Document/Exhibit Description Pages Size
1: 10-Q 10-Q for the Quarter Ended March 31, 1994 14 56K
2: EX-2 Exhibit 2 Agreement and Plan of Merger 63 236K
3: EX-10 Exhibit 10 Revolving Credit Agreement 37 92K
4: EX-20 Exhibit 20 Press Release Dated May 4, 1994 4 12K
5: EX-99 Exhibit 99(A) Stock Option Agreement 13 38K
6: EX-99 Exhibit 99(B) Stock Option Agreement 13 39K
CONFORMED COPY
CREDIT AGREEMENT
Dated as of April 7, 1994
National Health Laboratories Incorporated, a
Delaware corporation (the "Borrower"), and Citicorp USA,
Inc. (the "Bank") agree as follows:
ARTICLE I
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 1.01. The Advances. The Bank agrees, on
the terms and conditions hereinafter set forth, to make
advances (each an "Advance") to the Borrower from time to
time on any Business Day (as hereinafter defined) during the
period from the date hereof until July 31, 1994 (such date,
or the earlier date of termination of the Commitment (as
defined below) pursuant to Section 1.04 or 5.01, being the
"Termination Date") in an aggregate amount not to exceed at
any time outstanding $50,000,000, as such amount may be
reduced pursuant to Section 1.04 (the "Commitment"). Each
Advance shall be in an amount not less than $10,000,000 or
an integral multiple of $1,000,000 in excess thereof.
Within the limits of the Commitment, the Borrower may
borrow, prepay pursuant to Section 1.05(a) and reborrow
under this Section 1.01.
SECTION 1.02. Making the Advances. (a) Each
Advance shall be made on notice, given not later than 11:00
A.M. (New York City time) on the first Business Day prior to
the date of a proposed Base Rate Advance (as hereinafter
defined) or the third Business Day prior to the date of a
proposed Eurodollar Rate Advance (as hereinafter defined),
by the Borrower to the Bank. Each such notice of an Advance
shall be by telecopier, telex or cable, and with respect to
any such notice by telex or cable, confirmed immediately
thereafter in writing, specifying therein the requested date
and amount thereof and selecting the interest rate therefor
pursuant to Section 1.06 and, if such Advance is to be a
Eurodollar Rate Advance, the initial Interest Period (as
hereinafter defined) for such Advance. Not later than 12:00
noon (New York City time) on the date of such Advance and
upon fulfillment of the applicable conditions set forth in
Article II, the Bank will make such Advance available to the
Borrower in same day funds by crediting the Borrower's
Account (as defined in the $350,000,000 Credit Agreement
dated as of August 27, 1993, as heretofore amended (as so
amended, the "Existing Credit Agreement"), among the
Borrower, the banks party thereto, The Long-Term Credit Bank
of Japan, Ltd., Los Angeles Agency, NationsBank of North
Carolina, N.A. and The Toronto-Dominion Bank, as Co-Agents).
(b) Each notice from the Borrower to the Bank
requesting an Advance shall be irrevocable and binding on
the Borrower. The Borrower shall indemnify the Bank against
any loss, cost or expense incurred by the Bank as a result
of any failure to fulfill on or before the date specified in
such notice for such Advance the applicable conditions set
forth in Article II, including, without limitation, any
loss, cost or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by the
Bank to fund the Advance when such Advance, as a result of
such failure, is not made on such date.
(c) The Borrower may not request a Eurodollar Rate
Advance or select a new Interest Period for existing
Eurodollar Rate Advances if, after the making or Conversion
(as hereinafter defined) of such Advances or the selection
of such Interest Period, the number of outstanding
Eurodollar Advances having different Interest Periods
(whether of different duration or commencing on different
dates) would exceed six.
SECTION 1.03. Repayment. The Borrower shall repay
to the Bank the outstanding principal amount of the Advances
on August 1, 1994.
SECTION 1.04. Reduction of the Commitment.
(a) Optional. The Borrower shall have the right, upon at
least three Business Days' notice to the Bank, to terminate
in whole or reduce in part the unused portion of the
Commitment; provided that each partial reduction shall be in
the amount of $10,000,000 or an integral multiple of
$1,000,000 in excess thereof.
(b) Mandatory. The Commitment shall be
permanently reduced upon the date of receipt of the Net Cash
Proceeds (as defined in the Existing Credit Agreement) from
the creation or incurrence by the Borrower or any of its
Subsidiaries (as defined in the Existing Credit Agreement)
of any Funded Debt (as defined in the Existing Credit
Agreement), by the amount of such Funded Debt.
SECTION 1.05. Prepayments. (a) Optional. The
Borrower may, upon at least one Business Day's notice to the
Bank, in the case of Base Rate Advances, and three Business
Days' notice to the Bank, in the case of Eurodollar Rate
Advances, stating the proposed date and aggregate principal
amount of the prepayment, and if such notice is given, the
Borrower shall, prepay the outstanding principal amounts of
an Advance in whole or in part, together with accrued
interest to the date of such prepayment on the principal
amount so prepaid; provided, however, that (x) each partial
prepayment shall be in an aggregate principal amount not
less than $10,000,000 or an integral multiple of $1,000,000
in excess thereof (or, if the aggregate principal amount of
such Advance is less, such aggregate principal amount) and
(y) in the event any such prepayment of an Eurodollar Rate
Advance is not made on the last day of an Interest Period,
the Borrower shall be obligated to reimburse the Bank in
respect thereof pursuant to Section 6.04(b).
(b) Mandatory. The Borrower shall, on each
Business Day, prepay an aggregate principal amount of the
Advances equal to the amount by which (i) the aggregate
principal amount of the Advances then outstanding exceeds
(ii) the Commitment on such Business Day.
SECTION 1.06. Interest. (a) Ordinary Interest.
The Borrower shall pay interest on the unpaid principal
amount of each Advance from the date of such Advance until
such principal amount shall be paid in full, at the
following rates per annum:
(i) Base Rate Advances. During such periods as
such Advance is a Base Rate Advance, a rate per annum
equal at all times to the sum of the Base Rate in effect
from time to time plus the Applicable Margin (as defined
below) in effect from time to time, payable in arrears
quarterly on the last Business Day of each March, June,
September and December during such periods and on the
date such Base Rate Advance shall be Converted (as
hereinafter defined) or paid in full.
(ii) Eurodollar Rate Advances. During such periods
as such Advance is a Eurodollar Rate Advance, a rate per
annum equal at all times during each Interest Period for
such Advance to the sum of the Eurodollar Rate for such
Interest Period plus the Applicable Margin in effect
from time to time, payable in arrears on the last day of
such Interest Period.
(b) Default Interest. The Borrower shall pay on
demand interest on the unpaid principal amount of each
Advance that is not paid when due and on the unpaid amount
of all interest, fees and other amounts then due and payable
hereunder that is not paid when due from the due date
thereof to the date paid, at a rate per annum equal at such
time to (i) in the case of any amount of principal, 2% per
annum above the rate of interest per annum required to be
paid on such Advance immediately prior to the date on which
such amount became due and payable, and (ii) in the case of
all other amounts, 2% per annum above the rate per annum
required to be paid on Base Rate Advances pursuant to clause
(a)(i) above.
(c) Certain Definitions. As used in this
Agreement, the following terms have the following meanings:
"Applicable Lending Office" means the Bank's
Domestic Lending Office in the case of a Base Rate
Advance and the Bank's Eurodollar Lending Office in the
case of a Eurodollar Rate Advance.
"Applicable Margin" shall have the meaning set
forth in the Existing Credit Agreement with all
references in such definition to a "Borrowing" being a
reference to an Advance.
"Base Rate" shall have the meaning set forth in the
Existing Credit Agreement with all references therein to
"Citibank" being references to the Bank.
"Base Rate Advance" means an Advance which bears
interest as provided in Section 1.06(a)(i).
"Business Day" shall have the meaning set forth in
the Existing Credit Agreement.
"Conversion", "Convert" and "Converted" each refers
to a conversion of an Advance of one Type into an
Advance of another Type pursuant to Section 1.07, 1.10
or 1.13.
"Domestic Lending Office" means the office of the
Bank specified as its "Domestic Lending Office" opposite
its name on the signature pages hereof, or such other
office of the Bank as the Bank may from time to time
specify to the Borrower.
"Eurocurrency Liabilities" shall have the meaning
set forth in the Existing Credit Agreement.
"Eurodollar Lending Office" means the office of the
Bank specified as its "Eurodollar Lending Office"
opposite its name on the signature pages hereof, or such
other office of the Bank as the Bank may from time to
time specify to the borrower.
"Eurodollar Rate" shall have the meaning set forth
in the Existing Credit Agreement with all references
therein to"Citibank" being references to "the Bank" and
all references therein to "Section 2.07" being
references to Section 1.07.
"Eurodollar Rate Advance" means an Advance which
bears interest as provided in Section 1.06(a)(ii).
"Eurodollar Rate Reserve Percentage" shall have the
meaning set forth in the Existing Credit Agreement with
all references therein to "Lender" being references to
the Bank.
"Federal Funds Rate" shall have the meaning set
forth in the Existing Credit Agreement with all
references therein to "Agent" being references to the
Bank.
"Interest Period" means, for each Eurodollar Rate
Advance, the period commencing on the date of such
Eurodollar Rate Advance or the date of the Conversion of
any Base Rate Advance into such Eurodollar Rate Advance
and ending on the last day of the period selected by the
Borrower pursuant to the provisions below and,
thereafter, each subsequent period commencing on the
last day of the immediately preceding Interest Period
and ending on the last day of the period selected by the
Borrower pursuant to the provisions below. The duration
of each such Interest Period shall be one, two or three
months as the Borrower may, upon notice received by the
Bank not later than 11:00 A.M. (New York City time) on
the third Business Day prior to the first day of such
Interest Period, select; provided, however, that:
(i) the Borrower may not select any Interest
Period which ends after the Termination Date;
(ii) whenever the last day of any Interest
Period would otherwise occur on a day other than a
Business Day, the last day of such Interest Period
shall be extended to occur on the next succeeding
Business Day, provided, that, if such extension
would cause the last day of such Interest Period to
occur in the next following calendar month, the
last day of such Interest Period shall occur on the
next preceding Business Day; and
(iii) whenever the first day of any Interest
Period occurs on a day in a calendar month for
which there is no numerically corresponding day in
the calendar month that succeeds such initial
calendar month by the number of months equal to the
number of months in such Interest Period, such
Interest Period shall end on the last Business Day
of such succeeding calendar month.
"Moody's" means Moody's Investors Service, Inc.
"S&P" means Standard & Poor's Corporation.
"Type" refers to the distinction between Advances
bearing interest at the Base Rate and Advances bearing
interest at the Eurodollar Rate.
References to terms and definitions incorporated in this
Agreement by reference to the Existing Credit Agreement
shall, unless otherwise defined in this Agreement, have the
meanings set forth in the Existing Credit Agreement.
SECTION 1.07. Interest Rate Determination. (a)
The Bank shall give prompt notice to the Borrower of the
applicable interest rate determined by the Bank for purposes
of Section 1.06(a).
(b) If the Bank cannot determine the Eurodollar
Rate, the Bank shall forthwith notify the Borrower that the
interest rate cannot be determined for Eurodollar Rate
Advances, whereupon (i) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest
Period therefor, Convert into a Base Rate Advance and (ii)
the obligation of the Bank to make, or to Convert Advances
into, Eurodollar Rate Advances shall be suspended until the
Bank shall notify the Borrower that it has determined that
the circumstances causing such suspension no longer exist.
(c) If the Bank determines that the Eurodollar
Rate for any Interest Period for a Eurodollar Rate Advance
will not adequately reflect the cost to the Bank of making,
funding or maintaining such Eurodollar Rate Advance for such
Interest Period, the Bank shall forthwith so notify the
Borrower, whereupon (i) such Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest
Period therefor, Convert into a Base Rate Advance and (ii)
the obligation of the Bank to make, or to Convert Advances
into, Eurodollar Rate Advances shall be suspended until the
Bank shall notify the Borrower that it has determined that
the circumstances causing such suspension no longer exist.
(d) If the Borrower shall fail to select the
duration of any Interest Period for any Eurodollar Rate
Advance in accordance with the provisions contained in the
definition of "Interest Period" in Section 1.06(c), the Bank
will forthwith so notify the Borrower and the Interest
Period for such Eurodollar Rate Advance will be one month.
SECTION 1.08. Fees. (a) Commitment Fee. The
Borrower agrees to pay to the Bank a commitment fee on the
average daily unused portion of the Commitment from the date
hereof until the Termination Date at a rate equal to (i)
whenever the Borrower's long-term senior unsecured debt is
not rated by both S&P and Moody's, 0.375% per annum, and
(ii) at all other times, a percentage per annum determined
by reference to the Ratings (as defined in the Existing
Credit Agreement) in effect from time to time, as follows:
Minimum Debt
Rating Commitment
(S&P/Moody's) Fee
A-/A3 and above 0.200%
BBB/Baa2 0.300%
BBB-/Baa3 0.375%
Below BBB-/Baa3 0.500%
If there is a split in the Ratings, then commitment fees
will be determined by the lower of the two Ratings. In each
case, the commitment fee shall be payable in arrears on (x)
the last Business Day of each March, June, September and
December commencing June 30, 1994 and (y) the Termination
Date.
(b) Facility Fee. The Borrower agrees to pay to
the Bank a facility fee equal to 1/4 of 1% of the initial
Commitment on the date hereof.
SECTION 1.09. The Borrower and the Bank hereby
agree to comply with all of the provisions of Section 2.09
of the Existing Credit Agreement with all references therein
to "Agent" and "Lender" being references to the Bank, all
references therein to "this Agreement" being references to
this Agreement, all references therein to "Commitments"
being references to the Commitment and all references
therein to "Section 2.12" being references to Section 1.12
hereof.
SECTION 1.10. Illegality. Notwithstanding any
other provision of this Agreement, if the introduction of or
any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other
governmental authority asserts that it is unlawful, for the
Bank or its Eurodollar Lending Office to perform its
obligations hereunder to make Eurodollar Rate Advances or to
fund or maintain Eurodollar Rate Advances hereunder, then,
upon written notice by the Bank to the Borrower, (i) each
Eurodollar Rate Advance will automatically Convert into a
Base Rate Advance and (ii) the obligation of the Bank to
make, or to Convert Base Rate Advances into, Eurodollar Rate
Advances shall be suspended until the Bank shall notify the
Borrower that the circumstances causing such suspension no
longer exist; provided, however, that, before making any
such demand, the Bank shall designate a different Eurodollar
Lending Office if the making of such a designation would
avoid the need for giving such notice and demand and would
not, in the judgment of the Bank, be otherwise
disadvantageous to the Bank.
For purposes of this Section 1.10, a notice to the
Borrower by the Bank shall be effective with respect to any
Advance on the last day of the then current Interest Period
for such Advance; provided, however, that, if it is not
lawful for the Bank to maintain such Advance until the end
of the Interest Period applicable thereto, then the notice
to the Borrower shall be effective upon receipt by the
Borrower.
SECTION 1.11. Payments and Computations. (a) The
Borrower shall make each payment hereunder and under the
Note not later than 11:00 A.M. (New York City time) on the
day when due in U.S. dollars to the Bank at its address
referred to in Section 6.02 in same day funds.
(b) The Borrower hereby authorizes the Bank, if
and to the extent payment of principal, interest or fees
owed to the Bank is not made when due hereunder or under the
Note, to charge from time to time against any or all of the
Borrower's accounts with the Bank any amount so due.
(c) All computations of interest based on the
Eurodollar Rate or the Federal Funds Rate shall be made by
the Bank, on the basis of a year of 360 days, and all
computations of interest based on the Base Rate and of
commitment fees shall be made by the Bank on the basis of a
year of 365 or 366 days, as the case may be, in each case
for the actual number of days (including the first day but
excluding the last day) occurring in the period for which
such interest or commitment fees are payable. Each
determination by the Bank of an interest rate hereunder
shall be conclusive and binding for all purposes, absent
manifest error.
(d) Whenever any payment hereunder or under the
Note shall be stated to be due on a day other than a
Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of
interest or
commitment fee, as the case may be; provided, however, if
such extension would cause payment of interest on or
principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the
next preceding Business Day.
SECTION 1.12. Taxes. The Borrower and the Bank
hereby agree to comply with all provisions of Section 2.12
of the Existing Credit Agreement with all references therein
to "Agent" and "Lender" being references to the Bank, all
references to "this Agreement" or "hereunder" being
references to this Agreement, all references to "Note" and
"Notes" being references to the Note and all references
therein to "Section 2.11" and "Section 8.02" being
references to Sections 1.11 and 6.02 hereof, respectively.
SECTION. 1.13. Conversion of Advances. (a)
Optional. The Borrower may on any Business Day, upon notice
given to the Bank not later than noon (New York City time)
on the third Business Day prior to the date of the proposed
Conversion and subject to the provisions of Sections 1.07
and 1.10, Convert all or any portion of an Advance of one
Type into an Advance of the other Type; provided, however,
that any Conversion of any Eurodollar Rate Advance into an
Base Rate Advance shall be made on, and only on, the last
day of an Interest Period for such Eurodollar Rate Advance,
and any Conversion of a Base Rate Advance into an Eurodollar
Rate Advance shall be subject to the limitation set forth in
Section 1.02(c) and in an amount not less than $10,000,000.
Each such notice of Conversion shall, within the
restrictions specified above, specify (i) the date of such
Conversion, (ii) the Advance to be Converted and (iii) if
such Conversion is into an Eurodollar Rate Advance, the
duration of the initial Interest Period for such Advance.
Each notice of Conversion shall be irrevocable and binding
on the Borrower.
(b) Mandatory. (i) On the date on which the
aggregate unpaid principal amount of an Eurodollar Rate
Advance shall be reduced, by payment or prepayment or
otherwise, to less than $10,000,000, such Advance shall
automatically Convert into a Base Rate Advance.
(ii) Upon the occurrence and during the
continuance of any Event of Default set forth in Section
5.01 (or, in the case of any involuntary proceeding
described in Section 6.01(e) of the Existing Credit
Agreement, an event that would constitute an Event of
Default but for the requirement that notice be given or time
elapse or both), (A) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest
Period therefor, Convert into a Base Rate Advance and (B)
the obligation of the Bank to make, or to Convert Advances
into, Eurodollar Rate Advances shall be suspended.
ARTICLE II
CONDITIONS OF LENDING
SECTION 2.01. Condition Precedent to Initial
Advance. The obligation of the Bank to make its initial
Advance is subject to the condition precedents that (a) the
Borrower shall have paid all accrued fees of the Bank and
(b) the Bank shall have received on or before the day of
such Advance the following, each dated such day, in form and
substance satisfactory to the Bank:
(i) The Note.
(ii) Certified copies of the resolutions of the
Board of Directors of the Borrower approving this
Agreement and the Note, and of all documents evidencing
other necessary corporate action and governmental
approvals, if any, with respect to this Agreement and
the Note.
(iii) A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the names and true
signatures of the officers of the Borrower authorized to
sign this Agreement and the Note and the other documents
to be delivered hereunder.
(iv) A favorable opinion of James G. Richmond, Esq.,
Executive Vice President and General Counsel of the
Borrower, and of Paul, Weiss, Rifkind, Wharton &
Garrison, special New York counsel for the Borrower,
substantially in the forms of Exhibit B and C hereto,
respectively, and as to such other matters as the Bank
may reasonably request.
(v) A favorable opinion of Shearman & Sterling,
counsel for the Bank, as to such matters as the Bank may
reasonably request.
(vi) A certificate of the Borrower stating that (i)
the representations and warranties contained in Section
4.01 of the Existing Credit Agreement are correct in all
material respects on and as of the date hereof, as
though made on and as of the date hereof and (ii) no
event has occurred and is continuing which constitutes a
"Default" under the Existing Credit Agreement.
SECTION 2.02. Conditions Precedent to All
Advances. The obligation of the Bank to make each Advance
(including the initial Advance) resulting in an increase in
the aggregate amount of outstanding Advances shall be
subject to the further conditions precedent that on the date
of such Advance (a) the following statements shall be true
(and each of the giving of the applicable notice requesting
such Advance and the acceptance by the Borrower of the
proceeds of such Advance shall constitute a representation
and warranty by the Borrower that on the date of such
Advance such statements are true):
(i) The representations and warranties contained
in Section 3.01 are correct in all material respects on
and as of the date of such Advance, before and after
giving effect to such Advance and to the application of
the proceeds therefrom, as though made on and as of such
date; and
(ii) No event has occurred and is continuing, or
would result from such Advance or from the application
of the proceeds therefrom, which constitutes an Event of
Default (as defined in Section 5.01 hereof) or would
constitute an Event of Default but for the requirement
that notice be given or time elapse or both; and
(iii) No authorization or approval or other action
by, and no notice to or filing with, any governmental
authority or regulatory body is required for any
Repurchase (as defined in the Existing Credit
Agreement) that may be made with the proceeds of
such Advance other than those that have been duly
obtained
and (b) the Bank shall have received such other
certificates, opinions or documents as the Bank may
reasonably request in order to confirm (i) the accuracy of
the Borrower's representations and warranties, (ii) the
Borrower's timely compliance with the terms, covenants and
agreements set forth in this Agreement, (iii) the absence of
any event which constitutes an Event of Default or would
constitute an Event of Default but for the requirement that
notice be given or time elapse or both and (iv) the absence
of any event of the type referred to in Section 1.10.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties of
the Borrower. The Borrower represents and warrants for the
benefit of the Bank as to the matters set forth in Section
4.01 of the Existing Credit Agreement with all references
therein to "this Agreement" and "the Notes" being references
to this Agreement and the Note, respectively, and all
references therein to "Agent", "Lender", "Required Lenders"
and "Lenders" being references to the Bank; provided,
however, that the Borrower hereby agrees that any amendment,
modification or waiver of the provisions of Section 4.01 of
the Existing Credit Agreement shall have no effect on the
obligations of the Borrower under this Section 3.01 unless
the Bank consents to such amendment, modification or waiver.
ARTICLE IV
COVENANTS OF THE BORROWER
SECTION 4.01. Affirmative Covenants. So long as
the Note shall remain unpaid or the Bank shall have any
Commitment hereunder, the Borrower will, unless the Bank
shall otherwise consent in writing, comply with all of the
terms and provisions of Section 5.01 of the Existing Credit
Agreement, with all references therein to "this Agreement"
and "the Notes" being references to this Agreement and the
Note, respectively, and all references therein to "Agent",
"Lender", "Required Lenders" and "Lenders" being references
to the Bank; provided, however, that the Borrower hereby
agrees that any amendment, modification or waiver of the
provisions of Section 5.01 of the Existing Credit Agreement
shall have no effect on the obligations of the Borrower
under this Section 4.01 unless the Bank consents to such
amendment, modification or waiver.
SECTION 4.02. Negative Covenants. So long as the
Note shall remain unpaid or the Bank shall have any
Commitment hereunder, the Borrower will, unless the Bank
shall otherwise consent in writing, comply with all of the
terms and provisions of Section 5.02 of the Existing Credit
Agreement, with all references therein to "this Agreement"
and "the Notes" being references therein to this Agreement
and the Note, respectively, and all references therein to
"Agent", "Lender", "Required Lenders" and "Lenders" being
references to the Bank; provided, however, that the Borrower
hereby agrees that any amendment, modification or waiver of
the provisions of Section 5.02 of the Existing Credit
Agreement shall have no effect on the obligations of the
Borrower under this Section 4.02 unless the Bank consents to
such amendment, modification or waiver.
ARTICLE V
EVENTS OF DEFAULT
SECTION 5.01. Events of Default. If any of the
events set forth in Section 6.01(a) through (k) of the
Existing Credit Agreement ("Events of Default") shall occur
and be continuing, then, and in any such event, the Bank (i)
may declare its obligation to make Advances to be
terminated, whereupon the same shall forthwith terminate,
and (ii) may, by notice to the Borrower, declare the Note,
all interest thereon and all other amounts payable under
this Agreement to be forthwith due and payable, whereupon
the Note, all such interest and all such amounts shall
become and be forthwith due and payable, without
presentment, demand, protest or further notice of any kind,
all of which are hereby expressly waived by the Borrower;
provided, however, that, in the event of an actual or deemed
entry of an order for relief with respect to the Borrower
under the Federal Bankruptcy Code, (A) the obligation of the
Bank to make Advances shall automatically be terminated and
(B) the Note, all such interest and all such amounts shall
automatically become due and payable, without presentment,
demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrower. For purposes of
this Section 5.01, all references in Section 6.01(a)
through (k) to "this Agreement" and "the Notes" shall be
references to this Agreement and the Note, respectively, and
all references therein to "the Agent", "the Required
Lenders" and "the Lenders" shall be references to the Bank;
provided, however, that the Borrower hereby agrees that any
amendment, modification or waiver of the provisions of
Section 6.01 of the Existing Credit Agreement shall have no
effect on the obligations of the Borrower, or the rights of
the Bank, under this Section 6.01 unless the Bank consents
to such amendment, modification or waiver.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Amendments, Etc. No amendment or
waiver of any provision of this Agreement or the Note, nor
consent to any departure by the Borrower therefrom, shall in
any event be effective unless the same shall be in writing
and signed by the Bank, and then such waiver or consent
shall be effective only in the specific instance and for the
specific purpose for which given.
SECTION 6.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing
(including telecopier, telegraphic, telex or cable
communication) and mailed, telecopied, telegraphed, telexed,
cabled or delivered, if to the Borrower, at its address at
4225 Executive Square, Suite 800, La Jolla, California
92037, Attention: Vice President - Finance; and if to the
Bank, at its address at 399 Park Avenue, New York, New York
10043, Attention: Steven Victorin; or, as to each party, at
such other address as shall be designated by such party in a
written notice to the other party. All such notices and
communications shall be effective (i) when received, if
mailed or delivered or telecopied (including machine
acknowledgement), or (ii) when delivered to the telegraph
company, confirmed by telex answerback or delivered to the
cable company, respectively, except that notices to the Bank
pursuant to the provisions of Article I shall not be
effective until received by the Bank.
SECTION 6.03. No Waiver; Remedies. No failure on
the part of the Bank to exercise, and no delay in
exercising, any right hereunder or under the Note shall
operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of
any remedies provided by law.
SECTION 6.04. Costs, Expenses and Taxes. (a) The
Borrower agrees to pay on demand all reasonable
out-of-pocket costs and expenses of the Bank in connection
with the preparation, execution, delivery, administration,
modification and amendment of this Agreement, the Note and
the other documents to be delivered hereunder (including,
without limitation, (A) all due diligence, transportation,
computer, duplication, appraisal, audit and insurance
expenses and fees and expenses of consultants engaged with
the prior consent of the Borrower (which consent shall not
be unreasonably withheld) and (B) the reasonable fees and
out-of-pocket expenses of counsel for the Bank with respect
thereto, with respect to advising the Bank as to its rights
and responsibilities, or the protection or preservation of
its rights or interests, under this Agreement and the Note,
with respect to negotiations with the Borrower or with other
creditors of the Borrower arising out of any Event of
Default or event that would constitute an Event of Default
but for the requirement that notice be given or time elapse
or both, or any events or circumstances that may give rise
to a Event of Default or event that would constitute an
Event of Default but for the requirement that notice be
given or time elapse or both, or with respect to presenting
claims in, monitoring or otherwise participating in any
bankruptcy, insolvency or other similar proceeding affecting
creditors' rights generally and any proceeding ancillary
thereto). The Borrower further agrees to pay on demand all
out-of-pocket costs and expenses of the Bank in connection
with the enforcement of this Agreement, the Note and the
other documents to be delivered hereunder, whether in
action, suit, litigation, any bankruptcy, insolvency or
other similar proceeding affecting creditors' rights
generally or otherwise (including, without limitation, the
reasonable fees and expenses of counsel for the Bank with
respect thereto) and expenses in connection with the
enforcement of rights under this Section 6.04(a).
(b) If any payment of principal of any Eurodollar
Rate Advance is made by the Borrower other than on the last
day of the Interest Period for such Advance, as a result of
a payment or Conversion pursuant to Section 1.11 or 1.13,
acceleration of the maturity of the Advances and the Note
pursuant to Section 5.01 or for any other reason, the
Borrower shall, upon demand, pay to the Bank any amounts
required to compensate the Bank for any additional losses,
costs or expenses which it may reasonably incur as a result
of such payment, including, without limitation, any loss,
cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by the Bank
to fund or maintain such Advance.
(c) The Borrower agrees to indemnify and hold
harmless the Bank and each of its affiliates and their
officers, directors, employees, agents and advisors (each,
an "Indemnified Party") from and against any and all claims,
damages, losses, liabilities and expenses (including,
without limitation, reasonable fees and expenses of counsel)
that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in
connection with or by reason of (or in connection with the
preparation for a defense of) any investigation, litigation
or proceeding arising out of, related to or in connection
with this Agreement and the transactions contemplated
hereby, whether or not an Indemnified Party is a party
thereto, whether or not the transactions contemplated hereby
are consummated and whether or not any such claim,
investigation, litigation or proceeding is brought by the
Borrower or any other person, except (i) to the extent such
claim, damage, loss, liability or expense (x) is found in a
final, non-appealable judgment by a court of competent
jurisdiction (a "Final Judgment") to have resulted from such
Indemnified Party's gross negligence or willful misconduct
or (y) arises from any legal proceedings commenced against
any Lender by any other Lender (in its capacity as such and
not as Agent), and (ii) in the case of any litigation
brought by the Borrower (A) seeking a judgment against any
Indemnified Party for any wrongful act or omission of such
Indemnified Party and (B) in which a Final Judgment is
rendered in the Borrower's favor against such Indemnified
Party, the provisions of this paragraph will not be
available to provide indemnification for any damage, loss,
liability or expense incurred by such Indemnified Party in
connection with such litigation described in clause (i) or
(ii) of this Section 6.04(c).
SECTION 6.05. Right of Set-off. Upon the
occurrence and during the continuance of any Event of
Default, the Bank is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set
off and apply any and all deposits (general or special, time
or demand, provisional or final) at any time held and other
indebtedness at any time owing by the Bank to or for the
credit or the account of the Borrower against any and all of
the obligations of the Borrower to the Bank now or hereafter
existing under this Agreement and the Note, whether or not
the Bank shall have made any demand under this Agreement or
the Note and although such obligations may be unmatured.
The Bank agrees promptly to notify the Borrower after any
such set-off and application, provided that the failure to
give such notice shall not affect the validity of such
set-off and application. The rights of the Bank under this
Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off)
which the Bank may have.
SECTION 6.06. Binding Effect. (a) This Agreement
shall be binding upon and inure to the benefit of the
Borrower and the Bank and their respective successors and
assigns, except that the Borrower shall not have the right
to assign its rights hereunder or any interest herein
without the prior written consent of the Bank.
(b) Notwithstanding any other provision set forth
in this Agreement, the Bank may at any time create a
security interest in all or any portion of its rights under
this Agreement (including, without limitation, the Advances
owing to it and the Note held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of
Governors of the Federal Reserve System.
SECTION 6.07. Governing Law. (a) This Agreement
and the Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
(b) The Borrower hereby irrevocably and
unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New
York City, and any appellate court thereof, in any action or
proceeding arising out of or relating to this Agreement, or
for recognition or enforcement of any judgment, and each of
the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York
State or, to the extent permitted by law, in such Federal
court. Each of the parties hereto agrees that a final
judgment in any such 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.
Subject to the foregoing and to paragraph (c) below, nothing
in this Agreement shall affect any right that any party
hereto may otherwise have to bring any action or proceeding
relating to this Agreement against any other party hereto in
the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally
and effectively do so, any objection which it may now or
hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in
any New York State or Federal court and the defense of an
inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) The Borrower agrees that service of process
may be made on the Borrower by personal service of a copy of
the summons and complaint or other legal process in any such
suit, action or proceeding, or by registered or certified
mail (postage prepaid) to the address of the Borrower
specified in Section 6.02, or by any other method of service
provided for under the applicable laws in effect in the
State of New York.
SECTION 6.08. WAIVER OF JURY TRIAL. EACH OF THE
BORROWER AND THE BANK IRREVOCABLY WAIVES ALL RIGHT TO TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER
BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO ANY OF THIS AGREEMENT, THE NOTE, THE ADVANCES OR
THE ACTIONS OF THE BANK IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE OR ENFORCEMENT THEREOF.
SECTION 6.09. Execution in Counterparts. This
Agreement may be executed in any number of counterparts and
by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the
same agreement. Delivery of an executed counterpart of a
signature page to this Agreement by telecopier shall be
effective as delivery of a manually executed counterpart of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed by their respective officers
thereunto duly authorized, as of the date first above
written.
NATIONAL HEALTH LABORATORIES INCORPORATED
By: /s/ JAMES R. MAHER
James R. Maher
President and Chief Executive Officer
Domestic Lending Office: CITICORP USA, INC.
399 Park Avenue
New York, New York 10043
Eurodollar Lending Office: By: /s/Townsend U. Weekes, Jr.
399 Park Avenue Authorized Representative
New York, New York 10043
EXHIBIT A
PROMISSORY NOTE
$50,000,000 Dated: April 7, 1994
FOR VALUE RECEIVED, the undersigned, National Health
Laboratories Incorporated, a Delaware corporation (the
"Borrower"), HEREBY PROMISES TO PAY to the order of Citicorp
USA Inc. (the "Bank") for the account of its Applicable
Lending Office (as defined in the Credit Agreement referred to
below) the principal amount of $50,000,000 or, if less, the
aggregate principal amount of all Advances made by the Bank to
the Borrower pursuant to the Credit Agreement (as hereinafter
defined) then outstanding on August 1, 1994.
The Borrower promises to pay interest on the
principal amount of each Advance from the date of such Advance
until such principal amount is paid in full, at such interest
rates, and payable at such times, as are specified in the
Credit Agreement referred to below.
Both principal and interest are payable in lawful
money of the United States of America to the Bank at 399 Park
Avenue, New York, New York 10043 in same day funds. Each
Advance made by the Bank to the Borrower and the maturity
thereof, and all payments made on account of the principal
amount thereof, shall be recorded by the Bank and, prior to
any transfer hereof, endorsed on the grid attached hereto
which is a part of this Promissory Note.
This Promissory Note is the Note referred to in, and
is entitled to the benefits of, the Credit Agreement dated as
of April , 1994, as such Credit Agreement may hereafter be
amended, modified or supplemented (the "Credit Agreement"),
between the Borrower and the Bank. The Credit Agreement,
among other things, (i) provides for the making of advances
(the "Advances") by the Bank to the Borrower from time to time
in an aggregate amount not to exceed at any time outstanding
the U.S. dollar amount first above mentioned, the indebtedness
of the Borrower resulting from each such Advance being
evidenced by this Promissory Note, and (ii) contains
provisions for acceleration of the maturity hereof upon the
happening of certain stated events and also for prepayments on
account of principal hereof prior to the maturity hereof upon
the terms and conditions therein specified.
NATIONAL HEALTH
LABORATORIES INCORPORATED
By: /s/ JAMES R. MAHER
James R. Maher
President and Chief Executive Officer
ADVANCES AND PAYMENTS OF PRINCIPAL
Amount of
Amount of Principal Paid Unpaid Principal Notation
Date Advance or Prepaid Balance Made By
EXHIBIT B
NATIONAL HEALTH LABORATORIES INCORPORATED
4225 Executive Square
La Jolla, California 92037
April 7, 1994
To: Citicorp USA, Inc.
Ladies and Gentlemen:
I am Executive Vice President and General Counsel of
National Health Laboratories Incorporated, a Delaware
corporation (the "Borrower"), and am rendering this opinion in
connection with the Credit Agreement dated as of April 7, 1994
(the "Credit Agreement"), between the Borrower and Citicorp
USA, Inc. (the "Bank"). I have made such investigations and
examined such documents (including executed counterparts of
the Credit Agreement and the Note referred to therein) and
records, including certificates of certain officers of the
Borrower and of certain public officials, as I have deemed
necessary in order to express the opinions hereinafter set
forth. All capitalized terms used but not defined herein
shall have the meanings set forth in the Credit Agreement.
Based upon and subject to the foregoing, I am of the
opinion that:
1. The Borrower is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Delaware and has all requisite corporate power and
authority to own or lease and operate its properties and to
carry on its business as now conducted. The Borrower is duly
qualified and in good standing as a foreign corporation in
each other jurisdiction in which it owns or leases property or
in which the conduct of its business requires it to so qualify
or be licensed except where the failure to so qualify or be
licensed would not have a Material Adverse Effect (as defined
in the Existing Credit Agreement).
2. The Credit Agreement and the Note have been duly
executed and delivered by the Borrower.
3. The execution, delivery and performance by the
Borrower of the Credit Agreement and the Note and the
consummation of the transactions contemplated thereby are
within the Borrower's corporate powers, have been duly
authorized by all necessary corporate action, and do not
(i) contravene the Borrower's Restated Certificate of
Incorporation or by-laws, (ii) conflict with or result in the
breach of, or constitute a default under any loan agreement,
material contract, indenture, mortgage, deed of trust, lease
or other material instrument binding on or affecting the
Borrower, any of its Subsidiaries or any of its or their
properties, the effect of which is reasonably likely to have a
Material Adverse Effect (as defined in the Existing Credit
Agreement), (iii) result in or require the creation or
imposition of any Lien (as defined in the Existing Credit
Agreement) upon or with respect to any of the properties of
the Borrower or any of its Subsidiaries under any agreement or
instrument referred to in clause (ii) above or (iv) violate
any order, writ, judgment, injunction, decree, determination
or award binding upon the Borrower or any of its Subsidiaries
or any of its or their respective properties or assets which
violation would be reasonably likely to have a Material
Adverse Effect (as defined in the Existing Credit Agreement).
4. No authorization, approval or other action by,
and no notice to, any governmental authority or regulatory
body is required for the execution, delivery or performance by
the Borrower of the Credit Agreement or the Note.
5. To the best of my knowledge after due inquiry,
there is no pending or threatened action, proceeding,
governmental investigation or arbitration affecting the
Borrower or any of its Subsidiaries before any court,
governmental agency or arbitrator which (i) is reasonably
likely to have a Material Adverse Effect (as defined in the
Existing Credit Agreement) or (ii) purports to affect the
legality, validity, binding effect or enforceability of the
Credit Agreement or the Note.
I am a member of the bars of the States of Illinois
and Indiana and do not express any opinion as to matters
governed by any laws other than the Federal laws of the United
States of America and the General Corporation Law of the State
of Delaware.
I am aware that Shearman & Sterling will rely upon
the opinions set forth herein in rendering their opinion to
the Agent and the Lenders pursuant to the Credit Agreement.
Very truly yours,
By: /s/ JAMES G. RICHMOND
James G. Richmond
Executive Vice President and
General Counsel
EXHIBIT C
April 7, 1994
Citicorp USA, Inc.
399 Park Avenue
New York, New York 10043
Ladies and Gentlemen:
We have acted as special New York counsel to National
Health Laboratories Incorporated, a Delaware corporation (the
"Borrower"), in connection with the execution and delivery of
the Credit Agreement dated as of April 7, 1994 (the "Credit
Agreement"), between the Borrower and Citicorp USA, Inc. (the
"Bank"). Capitalized terms not otherwise defined herein shall
have the meanings given them in the Credit Agreement. This
opinion is being furnished to you at the request of the
Borrower pursuant to Section 2.01(iv) of the Credit Agreement.
In connection with this opinion, we have examined
originals, or copies certified or otherwise identified to our
satisfaction, of the following documents, each dated as of,
and as in effect on, the date hereof (together, the
"Documents"):
1. The Credit Agreement; and
2. The Note.
In addition, we have examined: (i) such corporate
records of the Borrower as we have considered appropriate,
including copies of the certificate of incorporation, as
amended and restated, and by-laws of the Borrower certified as
in effect on the date hereof (collectively, the "Charter
Documents") and certified copies of resolutions of the board
of directors of the Borrower; and (ii) such other
certificates, agreements and documents as we deemed relevant
and necessary as a basis for the opinions hereinafter
expressed.
In our examination of the aforesaid documents, we
have assumed, without independent investigation, the
genuineness of all signatures, the enforceability of the
Documents against each party thereto other than the Borrower,
the authenticity of all documents submitted to us as
originals, the conformity to the original documents of all
documents submitted to us a certified, photostatic, reproduced
or conformed copies of validly existing agreements or other
documents and the authenticity of all such latter documents.
In expressing the opinions set forth herein, we have
relied upon the factual matters contained in the
representations and warranties of the Borrower incorporated in
the Credit Agreement by reference to the Existing Credit
Agreement to the extent they address matters of fact and upon
certificates of public officials and officers of the Borrower.
Based upon the foregoing, and subject to the
assumptions, qualifications, limitations and exceptions set
forth herein, we are of the opinion that:
1. The Documents constitute the legal, valid and
binding obligations of the Borrower enforceable against the
Borrower in accordance with their terms.
2. The execution, delivery and performance by the
Borrower of the Documents and the consummation by the Borrower
of the borrowings contemplated thereby do not contravene any
existing law, rule or regulation of the United States
(including without limitation, Regulation G, U, and X of the
Board of Governors of the Federal Reserve System) or of the
State of New York or the General Corporation Law of the State
of Delaware (the "GCL").
3. No authorization, approval or other action by,
and no notice to, consent of, order of or filing with, any
United States Federal, New York or, to the extent required
under the GCL, Delaware governmental authority or regulatory
body is required for the execution, delivery and performance
by the Borrower of the Documents.
4. The Documents have been duly executed and
delivered by the Borrower.
The foregoing opinion is subject to the following
additional assumptions, limitations, qualifications and
exceptions:
(a) The enforceability of the Documents may be
(i) subject to bankruptcy, insolvency, reorganization,
fraudulent conveyance or transfer, moratorium or other similar
laws affecting creditors' rights generally, and (ii) subject
to general principles of equity (whether considered in a
proceeding at law or in equity);
(b) We express no opinion as to the enforceability
of (i) any provisions contained in the Documents that purport
to establish (or may be construed to establish) evidentiary
standards, or (ii) the enforceability of forum selection
clauses in the federal court; and
(c) Insofar as provisions contained in the Documents
provide for indemnification, the enforcement thereof may be
limited by public policy considerations.
Our opinions expressed above are limited to the laws
of the State of New York, the GCL and the Federal laws of the
United States. Please be advised that no member of this firm
is admitted to practice in the State of Delaware. Our
opinions are rendered only with respect to the laws, and the
rules, regulations and orders thereunder, which are currently
in effect.
This letter is furnished by us solely for your
benefit in connection with the Credit Agreement and the
transactions contemplated thereby and may not be circulated
to, or relied upon by, any other Person, except that this
letter may be circulated to any prospective assignee of the
Bank and may be relied upon by any Person who, in the future,
becomes an assignee of the Bank.
We are aware that Shearman & Sterling will rely upon
the opinions set forth in this opinion in rendering their
opinion to the Bank pursuant to the Credit Agreement.
Very truly yours,
PAUL, WEISS, RIFKIND, WHARTON & GARRISON
NATIONAL HEALTH LABORATORIES INCORPORATED
Secretary's Certificate
Reference is made to the Credit Agreement dated as of
April 7, 1994 between National Health Laboratories
Incorporated (the "Company") and Citicorp USA, Inc. (the
"Credit Agreement"). Capitalized terms used but not defined
in this Certificate have the meanings assigned to such terms
in the Credit Agreement. This Certificate is being delivered
pursuant to Sections 2.01 (ii) and (iii) of the Credit
Agreement.
I, the undersigned, the Secretary of National Health
Laboratories Incorporated, a corporation organized under the
law of the State of Delaware (the "Company"), do hereby
certify that:
1. Attached hereto as Exhibit A is a true, correct
and complete copy of certain resolutions duly adopted by
unanimous written consent in lieu of a meeting of the
Board of Directors of the Company (the "Board of
Directors") on February 8, 1989 and July 3, 1990. Except
for resolutions regarding the appointment of committee
members, said resolutions have not been amended, annulled,
rescinded or revoked and are in full force and effect and
there exist no other resolutions of the Board of Directors
relating to the matters set forth in the resolutions
attached hereto. There is no provision in the certificate
of incorporation or by-laws of the Company limiting the
power of the Board of Directors to pass the resolutions
attached hereto, and the same are in conformity with the
provisions of such certificate of incorporation and
by-laws.
2. Attached hereto as Exhibit B is a true, correct
and complete copy of resolutions duly adopted by unanimous
written consent in lieu of a meeting of the Executive
Committee of the Board of Directors of the Company (the
"Executive Committee") on April 1, 1994, approving the
Credit Agreement and the Note. Said resolutions have not
been amended, annulled, rescinded or revoked and are in
full force and effect. There exist no other resolutions
of the Executive Committee relating to the matters set
forth in the resolutions attached hereto. There is no
provision in the certificate of incorporation or by-laws
of the Company limiting the power of the Executive
Committee to pass the resolutions attached hereto, and the
same are in conformity with the provisions of such
certificate of incorporation and by-laws.
3. The current members of the Executive Committee
are Ronald O. Perelman, Howard Gittis and James R. Maher.
4. The persons listed below have been duly elected
or appointed, have been duly qualified and on the date of
this Certificate are officers of the Company, holding the
respective offices set forth below opposite their names,
and the signatures set forth opposite their names are
genuine:
NAME OFFICE SIGNATURE
James R. Maher President and
Chief Executive
Officer By: /s/ JAMES R. MAHER
James R. Maher
Michael L. Jeub Executive Vice
President, Chief
Financial Officer
and Treasurer By: /s/ MICHAEL L. JEUB
Michael L. Jeub
Alvin Ezrin Secretary By: /s/ ALVIN EZRIN
Alvin Ezrin
Each of the foregoing officers is authorized (a) to sign on
behalf of the Company each document with respect to which this
Certificate is being delivered (and each document referred to
therein or contemplated thereby) and (b) to act as a representative
of the Company for the purposes of signing such documents and
giving notices and other communications in connection therewith and
the transactions contemplated thereby.
IN WITNESS WHEREOF, I have hereunto set my hand as Secretary
of the Company this 7th day of April, 1994.
By: /s/ ALVIN EZRIN
Alvin Ezrin
Secretary
I, the undersigned, Executive Vice President, Chief Financial
Officer and Treasurer of the Company, do hereby certify that Alvin Ezrin
has been duly elected or appointed, has duly qualified and this day is
the Secretary of the Company, and that the signature above is genuine.
IN WITNESS WHEREOF, I have hereunto set my hand as Executive
Vice President, Chief Financial Officer and Treasurer of the Company
this 7th day of April, 1994.
By: /s/ MICHAEL L. JEUB
Michael L. Jeub
Executive Vice President, Chief
Financial Officer and Treasurer
Exhibit A
National Health Laboratories Incorporated
Action by Unanimous Written Consent of
Board of Directors in Lieu of Meeting
February 8, 1989
Creation of Executive Committee
RESOLVED, that there be, and hereby is, constituted an
Executive Committee of the Board of Directors, said committee
to have all of the power and authority of the full Board of
Directors not inconsistent with the Delaware General
Corporation Law, or the Certificate of Incorporation or By-
Laws of the Corporation, as any of the same may be amended
from time to time, and Ronald O. Perelman, Donald G. Drapkin,
Howard Gittis, Sol Levine and Bruce Slovin be, and each of
them hereby is, elected to office as a member of the Executive
Committee to serve at the pleasure of the Board of Directors,
with Mr. Perelman to serve as chairman of such committee.
July 3, 1990
RESOLVED, that this Board of Directors hereby reaffirms
the constitution of the Executive Committee of the Board of
Directors and the continuation of Ronald O. Perelman,
Donald G. Drapkin, Howard Gittis, Sol Levine and Bruce Slovin
as the members thereof with Mr. Perelman to serve as chairman
of such committee, and that this Board of Directors hereby
reaffirms that the Executive Committee of the Board of
Directors shall have all of the power and authority of the
full Board of Directors consistent with the Certificate of
Incorporation and By-Laws of the Corporation and the General
Corporation Law of the State of Delaware, as the same may be
amended from time to time, and that such power and authority
shall include, but not be limited to, declaration of
dividends, authorization of the issuance of stock of the
Corporation and adoption of certificates of ownership and
merger pursuant to Section 253 of the Delaware General
Corporation Law.
Exhibit B
RESOLVED, that the Corporation be, and it hereby is,
authorized to enter into a Credit Agreement by and between the
Corporation and Citibank, N.A., providing for a $50,000,000 revolving
credit facility, substantially in the form of the draft thereof dated
March 24, 1994, with such changes therein and additions thereto as may
be approved or deemed necessary, appropriate or advisable by the officer
executing the same, the execution thereof by such officer to be
conclusive evidence of such approval or determination (the "Credit
Agreement");
RESOLVED, that the Corporation be, and it hereby is,
authorized to enter into a Promissory Note pursuant to its obligations
under the Credit Agreement, substantially in the form of the draft
attached thereto as an exhibit, with such changes therein and additions
thereto as may be approved or deemed necessary, appropriate or advisable
by the officer executing the same, the execution thereof by such officer
to be conclusive evidence of such approval or determination (the
"Note");
FURTHER RESOLVED, that any officer of the Corporation be, and
each of them individually hereby is, authorized in the name and on
behalf of the Corporation, to execute and deliver the Credit Agreement
and the Note (the "Principal Documents") and any other agreements
related thereto or required thereby containing such terms and
conditions, setting forth such rights and obligations and otherwise
addressing or dealing with such subjects or matters determined to be
necessary, appropriate or advisable by the officer executing the same,
the execution thereof by such officer to be conclusive evidence of such
determination, and to do all such other acts or deeds as are or as are
deemed by such officer to be necessary, appropriate or advisable to
effectuate the intent, purposes and matters reasonably contemplated or
implied by this resolution and the foregoing resolutions;
FURTHER RESOLVED, that the Corporation be, and it hereby is,
authorized to perform fully its obligations under the Principal
Documents and any such other agreements and to engage without limitation
in such other transactions, arrangements or activities (collectively,
the "Activities") as are reasonably related or incident to or which will
serve to facilitate or enhance for the benefit of the Corporation the
transactions contemplated by these resolutions, including without
limitation any modification, extension or expansion (collectively, the
"Changes") of any of the Activities or of any other transactions,
arrangements or activities resulting from any of the Changes and to
enter into such other agreements or understandings as are necessary,
appropriate or advisable to effectuate the intent, purpose and matters
reasonably contemplated or implied by this resolution and each of the
foregoing resolutions;
FURTHER RESOLVED, that any officer of the Corporation be, and
each of them individually hereby is, authorized in the name and on
behalf of the Corporation, to perform all such acts and execute and
deliver all such agreements, documents and instruments and pay any and
all fees in connection therewith as any of them shall deem necessary,
appropriate or advisable to effectuate the intent and purposes of the
foregoing resolutions, such determination to be conclusively evidenced
by the performance of such acts, the execution and delivery of such
agreements, documents and instruments and the payment of any such fees;
and
FURTHER RESOLVED, that all actions previously taken by any
director, officer, employee or agent of the Corporation in connection
with or related to the matters set forth in or reasonably contemplated
or implied by the foregoing resolutions be, and each of them hereby is
adopted, ratified, confirmed and approved in all respects as the acts
and deeds of the Corporation.
NATIONAL HEALTH LABORATORIES INCORPORATED
Officers' Certificate
Reference is made to the Credit Agreement (the "Credit
Agreement") dated as of April 7, 1994 between National Health
Laboratories Incorporated (the "Company") and Citicorp USA, Inc.
Capitalized terms used but not defined in this Certificate have the
meanings assigned to such terms in the Credit Agreement. This
Certificate is being delivered pursuant to Section 2.01(vi) of the
Credit Agreement.
The undersigned hereby certify as follows:
1. The representations and warranties contained in Section
4.01 of the Existing Credit Agreement are correct in all material
respects on and as of the date hereof, as though made on and as of the
date hereof.
2. No event has occurred or is continuing which constitutes
a "Default" under the Existing Credit Agreement.
IN WITNESS WHEREOF, the undersigned have executed and
delivered this Certificate on behalf of the Company, and in their
respective capacities as Executive Vice President, Chief Financial
Officer and Treasurer and Secretary of the Company, this 7th day of
April, 1994.
NATIONAL HEALTH LABORATORIES
INCORPORATED
By: /s/ MICHAEL L. JEUB
Michael L. Jeub
Executive Vice President, Chief
Financial Officer and Treasurer
By: /s/ ALVIN EZRIN
Alvin Ezrin
Secretary
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘10-Q’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 8/1/94 | | 2 | | 20 | | | None on these Dates |
| | 7/31/94 | | 1 |
| | 6/30/94 | | 7 |
| Filed on: | | 5/10/94 |
| | 4/7/94 | | 1 | | 36 |
| | 4/1/94 | | 29 |
| For Period End: | | 3/31/94 |
| | 3/24/94 | | 34 |
| | 8/27/93 | | 2 |
| List all Filings |
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