,000,000.
"Term Loan Committed Amount" means ONE HUNDRED SEVENTY FIVE
MILLION DOLLARS ($175,000,000).
"Term Loan Commitment Percentage" means, for each Lender, the
percentage identified as its Term Loan Commitment Percentage on
Schedule 1.1(a), as such percentage may be modified in connection with
any assignment made in accordance with the provisions of Section 11.3.
"Term Loans" means the Term Loans made to the Borrower
pursuant to Section 2.5.
"Term Notes" means the promissory notes of the Borrower in
favor of each of the Lenders evidencing the Term Loans provided
pursuant to Section 2.5, individually or collectively, as appropriate,
as such promissory notes may be amended, modified, supplemented,
extended, renewed or replaced from time to time and as evidenced in the
form of Exhibit 2.5(d).
"Total Assets" means all items that in accordance with GAAP
would be classified as assets of the Borrower and its Subsidiaries on a
consolidated basis.
"TRICARE" means the United States Department of Defense health
care program for service families including, but not limited to,
TRICARE Prime, TRICARE Extra and
24
TRICARE Standard, and any successor to or predecessor thereof
(including, without limitation, CHAMPUS).
"Voting Stock" means all classes of the Capital Stock of such
Person then outstanding and normally entitled to vote in the election
of directors (or similar governing authority).
1.2 Computation of Time Periods and Other Definitional Provisions.
For purposes of computation of periods of time hereunder, the word
"from" means "from and including" and the words "to" and "until" each mean "to
but excluding." References in this Credit Agreement to "Articles", "Sections",
"Schedules" or "Exhibits" shall be to Articles, Sections, Schedules or Exhibits
of or to this Credit Agreement unless otherwise specifically provided.
1.3 Accounting Terms/Calculation of Financial Covenants.
(a) Except as otherwise expressly provided herein, all
accounting terms used herein shall be interpreted, and all financial
statements and certificates and reports as to financial matters
required to be delivered to the Lenders hereunder shall be prepared, in
accordance with GAAP applied on a consistent basis. All calculations
made for the purposes of determining compliance with this Credit
Agreement shall (except as otherwise expressly provided herein) be made
by application of GAAP applied on a basis consistent with the most
recent annual or quarterly financial statements delivered pursuant to
Section 7.1 (or, prior to the delivery of the first financial
statements pursuant to Section 7.1, consistent with the financial
statements delivered to the Lenders prior to the Closing Date);
provided, however, if (a) the Borrower shall object to determining such
compliance on such basis at the time of delivery of such financial
statements due to any change in GAAP or the rules promulgated with
respect thereto or (b) the Administrative Agent or the Required Lenders
shall so object in writing within 30 days after delivery of such
financial statements, then such calculations shall be made on a basis
consistent with GAAP as in effect as of the date of the most recent
financial statements delivered by the Borrower to the Lenders to which
no such objection shall have been made.
(b) Notwithstanding anything herein to the contrary, for the
purposes of calculating the financial covenants set forth in Section
7.2, (i) income statement items (positive or negative) attributable to
any Person or Property acquired in a Permitted Acquisition and
Indebtedness incurred in connection with such Permitted Acquisition
shall, without duplication, be treated as if such Person or Property
was acquired or such Indebtedness incurred as of the first day of the
twelve month period ending as of the most recently completely fiscal
quarter of the Borrower and (ii) income statement items (positive or
negative) attributable to Property disposed of in any asset sale
permitted by Section 8.5(g) and Indebtedness retired in connection with
such sale shall, without duplication, be treated as if such sale
occurred as of the first day of the twelve month period ending as of
the most recently completed fiscal quarter of the Borrower.
25
1.4 Time.
All references to time herein shall be references to Eastern Standard
Time or Eastern Daylight time, as the case may be, unless specified otherwise.
SECTION 2
CREDIT FACILITIES
2.1 Revolving Loans.
(a) Loan Commitment. Subject to the terms and conditions set
forth herein, including but not limited to Section 5.2, each Lender
severally agrees to make revolving loans (each a "Revolving Loan" and
collectively the "Revolving Loans") to the Borrower, in Dollars, in an
amount equal to its Revolving Loan Commitment Percentage, if any, of
such Revolving Loan, at any time and from time to time, during the
period from and including the Effective Date to but not including the
Maturity Date (or such earlier date if the Commitments have been
terminated as provided herein); provided, however, that the sum of the
aggregate amount of Revolving Loans outstanding plus the aggregate
amount of LOC Obligations outstanding plus the aggregate amount of
Competitive Bid Loans outstanding plus the aggregate amount of Swing
Line Loans outstanding shall not exceed the Revolving Committed Amount.
Subject to the terms of this Credit Agreement, the Borrower may borrow,
repay and reborrow Revolving Loans.
(b) Method of Borrowing for Revolving Loans. By no later than
11:00 a.m. (i) on the date of the requested borrowing of Revolving
Loans that will be Base Rate Loans or (ii) three Business Days prior to
the date of the requested borrowing of Revolving Loans that will be
Eurodollar Loans, the Borrower shall provide telephonic notice to the
Administrative Agent, followed promptly by a written Notice of
Borrowing in the form of Exhibit 2.1(b) (which may be submitted by
telecopy), each of such telephonic notice and such written Notice of
Borrowing setting forth (A) the amount requested, (B) whether such
Revolving Loans shall accrue interest at the Base Rate or the Adjusted
Eurodollar Rate, (C) with respect to Revolving Loans that will be
Eurodollar Loans, the Interest Period applicable thereto and (D)
certification that the Borrower has complied in all respects with
Section 5.2.
(c) Funding of Loans. Upon receipt of a Notice of Borrowing,
the Administrative Agent shall promptly inform the Lenders as to the
terms thereof. Each Lender shall make its Revolving Loan Commitment
Percentage of the requested Revolving Loans available to the
Administrative Agent by 1:00 p.m. on the date specified in the Notice
of Borrowing by deposit, in Dollars, of immediately available funds at
the Agency Services Address. The amount of the requested Revolving
Loans will then be made available to the Borrower by the Administrative
Agent as directed by the Borrower, to the extent the amount of such
Revolving Loans are made available to the Administrative Agent.
26
No Lender shall be responsible for the failure or delay by any
other Lender in its obligation to make Revolving Loans hereunder;
provided, however, that the failure of any Lender to fulfill its
obligations hereunder shall not relieve any other Lender of its
obligations hereunder. Unless the Administrative Agent shall have been
notified by any Lender prior to the date of any such Revolving Loan
that such Lender does not intend to make available to the
Administrative Agent its portion of the Revolving Loans to be made on
such date, the Administrative Agent may assume that such Lender has
made such amount available to the Administrative Agent on the date of
such Revolving Loans, and the Administrative Agent in reliance upon
such assumption, may (in its sole discretion but without any obligation
to do so) make available to the Borrower a corresponding amount. If
such corresponding amount is not in fact made available to the
Administrative Agent, the Administrative Agent shall be able to recover
such corresponding amount from such Lender. If such Lender does not pay
such corresponding amount upon the Administrative Agent's demand
therefor, the Administrative Agent will promptly notify the Borrower,
and the Borrower shall immediately pay such corresponding amount to the
Administrative Agent. The Administrative Agent shall also be entitled
to recover from such Lender or the Borrower, as the case may be,
interest on such corresponding amount in respect of each day from the
date such corresponding amount was made available by the Administrative
Agent to the Borrower to the date such corresponding amount is
recovered by the Administrative Agent at a per annum rate equal to (i)
from the Borrower at the applicable rate for such Revolving Loan
pursuant to the Notice of Borrowing or (ii) from such Lender, at a rate
per annum equal to, during the period to but excluding the date two
Business Days after demand therefor, the Federal Funds Rate, and,
thereafter, the Base Rate plus two percent (2%) per annum.
(d) Reductions of Revolving Committed Amount. Upon at least
three Business Days' prior written notice, the Borrower shall have the
right to permanently reduce, without premium or penalty, all or part of
the aggregate unused amount of the Revolving Committed Amount at any
time or from time to time; provided that (i) each partial reduction
shall be in an aggregate amount at least equal to $10,000,000 and in
integral multiples of $1,000,000 above such amount and (ii) no
reduction shall be made which would reduce the Revolving Committed
Amount to an amount less than the aggregate amount of outstanding
Revolving Loans plus the aggregate amount of outstanding LOC
Obligations plus the aggregate amount of outstanding Competitive Bid
Loans plus the aggregate amount of outstanding Swing Line Loans. Any
reduction in (or termination of) the Revolving Committed Amount
pursuant to this Section 2.1(d) shall be permanent and may not be
reinstated. The Administrative Agent shall immediately notify the
Lenders of any reduction in the Revolving Committed Amount pursuant to
this Section 2.1(d).
(e) Revolving Loan Notes. The Revolving Loans made by each
Lender shall be evidenced by a duly executed promissory note of the
Borrower to each Lender that requests a Revolving Loan Note in
substantially the form of Exhibit 2.1(e).
27
2.2 Letter of Credit Subfacility.
(a) Issuance. Subject to the terms and conditions hereof and
of the LOC Documents, if any, and any other terms and conditions which
the Issuing Lender may reasonably require (so long as such terms and
conditions do not impose any financial obligation on or require any
Lien (not otherwise contemplated by this Credit Agreement) to be given
by any Credit Party or conflict with any obligation of, or detract from
any action which may be taken by, the Borrower or its Subsidiaries
under this Credit Agreement), the Issuing Lender agrees, in reliance
upon the agreements of the other Lenders set forth in this Section 2.2,
from time to time upon request, in its reasonable discretion, to issue
(from the Effective Date to thirty days prior to the Maturity Date and
in a form reasonably acceptable to the Issuing Lender), in Dollars, and
the Participants shall participate in, Letters of Credit for the
account of the Borrower; provided, however, that (i) the aggregate
amount of LOC Obligations shall not at any time exceed the LOC
Committed Amount and (ii) the sum of the aggregate amount of
outstanding LOC Obligations plus the aggregate amount of outstanding
Revolving Loans plus the aggregate amount of outstanding Competitive
Bid Loans plus the aggregate amount of outstanding Swing Line Loans
shall not exceed the Revolving Committed Amount. The Issuing Lender may
require the issuance and expiry date of each Letter of Credit to be a
Business Day. Each Letter of Credit shall be either (A) a standby
letter of credit issued to support the obligations (including pension
or insurance obligations), contingent or otherwise, of the Borrower or
any of its Subsidiaries, or (B) a commercial letter of credit in
respect of the purchase of goods or services by the Borrower or any of
its Subsidiaries in the ordinary course of business. Except as
otherwise expressly agreed upon by all the Participants, no Letter of
Credit shall have an original expiry date more than one year from the
date of issuance nor, as extended or otherwise, shall have an expiry
date beyond the Maturity Date. Each Letter of Credit shall comply with
the related LOC Documents.
(b) Notice and Reports. The request for the issuance of a
Letter of Credit shall be submitted to the Issuing Lender at least
three Business Days prior to the requested date of issuance. The
Issuing Lender will, at least quarterly and more frequently upon
request, provide to the Administrative Agent for dissemination to the
Lenders a report specifying the Letters of Credit which are then issued
and outstanding. The Issuing Lender will further provide to the
Administrative Agent, promptly upon request, copies of the Letters of
Credit and the other LOC Documents.
(c) Participations.
(i) On the Effective Date, each Participant shall
automatically acquire a participation in the liability of the
Issuing Lender under each Existing Letter of Credit in an
amount equal to its Revolving Loan Commitment Percentage of
such Existing Letters of Credit.
(ii) Each Participant, upon issuance of a Letter of
Credit, shall be deemed to have purchased without recourse a
risk participation from the Issuing Lender in such Letter of
Credit and each LOC Document related thereto and the
28
rights and obligations arising thereunder and any collateral
relating thereto, in each case in an amount equal to its
Revolving Loan Commitment Percentage of the obligations under
such Letter of Credit, and shall absolutely, unconditionally
and irrevocably assume, as primary obligor and not as surety,
and be obligated to pay to the Issuing Lender therefor and
discharge when due, its Revolving Loan Commitment Percentage
of the obligations arising under such Letter of Credit.
Without limiting the scope and nature of each Participant's
participation in any Letter of Credit, to the extent that the
Issuing Lender has not been reimbursed as required hereunder
or under any such Letter of Credit, each such Participant
shall pay to the Issuing Lender its Revolving Loan Commitment
Percentage of such unreimbursed drawing in same day funds on
the day of notification by the Issuing Lender of an
unreimbursed drawing pursuant to the provisions of subsection
(d) or (e) hereof. The obligation of each Participant to so
reimburse the Issuing Lender shall be absolute and
unconditional and shall not be affected by the occurrence of a
Default, an Event of Default or any other occurrence or event.
Any such reimbursement shall not relieve or otherwise impair
the obligation of the Borrower or any other Credit Party to
reimburse the Issuing Lender under any Letter of Credit,
together with interest as hereinafter provided.
(d) Reimbursement. In the event of any drawing under any
Letter of Credit, the Issuing Lender will promptly notify the Borrower.
Unless the Borrower shall immediately notify the Issuing Lender of its
intent to otherwise reimburse the Issuing Lender, the Borrower shall be
deemed to have requested a Revolving Loan at the Base Rate in the
amount of the drawing, the proceeds of which will be used to satisfy
the reimbursement obligations. The Borrower shall reimburse the Issuing
Lender on the day of drawing under any Letter of Credit either with the
proceeds of such Revolving Loan obtained hereunder or otherwise in same
day funds as provided herein or in the LOC Documents. The Borrower's
reimbursement obligations hereunder shall be absolute and unconditional
under all circumstances irrespective of (but without waiver of) any
rights of set-off, counterclaim or defense to payment the applicable
account party or the Borrower may claim or have against the Issuing
Lender, the Administrative Agent, the Lenders, the beneficiary of the
Letter of Credit drawn upon or any other Person, including without
limitation, any defense based on any failure of the applicable account
party, the Borrower or any other Credit Party to receive consideration
or the legality, validity, regularity or unenforceability of the Letter
of Credit. The Issuing Lender will promptly notify the Participants of
the amount of any unreimbursed drawing and each Participant shall
promptly pay to the Issuing Lender, in Dollars and in immediately
available funds, the amount of such Participant's Revolving Loan
Commitment Percentage of such unreimbursed drawing. Such payment shall
be made on the day such notice is received by such Lender from the
Issuing Lender if such notice is received at or before 12:00 Noon,
otherwise such payment shall be made at or before 2:00 p.m. on the
Business Day next succeeding the day such notice is received. If such
Participant does not pay such amount to the Issuing Lender in full upon
such request, such Participant shall, on demand, pay to the Issuing
Lender interest on the unpaid amount during the period from the date
the Participant received the notice regarding the unreimbursed drawing
until such Participant pays such amount to the Issuing Lender in full
at a rate per annum equal to, if paid within two Business Days of the
date of drawing, the Federal Funds Rate and thereafter
29
at a rate equal to the Base Rate plus two percent (2%) per annum. Each
Participant's obligation to make such payment to the Issuing Lender,
and the right of the Issuing Lender to receive the same, shall be
absolute and unconditional, shall not be affected by any circumstance
whatsoever and without regard to the termination of this Credit
Agreement or the Commitments hereunder, the existence of a Default or
Event of Default or the acceleration of the obligations hereunder and
shall be made without any offset, abatement, withholding or reduction
whatsoever. Simultaneously with the making of each such payment by a
Participant to the Issuing Lender, such Participant shall,
automatically and without any further action on the part of the Issuing
Lender or such Participant, acquire a participation in an amount equal
to such payment (excluding the portion of such payment constituting
interest owing to the Issuing Lender) in the related unreimbursed
drawing portion of the LOC Obligation and in the interest thereon and
in the related LOC Documents, and shall have a claim against the
Borrower and the other Credit Parties with respect thereto.
(e) Repayment with Loans. On any day on which the Borrower
shall have requested, or been deemed to have requested, a Revolving
Loan borrowing to reimburse a drawing under a Letter of Credit (as set
forth in clause (d) above), the Administrative Agent shall give notice
to the Lenders that a Revolving Loan has been requested or deemed
requested in connection with a drawing under a Letter of Credit, in
which case a Revolving Loan borrowing comprised solely of Base Rate
Loans (each such borrowing, a "Mandatory Borrowing") shall be
immediately made from all Lenders (without giving effect to any
termination of the Commitments pursuant to Section 9.2) pro rata based
on each Lender's respective Revolving Loan Commitment Percentage and
the proceeds thereof shall be paid directly to the Issuing Lender for
application to the respective LOC Obligations. Each applicable Lender
hereby irrevocably agrees to make such Revolving Loans immediately upon
any such request or deemed request on account of each such Mandatory
Borrowing in the amount and in the manner specified in the preceding
sentence and on the same such date notwithstanding (i) the amount of
Mandatory Borrowing may not comply with the minimum amount for
borrowings of Revolving Loans otherwise required hereunder, (ii)
whether any conditions specified in Section 5.2 are then satisfied,
(iii) whether a Default or Event of Default then exists, (iv) failure
of any such request or deemed request for Revolving Loans to be made by
the time otherwise required hereunder, (v) the date of such Mandatory
Borrowing, or (vi) any reduction in the Revolving Committed Amount or
any termination of the Commitments. In the event that any Mandatory
Borrowing cannot for any reason be made on the date otherwise required
above (including, without limitation, as a result of the commencement
of a proceeding under the Bankruptcy Code with respect to the Borrower
or any other Credit Party), then each such Lender hereby agrees that it
shall forthwith fund (as of the date the Mandatory Borrowing would
otherwise have occurred, but adjusted for any payments received from
the Borrower on or after such date and prior to such purchase) its
Participation Interest in the outstanding LOC Obligations in accordance
with the terms of subsection (d) above; provided, further, that in the
event any such Lender shall fail to fund its Participation Interest on
the day the Mandatory Borrowing would otherwise have occurred, then the
amount of such Lender's unfunded Participation Interest therein shall
bear interest payable to the Issuing Lender upon demand, at the rate
equal to, if paid within
30
two Business Days of such date, the Federal Funds Rate, and thereafter
at a rate equal to the Base Rate plus two percent (2%) per annum.
(f) Modification and Extension. The issuance of any
supplement, modification, amendment, renewal, or extensions to any
Letter of Credit shall, for purposes hereof, be treated in all respects
the same as the issuance of a new Letter of Credit hereunder.
(g) Uniform Customs and Practice. The Issuing Lender may have
the Letters of Credit be subject to The Uniform Customs and Practice
for Documentary Credits, including the International Chamber of
Commerce decision by the Commission on Banking Technique and Practice
of April 6, 1998 regarding the European Single Currency (euro), (the
"UCP") or the International Standby Practices 1998 (the "ISP98"), in
either case as published as of the date of issue by the International
Chamber of Commerce, in which case the UCP or the ISP98, as applicable,
may be incorporated therein and deemed in all respects to be a part
thereof.
(h) Responsibility of Issuing Lender.
(i) It is expressly understood and agreed as between
the Lenders that the obligations of the Issuing Lender
hereunder to the Participants are only those expressly set
forth in this Credit Agreement and that the Issuing Lender
shall be entitled to assume that the conditions precedent set
forth in Section 5.2 have been satisfied unless it shall have
acquired actual knowledge that any such condition precedent
has not been satisfied; provided, however, that nothing set
forth in this Section 2.2 shall be deemed to prejudice the
right of any Participant to recover from the Issuing Lender
any amounts made available by such Participant to the Issuing
Lender pursuant to this Section 2.2 in the event that it is
determined by a court of competent jurisdiction that the
payment with respect to a Letter of Credit constituted gross
negligence or willful misconduct on the part of the Issuing
Lender.
(ii) The Issuing Lender shall be under no obligation
to issue any Letter of Credit if (a) any order, judgment or
decree of any Governmental Authority or arbitrator shall by
its terms purport to enjoin or restrain the Issuing Lender
from issuing such Letter of Credit, (b) any Requirement of Law
applicable to the Issuing Lender or any request or directive
(whether or not having the force of law) from any Governmental
Authority with jurisdiction over the Issuing Lender shall
prohibit, or request that the Issuing Lender refrain from, the
issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon the Issuing Lender
with respect to such Letter of Credit any restriction, reserve
or capital requirement (for which the Issuing Lender is not
otherwise compensated hereunder) not in effect on the Closing
Date, or shall impose upon the Issuing Lender any unreimbursed
loss, cost or expense which was not applicable on the Closing
Date and which the Issuing Lender in good xxxxx xxxxx material
to it, or (c) the issuance of such Letter of Credit would
violate one or more policies of the Issuing Lender.
31
(i) Conflict with LOC Documents. In the event of any conflict
between this Credit Agreement and any LOC Document, this Credit
Agreement shall govern.
(j) Indemnification of Issuing Lender.
(i) In addition to its other obligations under this
Credit Agreement, the Borrower hereby agrees to protect,
indemnify, pay and save the Issuing Lender harmless from and
against any and all claims, demands, liabilities, damages,
losses, costs, charges and expenses (including Attorney Costs)
that the Issuing Lender may incur or be subject to as a
consequence, direct or indirect, of (A) the issuance of any
Letter of Credit or (B) the failure of the Issuing Lender to
honor a drawing under a Letter of Credit as a result of any
act or omission, whether rightful or wrongful, of any present
or future de jure or de facto Governmental Authority (all such
acts or omissions, herein called "Government Acts").
(ii) As between the Borrower and the Issuing Lender,
the Borrower shall assume all risks of the acts, omissions or
misuse of any Letter of Credit by the beneficiary thereof. The
Issuing Lender shall not be responsible for (except in the
case of (A), (B) and (C) below if the Issuing Lender has
actual knowledge to the contrary): (A) the form, validity,
sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the
application for and issuance of any Letter of Credit, even if
it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (B) the
validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign any Letter of
Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, that may prove to be invalid or
ineffective for any reason; (C) failure of the beneficiary of
a Letter of Credit to comply fully with conditions required in
order to draw upon a Letter of Credit; (D) errors, omissions,
interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise,
whether or not they be in cipher; (E) any loss or delay in the
transmission or otherwise of any document required in order to
make a drawing under a Letter of Credit or of the proceeds
thereof; and (F) any consequences arising from causes beyond
the control of the Issuing Lender, including, without
limitation, any Government Acts. None of the above shall
affect, impair, or prevent the vesting of the Issuing Lender's
rights or powers hereunder.
(iii) In furtherance and extension and not in
limitation of the specific provisions hereinabove set forth,
any action taken or omitted by the Issuing Lender, under or in
connection with any Letter of Credit or the related
certificates, if taken or omitted in good faith, shall not put
the Issuing Lender under any resulting liability to the
Borrower or any other Credit Party. It is the intention of the
parties that this Credit Agreement shall be construed and
applied to protect and indemnify the Issuing Lender against
any and all risks involved in the issuance of the Letters of
Credit, all of which risks are hereby assumed by the Borrower,
including, without limitation, any and all risks of the acts
or omissions, whether rightful or wrongful, of any present or
future Government Acts. The Issuing Lender shall not, in any
way,
32
be liable for any failure by the Issuing Lender or anyone else
to pay any drawing under any Letter of Credit as a result of
any Government Acts or any other cause beyond the control of
the Issuing Lender.
(iv) Nothing in this subsection (j) is intended to
limit the reimbursement obligation of the Borrower contained
in this Section 2.2. The obligations of the Borrower under
this subsection (j) shall survive the termination of this
Credit Agreement. No act or omission of any current or prior
beneficiary of a Letter of Credit shall in any way affect or
impair the rights of the Issuing Lender to enforce any right,
power or benefit under this Credit Agreement.
(v) Notwithstanding anything to the contrary
contained in this subsection (j), the Borrower shall have no
obligation to indemnify the Issuing Lender in respect of any
liability incurred by the Issuing Lender arising out of the
gross negligence or willful misconduct of the Issuing Lender,
as determined by a court of competent jurisdiction.
(k) Designation of other Persons as Account Parties.
Notwithstanding anything to the contrary set forth in this Credit
Agreement, including without limitation Section 2.2(a) hereof, a Letter
of Credit issued hereunder may contain a statement to the effect that
such Letter of Credit is issued for the account of a Subsidiary of the
Borrower; provided that notwithstanding such statement, the Borrower
shall be the actual account party for all purposes of this Credit
Agreement for such Letter of Credit and such statement shall not affect
the Borrower's reimbursement obligations hereunder with respect to such
Letter of Credit.
2.3 Swing Line Loans Subfacility.
(a) Swing Line Loans. The Swing Line Lender hereby agrees, on
the terms and subject to the conditions set forth herein and in the
other Credit Documents, to make loans (each a "Swing Line Loan" and
collectively, the "Swing Line Loans") to the Borrower, in Dollars, at
any time and from time to time, during the period from and including
the Effective Date to but not including the Maturity Date (or such
earlier date if the Commitments have been terminated as provided
herein); provided that (i) the aggregate principal amount of the Swing
Line Loans outstanding at any one time shall not exceed the Swing Line
Committed Amount and (ii) the aggregate amount of outstanding Swing
Line Loans plus the aggregate amount of outstanding Revolving Loans
plus the aggregate amount of outstanding LOC Obligations plus the
aggregate amount of outstanding Competitive Bid Loans shall not exceed
the Revolving Committed Amount. Subject to the terms of this Credit
Agreement, the Borrower may borrow, repay and reborrow Swing Line
Loans.
(b) Method of Borrowing and Funding Swing Line Loans. By no
later than 1:00 p.m. on the date of the requested borrowing of Swing
Line Loans, the Borrower shall provide telephone notice to the Swing
Line Lender, followed promptly by a written Swing Line Loan Request in
the form of Exhibit 2.3(b) (which may be submitted by telecopy)
33
setting forth (i) the amount of the requested Swing Line Loan and (ii)
the date of the requested Swing Line Loan and complying in all respects
with Section 5.2. The Swing Line Lender shall initiate the transfer of
funds representing the Swing Line Loan advance to the Borrower by 3:00
p.m. on the Business Day of the requested borrowing.
(c) Repayment and Participations of Swing Line Loans. The
Borrower agrees to repay all Swing Line Loans immediately upon the
existence of a Default or Event of Default or otherwise within three
Business Days of demand therefor by the Swing Line Lender. Each
repayment of a Swing Line Loan may be accomplished by requesting
Revolving Loans which request is not subject to the conditions set
forth in Section 5.2. In the event that the Borrower shall fail to
timely repay any Swing Line Loan, and in any event upon (i) a request
by the Swing Line Lender, (ii) the occurrence of an Event of Default
described in Section 9.1(f) or (iii) the acceleration of any Loan or
termination of any Commitment pursuant to Section 9.2, each other
Participant shall irrevocably and unconditionally purchase from the
Swing Line Lender, without recourse or warranty, an undivided interest
and participation in such Swing Line Loan in an amount equal to such
other Lender's Revolving Loan Commitment Percentage thereof, by
directly purchasing a participation in such Swing Line Loan in such
amount (regardless of whether the conditions precedent thereto set
forth in Section 5.2 are then satisfied, whether or not the Borrower
has submitted a Notice of Borrowing and whether or not the Commitments
are then in effect, any Event of Default exists or all the Loans have
been accelerated) and paying the proceeds thereof to the Swing Line
Lender at the Agency Services Address, or at such other address as the
Swing Line Lender may designate, in Dollars and in immediately
available funds. If such amount is not in fact made available to the
Swing Line Lender by any Participant, the Swing Line Lender shall be
entitled to recover such amount on demand from such Participant,
together with accrued interest thereon for each day from the date of
demand thereof, at a rate equal to, if paid within two Business Days of
such date, the Federal Funds Rate, and thereafter at a rate equal to
the Base Rate plus two percent (2%) per annum. If such Participant does
not pay such amount forthwith upon the Swing Line Lender's demand
therefor, and until such time as such Participant makes the required
payment, the Swing Line Lender shall be deemed to continue to have
outstanding Swing Line Loans in the amount of such unpaid participation
obligation for all purposes of the Credit Documents other than those
provisions requiring the other Participants to purchase a participation
therein. Further, such Participant shall be deemed to have assigned any
and all payments made of principal and interest on its Loans, and any
other amounts due to it hereunder to the Swing Line Lender to fund
Swing Line Loans in the amount of the participation in Swing Line Loans
that such Participant failed to purchase pursuant to this Section
2.3(c) until such amount has been purchased (as a result of such
assignment or otherwise).
(d) Swing Line Loan Note. The Swing Line Loans made by the
Swing Line Lender shall, if requested by the Swing Line Lender, be
evidenced by a duly executed promissory note of the Borrower to the
Swing Line Lender in substantially the form of Exhibit 2.3(d).
34
2.4 Competitive Bid Loans Subfacility.
(a) Competitive Bid Loans. Subject to the terms and conditions
set forth herein, the Borrower may, from time to time, during the
period from the Closing Date to the Maturity Date, request, in Dollars,
and each Lender may, in its sole discretion, agree to make loans to the
Borrower in accordance with the terms of this Section 2.4 (each a
"Competitive Bid Loan" and collectively the "Competitive Bid Loans");
provided, however, that (i) the sum of the aggregate amount of
outstanding Revolving Loans plus the aggregate amount of outstanding
Competitive Bid Loans plus the aggregate amount of outstanding Swing
Line Loans plus the aggregate amount of outstanding LOC Obligations
shall not exceed the Revolving Loan Commitment, (ii) the aggregate
amount of Competitive Bid Loans outstanding at any one time cannot
exceed $200,000,000 and (iii) if a Lender does make a Competitive Bid
Loan it shall not reduce such Lender's obligation to make its pro rata
share of any Revolving Loan.
(b) Competitive Bid Requests. The Borrower may solicit
Competitive Bids by delivery of a Competitive Bid Request to the
Administrative Agent by 11:00 a.m. on a Business Day not less than one
nor more than five Business Days prior to the date of the requested
Competitive Bid Loan. A Competitive Bid Request must be substantially
in the form of Exhibit 2.4(b) and shall specify (i) the date of the
requested Competitive Bid Loan (which shall be a Business Day), (ii)
the amount of the requested Competitive Bid Loan and (iii) the
applicable Interest Period or Interest Periods requested and be
accompanied by the Competitive Bid Fee. The Agent shall notify the
Lenders of its receipt of a Competitive Bid Request and the contents
thereof and invite the Lenders to submit Competitive Bids in response
thereto. The Borrower may not request a Competitive Bid for more than
four different Interest Periods per Competitive Bid Request and
Competitive Bid Requests may be made no more frequently than six times
every calendar month.
(c) Competitive Bid Procedure. Each Lender may, in its sole
discretion, make one or more Competitive Bids to the Borrower in
response to a Competitive Bid Request. Each Competitive Bid must be
received by the Administrative Agent not later than 11:00 a.m. on the
proposed date of the requested Competitive Bid Loan; provided, however,
that should the Administrative Agent, in its capacity as a Lender,
desire to submit a Competitive Bid it shall notify the Borrower of its
Competitive Bid and the terms thereof not later than 15 minutes prior
to the time the other Lenders are required to submit their Competitive
Bid. A Lender may offer to make all or part of the requested
Competitive Bid Loan and may submit multiple Competitive Bids in
response to a Competitive Bid Request. Any Competitive Bid must specify
(i) the particular Competitive Bid Request as to which the Competitive
Bid is submitted, (ii) the minimum (which shall be not less than
$10,000,000 and integral multiples of $1,000,000 in excess thereof) and
maximum principal amounts of the requested Competitive Bid Loan or
Loans as to which the Lender is willing to make and (iii) the
applicable interest rate or rates and Interest Period or Interest
Periods therefor. A Competitive Bid submitted by a Lender in accordance
with the provisions hereof shall be irrevocable. The Administrative
Agent shall promptly notify the Borrower of all Competitive Bids made
and the terms
35
thereof. The Administrative Agent shall send a copy of each of the
Competitive Bids to the Borrower and each of the Lenders for its
records as soon as practicable.
(d) Acceptance of Competitive Bids. The Borrower may, in its
sole discretion, subject only to the provisions of this subsection (d),
accept or refuse any Competitive Bid offered to it. To accept a
Competitive Bid, the Borrower shall give oral notification of its
acceptance of any or all such Competitive Bids (which shall be promptly
confirmed in writing) to the Administrative Agent by 12:00 noon on the
proposed date of the Competitive Bid Loan; provided, however, (i) the
failure by the Borrower to give timely notice of its acceptance of a
Competitive Bid shall be deemed to be a refusal thereof, (ii) to the
extent Competitive Bids are for comparable Interest Periods, the
Borrower may accept Competitive Bids only in ascending order of rates,
(iii) the aggregate amount of Competitive Bids accepted by the Borrower
shall not exceed the principal amount specified in the Competitive Bid
Request, (iv) if the Borrower shall accept a bid or bids made at a
particular Competitive Bid Rate, but the amount of such bid or bids
shall cause the total amount of bids to be accepted by the Borrower to
be in excess of the amount specified in the Competitive Bid Request,
then the Borrower shall accept a portion of such bid or bids in an
amount equal to the amount specified in the Competitive Bid Request
less the amount of all other Competitive Bids accepted with respect to
such Competitive Bid Request, which acceptance in the case of multiple
bids at such Competitive Bid Rate, shall be made pro rata in accordance
with the amount of each such bid at such Competitive Bid Rate and (v)
no bid shall be accepted for a Competitive Bid Loan unless such
Competitive Bid Loan is in a minimum principal amount of $10,000,000
and integral multiples of $1,000,000 in excess thereof, except that
where a portion of a Competitive Bid is accepted in accordance with the
provisions of clause (iv) of subsection (d) hereof, then in a minimum
principal amount of $500,000 and integral multiples of $100,000 (but
not in any event less than the minimum amount specified in the
Competitive Bid), and in calculating the pro rata allocation of
acceptances of portions of multiple bids at a particular Competitive
Bid Rate pursuant to clause (iv) of subsection (d) hereof, the amounts
shall be rounded to integral multiples of $100,000 in a manner which
shall be in the discretion of the Borrower. A notice of acceptance of a
Competitive Bid given by the Borrower in accordance with the provisions
hereof shall be irrevocable. The Administrative Agent shall, not later
than 1:00 p.m. on the proposed date of such Competitive Bid Loan,
notify each bidding Lender whether or not its Competitive Bid has been
accepted (and if so, in what amount and at what Competitive Bid Rate),
and each successful bidder will thereupon become bound, subject to the
other applicable conditions hereof, to make the Competitive Bid Loan in
respect of which its bid has been accepted.
(e) Funding of Competitive Bid Loans. Each Lender which is to
make a Competitive Bid Loan shall make its Competitive Bid Loan
available to the Administrative Agent by 2:00 p.m. on the date
specified in the Competitive Bid Request by deposit of immediately
available funds at the Agency Services Address or at such other address
as the Administrative Agent may designate in writing. The
Administrative Agent will, upon receipt, make the proceeds of such
Competitive Bid Loans available to the Borrower.
36
(f) Maturity of Competitive Bid Loans. Each Competitive Bid
Loan shall mature and be due and payable in full on the last day of the
Interest Period applicable thereto. Unless the Borrower shall give
notice to the Administrative Agent otherwise (or repays such
Competitive Bid Loan), or a Default or Event of Default exists and is
continuing, the Borrower shall be deemed to have requested Revolving
Loans from all of the Lenders (in the amount of the maturing
Competitive Bid Loan and accruing interest at the Base Rate), the
proceeds of which will be used to repay such Competitive Bid Loan.
(g) Competitive Bid Loan Notes. The Competitive Bid Loans made
by each Lender shall be evidenced by a duly executed promissory note of
the Borrower to each Lender that requests a Competitive Bid Loan Note
in substantially the form of Exhibit 2.4(g).
2.5 Term Loans.
(a) Term Loan. Subject to the terms and conditions set forth
herein, each Lender severally agrees, on the Effective Date, to make a
term loan (collectively, the "Term Loans") to the Borrower, in Dollars,
in an amount equal to such Lender's Term Loan Commitment Percentage, if
any, of the Term Loan Committed Amount; provided that the aggregate
amount of such Term Loans made on the Effective Date shall not exceed
the Term Loan Committed Amount. Once repaid, Term Loans cannot be
reborrowed.
(b) Funding of Term Loans. On the Effective Date, each
applicable Lender will make its Term Loan Commitment Percentage of the
Term Loan Committed Amount available to the Administrative Agent by
deposit, in Dollars and in immediately available funds, at the offices
of the Administrative Agent at the Agency Services Address or at such
other address as the Administrative Agent may designate in writing. The
amount of the Term Loans will then be made available to the Borrower by
the Administrative Agent by crediting the account of the Borrower on
the books of such office of the Administrative Agent, to the extent the
amount of such Term Loans are made available to the Administrative
Agent.
No Lender shall be responsible for the failure or delay by any
other Lender in its obligation to make a Term Loan hereunder; provided,
however, that the failure of any Lender to fulfill its obligations
hereunder shall not relieve any other Lender of its obligations
hereunder. If the Administrative Agent shall have received an executed
signature page to this Credit Agreement (whether an original or via
telecopy) from a Lender, the Administrative Agent may assume that such
Lender has or will make the amount of its Term Loans available to the
Administrative Agent on the Effective Date, and the Administrative
Agent in reliance upon such assumption, may (in its sole discretion but
without any obligation to do so) make available to the Borrower a
corresponding amount. If such corresponding amount is not in fact made
available to the Administrative Agent, the Administrative Agent shall
be able to recover such corresponding amount from such Lender. If such
Lender does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent will
promptly notify the
37
Borrower, and the Borrower shall immediately pay such corresponding
amount to the Administrative Agent. The Administrative Agent shall also
be entitled to recover from the Lender or the Borrower, as the case may
be, interest on such corresponding amount in respect of each day from
the date such corresponding amount was made available by the
Administrative Agent to the Borrower to the date such corresponding
amount is recovered by the Administrative Agent at a per annum rate
equal to (i) from the Borrower at the Adjusted Base Rate and (ii) from
a Lender at the Federal Funds Rate if paid within two Business Days of
the date of drawing and thereafter at a rate equal to the Base Rate
plus two percent (2%) per annum.
(c) Amortization. The principal amount of the Term Loans
shall be repaid in quarterly payments on the dates set forth below:
--------------------------------------------------------------
Principal Amortization Term Loan Principal
Payment Dates Amortization Payments
--------------------------------------------------------------
9/30/01 $6,562,500
--------------------------------------------------------------
12/31/01 $6,562,500
--------------------------------------------------------------
3/31/02 $6,562,500
--------------------------------------------------------------
6/30/02 $6,562,500
--------------------------------------------------------------
9/30/02 $8,750,000
--------------------------------------------------------------
12/31/02 $8,750,000
--------------------------------------------------------------
3/31/03 $8,750,000
--------------------------------------------------------------
6/30/03 $8,750,000
--------------------------------------------------------------
9/30/03 $8,750,000
--------------------------------------------------------------
12/31/03 $8,750,000
--------------------------------------------------------------
3/31/04 $8,750,000
--------------------------------------------------------------
6/30/04 $8,750,000
--------------------------------------------------------------
9/30/04 $8,750,000
--------------------------------------------------------------
12/31/04 $8,750,000
--------------------------------------------------------------
3/31/05 $8,750,000
--------------------------------------------------------------
6/30/05 $8,750,000
--------------------------------------------------------------
9/30/05 $10,937,500
--------------------------------------------------------------
12/31/05 $10,937,500
--------------------------------------------------------------
3/31/06 $10,937,500
--------------------------------------------------------------
Maturity Date $10,937,500
--------------------------------------------------------------
(d) Term Notes. The portion of the Term Loans made by each
Lender shall be evidenced by a duly executed promissory note of the
Borrower to each Lender that requests a Term Note in substantially the
form of Exhibit 2.5(d).
2.6 Continuations and Conversions.
Subject to the terms below, the Borrower shall have the option, on any
Business Day, to continue existing Eurodollar Loans for a subsequent Interest
Period, to convert Base Rate Loans into Eurodollar Loans or to convert
Eurodollar Loans into Base Rate Loans. By no later than 11:00 a.m. (a) on the
date of the requested conversion of a Eurodollar Loan to a Base Rate Loan or (b)
three Business Days prior to the date of the requested continuation of a
Eurodollar Loan or conversion of a Base Rate Loan to a Eurodollar Loan, the
Borrower shall provide telephonic notice
38
to the Administrative Agent, followed promptly by a written Notice of
Continuation/Conversion, in the form of Exhibit 2.6 setting forth (i) whether
the Borrower wishes to continue or convert such Loans, (ii) if the request is to
continue a Eurodollar Loan or convert a Base Rate Loan to a Eurodollar Loan, the
Interest Period applicable thereto and (iii) whether the Loans to be continued
or converted are Revolving Loans or Term Loans. Notwithstanding anything herein
to the contrary, (A) except as provided in Section 3.11, Eurodollar Loans may
only be continued or converted into Base Rate Loans on the last day of the
Interest Period applicable thereto, (B) Eurodollar Loans may not be continued
nor may Base Rate Loans be converted into Eurodollar Loans during the existence
and continuation of a Default or an Event of Default, (C) any request to
continue a Eurodollar Loan that fails to comply with the terms hereof or any
failure to request a continuation of a Eurodollar Loan at the end of an Interest
Period shall constitute a conversion to a Base Rate Loan on the last day of the
applicable Interest Period and (D) any failure to state the Interest Period with
respect to the continuation of a Eurodollar Loan or the conversion of a Base
Rate Loan to a Eurodollar Loan shall constitute a request for a one month
Interest Period. It is understood and agreed that Competitive Bid Loans and
Swing Line Loans may not be continued or converted.
2.7 Minimum Amounts.
Each request for a borrowing, conversion or continuation shall be
subject to the requirements that (a) each Eurodollar Loan and each Competitive
Bid Loan shall be in a minimum amount of $10,000,000 and in integral multiples
of $1,000,000 in excess thereof, (b) each Base Rate Loan shall be in a minimum
amount of the lesser of $5,000,000 (and in integral multiples of $1,000,000 in
excess thereof) or the remaining amount available under the Revolving Committed
Amount or the remaining amount of outstanding Term Loans, as applicable, (c)
each Swing Line Loan shall be in a minimum amount of the lesser of $1,000,000
(and in integral multiples of $100,000 in excess thereof) or the remaining
amount available under the Swing Line Committed Amount and (d) no more than ten
Eurodollar Loans shall be outstanding hereunder at any one time. For the
purposes of this Section 2.7, all Eurodollar Loans with the same Interest
Periods that begin and end on the same date shall be considered as one
Eurodollar Loan, but Eurodollar Loans with different Interest Periods, even if
they begin on the same date, shall be considered as separate Eurodollar Loans.
SECTION 3
GENERAL PROVISIONS APPLICABLE
TO LOANS AND LETTERS OF CREDIT
3.1 Interest.
(a) Interest Rate. Subject to Section 3.1(b), (i) all Base
Rate Loans shall accrue interest at the Base Rate, (ii) all Eurodollar
Loans shall accrue interest at the Adjusted Eurodollar Rate, (iii) all
Swing Line Loans shall accrue interest at the Base Rate and (iv) all
Competitive Bid Loans shall accrue interest at the applicable
Competitive Bid Rate with respect to each Competitive Bid Loan.
39
(b) Default Rate of Interest. Upon the occurrence, and during
the continuation, of an Event of Default pursuant to Section 9.1(a),
the principal of and, to the extent permitted by law, interest on the
Loans and any other amounts owing hereunder or under the other Credit
Documents (including without limitation fees and expenses) shall bear
interest, payable on demand, at a per annum rate equal to 2% plus the
rate which would otherwise be applicable (or if no rate is applicable,
then the Base Rate plus two percent (2%) per annum).
(c) Interest Payments. Interest on Loans shall be due and
payable in arrears on each Interest Payment Date.
3.2 Place and Manner of Payments.
All payments of principal, interest, fees, expenses and other amounts
to be made by a Credit Party under this Credit Agreement shall be made
unconditionally and without any setoff, deduction, counterclaim, defense,
recoupment or withholding of any kind and received not later than 2:00 p.m. on
the date when due, in Dollars and in immediately available funds, by the
Administrative Agent at the Agency Services Address. Payments received after
such time shall be deemed to have been received on the next Business Day. The
Borrower shall, at the time it makes any payment under this Credit Agreement,
specify to the Administrative Agent the Loans, Letters of Credit, fees or other
amounts payable by the Borrower hereunder to which such payment is to be applied
(and in the event that it fails to specify, or if such application would be
inconsistent with the terms hereof, the Administrative Agent shall, subject to
Section 3.7, distribute such payment to the Lenders in such manner as the
Administrative Agent may reasonably deem appropriate). The Administrative Agent
will distribute such payments to the Lenders on the same Business Day if any
such payment is received at or before 2:00 p.m.; otherwise the Administrative
Agent will distribute such payment to the Lenders on the next succeeding
Business Day. Whenever any payment hereunder shall be stated to be due on a day
which is not a Business Day, the due date thereof shall be extended to the next
succeeding Business Day (subject to accrual of interest and fees for the period
of such extension), except that, in the case of Eurodollar Loans (or interest
payable with respect thereto), if the extension would cause the payment to be
made in the next following calendar month, then such payment shall instead be
made on the next preceding Business Day.
3.3 Prepayments.
(a) Voluntary Prepayments. The Borrower shall have the right
to prepay Loans in whole or in part from time to time without premium
or penalty; provided, however, that (i) Eurodollar Loans may only be
prepaid on three Business Days' prior written notice to the
Administrative Agent, (ii) each such partial prepayment of Eurodollar
Loans or Base Rate Loans shall be in the minimum principal amount of
$5,000,000 and integral multiples of $1,000,000, (iii) each such
partial prepayment of Swing Line Loans shall be in the minimum
principal amount of $1,000,000 and integral multiples of $100,000, (iv)
Competitive Bid Loans may not be prepaid unless a breakage fee equal to
the amount of damages suffered by the Lender (other than loss of
anticipated profits) whose Competitive Bid Loan is prepaid is paid to
such Lender (as determined by such Lender in its reasonable discretion)
and (v) voluntary prepayments of Term Loans shall be applied first to
the next scheduled principal payment and then to the remaining
scheduled principal payments pro rata among
40
all such remaining payments. Amounts prepaid pursuant to this Section
3.3(a) shall be applied as the Borrower may elect; however, if the
Borrower fails to specify, such prepayment will be applied in the
manner set forth in Section 3.3(c) below. All prepayments under this
Section 3.3(a) shall be subject to Section 3.14
(b) Mandatory Prepayments. If at any time (i) the sum of the
aggregate amount of outstanding Revolving Loans plus the aggregate
amount of outstanding LOC Obligations plus the aggregate amount of
outstanding Competitive Bid Loans plus the aggregate amount of
outstanding Swing Line Loans exceeds the Revolving Committed Amount,
(ii) the aggregate amount of outstanding Swing Line Loans exceeds the
Swing Line Committed Amount, (iii) the aggregate amount of outstanding
LOC Obligations exceeds the LOC Committed Amount or (iv) the amount of
outstanding Competitive Bid Loans exceeds $200,000,000, the Borrower
shall immediately make a principal payment to the Administrative Agent
(or with respect to LOC Obligations an amount to be held as cash
collateral) in a manner and in an amount necessary to be in compliance
with Sections 2.1, 2.2, 2.3 and 2.4, as applicable and as directed by
the Administrative Agent (any such prepayment with respect to clause
(i) above to be applied as set forth in Section 3.3(c) below).
(c) Application of Prepayments. All amounts paid pursuant to
Section 3.3(a), if the Borrower has not otherwise elected an
application of such amounts, shall be applied first to Term Loans
(first to the next scheduled principal payment and then to the
remaining scheduled principal payments pro rata among all such
remaining payments), second to Swing Line Loans, third to Revolving
Loans (first to Base Rate Loans and then to Eurodollar Loans in direct
order of Interest Period Maturities), fourth, pro rata, to Competitive
Bid Loans and fifth to a cash collateral account in respect of LOC
Obligations. All amounts required to be prepaid pursuant to Section
3.3(b)(i) shall be applied first to Revolving Loans (first to Base Rate
Loans and then to Eurodollar Loans in direct order of Interest Period
maturities), second to Swing Line Loans, third, pro rata, to
Competitive Bid Loans and fourth to a cash collateral account in
respect of LOC Obligations. All prepayments hereunder shall be subject
to Section 3.14.
(d) Revision of Amortization Schedule. If the Borrower makes a
prepayment in accordance with this Section 3.3, the Administrative
Agent shall recalculate the outstanding principal amount of the Term
Loans following such prepayment, reschedule the remaining amortization
payments as agreed by the Borrower, and promptly distribute to the
Borrower and to each of the Lenders a revised version of the schedule
which appears in Section 2.5(c).
3.4 Fees.
(a) Facility Fees. In consideration of the Revolving Committed
Amount being made available by the Lenders hereunder, the Borrower
agrees to pay to the Administrative Agent, for the pro rata benefit of
each Lender (based on such Lender's Revolving Loan Commitment
Percentage of the Revolving Committed Amount), a per annum fee equal to
the Applicable Percentage for Facility Fees (the "Facility Fees"). The
Facility Fees shall
41
commence to accrue on the Effective Date and shall be due and payable
in arrears on the last day of each fiscal quarter (beginning with the
fiscal quarter ending September 30, 2001) of the Borrower (as well as
on the Maturity Date and on any date that the Revolving Committed
Amount is reduced) for the immediately preceding fiscal quarter, or
portion thereof, (or with respect to the fiscal quarter ending
September 30, 2001, for the period from the Closing Date to September
30, 2001).
(b) Letter of Credit Fees.
(i) Letter of Credit Fees. In consideration of the
issuance of Letters of Credit hereunder, the Borrower agrees
to pay to the Issuing Lender, for the pro rata benefit of each
Lender (based on each Lender's Commitment Percentage), a per
annum fee (the "Letter of Credit Fees") equal to the
Applicable Percentage for the Letter of Credit Fees on the
average daily maximum amount available to be drawn under each
such Letter of Credit from the date of issuance to the date of
expiration. The Letter of Credit Fees will be payable in
arrears on the last day of each fiscal quarter (beginning with
the fiscal quarter ending September 30, 2001) of the Borrower
(as well as on the Maturity Date) for the immediately
preceding fiscal quarter, or portion thereof, (or with respect
to the fiscal quarter ending September 30, 2001, for the
period from the Closing Date to September 30, 2001).
(ii) Issuing Lender Fees. In addition to the Letter
of Credit Fees payable pursuant to subsection (i) above, the
Borrower shall pay to the Issuing Lender for its own account,
without sharing by the other Lenders, (A) the customary,
incidental and/or out of pocket charges from time to time to
the Issuing Lender for its services in connection with the
issuance, amendment, payment, transfer, administration,
cancellation and conversion of, and drawings under, Letters of
Credit and (B) a letter of credit fronting fee of .125% per
annum of the face amount of each Letter of Credit
(collectively, the "Issuing Lender Fees"), such fee to be
payable quarterly on the last day of each fiscal quarter of
the Borrower (beginning with the fiscal quarter ending
September 30, 2001) and on the Maturity Date.
(c) Administrative Fees. The Borrower agrees to pay to the
Administrative Agent, for its own account, an annual fee as agreed to
between the Borrower and the Administrative Agent.
3.5 Payment in full at Maturity.
On the Maturity Date, the entire outstanding principal balance of all
Loans and all LOC Obligations, together with accrued but unpaid interest and all
other sums owing with respect thereto, shall be due and payable in full, unless
accelerated sooner pursuant to Section 9.
3.6 Computations of Interest and Fees.
(a) Except for Base Rate Loans and Swing Line Loans that are
based upon the Prime Rate, in which case interest shall be computed on
the basis of the actual number of
42
days elapsed over a year of 365 or 366 days, as the case may be, all
computations of interest and fees hereunder shall be made on the basis
of the actual number of days elapsed over a year of 360 days. Interest
shall accrue from and include the date of borrowing (or continuation or
conversion) but exclude the date of payment.
(b) It is the intent of the Lenders and the Credit Parties to
conform to and contract in strict compliance with applicable usury law
from time to time in effect. All agreements between the Lenders and the
Credit Parties are hereby limited by the provisions of this paragraph
which shall override and control all such agreements, whether now
existing or hereafter arising and whether written or oral. In no way,
nor in any event or contingency (including but not limited to
prepayment or acceleration of the maturity of any obligation), shall
the interest taken, reserved, contracted for, charged, or received
under this Credit Agreement, under the Notes or otherwise, exceed the
maximum nonusurious amount permissible under applicable law. If, from
any possible construction of any of the Credit Documents or any other
document, interest would otherwise be payable in excess of the maximum
nonusurious amount, any such construction shall be subject to the
provisions of this paragraph and such documents shall be automatically
reduced to the maximum nonusurious amount permitted under applicable
law, without the necessity of execution of any amendment or new
document. If any Lender shall ever receive anything of value which is
characterized as interest on the Loans under applicable law and which
would, apart from this provision, be in excess of the maximum
nonusurious amount, an amount equal to the amount which would have been
excessive interest shall, without penalty, be applied to the reduction
of the principal amount owing on the Loans and not to the payment of
interest, or refunded to the Borrower or the other payor thereof if and
to the extent such amount which would have been excessive exceeds such
unpaid principal amount of the Loans. The right to demand payment of
the Loans or any other Indebtedness evidenced by any of the Credit
Documents does not include the right to accelerate the payment of any
interest which has not otherwise accrued on the date of such demand,
and the Lenders do not intend to charge or receive any unearned
interest in the event of such demand. All interest paid or agreed to be
paid to the Lenders with respect to the Loans shall, to the extent
permitted by applicable law, be amortized, prorated, allocated, and
spread throughout the full stated term (including any renewal or
extension) of the Loans so that the amount of interest on account of
such Indebtedness does not exceed the maximum nonusurious amount
permitted by applicable law.
3.7 Pro Rata Treatment.
Except to the extent otherwise provided herein:
(a) Revolving Loans and Term Loans. Each Revolving Loan
borrowing (including, without limitation, each Mandatory Borrowing),
each payment or prepayment of principal of any Revolving Loan or Term
Loan, each payment of fees (other than the Issuing Lender Fees retained
by the Issuing Lender for its own account and the Administrative Fees
retained by the Administrative Agent for its own account), each
reduction of the Revolving Committed Amount, and each conversion or
continuation of any Revolving Loan or the Term Loans, shall (except as
otherwise provided in Section 3.11) be allocated pro rata
43
among the relevant Lenders in accordance with the respective Revolving
Loan Commitment Percentages or Term Loan Commitment Percentages of such
Lenders, as applicable, (or, if the Commitments of such Lenders have
expired or been terminated, in accordance with the respective principal
amounts of the outstanding Revolving Loans, Term Loans and
Participation Interests of such Lenders); provided that, if any Lender
shall have failed to pay its applicable pro rata share of any Revolving
Loan or Term Loan, then any amount to which such Lender would otherwise
be entitled pursuant to this subsection (a) shall instead be payable to
the Administrative Agent until the share of such Loan not funded by
such Lender has been repaid; provided further, that in the event any
amount paid to any Lender pursuant to this subsection (a) is rescinded
or must otherwise be returned by the Administrative Agent, each Lender
shall, upon the request of the Administrative Agent, repay to the
Administrative Agent the amount so paid to such Lender, with interest
for the period commencing on the date such payment is returned by the
Administrative Agent until the date the Administrative Agent receives
such repayment at a rate per annum equal to, during the period to but
excluding the date two Business Days after such request, the Federal
Funds Rate, and thereafter, the Base Rate plus two percent (2%) per
annum; and
(b) Letters of Credit. Each payment of unreimbursed drawings
in respect of LOC Obligations shall be allocated to each Participant
pro rata in accordance with its Revolving Loan Commitment Percentage;
provided that, if any Participant shall have failed to pay its
applicable pro rata share of any drawing under any Letter of Credit,
then any amount to which such Participant would otherwise be entitled
pursuant to this subsection (b) shall instead be payable to the Issuing
Lender until the share of such unreimbursed drawing not funded by such
Lender has been repaid; provided further, that in the event any amount
paid to any Participant pursuant to this subsection (b) is rescinded or
must otherwise be returned by the Issuing Lender, each Participant
shall, upon the request of the Issuing Lender, repay to the
Administrative Agent for the account of the Issuing Lender the amount
so paid to such Participant, with interest for the period commencing on
the date such payment is returned by the Issuing Lender until the date
the Issuing Lender receives such repayment at a rate per annum equal
to, during the period to but excluding the date two Business Days after
such request, the Federal Funds Rate, and thereafter, the Base Rate
plus two percent (2%) per annum.
(c) Swing Line Loans. The Swing Line Lender shall receive, for
its own account, all payments or prepayments of principal and interest
with respect to the Swing Line Loans; provided, however, upon the
funding of the Participants' participation interests with respect to a
Swing Line Loan pursuant to Section 2.3(c), such Participants shall be
entitled to receive their pro rata share of any payment or prepayment
of principal and interest with respect to such Swing Line Loan.
3.8 Sharing of Payments.
The Lenders agree among themselves that, except to the extent otherwise
provided herein, in the event that any Lender shall obtain payment in respect of
any Loan, unreimbursed drawing with respect to any LOC Obligations or any other
obligation owing to such Lender under this Credit Agreement through the exercise
of a right of setoff, banker's lien or counterclaim, or pursuant to a
44
secured claim under Section 506 of the Bankruptcy Code or other security or
interest arising from, or in lieu of, such secured claim, received by such
Lender under any applicable bankruptcy, insolvency or other similar law or
otherwise, or by any other means, in excess of its pro rata share of such
payment as provided for in this Credit Agreement, such Lender shall promptly pay
in cash or purchase from the other Lenders a participation in such Loans, LOC
Obligations, and other obligations in such amounts, and make such other
adjustments from time to time, as shall be equitable to the end that all Lenders
share such payment in accordance with their respective ratable shares as
provided for in this Credit Agreement. The Lenders further agree among
themselves that if payment to a Lender obtained by such Lender through the
exercise of a right of setoff, banker's lien, counterclaim or other event as
aforesaid shall be rescinded or must otherwise be restored, each Lender which
shall have shared the benefit of such payment shall, by payment in cash or a
repurchase of a participation theretofore sold, return its share of that benefit
(together with its share of any accrued interest payable with respect thereto)
to each Lender whose payment shall have been rescinded or otherwise restored.
The Borrower agrees that any Lender so purchasing such a participation may, to
the fullest extent permitted by law, exercise all rights of payment, including
setoff, banker's lien or counterclaim, with respect to such participation as
fully as if such Lender were a holder of such Loan, LOC Obligation or other
obligation in the amount of such participation. Except as otherwise expressly
provided in this Credit Agreement, if any Lender or the Administrative Agent
shall fail to remit to any other Lender an amount payable by such Lender or the
Administrative Agent to such other Lender pursuant to this Credit Agreement on
the date when such amount is due, such payments shall be made together with
interest thereon for each date from the date such amount is due until the date
such amount is paid to the Administrative Agent or such other Lender at a rate
per annum equal to the Federal Funds Rate. If under any applicable bankruptcy,
insolvency or other similar law, any Lender receives a secured claim in lieu of
a setoff to which this Section 3.8 applies, such Lender shall, to the extent
practicable, exercise its rights in respect of such secured claim in a manner
consistent with the rights of the Lenders under this Section 3.8 to share in the
benefits of any recovery on such secured claim.
3.9 Capital Adequacy/Regulation D.
(a) If, after the date thereof, any Lender determines that the
introduction after the Closing Date of any law, rule or regulation or
other Requirement of Law regarding capital adequacy or any change
therein or in the interpretation thereof, or compliance by such Lender
(or its Lending Office) therewith, has or would have the effect of
reducing the rate of return on the capital or assets of such Lender or
any corporation controlling such Lender as a consequence of such
Lender's obligations hereunder (taking into consideration its policies
with respect to capital adequacy and such Lender's desired return on
capital), then from time to time upon demand of such Lender (with a
copy of such demand to the Administrative Agent), the Borrower shall
pay to such Lender such additional amounts as will compensate such
Lender for such reduction.
(b) The Borrower shall pay to each Lender, as long as such
Lender shall be required under regulations of the Board of Governors of
the Federal Reserve System of the United States of America to maintain
reserves with respect to liabilities or assets consisting of or
including Eurocurrency funds or deposits (currently known as
"Eurocurrency liabilities"), additional interest on the unpaid
principal amount of each Eurodollar Loan
45
equal to (i) (A) the applicable Eurodollar Rate divided by (B) one
minus the Eurodollar Reserve Percentage minus (ii) the applicable
Eurodollar Rate. Such additional interest shall be due and payable on
each date on which interest is payable on such Loan; provided the
Borrower shall have received at least five days' prior notice (with a
copy to the Administrative Agent) of such additional interest from such
Lender. If a Lender fails to give notice five days prior to the
relevant Interest Payment Date, such additional interest shall be due
and payable five days from the receipt by the Borrower of such notice.
3.10 Inability To Determine Interest Rate.
If the Administrative Agent determines (which determination shall be
conclusive and binding upon the Borrower) in connection with any request for a
Eurodollar Loan or a conversion to or continuation thereof that (a) Dollar
deposits are not being offered to banks in the applicable offshore Dollar market
for the applicable amount and Interest Period of such Eurodollar Loan, (b)
adequate and reasonable means do not exist for determining the Eurodollar Rate
for such Eurodollar Loan, or (c) the Eurodollar Rate for such Eurodollar Loan
does not adequately and fairly reflect the cost to the Lenders of funding such
Eurodollar Loan, the Administrative Agent will promptly notify the Borrower and
all the Lenders. Thereafter, the obligation of the Lenders to make or maintain
Eurodollar Loans shall be suspended until the Administrative Agent revokes such
notice. Upon receipt of such notice, the Borrower may revoke any pending Notice
of Borrowing or Notice of Continuation/Conversion with respect to Eurodollar
Loans or, failing that, will be deemed to have converted such request into a
request for a borrowing of or conversion into a Base Rate Loan in the amount
specified therein.
3.11 Illegality.
If any Lender determines that any Requirement of Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund
Eurodollar Loans, or materially restricts the authority of such Lender to
purchase or sell, or to take deposits of, Dollars in the applicable offshore
Dollar market, or to determine or charge interest rates based upon the
Eurodollar Rate, then, on notice thereof by such Lender to the Borrower through
the Administrative Agent, any obligation of such Lender to make or continue
Eurodollar Loans or to convert Base Rate Loans to Eurodollar Loans shall be
suspended until such Lender notifies the Administrative Agent and the Borrower
that the circumstances giving rise to such determination no longer exist. Upon
receipt of such notice, the Borrower shall, upon demand from such Lender (with a
copy to the Administrative Agent), prepay or, if applicable, convert all
Eurodollar Loans of such Lender to Base Rate Loans, either on the last day of
the Interest Period thereof, if such Lender may lawfully continue to maintain
such Eurodollar Loans to such day, or immediately, if such Lender may not
lawfully continue to maintain such Eurodollar Loans. Upon any such prepayment or
conversion, the Borrower shall also pay interest on the amount so prepaid or
converted, together with any amounts due with respect thereto pursuant to
Section 3.14. Each Lender agrees to designate a different Lending Office if such
designation will avoid the need for such notice and will not, in the good faith
judgment of such Lender, otherwise be materially disadvantageous to such Lender.
46
3.12 Requirements of Law.
If any Lender determines that as a result of the introduction of or any
change in, or in the interpretation of, any Requirement of Law, or such Lender's
compliance therewith, there shall be any increase in the cost to such Lender of
agreeing to make or making, funding or maintaining Eurodollar Loans or (as the
case may be) issuing or participating in Letters of Credit, or a reduction in
the amount received or receivable by such Lender in connection with any of the
foregoing (excluding for purposes of this subsection (a) any such increased
costs or reduction in amount resulting from (i) Taxes or Other Taxes (as to
which Section 3.13 shall govern) and (ii) reserve requirements utilized in the
determination of the Eurodollar Rate), then from time to time, within 10 days of
demand of such Lender (with a copy of such demand to the Administrative Agent),
the Borrower shall pay to such Lender such additional amounts as will compensate
such Lender for such increased cost or reduction in yield.
3.13 Taxes.
(a) Any and all payments by a Credit Party to or for the
account of the Administrative Agent or any Lender under any Credit
Document shall be made free and clear of and without deduction for any
and all present or future income, stamp or other taxes, duties, levies,
imposts, deductions, assessments, fees, withholdings or similar
charges, and all liabilities with respect thereto, but excluding, in
the case of the Administrative Agent and each Lender, taxes imposed on
or measured by its net income, and franchise taxes imposed on it (in
lieu of net income taxes), by the jurisdiction (or any political
subdivision thereof) under the laws of which the Administrative Agent
or such Lender, as the case may be, is organized or maintains its
Lending Office (all such non-excluded present or future income, stamp
or other taxes, duties, levies, imposts, deductions, assessments, fees,
withholdings or similar charges, and liabilities being hereinafter
referred to as "Taxes"). If a Credit Party shall be required by any
Requirement of Law to deduct any Taxes from or in respect of any sum
payable under any Credit Document to the Administrative Agent or any
Lender, (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable
to additional sums payable under this Section 3.13(a)), the
Administrative Agent or such Lender, as the case may be, receives an
amount equal to the sum it would have received had no such deductions
been made, (ii) such Credit Party shall make such deductions, (iii)
such Credit Party shall pay the full amount deducted to the relevant
taxation authority or other Governmental Authority in accordance with
applicable Requirements of Law, and (iv) within 30 days after the date
of such payment, such Credit Party shall furnish to the Administrative
Agent (which shall forward the same to such Lender) the original or a
certified copy of a receipt evidencing payment thereof, to the extent
such receipt is issued therefor, or other written proof of payment
thereof that is reasonably satisfactory to the Administrative Agent.
(b) In addition, each Credit Party agrees to pay any and all
present or future stamp, court or documentary taxes and any other
excise or property taxes or charges or similar levies which arise from
any payment made under any Credit Document or from
47
the execution, delivery, performance, enforcement or registration of,
or otherwise with respect to, any Credit Document (hereinafter referred
to as "Other Taxes").
(c) If a Credit Party shall be required to deduct or pay any
Taxes or Other Taxes from or in respect of any sum payable under any
Credit Document to the Administrative Agent or any Lender, such Credit
Party shall also pay to the Administrative Agent (for the account of
such Lender) or to such Lender, at the time interest is paid, such
additional amount that such Lender reasonably specifies by written
notice to such Credit Party as necessary to preserve the after-tax
yield (after factoring in all taxes, including taxes imposed on or
measured by net income) such Lender would have received if such Taxes
or Other Taxes had not been imposed; provided that if such Lender fails
to provide such notice to such Credit Party before the date which is
five days prior to the date such interest is paid, such Credit Party
shall pay at the time such interest is paid such amount as such Credit
Party reasonably estimates will preserve such Lender's after-tax yield
(after factoring in only such Taxes or Other Taxes) and pay the balance
within five days after receiving such notice.
(d) Each Credit Party agrees to indemnify the Administrative
Agent and each Lender for (i) the full amount of Taxes and Other Taxes
(including any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this Section 3.13(d)) paid by the
Administrative Agent and such Lender, and (ii) any liability (including
penalties, interest and reasonable expenses) arising therefrom or with
respect thereto.
(e) In the case of any payment hereunder or under any other
Credit Document by or on behalf of a Credit Party through an account or
branch outside the United States, or on behalf of a Credit Party by a
payor that is not a United States person, if such Credit Party
determines that no taxes are payable in respect thereof, such Credit
Party shall furnish, or shall cause such payor to furnish, to the
Administrative Agent, an opinion of counsel reasonably acceptable to
the Administrative Agent stating that such payment is exempt from
Taxes. For purposes of this subsection (e), the terms "United States"
and "United States person" shall have the meanings specified in Section
7701 of the Code.
(f) Each Lender that is a foreign corporation, foreign
partnership or foreign trust within the meaning of the Code shall
deliver to the Administrative Agent, prior to receipt of any payment
subject to withholding under the Code, two duly signed completed copies
of either IRS Form W-8BEN or any successor thereto (relating to such
Lender and entitling it to an exemption from, or reduction of,
withholding tax on all payments to be made to such Lender by the Credit
Parties pursuant to this Agreement) or IRS Form W-8ECI or any successor
thereto (relating to all payments to be made to such Lender by a Credit
Party pursuant to this Agreement), as appropriate, or such other
evidence satisfactory to the Borrower and the Administrative Agent that
such Lender is entitled to an exemption from, or reduction of, United
States withholding tax. Thereafter and from time to time, each such
Lender shall (i) promptly submit to the Administrative Agent such
additional duly completed and signed copies of one of such forms (or
such successor forms as shall be adopted from time to time by the
relevant United States
48
taxing authorities), as appropriate, as may reasonably be requested by
the Borrower or the Administrative Agent and then be available under
then current United States laws and regulations to avoid, or such
evidence as is satisfactory to the Borrower and the Administrative
Agent of any available exemption from or reduction of, United States
withholding taxes in respect of all payments to be made to such Lender
by the Borrower pursuant to this Agreement, (ii) promptly notify the
Agent of any change in circumstances which would modify or render
invalid any claimed exemption or reduction, and (iii) take such steps
as shall not be materially disadvantageous to it, in the reasonable
judgment of such Lender, and as may be reasonably necessary (including
the re-designation of its Lending Office) to avoid any Requirement of
Law that the Credit Parties make any deduction or withholding for taxes
from amounts payable to such Lender. If the forms or other evidence
provided by such Lender at the time such Lender first becomes a party
to this Agreement indicate a United States interest withholding tax
rate in excess of zero, withholding tax at such rate shall be
considered excluded from Taxes unless and until such Lender provides
the appropriate forms certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate only shall be considered excluded
from Taxes for periods governed by such forms; provided, however, that,
if at the date of any assignment pursuant to which a Lender becomes a
party to this Agreement, the Lender assignor was entitled to payments
under subsection (a) of this Section 3.13 in respect of United States
withholding tax with respect to interest paid at such date, then, to
such extent, the term Taxes shall include (in addition to withholding
taxes that may be imposed in the future or other amounts otherwise
includable in Taxes) United States withholding tax, if any, applicable
with respect to the Lender assignee on such date. If such Lender fails
to deliver the above forms or other evidence, then the Administrative
Agent may withhold from any interest payment to such Lender an amount
equal to the applicable withholding tax imposed by Sections 1441 and
1442 of the Code, without reduction. If any Governmental Authority
asserts that the Administrative Agent did not properly withhold any tax
or other amount from payments made in respect of such Lender, such
Lender shall indemnify the Administrative Agent therefor, including all
penalties and interest, any taxes imposed by any jurisdiction on the
amounts payable to the Administrative Agent under this Section 3.13(f),
and costs and expenses (including Attorney Costs) of the Administrative
Agent. For any period with respect to which a Lender has failed to
provide the Borrower with the above forms or other evidence (other than
if such failure is due to a change in the applicable law, or in the
interpretation or application thereof, occurring after the date on
which such form or other evidence originally was required to be
provided or if such form or other evidence otherwise is not required,
such Lender shall not be entitled to indemnification under subsection
(a) or (c) of this Section 3.13 with respect to Taxes imposed by the
United States by reason of such failure; provided, however, that should
a Lender become subject to Taxes because of its failure to deliver such
form or other evidence required hereunder, the Borrower shall take such
steps as such Lender shall reasonably request to assist such Lender in
recovering such Taxes. (v) The obligation of the Lenders under this
Section 3.13(f) shall survive the payment of all Obligations and the
resignation or replacement of the Administrative Agent.
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(g) In the event that an additional payment is made under
Section 3.13(a) or (c) for the account of any Lender and such Lender,
in its reasonable judgment, determines that it has finally and
irrevocably received or been granted a credit against or release or
remission for, or repayment of, any tax paid or payable by it in
respect of or calculated with reference to the deduction or withholding
giving rise to such payment, such Lender shall, to the extent that it
determines that it can do so without prejudice to the retention of the
amount of such credit, relief, remission or repayment, pay to the
Borrower such amount as such Lender shall, in its reasonable judgment,
have determined to be attributable to such deduction or withholding and
which will leave such Lender (after such payment) in no worse position
than it would have been in if the Borrower had not been required to
make such deduction or withholding. Nothing herein contained shall
interfere with the right of a Lender to arrange its tax affairs in
whatever manner it thinks fit nor oblige any Lender to claim any tax
credit or to disclose any information relating to its tax affairs or
any computations in respect thereof or require any Lender to do
anything that would prejudice its ability to benefit from any other
credits, reliefs, remissions or repayments to which it may be entitled.
3.14 Compensation.
Upon the written demand of any Lender, the Borrower shall promptly
compensate such Lender for and hold such Lender harmless from any loss, cost or
expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any
Eurodollar Loan on a day other than the last day of the Interest Period
for such Eurodollar Loan (whether voluntary, mandatory, automatic, by
reason of acceleration, or otherwise); or
(b) any failure by the Borrower (for a reason other than the
failure of such Lender to make a Eurodollar Loan) to prepay, borrow,
continue or convert any Eurodollar Loan on the date or in the amount
previously requested by the Borrower; or
(c) any repayment of a Competitive Bid Loan on a date which is
not the last day of the Interest Period applicable thereto or any
failure by the Borrower to borrow a Competitive Bid Loan on the date in
the amount previously agreed to by the Borrower.
The amount each such Lender shall be compensated pursuant to this Section 3.14
shall include, without limitation, (i) any loss incurred by such Lender in
connection with the re-employment of funds prepaid, repaid, not borrowed or
paid, as the case may be and (ii) any reasonable out-of-pocket expenses
(including Attorney Costs) incurred and reasonably attributable thereto.
For purposes of calculating amounts payable by the Borrower to the Lenders under
this Section 3.14, each Lender may deem that it funded each Eurodollar Loan made
by it at the Eurodollar Rate for such Eurodollar Loan by a matching deposit or
other borrowing in the applicable offshore Dollar interbank market for a
comparable amount and for a comparable period, whether or not such Eurodollar
Loan was in fact so funded.
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3.15 Determination and Survival of Provisions.
All determinations by the Administrative Agent or a Lender of amounts
owing under Sections 3.9 through 3.14, inclusive, shall, absent manifest error,
be conclusive and binding on the parties hereto. In determining such amount, the
Administrative Agent or such Lender may use any reasonable averaging and
attribution methods. Section 3.9 through 3.14, inclusive, shall survive the
termination of this Credit Agreement and the payment of all Credit Party
Obligations.
3.16 Notification by Lenders.
Subject to Section 3.13(c), each Lender shall notify the Borrower (and
any applicable Credit Party) of any event that will entitle such Lender to
compensation under Section 3.9, 3.12, 3.13 or 3.14 as promptly as practicable,
but in any event within 90 days after such Lender obtains actual knowledge
thereof; provided, however, that if any Lender fails to give such notice within
90 days after it obtains actual knowledge of such an event, such Lender shall,
with respect to compensation payable pursuant to Section 3.9, 3.12, 3.13 or 3.14
in respect of any costs resulting from such event, only be entitled to payment
under Section 3.9, 3.12, 3.13 or 3.14 for costs incurred from and after the date
90 days prior to the date that such Lender gives such notice. If requested by
the Borrower, each Lender will furnish to Borrower within ten Business Days of
the time the Lender requests compensation under Section 3.9, 3.12, 3.13 or 3.14,
a certificate setting forth the basis, amount and reasonable detail of
computation of each request by such Lender for compensation under Section 3.9,
3.12, 3.13 or 3.14, which certificate shall, except for demonstrable error, be
final, conclusive and binding for all purposes.
3.17 Mitigation; Mandatory Assignment.
Each Lender shall use reasonable efforts to avoid or mitigate any
increased cost or suspension of the availability of an interest rate under
Sections 3.9 through 3.14 above to the greatest extent practicable (including
transferring the Loans to another Lending Office or Affiliate of a Lender)
unless, in the reasonable opinion of such Lender, such efforts would be likely
to have an adverse effect upon it. In the event a Lender makes a request to the
Borrower for additional payments in accordance with Section 3.9, 3.11, 3.12,
3.13 or 3.14, then, provided that no Default or Event of Default has occurred
and is continuing at such time, the Borrower may, at its own expense (such
expense to include, without limitation, any transfer fee payable to the
Administrative Agent under Section 11.3(b)) and in its sole discretion, require
such Lender to transfer and assign in whole (but not in part), without recourse
(in accordance with and subject to the terms and conditions of Section 11.3(b)),
all of its interests, rights and obligations under this Credit Agreement to an
Eligible Assignee which shall assume such assigned obligations (which assignee
may be another Lender, if a Lender accepts such assignment); provided that (a)
such assignment shall not conflict with any law, rule or regulation or order of
any court or other Governmental Authority and (b) the Borrower or such assignee
shall have paid to the assigning Lender in immediately available funds the
principal of and interest accrued to the date of such payment on the portion of
the Loans hereunder held by such assigning Lender and all other amounts owed to
such assigning Lender hereunder, including amounts owed pursuant to Sections 3.9
through 3.14 hereof.
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SECTION 4
GUARANTY
4.1 Guaranty of Payment.
Subject to Section 4.7 below, each of the Guarantors hereby, jointly
and severally, unconditionally guarantees to each Lender and the Administrative
Agent the prompt payment of the Credit Party Obligations in full when due
(whether at stated maturity, as a mandatory prepayment, by acceleration or
otherwise) and the timely performance of all other obligations under the Credit
Documents. This Guaranty is a guaranty of payment and not of collection and is a
continuing guaranty and shall apply to all Credit Party Obligations whenever
arising.
4.2 Obligations Unconditional.
The obligations of the Guarantors hereunder are absolute and
unconditional, irrespective of the value, genuineness, validity, regularity or
enforceability of any of the Credit Documents, or any other agreement or
instrument referred to therein, to the fullest extent permitted by applicable
law, irrespective of any other circumstance whatsoever which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor.
Each Guarantor agrees that this Guaranty may be enforced by the Lenders without
the necessity at any time of resorting to or exhausting any other security or
collateral and without the necessity at any time of having recourse to the Notes
or any other of the Credit Documents or any collateral, if any, hereafter
securing the Credit Party Obligations or otherwise and each Guarantor hereby
waives the right to require the Lenders to proceed against the Borrower or any
other Person (including a co-guarantor) or to require the Lenders to pursue any
other remedy or enforce any other right. Each Guarantor further agrees that it
shall have no right of subrogation, indemnity, reimbursement or contribution
against the Borrower or any other Guarantor of the Credit Party Obligations for
amounts paid under this Guaranty until such time as the Lenders have been paid
in full, all Commitments under the Credit Agreement have been terminated. Each
Guarantor further agrees that nothing contained herein shall prevent the Lenders
from suing on the Notes or any of the other Credit Documents or foreclosing its
security interest in or Lien on any collateral, if any, securing the Credit
Party Obligations or from exercising any other rights available to it under this
Credit Agreement, the Notes, any other of the Credit Documents, or any other
instrument of security, if any, and the exercise of any of the aforesaid rights
and the completion of any foreclosure proceedings shall not constitute a
discharge of any of any Guarantor's obligations hereunder; it being the purpose
and intent of each Guarantor that its obligations hereunder shall be absolute,
independent and unconditional under any and all circumstances. Neither any
Guarantor's obligations under this Guaranty nor any remedy for the enforcement
thereof shall be impaired, modified, changed or released in any manner
whatsoever by an impairment, modification, change, release or limitation of the
liability of the Borrower or by reason of the bankruptcy or insolvency of the
Borrower. Each Guarantor waives any and all notice of the creation, renewal,
extension or accrual of any of the Credit Party Obligations and notice of or
proof of reliance of by the Administrative Agent or any Lender upon this
Guaranty or acceptance of this Guaranty. The Credit Party Obligations, and any
of them, shall conclusively be deemed to have been created, contracted or
incurred, or renewed, extended, amended or waived, in reliance upon
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this Guaranty. All dealings between the Borrower and any of the Guarantors, on
the one hand, and the Administrative Agent and the Lenders, on the other hand,
likewise shall be conclusively presumed to have been had or consummated in
reliance upon this Guaranty. The Guarantors further agree to all rights of
set-off as set forth in Section 11.2.
4.3 Modifications.
Each Guarantor agrees that (a) all or any part of the collateral, if
any, now or hereafter held for the Credit Party Obligations, if any, may be
exchanged, compromised or surrendered from time to time; (b) the Lenders shall
not have any obligation to protect, perfect, secure or insure any such security
interests, liens or encumbrances now or hereafter held, if any, for the Credit
Party Obligations or the properties subject thereto; (c) the time or place of
payment of the Credit Party Obligations may be changed or extended, in whole or
in part, to a time certain or otherwise, and may be renewed or accelerated, in
whole or in part; (d) the Borrower and any other party liable for payment under
the Credit Documents may be granted indulgences generally; (e) any of the
provisions of the Notes or any of the other Credit Documents may be modified,
amended or waived; (f) any party (including any co-guarantor) liable for the
payment thereof may be granted indulgences or be released; and (g) any deposit
balance for the credit of the Borrower or any other party liable for the payment
of the Credit Party Obligations or liable upon any security therefor may be
released, in whole or in part, at, before or after the stated, extended or
accelerated maturity of the Credit Party Obligations, all without notice to or
further assent by such Guarantor, which shall remain bound thereon,
notwithstanding any such exchange, compromise, surrender, extension, renewal,
acceleration, modification, indulgence or release.
4.4 Waiver of Rights.
Each Guarantor expressly waives to the fullest extent permitted by
applicable law: (a) notice of acceptance of this Guaranty by the Lenders and of
all extensions of credit to the Borrower by the Lenders; (b) presentment and
demand for payment or performance of any of the Credit Party Obligations; (c)
protest and notice of dishonor or of default (except as specifically required in
the Credit Agreement) with respect to the Credit Party Obligations or with
respect to any security therefor; (d) notice of the Lenders obtaining, amending,
substituting for, releasing, waiving or modifying any security interest, lien or
encumbrance, if any, hereafter securing the Credit Party Obligations, or the
Lenders' subordinating, compromising, discharging or releasing such security
interests, liens or encumbrances, if any; and (e) all other notices to which
such Guarantor might otherwise be entitled.
4.5 Reinstatement.
The obligations of the Guarantors under this Section 4 shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Credit Party Obligations is
rescinded or must be otherwise restored by any holder of any of the Credit Party
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and each Guarantor agrees that it will indemnify
the Administrative Agent and each Lender on demand for all reasonable costs and
expenses (including, without limitation, reasonable Attorney Costs) incurred by
the Administrative Agent or such Lender in connection with such
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rescission or restoration, including any such costs and expenses incurred in
defending against any claim alleging that such payment constituted a preference,
fraudulent transfer or similar payment under any bankruptcy, insolvency or
similar law.
4.6 Remedies.
The Guarantors agree that, as between the Guarantors, on the one hand,
and the Administrative Agent and the Lenders, on the other hand, the Credit
Party Obligations may be declared to be forthwith due and payable as provided in
Section 9 (and shall be deemed to have become automatically due and payable in
the circumstances provided in Section 9) notwithstanding any stay, injunction or
other prohibition preventing such declaration (or preventing such Credit Party
Obligations from becoming automatically due and payable) as against any other
Person and that, in the event of such declaration (or such Credit Party
Obligations being deemed to have become automatically due and payable), such
Credit Party Obligations (whether or not due and payable by any other Person)
shall forthwith become due and payable by the Guarantors.
4.7 Limitation of Guaranty.
Notwithstanding any provision to the contrary contained herein or in
any of the other Credit Documents, to the extent the obligations of any
Guarantor shall be adjudicated to be invalid or unenforceable for any reason
(including, without limitation, because of any applicable state or federal law
relating to fraudulent conveyances or transfers) then the obligations of such
Guarantor hereunder shall be limited to the maximum amount that is permissible
under applicable law (whether federal or state or otherwise and including,
without limitation, the Bankruptcy Code).
4.8 Rights of Contribution.
The Credit Parties agree among themselves that, in connection with
payments made hereunder, each Credit Party shall have contribution rights
against the other Credit Parties as permitted under applicable law. Such
contribution rights shall be subordinate and subject in right of payment to the
obligations of the Credit Parties under the Credit Documents and no Credit Party
shall exercise such rights of contribution until all Credit Party Obligations
have been paid in full and the Commitments terminated.
4.9 Release of Guarantors.
Subject to Section 7.12(b), if any of the Guarantors shall cease to be
a Material Domestic Subsidiary of the Borrower for any reason subject to and in
accordance with the terms of the Credit Agreement, then such Guarantor shall,
automatically and without any further action on the part of any party to any
Credit Document, and upon notice to the Administrative Agent, be fully released
and discharged from all its liabilities and obligations under or in respect of
the Credit Documents to which such Guarantor is a party (other than liabilities
and obligations resulting from a demand on such Guarantor's Guaranty pursuant to
Section 9.2) and, promptly upon the request of the Borrower and at the expense
of the Borrower, the Administrative Agent shall execute such documents and take
such other action as is reasonably requested by the Borrower to evidence the
release and discharge of such Guarantor from all such liabilities and
obligations and
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shall, if applicable, certify to the Borrower that such Guarantor has no
liabilities or obligations resulting from a demand on such Guarantor's Guaranty
pursuant to Section 9.2.
SECTION 5
CONDITIONS PRECEDENT
5.1 Closing Conditions.
The obligation of the Lenders to enter into this Credit Agreement and
make the initial Extension of Credit is subject to satisfaction (or waiver) of
the following conditions:
(a) Executed Credit Documents. Receipt by the Administrative
Agent of duly executed copies of: (i) this Credit Agreement; (ii) the
Notes requested by Lenders (or the Swing Line Lender) prior to the
Closing Date; and (iii) all other Credit Documents, each in form and
substance reasonably acceptable to the Lenders in their sole
discretion.
(b) Authority Documents. Receipt by the Administrative Agent
of the following with respect to each Credit Party:
(i) Organizational Documents. Copies of the articles
or certificates of incorporation or other organizational
documents of each Credit Party certified to be true and
complete as of a recent date by the appropriate Governmental
Authority of the state or other jurisdiction of its formation
and certified by a secretary or assistant secretary of such
Credit Party to be true and correct as of the Closing Date.
(ii) Bylaws. A copy of the bylaws or other governing
documents of each Credit Party certified by a secretary or
assistant secretary of such Credit Party to be true and
correct as of the Closing Date.
(iii) Resolutions. Copies of resolutions of the Board
of Directors or other governing body of each Credit Party
approving and adopting the Credit Documents to which it is a
party, the transactions contemplated therein and authorizing
execution and delivery thereof, certified by a secretary or
assistant secretary of such Credit Party to be true and
correct and in full force and effect as of the Closing Date.
(iv) Good Standing. Copies of certificates of good
standing, existence or its equivalent with respect to each
Credit Party certified as of a recent date by the appropriate
Governmental Authority of the state or other jurisdiction of
its formation.
(v) Incumbency. An incumbency certificate of each
Credit Party certified by a secretary or assistant secretary
of such Credit Party to be true and correct as of the Closing
Date.
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(c) Opinions of Counsel. Receipt by the Administrative Agent
of opinions reasonably satisfactory to the Administrative Agent,
addressed to the Administrative Agent on behalf of the Lenders and
dated as of the Closing Date.
(d) Consents. Receipt by the Administrative Agent of evidence
that all necessary governmental, shareholder and third party consents
and approvals, if any, have been received and no condition or
Requirement of Law exists which would reasonably be likely to restrain,
prevent or impose any material adverse conditions on the transactions
contemplated hereby.
(e) Officer's Certificates. The Administrative Agent shall
have received a certificate or certificates executed by an Authorized
Officer of the Borrower as of the Closing Date stating that (i) the
financial statements and information delivered to the Administrative
Agent on or before the Closing Date were prepared in good faith and
that such financial statements were prepared in accordance with GAAP
and (ii) immediately after giving effect to this Credit Agreement, the
other Credit Documents and all the transactions contemplated herein or
therein to occur on such date, (A) each Credit Party is Solvent and the
Borrower and its Subsidiaries taken as a whole are Solvent, (B) no
Default or Event of Default exists, (C) all representations and
warranties contained herein and in the other Credit Documents are true
and correct in all material respects, and (D) the Credit Parties are in
compliance with each of the financial covenants set forth in Section
7.2.
(f) Senior Subordinated Notes. Receipt by the Administrative
Agent of evidence that the holders of at least a majority of the
Existing Senior Subordinated Notes have agreed to tender their Existing
Senior Subordinated Notes to the Borrower, upon terms reasonably
acceptable to the Administrative Agent.
(g) Senior Unsecured Notes. Receipt by the Administrative
Agent of evidence that the Senior Unsecured Notes have been issued on
terms reasonably acceptable to the Administrative Agent and containing
terms customary for investment grade issuers and in a principal amount
not less than $250,000,000.
(h) Existing Credit Agreement. Receipt by the Administrative
Agent of evidence satisfactory to it that all of the Indebtedness of
the Credit Parties under the Existing Credit Agreement has been paid in
full (or will be paid in full with the proceeds of the initial Loans
made herein), all documents executed or delivered in connection
therewith have been terminated and all Liens granted in connection
therewith have been released or are agreed to be released upon such
repayment in full.
(i) Fees and Expenses. Payment by the Credit Parties of all
fees (and all expenses for which invoices have been presented at least
three Business Days prior to the Closing Date) owed by them as of the
Closing Date to the Agents and the Lenders, including, without
limitation, as set forth in the Fee Letters.
(j) Other. Receipt by the Lenders of such other documents,
instruments, agreements or information as reasonably and timely
requested by any Lender.
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5.2 Conditions to All Extensions of Credit.
In addition to the conditions precedent stated elsewhere herein, the
Lenders shall not be obligated to make Loans nor shall the Issuing Lender be
required to issue or extend a Letter of Credit unless:
(a) Notice. The Borrower shall have delivered (i) in the case
of any new Revolving Loan, to the Administrative Agent, an appropriate
Notice of Borrowing, duly executed and completed, by the time specified
in Section 2.1, (ii) in the case of any Letter of Credit, to the
Issuing Lender, an appropriate request for issuance of a Letter of
Credit in accordance with the provisions of Section 2.2, (iii) in the
case of any Swing Line Loan, to the Swing Line Lender, a Swing Line
Loan Request, duly executed and completed, by the time specified in
Section 2.3, and (iv) in the case of any Competitive Bid Loan, to the
Administrative Agent, an appropriate Competitive Bid Request, duly
executed and completed, by the time specified in Section 2.4.
(b) Representations and Warranties. The representations and
warranties made by the Credit Parties in any Credit Document are true
and correct in all material respects at and as if made as of such date
except to the extent they expressly and exclusively relate to an
earlier date.
(c) No Default. No Default or Event of Default shall exist and
be continuing either prior to or after giving effect to such Extension
of Credit.
(d) Availability. Immediately after giving effect to the
making of a Loan (and the application of the proceeds thereof) or to
the issuance of a Letter of Credit, as the case may be, (i) the sum of
the outstanding Revolving Loans plus outstanding LOC Obligations plus
outstanding Swing Line Loans plus outstanding Competitive Bid Loans
shall not exceed the Revolving Committed Amount, (ii) the sum of
outstanding LOC Obligations shall not exceed the LOC Committed Amount,
(iii) the sum of outstanding Swing Line Loans shall not exceed the
Swing Line Committed Amount and (iv) the sum of outstanding Competitive
Bid Loans shall not exceed $200,000,000.
The delivery of each Notice of Borrowing, each request for a Letter of Credit,
each Swing Line Loan Request and each Competitive Bid Loan Request shall
constitute a representation and warranty by the Borrower of the correctness of
the matters specified in subsections (b), (c), and (d) above.
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SECTION 6
REPRESENTATIONS AND WARRANTIES
The Credit Parties hereby represent to the Administrative Agent and
each Lender that:
6.1 Organization and Good Standing.
Each Credit Party (a) is either a partnership, a corporation or a
limited liability company duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, (b) is duly qualified
and in good standing as a foreign organization and authorized to do business in
every other jurisdiction where its ownership or operation of property or the
conduct of its business would require it to be qualified, in good standing and
authorized, unless the failure to be so qualified, in good standing or
authorized would not have or would not reasonably be expected to have a Material
Adverse Effect and (c) has the power and authority to own and operate its
properties and to carry on its business as now conducted and as currently
proposed to be conducted.
6.2 Due Authorization.
Each Credit Party (a) has the power and authority to execute, deliver
and perform this Credit Agreement and the other Credit Documents to which it is
a party and to incur the obligations herein and therein provided for and (b) has
duly taken all necessary action to authorize, and is duly authorized, to
execute, deliver and perform this Credit Agreement and the other Credit
Documents to which it is a party.
6.3 Enforceable Obligations.
Each Credit Party has duly executed this Credit Agreement and each
other Credit Document to which such Credit Party is a party and this Credit
Agreement and such other Credit Documents constitute legal, valid and binding
obligations of such Credit Party enforceable against such Credit Party in
accordance with their respective terms, except as may be limited by bankruptcy
or insolvency laws or similar laws affecting creditors' rights generally or by
general equitable principles.
6.4 No Conflicts.
Neither the execution and delivery of the Credit Documents to which it
is a party, nor the consummation of the transactions contemplated herein and
therein, nor the performance of or compliance with the terms and provisions
hereof and thereof by a Credit Party will (a) violate, contravene or conflict
with any provision of such Credit Party's organizational documents, (b) violate,
contravene or conflict with any Requirement of Law (including, without
limitation, Regulations T, U or X), order, writ, judgment, injunction, decree,
license or permit applicable to such Credit Party which violation would have or
would reasonably be expected to have a Material Adverse Effect, (c) violate,
contravene or conflict with contractual provisions of, or cause an event of
default under, any indenture, loan agreement, mortgage, deed of trust, contract
or other agreement or instrument to which such Credit Party is a party or by
which it or its properties may be
58
bound which violation would have or would reasonably be expected to have a
Material Adverse Effect, or (d) result in or require the creation of any Lien
upon or with respect to the properties of such Credit Party.
6.5 Consents.
Except for consents, approvals and authorizations which have been
obtained or the absence of which would not have or would not reasonably be
expected to have a Material Adverse Effect, no consent, approval, authorization
or order of, or filing, registration or qualification with, any Governmental
Authority, equity owner or third party in respect of any Credit Party is
required in connection with the execution, delivery or performance of this
Credit Agreement or any of the other Credit Documents, or the consummation of
any transaction contemplated herein or therein by such Credit Party.
6.6 Financial Condition.
The financial statements delivered to the Administrative Agent and the
Lenders pursuant to Sections 7.1(a) and (b): (a) have been prepared in
accordance with GAAP and (b) present fairly the consolidated financial
condition, results of operations and cash flows of the Borrower and its
Subsidiaries as of such date and for such periods. Since December 31, 2000,
there has been no sale, transfer or other disposition by the Borrower or any of
its Subsidiaries of any material part of the business or property of the
Borrower and its Subsidiaries, taken as a whole, or purchase or other
acquisition by any such Person of any business or property (including any
Capital Stock of any other Person) material in relation to the consolidated
financial condition of the Borrower and its Subsidiaries, taken as a whole, in
each case, which, is not (i) reflected in the most recent financial statements
delivered to the Lenders prior to the Closing Date or pursuant to Section 7.1 or
in the notes thereto or (ii) otherwise permitted by the terms of this Credit
Agreement and communicated to the Administrative Agent and the Lenders.
6.7 No Material Change.
Except as disclosed on Schedule 6.7, since December 31, 2000, there has
been no development or event relating to or affecting the Borrower or any of its
Subsidiaries which has had or would reasonably be expected to have a Material
Adverse Effect.
6.8 Disclosure.
Neither this Credit Agreement, nor any other Credit Document, nor any
financial statements delivered to the Administrative Agent or the Lenders nor
any other document, certificate or statement furnished to the Administrative
Agent or the Lenders by or on behalf of any Credit Party in connection with the
transactions contemplated hereby, taken as a whole, contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements contained therein or herein not misleading.
59
6.9 No Default.
No Default or Event of Default has occurred and is continuing or would
result from the consummation of the transactions contemplated by this Credit
Agreement and the other Credit Documents.
6.10 Litigation.
Except as set forth in Schedule 6.10, no litigation, investigation,
claim, criminal prosecution, civil investigative demand, imposition of criminal
or civil fines and penalties, or any other proceeding of or before any
arbitrator or Governmental Authority is pending or, to the knowledge of the
Borrower, threatened by or against the Borrower or any of its Subsidiaries or
against any of its or their respective Properties (a) with respect to the Credit
Documents or any Loan or any of the transactions contemplated hereby or (b)
which would reasonably be expected to have a Material Adverse Effect.
6.11 Taxes.
The Borrower and each of its Subsidiaries has filed, or caused to be
filed, all material tax returns (federal, state, local and foreign) required to
be filed and has paid (a) all amounts of taxes shown thereon to be due
(including interest and penalties) and (b) all other material taxes, fees,
assessments and other governmental charges (including mortgage recording taxes,
documentary stamp taxes and intangibles taxes) owing by it, except for such
taxes (i) which are not yet delinquent or (ii) that are being contested in good
faith and by proper proceedings, and against which adequate reserves are being
maintained in accordance with GAAP.
6.12 Compliance with Law.
Except to the extent the same would not have or would not reasonably be
expected to have a Material Adverse Effect:
(a) The Borrower and each of its Subsidiaries is in compliance
with all Requirements of Law (including, without limitation,
Environmental Laws, ERISA, Medicaid Regulations, Medicare Regulations,
42 U.S.C.ss.1320a-7b and 42 U.S.C.ss.1395nn) and all material orders,
writs, injunctions and decrees applicable to it, or to its Properties.
(b) (i) Neither the Borrower nor any of its Subsidiaries nor
any individual employed by the Borrower or any of its Subsidiaries who
may reasonably be expected to be excluded or suspended from
participation in any Medical Reimbursement Program for their corporate
or individual actions or failures to act; and (ii) there is no member
of management continuing to be employed by the Borrower or any of its
Subsidiaries who may reasonably be expected to have individual criminal
culpability for healthcare matters under investigation by any
Governmental Authority unless such member of management has been,
within a reasonable period of time after discovery of such actual or
potential culpability, either suspended or removed from positions of
responsibility related to those activities under challenge by the
Governmental Authority.
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(c) Current billing policies, arrangements, protocols and
instructions comply with all material requirements of Medical
Reimbursement Programs and are administered by properly trained
personnel.
(d) Current medical director compensation arrangements and
other arrangements with referring physicians comply with state and
federal self-referral and anti-kickback laws, including without
limitation 42 U.S.C. Section 1320a-7b(b)(1) - (b)(2) and 42 U.S.C.
Section 1395nn.
6.13 Licensing and Accreditation.
Except to the extent the same would not have or would not be reasonably
expected to have a Material Adverse Effect, each of the Credit Parties has, to
the extent applicable: (a) obtained and maintains in good standing all required
licenses, permits, authorization and approvals of each Governmental Authority
necessary to the conduct of its business; (b) to the extent prudent and
customary in the industry in which it is engaged, obtained and maintains
accreditation from all generally recognized accrediting agencies (including, but
not limited to, CAP); (c) obtained and maintains CLIA certification; (d) entered
into and maintains in good standing its Medicare Provider Agreements and its
Medicaid Provider Agreements; and (e) ensured that all such required licenses,
certifications and accreditations are in full force and effect on the date
hereof and have not been revoked or suspended or otherwise limited.
6.14 Title to Properties, Liens.
The Borrower and each of its Subsidiaries, is the owner of, and has
good title to, or has a valid license or lease to use, all of its material
Properties. All Liens on the Properties of the Borrower and its Subsidiaries are
Permitted Liens.
6.15 Insurance.
The properties of the Borrower and each of its Subsidiaries are insured
with financially sound and reputable insurance companies that are not Affiliates
of the Borrower (except to the extent that self-insurance is maintained in
reasonable amounts), in such amounts, with such deductibles and covering such
risks, as is reasonable and prudent.
6.16 Use of Proceeds.
The proceeds of the Loans will be used solely for the purposes
specified in Section 7.10. No proceeds of the Loans will be used for the
Acquisition of another Person unless such Acquisition is a Permitted
Acquisition.
6.17 Government Regulation.
(a) "Margin stock" within the meaning of Regulation U does not
constitute more than 25% of the value of the consolidated assets of the
Borrower and its
61
Subsidiaries. None of the transactions contemplated by the Credit
Documents (including, without limitation, the direct or indirect use of
the proceeds of the Loans) will violate or result in a violation of (i)
the Securities Act, (ii) the Exchange Act or (iii) Regulations T, U or
X.
(b) Neither the Borrower nor any of its Subsidiaries is
subject to regulation under the Public Utility Holding Company Act of
1935, the Federal Power Act or the Investment Company Act of 1940, each
as amended.
6.18 ERISA.
Except as would not result in or would not reasonably be expected to
result in a Material Adverse Effect:
(a) (i) No ERISA Event has occurred, and, to the best
knowledge of the Borrower, each of its Subsidiaries and each ERISA
Affiliate, no event or condition has occurred or exists as a result of
which any ERISA Event could reasonably be expected to occur, with
respect to any Plan; (ii) no "accumulated funding deficiency," as such
term is defined in Section 302 of ERISA and Section 412 of the Code,
whether or not waived, has occurred with respect to any Plan and no
application for a funding waiver or an extension of any amortization
period pursuant to Section 412 of the Code has been made with respect
to any Plan; (iii) each Plan has been maintained, operated, and funded
in compliance with its own terms and in material compliance with the
provisions of ERISA, the Code, and any other applicable federal or
state laws; (iv) each Plan that is intended to qualify under Section
401(a) of the Code has received a favorable determination letter from
the IRS or an application for such a letter is currently being
processed by the IRS with respect thereto and, to the best knowledge of
the Borrower, each of its Subsidiaries and each ERISA Affiliate,
nothing has occurred which would prevent, or cause the loss of, such
qualification; and (v) no Lien in favor or the PBGC or a Plan has
arisen or is reasonably likely to arise on account of any Plan.
(b) Neither the Borrower nor any Subsidiary of the Borrower
nor any ERISA Affiliate has incurred, or, to the best of each such
party's knowledge, is reasonably expected to incur, any liability under
Title IV of ERISA with respect to any Single Employer Plan, or any
withdrawal liability under ERISA to any Multiemployer Plan or Multiple
Employer Plan. Neither the Borrower nor any Subsidiary of the Borrower
nor any ERISA Affiliate has received any notification that any
Multiemployer Plan is in reorganization (within the meaning of Section
4241 of ERISA), is insolvent (within the meaning of Section 4245 of
ERISA), or has been terminated (within the meaning of Title IV of
ERISA), and no Multiemployer Plan is, to the best of each such Person's
knowledge, reasonably expected to be in reorganization, insolvent, or
terminated. Neither the Borrower nor any Subsidiary of the Borrower nor
any ERISA Affiliate has engaged in a transaction that could be subject
to Sections 4069 or 4212(c) of ERISA.
(c) No prohibited transaction (within the meaning of Section
406 of ERISA or Section 4975 of the Code) or breach of fiduciary
responsibility has occurred with respect to
62
a Plan which has subjected or may subject the Borrower, any Subsidiary
of the Borrower or any ERISA Affiliate to any liability under Sections
406, 409, 502(i), or 502(l) of ERISA or Section 4975 of the Code, or
under any agreement or other instrument pursuant to which the Borrower,
any Subsidiary of the Borrower or any ERISA Affiliate has agreed or is
required to indemnify any person against any such liability. There are
no pending or, to the best knowledge of the Borrower, each of its
Subsidiaries and each ERISA Affiliate, threatened claims, actions or
lawsuits, or action by any Governmental Authority, with respect to any
Plan that could reasonably be expected to have a Material Adverse
Effect.
(d) Each Plan that is a welfare plan (as defined in Section
3(1) of ERISA) to which Sections 601-609 of ERISA and Section 4980B of
the Code apply has been administered in compliance in all material
respects with such sections.
6.19 Environmental Matters.
(a) Except as would not result in or would not reasonably be
expected to result in a Material Adverse Effect:
(i) Each of the real properties owned, leased or
operated by the Borrower or any of its Subsidiaries (the "Real
Properties") and all operations at the Real Properties are in
compliance with all applicable Environmental Laws, and there
is no violation of any Environmental Law with respect to the
Real Properties or the businesses operated by the Borrower or
any of its Subsidiaries (the "Businesses"), and there are no
conditions relating to the Businesses or Real Properties that
would reasonably be expected to give rise to liability under
any applicable Environmental Laws.
(ii) No Credit Party has received any written notice
of, or inquiry from any Governmental Authority regarding, any
violation, alleged violation, non-compliance, liability or
potential liability regarding Hazardous Materials or
compliance with Environmental Laws with regard to any of the
Real Properties or the Businesses, nor, to the knowledge of
the Borrower or any of its Subsidiaries, is any such notice
being threatened.
(iii) Hazardous Materials have not been transported
or disposed of from the Real Properties, or generated,
treated, stored or disposed of at, on or under any of the Real
Properties or any other location, in each case by, or on
behalf or with the permission of, the Borrower or any of its
Subsidiaries in a manner that would give rise to liability
under any applicable Environmental Laws.
(iv) No judicial proceeding or governmental or
administrative action is pending or, to the knowledge of the
Borrower or any of its Subsidiaries, threatened, under any
Environmental Law to which the Borrower or any of its
Subsidiaries is or will be named as a party, nor are there any
consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative
or judicial
63
requirements outstanding under any Environmental Law with
respect to the Borrower or any of its Subsidiaries, the Real
Properties or the Businesses.
(v) There has been no release (including, without
limitation, disposal) or threat of release of Hazardous
Materials at or from the Real Properties, or arising from or
related to the operations of the Borrower or any of its
Subsidiaries in connection with the Real Properties or
otherwise in connection with the Businesses where such release
constituted a violation of, or would give rise to liability
under, any applicable Environmental Laws.
(vi) None of the Real Properties contains, or has
previously contained, any Hazardous Materials at, on or under
the Real Properties in amounts or concentrations that, if
released, constitute or constituted a violation of, or could
give rise to liability under, Environmental Laws.
(vii) Neither the Borrower, nor any of its
Subsidiaries, has assumed any liability of any Person (other
than among themselves) under any Environmental Law.
(b) The Credit Parties have adopted procedures that are
designed to (i) ensure that each Credit Party, any of its operations
and each of the Real Properties complies with applicable Environmental
Laws and (ii) minimize any liabilities or potential liabilities that
each Credit Party, any of its operations and each of the Real
Properties may have under applicable Environmental Laws.
6.20 Intellectual Property.
The Borrower and each of its Subsidiaries owns, or has the legal right
to use, all material patents, trademarks, tradenames, copyrights, technology,
know-how and processes (the "Intellectual Property") necessary for each of them
to conduct its business as currently conducted other than as would not have or
would not be reasonably expected to have a Material Adverse Effect. No claim has
been asserted and is pending by any Person challenging or questioning the use of
any Intellectual Property owned by the Borrower or any of its Subsidiaries or
that the Borrower or any of its Subsidiaries has a right to use or the validity
or effectiveness of any such Intellectual Property, nor does the Borrower or any
of its Subsidiaries have knowledge of any such claim, and, to the knowledge of
the Borrower and its Subsidiaries, the use of any Intellectual Property by the
Borrower and its Subsidiaries does not infringe on the rights of any Person,
except for such claims and infringements that in the aggregate, would not have
or would not reasonably be expected to have a Material Adverse Effect.
6.21 Subsidiaries.
As of the Closing Date, set forth on Schedule 6.21 is a complete and
accurate list of all Subsidiaries of the Borrower and which of such Subsidiaries
are Material Domestic Subsidiaries.
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6.22 Solvency.
Each Credit Party is and, after consummation of the transactions
contemplated by this Credit Agreement, will be Solvent.
SECTION 7
AFFIRMATIVE COVENANTS
Each Credit Party hereby covenants and agrees that so long as this
Credit Agreement is in effect and until the Loans and LOC Obligations, together
with interest and fees and other obligations then due and payable hereunder,
have been paid in full and the Commitments and Letters of Credit hereunder shall
have terminated:
7.1 Information Covenants.
The Credit Parties will furnish, or cause to be furnished, to the
Administrative Agent and each of the Lenders an electronic (if readily
available) and a hard copy of:
(a) Annual Financial Statements. As soon as available, and in
any event within 95 days after the close of each fiscal year of the
Borrower, a consolidated balance sheet and income statement of the
Borrower and its Subsidiaries, as of the end of such fiscal year,
together with related consolidated statements of operations, cash flows
and changes in stockholders' equity for such fiscal year, setting forth
in comparative form consolidated figures for the preceding fiscal year,
all such consolidated financial information described above to be
audited by independent certified public accountants of recognized
national standing and whose opinion shall be to the effect that such
financial statements fairly present in all material respects the
consolidated financial position, results of operations and cash flows
of the Borrower and its Subsidiaries as at the end of, and for, such
fiscal year in accordance with GAAP and shall not be limited as to the
scope of the audit or qualified in any manner.
(b) Quarterly Financial Statements. As soon as available, and
in any event within 50 days after the close of each of the first three
fiscal quarters of the Borrower, a consolidated balance sheet and
income statement of the Borrower and its Subsidiaries, as of the end of
such fiscal quarter, together with related consolidated statements of
operations, cash flows and changes in stockholders' equity for such
fiscal quarter setting forth in each case in comparative form the
corresponding consolidated statements of operations and cash flows for
the corresponding period of the preceding fiscal year, and accompanied
by a certificate of an Authorized Officer of the Borrower to the effect
that such quarterly financial statements fairly present in all material
respects the consolidated financial condition of the Borrower and its
Subsidiaries and in accordance with GAAP, subject to changes resulting
from audit and normal year-end audit adjustments. Notwithstanding the
above, it is understood and agreed that delivery of the Borrower's
applicable Form 10-Q shall satisfy the requirements of this Section
7.1(b).
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(c) Officer's Certificate. At the time of delivery of the
financial statements provided for in Sections 7.1(a) and 7.1(b) above,
a certificate of an Authorized Officer of the Borrower substantially in
the form of Exhibit 7.1(c), (i) demonstrating compliance with the
financial covenants contained in Section 7.2 and the covenant
requirements in Sections 7.12(b) and 7.13 by calculation thereof as of
the end of each such fiscal period, (ii) demonstrating compliance with
any other terms of this Credit Agreement as reasonably requested by the
Administrative Agent, (iii) stating that no Default or Event of Default
exists, or if any Default or Event of Default does exist, specifying
the nature and extent thereof and what action the Borrower proposes to
take with respect thereto and (iv) updating Schedule 6.21 as of the end
of such fiscal period.
(d) Reports. Promptly upon transmission or receipt thereof,
copies of all financial statements, proxy statements, notices and
reports as the Borrower or any of its Subsidiaries shall send to
shareholders of the Borrower generally and, upon request of the
Administrative Agent, copies of any filings and registrations with, and
reports to or from, any Governmental Authority which has regulatory
authority with respect to the Borrower and its Subsidiaries.
(e) Notices. Upon a Credit Party obtaining knowledge thereof,
the Borrower will give written notice to the Administrative Agent
promptly (and in any event within five Business Days) of (i) the
occurrence of an event or condition consisting of a Default or Event of
Default, specifying the nature and existence thereof and what action
the Borrower proposes to take with respect thereto, (ii) the occurrence
of any of the following with respect to the Borrower or any of its
Subsidiaries (A) the pendency or commencement of any litigation,
arbitration or governmental proceeding against the Borrower or any of
its Subsidiaries which (x) would have or would reasonably be expected
to have a Material Adverse Effect, or (y) would result in a significant
liability to the Credit Parties or (B) material non-compliance with, or
the institution of any proceedings against the Borrower or any of its
Subsidiaries with respect to, or the receipt of written notice by such
Person of potential liability or responsibility for violation, or
alleged violation of, any Requirement of Law (including, without
limitation, Environmental Laws) the violation of which would have or
would reasonably be expected to have a Material Adverse Effect (iii)
any change to the Debt Rating of the Borrower, and (iv) any
investigation or proceeding against the Borrower or any of its
Subsidiaries to suspend, revoke or terminate, any Medicaid Provider
Agreement, Medicare Provider Agreement, or exclusion from any Medical
Reimbursement Program, which is reasonably expected to have a Material
Adverse Effect; and (v) any breach by the Borrower or any of its
Subsidiaries or any predecessor of the Borrower or any of its
Subsidiaries of the Corporate Integrity Agreement entered into with the
OIG if such breach causes the OIG to take any adverse action as a
result of such breach.
(f) ERISA. Upon the Borrower, any Subsidiary of the Borrower
or any ERISA Affiliate obtaining knowledge thereof, such Person shall
give written notice to the Administrative Agent and each of the Lenders
promptly (and in any event within two Business Days) of the occurrence
of any of the following events which has had or would be
66
reasonably expected to have a Material Adverse Effect: (i) any
Reportable Event, that constitutes an ERISA Event; (ii) with respect to
any Multiemployer Plan, the receipt of notice as prescribed in ERISA or
otherwise of any withdrawal liability assessed against the Borrower,
any Subsidiary of the Borrower or any ERISA Affiliate, or of a
determination that any Multiemployer Plan is in reorganization or
insolvent (both within the meaning of Title IV of ERISA); (iii) the
failure to make full payment on or before the due date (including
extensions) thereof of all amounts which the Borrower, any Subsidiary
of the Borrower or any ERISA Affiliate is required to contribute to
each Plan pursuant to its terms and as required to meet the minimum
funding standard set forth in ERISA and the Code with respect thereto;
or (iv) any change in the funding status of any Plan that could have a
Material Adverse Effect; in each case together with a description of
any such event or condition or a copy of any such notice and a
statement by an Authorized Officer of the Borrower briefly setting
forth the details regarding such event, condition, or notice, and the
action, if any, which has been or is being taken or is proposed to be
taken by such Person with respect thereto. Promptly upon request, the
Credit Parties shall furnish the Administrative Agent and the Lenders
with such additional information concerning any Plan as may be
reasonably requested, including, but not limited to, copies of each
annual report/return (Form 5500 series), as well as all schedules and
attachments thereto required to be filed with the Department of Labor
and/or the Internal Revenue Service pursuant to ERISA and the Code,
respectively, for each "plan year" (within the meaning of Section 3(39)
of ERISA).
(g) Environmental.
(i) Subsequent to a written notice from any
Governmental Authority that would reasonably be expected to
result in a Material Adverse Effect, or during the existence
of an Event of Default, and upon the written request of
Administrative Agent, the Credit Parties will furnish or cause
to be furnished to the Administrative Agent, at the Credit
Parties' expense, a report of an environmental assessment of
reasonable scope, form and depth, including, where
appropriate, invasive soil or groundwater sampling, by a
consultant reasonably acceptable to the Administrative Agent
addressing the subject of such notice or, if during the
existence of an Event of Default, regarding any release or
threat of release of Hazardous Materials on any Property
owned, leased or operated by a Credit Party and the compliance
by the Credit Parties with Environmental Laws. If the Credit
Parties fail to deliver such an environmental report within
seventy-five (75) days after receipt of such written request,
then the Administrative Agent may arrange for same, and the
Credit Parties hereby grant to the Administrative Agent and
its representatives access to the Real Properties and a
license of a scope reasonably necessary to undertake such an
assessment (including, where appropriate, invasive soil or
groundwater sampling). The reasonable cost of any assessment
arranged for by the Administrative Agent pursuant to this
provision will be payable by the Credit Parties on demand.
(ii) Each Credit Party will conduct and complete, or
cause to be conducted and completed, all investigations,
studies, sampling, and testing and all remedial, removal, and
other actions necessary to address all Hazardous Materials
67
on, from, or affecting any Real Properties to the extent
necessary to be in compliance with all Environmental Laws and
all other applicable federal, state, and local laws,
regulations, rules and policies and with the orders and
directives of all Governmental Authorities exercising
jurisdiction over such Real Properties to the extent any
failure would have or would reasonably be expected to have a
Material Adverse Effect.
(h) Other Information. With reasonable promptness upon any
such request, such other information regarding the business, properties
or financial condition of the Borrower and its Subsidiaries as the
Administrative Agent may reasonably request.
7.2 Financial Covenants.
(a) Leverage Ratio. The Leverage Ratio, as of the last day of
each fiscal quarter of the Borrower, shall be less than or equal to
3.25 to 1.0.
(b) Fixed Charge Coverage Ratio. The Fixed Charge Coverage
Ratio, as of the last day of each fiscal quarter of the Borrower, shall
be greater than or equal to 1.5 to 1.0.
7.3 Preservation of Existence and Franchises.
The Borrower will, and will cause its Subsidiaries to, do all things
necessary to preserve and keep in full force and effect its existence, rights,
franchises, Intellectual Property and authority except as permitted by Section
8.4; provided that neither the Borrower nor any of its Subsidiaries shall be
required to preserve any rights, franchises, Intellectual Property or authority
if the Borrower or such Subsidiary shall determine that the preservation thereof
is no longer desirable in the conduct of its business and if the loss thereof
would not have or would not reasonably be expected to have a Material Adverse
Effect.
7.4 Books and Records.
The Borrower will, and will cause its Subsidiaries to, keep complete
and accurate books and records of its transactions in order to produce its
financial statements in accordance with GAAP (including the establishment and
maintenance of appropriate reserves).
7.5 Compliance with Law.
Except to the extent the failure to do so would not have or would not
reasonably be expected to have a Material Adverse Effect, the Borrower will, and
will cause each of its Subsidiaries to, (a) comply with all Requirements of Law,
and all applicable restrictions imposed by all Governmental Authorities,
applicable to it and its Property (including, without limitation, Environmental
Laws and ERISA), (b) conform with and duly observe in all material respects all
laws, rules and regulations and all other valid requirements of any regulatory
authority with respect to the conduct of its business, including without
limitation Titles XVIII and XIX of the Social Security Act, Medicare
Regulations, Medicaid Regulations, and all laws, rules and
68
regulations of Governmental Authorities, pertaining to the business of the
Credit Parties; (c) obtain and maintain all licenses, permits, certifications
and approvals of all applicable Governmental Authorities as are required for the
conduct of its business as currently conducted and herein contemplated,
including without limitation professional licenses, CLIA certifications,
Medicare Provider Agreements and Medicaid Provider Agreements; and (d) ensure
that (i) billing policies, arrangements, protocols and instructions will comply
with reimbursement requirements under Medicare, Medicaid and other Medical
Reimbursement Programs and will be administered by properly trained personnel;
and (ii) medical director compensation arrangements and other arrangements with
referring physicians will comply with applicable state and federal self-referral
and anti-kickback laws, including without limitation 42 U.S.C. Section
1320a-7b(b)(1) - (b)(2) 42 U.S.C. and 42 U.S.C. Section 1395nn.
7.6 Payment of Taxes and Other Indebtedness.
The Borrower will, and will cause its Subsidiaries to, pay, settle or
discharge (a) all material taxes, assessments and governmental charges or levies
imposed upon it, or upon its income or profits, or upon any of its properties,
before they shall become delinquent, (b) all material lawful claims (including
claims for labor, materials and supplies) which, if unpaid, might give rise to a
Lien upon any of its properties, and (c) all of its other material Indebtedness
as it shall become due (to the extent such repayment is not otherwise prohibited
by this Credit Agreement); provided, however, that a Credit Party shall not be
required to pay any such tax, assessment, charge, levy, claim or Indebtedness
which is being contested in good faith by appropriate proceedings and as to
which adequate reserves therefor have been established in accordance with GAAP,
unless the failure to make any such payment (i) would give rise to an immediate
right to foreclose or collect on a Lien securing such amounts or (ii) would have
or would reasonably be expected to have a Material Adverse Effect.
7.7 Insurance.
The Borrower will, and will cause each of its Subsidiaries to, at all
times maintain in full force and effect insurance (including worker's
compensation, liability, casualty and business interruption insurance) with
reputable national companies that are not Affiliates of the Borrower (except to
the extent that self-insurance is maintained in reasonable amounts), in such
amounts, covering such risks and liabilities as is reasonable and prudent.
7.8 Maintenance of Property.
The Borrower will, and will cause its Subsidiaries to, maintain and
preserve its properties and equipment in good repair, working order and
condition, normal wear and tear excepted, and will make, or cause to be made, in
such properties and equipment from time to time all repairs, renewals,
replacements, extensions, additions, betterments and improvements thereto as may
be needed or proper, in each case to the extent and in the manner customary for
companies in similar businesses.
69
7.9 Performance of Obligations.
Except to the extent the failure to do so would not have or would not
reasonably be expected to have a Material Adverse Effect, the Borrower will, and
will cause its Subsidiaries to, perform all of its obligations under the terms
of all contracts, agreements or other agreements not evidencing Indebtedness to
which it is a party or by which it or its Properties may be bound.
7.10 Use of Proceeds.
The Borrower will use the proceeds of the Loans solely (a) to repay
Indebtedness outstanding under the Existing Credit Agreement and to repurchase
Existing Senior Subordinated Notes, (b) to provide working capital for the
Borrower and its Subsidiaries and (c) for general corporate purposes of the
Borrower and its Subsidiaries including Capital Expenditures and Permitted
Investments. The Borrower will use the Letters of Credit solely for the purposes
set forth in Section 2.2(a).
7.11 Audits/Inspections.
Upon reasonable notice and during normal business hours, but not more
than once per calendar year, the Borrower will, and will cause each of its
Subsidiaries to, permit representatives appointed by the Administrative Agent or
any Lender, including, without limitation, independent accountants, agents,
attorneys and appraisers to visit and inspect the Borrower's or any Subsidiary's
Property, including its books and records, its accounts receivable and
inventory, its facilities and its other business assets, and to make photocopies
or photographs thereof and to write down and record any information such
representative obtains and shall permit the Administrative Agent, any Lender or
its representatives to investigate and verify the accuracy of information
provided to the Administrative Agent or the Lenders and to discuss all such
matters with the officers, employees and representatives of the Borrower and/or
its Subsidiaries; provided, however, during the existence of a Default or Event
of Default, the Administrative Agent and the Lenders may request as many
inspections as reasonable under the circumstances. Any expenses incurred in
connection with this Section 7.11 shall be for the account of the Lenders unless
an Event of Default exists in which case such expenses shall be for the account
of the Borrower. Any representatives appointed by the Administrative Agent shall
sign a confidentiality agreement reasonably acceptable to the Borrower prior to
any visit, investigation, inspection or verification permitted by this Section
7.11.
7.12 Additional Credit Parties.
(a) At the time any Person becomes a Material Domestic
Subsidiary or at the time any Subsidiary of the Borrower guaranties the
Senior Unsecured Notes (if it is not already a Guarantor), the Borrower
shall so notify the Administrative Agent and promptly thereafter (but
in any event within 30 days) shall cause such Person to (i) execute a
Joinder Agreement in substantially the same form as Exhibit 7.12, and
(ii) deliver such other documentation as the Administrative Agent may
reasonably request in connection with the foregoing, including, without
limitation, certified resolutions and other organizational and
authorizing documents of such Person and favorable opinions of counsel
to such Person (which shall cover, among other things, the
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legality, validity, binding effect and enforceability of the
documentation referred to above), all in form, content and scope
reasonably satisfactory to the Administrative Agent.
(b) If at any time Non-Material Domestic Subsidiaries own
assets in an aggregate amount greater than five percent (5%) of Total
Assets or produce revenues in an aggregate amount greater than five
percent (5%) of the total revenues of the Borrower and its Subsidiaries
on a consolidated basis, the Borrower will designate one or more
Non-Material Domestic Subsidiaries to become a Guarantor (and such
Non-Material Domestic Subsidiary shall become a Guarantor in accordance
with clause (a) above) so that after giving effect to such designation
and action, Non-Material Domestic Subsidiaries own assets in the
aggregate of equal to or less than five percent (5%) of Total Assets
and produce revenues in an aggregate amount equal to or less than five
percent (5%) of the total revenues of the Borrower and its Subsidiaries
on a consolidated basis.
7.13 Credit Party Revenues.
The Borrower will take such action as is necessary to cause the
aggregate annual net revenues of the Credit Parties, as of the end of each
fiscal quarter for the prior twelve month period, to be greater than or equal to
the lesser of (a) $2,800,000,000 or (b) 80% of the total consolidated annual net
revenues of the Borrower and its Subsidiaries for the prior twelve month period.
7.14 Compliance Program.
The Borrower will, and will cause each of its Domestic Subsidiaries
that operates a clinical laboratory to, maintain, and be operated in accordance
with, a compliance program which is reasonably designed to provide effective
internal controls that promote adherence to applicable federal and state law and
the program requirements of federal and state health plans, and which includes
the implementation of internal audits and monitoring on a regular basis to
monitor compliance with the requirements of the compliance program and
applicable law, regulations and company policies.
SECTION 8
NEGATIVE COVENANTS
Each Credit Party hereby covenants and agrees that so long as this
Credit Agreement is in effect and until the Loans and LOC Obligations, together
with interest, fees and other obligations then due and payable hereunder, have
been paid in full and the Commitments and Letters of Credit hereunder shall have
terminated:
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8.1 Indebtedness.
The Borrower will not permit any of its Subsidiaries to, contract,
create, incur, assume or permit to exist any Indebtedness, other than:
(a) Guaranty Obligations arising under this Credit Agreement
and the other Credit Documents;
(b) Indebtedness in respect of current accounts payable and
accrued expenses incurred in the ordinary course of business;
(c) Indebtedness owing by a Subsidiary of the Borrower to the
Borrower or another Subsidiary of the Borrower;
(d) purchase money Indebtedness (including Capital Leases) to
finance the purchase of fixed assets (including equipment); provided
that (i) the total of all such Indebtedness shall not exceed an
aggregate principal amount of $50,000,000 (less any purchase money
Indebtedness incurred by the Borrower) at any one time outstanding;
(ii) such Indebtedness when incurred shall not exceed the purchase
price of the asset(s) financed; and (iii) no such Indebtedness shall be
refinanced for a principal amount in excess of the principal balance
outstanding thereon at the time of such refinancing;
(e) Indebtedness arising from Permitted Receivables Financings
in an amount not to exceed $450,000,000, in the aggregate (less any
Indebtedness incurred by the Borrower arising from Permitted
Receivables Financings), at any one time outstanding;
(f) Indebtedness evidenced by Hedging Agreements entered into
in the ordinary course of business and not for speculative purposes;
(g) Any guaranty of Indebtedness of the Borrower;
(h) Indebtedness incurred after the Effective Date in
connection with the acquisition of a Person or Property as long as such
Indebtedness existed prior to such acquisition and was not created in
anticipation thereof;
(i) Indebtedness existing on the Closing Date as set forth on
Schedule 8.1; and
(j) other unsecured Indebtedness in an amount not to exceed
$200,000,000, in the aggregate, at any one time outstanding.
8.2 Liens.
The Borrower will not, nor will it permit its Subsidiaries to,
contract, create, incur, assume or permit to exist any Lien with respect to any
of its Property of any kind (whether real or personal, tangible or intangible),
whether now owned or after acquired, other than Permitted Liens.
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8.3 Nature of Business.
The Borrower will not, nor will it permit its Subsidiaries to, alter
the character of its business from that conducted as of the Effective Date or
engage in any substantial manner in any business other than (a) the business
conducted by the Borrower and its Subsidiaries as of the Effective Date, (b) the
business of MedPlus and its Subsidiaries and (c) other healthcare-related
businesses.
8.4 Consolidation and Merger.
The Borrower will not, nor will it permit any Subsidiary to, enter into
any transaction of merger or consolidation or liquidate, wind up or dissolve
itself, or suffer any such liquidation, wind-up or dissolution; provided that
(subject to Sections 7.12 and 7.13) (a) a Subsidiary of the Borrower may merge
into the Borrower or another Subsidiary of the Borrower, (b) a Subsidiary of the
Borrower may merge or consolidate with another Person in a transaction otherwise
permitted by Section 8.5 or (c) the Borrower or a Subsidiary of the Borrower may
merge or consolidate with or into another Person if the following conditions are
satisfied:
(i) if such transaction involves total consideration (cash and
non-cash) in excess of $100,000,000, the Administrative Agent is given
prior written notice of such action;
(ii) if the merger or consolidation involves a Credit Party,
the surviving entity of such merger or consolidation shall either (A)
be such Credit Party or (B) be a Subsidiary of the Borrower and
expressly assume in writing all of the obligations of such Credit Party
under the Credit Documents; provided that if the transaction is between
the Borrower and another Person, the Borrower must be the surviving
entity;
(iii) the Credit Parties execute and deliver such documents,
instruments and certificates as the Administrative Agent may reasonably
request; and
(iv) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing.
8.5 Sale or Lease of Assets.
The Borrower will not, nor will it permit its Subsidiaries to, convey,
sell, lease, transfer or otherwise voluntarily dispose of, in one transaction or
a series of transactions, all or any part of its business or assets whether now
owned or hereafter acquired, including, without limitation, inventory,
receivables, equipment, real property interests (whether owned or leasehold) and
securities, other than a sale, lease, transfer or other disposal of (a) subject
to Sections 7.12 and 7.13, assets from the Borrower or one of its Subsidiaries
to each other; (b) inventory and supplies in the ordinary course of business;
(c) obsolete, surplus, slow-moving, idle or worn-out assets no longer used or
useful in the business of such Credit Party or the trade-in of equipment for
equipment in better condition or of better quality; (d) assets which constitute
a Permitted Investment in the ordinary course of business; (e) Receivables
pursuant to a Permitted Receivables Financing; (f) Investments in the Strategic
Investments Portfolio and (g) assets of the Borrower and its
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Subsidiaries, in addition to those permitted above in this Section 8.5; provided
that in the case of this clause (g) (i) no Event of Default exists prior to such
transfer, (ii) no Default or Event of Default exists after giving effect to such
transfer and (iii) after giving effect to such transfer, the aggregate amount of
all such transfers, calculated on a net book value basis, does not exceed ten
percent (10%) of Total Assets, as determined on the last day of the most
recently ended fiscal quarter of the Borrower for which an officer's certificate
has been delivered pursuant to Section 7.1(c).
8.6 Investments.
The Borrower will not, nor will it permit its Subsidiaries to, make or
permit to exist any Investments except for Permitted Investments.
8.7 Transactions with Affiliates.
The Borrower will not, nor will it permit its Subsidiaries to, enter
into any transaction or series of transactions, whether or not in the ordinary
course of business, with any officer, director, shareholder, Subsidiary or
Affiliate other than on terms and conditions substantially as favorable as would
be obtainable in a comparable arm's-length transaction with a Person other than
an officer, director, shareholder, Subsidiary or Affiliate, except that,
notwithstanding the foregoing, each of the following shall be permitted: (a)
transactions between or among the Credit Parties; (b) transactions between or
among the Borrower and its wholly owned Subsidiaries as long as such transaction
is not disadvantageous to the Lenders in any material respect; (c) transactions
between or among the Borrower or one or more of its wholly owned Subsidiaries
(on the one hand) and one of the non-wholly owned Subsidiaries of the Borrower
(on the other hand) as long as none of the equity of such non-wholly owned
Subsidiary is owned or controlled by an officer or director of any Credit Party;
(d) advances to employees permitted by clause (f) of the definition of Permitted
Investments; (e) Dividends; (f) fees, compensation and other benefits paid to,
and customary indemnity and reimbursement provided on behalf of, officers,
directors and employees of any Credit Party in the ordinary course of business;
(g) any employment agreements entered into by the Borrower or any of its
Subsidiaries in the ordinary course of business; (h) any Permitted Receivables
Financing; (i) the SBCL Acquisition Agreement and each agreement contemplated
thereunder (including any registration rights agreement or purchase agreement
related thereto) as in effect on the Closing Date and (j) transactions and
agreements in existence on the Closing Date and listed on Schedule 8.7 and, in
each case, any amendment thereto, that is not disadvantageous to the Lenders in
any material respect.
8.8 Fiscal Year; Accounting; Organizational Documents.
The Borrower will not, nor will it permit its Subsidiaries to, unless
such action would not affect the calculation of the financial covenants in
Section 7.2 or would not or would not reasonably be likely to affect the rights
of the Lenders under the Credit Documents: (a) change its fiscal year other than
changing the fiscal year of a Subsidiary of the Borrower to a calendar year end,
(b) change its accounting procedures, except as a result of changes in GAAP and
in accordance with Section 1.3 or (c) change its organizational or governing
documents.
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8.9 Stock Repurchases.
The Borrower will not, nor will it permit its Subsidiaries to, directly
or indirectly, purchase, redeem or otherwise acquire or retire or make any
provisions for redemption, acquisition or retirement of any shares of the
Capital Stock of the Borrower of any class or any warrants or options to
purchase any such shares (collectively, a "Stock Repurchase"); provided that the
Borrower or its Subsidiaries may consummate Stock Repurchases (a) in an amount
up to $50,000,000, in the aggregate, during any consecutive period during the
term of this Credit Agreement that the Leverage Ratio is greater than or equal
to 2.75 to 1.0 and (b) in an unlimited amount as long as (i) the Leverage Ratio
(A) as of the end of the most recent fiscal quarter of the Borrower for which an
officer's certificate has been delivered pursuant to Section 7.1(c) is less than
2.75 to 1.0 and (B) on a Pro Forma Basis giving effect to such Stock Repurchase,
is less than 2.75 to 1.0, (ii) if (A) the amount of Stock Repurchases during the
lesser of (x) the twelve month period preceding the anticipated Stock Repurchase
or (y) the period from the date of the last certificate delivered pursuant to
this clause (ii) and the date of the anticipated Stock Repurchase plus (B) the
amount of the anticipated Stock Repurchase exceeds, in the aggregate,
$100,000,000, the Borrower shall deliver to the Administrative Agent, prior to
making such Stock Repurchase, a certificate of an Authorized Officer of the
Borrower providing calculations showing that the requirement in clause (b)(i)(B)
above is accurate, (iii) on the date of such Stock Repurchase no Event of
Default exists and (iv) after giving effect to such Stock Repurchase no Default
or Event of Default exists.
8.10 Sale/Leasebacks.
(a) Except as set forth in clause (b) below, the Borrower will
not, and will not permit any Subsidiary to, enter into any Sale and
Leaseback Transaction with respect to any Principal Property unless:
(i) the Sale and Leaseback Transaction is solely with
the Borrower or a Guarantor; or
(ii) the lease is for a period not in excess of five
years, including renewal rights; or
(iii) prior to or within 270 days after the
completion of the sale of such Principal Property in
connection with the Sale and Leaseback Transaction, the
Borrower or its Subsidiary applies the net cash proceeds of
the sale of such Principal Property to: (A) the prepayment of
the Term Loans or the Revolving Loans (with a corresponding
permanent reduction in the Revolving Committed Amount) or the
prepayment of debt ranking equally with the Loans; or (B) the
acquisition of different property, facilities or equipment or
the expansion of the Borrower and its Subsidiaries' existing
business, including the acquisition of other businesses.
(b) In addition to the Sale and Leaseback Transactions
permitted by clause (a) above, the Borrower or any of its Subsidiaries
may enter into any Sale and Leaseback
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Transactions if all Attributable Debt (measured, in each case, at the
time such Sale and Leaseback Transaction is entered into by the
Borrower or its Subsidiary) in respect of such Sale and Leaseback
Transactions (not including any Sale and Leaseback Transactions
permitted under clause (a) above), in the aggregate, does not exceed 5%
of Total Assets.
SECTION 9
EVENTS OF DEFAULT
9.1 Events of Default.
An Event of Default shall exist upon the occurrence, and during the
continuation, of any of the following specified events (each an "Event of
Default"):
(a) Payment. Any Credit Party shall default in the payment (i)
when due of any principal of any of the Loans or any reimbursement
obligation arising from drawings under Letters of Credit or (ii) within
three Business Days of when due of any interest on the Loans or any
fees or other amounts owing hereunder, under any of the other Credit
Documents or in connection herewith.
(b) Representations. Any representation, warranty or statement
made or deemed to be made by any Credit Party herein, in any of the
other Credit Documents, or in any statement or certificate delivered or
required to be delivered pursuant hereto or thereto shall prove untrue
in any material respect on the date as of which it was made or deemed
to have been made.
(c) Covenants. Any Credit Party shall:
(i) default in the due performance or observance of
any term, covenant or agreement contained in Sections 7.2,
7.3, 7.10, 7.12 or 7.13 or Section 8 inclusive;
(ii) default in the due performance or observance by
it of any term, covenant or agreement contained in Section 7.1
(excepting Section 7.1(e) for which the unremedied period
shall only be five Business Days) and 7.11 and such default
shall continue unremedied for a period of ten Business Days;
or
(iii) default in the due performance or observance by
it of any term, covenant or agreement (other than those
referred to in subsections (a), (b) or (c)(i) or (ii) of this
Section 9.1) contained in this Credit Agreement and such
default shall continue unremedied for a period of at least 30
days after the earlier of an Authorized Officer of the
Borrower becoming aware of such default or notice thereof
given by the Administrative Agent.
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(d) Other Credit Documents. (i) Any Credit Party shall default
in the due performance or observance of any term, covenant or agreement
in any of the other Credit Documents and such default shall continue
unremedied for a period of at least 30 days after the earlier of an
Authorized Officer of the Borrower becoming aware of such default or
notice thereof given by the Administrative Agent, (ii) any Credit
Document shall fail to be in full force and effect or any Credit Party
shall so assert or (iii) any Credit Document shall fail to give the
Administrative Agent and/or the Lenders the rights, powers and
privileges purported to be created by such Credit Document.
(e) Guaranties. The guaranty given by the Credit Parties
hereunder or by any Additional Credit Party or material provision
thereof shall cease to be in full force and effect, or any Guarantor or
any Person acting by or on behalf of such Guarantor shall deny or
disaffirm such Guarantor's obligations under such guaranty or such
Guarantor shall default in the due payment or performance of such
guaranty.
(f) Bankruptcy, etc. The occurrence of any of the following
with respect to a Credit Party (i) a court or governmental agency
having jurisdiction in the premises shall enter a decree or order for
relief in respect of a Credit Party in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or appoint a receiver, liquidator, assignee, custodian,
trustee, sequestrator, administrator or similar official of a Credit
Party or for any substantial part of its Property or ordering the
winding up or liquidation of, or an administrator in respect of, its
affairs; or (ii) an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect is commenced
against a Credit Party and such petition remains unstayed and in effect
for a period of 60 consecutive days; or (iii) a Credit Party shall
commence a voluntary case under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect, or consent to the
entry of an order for relief in an involuntary case under any such law,
or consent to the appointment or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator, administrator
or similar official of such Person or any substantial part of its
Property or make any general assignment for the benefit of creditors;
or (iv) a Credit Party shall fail generally, or shall admit in writing
its inability, to pay its debts as they become due or any action shall
be taken by such Person in furtherance of any of the aforesaid
purposes.
(g) Defaults under Other Indebtedness. With respect to any
Indebtedness in excess of $50,000,000 (other than Indebtedness
outstanding under this Credit Agreement) of the Borrower or any of its
Subsidiaries (A) such Person shall (x) default in any payment (beyond
the applicable grace period with respect thereto, if any) with respect
to any such Indebtedness, or (y) default (after giving effect to any
applicable grace period) in the observance or performance relating to
such Indebtedness or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event or
condition shall occur or condition exist, the effect of which default
or other event or condition is to cause, or permit, the holder or
holders of such Indebtedness (or trustee or agent on behalf of such
holders, if any) to require (determined without regard to whether any
notice or lapse of time is required) any such Indebtedness to become
due prior to its stated maturity; or (B) any such Indebtedness shall be
declared due and payable, or required to be prepaid other than by
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a regularly scheduled required prepayment prior to the stated maturity
thereof; or (C) any such Indebtedness shall mature and remain unpaid.
(h) Judgments. One or more judgments, orders, or decrees shall
be entered against any one or more of the Borrower and its Subsidiaries
involving a liability of $50,000,000 or more, in the aggregate, (to the
extent not paid, covered by insurance provided by a carrier who has
acknowledged coverage or covered by an indemnification from Corning
Incorporated or SmithKline Xxxxxxx PLC) and such judgments, orders or
decrees (i) are the subject of any enforcement proceeding commenced by
any creditor or (ii) shall continue unsatisfied, undischarged and
unstayed for a period ending on the first to occur of (A) the last day
on which such judgment, order or decree becomes final and unappealable
or (B) 60 days.
(i) ERISA. The occurrence of any of the following events or
conditions which individually or in the aggregate has had or would
reasonably be expected to have a Material Adverse Effect: (i) any
"accumulated funding deficiency," as such term is defined in Section
302 of ERISA and Section 412 of the Code, whether or not waived, shall
exist with respect to any Plan, other than a Multiemployer Plan, or any
Lien shall arise on the assets of the Borrower, any Subsidiary of the
Borrower or any ERISA Affiliate in favor of the PBGC or a Plan, other
than a Multiemployer Plan; (ii) an ERISA Event shall occur with respect
to a Single Employer Plan, which is reasonably likely to result in the
termination of such Plan for purposes of Title IV of ERISA; (iii) an
ERISA Event shall occur with respect to a Multiemployer Plan or
Multiple Employer Plan, which is reasonably likely to result in (A) the
termination of such plan for purposes of Title IV of ERISA, or (B) the
Borrower, any Subsidiary of the Borrower or any ERISA Affiliate
incurring any liability in connection with a withdrawal from,
reorganization of (within the meaning of Section 4241 of ERISA), or
insolvency (within the meaning of Section 4245 of ERISA) of such plan;
(iv) any prohibited transaction (within the meaning of Section 406 of
ERISA or Section 4975 of the Code) or breach of fiduciary
responsibility shall occur which may subject the Borrower, any
Subsidiary of the Borrower or any ERISA Affiliate to any liability
under Sections 406, 409, 502(i), or 502(l) of ERISA or Section 4975 of
the Code, or under any agreement or other instrument pursuant to which
the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate has
agreed or is required to indemnify any Person against any such
liability; or (v) the Borrower, any Subsidiary of the Borrower or any
ERISA Affiliate fails to pay when due, after the expiration of any
applicable grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multiemployer
Plan in an aggregate amount in excess of $50,000,000.
(j) Ownership. There shall occur a Change of Control.
9.2 Acceleration; Remedies.
Upon the occurrence and during the continuation of an Event of Default,
the Administrative Agent may or shall, upon the request and direction of the
Required Lenders, take the following actions without prejudice to the rights of
the Administrative Agent or any Lender to enforce its claims against the Credit
Parties, except as otherwise specifically provided for herein:
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(a) Termination of Commitments. Declare the Commitments
terminated whereupon the Commitments shall be immediately terminated.
(b) Acceleration of Loans. Declare the unpaid principal of and
any accrued interest in respect of all Loans, any reimbursement
obligations arising from drawings under Letters of Credit and any and
all other Indebtedness or obligations of any and every kind owing by a
Credit Party to any of the Lenders under the Credit Documents to be due
whereupon the same shall be immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Credit Parties.
(c) Cash Collateral. Direct the Borrower to pay (and the
Borrower agrees that upon receipt of such notice, or upon the
occurrence of an Event of Default under Section 9.1(f), it will
immediately pay) to the Administrative Agent additional cash, to be
held by the Administrative Agent, for the benefit of the Lenders, in a
cash collateral account as additional security for the LOC Obligations
in respect of subsequent drawings under all then outstanding Letters of
Credit in an amount equal to the maximum aggregate amount which may be
drawn under all Letters of Credits then outstanding.
(d) Enforcement of Rights. To the extent permitted by law,
enforce any and all rights and interests created and existing under the
Credit Documents, including, without limitation, all rights and
remedies against a Guarantor and all rights of set-off.
Notwithstanding the foregoing, if an Event of Default specified in Section
9.1(f) shall occur, then the Commitments shall automatically terminate and all
Loans, all reimbursement obligations under Letters of Credit, all accrued
interest in respect thereof, all accrued and unpaid fees and other indebtedness
or obligations owing to the Lenders hereunder shall immediately become due and
payable without the giving of any notice or other action by the Administrative
Agent or the Lenders, which notice or other action is expressly waived by the
Credit Parties.
Notwithstanding the fact that enforcement powers reside primarily with the
Administrative Agent, each Lender has, to the extent permitted by law, a
separate right of payment and shall be considered a separate "creditor" holding
a separate "claim" within the meaning of Section 101(5) of the Bankruptcy Code
or any other insolvency statute.
9.3 Allocation of Payments After Event of Default.
Notwithstanding any other provisions of this Credit Agreement, after
the occurrence and during the continuation of an Event of Default, all amounts
collected or received by the Administrative Agent or any Lender on account of
amounts outstanding under any of the Credit Documents shall be paid over or
delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs
and expenses (including without limitation reasonable Attorney Costs)
of the Administrative Agent or any of the Lenders in connection with
enforcing the rights of the Lenders under the Credit Documents, pro
rata as set forth below;
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SECOND, to payment of any fees owed to the Administrative
Agent, the Issuing Lender, the Swing Line Lender or any Lender, pro
rata as set forth below;
THIRD, to the payment of all accrued interest payable to the
Lenders hereunder, pro rata as set forth below;
FOURTH, to the payment of the outstanding principal amount of
the Loans and unreimbursed drawings under Letters of Credit, and to the
payment or cash collateralization of the outstanding LOC Obligations,
pro rata as set forth below;
FIFTH, to all other obligations which shall have become due
and payable under the Credit Documents and not repaid pursuant to
clauses "FIRST" through "FOURTH" above; and
SIXTH, to the payment of the surplus, if any, to whoever may
be lawfully entitled to receive such surplus.
In carrying out the foregoing, (a) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category; (b) each of the Lenders shall receive an amount equal to
its pro rata share (based on the proportion that the then outstanding Loans, and
LOC Obligations held by such Lender bears to the aggregate then outstanding
Loans and LOC Obligations of amounts available to be applied; and (c) to the
extent that any amounts available for distribution pursuant to clause "FOURTH"
above are attributable to the issued but undrawn amount of outstanding Letters
of Credit, such amounts shall be held by the Administrative Agent in a cash
collateral account and applied (i) first, to reimburse the Issuing Lender from
time to time for any drawings under such Letters of Credit and (ii) then,
following the expiration of all Letters of Credit, to all other obligations of
the types described in clauses "FOURTH" and "FIFTH" above in the manner provided
in this Section 9.3.
SECTION 10
AGENCY PROVISIONS
10.1 Appointment.
(a) Each Lender hereby irrevocably appoints, designates and
authorizes the Administrative Agent to take such action on its behalf
under the provisions of this Credit Agreement and each other Credit
Document and to exercise such powers and perform such duties as are
expressly delegated to it by the terms of this Credit Agreement or any
other Credit Document, together with such powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere herein or in any other Credit Document, the
Administrative Agent shall not have any duties or responsibilities,
except those expressly set forth herein, nor shall the Administrative
Agent have or be
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deemed to have any fiduciary or trustee relationship with any Lender or
participant, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Credit
Agreement or any other Credit Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing
sentence, the use of the term "agent" herein and in the other Credit
Documents with reference to the Administrative Agent is not intended to
connote any fiduciary or other implied (or express) obligations arising
under agency doctrine of any applicable law. Instead, such term is used
merely as a matter of market custom, and is intended to create or
reflect only an administrative relationship between independent
contracting parties.
(b) The Issuing Lender shall act on behalf of the Lenders with
respect to any Letters of Credit issued by it and the documents
associated therewith until such time (and except for so long) as the
Administrative Agent may agree at the request of the Required Lenders
to act for the Issuing Lender with respect thereto; provided, however,
that the Issuing Lender shall have all of the benefits and immunities
(i) provided to the Administrative Agent in this Section 10 with
respect to any acts taken by or omissions of the Issuing Lender in
connection with Letters of Credit issued by it or proposed to be issued
by it and the application and agreements for letters of credit
pertaining to the Letters of Credit as fully as if the term
"Administrative Agent" as used in this Section 10 included the Issuing
Lender with respect to such acts or omissions, and (ii) as additionally
provided herein with respect to the Issuing Lender.
(c) Each of (i) UBS AG, Stamford Branch and Xxxxxxx Xxxxx
Capital Corporation in their capacities as Co-Syndication Agents, (ii)
Credit Suisse First Boston and The Bank of New York in their capacities
as Co-Documentation Agents and (iii) Wachovia Bank, N.A. in its
capacity as Managing Agent shall have no duties or obligations
whatsoever under this Credit Agreement or the other Credit Documents.
10.2 Delegation of Duties.
The Administrative Agent may execute any of its duties under this
Credit Agreement or any other Credit Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agent or attorney-in-fact that it selects with reasonable care.
10.3 Exculpatory Provisions.
No Agent-Related Person shall (a) be liable for any action taken or
omitted to be taken by any of them under or in connection with this Credit
Agreement or any other Credit Document or the transactions contemplated hereby
(except for its own gross negligence or willful misconduct in connection with
its duties expressly set forth herein), or (b) be responsible in any manner to
any Lender or participant for any recital, statement, representation or warranty
made by any Credit Party or any officer thereof, contained herein or in any
other Credit Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by the Administrative Agent
under or in connection with, this Credit Agreement or any other Credit
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Document, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Credit Agreement or any other Credit Document, or for any
failure of any Credit Party or any other party to any Credit Document to perform
its obligations hereunder or thereunder. No Agent-Related Person shall be under
any obligation to any Lender or participant to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Credit Agreement or any other Credit Document, or to inspect the
properties, books or records of any Credit Party or any Affiliate thereof.
10.4 Reliance on Communications.
(a) The Administrative Agent shall be entitled to rely, and
shall be fully protected in relying, upon any writing, communication,
signature, resolution, representation, notice, consent, certificate,
affidavit, letter, telegram, facsimile, telex or telephone message,
statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper
Person or Persons, and upon advice and statements of legal counsel
(including counsel to any Credit Party), independent accountants and
other experts selected by the Administrative Agent. The Administrative
Agent may deem and treat each Lender as the owner of its interests
hereunder for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been delivered to the
Administrative Agent in accordance with Section 11.3(b). The
Administrative Agent shall be fully justified in failing or refusing to
take any action under any Credit Document unless it shall first receive
such advice or concurrence of the Required Lenders as it deems
appropriate and, if it so requests, it shall first be indemnified to
its satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking or continuing
to take any such action. The Administrative Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this
Credit Agreement or any other Credit Document in accordance with a
request or consent of the Required Lenders or all the Lenders, if
required hereunder, and such request and any action taken or failure to
act pursuant thereto shall be binding upon all the Lenders and
participants, and their respective successors and assigns. Where this
Credit Agreement expressly permits or prohibits an action unless the
Required Lenders otherwise determine, the Administrative Agent shall,
and in all other instances, the Administrative Agent may, but shall not
be required to, initiate any solicitation for the consent or a vote of
the Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 5.1, each Lender that has signed this Credit
Agreement shall be deemed to have consented to, approved or accepted or
to be satisfied with, each document or other matter either sent by the
Administrative Agent to such Lender for consent, approval, acceptance
or satisfaction, or required thereunder to be consented to or approved
by or acceptable or satisfactory to a Lender.
10.5 Notice of Default.
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default, except with respect
to defaults in the payment of
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principal, interest and fees required to be paid to the Administrative Agent for
the account of the Lenders, unless the Administrative Agent shall have received
written notice from a Lender or the Borrower referring to this Credit Agreement,
describing such Default or Event of Default and stating that such notice is a
"notice of default." The Administrative Agent will notify the Lenders of its
receipt of any such notice. The Administrative Agent shall take such action with
respect to such Default or Event of Default as may be reasonably directed by the
Required Lenders in accordance with Section 9.2; provided, however, that unless
and until the Administrative Agent has received any such direction, the
Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable or in the best interest of the Lenders.
10.6 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereinafter taken, including any consent to and acceptance of any assignment or
review of the affairs of any Credit Party or any Affiliate thereof, shall be
deemed to constitute any representation or warranty by any Agent-Related Person
to any Lender as to any matter, including whether Agent-Related Persons have
disclosed material information in their possession. Each Lender represents to
the Administrative Agent that it has, independently and without reliance upon
any Agent-Related Person or any other Lender and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, Property, financial and
other condition and creditworthiness of the Credit Parties and their respective
Affiliates, and all applicable bank or other regulatory laws relating to the
transactions contemplated hereby, and made its own decision to enter into this
Credit Agreement and to extend credit to the Borrower hereunder. Each Lender
also represents that it will, independently and without reliance upon any
Agent-Related Person or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Credit Agreement and the other Credit Documents, and to make such
investigations as it deems necessary to inform itself as to the business,
prospects, operations, Property, financial and other condition and
creditworthiness of the Borrower. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent herein, the Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, Property, financial and other
condition or creditworthiness of any of the Credit Parties or any of their
respective Affiliates which may come into the possession of any Agent-Related
Person.
10.7 Indemnification.
Whether or not the transactions contemplated hereby are consummated,
the Lenders shall indemnify upon demand each Agent-Related Person (to the extent
not reimbursed by or on behalf of any Credit Party and without limiting the
obligation of any Credit Party to do so), pro rata, and hold harmless each
Agent-Related Person from and against any and all Indemnified Liabilities
incurred by it; provided, however, that no Lender shall be liable for the
payment to any Agent-Related Person of any portion of such Indemnified
Liabilities resulting from such
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Agent-Related Person's gross negligence or willful misconduct; it being
understood that no action taken in accordance with the directions of the
Required Lenders shall be deemed to constitute gross negligence or willful
misconduct for purposes of this Section 10.7. Without limitation of the
foregoing, each Lender shall reimburse the Administrative Agent upon demand for
its ratable share of any costs or out-of-pocket expenses (including Attorney
Costs) incurred by the Administrative Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Credit Agreement,
any other Credit Document, or any document contemplated by or referred to
herein, to the extent that the Administrative Agent is not reimbursed for such
expenses by or on behalf of the Credit Parties. The undertaking in this Section
10.7 shall survive termination of the Commitments, the payment of all
Obligations hereunder and the resignation or replacement of the Administrative
Agent.
10.8 Administrative Agent in Its Individual Capacity.
Bank of America and its Affiliates may make loans to, issue letters of
credit for the account of, accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial advisory, underwriting
or other business with each of the Credit Parties and their respective
Affiliates as though Bank of America were not the Administrative Agent or the
Issuing Lender hereunder and without notice to or consent of the Lenders. The
Lenders acknowledge that, pursuant to such activities, Bank of America or its
Affiliates may receive information regarding any Credit Party or its Affiliates
(including information that may be subject to confidentiality obligations in
favor of such Credit Party or such Affiliate) and that the Administrative Agent
shall be under no obligation to provide such information to them. With respect
to its Loans, Bank of America shall have the same rights and powers under this
Credit Agreement as any other Lender and may exercise such rights and powers as
though it were not the Administrative Agent or the Issuing Lender, and the terms
"Lender" and "Lenders" include Bank of America in its individual capacity.
10.9 Successor Agent.
The Administrative Agent may resign as Administrative Agent upon 30
days' notice to the Lenders. If the Administrative Agent resigns under this
Credit Agreement, the Required Lenders shall appoint from among the Lenders a
successor administrative agent for the Lenders which successor administrative
agent (such appointment, absent the existence of an Event of Default, to be
subject to the consent of the Borrower, which consent of the Borrower shall not
be unreasonably withheld or delayed). If no successor administrative agent is
appointed prior to the effective date of the resignation of the Administrative
Agent, the Administrative Agent may appoint, after consulting with the Lenders
and the Borrower, a successor administrative agent from among the Lenders. Upon
the acceptance of its appointment as successor administrative agent hereunder,
such successor administrative agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term "Administrative Agent"
shall mean such successor administrative agent and the retiring Administrative
Agent's appointment, powers and duties as Administrative Agent shall be
terminated. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Section 10 and Sections
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11.5 and 11.10 shall continue to inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent under this Credit
Agreement. If no successor administrative agent has accepted appointment as
Administrative Agent by the date which is 30 days following a retiring
Administrative Agent's notice of resignation, the retiring Administrative
Agent's resignation shall nevertheless thereupon become effective and the
Lenders shall perform all of the duties of the Administrative Agent hereunder
until such time, if any, as the Required Lenders appoint a successor agent as
provided for above.
SECTION 11
MISCELLANEOUS
11.1 Notices.
Except as otherwise expressly provided herein, all notices and other
communications shall have been duly given and shall be effective (a) when
delivered, (b) when transmitted via telecopy (or other facsimile device) to the
number set forth on Schedule 11.1, (c) the Business Day following the day on
which the same has been delivered prepaid (or subject to an invoice arrangement)
to a reputable national overnight air courier service, or (d) the third Business
Day following the day on which the same is sent by certified or registered mail,
postage prepaid, in each case to the respective parties at the address or
telecopy numbers set forth on Schedule 11.1, or at such other address as such
party may specify by written notice to the other parties hereto.
11.2 Right of Set-Off.
In addition to any rights now or hereafter granted under
applicable law or otherwise, and not by way of limitation of any such
rights, upon the occurrence of an Event of Default and the commencement
of remedies described in Section 9.2, each Lender is authorized at any
time and from time to time, without presentment, demand, protest or
other notice of any kind (all of which rights being hereby expressly
waived), to set-off and to appropriate and apply any and all deposits
(general or special) and any other indebtedness at any time held or
owing by such Lender (including, without limitation, branches, agencies
or Affiliates of such Lender wherever located) to or for the credit or
the account of any Credit Party against obligations and liabilities of
such Credit Party to the Lenders hereunder, under the Notes, the other
Credit Documents or otherwise, irrespective of whether the
Administrative Agent or the Lenders shall have made any demand
hereunder and although such obligations, liabilities or claims, or any
of them, may be contingent or unmatured, and any such set-off shall be
deemed to have been made immediately upon the occurrence of an Event of
Default even though such charge is made or entered on the books of such
Lender subsequent thereto. The Credit Parties hereby agree that any
Person purchasing a participation in the Loans and Commitments
hereunder pursuant to Sections 11.3(e) or 3.8 may exercise all rights
of set-off with respect to its participation interest as fully as if
such Person were a Lender hereunder.
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11.3 Benefit of Agreement.
(a) Generally. This Credit Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors
and assigns of the parties hereto; provided that none of the Credit
Parties may assign and transfer any of its interests (except as
permitted by Section 8.4 or 8.5) without the prior written consent of
the Lenders; and provided further that the rights of each Lender to
transfer, assign or grant participations in its rights and/or
obligations hereunder shall be limited as set forth below in this
Section 11.3.
(b) Assignments. Each Lender may assign to one or more
Eligible Assignees all or a portion of its rights and obligations under
this Credit Agreement (including, without limitation, all or a portion
of its Loans, its Notes, and its Commitment); provided, however, that:
(i) each such assignment shall be to an Eligible
Assignee;
(ii) except (A) in the case of an assignment to
another Lender, (B) in the case of an assignment of all of a
Lender's rights and obligations under this Credit Agreement,
or (C) with the consent of the Administrative Agent and the
Borrower, any such partial assignment shall be in an amount at
least equal to $5,000,000 (or, if less, the remaining amount
of the Commitment of such assigning Lender) or an integral
multiple of $500,000 in excess thereof;
(iii) each such assignment by a Lender shall be of a
constant, and not varying, percentage of all of its rights and
obligations under this Credit Agreement and the Notes; and
(iv) the parties to such assignment shall execute and
deliver to the Administrative Agent for its acceptance an
Assignment Agreement in substantially the form of Exhibit
11.3(b), together with a processing fee from the assignor of
$3,500.
Upon execution, delivery, and acceptance of such Assignment Agreement,
the assignee thereunder shall be a party hereto and, to the extent of
such assignment, have the obligations, rights, and benefits of a Lender
hereunder and the assigning Lender shall, to the extent of such
assignment, relinquish its rights and be released from its obligations
under this Credit Agreement. Upon the consummation of any assignment
pursuant to this Section 11.3(b), the assignor, the Administrative
Agent and the Borrower shall make appropriate arrangements so that, if
required or requested, new Notes are issued to the assignor and the
assignee. If the assignee is a foreign corporation, foreign partnership
or foreign trust within the meaning of the Code, it shall deliver to
the Borrower and the Administrative Agent certification as to exemption
from deduction or withholding of taxes in accordance with Section 3.13.
By executing and delivering an assignment agreement in accordance with
this Section 11.3(b), the assigning Lender thereunder and the assignee
thereunder shall be deemed to
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confirm to and agree with each other and the other parties hereto as
follows: (A) such assigning Lender warrants that it is the legal and
beneficial owner of the interest being assigned thereby free and clear
of any adverse claim and the assignee warrants that it is an Eligible
Assignee; (B) except as set forth in clause (A) above, 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 Credit Agreement,
any of the other Credit Documents or any other instrument or document
furnished pursuant hereto or thereto, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this
Credit Agreement, any of the other Credit Documents or any other
instrument or document furnished pursuant hereto or thereto or the
financial condition of any Credit Party or the performance or
observance by any Credit Party of any of its obligations under this
Credit Agreement, any of the other Credit Documents or any other
instrument or document furnished pursuant hereto or thereto; (C) such
assignee represents and warrants that it is legally authorized to enter
into such assignment agreement; (D) such assignee confirms that it has
received a copy of this Credit Agreement, the other Credit Documents
and such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into such
assignment agreement; (E) such assignee will independently and without
reliance upon the Administrative Agent, such assigning 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 Credit Agreement and the
other Credit Documents; (F) such assignee appoints and authorizes the
Administrative Agent to take such action on its behalf and to exercise
such powers under this Credit Agreement or any other Credit Document as
are delegated to the Administrative Agent by the terms hereof or
thereof, together with such powers as are reasonably incidental
thereto; and (G) such assignee agrees that it will perform in
accordance with their terms all the obligations which by the terms of
this Credit Agreement and the other Credit Documents are required to be
performed by it as a Lender.
(c) Register. The Administrative Agent shall maintain a copy
of each Assignment Agreement delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders
and the Commitment of, and principal amount of the Loans owing to, each
Lender from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest
error, and the Borrower, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Credit 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.
(d) Acceptance. Upon its receipt of an Assignment Agreement
executed by the parties thereto, together with any Note subject to such
assignment and payment of the processing fee, the Administrative Agent
shall, if such Assignment Agreement has been completed and is in
substantially the form of Exhibit 11.3(b), (i) accept such Assignment
Agreement, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the parties thereto.
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(e) Participations. Each Lender may sell participations to one
or more Persons in all or a portion of its rights, obligations or
rights and obligations under this Credit Agreement (including all or a
portion of its Commitment and its Loans); provided, however, that (i)
such Lender's obligations under this Credit Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) the
participant shall be entitled to the benefit of the yield protection
provisions contained in Sections 3.9 through 3.15, inclusive (but not
for a greater amount than the Lender would be entitled to), and of the
right of set-off contained in Section 11.2, (iv) the Borrower shall
continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Credit Agreement,
and (v) such Lender shall retain the sole right to enforce the
obligations of the Borrower relating to its Loans and its Notes and to
approve any amendment, modification, or waiver of any provision of this
Credit Agreement (other than amendments, modifications, or waivers
decreasing the amount of principal of or the rate at which interest is
payable on such Loans or Notes, extending any scheduled principal
payment date or date fixed for the payment of interest on such Loans or
Notes, extending its Commitment or releasing the Borrower or all or
substantially all of the Guarantors from its or their respective
obligations under the Credit Documents).
(f) Unrestricted Assignments. Notwithstanding any other
provision set forth in this Credit Agreement, any Lender may at any
time (i) assign and pledge all or any portion of its Loans and its
Notes to any Federal Reserve Bank as collateral security pursuant to
Regulation A and any Operating Circular issued by such Federal Reserve
Bank or (ii) pledge all or any portion of its rights (but not its
obligations to make Loans or participate in Letters of Credit)
hereunder to any trustee or holders of obligations owed, or securities
issued, by such Lender as security for such obligations or securities
or to any other representative of such holders; provided that such
trustee or holder shall not have the right to become a Lender
hereunder. No such assignment shall release the assigning Lender from
its obligations hereunder.
(g) Information. Any Lender may furnish any information
concerning the Borrower or any of its Subsidiaries in the possession of
such Lender from time to time to assignees and participants (including
prospective assignees and participants), subject, however, to the
provisions of Section 11.15.
(h) CLO's. Notwithstanding anything to the contrary contained
herein, any Lender, (a "Granting Lender") may grant to a special
purpose funding vehicle (an "SPC") the option to fund all or any part
of any Loan that such Granting Lender would otherwise be obligated to
fund pursuant to this Credit Agreement; provided that (i) nothing
herein shall constitute a commitment by any SPC to fund any Loan, (ii)
if an SPC elects not to exercise such option or otherwise fails to fund
all or any part of such Loan, the Granting Lender shall be obligated to
fund such Loan pursuant to the terms hereof, (iii) no SPC shall have
any voting rights pursuant to Section 11.6 and (iv) with respect to
notices, payments and other matters hereunder, the Credit Parties, the
Administrative Agent and the Lenders shall not be obligated to deal
with an SPC, but may limit their communications and other dealings
relevant to such SPC to the applicable Granting
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Lender. The funding of a Loan by an SPC hereunder shall utilize the
Loan Commitment of the Granting Lender to the same extent that, and as
if, such Loan were funded by such Granting Lender. Each party hereto
hereby agrees that no SPC shall be liable for any indemnity or payment
under this Credit Agreement for which a Lender would otherwise be
liable for so long as, and to the extent, the Granting Lender provides
such indemnity or makes such payment. Notwithstanding anything to the
contrary contained in this Credit Agreement, any SPC may disclose on a
confidential basis any non-public information relating to its funding
of Loans to any rating agency, commercial paper dealer or provider of
any surety or guarantee to such SPC. This clause (h) may not be amended
without the prior written consent of each Granting Lender, all or any
part of whose Loan is being funded by an SPC at the time of such
amendment.
11.4 No Waiver; Remedies Cumulative.
No failure or delay on the part of the Administrative Agent or any
Lender in exercising any right, power or privilege hereunder or under any other
Credit Document and no course of dealing between the Borrower or any Credit
Party and the Administrative Agent or any Lender shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder or under any other Credit Document preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder. The rights and remedies provided herein are cumulative
and not exclusive of any rights or remedies which the Administrative Agent or
any Lender would otherwise have. No notice to or demand on any Credit Party in
any case shall entitle any Credit Party to any other or further notice or demand
in similar or other circumstances or constitute a waiver of the rights of the
Administrative Agent or the Lenders to any other or further action in any
circumstances without notice or demand.
11.5 Payment of Expenses; Indemnification.
The Borrower agrees to: (a) pay all reasonable out-of-pocket costs and
expenses of (i) the Administrative Agent and BAS in connection with (A) the
negotiation, preparation, execution and delivery, syndication and administration
of this Credit Agreement and the other Credit Documents and the documents and
instruments referred to therein (including, without limitation, the reasonable
fees and expenses of Xxxxx & Xxx Xxxxx, special counsel to the Administrative
Agent) and (B) any amendment, waiver or consent relating hereto and thereto
including, but not limited to, any such amendments, waivers or consents
resulting from or related to any work-out, renegotiation or restructure relating
to the performance by the Credit Parties under this Credit Agreement, and (ii)
the Administrative Agent and the Lenders in connection with (A) enforcement of
the Credit Documents and the documents and instruments referred to therein,
including, without limitation, in connection with any such enforcement, the
reasonable Attorneys' Costs of the Administrative Agent and each of the Lenders
and (B) any bankruptcy or insolvency proceeding of any Credit Party, and (b)
indemnify the Administrative Agent, BAS and each Lender, its officers,
directors, employees, representatives, counsel and agents from and hold each of
them harmless against any and all losses, liabilities, claims, damages or
expenses incurred by any of them as a result of, or arising out of, or in any
way related to, or by reason of, any investigation, litigation or other
proceeding (whether or not the Administrative Agent, BAS or any Lender is a
party thereto) related to the entering into and/or performance of any Credit
Document or the use of proceeds of any Loans (including other
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extensions of credit) hereunder or the consummation of any other transactions
contemplated in any Credit Document, including, without limitation, reasonable
Attorneys' Costs incurred in connection with any such investigation, litigation
or other proceeding (but excluding any such losses, liabilities, claims, damages
or expenses to the extent incurred by reason of gross negligence or willful
misconduct on the part of the Person to be indemnified), (all of the foregoing,
collectively, "Indemnified Liabilities"). The agreements in this Section 11.5
shall survive the termination of the Commitments and the repayment of the Credit
Party Obligations.
11.6 Amendments, Waivers and Consents.
Neither this Credit Agreement nor any other Credit Document nor any of
the terms hereof or thereof may be amended, changed, waived, discharged or
terminated unless such amendment, change, waiver, discharge or termination is in
writing and signed by the Required Lenders and the then Credit Parties; provided
that no such amendment, change, waiver, discharge or termination shall without
the consent of each Lender affected thereby:
(a) extend the Maturity Date or extend or postpone the time
for any payment or prepayment of principal;
(b) reduce the rate or extend the time of payment of interest
(other than as a result of waiving the applicability of any
post-default increase in interest rates) thereon or fees hereunder;
(c) reduce or waive the principal amount of any Loan;
(d) increase or extend the Commitment of a Lender (it being
understood and agreed that a waiver of any Default or Event of Default
or a waiver of any mandatory reduction in the Commitments shall not
constitute a change in the terms of any Commitment of any Lender);
(e) release the Borrower from its obligations or consent to
the assignment or transfer by the Borrower of any of its rights and
obligations under (or in respect of) the Credit Documents or release
all or substantially all of the Guarantors from their respective
obligations under the Credit Documents;
(f) amend, modify or waive any provision of this Section 11.6
or Section 3.4(a), 3.4(b)(i), 3.7, 3.8, 9.1(a), 11.2, 11.3 or 11.5; or
(g) reduce any percentage specified in, or otherwise modify,
the definition of Required Lenders.
Notwithstanding the above, (i) no provisions of Section 10 may be amended or
modified without the consent of the Administrative Agent, (ii) no provisions of
Section 2.2 may be amended or modified without the consent of the Issuing Lender
and (iii) no provisions of Section 2.3 may be amended or modified without the
consent of the Swing Line Lender.
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Notwithstanding the fact that the consent of all the Lenders is required in
certain circumstances as set forth above, (x) each Lender is entitled to vote as
such Lender sees fit on any reorganization plan that affects the Loans or the
Letters of Credit, and each Lender acknowledges that the provisions of Section
1126(c) of the Bankruptcy Code supersedes the unanimous consent provisions set
forth herein and (y) the Required Lenders may consent to allow a Credit Party to
use cash collateral in the context of a bankruptcy or insolvency proceeding.
11.7 Counterparts/Telecopy.
This Credit Agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall constitute one and the same instrument. Delivery of executed
counterparts by telecopy shall be as effective as an original and shall
constitute a representation that an original will be delivered.
11.8 Headings.
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Credit Agreement.
11.9 Defaulting Lender.
Each Lender understands and agrees that if such Lender is a Defaulting
Lender then notwithstanding the provisions of Section 11.6 it shall not be
entitled to vote on any matter requiring the consent of the Required Lenders or
to object to any matter requiring the consent of all the Lenders; provided,
however, that all other benefits and obligations under the Credit Documents
shall apply to such Defaulting Lender.
11.10 Survival of Indemnification.
All indemnities set forth herein shall survive the execution and
delivery of this Credit Agreement, the making of the Loans, the issuance of the
Letters of Credit and the repayment of the Loans, LOC Obligations and other
obligations and the termination of the Commitments hereunder.
11.11 Governing Law; Venue; Jurisdiction.
(a) THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER
SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK. Any legal action or proceeding with
respect to this Credit Agreement or any other Credit Document may be
brought in the courts of the State of New York or of the United States
sitting in New York City, and, by execution and delivery of this Credit
Agreement, each Credit Party hereby irrevocably accepts for itself and
in respect of its Property, generally and unconditionally, the
jurisdiction of such courts. Each Credit Party irrevocably consents to
the service of process in any action or proceeding with respect to this
Credit Agreement or any other Credit Document by the mailing of copies
thereof by
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registered or certified mail, postage prepaid, to it at the address for
notices pursuant to Section 11.1, such service to become effective 10
days after such mailing. Nothing herein shall affect the right of a
Lender to serve process in any other manner permitted by law or to
commence legal proceedings or otherwise proceed against a Credit Party
in any other jurisdiction. Each Credit Party agrees that a final
judgment in any action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law; provided that nothing in this Section 11.11(a)
is intended to impair a Credit Party's right under applicable law to
appeal or seek a stay of any judgment.
(b) Each Credit Party hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with
this Credit Agreement or any other Credit Document in the courts
referred to in subsection (a) hereof and hereby further irrevocably
waives and agrees not to plead or claim in any such court that any such
action or proceeding brought in any such court has been brought in an
inconvenient forum.
11.12 Waiver of Jury Trial; Waiver of Consequential Damages.
EACH OF THE PARTIES TO THIS CREDIT AGREEMENT HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS CREDIT AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR
THE TRANSACTIONS CONTEMPLATED HEREBY. Each Credit Party agrees not to assert any
claim against the Administrative Agent, the Issuing Lenders, any Lender, any of
their Affiliates, or any of their respective directors, officers, employees,
attorneys or agents, on any theory of liability, for special, indirect,
consequential or punitive damages arising out of or otherwise relating to any of
the transactions contemplated herein.
11.13 Severability.
If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
11.14 Further Assurances.
The Credit Parties agree, upon the request of the Administrative Agent,
to promptly take such actions, as reasonably requested, as is necessary to carry
out the intent of this Credit Agreement and the other Credit Documents.
11.15 Confidentiality.
Each Lender agrees that it will use its reasonable best efforts to keep
confidential and to cause any representative designated under Section 7.11 to
keep confidential any non-public information from time to time supplied to it
under any Credit Document; provided, however, that nothing herein shall prevent
the disclosure of any such information to (a) the extent a Lender in
92
good faith believes such disclosure is required by Requirement of Law, (b)
counsel for a Lender or to its accountants, (c) bank examiners or auditors or
comparable Persons, (d) any Affiliate of a Lender, (e) any other Lender, or any
assignee, transferee or participant, or any potential assignee, transferee or
participant, of all or any portion of any Lender's rights under this Credit
Agreement who is notified of the confidential nature of the information or (f)
any other Person in connection with any litigation to which any one or more of
the Lenders is a party if required by a court of law of competent jurisdiction.
No Lender shall have any obligation under this Section 11.15 to the extent any
such information becomes available on a non-confidential basis from a source
other than a Credit Party or that any information becomes publicly available
other than by a breach of this Section 11.15 by any Lender or representative
thereof.
11.16 Entirety.
This Credit Agreement together with the other Credit Documents and the
Fee Letter represent the entire agreement of the parties hereto and thereto, and
supersede all prior agreements and understandings, oral or written, if any,
including any commitment letters or correspondence relating to the Credit
Documents or the transactions contemplated herein and therein.
11.17 Binding Effect; Continuing Agreement.
(a) This Credit Agreement shall become effective at such time
when all of the conditions set forth in Section 5.1 have been satisfied or
waived by the Lenders and it shall have been executed by the Borrower, the
Guarantors and the Administrative Agent, and the Administrative Agent shall have
received copies hereof (telefaxed or otherwise) which, when taken together, bear
the signatures of each Lender, and thereafter this Credit Agreement shall be
binding upon and inure to the benefit of the Borrower, the Guarantors, the
Administrative Agent and each Lender and their respective successors and
assigns.
(b) This Credit Agreement shall be a continuing agreement and
shall remain in full force and effect until all Loans, LOC Obligations,
interest, fees and other Credit Party Obligations have been paid in
full and all Commitments and Letters of Credit have been terminated.
Upon termination, the Credit Parties shall have no further obligations
(other than the indemnification provisions that survive) under the
Credit Documents; provided that should any payment, in whole or in
part, of the Credit Party Obligations be rescinded or otherwise
required to be restored or returned by the Administrative Agent or any
Lender, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, then the Credit Documents shall
automatically be reinstated and all amounts required to be restored or
returned and all costs and expenses incurred by the Administrative
Agent or any Lender in connection therewith shall be deemed included as
part of the Credit Party Obligations.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
93
Signature Page to Credit Agreement
Quest Diagnostics Incorporated
Each of the parties hereto has caused a counterpart of this Credit
Agreement to be duly executed and delivered as of the date first above written.
BORROWER:
QUEST DIAGNOSTICS INCORPORATED,
a Delaware corporation
By: /s/
---------------------------------
Name:
-------------------------------
Title:
------------------------------
GUARANTORS:
QUEST DIAGNOSTICS HOLDINGS
INCORPORATED
a Delaware corporation
QUEST DIAGNOSTICS CLINICAL
LABORATORIES, INC.,
a Delaware corporation
QUEST DIAGNOSTICS INCORPORATED,
a California corporation
QUEST DIAGNOSTICS INCORPORATED,
a Maryland corporation
QUEST DIAGNOSTICS LLC,
an Illinois limited liability company
QUEST DIAGNOSTICS INCORPORATED,
a Michigan corporation
QUEST DIAGNOSTICS INCORPORATED,
a Connecticut corporation
QUEST DIAGNOSTICS INCORPORATED,
a Massachusetts corporation
QUEST DIAGNOSTICS OF PENNSYLVANIA, INC.,
a Delaware corporation
QUEST DIAGNOSTICS INCORPORATED,
an Ohio corporation
METWEST, INC.,
a Delaware corporation
XXXXXXX INSTITUTE DIAGNOSTICS,
a California corporation
DPD HOLDINGS, INC.,
a Delaware corporation
DIAGNOSTICS REFERENCE SERVICES INC.,
a Maryland corporation
LABORATORY HOLDINGS INCORPORATED,
a Massachusetts corporation
By: /s/
--------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Vice President and Treasurer
of each of the above Guarantors
PATHOLOGY BUILDING PARTNERSHIP,
a Delaware general partnership
By: Quest Diagnostics Incorporated, a Maryland
corporation, its general partner
By:
---------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Treasurer
QUEST DIAGNOSTICS INVESTMENTS INCORPORATED,
a Delaware corporation
By: /s/
--------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
QUEST DIAGNOSTICS FINANCE INCORPORATED,
a Delaware corporation
By: /s/
--------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
LENDERS:
BANK OF AMERICA, N.A.,
individually in its capacity as a Lender and in
its capacity as Administrative Agent
By: /s/
--------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
UBS AG, STAMFORD BRANCH
By: /s/
--------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
XXXXXXX XXXXX CAPITAL CORPORATION
By: /s/
--------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
CREDIT SUISSE FIRST BOSTON
By: /s/
--------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
THE BANK OF NEW YORK
By: /s/
--------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
WACHOVIA BANK, N.A.
By: /s/
--------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
FLEET NATIONAL BANK
By: /s/
--------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
SUMITOMO MITSUI BANKING CORPORATION
By: /s/
--------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
ALLFIRST BANK
By: /s/
--------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
BANKERS TRUST COMPANY
By: /s/
--------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
THE MITSUBISHI TRUST
AND BANKING CORPORATION
By: /s/
--------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
PNC BANK, NATIONAL ASSOCIATION
By: /s/
--------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
FIFTH THIRD BANK
By: /s/
--------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
E. SUN COMMERCIAL BANK, LTD.,
LOS ANGELES BRANCH
By: /s/
--------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
