Annual Report — [x] Reg. S-K Item 405 — Form 10-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10-K405 Annual Report -- [x] Reg. S-K Item 405 80± 378K
3: EX-10.26 Material Contract 19 23K
4: EX-10.27 Material Contract 19 41K
5: EX-10.28 Material Contract 92± 350K
6: EX-10.32 Material Contract 1 7K
2: EX-10.5 Material Contract 19± 89K
7: EX-21.1 Subsidiaries of the Registrant 1 5K
8: EX-23.1 Consent of Experts or Counsel 1 8K
9: EX-24.1 Power of Attorney 6 23K
10: EX-27 Financial Data Schedule (Pre-XBRL) 2 9K
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$1,143,750,000
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of March 31, 1997
Among
LABORATORY CORPORATION OF AMERICA HOLDINGS,
as Borrower,
-----------
THE BANKS NAMED HEREIN,
as Banks, and
--------
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent
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TABLE OF CONTENTS
Section Page
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS 1
SECTION 1.01. Certain Defined Terms 1
SECTION 1.02. Computation of Time Periods 32
SECTION 1.03. Accounting Terms and Determinations 32
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES 33
SECTION 2.01. The Advances 33
SECTION 2.02. Making the Advances 35
SECTION 2.03. Repayment 40
SECTION 2.03A. Letters of Credit 41
SECTION 2.04. Reduction of the Commitments 52
SECTION 2.05. Prepayments 52
SECTION 2.06. Interest 55
SECTION 2.07. Interest Rate Determination 56
SECTION 2.08. Fees 58
SECTION 2.09. Increased Costs 58
SECTION 2.10. Illegality 60
SECTION 2.11. Payments and Computations 61
SECTION 2.12. Taxes 63
SECTION 2.13. Sharing of Payments, Etc 67
SECTION 2.14. Removal of Lender 68
SECTION 2.15. Conversion of Advances 69
SECTION 2.16. Defaulting Lenders 69
ARTICLE III CONDITIONS OF LENDING 73
SECTION 3.01. Conditions Precedent to Amendment
Effective Date and Issuance of L/Cs 73
SECTION 3.02. Conditions Precedent to Each Borrowing
and Each L/C Issuance 78
SECTION 3.03. Conditions Precedent to Each Competitive
Bid Borrowing 79
SECTION 3.04. Determinations Under Section 3.01 79
ARTICLE IV REPRESENTATIONS AND WARRANTIES 80
SECTION 4.01. Representations and Warranties of the
Borrower 80
ARTICLE V COVENANTS OF THE BORROWER 86
SECTION 5.01. Affirmative Covenants 86
(a) Compliance with Laws, Etc. 86
(b) Compliance with Environmental Laws 86
(c) Maintenance of Insurance 86
(d) Preservation of Corporate Existence, Etc 87
(e) Visitation Rights 87
(f) Keeping of Books 87
(g) Maintenance of Properties, Etc. 88
(h) Interest Rate Hedging 88
(i) Leverage Ratio 88
(j) Interest Coverage Ratio 89
(k) Minimum Stockholders' Equity 90
(l) Reporting Requirements 90
(m) Monthly Summary Financial Reports 95
(n) Transactions with Affiliates 95
(o) Use of Proceeds 96
(p) Subsidiary Guaranty 96
SECTION 5.02. Negative Covenants 96
(a) Liens, Etc. 96
(b) Lease Obligations 97
(c) Mergers, Etc. 98
(d) Sales, Etc. of Assets 99
(e) Dividends, Repurchases, Etc. 100
(f) Investments 101
(g) Change in Nature of Business 102
(h) Acquisitions 102
(i) Accounting Changes 103
(j) Debt 104
(k) HLR Stockholder Agreement Amendments 105
(l) Prepayments, Etc. of Debt 106
(m) No Negative Pledge 106
(n) Capital Expenditures 106
ARTICLE VI EVENTS OF DEFAULT 107
SECTION 6.01. Events of Default 107
Section 6.02 Cash Collateral 112
ARTICLE VII THE ADMINISTRATIVE AGENT 114
SECTION 7.01. Authorization and Action 114
SECTION 7.02. Administrative Agent's Reliance, Etc. 115
SECTION 7.03. CSFB and Affiliates 116
SECTION 7.04. Lender Credit Decision 116
SECTION 7.05. Indemnification 116
SECTION 7.06. Successor Administrative Agent 117
ARTICLE VIII MISCELLANEOUS 118
SECTION 8.01. Amendments, Etc. 118
SECTION 8.02. Notices, Etc. 119
SECTION 8.03. No Waiver; Remedies 120
SECTION 8.04. Costs; Expenses 120
SECTION 8.05. Right of Set-off 122
SECTION 8.06. Binding Effect 123
SECTION 8.07. Assignments and Participations 123
SECTION 8.08. Governing Law; Submission to Jurisdiction 126
SECTION 8.09. Execution in Counterparts 127
SECTION 8.10. WAIVER OF JURY TRIAL 128
SECTION 8.11. Confidentiality 128
SECTION 8.12. Severability 129
SECTION 8.13. AMENDMENT OF NOTES 129
SECTION 8.14. TERMINATION OF WAIVERS 129
Schedule I - List of Commitments and Applicable Lending Offices
Schedule II - Material Subsidiaries
Schedule III - ERISA Matters
Schedule IV - Roche Holdings Share Ownership
Schedule V - Certain Debt
Schedule VI - Subordinated Debt
Exhibit A-1 - Form of Term Note
Exhibit A-2 - Form of Revolving Credit Note
Exhibit A-3 - Form of Competitive Bid Note
Exhibit B - Form of Assignment and Acceptance
Exhibit C-1 - Form of Notice of Committed Borrowing
Exhibit C-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C-3 - Form of Competitive Bid
Exhibit D - Form of Subsidiary Guaranty
Exhibit E-1 - Opinion of Bradford T. Smith
Exhibit E-2 - Opinion of Davis Polk & Wardwell
Exhibit F - Form of Monthly Summary Financial Report
Exhibit G - Form of Confidentiality Letter
Exhibit H - Form of Guaranty Confirmation
Exhibit I - Form of L/C Issuance Request
AMENDED AND RESTATED CREDIT AGREEMENT dated as of March 31, 1997
(this "Agreement") among LABORATORY CORPORATION OF AMERICA HOLDINGS, a
Delaware corporation (the "Borrower"), the banks, financial institutions and
other institutional lenders (the "Banks") listed on the signature pages
hereof, and CREDIT SUISSE FIRST BOSTON ("CSFB"), as administrative agent
(the "Administrative Agent") for the Lenders hereunder.
PRELIMINARY STATEMENT
The parties hereto have entered into a Credit Agreement dated as
of April 28, 1995 (as amended and in effect immediately prior to the
Amendment Effective Date referred to below, the "Existing Credit Agreement")
providing for, among other things, the Lenders to lend to the Borrower up to
$1,250,000,000 on the terms and subject to the conditions set forth therein.
The Borrower has requested that the Lenders and the Administrative
Agent agree to amend and restate the Existing Credit Agreement, and the
Lenders and the Administrative Agent have indicated their willingness to
amend and restate the Existing Credit Agreement, all on the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, the parties hereto hereby agree
to amend and restate the Existing Credit Agreement effective as of the
Amendment Effective Date so that, as amended and restated, it reads in its
entirety as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement,
the following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms
defined):
"Acquisitions" has the meaning set forth in Section 5.02(h).
"Administrative Agent" has the meaning specified in the recital of
parties to this Agreement.
"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent at 11 Madison
Avenue, New York, New York 10010, Account No. 368822-05.
"Advance" means a Revolving Credit Advance, a Term Advance or a
Competitive Bid Advance.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person. For
purposes of this definition, the terms "control" (including the terms
"controlling", "controlled by" and "under common control with") of a Person
include (except, with respect to the Borrower, in the case of Genentech,
Inc.) the possession, direct or indirect, of the power to vote 5% or more of
the Voting Stock of such Person or to direct or cause direction of the
management and policies of such Person, whether through the ownership of
Voting Stock, by contract or otherwise.
"Amendment Effective Date" means such date as the Borrower and the
Administrative Agent may select; provided that all the conditions set forth
in Section 3.01 shall have been satisfied or waived by the Lenders and the
Administrative Agent on or before such date.
"Application Documents" means the L/C Issuer's customary L/C
application and/or such other standard documents as may reasonably be
required by the L/C Issuer.
"Applicable Lending Office" means, with respect to each Lender,
such Lender's Domestic Lending Office in the case of a Base Rate Advance and
such Lender's Eurodollar Lending Office in the case of a Eurodollar Rate
Advance and, in the case of a Competitive Bid Advance, the office of such
Lender notified by such Lender to the Administrative Agent as its Applicable
Lending Office with respect to such Competitive Bid Advance.
"Applicable Margin" means, with respect to Eurodollar Rate
Advances or Base Rate Advances, as the case may be:
(a) for all times during which the Investor Group Interest equals
or exceeds 25%, the applicable percentage set forth in the chart
immediately below based on the Leverage Ratio of the Borrower:
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Leverage Ratio Greater than or Less than Less than 2.5:1.0
equal to 3.5:1.0 and greater then
equal to
2.5:1.0
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TERM ADVANCES:
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Eurodollar Rate
Margin 1.00% 0.50% 0.375%
Base Rate
Margin 0.0% 0.0% 0.0%
REVOLVING
CREDIT
ADVANCES:
--------
Eurodollar Rate
Margin 0.75% 0.3125% 0.25%
Base Rate
Margin 0.0% 0.0% 0.0%
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and (b) for all times during which the Investor Group Interest is
less than 25%, the applicable percentage set forth in the chart
immediately below based on the Leverage Ratio of the Borrower:
Leverage Greater Less than Less than Less than Less
Ratio than or 4.5:1.0 and 4.0:1.0 and 3.0:1.0 and than
equal to greater than greater then greater 2.5:1.0
4.5:1.0 or equal to or equal to than or
4.0:1.0 3.0:1.0 equal to
2.5:1.0
TERM
ADVANCES:
-----------
Eurodollar
Rate Margin 2.50% 2.25% 2.00% 1.50% 1.375%
Base Rate
Margin 0.0% 0.0% 0.0% 0.0% 0.0%
REVOLVING
CREDIT
ADVANCES:
-----------
Eurodollar
Rate Margin 2.00% 1.875% 1.75% 1.25% 1.1875%
Base Rate
Margin 0.0% 0.0% 0.0% 0.0% 0.0%
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In each case the Leverage Ratio of the Borrower shall be
determined by reference to the most recent financial statements delivered to
the Administrative Agent pursuant to Section 5.01(l)(i) or (ii), as
applicable (any change in the Applicable Margin based on Leverage Ratio
shall be effective upon the earlier of (i) the date of delivery of financial
statements to the Administrative Agent pursuant to Section 5.01(l)(i) or
(ii), as applicable, which financial statements evidence a Leverage Ratio
requiring such change, and (ii) the latest date permitted for such delivery
pursuant to Section 5.01(l)(i) or (ii), as applicable).
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee of such Lender, and accepted by the
Administrative Agent, in substantially the form of Exhibit B hereto.
"Available Excess Cash Flow" means, for any fiscal year, the
amount of Excess Cash Flow for the prior fiscal year not required to be
applied to prepayment of Advances pursuant to subsection 2.05(b)(iv) and not
previously applied in the current fiscal year towards Acquisitions or
Capital Expenditures or paid as cash dividends to holders of the Borrower's
capital stock.
"Bank" has the meaning specified in the recital of parties to this
Agreement.
"Base Rate" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to the
higher of (a) the rate of interest announced publicly by CSFB in New York,
New York, from time to time, as CSFB's base lending rate for commercial
loans in dollars; and (b) 1/2 of 1% per annum above the Federal Funds Rate.
The base lending rate is not the lowest rate of interest charged by CSFB in
connection with extensions of credit.
"Base Rate Advance" means an Advance that bears interest as
provided in Section 2.06(a)(i).
"Beneficiary Documents" has the meaning specified in Section
2.03A(d)(i).
"Borrower" has the meaning specified in the recital of parties to
this Agreement.
"Borrower Common Stock" means the common stock, par value $0.01
per share, of the Borrower.
"Borrower Preferred Stock" means the Borrower Series A Preferred
Stock and the Borrower Series B Preferred Stock.
"Borrower Series A Preferred Stock" means the Borrower's Series A
Convertible Exchangeable Preferred Stock described in the Rights Offering
Registration Statement.
"Borrower Series B Preferred Stock" means the Borrower's Series B
Convertible Pay-in-Kind Preferred Stock described in the Rights Offering
Registration Statement.
"Borrower's Account" means the account of the Borrower maintained
by the Borrower with CSFB at 11 Madison Avenue, New York, New York 10010,
Account No. 36882201.
"Borrowing" means a Revolving Credit Borrowing, a Term Borrowing
or a Competitive Bid Borrowing.
"Business Day" means (a) a day of the year on which banks are not
required or authorized to close in New York City and (b) if the applicable
Business Day relates to an Advance bearing interest based on the Eurodollar
Rate, a day of the year that is also a day on which dealings are carried on
in the London interbank market and banks are open for business in London.
"Capital Expenditures" means, for any period, the sum, without
duplication, of (a) gross additions to property, plant and equipment and
other capital expenditures of the Borrower and its Consolidated Subsidiaries
for such period plus (b) the aggregate principal amount of all Debt assumed
or incurred by the Borrower and its Consolidated Subsidiaries in order to
finance such additions to property, plant and equipment and other capital
expenditures. Capital Expenditures shall not include additions to property,
plant and equipment that constitute Acquisitions subject to Section 5.02(h).
"Capital Ratio" means, with respect to any fiscal quarter, the
ratio (expressed as a percentage) calculated by dividing (a) the total
Consolidated Debt of the Borrower and its Subsidiaries as of the last day of
such fiscal quarter (excluding, to the extent included in Consolidated Debt,
any Obligations to redeem the Preferred Stock) by (b) the sum of (i) the
total Consolidated Debt of the Borrower and its Subsidiaries as of such day
(excluding, to the extent included in Consolidated Debt, any Obligations to
redeem the Preferred Stock) plus (ii) Stockholders' Equity as of such day;
provided, however, that, the net amount (after provision for taxes) of non-
cash write-offs or write-downs of goodwill during such period in connection
with the contribution by the Borrower or any Subsidiary of assets to a joint
venture permitted under Section 5.02(d) shall not be deducted from equity
for the purposes of calculating Stockholder's Equity as of such day.
"Capitalized Leases" has the meaning specified in clause (e) of
the definition of Debt.
"Cash Collateral Account" has the meaning specified in Section
6.02(b).
"Cash Equivalents" means any of the following, to the extent owned
by the Borrower or its Subsidiaries free and clear of all Liens and having a
maturity not greater than 180 days from the date of acquisition thereof:
(a) direct obligations of the Government of the United States or any agency
or instrumentality thereof or obligations unconditionally guaranteed by the
full faith and credit of the Government of the United States, and repurchase
agreements with respect thereto entered into with a commercial bank or trust
company meeting the criteria specified in clause (c) below, (b) certificates
of deposit of or time deposits with any Lender, (c) insured certificates of
deposit of or time deposits with any commercial bank or trust company that
is a member of the Federal Reserve System, issues (or the parent of which
issues) commercial paper rated as described in clause (d), is organized
under the laws of the United States or any State thereof and has combined
capital and surplus of at least $1 billion, (d) commercial paper issued by
any corporation organized under the laws of any State of the United States
and rated at least "Prime-1" (or the then equivalent grade) by Moody's or
"A-1" (or the then equivalent grade) by S&P or (e) shares of money market
mutual or similar funds having assets in excess of $100,000,000 and
substantially all of the assets of which satisfy the requirements of clauses
(a) through (d) of this definition.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980.
"Change of Control" means any acquisition of Control of the
Borrower after the date hereof by any Person or two or more Persons acting
in concert who would constitute a "group" within the meaning of Section
13(d)(3) of the Exchange Act (other than Roche Holdings, so long as it is
under the Control of Roche, or any other Person under the Control of Roche,
or a group consisting of such Persons).
"Closing Date" means April 28, 1995.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated and the rulings issued
thereunder.
"Commitment" means a Revolving Credit Commitment or a Term
Commitment.
"Committed Advance" means a Revolving Credit Advance or a Term
Advance.
"Committed Borrowing" means a Term Borrowing or a Revolving Credit
Borrowing.
"Competitive Bid Advance" means an advance by a Lender to the
Borrower as part of a Competitive Bid Borrowing resulting from the auction
bidding procedure described in Section 2.02(b) and refers to a Fixed Rate
Advance or a LIBO CB Advance.
"Competitive Bid Borrowing" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders whose offer
to make one or more Competitive Bid Advances as part of such borrowing has
been accepted under the auction bidding procedure described in Section
2.02(b).
"Competitive Bid Note" means the promissory note of the Borrower
payable to the order of the Administrative Agent for the benefit of each
Lender making a Competitive Bid Advance, in substantially the form of
Exhibit A-3 hereto, evidencing the indebtedness of the Borrower to the
Lenders resulting from Competitive Bid Advances made by the Lenders.
"Competitive Bid Reduction" has the meaning specified in Section
2.01(b).
"Competitive Bid Register" has the meaning specified in Section
2.02(b)(vi).
"Consolidated" for any Person refers to the consolidation of the
financial statements of such Person and its Subsidiaries in accordance with
GAAP.
"Control" by any Person or Persons of any other Person means
(a) beneficial ownership (within the meaning of Rule 13d-3 of the Securities
and Exchange Commission under the Exchange Act) by such Person or Persons,
directly or indirectly, of Voting Stock of such other Person (or other
securities convertible into such Voting Stock) representing 51% or more of
the combined voting power of all Voting Stock of such other Person,
(b) control by such Person or Persons, by contract or otherwise, or entry by
such Person or Persons into a contract or agreement that, upon consummation,
will result in the acquisition by such Person or Persons of control, over
Voting Stock of such other Person (or other securities convertible into such
securities) representing 51% or more of the combined voting power of all
Voting Stock of such other Person, or (c) the possession, directly or
indirectly, by such Person or Persons of the power to direct or cause the
direction of the management and policies of such other Person.
"Conversion", "Convert" and "Converted" each refers to a
conversion of Advances of one Type into Advances of the other Type pursuant
to Section 2.07, 2.10 or 2.15.
"CSFB" has the meaning specified in the recital of parties to this
Agreement.
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money; (b) all Obligations of such
Person for the deferred purchase price of property or services (other than
trade payables incurred in the ordinary course of such Person's business);
(c) all Obligations of such Person evidenced by notes, bonds, debentures or
other similar instruments; (d) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the seller
or lender under such agreement in the event of default are limited to
repossession or sale of such property); (e) all Obligations of such Person
as lessees under (i) Tax Finance Leases and (ii) leases that have been or
should be, in accordance with GAAP, recorded as capital leases ("Capitalized
Leases"); (f) all Obligations, contingent or otherwise, of such Person under
acceptance, letter of credit or similar facilities; (g) all Obligations of
such Person to purchase, redeem, retire, defease or otherwise acquire for
value any capital stock of such Person or any warrants, rights or options to
acquire such capital stock; (h) all Debt of others referred to in clauses
(a) through (g) above guaranteed directly or indirectly in any manner by
such Person, or in effect guaranteed directly or indirectly by such Person
through an agreement (i) to pay or purchase such Debt or to advance or
supply funds for the payment or purchase of such Debt, (ii) to purchase,
sell or lease (as lessee or lessor) property, or to purchase or sell
services, primarily for the purpose of enabling the debtor to make payment
of such Debt or to assure the holder of such Debt against loss, (iii) to
supply funds to or in any other manner invest in the debtor (including any
agreement to pay for property or services irrespective of whether such
property is received or such services are rendered) or (iv) otherwise to
maintain a balance sheet condition or to assure a creditor against loss; and
(i) all Debt referred to in clauses (a) through (h) above secured by (or for
which the holder of such Debt has an existing right, contingent or
otherwise, to be secured by) any Lien on property (including, without
limitation, accounts and contract rights) owned by such Person, even though
such Person has not assumed or become liable for the payment of such Debt.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be given
or time elapse or both.
"Default Rate" means the rate of interest determined pursuant to
Section 2.06(c) hereof.
"Defaulted Advance" means, with respect to any Lender at any time,
the amount of any Committed Advance required to be made by such Lender to
the Borrower pursuant to Section 2.01 at or prior to such time which has not
been so made as of such time; provided, however, any Committed Advance made
by the Administrative Agent for the account of such Lender pursuant to
Section 2.02(a)(iii) shall not be considered a Defaulted Advance even if, at
such time, such Lender shall not have reimbursed the Administrative Agent
therefor as provided in Section 2.02(a)(iii). In the event that a portion
of a Defaulted Advance shall be deemed made pursuant to Section 2.16(a), the
remaining portion of such Defaulted Advance shall be considered a Defaulted
Advance originally required to be made pursuant to Section 2.01 on the same
date as the Defaulted Advance so deemed made in part.
"Defaulted Amount" means, with respect to any Lender at any time,
any amount required to be paid by such Lender to the Administrative Agent or
any other Lender hereunder or under any other Loan Document at or prior to
such time which has not been so paid as of such time, including, without
limitation, any amount required to be paid by such Lender to (a) the
Administrative Agent pursuant to Section 2.02(a)(iii) to reimburse the
Administrative Agent for the amount of any Committed Advance made by the
Administrative Agent for the account of such Lender, (b) any other Lender
pursuant to Section 2.13 to purchase any participation in Advances owing to
such other Lender and (c) the Administrative Agent pursuant to Section 7.05
to reimburse the Administrative Agent for such Lender's ratable share of any
amount required to be paid by the Lenders to the Administrative Agent as
provided therein. In the event that a portion of a Defaulted Amount shall
be deemed paid pursuant to Section 2.16(b), the remaining portion of such
Defaulted Amount shall be considered a Defaulted Amount originally required
to be made hereunder or under any other Loan Document on the same date as
the Defaulted Amount so deemed paid in part.
"Defaulting Lender" means, at any time, any Lender that, at such
time, (a) owes a Defaulted Advance or a Defaulted Amount or (b) shall take
or be the subject of any action or proceeding of a type described in Section
6.01(e).
"Direct Exposure" has the meaning specified in Section 6.02(d).
"Disposition" means the sale, lease, transfer or other disposition
of any assets of the Borrower or any of its Subsidiaries (including, without
limitation, shares of capital stock or other equity interests of any Person
owned by the Borrower or any such Subsidiary) (other than sales, leases,
transfers or other dispositions permitted by Section 5.02(d) (other than
Section 5.02(d)(x)).
"dollars" and the sign "$" each means lawful money of the United
States.
"Domestic Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant
to which it became a Lender, or such other office of such Lender as such
Lender may from time to time specify to the Borrower and the Administrative
Agent.
"EBIT" means, for any fiscal period of the Borrower, Net Income
plus, to the extent deducted in determining Net Income, the sum of
(a) interest expense net of interest income, (b) income tax expense and
(c) extraordinary losses included in Net Income, less extraordinary gains
included in Net Income, in each case determined for such period without
duplication on a Consolidated basis for the Borrower and its Subsidiaries
and in accordance with GAAP.
"EBITDA" means, for any fiscal period of the Borrower, EBIT plus,
to the extent deducted in determining Net Income, (a) depreciation expense,
(b) amortization expense and (c) non-cash write-offs and write-downs of
amortizable and depreciable items, in each case determined for such period
without duplication on a Consolidated basis for the Borrower and its
Subsidiaries and in accordance with GAAP. Notwithstanding the foregoing,
EBITDA shall be deemed to be (i) $48,400,000 for the fiscal quarter of the
Borrower ended March 31, 1996, (ii) $51,600,000 for the fiscal quarter of
the Borrower ended June 30, 1996, (iii) $39,800,000 for the fiscal quarter
of the Borrower ended September 30, 1996 and (iv) $43,300,000 for the fiscal
quarter of the Borrower ended December 31, 1996.
"Eligible Assignee" means (a) any commercial bank organized under
the laws of the United States, or any State thereof, and having total assets
in excess of $1,000,000,000; (b) any savings and loan association or savings
bank organized under the laws of the United States, or any State thereof,
and having a net worth determined in accordance with GAAP in excess of
$250,000,000; (c) any commercial bank organized under the laws of any other
country that is a member of the Organization for Economic Cooperation and
Development ("OECD") or has concluded special lending arrangements with the
International Monetary Fund Associated with its General Arrangements to
Borrow, or a political subdivision of any such country, and having total
assets in excess of $1,000,000,000, so long as such bank is acting through a
branch or agency located in the United States, in the Cayman Islands or in
the country in which it is organized or another country that is described in
this clause (c); (d) the central bank of any country that is a member of the
OECD; (e) any finance company, insurance company or other financial
institution or fund (whether a corporation, partnership, trust or other
entity) that (i) is not affiliated with the Borrower, (ii) is engaged in
making, purchasing or otherwise investing in commercial loans in the
ordinary course of its business and (iii) has total assets in excess of
$250,000,000; and (f) any other Person (other than an Affiliate of the
Borrower) approved by the Administrative Agent and the Borrower, such
approval not to be unreasonably withheld if such Person is a commercial
bank.
"Environmental Action" means any administrative, regulatory or
judicial action, suit, demand, demand letter, claim, notice of non-
compliance or violation, investigation, proceeding, consent order or consent
agreement based upon or arising out of any Environmental Law or any
Environmental Permit, including, without limitation (a) any claim by any
governmental or regulatory authority for enforcement, cleanup, removal,
response, remedial or other actions or damages pursuant to any Environmental
Law and (b) any claim by any third party seeking damages, contribution, or
injunctive relief arising from alleged injury or threat of injury to health,
safety or the environment.
"Environmental Law" means any federal, state or local law, rule,
regulation, order, writ, judgment, injunction, decree, determination or
award relating to the environment, health or safety including, without
limitation, CERCLA, the Resource Conservation and Recovery Act, the
Hazardous Materials Transportation Act, the Clean Water Act, the Toxic
Substances Control Act, the Clean Air Act, the Safe Drinking Water Act, the
Atomic Energy Act, the Federal Insecticide, Fungicide and Rodenticide Act
and the Occupational Safety and Health Act.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" of any Person means any other Person that for
purposes of Title IV of ERISA is a member of such Person's controlled group,
or under common control with such Person, within the meaning of Section 414
of the Code.
"ERISA Event" with respect to any Person means (a) the occurrence
of a reportable event, within the meaning of Section 4043 of ERISA, with
respect to any Plan of such Person or any of its ERISA Affiliates unless the
30-day notice requirement with respect to such event has been waived by the
PBGC; (b) the provision by the administrator of any Plan of such Person or
any of its ERISA Affiliates of a notice of intent to terminate such Plan,
pursuant to Section 4041(a)(2) of ERISA (including any such notice with
respect to a plan amendment referred to in Section 4041(e) of ERISA);
(c) the cessation of operations at a facility of such Person or any of its
ERISA Affiliates in the circumstances described in Section 4062(e) of ERISA;
(d) the withdrawal by such Person or any of its ERISA Affiliates from a Plan
during a plan year for which it was a substantial employer, as defined in
Section 4001(a)(2) of ERISA; (e) the failure by such Person or any of its
ERISA Affiliates to make a payment to a Plan described in Section 302(f)(1)
of ERISA; (f) the adoption of an amendment to a Plan of such Person or any
of its ERISA Affiliates requiring the provision of security to such Plan,
pursuant to Section 307 of ERISA; or (g) the institution by the PBGC of
proceedings to terminate a Plan of such Person or any of its ERISA
Affiliates, pursuant to Section 4042 of ERISA, or the occurrence of any
event or condition described in Section 4042 of ERISA that would constitute
grounds for the termination of, or the appointment of a trustee to
administer, such Plan; provided, however, that an event described in clause
(a), (c) or (d) of this definition, or in clause (b) of this definition
solely with respect to a standard termination under Section 4041(b) of
ERISA, shall be an ERISA Event only if such event is reasonably likely to
result in a material liability of such Person or any of its ERISA
Affiliates.
"Eurocurrency Liabilities" has the meaning assigned to that term
in Regulation D of the Board of Governors of the Federal Reserve System, as
in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Eurodollar Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant
to which it became a Lender (or, if no such office is specified, its
Domestic Lending Office), or such other office of such Lender as such Lender
may from time to time specify to the Borrower and the Administrative Agent.
"Eurodollar Rate" means the rate per annum equal to (i) the rate
determined by the Administrative Agent at approximately 11:00 a.m. (London
time) on the date which is two Business Days before the first day of such
Interest Period by reference to the British Bankers' Association Interest
Settlement Rates for deposits in U.S. dollars (as set forth by any service
selected by the Administrative Agent which has been nominated by the British
Bankers' Association as an authorized information vendor for the purpose of
displaying such rates) for a period equal to the relevant Interest Period
divided by (ii) a percentage equal to 100% minus the Eurodollar Rate Reserve
Percentage for such Interest Period; provided that, to the extent that an
interest rate is not ascertainable pursuant to the foregoing provisions of
this definition, the "Eurodollar Rate" shall be the interest rate per annum
determined by the Administrative Agent to be the average (rounded upward to
the nearest whole multiple of one-sixteenth of one percent per annum, if
such average is not such a multiple) of the rates per annum at which
deposits in U.S. dollars are offered to major banks in the London interbank
market in London, England by the Reference Lenders at approximately 11:00
a.m. (London time) on the day which is two Business Days before the first
day of such Interest Period. If any of the Reference Lenders shall be
unable or shall otherwise fail to supply such rates to the Administrative
Agent upon its request, the rate of interest shall be determined on the
basis of the remaining Reference Lenders. The Eurodollar Rate for each
Interest Period for each Eurodollar Rate Advance comprising part of the same
Borrowing shall be determined by the Administrative Agent on the basis of
applicable rates obtained by the Administrative Agent two Business Days
before the first day of such Interest Period, subject, however, to the
provisions of Section 2.07.
"Eurodollar Rate Advance" means a Term Advance or a Revolving
Credit Advance that bears interest as provided in Section 2.06(a)(ii).
"Eurodollar Rate Reserve Percentage" of any Lender for any
Interest Period for any Eurodollar Rate Advance means the reserve percentage
applicable during such Interest Period (or if more than one such percentage
shall be so applicable, the daily average of such percentages for those days
in such Interest Period during which any such percentage shall be so
applicable) under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor) for determining
the maximum reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement) for such
Lender with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Excess Cash Flow" means for any period, without duplication, the
total of the following: (a) EBITDA, less (b) any cash provision for (or
plus any cash benefit from) income or franchise taxes included in the
determination of Net Income, plus (c) decreases (or less increases) in
Working Capital, plus (d) decreases (or less increases) in long-term
deferred tax assets, plus (e) increases (or less decreases) in the long-term
portion of reserves and accrued liabilities, plus (f) increases (or less
decreases) in long-term deferred tax liabilities, less (g) the unfinanced
portion of Capital Expenditures (excluding amounts paid for Capital
Expenditures from Available Excess Cash Flow for such period), less
(h) scheduled amortization of Debt actually paid in cash (but in the case of
Junior Obligations or Subordinated Notes only to the extent such payment was
permitted pursuant to Section 5.02(l)), less (i) the aggregate of all
voluntary prepayments of the Advances (in the case of Revolving Credit
Advances, only to the extent the Revolving Credit Commitments are
simultaneously permanently reduced), less (j) Interest Expense, less (k)
amounts paid in cash for Permitted Acquisitions (excluding amounts paid for
Permitted Acquisitions from Available Excess Cash Flow for such period),
less (l) amounts paid in cash as dividends permitted under Section
5.02(e)(iv), less (m) to the extent included in EBITDA, the amount of any
gain on any Disposition.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Existing Credit Agreement" has the meaning specified in the
Preliminary Statement.
"Facility" means the Revolving Credit Facility or the Term
Facility.
"Facility Fee Percentage" means (a) for all times during which the
Investor Group Interest equals or exceeds 25%, the applicable percentage set
forth in the chart immediately below based on the Leverage Ratio of the
Borrower:
LEVERAGE FACILITY FEE
RATIO PERCENTAGE
--------- ------------
Greater than or equal 0.25%
to 3.5:1.0
Less than 3.5:1.0 and 0.1875%
greater than or equal
to 2.5:1.0
Less than 2.5:1.0 0.125%;
and (b) for all times during which the Investor Group Interest is less than
25%, the applicable percentage set forth in the chart immediately below
based on the Leverage Ratio of the Borrower:
LEVERAGE FACILITY FEE
RATIO PERCENTAGE
-------- ------------
Greater than or equal 0.50%
to 4.5:1.0
Less than 4.5 and 0.375%
greater than or equal
to 4.0:1.0
Less than 4.0:1.0 and 0.25%
greater than or equal
to 2.5:1.0
Less than 2.5:1.0 0.1875%.
In each case the Leverage Ratio shall be determined by reference
to the most recent financial statements delivered to the Administrative
Agent pursuant to Section 5.01(l)(i) and (ii) (any change in the Facility
Fee Percentage based on the Leverage Ratio shall be effective upon the
earlier of (i) the date of delivery of financial statements to the
Administrative Agent pursuant to Section 5.01(l)(i) and (ii), which
financial statements evidence a Leverage Ratio requiring such change, and
(ii) the latest date permitted for such delivery pursuant to Section
5.01(l)(i) and (ii)).
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average
of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published for
such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York, or, if such rate is
not so published for any day which is a Business Day, the average of the
quotations for such day on such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected by
it.
"Fixed Rate Advances" has the meaning specified in Section
2.02(b)(i).
"GAAP" means generally accepted accounting principles in the
United States of America as in effect from time to time.
"Guaranty Confirmation" has the meaning specified in Section
3.01(d)(vii).
"Hazardous Materials" means (a) petroleum or petroleum products,
natural or synthetic gas, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation and radon gas, (b) any substances
defined as or included in the definition of "hazardous substances,"
"hazardous wastes," "hazardous materials," "extremely hazardous wastes,"
"restricted hazardous wastes," "toxic substances," "toxic pollutants,"
"contaminants" or "pollutants," or words of similar import, under any
Environmental Law and (c) any other substance exposure to which is regulated
under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements.
"HLR" means HLR Holdings Inc., a Delaware corporation and a direct
wholly-owned subsidiary of Hoffmann-La Roche.
"HLR Stockholder Agreement" means the Stockholder Agreement dated
as of April 28, 1995 among HLR, Roche Holdings, Hoffmann-La Roche and the
Borrower, as the same, subject to Section 5.02(k), may be amended,
supplemented or otherwise modified from time to time.
"Hoffmann-La Roche" means Hoffmann-La Roche Inc., a New Jersey
corporation.
"Indemnified Party" has the meaning specified in Section 8.04(c).
"Initial Date" means, for purposes of Section 2.12, in the case of
the Administrative Agent and each Bank, the date of its execution and
delivery of the Existing Credit Agreement and, in the case of each Lender
other than a Bank, the date of the Assignment and Acceptance pursuant to
which it becomes a Lender.
"Interest Coverage Ratio" means with respect to each four fiscal
quarter period, commencing with the four fiscal quarter period ending on
March 31, 1997, the ratio of (x) Consolidated EBITDA of the Borrower and its
Subsidiaries for such period to (y) Consolidated Interest Expense of the
Borrower and its Subsidiaries for such period.
"Interest Expense" means, with respect to any specified period,
the sum of interest expense on all Debt of the Borrower and its Subsidiaries
on a Consolidated basis in accordance with GAAP and including, without
limitation, to the extent not otherwise included in accordance with GAAP (a)
the interest component of obligations under Tax Finance Leases and
Capitalized Leases, (b) commissions, discounts and other fees and charges
payable in connection with letters of credit, (c) the net payment, if any,
payable in connection with Hedge Agreements, (d) fees paid pursuant to
Section 2.08(a), (e) amortization of original issue discount and (f) the
interest portion of any deferred payment obligation.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Term Borrowing or Revolving Credit Borrowing,
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 periods elected by the Borrower pursuant to
the provisions below. The duration of each such Interest Period shall be
one, two, three or six months as the Borrower may, upon notice received by
the Administrative Agent 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 any principal repayment installment date unless, after giving
effect to such selection, the aggregate principal amount of Base Rate
Advances and of Eurodollar Rate Advances having Interest Periods that
end on or prior to such principal repayment installment date shall be
at least equal to the aggregate principal amount of such Advances due
and payable on or prior to such 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.
"Investment" in any Person means any loan or advance to such
Person, any purchase or other acquisition of any capital stock, warrants,
rights, options, debt obligations or other securities of such Person, any
capital contribution to such Person or any other investment in such Person,
including, without limitation, any arrangement pursuant to which the
investor incurs Debt of the type referred to in clause (h) or (i) of the
definition of "Debt" in respect of such Person.
"Investor Group Interest" has the meaning set forth in the HLR
Stockholder Agreement, as in effect on the date hereof.
"Junior Obligations" means unsecured indebtedness of the Borrower
for borrowed money in favor of non-Affiliates of the Borrower: (i) payment
or prepayment (mandatory or optional) of which (whether at maturity, upon
acceleration, pursuant to scheduled amortization or otherwise) is not
permitted or required until after the prior payment in full of the
Obligations under the Loan Documents, (ii) incurred pursuant to loan
agreements or other evidence of indebtedness providing for interest rates,
fees and other returns to the obligee thereof, and for affirmative, negative
and financial covenants and other terms and conditions, not more favorable,
in the judgment of the Required Lenders, than those set forth in the Loan
Documents, and (iii) otherwise subordinated to the prior payment in full of
the Obligations under the Loan Documents on terms and conditions
satisfactory to the Required Lenders.
"L/C(s)" means any standby letter of credit issued by the L/C
Issuer for the account of Borrower pursuant to Section 2.03A hereof, in each
case, as amended, supplemented or modified from time to time.
"L/C Expiration Date" means with respect to any L/C, the date
which is the earlier to occur of (a) three hundred sixty-five (365) days
after the date of issuance or extension thereof, or (b) thirty (30) days
prior to the Revolving Credit Termination Date.
"L/C Issuance Request" means a request in the form of Exhibit I
for the issuance of a L/C.
"L/C Issuer" means either CSFB or any other Lender that has agreed
to become an L/C Issuer, as designated in the related L/C Issuance Request.
"L/C Obligations" means as of any date of determination, all the
existing liabilities (including all fees) of the Borrower to the L/C Issuer,
the Agent and the Lenders in respect of all L/C(s) outstanding, whether such
liability is contingent or fixed, which liabilities shall be computed to
include the sum of the aggregate maximum amount then available to be drawn
under all L/C(s) (assuming, whether or not such is the case, that such
aggregate maximum amount shall have been drawn) and the aggregate amount of
any Unreimbursed Drawings then outstanding.
"L/C Outstandings" means at any time, the sum of (a) the maximum
aggregate amount available to be drawn under all outstanding L/C(s)
(assuming, whether or not such is the case, that such aggregate maximum
amount shall have been drawn) and (b) the amount of all Unreimbursed
Drawings.
"L/C Reimbursement Due Date" has the meaning specified in Section
2.03A(c)(i).
"L/C Sublimit" means at any time, an amount equal to the lesser of
(x) Fifty Million Dollars ($50,000,000), as such amount may be reduced in
accordance with the terms hereof, and (y) the aggregate Unused Revolving
Credit Commitments of all the Lenders at such time. The L/C Sublimit shall
automatically and permanently terminate on the earlier of (i) March 1, 2002
and (ii) the Revolving Credit Termination Date.
"Lenders" means the Banks listed on the signature pages hereof and
each Eligible Assignee that shall become a party hereto pursuant to Section
8.07 and each assignee that shall become a party hereto pursuant to Section
2.14.
"Leverage Ratio" means with respect to each four fiscal quarter
period, commencing with the four fiscal quarter period ending December 31,
1996, the ratio of (x) the total Consolidated Debt of the Borrower and its
Subsidiaries (excluding, to the extent included in Consolidated Debt, any
Obligations to redeem the Preferred Stock) as of the last day of such fiscal
quarter to (y) Consolidated EBITDA of the Borrower and its Subsidiaries for
the four fiscal quarter period ended at the end of such fiscal quarter.
"LIBO CB Advance" has the meaning specified in Section 2.02(b)(i).
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on
title to real property.
"Loan Documents" means this Agreement, the Notes, the Subsidiary
Guaranty and the Guaranty Confirmation.
"Loan Parties" means the Borrower and the Subsidiary Guarantors.
"Mandatory L/C Advance" has the meaning specified in Section
2.03A(c)(i) hereof.
"Margin Stock" has the meaning specified in Regulation U of the
Board of Governors of the Federal Reserve System and any successor
regulations thereto, as in effect from time to time.
"Material Adverse Change" means, with respect to any Person, a
material adverse change in the financial condition, results of operations or
business of such Person and its Subsidiaries, taken as a whole.
"Material Adverse Effect" means a material adverse effect upon
(a) the financial condition, results of operations or business of the
Borrower and its Subsidiaries, taken as a whole, or (b) the ability of a
Loan Party to perform its Obligations under any Loan Document or (c) the
binding nature, validity or enforceability of any Loan Document as an
obligation of any Loan Party.
"Material Subsidiary" means (a) as to any Person, each
"Subsidiary" (as defined in Rule 1-02 of Regulation S-X (17 CFR Part 210)
("Rule 1-02")) that qualifies as a "Significant Subsidiary" (as defined in
Rule 1-02) of such Person, (b) NHL and (c) each Subsidiary of the Borrower
that is a direct or indirect beneficial owner of any shares of capital stock
of NHL.
"Materially Different Business" means a business or line of
business that is materially different from that described for the Borrower
and its Subsidiaries in the Rights Offering Registration Statement.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" of any Person means a multiemployer plan, as
defined in Section 4001(a)(3) of ERISA, which is subject to Title IV of
ERISA, and to which such Person or any of its ERISA Affiliates is making or
accruing an obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to make
contributions.
"Net Cash Proceeds" means, with respect to any sale, lease,
transfer or other disposition of any asset or the sale or issuance by any
Person of any Debt or capital stock or other equity interest, any securities
convertible into or exchangeable for any capital stock or other equity
interest or any warrants, rights or options to acquire any capital stock or
other equity interest, the aggregate amount of cash received from time to
time by or on behalf of such Person in connection with such transaction
after deducting therefrom only (a) reasonable and customary brokerage
commissions, underwriting fees and discounts, legal fees and expenses,
finder's fees, accountants' fees and expenses and other similar fees,
expenses and commissions, (b) the amount of taxes payable or estimated in
good faith to be payable in connection with or as a result of such
transaction and (c) the amount of any Debt that, by the terms of such
transaction or the terms of such Debt, is required to be repaid upon such
disposition, in each case to the extent, but only to the extent, that the
amounts so deducted are payable to a Person that is not an Affiliate and are
properly attributable to such transaction or to the asset that is the
subject thereof.
"Net Income" means, for any Person in any period, the net income
of such Person and its Subsidiaries on a Consolidated basis for such period,
as determined in accordance with GAAP.
"Net Tangible Assets" means, for any Person, total assets of such
Person less all intangible assets of such Person, in each case determined in
accordance with GAAP.
"NHL" means Laboratory Corporation of America, as successor-in-
interest to National Health Laboratories Incorporated, a Delaware
corporation and an indirect wholly-owned Subsidiary of the Borrower, and its
successors.
"Note" means a Revolving Credit Note, a Term Note or a Competitive
Bid Note.
"Notice of Borrowing" means a Notice of Committed Borrowing or a
Notice of Competitive Bid Borrowing.
"Notice of Committed Borrowing" has the meaning specified in
Section 2.02(a).
"Notice of Competitive Bid Borrowing" has the meaning specified in
Section 2.02(b).
"Obligation" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including,
without limitation, any liability of such Person on any claim, whether or
not the right of any creditor to payment in respect of such claim is reduced
to judgment, liquidated, unliquidated, fixed, contingent, matured, disputed,
undisputed, legal, equitable, secured or unsecured, and whether or not such
claim is discharged, stayed or otherwise affected by any proceeding referred
to in Section 6.01(e). Without limiting the generality of the foregoing,
the Obligations of the Loan Parties under the Loan Documents include (a) the
obligation to pay principal, interest, charges, expenses, fees, attorneys'
fees and disbursements, guarantees, indemnities and other amounts payable by
any Loan Party under any Loan Document and (b) the obligation to reimburse
any amount in respect of any of the foregoing that any Lender, in its sole
discretion, may elect to pay or advance on behalf of such Loan Party.
"Other Taxes" has the meaning specified in Section 2.12(b).
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor agency or entity performing substantially the same functions.
"Permitted Acquisition" means any Acquisition permitted under
Section 5.02(h).
"Person" means an individual, partnership, corporation (including
a business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government
or any political subdivision or agency thereof.
"Plan" means an employee pension benefit plan (other than a
Multiemployer Plan) which is subject to Title IV of ERISA, and either (i) is
maintained or contributed to by the Borrower or any of its ERISA Affiliates,
or to which the Borrower or any of its ERISA Affiliates has an obligation to
contribute, for employees of the Borrower or any of its ERISA Affiliates,
(ii) has at any time within the preceding five years been maintained or
contributed to by Borrower or any Person which was at such time an ERISA
Affiliate of the Borrower for employees of Borrower or any Person which was
at such time an ERISA Affiliate of the Borrower or (iii) was at any time
within the five years preceding the merger of RBLI and the Borrower
maintained or contributed to by RBLI or any of its then existing ERISA
Affiliates, or to which RBLI or any of its then existing ERISA Affiliates
had an obligation to contribute, for employees for RBLI or any of its then
existing ERISA Affiliates (an "RBLI Plan") provided, however, that the term
"Plan" shall only apply with respect to an "RBLI Plan" for the period
preceding the merger of RBLI and the Borrower.
"Purchase Price" means, with respect to any Acquisition or
proposed Acquisition, the consideration paid or to be paid for such
Acquisition in cash and property (including, without limitation, all
purchase price installments and all liabilities assumed, Debt incurred and
equity issued by the Borrower or any of its Subsidiaries in connection with
such Acquisition).
"RBLI" means Roche Biomedical Laboratories, Inc., a New Jersey
corporation and a direct wholly-owned subsidiary of HLR, as such corporation
existed immediately prior to the effectiveness of the merger between such
corporation and the Borrower.
"RBLI Plan" has the meaning specified in the definition of "Plan".
"Reference Lenders" means Credit Suisse First Boston, Swiss Bank
Corporation, New York Branch, and Deutsche Bank AG, New York Branch, or such
other Lenders as the Borrower, the Administrative Agent and the Required
Lenders shall designate in writing.
"Register" has the meaning specified in Section 8.07(b).
"Relevant Contingent Exposure" has the meaning specified in
Section 6.02(d).
"Required Lenders" means at any time Lenders holding at least 51%
of the sum of (a) the aggregate principal amount of the Committed Advances
outstanding at such time and (b) the aggregate unused Term Commitments plus
the aggregate Unused Revolving Credit Commitments at such time (provided
that, for purposes hereof, neither the Borrower, nor any of its Affiliates,
if a Lender, shall be included in (x) the Lenders holding such amount of the
Committed Advances or having such amount of the Commitments or (y)
determining the aggregate unpaid principal amount of the Committed Advances
or the total Commitments); provided, however, if any Lender shall be a
Defaulting Lender at such time, there shall be excluded from the
determination of Required Lenders at such time (i) the aggregate principal
amount of the Committed Advances made by such Lender and outstanding at such
time and (ii) the aggregate Commitments of such Lender under both of the
Facilities at such time.
"Revolving Credit Advance" has the meaning specified in Section
2.01(b).
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by the
Revolving Credit Lenders.
"Revolving Credit Commitment" means, with respect to any Revolving
Credit Lender at any time, the amount set forth opposite such Lender's name
on Schedule I hereto under the caption "Revolving Credit Commitment" or, if
such Lender has entered into one or more Assignments and Acceptances, set
forth for such Lender in the Register maintained by the Administrative Agent
pursuant to Section 8.07(b) as such Lender's "Revolving Credit Commitment",
as such amount may be reduced at or prior to such time pursuant to Section
2.04.
"Revolving Credit Facility" means, at any time, the aggregate
amount of the Revolving Credit Lenders' Revolving Credit Commitments at such
time.
"Revolving Credit Lender" means any Lender that has a Revolving
Credit Commitment.
"Revolving Credit Note" means a promissory note of the Borrower
payable to the order of any Lender having a Revolving Credit Commitment or a
Revolving Credit Advance, in substantially the form of Exhibit A-2 to the
Existing Credit Agreement as amended pursuant to Section 8.13 or in
substantially the form of Exhibit A-2 hereto, evidencing the aggregate
indebtedness of the Borrower to such Lender resulting from the Revolving
Credit Advances made or held by such Lender.
"Revolving Credit Termination Date" means the earlier of (a)
March 31, 2002 or (b) the date of termination in whole of the Revolving
Credit Commitments pursuant to Section 2.04 or 6.01.
"Rights Offering Registration Statement" means the Form S-3
Registration Statement filed by the Borrower with the Securities and
Exchange Commission on February 27, 1997 in connection with the offering of
subscription rights for the Borrower Preferred Stock and as the same may be
amended with the consent of the Agent following receipt of comments from the
Securities and Exchange Commission.
"Roche" means Roche Holding Ltd, a corporation organized and
existing under the laws of Switzerland.
"Roche Debt" means the indebtedness of the Borrower evidenced by
the Roche Note.
"Roche Holdings" means Roche Holdings, Inc., a Delaware
corporation.
"Roche Note" means the promissory note of the Borrower in the
principal amount of $187,000,000 dated December 23, 1996 in favor of Roche
Holdings, as amended on March 31, 1997 and as further amended with the
consent of the Required Lenders.
"S&P" means Standard & Poor's Ratings Group.
"Solvent" and "Solvency" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property of
such Person is greater than the total amount of liabilities, including,
without limitation, contingent liabilities, of such Person, (b) the present
fair salable 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, (c) 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 and (d)
such Person is not engaged in business or a transaction, and is not about to
engage in business or a transaction, for which such Person's property would
constitute an unreasonably small capital. The amount of contingent
liabilities at any time shall be computed as the amount that, in the 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.
"Stockholders' Equity" means stockholders equity of the Borrower
and its Subsidiaries on a Consolidated basis, as determined in accordance
with GAAP.
"Subordinated Debt" means unsecured indebtedness of the Borrower
for borrowed money incurred pursuant to the terms and conditions set forth
in Schedule VI.
"Subsidiary" of any Person means any corporation, partnership,
limited liability company, joint venture, trust or estate of which (or in
which) more than 50% of (a) the Voting Stock of such corporation, (b) the
interest in the capital or profits of such partnership, limited liability
company or joint venture or (c) the beneficial interest in such trust or
estate is at the time directly or indirectly owned or controlled by such
Person, by such Person and one or more of its other Subsidiaries or by one
or more of such Person's other Subsidiaries.
"Subsidiary Guarantors" means each Material Subsidiary of the
Borrower, from time to time, that is organized under the laws of a state of
the United States.
"Subsidiary Guaranty" has the meaning specified in Section
3.01(d)(vii).
"Surviving Debt" has the meaning specified in Section 4.01(q).
"Taxes" has the meaning specified in Section 2.12(a).
"Tax Finance Lease" means a lease not required, in accordance with
GAAP, to be recorded as a Capitalized Lease, but which is treated as a
financing lease for federal income tax purposes.
"Term Advance" has the meaning specified in Section 2.01(a).
"Term Borrowing" means a borrowing consisting of simultaneous Term
Advances of the same Type made by the Term Lenders.
"Term Commitment" means, with respect to any Term Lender at any
time, the amount set forth opposite such Lender's name on Schedule I hereto
under the caption "Term Commitment" or, if such Lender has entered into one
or more Assignments and Acceptances, set forth for such Lender in the
Register maintained by the Administrative Agent pursuant to Section 8.07(b)
as such Lender's "Term Commitment", as such amount may be reduced pursuant
to Section 2.04.
"Term Facility" means, at any time, the aggregate amount of the
Term Lenders' Term Commitments at such time.
"Term Lender" means any Lender that has a Term Advance.
"Term Note" means a promissory note of the Borrower payable to the
order of any Lender having a Term Commitment or a Term Advance, in
substantially the form of Exhibit A-1 to the Existing Credit Agreement
hereto as amended pursuant to Section 8.13 or in substantially the form of
Exhibit A-1 hereto, evidencing the indebtedness of the Borrower to such
Lender resulting from the Term Advance made or held by such Lender.
"Termination Date" means March 31, 2004.
"Type" refers to the distinction between Term Advances and
Revolving Credit Advances bearing interest at a rate based upon the Base
Rate and Term Advances and Revolving Credit Advances bearing interest at a
rate based upon the Eurodollar Rate.
"Unfunded Pension Liabilities" with respect to any Plan means the
excess, if any, of its accumulated benefit obligation, as determined in
accordance with Statement of Financial Accounting Standards No. 87 or any
successor thereto (based on interest, mortality and other relevant actuarial
assumptions used to fund such Plan as of its most recent actuarial
valuation), over the fair market value of its assets (as of such date).
"Unreimbursed Drawings" has the meaning specified in Section
2.03A(c)(i).
"Unused Revolving Credit Commitment" means, with respect to any
Revolving Credit Lender at any time, (a) such Lender's Revolving Credit
Commitment at such time, minus (b) the aggregate principal amount of all
Revolving Credit Advances made by such Lender under the Revolving Credit
Facility and outstanding at such time, minus (c) the Competitive Bid
Reduction applicable to such Lender pursuant to Section 2.01(b), and minus
(d) such Lender's pro rata share of the L/C Outstandings.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even though the right so to vote has been suspended by the happening
of such a contingency.
"Welfare Plan" means a welfare plan, as defined in Section 3(1) of
ERISA.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Part IV of ERISA.
"Working Capital" means current assets minus current liabilities,
excluding cash, Cash Equivalents, the current portion of long-term Debt, and
the aggregate outstanding principal amount of all Revolving Credit Advances
made under the Revolving Credit Facility.
SECTION 1.02. Computation of Time Periods. In this Agreement in
the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including" and the words
"to" and "until" each means "to but excluding".
SECTION 1.03. Accounting Terms and Determinations. Unless
otherwise specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with GAAP, applied on a basis consistent (except for changes
concurred in by the Borrower's independent public accountants) with the most
recent audited consolidated financial statements of the Borrower and its
Consolidated Subsidiaries delivered to the Lenders; provided that, if the
Borrower notifies the Administrative Agent that the Borrower wishes to amend
any covenant in Article V to eliminate the effect of any change in GAAP on
the operation of such covenant (or if the Administrative Agent notifies the
Borrower that the Required Lenders wish to amend Article V for such
purpose), then the Borrower's compliance with such covenant shall be
determined on the basis of GAAP in effect immediately before the relevant
change in GAAP became effective, until either such notice is withdrawn or
such covenant is amended in a manner satisfactory to the Borrower and the
Required Lenders.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances. (a) The Term Advances. On the
Amendment Effective Date the Term Advance made by each Term Lender under the
Existing Credit Agreement shall continue as an advance hereunder (a "Term
Advance"). Term Advances repaid or prepaid may not be reborrowed.
(b) The Revolving Credit Advances. On the Amendment Effective
Date each Revolving Credit Advance made by each Revolving Credit Lender
under the Existing Credit Agreement shall continue as an advance hereunder
and each Revolving Credit Lender severally agrees, on the terms and
conditions hereinafter set forth, to make additional advances (each a
"Revolving Credit Advance") to the Borrower from time to time on any
Business Day during the period from the Amendment Effective Date until the
Revolving Credit Termination Date, in an aggregate amount not to exceed at
any time outstanding such Lender's Revolving Credit Commitment on such
Business Day; provided that the aggregate amount of the Revolving Credit
Commitments of the Lenders shall be deemed used from time to time to the
extent of the aggregate amount of the Competitive Bid Advances then
outstanding and such deemed use of the aggregate amount of the Revolving
Credit Commitments shall be allocated among the Lenders ratably according to
their respective Revolving Credit Commitments (such deemed use of the
aggregate amount of the Revolving Credit Commitments being a "Competitive
Bid Reduction") and provided further that the aggregate amount of the
Revolving Credit Commitments of the Lenders shall be deemed used from time
to time to the extent of the aggregate amount of the L/C Outstandings and
such deemed use of the aggregate amount of the Revolving Credit Commitments
shall be allocated among the Lenders ratably according to their respective
Revolving Credit Commitments. Each Revolving Credit Borrowing shall be in
an aggregate amount not less than $10,000,000 or an integral multiple of
$1,000,000 in excess thereof (or, if less, an aggregate amount equal to the
amount by which the aggregate amount of a proposed Competitive Bid Borrowing
requested by the Borrower exceeds the aggregate amount of Competitive Bid
Advances offered to be made by the Lenders and accepted by the Borrower in
respect of such Competitive Bid Borrowing, if such Competitive Bid Borrowing
is made on the same date as such Revolving Credit Borrowing) and shall
consist of Advances made on the same day by the Revolving Credit Lenders
ratably according to their respective Revolving Credit Commitments. Within
the limits of each Revolving Credit Lender's Unused Revolving Credit
Commitment in effect from time to time, the Borrower may borrow, prepay
pursuant to Section 2.05(a) and reborrow under this Section 2.01(b).
(c) The Competitive Bid Advances. Each Lender severally agrees
that the Borrower may make Competitive Bid Borrowings from time to time on
any Business Day during the period from the Amendment Effective Date until
the date occurring seven days prior to the Revolving Credit Termination Date
in the manner set forth in Section 2.02(b); provided that, following the
making of each Competitive Bid Borrowing, the aggregate amount of the
Revolving Credit Advances and Competitive Bid Advances then outstanding
shall not exceed the aggregate amount of the Revolving Credit Commitments of
the Lenders (calculated without regard to any Competitive Bid Reduction).
Each Competitive Bid Borrowing shall be in an aggregate amount of
$10,000,000 or an integral multiple of $1,000,000 in excess thereof, subject
to the immediately preceding proviso. Within the limits and on the
conditions set forth in this Article II, the Borrower may from time to time
borrow under this Section 2.01(c), repay and reborrow under this Section
2.01(c), provided that a Competitive Bid Borrowing shall not be made within
seven Business Days (or such other period as the Borrower and the
Administrative Agent may agree) of the date of any other Competitive Bid
Borrowing.
SECTION 2.02. Making the Advances. (a) Committed Advances. (i)
Each Committed Borrowing shall be made on notice given not later than 11:00
A.M. (New York City time) on the date of a proposed Base Rate Borrowing or
the third Business Day prior to the date of a proposed Eurodollar Rate
Borrowing, by the Borrower to the Administrative Agent, which shall give to
each Lender prompt notice thereof by telecopier, telex or cable. Each such
notice of a Committed Borrowing (a "Notice of Committed Borrowing") shall be
by telecopier, telex or cable (or by telephone and confirmed immediately
thereafter by telecopier, telex or cable), in substantially the form of
Exhibit C-1 hereto, specifying therein the requested (A) date of such
Committed Borrowing, (B) Type of Advances comprising such Committed
Borrowing, (C) aggregate amount of such Committed Borrowing and (D) Interest
Period for each Eurodollar Rate Advance included in such Committed
Borrowing. In the case of any such proposed Committed Borrowing comprised
of Eurodollar Rate Advances, the Administrative Agent shall promptly notify
the Borrower and each Lender of the applicable interest rate under Section
2.06(a)(ii). Each Lender shall, before 1:00 P.M. (New York City time) on
the date of such Committed Borrowing, make available for the account of its
Applicable Lending Office to the Administrative Agent at the Administrative
Agent's Account, in same day funds, such Lender's ratable portion of such
Committed Borrowing. After the Administrative Agent's receipt of such funds
and upon fulfillment of the applicable conditions set forth in Article III,
the Administrative Agent will make such funds available by crediting the
Borrower's Account. Each Notice of Committed Borrowing shall be irrevocable
and binding on the Borrower.
(ii) The Borrower may not request a Committed Borrowing comprised
of Eurodollar Rate Advances or, pursuant to Section 2.15, convert Base Rate
Advances into Eurodollar Rate Advances or select a new Interest Period for
existing Eurodollar Rate Advances if, after the making or Conversion of such
Advances or the selection of such Interest Period, the number of outstanding
Committed Borrowings comprised of Eurodollar Rate Advances and having
different Interest Periods (whether of different duration or commencing on
different dates) would exceed ten.
(iii) Unless the Administrative Agent shall have received notice
from a Lender prior to the date of any Committed Borrowing under a Facility
under which such Lender has a Commitment that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such
Committed Borrowing, the Administrative Agent may assume, or at its option
request confirmation from such Lender, that such Lender has made such
portion available to the Administrative Agent on the date of such Committed
Borrowing in accordance with Section 2.02(a)(i) and the Administrative Agent
may, in reliance upon such assumption or confirmation (as the case may be),
make available to the Borrower on such date a corresponding amount. If and
to the extent that such Lender shall not have so made such ratable portion
available to the Administrative Agent, such Lender and the Borrower
severally agree to repay to the Administrative Agent forthwith on demand
such corresponding amount together with interest thereon, for each day from
the date such amount is made available to the Borrower until the date such
amount is repaid to the Administrative Agent, at (A) in the case of the
Borrower, the interest rate applicable at such time under Section 2.06 to
Advances comprising such Committed Borrowing and (B) in the case of such
Lender, the cost (expressed as a rate per annum) to the Administrative Agent
of funding such Lender's ratable portion; provided that, upon the request of
such Lender, the Administrative Agent shall provide such Lender with a
certificate as to the calculation of such amount. If such Lender shall
repay to the Administrative Agent such corresponding amount, such amount so
repaid shall constitute such Lender's Advance as part of such Committed
Borrowing for purposes of this Agreement.
(b) Competitive Bid Advances. (i) The Borrower may request a
Competitive Bid Borrowing by delivering to the Administrative Agent, by
telecopier or telex, confirmed immediately in writing, a notice of a
Competitive Bid Borrowing (a "Notice of Competitive Bid Borrowing"), in
substantially the form of Exhibit C-2 hereto, specifying therein (A) the
date of such proposed Competitive Bid Borrowing, (B) the aggregate amount of
such proposed Competitive Bid Borrowing, (C) the maturity date for repayment
of each Competitive Bid Advance to be made as part of such Competitive Bid
Borrowing (which maturity date may not be earlier than the date occurring
seven days after the date of such Competitive Bid Borrowing or later than
the Revolving Credit Termination Date), (D) the interest payment date or
dates relating thereto and (E) any other terms to be applicable to such
Competitive Bid Borrowing, not later than 11:00 A.M. (New York City time)
(x) at least one Business Day prior to the date of the proposed Competitive
Bid Borrowing, if the Borrower shall specify in the Notice of Competitive
Bid Borrowing that the rates of interest to be offered by the Lenders shall
be fixed rates per annum (the Competitive Bid Advances comprising any such
Competitive Bid Borrowing being referred to herein as "Fixed Rate Advances")
and (y) at least four Business Days prior to the date of the proposed
Competitive Bid Borrowing, if the Borrower shall instead specify in the
Notice of Competitive Bid Borrowing the basis to be used by the Lenders in
determining the rates of interest to be offered by them (the Competitive Bid
Advances comprising any such Competitive Bid Borrowing being referred to
herein as "LIBO CB Advances"). The Administrative Agent shall in turn
promptly notify each Lender of each request for a Competitive Bid Borrowing
received by it from the Borrower by sending such Lender a copy of the
related Notice of Competitive Bid Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to do
so, irrevocably offer to make one or more Competitive Bid Advances to the
Borrower as part of such proposed Competitive Bid Borrowing at a rate or
rates of interest specified by such Lender, in its sole discretion, by
submitting a notice, in the form of Exhibit C-3, to the Administrative Agent
(which shall give prompt notice thereof to the Borrower), before 9:30 A.M.
(New York City time) on the date of such proposed Competitive Bid Borrowing,
in the case of a Competitive Bid Borrowing consisting of Fixed Rate
Advances, and three Business Days before the date of such proposed
Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing
consisting of LIBO CB Advances, specifying (A) the minimum amount and
maximum amount of each Competitive Bid Advance which such Lender would be
willing to make as part of such proposed Competitive Bid Borrowing (which
amounts may, subject to the first proviso set forth in Section 2.01(c),
exceed such Lender's Revolving Credit Commitment, if any), (B) the rate or
rates of interest per annum therefor and (C) such Lender's Applicable
Lending Office with respect to such Competitive Bid Advance; provided that
if the Administrative Agent in its capacity as a Lender shall, in its sole
discretion, elect to make any such offer, it shall notify the Borrower of
such offer before 9:15 A.M. (New York City time) on the date on which notice
of such election is to be given to the Administrative Agent by the other
Lenders.
(iii) The Borrower shall, in turn, before 10:30 A.M. (New York
City time) on the date of such proposed Competitive Bid Borrowing, in the
case of a Competitive Bid Borrowing consisting of Fixed Rate Advances, and
before 10:30 A.M. (New York City time) three Business Days before the date
of such proposed Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing consisting of LIBO CB Advances, either:
(A) cancel such Competitive Bid Borrowing by giving the
Administrative Agent notice to that effect, or
(B) accept one or more of the offers made by any Lender or
Lenders pursuant to Section 2.02(b)(ii), in its sole discretion, by
giving notice to the Administrative Agent of the amount of each
Competitive Bid Advance (which amount shall be equal to or greater than
the minimum amount, and equal to or less than the maximum amount,
notified to the Borrower by the Administrative Agent on behalf of such
Lender for such Competitive Bid Advance pursuant to Section
2.02(b)(ii)) to be made by each Lender as part of such Competitive Bid
Borrowing, and reject any remaining offers made by Lenders pursuant to
Section 2.02(b)(ii) by giving the Administrative Agent notice to that
effect. If the Borrower accepts any offers made by Lenders pursuant to
Section 2.02(b)(ii), such offers shall be accepted in the order of the
lowest to highest interest rates or, if two or more Lenders offer to
make Competitive Bid Advances at the same interest rate, such offers,
if any, shall be accepted in proportion to the amount offered by each
such Lender at such interest rate.
(iv) If the Borrower notifies the Administrative Agent that such
Competitive Bid Borrowing is cancelled pursuant to Section 2.02(b)(iii)(A),
the Administrative Agent shall give prompt notice thereof to the Lenders and
such Competitive Bid Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers made by any
Lender or Lenders pursuant to Section 2.02(b)(iii)(B), the Administrative
Agent shall in turn promptly notify (A) each Lender that has made an offer
pursuant to Section 2.02(b)(ii) of the date and aggregate amount of such
Competitive Bid Borrowing and whether or not any offer or offers made by
such Lender pursuant to Section 2.02(b)(ii) have been accepted by the
Borrower and (B) each Lender that is to make a Competitive Bid Advance as
part of such Competitive Bid Borrowing of the amount of each Competitive Bid
Advance to be made by such Lender as part of such Competitive Bid Borrowing.
Each Lender that is to make a Competitive Bid Advance as part of such
Competitive Bid Borrowing shall, before 1:00 P.M. (New York City time) on
the date of such Competitive Bid Borrowing, make available for the account
of its Applicable Lending Office to the Administrative Agent at the
Administrative Agent's Account, in same day funds, such Lender's portion of
such Competitive Bid Borrowing. Upon fulfillment of the applicable
conditions set forth in Article III and after receipt by the Administrative
Agent of such funds, the Administrative Agent will make such funds available
to the Borrower by crediting the Borrower's Account. Promptly after each
Competitive Bid Borrowing the Administrative Agent will notify each Lender
of the amount of the Competitive Bid Borrowing, the consequent Competitive
Bid Reduction and the dates upon which such Competitive Bid Reduction
commenced and will terminate.
(vi) The Administrative Agent shall maintain at its address
referred to in Section 8.02 a copy of each Notice of Competitive Bid
Borrowing delivered by the Borrower and a register for the recordation of
the date, amount, maturity, interest rate, interest payment dates, other
terms and Lender of each Competitive Bid Advance accepted by the Borrower
from time to time pursuant to this Section 2.02(b) (the "Competitive Bid
Register"). The entries in the Competitive Bid Register shall be conclusive
and binding for all purposes, absent manifest error, and the Borrower, the
Administrative Agent and the Lenders may treat the entries recorded in the
Competitive Bid Register as evidence of Competitive Bid Advances made
pursuant to this Section 2.02(b). The Competitive Bid Register shall be
available for inspection by the Borrower or any Lender making a Competitive
Bid Advance at any reasonable time and from time to time upon reasonable
prior notice.
(vii) The indebtedness of the Borrower resulting from each
Competitive Bid Advance made to the Borrower as part of a Competitive Bid
Borrowing shall be evidenced by a master Competitive Bid Note of the
Borrower payable to the order of the Administrative Agent for the benefit of
the Lender making such Competitive Bid Advance.
(c) Funding Losses. The Borrower shall indemnify each Lender
against any loss, cost or expense incurred by such Lender as a result of any
failure by the Borrower to fulfill on or before the date specified in any
Notice of Borrowing for the applicable Borrowing the applicable conditions
set forth in Article III, including, without limitation, any loss, cost or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Lender to fund the Advance to be made by such
Lender as part of such Borrowing when such Advance, as a result of such
failure, is not made on such date.
(d) Several Obligations. The failure of any Lender to make the
Advance to be made by it as part of any Borrowing shall not relieve any
other Lender of its obligation, if any, hereunder to make its Advance on the
date of such Borrowing, but no Lender shall be responsible for the failure
of any other Lender to make the Advance to be made by such other Lender on
the date of any Borrowing.
SECTION 2.03. Repayment. (a) Term Advances. The Borrower shall
repay to the Administrative Agent for the ratable account of the Lenders
having Term Advances the outstanding principal amount of the Term Advances
on the following dates in the amounts indicated; provided that the last such
installment shall be in an amount sufficient to repay all amounts owed by
the Borrower under the Term Advances:
DATE AMOUNT
---- ------
March 31, 1999 12,500,000
June 30, 1999 12,500,000
September 30, 1999 12,500,000
December 31, 1999 12,500,000
March 31, 2000 25,000,000
June 30, 2000 25,000,000
September 30, 2000 25,000,000
December 31, 2000 25,000,000
March 31, 2001 37,500,000
June 30, 2001 37,500,000
September 30, 2001 37,500,000
December 31, 2001 37,500,000
March 31, 2002 37,500,000
June 30, 2002 37,500,000
September 30, 2002 37,500,000
December 31, 2002 37,500,000
March 31, 2003 37,500,000
June 30, 2003 37,500,000
September 30, 2003 37,500,000
December 31, 2003 37,500,000
March 31, 2004 93,750,000
----------
Total $693,750,000
============
(b) Revolving Credit Advances. The Borrower shall repay to the
Administrative Agent for the ratable account of the Lenders having Revolving
Credit Advances the aggregate principal amount of the Revolving Credit
Advances on the Revolving Credit Termination Date.
(c) Competitive Bid Advances. The Borrower shall repay to the
Administrative Agent for the account of each Lender that has made a
Competitive Bid Advance, on the maturity date of each Competitive Bid
Advance (such maturity date being that specified by the Borrower for
repayment of such Competitive Bid Advance in the related Notice of
Competitive Bid Borrowing delivered by the Borrower and recorded in the
Competitive Bid Register with respect to such Competitive Bid Advance), the
then unpaid principal amount of such Competitive Bid Advance.
SECTION 2.03A. Letters of Credit.
(a) Amount and Expiration. (i) Subject to the terms and
conditions of this Agreement, the Borrower may request that an L/C Issuer,
in its individual capacity, issue one or more standby L/Cs for the account
of the Borrower, provided, however, that no L/C shall be issued if, after
giving effect to the issuance of such L/C (x) the aggregate amount of all
L/C Outstandings and the aggregate amount of all Revolving Credit Advances
and Competitive Bid Advances then outstanding would exceed the aggregate
amount of the Revolving Credit Commitments of the Lenders at such time or
(y) the aggregate amount of all L/C Outstandings then outstanding would
exceed the L/C Sublimit. Subject to the foregoing, the Borrower may request
the issuance of L/C(s) under this Section 2.03A(a)(i), repay any drawings
thereunder and request the issuance of additional L/Cs under this
Section 2.03A(a)(i). For all purposes of this Agreement, reference to the
"issue" or "issuance" of any L/C or any L/C being "issued" shall include the
amendment, supplement or modification of any L/C, including, without
limitation, any increase in the amount thereof, or any extension or renewal
thereof.
(ii) Each L/C shall expire by its terms not later than the L/C
Expiration Date. Subject to the preceding sentence, each L/C shall expire
on or before the first anniversary of the date of such issuance; provided
that the expiry date of any L/C may be extended from time to time for a
period not exceeding one year (i) at the Borrower's request or (ii) if such
L/C so provides, automatically, in each case so long as such extension is
granted (or the last day on which notice can be given to prevent such
extension occurs) no earlier than three months before the then existing
expiry date thereof. No L/C may be denominated or drawable other than in
United States dollars.
(b) Notice and Issuance. (i) The Borrower shall give notice to
the applicable L/C Issuer and to the Administrative Agent, of a request for
issuance of any L/C not less than five (5) Business Days prior to the
proposed issuance date (which prescribed time period may be waived at the
option of the applicable L/C Issuer in the exercise of its sole discretion).
Each such notice (a "L/C Issuance Request") shall specify: (A) the requested
date of such issuance (which shall be a Business Day); (B) the maximum
amount of such L/C; (C) the expiration date of such L/C; (D) the purpose of
such L/C; (E) the name and address of the beneficiary of such L/C; (F) the
identity of the L/C Issuer for such L/C; and (G) the required documents
under any such L/C and, if one has been supplied by the beneficiary of such
L/C, the form of such L/C (which shall be acceptable to both of such L/C
Issuer and the Administrative Agent, in their respective sole discretion).
The making of each L/C Issuance Request shall be deemed to be a
representation and warranty by the Borrower that such L/C may be issued in
accordance with and will not violate the terms of Section 2.03A(a)(i)
hereof. Each L/C Issuance Request shall be accompanied by the Application
Documents, each duly completed and executed and delivered by the Borrower.
(ii) Upon acceptance of the form of the proposed L/C by the
applicable L/C Issuer and the Administrative Agent and upon fulfillment of
the conditions set forth above in this Section 2.03A(b) and the applicable
conditions in Article III hereof, such L/C Issuer shall issue such L/C and
provide notice thereof to the Administrative Agent. Promptly after
issuance, amendment or any extension of such L/C, such L/C Issuer shall
provide the Administrative Agent with copy of such L/C or amendment thereto.
(iii) Notwithstanding the foregoing, no L/C Issuer shall be under
any obligation to issue any L/C if at the time of such issuance:
(A) any order, judgment or decree of any
governmental authority or arbitrator shall purport by its
terms to enjoin or restrain such L/C Issuer from issuing such
L/C or any requirement of law applicable to such L/C Issuer
or any request or directive (whether or not having the force
of law) from any governmental authority with jurisdiction
over such L/C Issuer shall prohibit, or request that such L/C
Issuer refrain from, the issuance of letters of credit
generally or such L/C in particular, or shall impose upon
such L/C Issuer with respect to such L/C any requirement (for
which such L/C Issuer is not otherwise compensated) not in
effect on the date hereof, or any unreimbursed loss, cost or
expense which was not applicable, in effect or known to such
L/C Issuer as of the date hereof and which such L/C Issuer in
good faith deems material to it; or
(B) such L/C Issuer shall have received notice
from any Lender prior to the issuance of such L/C that one or
more of the applicable conditions specified in this
Section 2.03A(b) or in Article III are not then satisfied, or
that the issuance of such L/C would violate Section 2.01(b)
above.
(iv) Upon the request of any Lender, the applicable L/C Issuer
shall promptly deliver to such Lender the information specified in Sections
2.03A(b)(i)(A) through (D) above and copies of any L/Cs issued by such L/C
Issuer.
(v) Each L/C Issuer shall, on the last Business Day of each
calendar month, provide to the Administrative Agent a report of the L/C
Obligations with respect to the L/Cs issued by it, including the date of
issue, account party, amount, expiration date and reference number of each
L/C issued by it.
(vi) The relevant L/C Issuer shall give the Administrative Agent
at least three (3) Business Days' notice before such L/C Issuer extends (or
allows an automatic extension of) the expiry date of any L/C issued by it.
Such notice shall (i) identify such L/C, (ii) specify the date on which such
extension is to be made (or the last day on which such L/C Issuer can give
notice to prevent such extension from occurring) and (iii) specify the date
to which such expiry date is to be so extended. No L/C Issuer shall extend
(or allow the extension of) the expiry date of any L/C if (x) the extended
expiry date would be after the thirtieth day before the Revolving Credit
Termination Date or (y) such L/C Issuer shall have been notified by the
Administrative Agent or the Required Lenders expressly to the effect that
such issuance would violate the terms of Section 2.03A(a)(i) on the date
such L/C is to be extended.
(c) Reimbursement Obligations. (i) The applicable L/C Issuer
shall give prompt notice to the Administrative Agent and the Borrower of
each payment under an L/C by such L/C Issuer for drafts drawn or any other
amount paid or disbursed under an L/C. The Borrower shall be obligated to
reimburse the Administrative Agent, for the account of the applicable L/C
Issuer, in immediately available funds, on the day of each payment under an
L/C issued by such L/C Issuer or the date on which such L/C Issuer notifies
the Borrower of such payment, whichever is later, for drafts drawn and all
amounts paid or disbursed under each such L/C (all such amounts so drawn,
paid or disbursed until reimbursed are hereinafter referred to as
"Unreimbursed Drawings"); provided that if such notice is given after 11:00
a.m. (New York City time) on the later of such dates, such reimbursement
shall be due and payable on the next following Business Day (the date on
which it is due and payable being an "L/C Reimbursement Due Date"). If any
such Unreimbursed Drawings are not so reimbursed by 12:00 noon (New York
City time) on the related L/C Reimbursement Due Date, the Borrower's
reimbursement obligation in respect of such Unreimbursed Drawings shall be
funded on such date with the borrowing of Base Rate Advances (each such
advance a "Mandatory L/C Advance") in the full amount of the Unreimbursed
Drawings from all Lenders based on each Lender's pro rata share of the
Revolving Credit Commitment. The Administrative Agent shall promptly notify
the applicable L/C Issuer of the amount of any Unreimbursed Drawings and the
Administrative Agent shall promptly notify the Lenders of the amount of each
such Mandatory L/C Advance not later than 1:00 p.m. (New York City time) on
the date on which such Mandatory L/C Advance is to be made. Each such
Lender hereby irrevocably agrees to make Revolving Credit Advances pursuant
to each Mandatory L/C Advance in the amount, and not later than 3:00 p.m.
(New York City time) on the date, and in the manner specified in the
preceding sentence, notwithstanding (A) that the amount of the Mandatory L/C
Advance may not comply with the minimum amount for Advances otherwise
required hereunder, (B) whether any conditions specified in Article III are
then satisfied, (C) whether a Default or an Event of Default then exists,
(D) the date of such Mandatory L/C Advance and (E) any reduction in the
Revolving Credit Commitment after any such L/C was issued. In the event
that the Administrative Agent delivers the above-described notice to any
Lender later than 1:00 p.m. (New York City time) on the date of the required
Mandatory L/C Advance, then such Lender shall not be obligated to effect
such Mandatory L/C Advance until the next succeeding Business Day (but not
later than 12:00 noon (New York City time)).
(ii) Notwithstanding the foregoing, if at any time when a draft is
drawn under an L/C, there are not sufficient funds in any account of
Borrower with the applicable L/C Issuer or sufficient availability to permit
creation of Revolving Credit Advances sufficient to fund payment of the
related Unreimbursed Drawings in full in accordance with clause (i) above,
any funds advanced by an L/C Issuer and the other Lenders in payment thereof
shall be due and payable on the related L/C Reimbursement Date and shall
bear interest until paid in full at the Default Rate, such interest to be
payable on demand. In the event of any conflict, discrepancy or any
omission of terms provided herein between the terms established by the
applicable L/C Issuer in its Application Documents or otherwise and this
Agreement, the terms provided herein shall prevail. The obligations of the
Lenders in respect of any funds so advanced or to be advanced by the L/C
Issuer under Section 2.03A(c)(i) shall be as more particularly described in
Sections 2.03A(e)(ii) and (iii) hereof.
(d) General Unconditional Obligations. The L/C Obligations shall
be absolute, unconditional and irrevocable, and shall be performed strictly
in accordance with the terms of this Agreement and the Application
Documents, under all circumstances whatsoever, including, without
limitation, the following circumstances, whether relating to any one or more
L/Cs:
(i) any agreement between the Borrower and any beneficiary
or any agreement or instrument relating thereto (the "Beneficiary
Documents") proving to be forged, fraudulent, invalid, unenforceable or
insufficient in any respect;
(ii) any amendment or waiver of or any consent to departure
from all or any of the Beneficiary Documents;
(iii) the existence of any claim, setoff, defense or other
rights which the Borrower may have at any time against any beneficiary
or any transferee of any L/C (or any Persons for whom any applicable
beneficiary or any such transferee may be acting), the applicable L/C
Issuer, any other Lender, the Administrative Agent or any other Person,
whether in connection with this Agreement, the Beneficiary Documents or
any unrelated transaction;
(iv) any demand presented under any L/C (or any endorsement
thereon) proving to be forged, fraudulent, invalid, unenforceable or
insufficient in any respect or any statement therein being inaccurate
in any respect whatsoever;
(v) payment by the applicable L/C Issuer under any L/C
against presentation of a demand which does not comply with the terms
of such L/C, including, without limitation, the circumstances referred
to in clause (iv) above or the failure of any document to bear
reference or to bear adequate reference to such L/C, except to the
extent resulting from the gross negligence or willful misconduct of
such L/C Issuer;
(vi) the use to which any L/C may be put or any acts or
omission of any beneficiary in connection therewith; or
(vii) any other circumstances or happening whatsoever, whether
or not similar to any of the foregoing, except to the extent resulting
from the gross negligence or willful misconduct of the applicable L/C
Issuer.
(e) Participations by Lenders. (i) On the date of issuance of
each L/C the applicable L/C Issuer shall be deemed irrevocably and
unconditionally to have sold and transferred to each Lender (excluding, for
all purposes of this Section 2.03A(e), such L/C Issuer, which shall retain a
portion of such L/C based on its pro rata share of the Revolving Credit
Commitments) without recourse or warranty, and each Lender shall be deemed
to have irrevocably and unconditionally purchased and received from such L/C
Issuer, an undivided interest and participation, to the extent of such
Lender's pro rata share of the Revolving Credit Commitments in effect on the
date of such issuance, in such L/C, each substitute letter of credit, each
drawing made thereunder, the related Application Documents and all L/C
Obligations (other than fees under Section 2.03A(h)(ii) relating to such L/C
and all Loan Documents securing, guaranteeing, supporting, or otherwise
benefiting the payment of such L/C Obligation. Each L/C Issuer shall
furnish to any Lender, upon request, copies of any L/C and any Application
Documents as may be requested by such Lender.
(ii) In the event that any reimbursement obligation under
Section 2.03A(c) hereof is not paid to the applicable L/C Issuer with
respect to any L/C in full immediately or by a Mandatory L/C Advance from
all the Lenders pro rata pursuant to Section 2.03A(c)(i), such L/C Issuer
shall promptly notify the Administrative Agent to that effect, and the
Administrative Agent shall promptly notify the Lenders of the amount of such
reimbursement obligation and each such Lender shall immediately pay to the
Administrative Agent, for immediate payment to such L/C Issuer, in lawful
money of the United States and in immediately available funds, an amount
equal to such Lender's ratable portion of the amount of such unpaid
reimbursement obligation; provided, however, that no Lender shall be
responsible to pay any portion of an unpaid reimbursement obligation of any
other Lender.
(iii) The obligation of each Lender to make Revolving Credit
Advances in respect of each Mandatory L/C Advance and to make payments under
the preceding Section 2.03A(e)(ii) shall be absolute and unconditional and
irrevocable and not subject to any qualification or exception whatsoever and
shall be made in accordance with the terms and conditions of this Agreement
under all circumstances and shall not be subject to any conditions set forth
in Article III hereof or otherwise affected by any circumstance including,
without limitation, (A) the occurrence or continuance of a Default or Event
of Default; (B) any adverse change in the business condition (financial or
otherwise), operations, performance, properties or prospects of the
Borrower; (C) any breach of this Agreement or any Application Documents or
other Loan Documents by the Borrower or any Lender (other than a breach by
the relevant L/C Issuer arising from such L/C Issuer's gross negligence or
willful misconduct); (D) any set-off, counterclaim, recoupment, defense or
other right which such Lender or the Borrower may have at any time against
the applicable L/C Issuer, any other Lender or any beneficiary named in any
L/C in connection herewith or otherwise; (E) the validity, sufficiency or
genuineness of documents, or of any endorsement thereon, even if such
documents should prove to be in any or all respects invalid, insufficient,
fraudulent or forged; (F) any lack of validity or enforcement of this
Agreement or any of the Loan Documents; (G) the granting, surrender or
impairment of any security for the performance or observance of any of the
terms of any of the Loan Documents; or (H) any other circumstance, happening
or event whatsoever, whether or not similar to any of the foregoing. The
Borrower agrees that any Lender purchasing a participation in any L/C from a
L/C Issuer hereunder may, to the fullest extent permitted by law, exercise
all of its rights of payment with respect to such participation as fully as
if such Lender were the direct creditor of the Borrower in the amount of
such participation.
(iv) Promptly after the applicable L/C Issuer receives a payment
on account of a reimbursement obligation with respect to any L/C as to which
any other Lender has funded its participation pursuant to
Section 2.03A(e)(ii) above, such L/C Issuer shall promptly pay to the
Administrative Agent, and the Administrative Agent shall promptly pay to
each Lender which funded its participation therein, in lawful money of the
United States and in the kind of funds so received, an amount equal to such
Lender's ratable share thereof.
(v) If any payment received on account of any reimbursement
obligation with respect to an L/C and distributed to a Lender as a
participant under Section 2.03A(e)(i) is thereafter recovered from the
applicable L/C Issuer in connection with any bankruptcy or insolvency
proceeding relating to the Borrower or otherwise, each Lender which received
such distribution shall, upon demand by the Administrative Agent, repay to
such L/C Issuer such Lender's ratable share of the amount so recovered
together with an amount equal to such Lender's ratable share (according to
the proportion of (A) the amount of such Lender's required repayment to
(B) the total amount so recovered) of any interest or other amount paid or
payable by such L/C Issuer in respect of the total amount so recovered.
(f) Non-Liability. The Borrower assumes all risks of the acts or
omissions of any beneficiary or transferee of any L/C with respect to its
use of such L/C. Neither the Administrative Agent, any L/C Issuer nor any
other Lender, nor any of their respective officers or directors, shall be
liable or responsible for: (i) the use that may be made of any L/C or any
acts or omissions of any beneficiary or transferee in connection therewith;
(ii) the validity, sufficiency or genuineness of documents, or of any
endorsement thereon, even if such documents should prove to be in any or all
respects invalid, insufficient, fraudulent or forged; (iii) payment by the
applicable L/C Issuer against presentation of documents that do not comply
with the terms of an L/C, including failure of any documents to bear any
reference or adequate reference to an L/C, except that the Borrower shall
have a claim against such L/C Issuer, and such L/C Issuer shall be liable to
the Borrower, to the extent of any direct, but not consequential, damages
suffered by the Borrower that the Borrower proves were caused solely by
(A) such L/C Issuer's willful misconduct or gross negligence in determining
whether documents presented under any L/C comply with the terms of the L/C
or (B) such L/C Issuer's willful failure to make lawful payment under an L/C
after the presentation to it of a draft and documents and/or certificates
strictly complying with the terms and conditions of the L/C; (iv) for
errors, omissions, interruptions or delays in transmission or delivery of
any messages, by mail, cable, telegraph, telex or otherwise, whether or not
they are in cipher; (v) for errors in interpretation of technical terms;
(vi) for any loss or delay in the transmission or otherwise of any document
required in order to make a drawing under any such L/C or of the proceeds
thereof; and (vii) for any consequence arising from causes beyond the
control of such L/C Issuer, including, without limitation, any government
acts. None of the above shall affect, impair, or prevent the vesting of any
of such L/C Issuer's rights or powers hereunder. In furtherance and not in
limitation of the foregoing, the L/C Issuers may accept documents that
appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary. The
Uniform Customs and Practice for Documentary Credits as most recently
published by the International Chamber of Commerce shall be deemed a part of
this Section 2.03A as if incorporated herein in all respects and shall apply
to the L/Cs.
(g) Indemnification. In addition to amounts payable as elsewhere
provided in this Agreement, without duplication, the Borrower agrees to
indemnify and hold harmless the Administrative Agent and each Lender,
including each L/C Issuer, from and against any and all claims, damages,
losses, liabilities and expenses (including, without limitation, reasonable
fees and expenses of counsel) which any such Administrative Agent or Lender
may incur or be subject to as a consequence, direct or indirect, of the
issuance of any L/C or any action or proceeding relating to a court order,
injunction, or other process or decree restraining or seeking to restrain an
L/C Issuer or the Administrative Agent from paying any amount under any
applicable L/C or the failure of an L/C Issuer to honor a drawing under an
L/C as a result of any act or omission, whether rightful or wrongful of any
present or future de jure or de facto government or governmental authority,
except that no such Person shall be entitled to indemnification for matters
to the extent caused by such Person's gross negligence or willful
misconduct. Without modifying the foregoing, and anything contained herein
to the contrary notwithstanding, the Borrower shall use all reasonable
efforts to cause each L/C issued for its account to be canceled and returned
to the applicable L/C Issuer promptly upon its expiration.
(h) Letter of Credit and Fronting Fees. The Borrower agrees to
pay to (i) the Administrative Agent, for the account of the Lenders in
proportion to their Revolving Credit Commitments, a letter of credit fee for
the period from and including the Amendment Effective Date to the Revolving
Credit Termination Date equal to the Applicable Margin for Revolving Credit
Advances that bear interest at the Eurodollar Rate less 0.125% per annum on
the average daily L/C Outstandings, if any, during such period, such letter
of credit fee to be payable quarterly in arrears on the last Business Day of
each January, April, July and October of each year and on the Revolving
Credit Termination Date commencing on the first such date to occur after the
Amendment Effective Date and (ii) each L/C Issuer a fronting fee, not to
exceed 0.125% per annum on the average daily L/C Outstandings of such L/C
Issuer, in the amount and on the dates as specified in any fee letter
between the Borrower and each such L/C Issuer.
SECTION 2.04. Reduction of the Commitments. (a) Optional. The
Borrower shall have the right, upon at least three Business Days' prior
notice to the Administrative Agent, to terminate in whole or reduce ratably
in part the Term Commitments or the Unused Revolving Credit Commitments;
provided that each partial reduction shall be in an aggregate amount of
$10,000,000 or an integral multiple of $1,000,000 in excess thereof, and
each reduction of the Term Commitment shall be applied pro rata to reduce
the amounts of each installment due pursuant to Section 2.03(a). No
Commitment amount so terminated shall be reinstated.
(b) Mandatory. (i) Dispositions, Etc. The Revolving Credit
Commitments shall be reduced, on a pro rata basis for each Lender, by an
amount equal to the amounts required to be applied to reduce the Revolving
Credit Facility pursuant to Section 2.05(b).
(ii) Revolving Credit Termination Date. The Revolving Credit
Commitments shall terminate in whole on the Revolving Credit Termination
Date.
SECTION 2.05. Prepayments. (a) Optional. The Borrower may,
upon at least one Business Day's notice to the Administrative Agent, in the
case of Base Rate Advances, and three Business Days' notice to the
Administrative Agent, 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 the Committed Advances comprising part of the same Borrowing in
whole or ratably 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 all Committed Advances that
constitute part of such Borrowing is less, such aggregate principal amount)
and (y) in the event any such prepayment of Eurodollar Rate Advances is not
made on the last day of an Interest Period, the Borrower shall be obligated
to reimburse the Lenders in respect thereof pursuant to Section 8.04(b).
Each such prepayment of any Term Advances shall be applied to the
installments thereof in inverse order of maturity. The Borrower shall have
no optional right to prepay any principal amount of any Competitive Bid
Advance unless, and then only on the terms, specified by the Borrower for
such Competitive Bid Advance in the related Notice of Competitive Bid
Borrowing delivered by the Borrower and set forth in the Competitive Bid
Register with respect to such Competitive Bid Advance.
(b) Mandatory. (i) Dispositions. The Borrower shall, as
promptly as practicable after the date of receipt by the Borrower or any of
its Subsidiaries of Net Cash Proceeds from any Disposition (other than the
sale of capital stock of the Borrower), which Net Cash Proceeds (A) exceed
$1,000,000 for any single transaction or series of related transactions, and
(B) when aggregated with all other Net Cash Proceeds from Dispositions with
Net Cash Proceeds in excess of $1,000,000 for any single transaction or
series of related transactions received during the term of this Agreement,
exceed $25,000,000, apply an amount equal to 100% of the amount of Net Cash
Proceeds of such Disposition, if the Borrower or such Subsidiary does not
reinvest, within one year of such Disposition, such Net Cash Proceeds in
productive assets of a kind used or usable in the business of the Borrower
or such Subsidiary, as follows: First, to the Term Advances, in prepayment
of the installments thereof pro rata, and second, to the Revolving Credit
Facility, as a reduction in the Revolving Credit Commitments.
(ii) Debt Issuance. The Borrower shall, on the date of receipt of
the Net Cash Proceeds from the sale and issuance by the Borrower or any of
its Subsidiaries of any Debt (other than Debt permitted pursuant to Section
5.02(j) (other than Sections 5.02(j)(ii)(A) and 5.02(j)(ix)), apply an
amount equal to 100% of such Net Cash Proceeds as follows: (A) First, to
the Term Advances, in prepayment of the installments thereof, (1) first, 50%
of such prepayment to be applied to such installments in the inverse order
of maturity and (2) second, 50% of such prepayment to be applied to such
installments pro rata, and (B) Second, to the Revolving Credit Facility, as
a reduction in the Revolving Credit Commitments.
(iii) Equity Issuance. The Borrower shall, on the date of
receipt of the Net Cash Proceeds from the sale and issuance by the Borrower
or any of its Subsidiaries of any capital stock, but only to the extent that
Net Cash Proceeds when aggregated with all other Net Cash Proceeds from the
Preferred Stock Offering and any other sale of capital stock received on or
after the date of this Agreement exceed $250,000,000, apply an amount equal
to (A) 100% of such Net Cash Proceeds in excess of $250,000,000 and less
than or equal to $500,000,000 as follows: First, to pay the Roche Debt,
second, the excess, if any, to prepay $50,000,000 of Term Advances to be
applied to installments thereof pro rata, and third, to the Revolving Credit
Facility, to prepay Revolving Credit Advances and (B) 50% of such Net Cash
Proceeds in excess of $500,000,000 as follows: First, to the Term Advances,
in prepayment of the installments thereof pro rata, and second, to the
Revolving Credit Facility, as a reduction in the Revolving Credit
Commitments.
(iv) Excess Cash Flow. The Borrower shall, within 105 days after
the end of each fiscal year of the Borrower, apply an amount equal to (A) if
the Leverage Ratio for such fiscal year is equal or greater than 3:5:1.0,
75% of Excess Cash Flow for such fiscal year or (B) if the Leverage Ratio
for such fiscal year is less than 3:5:1.0 but greater than 2:5:1.0, 50% of
Excess Cash Flow for such fiscal year, in each case as follows: First, to
the Term Advances, in prepayment of the installments thereof, pro rata, and
second, to the Revolving Credit Facility, as a reduction in the Revolving
Credit Commitments.
(v) Deferral. If any application of Net Cash Proceeds required
by clauses (i) through (iv) above would otherwise require prepayment of
Eurodollar Rate Advances or portions thereof prior to the last day of a then
current Interest Period relating thereto, such reduction shall, unless the
Administrative Agent otherwise notifies the Borrower upon the instructions
of the Required Lenders, be deferred to the last day of the related Interest
Period.
(vi) Overadvance. The Borrower shall, on each Business Day,
prepay an aggregate principal amount of the Revolving Credit Advances (and
any Competitive Bid Advances) equal to the amount by which the aggregate
principal amount of the Revolving Credit Advances (and any Competitive Bid
Advances) plus the L/C Outstandings exceeds the Revolving Credit Facility on
such Business Day.
(vii) Accrued Interest. All prepayments under this Section
2.05(b) shall be made together with accrued interest to the date of such
prepayment on the principal amount prepaid.
SECTION 2.06. Interest. (a) Ordinary Interest on Committed
Advances. The Borrower shall pay interest on the unpaid principal amount of
each Committed Advance owing to each Lender 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
in effect from time to time, payable in arrears quarterly on the last
Business Day of each January, April, July and October during such
periods and on the date such Base Rate Advance shall be Converted 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 (A) the last day of
such Interest Period and (B) if such Interest Period has a duration of
more than three months, on each day that occurs during such Interest
Period every three months from the first day of such Interest Period
(clause (iii) of the definition of "Interest Period" set forth in
Section 1.01 shall apply to payments required by this clause (B), as if
the three-month period referred to herein constitutes an "Interest
Period").
(b) Ordinary Interest on Competitive Bid Advances. The Borrower
shall pay interest on the unpaid principal amount of each Competitive Bid
Advance from the date of such Competitive Bid Advance to the date the
principal amount of such Competitive Bid Advance is repaid in full, at the
rate of interest for such Competitive Bid Advance specified by the Lender
making such Competitive Bid Advance in its notice with respect thereto
delivered pursuant to Section 2.02(b)(ii), payable on the interest payment
date or dates specified by the Borrower for such Competitive Bid Advance in
the related Notice of Competitive Bid Borrowing delivered by the Borrower,
as recorded in the Competitive Bid Register with respect to such Competitive
Bid Advance.
(c) 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 Section 2.06(a)(i).
SECTION 2.07. Interest Rate Determination. (a) The
Administrative Agent shall give prompt notice to the Borrower and each
Lender of the applicable interest rate determined by the Administrative
Agent for purposes of Section 2.06(a) and of any British Bankers'
Association Settlement Rates or Reference Lenders rates obtained by the
Administrative Agent for the purposes of determining the applicable interest
rate under Section 2.06(a).
(b) If neither the British Bankers' Association Settlement Rates
nor the rates of the Reference Lenders are timely available to the
Administrative Agent for determining the Eurodollar Rate, the Administrative
Agent shall forthwith notify the Borrower and each Lender that the interest
rate cannot be determined for such Eurodollar Rate Advances, whereupon (i)
each 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 Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended until the Administrative Agent
shall notify the Borrower that the Administrative Agent has determined that
the circumstances causing such suspension no longer exist.
(c) If the Required Lenders notify the Administrative Agent that
the Eurodollar Rate for any Interest Period for such Eurodollar Rate
Advances will not adequately and fairly reflect the cost to such Lenders of
making, funding or maintaining their pro rata shares of such Eurodollar Rate
Advances for such Interest Period, the Administrative Agent shall forthwith
so notify the Borrower and the Lenders, whereupon (i) each 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 Lenders to make, or to Convert Advances into, Eurodollar
Rate Advances shall be suspended until the Administrative Agent shall notify
the Borrower that such Lenders have 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 Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01,
the Administrative Agent will forthwith so notify the Borrower and the
Lenders and the Interest Period for such Eurodollar Rate Advances will be
one month.
SECTION 2.08. Fees. (a) Agency and Facility Fees. In addition
to the fees set forth in Section 2.03A(h), the Borrower agrees (i) to pay to
the Administrative Agent, for its own account, an agency fee at the rate
specified in the fee letter dated December 13, 1994 between the Borrower and
CSFB, as the same may be amended or otherwise modified from time to time,
for the period from and including the Closing Date to the Termination Date,
such agency fee to be payable in advance on the Closing Date and on each
anniversary of the Closing Date and (ii) to pay to the Administrative Agent,
for distribution to the Lenders in proportion to their Revolving Credit
Commitments (without giving effect to any Competitive Bid Reduction), a
facility fee for the period from and including the Amendment Effective Date
to the Revolving Credit Termination Date, equal to the applicable Facility
Fee Percentage per annum on the average daily Revolving Credit Commitments
in effect (without reduction for any Advances that may be outstanding at any
time or from time to time), such facility fee to be payable quarterly in
arrears on the last Business Day of each January, April, July and October of
each year and on the Revolving Credit Termination Date, commencing on the
first such date to occur after the Amendment Effective Date.
(b) Other Fees. Without duplication of any amount specified in
Section 2.08(a), the Borrower shall pay to the Administrative Agent such
fees as are due to the Administrative Agent for its own account as set forth
in the fee letter dated December 13, 1994 between the Borrower and CSFB, as
the same may be amended or otherwise modified from time to time.
SECTION 2.09. Increased Costs. (a) Except as to taxes, levies,
imposts, deductions, charges, withholdings or liabilities with respect
thereto (it being understood that the Borrower shall not have any liability
for any taxes, levies, imposts, deductions, charges, withholdings or
liabilities with respect thereto, except as provided in Section 2.12), if,
due to either (i) the introduction of or any change (other than any change
by way of imposition or increase of reserve requirements included in the
Eurodollar Rate Reserve Percentage) in or in the interpretation of any law
or regulation or (ii) the compliance by any Lender with any guideline or
request from any central bank or other governmental authority in any case
introduced, changed, interpreted or requested after the date hereof (whether
or not having the force of law), there shall be (x) imposed, modified or
deemed applicable any reserve, special deposit or similar requirement
against assets held by, or deposits in or for the account of, any Lender or
(y) imposed on any Lender any other condition relating to this Agreement,
any L/C or the Advances made by it, and the result of any event referred to
in clause (x) or (y) shall be to increase the cost to such Lender of
agreeing to make or making, funding or maintaining any L/C or Eurodollar
Rate Advances or LIBO CB Advances, then the Borrower shall from time to
time, within 15 days after demand by such Lender (with a copy of such demand
to the Administrative Agent) made within 60 days after the first date on
which such Lender has actual knowledge that it is entitled to make demand
for payment under this Section 2.09(a), pay to the Administrative Agent for
the account of such Lender additional amounts sufficient to compensate such
Lender for such increased cost; provided, however, that if such Lender fails
to so notify the Borrower within such 60-day period, such increased cost
shall commence accruing on such later date on which the Lender notifies the
Borrower; provided further that such Lender agrees to use its best efforts
(consistent with its internal policy and legal and regulatory restrictions)
to designate a different Applicable Lending Office if the making of such a
designation would avoid the need for, or reduce the amount of, such
increased cost and would not, in the reasonable judgment of such Lender, be
otherwise disadvantageous to such Lender. A certificate as to the amount of
such increased cost, submitted to the Borrower and the Administrative Agent
by such Lender, shall be conclusive and binding for all purposes, absent
manifest error.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental or monetary authority in regard to capital adequacy (whether or
not having the force of law), in any case in which such law, regulation,
guideline or request became effective or was made after the date hereof, has
or would have the effect of reducing the rate of return on the capital of,
or maintained by, such Lender or any corporation controlling such Lender as
a consequence of such Lender's Advances or Commitments hereunder and other
commitments of this type, by increasing the amount of capital required or
expected to be maintained by such Lender or any corporation controlling such
Lender, to a level below that which such Lender or any corporation
controlling such Lender could have achieved but for such adoption,
effectiveness, change or compliance (taking into account such Lender's or
such corporation's policies with respect to capital adequacy), by an amount
deemed by such Lender to be material, then the Borrower shall, from time to
time, pay such Lender, within 15 days after demand by such Lender (with a
copy of such demand to the Administrative Agent) made within 60 days after
the first date on which such Lender has actual knowledge that it is entitled
to make demand for payment under this Section 2.09(b) of such reduction in
return, such additional amount as may be specified by such Lender as being
sufficient to compensate such Lender for such reduction in return, to the
extent that such Lender reasonably determines such reduction to be
attributable to the existence of such Lender's commitment to lend hereunder;
provided, however, that if such Lender fails to so notify the Borrower
within such 60-day period, such amounts shall commence accruing on such
later date on which the Lender notifies the Borrower. A certificate as to
such amounts submitted to the Borrower and the Administrative Agent by such
Lender shall be conclusive and binding for all purposes, absent manifest
error.
SECTION 2.10. Illegality. Notwithstanding any other provision of
this Agreement, if on or after the date hereof 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 any Lender or its Eurodollar Lending Office to perform
its obligations hereunder to make Eurodollar Rate Advances or LIBO CB
Advances or to fund or maintain Eurodollar Rate Advances or LIBO CB Advances
hereunder, then, upon written notice by such Lender to the Borrower (with a
copy to the Administrative Agent), (i) each Eurodollar Rate Advance and LIBO
CB Advance of such Lender will automatically Convert into a Base Rate
Advance and (ii) the obligation of such Lender to make, or to Convert Base
Rate Advances into, Eurodollar Rate Advances shall be suspended until such
Lender shall notify the Borrower (with a copy to the Administrative Agent)
that the circumstances causing such suspension no longer exist; provided,
however, that such Lender shall designate a different Eurodollar Lending
Office if the making of such a designation would avoid the need for giving
such notice and would not, in the judgment of such Lender, be otherwise
disadvantageous to such Lender.
For purposes of this Section 2.10, a notice to the Borrower by a
Lender 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 such Lender 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 2.11. Payments and Computations. (a) The Borrower shall
make each payment hereunder and under the Notes not later than 11:00 A.M.
(New York City time) on the day when due in U.S. dollars to the
Administrative Agent at the Administrative Agent's Account in same day
funds. The Administrative Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal or interest or
facility or letter of credit fees ratably (other than amounts payable with
respect to Competitive Bid Advances or pursuant to Section 2.03A(h)(ii),
2.09 or 2.12) to the Lenders for the account of their respective Applicable
Lending Offices, and like funds relating to the payment of any other amount
(including Competitive Bid Advances) payable to any applicable Lender to
such Lender for the account of its Applicable Lending Office, in each case
to be applied in accordance with the terms of this Agreement. Upon its
acceptance of an Assignment and Acceptance and recording of the information
contained therein in the Register pursuant to Section 8.07(c), from and
after the effective date specified in such Assignment and Acceptance, the
Administrative Agent shall make all payments hereunder and under the Notes
in respect of the interest assigned thereby to the Lender assignee
thereunder, and the parties to such Assignment and Acceptance shall make all
appropriate adjustments in such payments for periods prior to such effective
date directly between themselves.
(b) The Borrower hereby authorizes each Lender, if and to the
extent payment of principal, interest or fees owed to such Lender is not
made when due hereunder or under the Note or Notes held by such Lender, to
charge from time to time against any or all of the Borrower's accounts with
such Lender any amount so due.
(c) All computations of interest based on the Eurodollar Rate or
the Federal Funds Rate and of facility and letter of credit fees shall be
made by the Administrative Agent on the basis of a year of 360 days, and all
computations of interest based on CSFB's base lending rate shall be made by
the Administrative Agent 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 facility fees are payable. Each determination by the
Administrative Agent of an interest rate hereunder shall be conclusive and
binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under any 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
facility fees, as the case may be; provided, however, if such extension
would cause payment of interest on or principal of Eurodollar Rate Advances
or LIBO CB Advances to be made in the next following calendar month, such
payment shall be made on the next preceding Business Day.
(e) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Lenders hereunder or under any Note that the Borrower will not make such
payment in full, the Administrative Agent may assume, or at its option
request confirmation from the Borrower, that the Borrower has made such
payment in full to the Administrative Agent on such date and the
Administrative Agent may, in reliance upon such assumption, cause to be
distributed to each Lender on such due date an amount equal to the amount
then due such Lender. If and to the extent the Borrower shall not have so
made such payment in full to the Administrative Agent, each Lender shall
repay to the Administrative Agent forthwith on demand such amount
distributed to such Lender together with interest thereon, for each day from
the date such amount is distributed to such Lender until the date such
Lender repays such amount to the Administrative Agent, at the Federal Funds
Rate.
(f) If the Administrative Agent receives funds for application to
the Obligations under the Loan Documents under circumstances for which the
Loan Documents do not specify the Advances or the Facility to which, or the
manner in which, such funds are to be applied, the Administrative Agent may,
but shall not be obligated to, elect to distribute such funds to each Lender
ratably in accordance with such Lender's proportionate share of the
principal amount of all outstanding Advances then outstanding, in repayment
or prepayment of such of the outstanding Advances or other Obligations owed
to such Lender, and for application to such principal installments, as the
Administrative Agent shall direct.
SECTION 2.12. Taxes. (a) Any and all payments by the Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.11,
free and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Lender and
the Administrative Agent, (i) taxes imposed on its income, and franchise
taxes imposed on it, by the United States (other than United States
withholding taxes) or the jurisdiction under the laws of which such Lender
or the Administrative Agent (as the case may be) is organized or any
political subdivision or taxing authority thereof or therein, (ii) taxes
imposed on its income, and franchise taxes imposed on it, by the
jurisdiction of such Lender's or the Administrative Agent's principal office
or Applicable Lending Office, or in the case of any foreign jurisdiction
that imposes taxes on the basis of management and control or other concept
of principal residence, by the jurisdiction in which such Lender or the
Administrative Agent is so resident, or any political subdivision or taxing
authority thereof or therein and (iii) United States withholding tax payable
with respect to payments hereunder under laws (including, without
limitation, any statute, treaty, ruling, determination or regulation) in
effect on the Initial Date with respect to such Lender or the Administrative
Agent, but not excluding any United States withholding tax (including backup
withholding taxes) payable as a result of any change in such laws occurring
after the Initial Date (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred
to as "Taxes"). If the Borrower shall be required by law to deduct any
Taxes from or in respect of any sum payable hereunder or under any Note to
any Lender or the Administrative Agent, (i) the sum payable shall be
increased as may be necessary so that after making all required deductions
of Taxes (including deductions of Taxes applicable to additional sums
payable under this Section 2.12) such Lender or the Administrative Agent (as
the case may be) receives an amount equal to the sum it would have received
had no such deductions of Taxes been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law; provided, however, that any such Lender shall designate a different
Eurodollar Lending Office if, in the judgment of such Lender, such
designation would avoid the need for, or reduce the amount of, any Taxes
required to be deducted from or in respect of any sum payable hereunder to
such Lender or the Administrative Agent and would not, in the judgment of
such Lender, be otherwise disadvantageous to such Lender.
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or under the Notes
or from the execution, delivery or registration of, or otherwise with
respect to, this Agreement or the Notes (hereinafter referred to as "Other
Taxes").
(c) The Borrower will indemnify each Lender and the
Administrative Agent for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed by any jurisdiction on
amounts payable under this Section 2.12) paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including
penalties, additions to tax, interest and costs and expenses (including
reasonable attorneys' fees and expenses)) arising therefrom or with respect
thereto; provided that, in the event such Lender or the Administrative
Agent, as the case may be, successfully contests the assessment of such
Taxes or Other Taxes or any liability arising therefrom or with respect
thereto, such Lender or the Administrative Agent shall refund, to the extent
of any refund or credit thereof made to such Lender or the Administrative
Agent, any amounts paid by the Borrower under this Section 2.12 in respect
of such Taxes, Other Taxes or liabilities arising therefrom or with respect
thereto. Each Lender and the Administrative Agent agrees that it will
contest such Taxes, Other Taxes or liabilities if (i) the Borrower furnishes
to it an opinion of reputable tax counsel (such opinion and such counsel to
be acceptable to such Lender or the Administrative Agent) to the effect that
such Taxes or Other Taxes were wrongfully or illegally imposed and (ii) such
Lender or the Administrative Agent determines, in its sole discretion, that
it would not be materially disadvantaged or prejudiced as a result of such
contest. This indemnification shall be made within 30 days from the date
such Lender or the Administrative Agent (as the case may be) makes written
demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower will furnish to the Administrative Agent, at its address referred
to in Section 8.02, appropriate evidence of payment thereof. If no Taxes
are payable in respect of any payment hereunder or under the Notes by the
Borrower from an account or branch outside the United States or on behalf of
the Borrower by a payor that is not a United States person, the Borrower
will furnish to the Administrative Agent, at such address, a certificate
from each appropriate taxing authority, or an opinion of counsel acceptable
to the Administrative Agent, in either case stating that such payment is
exempt from or not subject to Taxes. For purposes of this Section 2.12, the
terms "United States" and "United States person" shall have the meanings
specified in Section 7701 of the Code.
(e) Each Lender organized under the laws of a jurisdiction
outside the United States and the Administrative Agent, if organized under
the laws of a jurisdiction outside the United States, shall, on or prior to
the Initial Date and from time to time thereafter if requested in writing by
the Borrower or the Administrative Agent (but only so long thereafter as
such Lender or the Administrative Agent remains lawfully able to do so),
provide the Borrower and (in the case of any such Lender other than the
Administrative Agent) the Administrative Agent with two duly completed
copies of Internal Revenue Service form 1001 or 4224, as appropriate, or any
successor form prescribed by the Internal Revenue Service, certifying that
such Lender or the Administrative Agent is entitled to benefits under an
income tax treaty to which the United States is a party that reduces the
rate of withholding tax on payments under this Agreement or the Notes or
certifying that the income receivable pursuant to this Agreement or the
Notes is effectively connected with the conduct of a trade or business in
the United States. To the extent permitted by law, as an alternative to
form 1001 or 4224, each such Lender or the Administrative Agent shall so
provide the Borrower and (in the case of any such Lender other than the
Administrative Agent) the Administrative Agent with two duly completed
copies of Internal Revenue Service form W-8, or any successor form
prescribed by the Internal Revenue Service, certifying that such Lender or
the Administrative Agent is exempt from United States federal withholding
tax pursuant to Sections 871(h) or 881(c) of the Code, together with an
annual certificate stating that such Lender is not a Person described in
Sections 871(h)(3) or 881(c)(3) of the Code.
(f) For any period with respect to which the Administrative Agent
or a Lender has failed to provide the Borrower with the appropriate forms
described in subsection (e) above (other than if such failure is due to a
change in law occurring after the date on which such person was originally
required to provide such forms, or if such forms are otherwise not required
under subsection (e) above), the Administrative Agent or such Lender shall
not be entitled to increased payments or indemnification under subsection
(a) or (c) above with respect to Taxes imposed by the United States;
provided, however, that should the Administrative Agent or a Lender become
subject to Taxes because of its failure to deliver a form required
hereunder, the Borrower shall take such steps as the Administrative Agent or
such Lender shall reasonably request to assist the Lender to recover such
Taxes if, in the judgment of the Borrower such steps would avoid the need
for, or reduce the amount of, any Taxes required to be deducted from or in
respect of any sum payable hereunder to the Administrative Agent or such
Lender and would not, in the judgment of the Borrower, be disadvantageous or
prejudicial to the Borrower.
(g) Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower
contained in this Section 2.12 shall survive the payment in full of
principal and interest hereunder and under the Notes.
(h) If a Lender shall change its Applicable Lending Office other
than (i) at the request of the Borrower or (ii) at a time when such change
would not result in this Section 2.12 requiring the Borrower to make a
greater payment than if such change had not been made, such Lender shall not
be entitled to receive any greater payment under this Section 2.12 than such
Lender would have been entitled to receive had it not changed its Applicable
Lending Office.
SECTION 2.13. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of
any right of set-off, or otherwise) on account of the Advances owing to it
(other than pursuant to Section 2.09 or 2.12 or on account of any
Competitive Bid Advances owing to it) in excess of its ratable share of
payments on account of the Advances obtained by all the Lenders, such Lender
shall forthwith purchase from the other Lenders such participations in the
Advances owing to them as shall be necessary to cause such purchasing Lender
to share the excess payment ratably with each of them; provided, however,
that, if all or any portion of such excess payment is thereafter recovered
from such purchasing Lender, such purchase from each Lender shall be
rescinded and such Lender shall repay to the purchasing Lender the purchase
price to the extent of such recovery together with an amount equal to such
Lender's ratable share (according to the proportion of (i) the amount of
such Lender's required repayment to (ii) the total amount so recovered from
the purchasing Lender) of any interest or other amount paid or payable by
the purchasing Lender in respect of the total amount so recovered. The
Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 2.13 may, to the fullest extent permitted by
law, exercise all its rights of payment (including the right of set-off)
with respect to such participation as fully as if such Lender were the
direct creditor of the Borrower in the amount of such participation.
SECTION 2.14. Removal of Lender. In the event that any Lender
demands payment of costs or additional amounts pursuant to Section 2.09 or
Section 2.12 or asserts pursuant to Section 2.10 that it is unlawful for
such Lender to make Eurodollar Rate Advances, then (subject to such Lender's
right to rescind such demand or assertion within ten days after the notice
from the Borrower referred to below) the Borrower may, upon 20 days' prior
written notice to such Lender and the Administrative Agent, elect to cause
such Lender to assign its Advances and Commitments in full to an assignee
institution selected by the Borrower that meets the criteria of an Eligible
Assignee and is reasonably satisfactory to the Administrative Agent, so long
as such Lender receives payment in full of the outstanding principal amount
of all Advances made by it and all accrued and unpaid interest thereon and
all other amounts due and payable to such Lender as of the date of such
assignment (including without limitation amounts owing pursuant to Section
2.09 or 2.12), and in such case such Lender agrees to make such assignment,
and such assignee shall agree to accept such assignment and assume all
obligations of such Lender hereunder, in accordance with Section 8.07.
SECTION 2.15. Conversion of Advances. (a) Optional. The
Borrower may on any Business Day, upon notice given to the Administrative
Agent not later than 11:00 a.m. (New York City time) on the third Business
Day prior to the date of the proposed Conversion and subject to the
provisions of Sections 2.07 and 2.09, Convert all or any portion of the
Committed Advances of one Type comprising the same Borrowing into Committed
Advances of the other Type; provided, however, that any Conversion of
Eurodollar Rate Advances into Base Rate Advances shall be made on, and only
on, the last day of an Interest Period for such Eurodollar Rate Advances,
and any Conversion of Base Rate Advances into Eurodollar Rate Advances shall
be subject to the limitation set forth in Section 2.02(a)(ii) 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 Committed Advances to be Converted and (iii) if such
Conversion is into Eurodollar Rate Advances, the duration of the initial
Interest Period for such Committed Advances. 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 Eurodollar Rate Advances comprising any Committed
Borrowing shall be reduced, by payment or prepayment or otherwise, to less
than $10,000,000, such Advances shall automatically Convert into Base Rate
Advances.
(ii) Upon the occurrence and during the continuance of any
Event of Default (or, in the case of any involuntary proceeding described in
Section 6.01(e), a Default), (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
Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall
be suspended.
SECTION 2.16. Defaulting Lenders. (a) In the event that, at any
one time, (i) any Lender shall be a Defaulting Lender, (ii) such Defaulting
Lender shall owe a Defaulted Advance to the Borrower and (iii) the Borrower
shall be required to make any payment hereunder or under any other Loan
Document to or for the account of such Defaulting Lender, then the Borrower
may, so long as no Default shall occur or be continuing at such time and to
the fullest extent permitted by applicable law, set off and otherwise apply
the Obligation of the Borrower to make such payment to or for the account of
such Defaulting Lender against the Obligation of such Defaulting Lender to
make such Defaulted Advance. In the event that the Borrower shall so set
off and otherwise apply the Obligation of the Borrower to make any such
payment against the Obligation of such Defaulting Lender to make any such
Defaulted Advance on any date, the amount so set off and otherwise applied
by the Borrower shall constitute for all purposes of this Agreement and the
other Loan Documents a Committed Advance by such Defaulting Lender made on
such date under the Facility pursuant to which such Defaulted Advance was
originally required to have been made pursuant to Section 2.01. Such
Committed Advance shall be a Base Rate Advance and shall be considered, for
all purposes of this Agreement, to comprise part of the Committed Borrowing
in connection with which such Defaulted Advance was originally required to
have been made pursuant to Section 2.01, even if the other Committed
Advances comprising such Committed Borrowing shall be Eurodollar Advances on
the date such Committed Advance is deemed to be made pursuant to this
subsection (a). The Borrower shall notify the Administrative Agent at any
time the Borrower reduces the amount of the Obligation of the Borrower to
make any payment otherwise required to be made by it hereunder or under any
other Loan Document as a result of the exercise by the Borrower of its right
set forth in this subsection (a) and shall set forth in such notice (A) the
name of the Defaulting Lender and the Defaulted Advance required to be made
by such Defaulting Lender and (B) the amount set off and otherwise applied
in respect of such Defaulted Advance pursuant to this subsection (a). Any
portion of such payment otherwise required to be made by the Borrower to or
for the account of such Defaulting Lender which is paid by the Borrower,
after giving effect to the amount set off and otherwise applied by the
Borrower pursuant to this subsection (a), shall be applied by the
Administrative Agent as specified in subsection (b) or (c) of this Section
2.16.
(b) In the event that, at any one time, (i) any Lender shall be a
Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted Amount
to the Administrative Agent or any of the other Lenders and (iii) the
Borrower shall make any payment hereunder or under any other Loan Document
to the Administrative Agent for the account of such Defaulting Lender, then
the Administrative Agent may, on its behalf or on behalf of such other
Lenders and to the fullest extent permitted by applicable law, apply at such
time the amount so paid by the Borrower to or for the account of such
Defaulting Lender to the payment of each such Defaulted Amount to the extent
required to pay such Defaulted Amount. In the event that the Administrative
Agent shall so apply any such amount to the payment of any such Defaulted
Amount on any date, the amount so applied by the Administrative Agent shall
constitute for all purposes of this Agreement and the other Loan Documents
payment, to such extent, of such Defaulted Amount on such date. Any such
amount so applied by the Administrative Agent shall be retained by the
Administrative Agent or distributed by the Administrative Agent to such
other Lenders, ratably in accordance with the respective portions of such
Defaulted Amounts payable at such time to the Administrative Agent and such
other Lenders and, if the amount of such payment made by the Borrower shall
at such time be insufficient to pay all Defaulted Amounts owing at such time
to the Administrative Agent and the other Lenders, in the following order of
priority:
(i) first, to the Administrative Agent for any Defaulted
Amount then owing to the Administrative Agent; and
(ii) second, to any other Lenders for any Defaulted Amounts
then owing to such other Lenders, ratably in accordance with such
respective Defaulted Amounts then owing to such other Lenders.
Any portion of such amount paid by the Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by
the Administrative Agent pursuant to this subsection (b), shall be applied
by the Administrative Agent as specified in subsection (c) of this
Section 2.16.
(c) In the event that, at any one time, (i) any Lender shall be a
Defaulting Lender, (ii) such Defaulting Lender shall not owe a Defaulted
Advance or a Defaulted Amount and (iii) the Borrower, the Administrative
Agent or any other Lender shall be required to pay or distribute any amount
hereunder or under any other Loan Document to or for the account of such
Defaulting Lender, then the Borrower or such other Lender shall pay such
amount to the Administrative Agent to be held by the Administrative Agent,
to the fullest extent permitted by applicable law, in escrow or the
Administrative Agent shall, to the fullest extent permitted by applicable
law, hold in escrow such amount otherwise held by it. Any funds held by the
Administrative Agent in escrow under this subsection (c) shall be deposited
by the Administrative Agent in an account with CSFB, in the name and under
the control of the Administrative Agent, but subject to the provisions of
this subsection (c). The terms applicable to such account, including the
rate of interest payable with respect to the credit balance of such account
from time to time, shall be CSFB's standard terms applicable to escrow
accounts maintained with it. Any interest credited to such account from
time to time shall be held by the Administrative Agent in escrow under, and
applied by the Administrative Agent from time to time in accordance with the
provisions of, this subsection (c). The Administrative Agent shall, to the
fullest extent permitted by applicable law, apply all funds so held in
escrow from time to time to the extent necessary to make any Committed
Advances required to be made by such Defaulting Lender and to pay any amount
payable by such Defaulting Lender hereunder and under the other Loan
Documents to the Administrative Agent or any other Lender, as and when such
Committed Advances or amounts are required to be made or paid and, if the
amount so held in escrow shall at any time be insufficient to make and pay
all such Committed Advances and amounts required to be made or paid at such
time, in the following order of priority:
(i) first, to the Administrative Agent for any amount then
due and payable by such Defaulting Lender to the Administrative Agent
hereunder;
(ii) second, to any other Lenders for any amount then due and
payable by such Defaulting Lender to such other Lenders hereunder,
ratably in accordance with such respective amounts then due and payable
to such other Lenders; and
(iii) third, to the Borrower for any Committed Advance then
required to be made by such Defaulting Lender pursuant to a Commitment
of such Defaulting Lender.
In the event that such Defaulting Lender shall, at any time, cease to be a
Defaulting Lender, any funds held by the Administrative Agent in escrow at
such time with respect to such Defaulting Lender shall be distributed by the
Administrative Agent to such Defaulting Lender and applied by such
Defaulting Lender to the Obligations owing to such Lender at such time under
this Agreement and the other Loan Documents ratably in accordance with the
respective amounts of such Obligations outstanding at such time.
(d) The rights and remedies against a Defaulting Lender under
this Section 2.16 are in addition to other rights and remedies which the
Borrower may have against such Defaulting Lender with respect to any
Defaulted Advance and which the Administrative Agent or any Lender may have
against such Defaulting Lender with respect to any Defaulted Amount.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Amendment Effective Date
and Issuance of L/Cs. The effectiveness of the amendment and restatement of
the Existing Credit Agreement as provided for hereby, the obligation of each
Lender to extend or continue credit hereunder on the Amendment Effective
Date and the obligation of the L/C Issuers to issue L/C(s) on any date is
subject to the following conditions precedent:
(a) On the Amendment Effective Date, the Administrative Agent
shall have received (in a quantity sufficient for all Lenders) evidence
of the Borrower's receipt of gross cash proceeds from the sale of the
Borrower Preferred Stock in an aggregate amount equal to at least
$250,000,000 and the application thereof as follows:
(i) the first $250,000,000 of Net Cash Proceeds thereof to
(A) pay fees and expenses not in excess of $7,500,000 associated
with the transactions contemplated by the Loan Documents and (B)
prepay Revolving Credit Advances; and
(ii) any Net Cash Proceeds in excess of $250,000,000, first,
to pay the Roche Debt; second, the excess, if any, to prepay up to
$50,000,000 of Term Advances to be applied to installments of the
Term Advances pro rata; and third, the excess, if any, to prepay
Revolving Credit Advances.
(b) The Borrower shall have paid all accrued fees and expenses of
the Administrative Agent and the Lenders (including the reasonable fees
and expenses of special counsel to the Administrative Agent) payable
pursuant to Section 8.04 of this Agreement and for which it has
received an invoice on or before the Amendment Effective Date.
(c) If the Borrower shall have received gross cash proceeds from
the sale of the Borrower Preferred Stock in an aggregate amount of more
than $250,000,000 and less than $440,000,000, the Administrative Agent
shall have received evidence that the maturity of the Roche Note has
been extended to a date not earlier than April 30, 2004.
(d) The Administrative Agent shall have received on or before the
date of the Amendment Effective Date the following, each dated as of
the Amendment Effective Date (unless otherwise specified), in form and
substance satisfactory to the Administrative Agent (unless otherwise
specified) and in sufficient copies for each Lender and the
Administrative Agent:
(i) certified copies of the resolutions of the board of
directors of each Loan Party approving each Loan Document to which
it is or is to be a party, as appropriate, and, if requested by
the Administrative Agent, of all documents evidencing other
necessary corporate action and governmental approvals, if any,
with respect to each Loan Document to which it is or is to be a
party, as appropriate;
(ii) a certificate of the Secretary or an Assistant Secretary
of each Loan Party certifying the names and true signatures of the
officers of such Person authorized to sign each Loan Document to
which such Person is or is to be party and the other documents to
be delivered hereunder and thereunder;
(iii) a copy of the certificate of incorporation (or
equivalent charter document) of each Loan Party and each amendment
thereto, certified (as of a date reasonably near the Amendment
Effective Date) by the secretary of state of the jurisdiction of
its incorporation as being a true and correct copy thereof;
provided, however, if a certificate of incorporation (or
equivalent charter document) of such Loan Party was delivered to
the Administrative Agent on the Closing Date, no amendments to
such certificate have been made since the Closing Date and such
Loan Party delivers a certificate signed on behalf of such Loan
Party by its President or a Vice President and its Secretary or
any Assistant Secretary, dated as of the Amendment Effective Date
certifying as to the absence of any amendments to such certificate
of incorporation (or equivalent charter document) since the
Closing Date, delivery of a certificate of incorporation (or
equivalent charter document) for such Loan Party shall not be
required;
(iv) a copy of a certificate of the secretary of state of the
relevant jurisdiction of incorporation, dated reasonably near the
Amendment Effective Date, listing the certificate of incorporation
(or equivalent charter document) of each Loan Party, as the case
may be, and each amendment thereto on file in his office and
certifying that (A) such amendments are the only amendments to the
charter documents of such Person on file in his office, (B) such
Person has paid all franchise taxes to the date of such
certificate and (C) such Person is duly incorporated and in good
standing under the laws of the jurisdiction of its incorporation;
(v) (A) a certificate of each Loan Party signed on behalf of
such Person by its President or a Vice President and its Secretary
or any Assistant Secretary, dated as of the Amendment Effective
Date (the statements made in such certificate shall be true on and
as of the Amendment Effective Date), certifying as to (1) the
absence of any amendments to the certificate of incorporation (or
equivalent charter document) of such Person since the date of the
secretary of state's certificate referred to in subclause (v)
above, (2) a true and correct copy of the by-laws of such Person
as in effect on the Amendment Effective Date and (3) the absence
of any proceeding for the dissolution or liquidation of such
Person and (B) a certificate of each Loan Party signed on behalf
of such Person by its President or a Vice President and its
Secretary or any Assistant Secretary, dated as of the Amendment
Effective Date (the statements made in such certificate shall be
true on and as of the Amendment Effective Date), certifying as to
the truth in all material respects of the representations and
warranties made by such Person in each Loan Document as
appropriate, as though made on and as of the Amendment Effective
Date;
(vi) a certificate of the Borrower certifying as to the
absence of any event occurring and continuing, or resulting from
the transactions contemplated hereby, that constitutes a Default;
(vii) a confirmation of guaranty in substantially the form of
Exhibit H (as amended from time to time in accordance with its
terms, the "Guaranty Confirmation"), duly executed by the
Subsidiary Guarantors and a supplemental guaranty in substantially
the form of Exhibit A to the guaranty attached hereto as Exhibit D
(as amended from time to time in accordance with its terms, the
"Subsidiary Guaranty") duly executed by any Material Subsidiary,
if any, that is not a Subsidiary Guarantor;
(viii) such financial and business information regarding each
Loan Party and their respective Subsidiaries as the Lenders shall
have reasonably requested, and all documents the Administrative
Agent may reasonably request relating to the existence of the Loan
Parties, the corporate authority for and the validity of the Loan
Documents and any other matters relevant thereto, all in form and
substance satisfactory to the Administrative Agent;
(ix) a letter, in form and substance satisfactory to the
Administrative Agent, from the Borrower to KPMG Peat Marwick, its
independent certified public accountants, advising such
accountants that the Administrative Agent and the Lenders have
been authorized to exercise all rights of the Borrower to require
such accountants to disclose any and all financial statements and
any other information of any kind that they may have with respect
to the Borrower and its Subsidiaries and directing such
accountants to comply with any reasonable request of the
Administrative Agent or any Lender for such information;
(x) a letter, in form and substance satisfactory to the
Administrative Agent, from KPMG Peat Marwick, the Borrower's
independent certified public accountants, to the Administrative
Agent, acknowledging that the Lenders have relied and will rely
upon the financial statements of the Borrower examined by such
accountants in determining whether to enter into, and to take
action or refrain from taking action under, the Loan Documents;
and
(xi) a favorable opinion of Bradford T. Smith, Executive Vice
President and General Counsel of the Borrower, and of Davis Polk &
Wardwell, special New York counsel for the Borrower, substantially
in the forms of Exhibits E-1 and E-2 hereto, respectively, and as
to such other matters as the Administrative Agent may reasonably
request.
(e) The representations and warranties contained in Section 4.01
shall be true and correct in all material respects on and as of the
Amendment Effective Date.
SECTION 3.02. Conditions Precedent to Each Borrowing and Each L/C
Issuance. The obligation of each Lender to make an Advance on the occasion
of each Borrowing (including the initial Borrowing) resulting in an increase
in the aggregate amount of outstanding Advances and the obligation of each
L/C Issuer to issue a L/C shall be subject to the further conditions
precedent that on the date of such Borrowing or the date of issuance of such
L/C, as applicable, the following statements shall be true (and the giving
of the applicable Notice of Borrowing or the applicable L/C Issuance
Request, as applicable, and the acceptance by the Borrower of the proceeds
of such Borrowing, or upon the issuance of such L/C, as applicable, shall
constitute a representation and warranty by the Borrower that on the date of
such Borrowing or the date of issuance of such L/C, as applicable, such
statements are true):
(i) The representations and warranties contained in Section 4.01
are correct in all material respects on and as of the date of such
Borrowing or issuance of such L/C, as applicable, before and after
giving effect to such Borrowing or issuance of such L/C, as applicable,
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 Borrowing, the issuance of such L/C or from the application of the
proceeds therefrom, which constitutes a Default.
SECTION 3.03. Conditions Precedent to Each Competitive Bid
Borrowing. The obligation of each Lender that is to make a Competitive Bid
Advance to make such Competitive Bid Advance as part of a Competitive Bid
Borrowing is subject to the further conditions precedent that (a) the
Administrative Agent shall have received the written confirmatory Notice of
Competitive Bid Borrowing with respect thereto and (b) on or before the date
of such Competitive Bid Borrowing, but prior to such Competitive Bid
Borrowing, the Administrative Agent shall have received for recordation in
the Competitive Bid Register information as to each of the one or more
Competitive Bid Advances to be made by the Lenders as part of such
Competitive Bid Borrowing, the principal amount of each such Competitive Bid
Advance and such other terms agreed to for each such Competitive Bid Advance
in accordance with Section 2.02.
SECTION 3.04. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lenders
unless an officer of the Administrative Agent responsible for the
transactions contemplated by this Agreement shall have received notice from
such Lender prior to the Amendment Effective Date specifying its objection
thereto.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.
The Borrower represents and warrants as follows:
(a) Each Loan Party (i) is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation, (ii) 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 and (iii) has all
requisite corporate power and authority to own or lease and operate its
properties and to carry on its business as now conducted and as
proposed to be conducted. All of the outstanding capital stock of the
Borrower has been validly issued, is fully paid and non-assessable.
(b) Set forth on Schedule II hereto is a complete and accurate
list of all Material Subsidiaries of the Borrower, showing as of the
date hereof (as to each such Subsidiary) the jurisdiction of its
incorporation, the number of shares of each class of capital stock
authorized, and the number outstanding and the percentage of the
outstanding shares of each such class owned (directly or indirectly) by
the Borrower, and the number of shares covered by all outstanding
options, warrants, rights of conversion or purchase and similar rights
at the date hereof. All of the outstanding capital stock of all of
such Subsidiaries has been validly issued, is fully paid and non-
assessable and is owned by the Borrower or one or more of its
Subsidiaries free and clear of all Liens. Each such Subsidiary (i) is
a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, (ii) 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 and (iii) has all requisite corporate power and
authority to own or lease and operate its properties and to carry on
its business as now conducted and as proposed to be conducted.
(c) The execution, delivery and performance by each Loan Party of
each Loan Document to which it is or is to be a party, as appropriate,
and the consummation of the transactions contemplated hereby, are
within such Person's corporate powers, have been duly authorized by all
necessary corporate action, and do not (i) contravene such Person's
charter or by-laws, (ii) violate any law (including, without
limitation, the Exchange Act), rule, regulation (including, without
limitation, Regulation X of the Board of Governors of the Federal
Reserve System), order, writ, judgment, injunction, decree,
determination or award, (iii) conflict with or result in the breach of,
or constitute a default under, any loan agreement, contract, indenture,
mortgage, deed of trust, lease or other instrument binding on or
affecting the Borrower, any of its Subsidiaries or any of its
properties, the effect of which conflict, breach or default is
reasonably likely to have a Material Adverse Effect or (iv) result in
or require the creation or imposition of any Lien upon or with respect
to any of the properties of the Borrower or any of its Subsidiaries.
None of the Borrower nor any of its Subsidiaries, is in violation of
any such law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award or in breach of any such contract, loan
agreement, indenture, mortgage, deed of trust, lease or other
instrument, the violation or breach of which would be reasonably likely
to have a Material Adverse Effect.
(d) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
is required for (i) the due execution, delivery and performance by any
Loan Party of any Loan Document to which it is or is to be a party or
for the consummation of the other transactions contemplated hereby or
(ii) the exercise by the Administrative Agent or any Lender of its
rights under the Loan Documents, except for authorizations, approvals,
actions, notices and filings which have been duly obtained, taken,
given or made and are in full force and effect.
(e) This Agreement has been, and each other Loan Document when
delivered hereunder will have been, duly executed and delivered by each
Loan Party which is a party thereto. This Agreement is, and each other
Loan Document when delivered will be, the legal, valid and binding
obligations of each Loan Party which is a party thereto, enforceable
against such Person, in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforceability of creditors' rights
generally and by general principles of equity.
(f) Each of the audited Consolidated balance sheet of the
Borrower as at December 31, 1996 and the related audited Consolidated
statements of earnings, cash flows and stockholders' equity of the
Borrower for the fiscal year then ended, copies of all of which have
been furnished to each Lender, fairly present the financial condition
of the Borrower and its Subsidiaries as at such date and the results of
the operations of the Borrower and its Subsidiaries for the period
ended on such date, all in accordance with GAAP. Since December 31,
1996, there has been no Material Adverse Change relating to the
Borrower.
(g) There is no pending or threatened action, proceeding,
governmental investigation or arbitration affecting any Loan Party or
any of their Subsidiaries before any court, governmental agency or
arbitrator, which is reasonably likely to have a Material Adverse
Effect or that purports to affect the legality, validity or
enforceability of any Loan Document or the consummation of the
transactions contemplated hereby.
(h) The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying Margin Stock and no
proceeds of any Advance will be used (i) to purchase or carry any
Margin Stock, except in connection with Permitted Acquisitions and the
repurchase by the Borrower of its capital stock, or (ii) to extend
credit to others for the purpose of purchasing or carrying any Margin
Stock.
(i) Except as set forth on Schedule III hereto, the Borrower and
each ERISA Affiliate of the Borrower are in compliance in all material
respects with the applicable provisions of ERISA and the Code with
respect to each Plan. No ERISA Event has occurred or is reasonably
expected to occur with respect to any Plan. The amount of all Unfunded
Pension Liabilities under all current Plans does not exceed
$25,000,000. Neither the Borrower nor any of its ERISA Affiliates has
incurred any Withdrawal Liability to any Multiemployer Plan within the
past five years, and it is not reasonably expected that contributions
shall be made or required or that such liability shall be incurred in
any case in amounts or under circumstances that would be reasonably
likely to result in a material liability to the Borrower or any ERISA
Affiliate of the Borrower. The consolidated financial statements of
the Borrower and its Subsidiaries fully reflect any material liability
with respect to "expected postretirement benefit obligations" within
the meaning of Statement of Financial Accounting Standards No. 106.
Neither the Borrower nor any of its ERISA Affiliates would reasonably
be expected to incur a material liability relating to the funding
status of any RBLI Plan. No ERISA Affiliate of RBLI has incurred any
liability under Title IV of ERISA arising in connection with the
termination of, or complete or partial withdrawal from, any RBLI Plan
or Multiemployer Plan that would reasonably be expected to become a
material liability of the Borrower or any of its ERISA Affiliates.
(j) Except as set forth on Schedule III hereto, neither the
Borrower nor any of its Subsidiaries currently maintains or contributes
to any Welfare Plan which provides post-retirement medical or life
insurance benefits other than pursuant to Section 4980B of the Code or
Section 601 through 608 of ERISA.
(k) The operations and properties of the Borrower and each of its
Subsidiaries comply with all Environmental Laws, all necessary
Environmental Permits have been obtained and are in effect for the
operations and properties of the Borrower and its Subsidiaries and the
Borrower and each of its Subsidiaries are in compliance with all such
Environmental Permits, except, as to all of the above, where the
failure to do so would not be reasonably likely to have a Material
Adverse Effect; and no circumstances exist that are reasonably likely
to (i) form the basis of an Environmental Action against the Borrower
or any of its Subsidiaries or any of their respective properties or
(ii) cause any such property to be subject to any restrictions on
ownership, occupancy, use or transferability under any Environmental
Law that would, in the case of either (i) or (ii) above, be reasonably
likely to have a Material Adverse Effect.
(l) The Borrower and each of its Subsidiaries has filed, has
caused to be filed or has been included in all tax returns (Federal,
state, local and foreign) required to be filed and has paid all taxes
shown thereon to be due, together with applicable interest and
penalties.
(m) None of the Borrower or any of its Subsidiaries is an
"investment company," or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended. Neither the
making of any Advances, nor the application of the proceeds or
repayment thereof by the Borrower, nor the consummation of the other
transactions contemplated hereby, will violate any provision of such
Act or any rule, regulation or order of the Securities and Exchange
Commission thereunder.
(n) Each of the Borrower and each Subsidiary Guarantor is,
individually and together with its Subsidiaries, Solvent.
(o) Neither (i) any information provided by or on behalf of the
Borrower or any of its Subsidiaries to the Administrative Agent or any
Lender nor (ii) the Rights Offering Registration Statement, contained
or contains any material misstatement of fact or omitted or omits to
state any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading except that, as to any financial model provided to the
Lenders, such model was prepared in good faith by the Borrower's
management based on assumptions believed to be reasonable when made and
because assumptions as to future results are inherently subject to
uncertainty and contingencies beyond the Borrower's control, actual
results of the Borrower may be higher or lower.
(p) Part A of Schedule IV hereto sets forth the name, amount and
percent of class of each security of the Borrower beneficially owned on
the date hereof by Roche Holdings and its Affiliates and Part B of
Schedule IV hereto sets forth the name, amount and percent of class of
each security of the Borrower to be owned by Roche Holdings and its
Affiliates as of the Amendment Effective Date.
(q) Set forth in Schedule V hereto is a complete and accurate
list of all Debt of the Borrower and its Subsidiaries (other than Debt
under this Agreement) with a principal or face amount in excess of
$5,000,000 (the "Surviving Debt"), showing as of the date hereof the
principal amount outstanding thereunder, the obligor and obligee
thereof, the interest rate applicable thereto, the maturity dates
thereof and a description of the security interests (if any) granted in
respect thereof.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance
shall remain unpaid, or any Lender shall have any Commitment hereunder, the
Borrower will:
(a) Compliance with Laws, Etc Comply, and cause each of its
Subsidiaries to comply, in all material respects with all applicable
laws, rules, regulations and orders (such compliance to include,
without limitation, paying before the same become delinquent all taxes,
assessments and governmental charges imposed upon it or upon its
property except to the extent contested in good faith), the failure to
comply with which would, individually or in the aggregate, be
reasonably likely to have a Material Adverse Effect.
(b) Compliance with Environmental Laws. Comply and cause each of
its Subsidiaries and all lessees and all other Persons occupying its
properties to comply, in all material respects, with all Environmental
Laws and Environmental Permits applicable to its operations and
properties; obtain and renew all Environmental Permits necessary for
its operations and properties; and conduct, and cause each of its
Subsidiaries to conduct, any investigation, study, sampling and
testing, and undertake any cleanup, removal, remedial or other action
necessary to remove and clean up all Hazardous Materials from any of
its properties, in accordance with the requirements of all
Environmental Laws; provided, however, that neither the Borrower nor
any of its Subsidiaries shall be required to undertake any such
cleanup, removal, remedial or other action to the extent that its
obligation to do so is being contested in good faith and by proper
proceedings and appropriate reserves are being maintained with respect
to such circumstances.
(c) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in which the
Borrower or such Subsidiary operates.
(d) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain,
its corporate existence, rights (charter and statutory) and franchises,
except for any merger or consolidation permitted under Section 5.02(c);
provided that, neither the Borrower nor any of its Subsidiaries shall
be required to preserve any right or franchise if the Board of
Directors of the Borrower or such Subsidiary shall determine that the
preservation thereof is no longer desirable in the conduct of the
business of the Borrower or such Subsidiary, as the case may be, and
that the loss thereof is not disadvantageous in any material respect to
the Borrower, such Subsidiary or the Lenders.
(e) Visitation Rights. At any reasonable time and from time to
time, upon reasonable prior notice permit the Administrative Agent or
any of the Lenders or any agents or representatives thereof, to the
extent reasonably requested, to examine and make copies of and
abstracts from the records and books of account of, and visit the
properties of, the Borrower and any of its Subsidiaries, and to discuss
the affairs, finances and accounts of the Borrower and any of its
Subsidiaries with any of their officers or directors and with their
independent certified public accountants.
(f) Keeping of Books. Keep, and cause each of its Subsidiaries
to keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of the Borrower and each such Subsidiary to the extent
necessary to permit the preparation of the financial statements
required to be delivered hereunder.
(g) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
properties that in its judgment are used or useful in the conduct of
its business in good working order and condition, ordinary wear and
tear excepted.
(h) Interest Rate Hedging. Maintain until April 28, 1998, the
interest rate Hedge Agreements in effect immediately prior to the
Amendment Effective Date.
(i) Leverage Ratio. Maintain at the end of each four fiscal
quarter period specified below a Leverage Ratio of not more than the
ratio set forth below:
Four Fiscal
Quarters Ending in Ratio
------------------ -----
March 1997 6.50:1.0
June 1997 5.00:1.0
September 1997 4.75:1.0
December 1997 4.75:1.0
March 1998 4.75:1.0
June 1998 4.50:1.0
September 1998 4.25:1.0
December 1998 4.00:1.0
March 1999 4.00:1.0
June 1999 3.75:1.0
September 1999 3.50:1.0
December 1999 3.00:1.0
March 2000 3.00:1.0
June 2000 2.75:1.0
September 2000 2.75:1.0
December 2000 2.50:1.0
March 2001 2.50:1.0
June 2001 2.25:1.0
September 2001 2.25:1.0
December 2001 2.00:1.0
March 2002 2.00:1.0
June 2002 1.75:1.0
September 2002 1.75:1.0
and 1.50:1.0 for each four fiscal quarter period thereafter.
(j) Interest Coverage Ratio. Maintain at the end of each four
fiscal quarter period specified below an Interest Coverage Ratio of not
less than the ratio set forth below:
Four Fiscal
Quarters Ending in Ratio
------------------ -----
March 1997 2.25:1.0
June 1997 2.25:1.0
September 1997 2.50:1.0
December 1997 2.50:1.0
March 1998 2.50:1.0
June 1998 2.75:1.0
September 1998 2.75:1.0
December 1998 3.00:1.0
March 1999 3.00:1.0
June 1999 3.25:1.0
September 1999 3.25:1.0
December 1999 3.50:1.0
March 2000 3.50:1.0
June 2000 4.00:1.0
September 2000 4.00:1.0
December 2000 4.50:1.0
March 2001 4.50:1.0
June 2001 4.75:1.0
September 2001 4.75:1.0
and 5.00:1.0 for each four fiscal quarter period thereafter.
(k) Minimum Stockholders' Equity. Maintain Stockholders' Equity
of not less than (i) on March 31, 1997, $190,000,000 and (ii) on the
last day of each subsequent fiscal quarter, commencing with the fiscal
quarter ending June 30, 1997, a dollar amount equal to (A) if positive,
75% of Net Income for such fiscal quarter plus (B) the minimum amount
of Stockholders' Equity required on the last day of the immediately
preceding fiscal quarter; provided, however, that, the net amount
(after provision for taxes) of non-cash write-offs or write-downs of
goodwill during such period in connection with the contribution by the
Borrower or any Subsidiary of assets to a joint venture permitted under
Section 5.02(d) shall not be deducted from equity for the purposes of
calculating Stockholder's Equity on such day for purposes of this
Section 5.01(k).
(l) Reporting Requirements. Furnish to the Lenders through the
Administrative Agent (in a quantity sufficient for all Lenders and the
Administrative Agent):
(i) as soon as available and in any event within 50 days
after the end of each of the first three quarters of each fiscal
year of the Borrower, Consolidated balance sheets of the Borrower
as of the end of such quarter, Consolidated statements of earnings
and stockholders' equity of the Borrower for such quarter and
Consolidated statements of earnings, cash flows and stockholders'
equity of the Borrower for the period commencing at the end of the
previous fiscal year and ending with the end of such quarter,
certified (subject to normal year-end audit adjustment and the
absence of footnotes) on behalf of the Borrower by the chief
financial officer of the Borrower;
(ii) as soon as available and in any event within 105 days
after the end of each fiscal year of the Borrower, a copy of the
annual report on Form 10-K for such year for the Borrower and its
Subsidiaries, containing financial statements for such year
certified in a manner reasonably acceptable to the Required
Lenders by KPMG Peat Marwick or other independent public
accountants reasonably acceptable to the Required Lenders;
(iii) together with each delivery of financial statements
pursuant to clauses (i) and (ii) above, (A) a certificate executed
on behalf of the Borrower by the chief financial officer of the
Borrower (1) stating that no Default has occurred and is
continuing or, if a Default has occurred and is continuing, a
statement as to the nature thereof and the action that the
Borrower has taken and proposes to take with respect thereto, (2)
setting forth the aggregate amount of all Net Cash Proceeds of all
Dispositions in excess of $1,000,000 received during (x) the
period covered by such financial statements and (y) the period
commencing on the Closing Date and ending on the last day of the
period covered by such financial statements and (3) setting forth,
to the best knowledge of the Borrower, the Investor Group Interest
and (B) a schedule in form reasonably satisfactory to the
Administrative Agent of the computations used by the Borrower in
determining (1) compliance with the covenants contained in
Sections 5.01(i), (j) and (k) and (2) the Leverage Ratio as of the
end of the applicable fiscal quarter or fiscal year;
(iv) as soon as possible and in any event within five days
after knowledge by an executive officer of the Borrower of the
occurrence of each Default continuing on the date of such
statement, a statement executed on behalf of the Borrower by the
chief financial officer of the Borrower setting forth details of
such Default and the action which the Borrower has taken and
proposes to take with respect thereto;
(v) as soon as available and in any event no later than 50
days after the end of each fiscal year of the Borrower, financial
models prepared by management of the Borrower, in form
satisfactory to the Administrative Agent, of balance sheets,
income statements and cash flow statements (including a narrative
description of all assumptions made) on an annual basis for each
fiscal year thereafter until the Termination Date (and, in the
case of the financial models delivered in February 1998, February
1999 and February 2000, on a quarterly basis for the fiscal year
following such fiscal year then ending);
(vi) promptly after the sending or filing thereof, copies of
all reports which the Borrower sends to any of its public security
holders, and copies of all Forms 10-K, 10-Q and 8-K, Schedules
l3E4 (including in the case of such Schedules all exhibits filed
therewith) and registration statements (other than the exhibits
thereto and any registration statements on Form S-8 or its
equivalent) that the Borrower or any Subsidiary files with the
Securities and Exchange Commission or any national securities
exchange;
(vii) promptly and in any event within (A) ten days after the
filing or receipt thereof, copies of all reports and notices with
respect to each Plan of the Borrower or any of its ERISA
Affiliates which the Borrower or any of its ERISA Affiliates files
under ERISA with the Internal Revenue Service or the PBGC or the
U.S. Department of Labor or which the Borrower or any of its ERISA
Affiliates receives from the PBGC, other than a notice described
in clause (D) of this Section 5.01(l)(vii), (B) ten days after the
Borrower or any of its ERISA Affiliates knows or has reason to
know that any ERISA Event with respect to the Borrower or any of
its ERISA Affiliates has occurred, a statement of the chief
financial officer of the Borrower describing such ERISA Event and
the action, if any, that the Borrower or such ERISA Affiliate
proposes to take with respect thereto, (C) ten days after receipt
thereof by the Borrower or any of its ERISA Affiliates from the
sponsor of a Multiemployer Plan of the Borrower or any of its
ERISA Affiliates, a copy of each notice received by any such
Person concerning the imposition of Withdrawal Liability upon such
Person, the reorganization or termination of such Multiemployer
Plan, or the amount of the liability incurred, or that may be
incurred, by the Borrower or any of its ERISA Affiliates in
connection with any such event and (D) five Business Days after
receipt thereof by the Borrower or any of its ERISA Affiliates,
copies of each notice from the PBGC stating its intention to
terminate any Plan of the Borrower or any of its ERISA Affiliates
or to have a trustee appointed to administer any such Plan;
(viii) as promptly as practicable after any change in GAAP from
the date of the financial statements referred to in Section
4.01(f), notice to the Administrative Agent describing the
Borrower's adoption of such change in reasonable detail and, if
requested by the Administrative Agent (A) as promptly as
practicable following the Administrative Agent's receipt of such
notice and (B) upon delivery of any financial statement required
to be furnished under clauses (i) or (ii) of this Section 5.01(l),
a statement of reconciliation conforming any information contained
in such financial statement with GAAP as in effect on the date of
the financial statements referred to in Section 4.01(f);
(ix) promptly upon any executive officer of the Borrower
obtaining knowledge thereof, written notice of (A) the institution
or non-frivolous threat of any action, suit, proceeding,
governmental investigation or arbitration against or affecting the
Borrower or any of its Subsidiaries or any property of the
Borrower or any of its Subsidiaries (any such action, suit,
proceeding, investigation or arbitration being a "Proceeding") or
(B) any material development in any Proceeding that is already
pending, in each case where such Proceeding or development has not
previously been disclosed by the Borrower hereunder and would be
reasonably likely to have a Material Adverse Effect;
(x) as promptly as practicable after request by the
Administrative Agent, such information regarding the HLR
Stockholder Agreement as the Administrative Agent may reasonably
request;
(xi) promptly after the occurrence thereof, notice of any
condition or occurrence on any property of the Borrower or any of
its Subsidiaries that results in a material noncompliance by the
Borrower or any of its Subsidiaries with any Environmental Law or
Environmental Permit or would be reasonably likely to (i) form the
basis of an Environmental Action against the Borrower or any of
its Subsidiaries or any such property that would be reasonably
likely to have a Material Adverse Effect or (ii) cause any such
property to be subject to any restrictions on ownership,
occupancy, use or transferability under any Environmental Law or
Environmental Permit;
(xii) (A) promptly upon any executive officer of the Borrower
obtaining knowledge thereof, written notice of the effective date
of any reduction of the Investor Group Interest to less than 25%
and (B) as promptly as practicable, and in any event at least 15
days prior to the effectiveness of any amendment, supplement or
other modification of the HLR Stockholder Agreement that would
require the consent of the Required Lenders in accordance with
Section 5.02(k), written notice thereof;
(xiii) as promptly as practicable, notice of any Disposition
the Net Cash Proceeds of which would, if not reinvested, be
applied to prepay Term Advances and reduce the Revolving Credit
Commitments in accordance with Section 2.05(b); and
(xiv) such other information respecting the condition
(financial or otherwise), operations, assets or business of the
Borrower or any of its Subsidiaries as any Lender through the
Administrative Agent may from time to time reasonably request.
(m) Monthly Summary Financial Reports. During the period from
the Closing Date through December 31, 1998, furnish to the
Administrative Agent (in a quantity sufficient for all Lenders and the
Administrative Agent) as soon as available, and in any event within 50
days after the end of each calendar month, a summary financial report
as to the Borrower and its Subsidiaries, in the form of Exhibit F, for
the period commencing at the end of the previous month and ending with
the end of such month, signed on behalf of the Borrower by its chief
financial officer.
(n) Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under
this Agreement with any of their Affiliates (other than the Borrower or
any of its Subsidiaries) on terms that are fair and reasonable and no
less favorable to the Borrower or such Subsidiary than it would obtain
in a comparable arm's-length transaction with a Person that is not an
Affiliate.
(o) Use of Proceeds. Use the proceeds of the Advances for
general corporate purposes of the Borrower and its Subsidiaries.
(p) Subsidiary Guaranty. Cause each Person that becomes a
Material Subsidiary of the Borrower to become party to the Subsidiary
Guaranty as promptly as practicable after becoming a Material
Subsidiary.
SECTION 5.02. Negative Covenants. So long as any Advance shall
remain unpaid, or any Lender shall have any Commitment hereunder, the
Borrower will not:
(a) Liens, Etc Create or suffer to exist, or permit any of its
Subsidiaries to create or suffer to exist, any Lien, upon or with
respect to any of its properties (other than treasury stock and Margin
Stock), whether now owned or hereafter acquired, or sign or file, or
permit its Subsidiaries to sign or file, under the Uniform Commercial
Code of any jurisdiction, a financing statement that names the Borrower
or any of its Subsidiaries as debtor, or sign, or permit any of its
Subsidiaries to sign, any security agreement authorizing any secured
party thereunder to file such financing statement, or assign, or permit
any of its Subsidiaries to assign, any right to receive income, other
than the following Liens with respect to the Borrower and its
Subsidiaries: (i) Liens existing on the Amendment Effective Date
securing Debt outstanding at the close of business on the Amendment
Effective Date in an aggregate principal or face amount not exceeding
$15,000,000 in the aggregate for the Borrower and its Subsidiaries;
(ii) Liens existing on such property at the time of its acquisition
(directly or indirectly) (other than any such Lien created in
contemplation of such acquisition); (iii) Liens on such property
securing Debt incurred or assumed for the purpose of financing all or
any part of the cost of acquiring such property or improvements
thereto, provided that such Liens attach to such property or
improvements concurrently with or within 90 days after the acquisition
thereof or completion of improvements thereon; (iv) Liens securing Debt
incurred to refinance Debt referred to in clause (ii) or (iii) above,
provided that such Liens are limited to the same property securing the
Debt so refinanced, the principal amount of such Debt shall not be
greater than the principal amount of the Debt so refinanced, and any
direct or contingent obligor of the Debt secured thereby has not been
changed; (v) mechanics', materialmen's, carriers' and similar Liens
arising in the ordinary course of business securing obligations that
are not overdue for a period of more than 60 days or which are being
contested in good faith and by proper proceedings and as to which
appropriate reserves are being maintained; (vi) deposits or Liens to
secure the performance of letters of credit, statutory obligations,
surety and appeal bonds, performance bonds and other obligations of
like nature incurred in the ordinary course of business; (vii) Liens
securing Capitalized Leases permitted by this Agreement; (viii) Liens
for taxes, assessments and governmental charges or levies not yet due
and payable or which are being contested in good faith and by proper
proceedings and as to which appropriate reserves are being maintained;
(ix) judgment or other similar Liens, provided that there shall be no
period of more than 30 consecutive days during which a stay of
enforcement of the related judgment shall not be in effect; (x) Liens
on cash and Cash Equivalents securing Obligations under Hedge
Agreements, provided that the aggregate amount of cash and Cash
Equivalents subject to such Liens may at no time exceed $20,000,000 in
the aggregate for the Borrower and its Subsidiaries; and (xi) Liens not
otherwise permitted by the foregoing clauses of this subsection (a)
securing Debt otherwise permitted by this Agreement in an aggregate
principal or face amount at any date not to exceed 5% of Consolidated
Net Tangible Assets of the Borrower.
(b) Lease Obligations. Create, incur, assume or suffer to exist,
or permit any of its Subsidiaries to create, incur, assume or suffer to
exist, any obligations as lessee (i) for the rental or hire of real or
personal property in connection with any sale and leaseback
transaction, or (ii) for the rental or hire of other real or personal
property of any kind under leases or agreements to lease having an
original term of one year or more that would cause the direct and
contingent liabilities of the Borrower and its Subsidiaries, on a
Consolidated basis, in respect of all such obligations in any period
set forth below to exceed the amount set forth below for such period:
Year Ending in Amount
-------------- ------
December 1997 $65,000,000
December 1998 $70,000,000
December 1999 $75,000,000
December 2000 $80,000,000
December 2001 $85,000,000
December 2002 $90,000,000
December 2003 $95,000,000
December 2004 $100,000,000
(c) Mergers, Etc. Merge or liquidate into or consolidate with
any Person or permit any Person to merge or liquidate into it, or
permit any of its Subsidiaries to do so, except that (i) solely if
required to effect a Permitted Acquisition, the Borrower may merge with
another corporation organized under the laws of a State of the United
States, if the Borrower is the corporation surviving such merger, and
(ii) any wholly-owned Subsidiary of the Borrower may merge or liquidate
into or consolidate with the Borrower or any other Subsidiary of the
Borrower provided that, in the case of any such consolidation, the
Person formed by such consolidation shall be the Borrower or a wholly-
owned Subsidiary of the Borrower and provided that if any Subsidiary
Guarantor is a party to any such merger or consolidation, the Person
surviving such merger or formed by such consolidation shall be a
Subsidiary Guarantor; provided, however, that in each case, immediately
after giving effect thereto, no event shall occur and be continuing
that constitutes a Default.
(d) Sales, Etc. of Assets. Sell, lease, transfer or otherwise
dispose of, or permit any of its Subsidiaries to sell, lease, transfer
or otherwise dispose of, any assets or grant any option or other right
to purchase, lease or otherwise acquire any assets, except (i) sales in
the ordinary course of its business, (ii) dispositions of obsolete,
worn out or surplus property disposed of in the ordinary course of
business, (iii) sales, leases, transfers or other dispositions of
assets by a wholly-owned Subsidiary of the Borrower with any other
wholly-owned Subsidiary of the Borrower (provided that if such
disposition is by a Subsidiary Guarantor, the recipient of such assets
is also a Subsidiary Guarantor), (iv) sales, leases, transfers or other
dispositions of assets by the Borrower to any wholly-owned Subsidiary
Guarantor, or by any wholly-owned Subsidiary to the Borrower, (v) in a
transaction authorized by subsection (c) of this Section, (vi) the
disposition of Margin Stock for cash in an amount equal to the fair
value of such Margin Stock on the date of such disposition, (vii) sales
of assets for cash and for fair value in an aggregate amount not to
exceed $1,000,000 in any year, (viii) sales, leases, transfers or other
dispositions of assets by the Borrower or any Subsidiary not exceeding
$70,000,000 in the aggregate fair market value by contributing such
assets to a joint venture; provided, however, that contributions of
assets to a joint venture in which the Borrower holds less than a 50%
interest shall not exceed $35,000,000 in aggregate fair value in any
year, or (ix) exchanges of assets for assets of equal fair market value
which do not constitute Materially Different Businesses (in each case
as determined by the board of directors of the Borrower), (x) the sale
of any asset not exceeding an amount equal to five percent of the
Borrower's Net Tangible Assets at the time of such sale and not
otherwise permitted by this subsection (d) by the Borrower or any
Subsidiary of the Borrower (other than a bulk sale of inventory and a
sale of receivables other than delinquent accounts for collection
purposes only) so long as (A) the purchase price paid to the Borrower
or such Subsidiary for such asset shall be no less than the fair market
value of such asset at the time of such sale, (B) the purchase price
for such asset shall be paid to the Borrower or such Subsidiary solely
in cash payable at closing or instruments obligating the obligors with
respect thereto to make cash payments within one year of closing, in
the aggregate amount of all such instruments at any one time held by
the Borrower and its Subsidiaries for all such sales not to exceed
$10,000,000 and (C) the Borrower shall prepay the Advances to the
extent required by, and in the order of priority set forth in, Section
2.05(b)(i) and (xi) so long as no Default shall occur and be
continuing, the grant of any option or other right to purchase any
asset in a transaction which would be permitted under the provisions of
the next preceding clause (x).
(e) Dividends, Repurchases, Etc. Declare or pay any dividends,
purchase, redeem, retire, defease or otherwise acquire for value any of
its capital stock or any warrants, rights or options to acquire such
capital stock, now or hereafter outstanding, return any capital to its
stockholders as such, make any distribution of assets, capital stock,
warrants, rights, options, obligations or securities to its
stockholders as such or issue or sell any capital stock or warrants,
rights or options to acquire such capital stock, or permit any of its
Subsidiaries to purchase, redeem, retire, defease or otherwise acquire
for value any capital stock of the Borrower or any warrants, rights or
options to acquire such capital stock or to issue or sell any capital
stock or any warrants, rights or options to acquire such capital stock
(other than to the Borrower), except that:
(i) the Borrower may declare and deliver dividends and
distributions payable only in Borrower Common Stock or warrants,
rights or options to acquire Borrower Common Stock;
(ii) after the second anniversary of the Amendment Effective
Date if (A) the Borrower's Capital Ratio is equal to or less than
50% on the last day of the most recently ended fiscal quarter and
(B) the Leverage Ratio for the most recently ended four fiscal
quarter period is less than or equal to 2.5:1.0, the Borrower may,
during any single fiscal year, declare and pay cash dividends to
holders of Borrower Common Stock in an amount not to exceed ten
percent of the Borrower's Net Income for the fiscal year
immediately preceding the fiscal year in which such dividend is
declared or paid;
(iii) the Borrower may purchase options or warrants to
purchase shares of Borrower Common Stock granted by the Borrower
to employees of the Borrower or any of its Subsidiaries, for an
aggregate purchase price, for all such purchases during any single
fiscal year, of not more than $1,000,000;
(iv) the Borrower may, during any single fiscal year, declare
and pay cash dividends to holders of Borrower Series A Preferred
Stock at a rate not to exceed 10% per annum and at any time after
the third anniversary of the Amendment Effective Date, the
Borrower may, during any such fiscal year, pay cash dividends to
holders of Borrower Series B Preferred Stock at a rate not to
exceed 10% per annum; and
(v) the Borrower may declare and pay dividends to holders of
Borrower Series B Preferred Stock payable in shares of Borrower
Series B Preferred Stock.
provided, however, that, at the time of any payment referred to above
and after giving effect to such payment, no Default shall have occurred
and be continuing.
(f) Investments. Make or hold, or permit any of its Subsidiaries
to make or hold, any Investment in any Person, other than Investments
(i) by the Borrower in any of its respective wholly-owned Subsidiaries
or by any wholly-owned Subsidiary of the Borrower in any other wholly-
owned Subsidiary of the Borrower, (ii) that are Permitted Acquisitions,
(iii) Investments by the Borrower and its Subsidiaries in Cash
Equivalents and in Hedge Agreements in an aggregate notional amount not
to exceed at any time outstanding an amount equal to 100% of the
aggregate outstanding Advances at such time, (iv) Investments permitted
by subsections 5.02(d)(viii), (ix) and (x) (B) and (v) other
Investments in an aggregate amount invested at any one time outstanding
not to exceed $25,000,000.
(g) Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any material change in the nature of the business
carried on at the date hereof by the Borrower and its Subsidiaries
taken as a whole, except that, subject to the limitations set forth in
Sections 5.02(f) and 5.02(h), the Borrower and its Subsidiaries may
acquire (i) Control of any Person, or all or substantially all of the
assets of any Person, substantially all the business of which consists
of businesses that are not Materially Different Businesses, (ii) any
other assets which the Borrower or such Subsidiary would not use in a
Materially Different Business, or (iii) Control of any Person,
substantially all the business of which consists of Materially
Different Businesses, or other assets which constitute or would be used
by the Borrower or such Subsidiary in a Materially Different Business,
as long as (x) the consideration paid by the Borrower for any such
acquisition pursuant to this clause (iii), together with the aggregate
consideration paid for all previous acquisitions pursuant to this
clause (iii) during the term of this Agreement, does not exceed 20% of
Consolidated Net Tangible Assets of the Borrower as of the last day of
the fiscal quarter next preceding the date of such acquisition and (y)
after giving effect thereto, no Default shall have occurred and be
continuing.
(h) Acquisitions. Make or permit any of its Subsidiaries to make
acquisitions outside the ordinary course of business of assets of or
equity in any Person ("Acquisitions") except that the Borrower may make
or permit any of its Subsidiaries to make the following Acquisitions:
(i) Investments permitted by the terms of Sections 5.02(d)(viii) and
5.02(f) (other than clause (ii) thereof); (ii) Acquisitions permitted
by the terms of Section 5.02(d)(ix); and (iii) other Acquisitions if
the sum of the Purchase Price for such Acquisitions plus the aggregate
Purchase Price for all other Acquisitions made in the immediately
preceding 12 calendar months period, does not exceed (A) $25,000,000
plus (B) Available Excess Cash Flow; provided that if the Purchase
Price for any such Acquisition is greater than $10,000,000 and less
than $25,000,000, then the Borrower shall give the Administrative Agent
and the Lenders at least five Business Days' notice thereof, and if the
Purchase Price is $25,000,000 or more, the following conditions must be
met: (A) at least ten Business Days prior to such proposed
Acquisition, the Borrower shall have delivered to the Administrative
Agent and the Lenders Consolidated modeled financial statements of the
Borrower (including a balance sheet and statements of earnings, cash
flows and stockholders' equity) as at the end of and for the most
recent period of four fiscal quarters ending at least 45 days prior to
the delivery of such financial statements, which financial statements
shall (a) be certified (subject to normal year-end audit adjustments
and the absence of footnotes) on behalf of the Borrower by the chief
financial officer of the Borrower, (b) give effect to all Acquisitions
(including such proposed Acquisition) made or proposed to be made since
the end of such period and (c) show the Borrower would be in compliance
with the Interest Coverage Ratio and Leverage Ratio for such period;
provided further that, at the time of the making of any Acquisition and
after giving effect to such Acquisition, no Default shall have occurred
and be continuing.
(i) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies
affecting (i) the presentation of financial statements or (ii)
reporting practices, except in either case as required or permitted by
GAAP.
(j) Debt. Create, incur, assume or suffer to exist, or permit
any of its Subsidiaries to create, incur, assume or suffer to exist,
any Debt other than:
(i) Debt under the Loan Documents;
(ii) in the case of (A) the Borrower, Debt in respect of
Junior Obligations, the proceeds of which are applied to prepay
the Obligations of the Borrower under the Loan Documents in
accordance with Section 2.05(b)(ii) and (B) the Borrower and its
Subsidiaries, Debt, not exceeding at any one time $20,000,000 in
the aggregate, in respect of Obligations incurred pursuant to
credit card services agreements providing for processing services
in connection with credit card transactions by customers of the
Borrower and its Subsidiaries;
(iii) the Surviving Debt outstanding as of the Closing Date;
(iv) unsecured contingent obligations arising in connection
with Permitted Acquisitions in an aggregate principal amount not
to exceed $50,000,000 at any time outstanding in the aggregate for
the Borrower and its Subsidiaries, provided that no such
contingent obligation shall exceed an amount equal to 75% of the
Purchase Price of the related Permitted Acquisition;
(v) Debt owed by a Subsidiary to the Borrower or to a wholly-
owned Subsidiary of the Borrower, or by the Borrower to a
Subsidiary in connection with the Borrower's cash management
program;
(vi) Debt secured by Liens permitted by Section 5.02(a)(ii)
and (iv) not to exceed $20,000,000 in the aggregate for the
Borrower and its Subsidiaries;
(vii) endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of
business;
(viii) unsecured trade payables of the kind included in clause
(b) of the definition of Debt;
(ix) Subordinated Debt incurred on or before March 31, 1999;
(x) if the Borrower shall have received gross cash proceeds
from the sale of the Borrower Preferred Stock in an aggregate
amount of more than $250,000,000 and less than $440,000,000, the
Roche Debt;
(xi) Obligations to redeem the Preferred Stock; and
(xii) Debt not otherwise permitted pursuant to this Section
5.02(j), in an aggregate principal amount not to exceed
$32,000,000 at any time outstanding in the aggregate for the
Borrower and its Subsidiaries.
(k) HLR Stockholder Agreement Amendments. Amend, supplement or
otherwise modify, or consent to the amendment, supplement or other
modification of, Sections 2.1 through 2.10, Article 3 or Section 8.2,
9.2(a), 9.4, 9.5 or 9.10 of the HLR Stockholder Agreement, or any
definition related to the foregoing set forth in Article 1 of the HLR
Stockholder Agreement, if such amendment, supplement or other
modification would materially adversely affect the rights of Roche
Holdings thereunder, taken as a whole, unless the Required Lenders have
consented to such amendment, supplement or other modification, which
consent shall not be unreasonably withheld; provided that if the
Borrower has provided the Administrative Agent and the Lenders with
copies of a proposed amendment, supplement or other modification
(together with written notice referencing this Section 5.02(k) and the
15-day consent period required immediately below) and has not been
notified by the Administrative Agent within 15 days of receipt by the
Lenders thereof that the Required Lenders have disapproved such
amendment, supplement or other modification in writing, the Lenders
shall be deemed to have consented thereto.
(l) Prepayments, Etc. of Debt. Prepay, redeem, purchase, defease
or otherwise satisfy prior to the scheduled maturity thereof in any
manner, or make any payment in violation of any subordination terms of,
any Debt, other than (i) the prepayment of the Advances in accordance
with the terms of this Agreement and (ii) regularly scheduled or
required repayments or redemptions of Debt permitted pursuant to
subsection (j) of this Section, or amend, modify or change in any
manner any term or condition of any such Debt, or permit any of its
Subsidiaries to do any of the foregoing other than to prepay any Debt
payable to the Borrower.
(m) No Negative Pledge. Enter into or suffer to exist, or permit
any of its Subsidiaries to enter into or suffer to exist, any agreement
prohibiting or conditioning the creation or assumption of any Lien upon
any of its property or assets or, in the case of a Subsidiary, any
agreement limiting or preventing any payments by such Subsidiary to the
Borrower, other than (i) in favor of the Administrative Agent and the
Lenders or (ii) in connection with (A) with respect to the Borrower any
Surviving Debt or (B) any Debt permitted by Section 5.02(j) secured by
a Lien on specific property so long as such prohibition or conditions
relates solely to the specific property securing such Debt.
(n) Capital Expenditures. Not make, or permit any of its
Subsidiaries to make, any Capital Expenditures that would cause the
aggregate of all such Capital Expenditures made by the Borrower and its
Subsidiaries in any period set forth below to exceed the amount set
forth below for such period:
Year Ending in Amount
-------------- ------
December 1997 $70,000,000
December 1998 $70,000,000
December 1999 $72,500,000
December 2000 $77,500,000
December 2001 $82,500,000
December 2002 $87,500,000
December 2003 $90,000,000
December 2004 $22,500,000;
provided, however, that if in any period specified above the amount of
Capital Expenditures set forth above for such period exceeds the amount
of Capital Expenditures actually made by the Borrower and its
Subsidiaries in such period, the Borrower and its Subsidiaries shall be
entitled to make additional Capital Expenditures in the next period
specified above in an amount of up to (i) the lesser of (a) the amount
of such excess and (b) $20,000,000 plus (ii) Available Excess Cash
Flow.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to (i) pay any principal of any
Advance when the same becomes due and payable, (ii) reimburse any L/C
Issuer for any payment made by such L/C Issuer under or in respect of
any L/C Obligations when the same becomes due and payable by the
Borrower or (iii) pay any interest on any Advance, or any fees payable
to the Administrative Agent, any Lender or any L/C Issuer hereunder
within five Business Days after the same becomes due and payable; or
any Loan Party shall fail to make any other payment hereunder within
five Business Days after the same becomes due and payable; or
(b) Any representation or warranty made by any Loan Party under
or in connection with any Loan Document shall prove to have been
incorrect in any material respect when made or deemed made; or
(c) (i) The Borrower shall fail to perform or observe any term,
covenant or agreement contained in 5.01(i) [Leverage Ratio], 5.01(j)
[Interest Coverage Ratio], 5.01(k) [Minimum Stockholders' Equity],
5.01(l) [Reporting Requirements], 5.01(m) [Monthly Summary Financial
Reports] or 5.02, or (ii) any Loan Party shall fail to perform or
observe any other term, covenant or agreement contained in any Loan
Document on its part to be performed or observed if such failure shall
remain unremedied for 30 days after written notice thereof shall have
been given to the Borrower by the Administrative Agent or any Lender;
or
(d) The Borrower or any of its Subsidiaries shall fail to pay any
principal of or premium or interest on any Debt which is outstanding in
a principal amount of at least $25,000,000 in the aggregate (but
excluding Debt outstanding hereunder) of the Borrower or such
Subsidiary (as the case may be), when the same becomes due and payable
(whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure shall continue after the
applicable grace period, if any, specified in the agreement or
instrument relating to such Debt; or any other event shall occur or
condition shall exist under any agreement or instrument relating to any
such Debt and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event
or condition is to accelerate, or to permit the acceleration of, the
maturity of such Debt; or any such Debt shall be declared to be due and
payable, or required to be prepaid (other than by a regularly scheduled
required prepayment), redeemed, purchased or defeased, or an offer to
prepay, redeem, purchase or defease such Debt shall be required to be
made, in each case prior to the stated maturity thereof and not at the
option of the Borrower or such Subsidiary; or
(e) The Borrower or any of its Subsidiaries shall generally not
pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against the Borrower or any of its Subsidiaries
seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment
of a receiver, trustee, custodian or other similar official for it or
for any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it), either
such proceeding shall remain undismissed or unstayed for a period of 60
days, or any of the actions sought in such proceeding (including,
without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official
for, it or for any substantial part of its property) shall occur; or
the Borrower or any of its Subsidiaries shall take any corporate action
to authorize any of the actions set forth above in this Section
6.01(e); or
(f) Any judgment or order for the payment of money in excess of
(x) $25,000,000 in any individual case, or (y) $50,000,000 in the
aggregate at any one time, shall be rendered against the Borrower or
any of its Subsidiaries and there shall be any period of 30 consecutive
days during which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect unless
such judgment or order shall have been vacated, satisfied or dismissed
or bonded pending appeal; provided, however, that any such judgment or
order shall not be an Event of Default under this Section 6.01(f) if
and for so long as (i) the entire amount of such judgment or order is
covered by a valid and binding policy of insurance between the
defendant and the insurer covering payment thereof and (ii) such
insurer, which shall be rated at least "A" by A.M. Best Company, has
been notified of, and has not disputed the claim made for payment of
the amount of such judgment or order; or
(g) Any non-monetary judgment or order shall be rendered against
the Borrower or any of its Subsidiaries that is reasonably likely to
have a Material Adverse Effect and there shall be any period of 30
consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in
effect unless such judgment or order shall have been vacated,
satisfied, discharged or bonded pending appeal; or
(h) A Change of Control shall occur or the Borrower shall fail
(i) to own, directly or indirectly (A) through one or more Subsidiary
Guarantors, 100% of the capital stock (by vote and value) of NHL or (B)
subject to transactions permitted pursuant to Section 5.02(c), 100% of
the capital stock (by vote and value) of each other Material Subsidiary
of the Borrower existing on the date hereof or (ii) subject to
transactions permitted pursuant to Section 5.02(c), to maintain Control
of each other Person that shall qualify as a Material Subsidiary of the
Borrower from time to time; or
(i) Any ERISA Event shall have occurred with respect to the
Borrower or any of its ERISA Affiliates and such ERISA Event, together
with any and all other ERISA Events that shall have occurred with
respect to the Borrower or any of its ERISA Affiliates, is reasonably
likely to result in a liability of the Borrower and its ERISA
Affiliates with respect to any Plan of the Borrower or any of its ERISA
Affiliates in excess of $25,000,000; or
(j) The Borrower or any of its ERISA Affiliates shall have been
notified by the sponsor of a Multiemployer Plan of the Borrower or any
of its ERISA Affiliates that it has incurred Withdrawal Liability to
such Multiemployer Plan in an amount that, when aggregated with all
other amounts required to be paid to Multiemployer Plans by the
Borrower and its ERISA Affiliates as Withdrawal Liability (determined
as of the date of such notification), exceeds $25,000,000 or requires
payments exceeding $5,000,000 per annum; or
(k) The Borrower or any of its ERISA Affiliates shall have been
notified by the sponsor of a Multiemployer Plan of the Borrower or any
of its ERISA Affiliates that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV
of ERISA, and as a result of such reorganization or termination the
aggregate annual contributions of the Borrower and its ERISA Affiliates
to all Multiemployer Plans that are then in reorganization or being
terminated have been or will be increased over the amounts contributed
to such Multiemployer Plans for the plan years of such Multiemployer
Plans immediately preceding the plan year in which such reorganization
or termination occurs by an amount exceeding $5,000,000; or
(l) Any material provision of any Loan Document shall be
determined by any court, administrative agency or arbitrator to be
invalid, not binding or unenforceable, or any Loan Party or any
Affiliate thereof shall so assert in writing;
then, and in any such event, the Administrative Agent (i) shall at the
request, or may with the consent, of the Required Lenders, by notice to the
Borrower, declare the obligation of each Lender to make Advances to be
terminated, whereupon the same shall forthwith terminate, and (ii) shall at
the request, or may with the consent, of the Required Lenders, by notice to
the Borrower, declare the Notes, all interest thereon and all other amounts
payable under this Agreement to be forthwith due and payable, whereupon the
Notes, 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 each Lender to make Advances shall automatically
be terminated and (B) the Notes, all such interest and all such amounts
shall automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are hereby expressly
waived by the Borrower.
SECTION 6.02. Cash Collateral. (a) If any Event of Default
described in Section 6.01(e) shall occur or the Notes shall have otherwise
been accelerated or the obligation of each Lender to make Advances been
terminated pursuant to Section 6.01, then without any request or the taking
of any other action by the Administrative Agent or any of the Lenders, the
Borrower shall be obligated forthwith to pay to the Administrative Agent an
amount in immediately available funds equal to the aggregate L/C
Outstandings (regardless of whether any conditions to any drawing can then
be met), to be held by the Administrative Agent as cash collateral as
provided below.
(b) All amounts required to be deposited as cash collateral with
the Administrative Agent pursuant to Section 6.02 shall be deposited in a
cash collateral account (the "Cash Collateral Account") established by the
Borrower with the Administrative Agent, to be held, applied or released for
application as provided in this Section 6.02.
(c) If any Event of Default occurs resulting from the issuance of
an L/C which does not comply with the terms of Section 2.03A(a)(i) or (ii),
the Borrower may cure such Event of Default by depositing in the Cash
Collateral Account within two (2) Business Days after the Borrower has
received written notice thereof an amount equal to the aggregate L/C
Outstandings with respect to such L/C, such amount to be held, applied or
released for application as provided in this Section 6.02.
(d) If and when any portion of the L/C Obligations on which any
deposit of cash collateral was based (the "Relevant Contingent Exposure")
shall become fixed (a "Direct Exposure") as a result of the payment by a L/C
Issuer of a draft presented under any relevant L/C, the amount of such
Direct Exposure (but not more than the amount in the Cash Collateral Account
at the time) shall be withdrawn by the Administrative Agent from the Cash
Collateral Account and shall be paid to the relevant L/C Issuer to be
applied against such Direct Exposure and the Relevant Contingent Exposure
shall thereupon be reduced by such amount. If at any time the amount in the
Cash Collateral Account exceeds the Relevant Contingent Exposure, such
excess amount shall be retained in the Cash Collateral Account and, if and
when requested by the Required Lenders, shall be withdrawn by the
Administrative Agent and applied first to repay the Advances, L/C
Obligations and other due and unpaid amounts required to be paid by the
Borrower hereunder and second any remaining excess shall be paid to the
Borrower; provided however, that (x) if at any time there is no Relevant
Contingent Exposure, such excess amount shall be paid to the Borrower and
(y) so long as no Event of Default shall have occurred and be continuing, a
portion of such excess amount up to the amount deposited and held pursuant
to Section 6.02(c) shall be paid to the Borrower. If at any time the amount
in the Cash Collateral Account is less than the Relevant Contingent
Exposure, the Borrower shall promptly deposit in the Cash Collateral Account
additional cash collateral in the amount of such shortfall.
(e) Interest and other payments and distributions made on or with
respect to the cash collateral held by the Administrative Agent shall be for
the account of the Borrower and shall constitute cash collateral to be held
by the Administrative Agent or returned to the Borrower in accordance with
subsection (d) of this Section 6.02; provided that the Administrative Agent
shall have no obligation to invest any cash collateral on behalf of the
Borrower or any other Person (except that the Administrative Agent shall
invest such cash collateral in Cash Equivalents pursuant to the
Administrative Agent's customary practices if so directed by the Borrower).
Beyond the exercise of reasonable care in the custody thereof, the
Administrative Agent shall have no duty as to any cash collateral in its
possession or control or in the possession or control of any agent or bailee
or any income thereon or as to the preservation of rights against prior
parties or any other rights pertaining thereto. The Administrative Agent
shall be deemed to have exercised reasonable care in the custody and
preservation of the cash collateral in its possession if the cash collateral
is accorded treatment substantially equal to that which it accords its own
property, and shall not be liable or responsible for any loss or damage to
any of the cash collateral, or for any diminution in the value thereof, by
reason of the act or omission of any agent or bailee selected by the
Administrative Agent in good faith. All reasonable expenses and liabilities
incurred by the Administrative Agent in connection with taking, holding and
disposing of any cash collateral (including customary custody and similar
fees with respect to any cash collateral held directly by the Administrative
Agent) shall be paid by the Borrower from time to time upon demand. The
Administrative Agent shall be entitled to apply (and, at the request of the
Required Lenders but subject to applicable law, shall apply) cash collateral
or the proceeds thereof to payment of any such expenses, liabilities and
fees.
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby
appoints and authorizes the Administrative Agent to take such action as
agent on its behalf and to exercise such powers under this Agreement and the
other Loan Documents as are delegated to the Administrative Agent by the
terms hereof and thereof, together with such powers as are reasonably
incidental thereto. As to any matters not expressly provided for by the
Loan Documents (including, without limitation, enforcement or collection of
the Notes), the Administrative Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain
from acting (and shall be fully protected in so acting or refraining from
acting) upon the instructions of the Required Lenders, and such instructions
shall be binding upon all Lenders and all holders of Notes; provided,
however, that the Administrative Agent shall not be required to take any
action which exposes the Administrative Agent to personal liability or which
is contrary to this Agreement or applicable law. The Administrative Agent
agrees to give to each Lender prompt notice of each notice and other report
given to it by the Borrower pursuant to the terms of this Agreement.
SECTION 7.02. Administrative Agent's Reliance, Etc. Neither the
Administrative Agent nor any of its directors, officers, agents or
employees, shall be liable for any action taken or omitted to be taken by it
or them under or in connection with the Loan Documents or any L/C, except
for its or their own gross negligence or willful misconduct. Without
limitation of the generality of the foregoing, the Administrative Agent: (i)
may treat the payee of any Note as the holder thereof until the
Administrative Agent receives and accepts an Assignment and Acceptance
entered into by the Lender that is the payee of such Note, as assignor, and
an Eligible Assignee, as assignee, as provided in Section 8.07; (ii) may
consult with legal counsel (including counsel for the Borrower), independent
public accountants and other experts selected by it and shall not be liable
for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (iii)
makes no warranty or representation to any Lender and shall not be
responsible to any Lender for any statements, warranties or representations
(whether written or oral) made in or in connection with the Loan Documents
or any L/C; (iv) shall not have any duty to ascertain or to inquire as to
the performance or observance of any of the terms, covenants or conditions
of the Loan Documents or any L/C on the part of the Borrower or to inspect
the property (including the books and records) of the Borrower; (v) shall
not be responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with the Loan Documents, any L/C or any other
instrument or document furnished pursuant hereto; and (vi) shall incur no
liability under or in respect of the Loan Documents or any L/C by acting
upon any notice, consent, certificate or other instrument or writing (which
may be by telecopier, telegram, cable or telex) believed by it to be genuine
and signed or sent by the proper party or parties.
SECTION 7.03. CSFB and Affiliates. With respect to its
Commitments, the Advances made by it, the Notes issued to it or in its favor
and any L/Cs issued by it, CSFB shall have the same rights and powers under
the Loan Documents as any other Lender and may exercise the same as though
it were not the Administrative Agent and the term "Lender" or "Lenders"
shall, unless otherwise expressly indicated, include CSFB hereunder in its
individual capacity. CSFB and its affiliates may accept deposits from, lend
money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, the
Borrower, any of its Subsidiaries and any Person who may do business with or
own securities of the Borrower or any such Subsidiary, all as if CSFB were
not the Administrative Agent and without any duty to account therefor to the
Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Administrative
Agent or any other Lender and based on the financial statements referred to
in Section 4.01(f) and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and
without reliance upon the Administrative Agent or any other Lender and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under this Agreement.
SECTION 7.05. Indemnification. The Lenders agree to indemnify
the Administrative Agent and its affiliates (to the extent not reimbursed by
or on behalf of the Borrower), ratably according to the respective principal
amounts of the Advances then owing to each of them (or if no Advances are at
the time outstanding or if any Advances are then owing to Persons which are
not Lenders, ratably according to the respective amounts of their
Commitments), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on,
incurred by, or asserted against the Administrative Agent or any such
affiliate in any way relating to or arising out of the Loan Documents, any
L/C or any action taken or omitted by the Administrative Agent under the
Loan Documents or any L/C, provided that no Lender shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from
the Administrative Agent's or any such affiliate's gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender agrees
to reimburse the Administrative Agent promptly upon demand for its ratable
share of unpaid fees owing to the Administrative Agent, and any out-of-
pocket expenses (including counsel fees) incurred by the Administrative
Agent and any such affiliate, 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, any Loan Document or any L/C,
to the extent that the Administrative Agent is not paid such fees, or the
Administrative Agent or any such affiliate is not reimbursed for such
expenses, by the Borrower.
SECTION 7.06. Successor Administrative Agent. The Administrative
Agent may resign at any time by giving written notice thereof to the Lenders
and the Borrower and may be removed at any time with or without cause by the
Required Lenders. Upon any such resignation or removal, the Required
Lenders shall have the right to appoint, with the consent of the Borrower, a
successor Administrative Agent which shall be a Lender, or if no Lender
consents to act as Administrative Agent hereunder, a commercial bank
organized or licensed under the laws of the United States or of any State
thereof and having a combined capital and surplus of at least $500,000,000
(a "Qualified Bank"). If no successor Administrative Agent shall have been
so appointed by the Required Lenders, and shall have accepted such
appointment, within 30 days after the retiring Administrative Agent's giving
of notice of resignation or the Required Lenders' removal of the retiring
Administrative Agent, then the retiring Administrative Agent may, on behalf
of the Lenders, appoint a successor Administrative Agent, which shall be a
Qualified Bank that is acceptable to the Borrower (which shall not
unreasonably withhold its approval). Upon the acceptance of any appointment
as Administrative Agent thereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations under the Loan Documents. After
any retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Article VII shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Term Notes or the Revolving Credit Notes,
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 Required
Lenders, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided,
however, that (a) no amendment, waiver or consent shall, unless in writing
and signed by each of the Lenders affected thereby (other than any Lender
which is, at such time, a Defaulting Lender), do any of the following: (i)
waive any of the conditions specified in Section 3.01 or, in the case of the
Borrowing on or immediately after the Amendment Effective Date, Section
3.02, (ii) change the definition of the term "Required Lenders" or (iii)
amend this Section 8.01 and (b) no amendment, waiver or consent shall,
unless in writing and signed by the Required Lenders and each Lender that
has an Advance or Commitment affected by such amendment, waiver or consent,
(i) increase the Commitment of such Lender or subject such Lender to any
additional obligations, (ii) reduce the principal of, or interest on, the
Term Notes or the Revolving Credit Notes held by such Lender or any fees or
other amounts payable hereunder to such Lender, (iii) release any Subsidiary
Guarantor or any rights under the Subsidiary Guaranty (except, in the case
of this clause (iii), by operation of law as a consequence of a transaction
permitted by Section 5.02(c)) or (iv) postpone the Revolving Credit
Termination Date, any L/C Expiration Date or the Termination Date or any
date fixed for any payment of principal of or interest on the Term Notes or
the Revolving Credit Notes held by such Lender or any fees or other amounts
payable hereunder to such Lender; provided, further, that no amendment,
waiver or consent shall, unless in writing and signed by the Administrative
Agent in addition to the Lenders required above to take such action, affect
the rights or duties of the Administrative Agent under this Agreement or any
Note.
SECTION 8.02. 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 358 South Main Street, Burlington, North Carolina 27215,
Attention: each of Chief Financial Officer (fax no. (910) 222-1568) and
General Counsel (fax no. (910) 226-3835); if to any Bank at its Domestic
Lending Office on Schedule I hereto; if to any other Lender, at the address
specified in the Assignment and Acceptance pursuant to which it became a
Lender; and if to the Administrative Agent, at its address at 11 Madison
Avenue, 21st floor, New York, New York 10010, Attention: Syndicated
Finance/Agency (fax no. (212) 325-8304); or, as to the Borrower or the
Administrative Agent, at such other address as shall be designated by such
party in a written notice to the other parties and, as to each other party,
at such other address as shall be designated by such party in a written
notice to the Borrower and the Administrative Agent. All such notices and
communications shall be effective (i) when received, if mailed or delivered
or telecopied (if telecopied, only when non-machine confirmation of receipt
is received), or (ii) when confirmed by telex answerback, except that
notices and communications to the Administrative Agent pursuant to Article
II or VII shall not be effective until received by the Administrative Agent.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any
Lender, or the Administrative Agent to exercise, and no delay in exercising,
any right hereunder or under any 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 8.04. Costs; Expenses. (a) The Borrower agrees to pay
on demand all reasonable out-of-pocket costs and expenses of the
Administrative Agent and its affiliates in connection with the preparation,
execution, delivery, administration, modification and amendment of, or
waiver under, the Loan Documents, any L/C and the other documents to be
delivered hereunder (including, without limitation, (A) all reasonable 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 Administrative Agent with respect thereto, with respect to advising
the Administrative Agent as to its rights and responsibilities, or the
protection or preservation of rights or interests, under the Loan Documents
or any L/C, with respect to negotiations with the Borrower or with other
creditors of the Borrower arising out of any Default or any events or
circumstances that may give rise to a Default and 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 reasonable out-of-pocket costs and expenses of the
Administrative Agent and the Lenders in connection with the enforcement of
the Loan Documents 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 reasonable expenses
of counsel for the Administrative Agent and each Lender with respect
thereto) and expenses in connection with the enforcement of rights under
this Section 8.04(a).
(b) If any payment of principal of any Eurodollar Rate Advance or
LIBO CB Advance is made by the Borrower to or for the account of a Lender
other than on the last day of the Interest Period for such Advance, as a
result of a payment or Conversion pursuant to Section 2.05, 2.11 or 2.15,
acceleration of the maturity of the Notes pursuant to Section 6.01 or for
any other reason, or if for any reason any Advance to be Converted to a
Eurodollar Rate Advance on the date specified in the notice of conversion
with respect thereto is not so Converted, the Borrower shall, within ten
days after demand by such Lender (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of
such Lender any amounts required to compensate such Lender for any
additional losses, costs or expenses which it may reasonably incur as a
result of such payment or failure to Convert, including, without limitation,
any loss, cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Lender to fund or
maintain such Advance; provided that such Lender shall have delivered to the
Borrower a written notice setting forth the amount and calculation of such
loss or expense.
(c) The Borrower agrees to indemnify and hold harmless the
Administrative Agent and each Lender and each of their 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 the Loan Documents and the transactions contemplated thereby
or any L/C, 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
Administrative 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.
SECTION 8.05. Right of Set-off. Upon (i) the occurrence and
during the continuance of any Event of Default and (ii) the making of the
request, or the granting of the consent, of the Required Lenders specified
by Section 6.01 to authorize the Administrative Agent to declare the Notes
due and payable pursuant to the provisions of Section 6.01, each Lender 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 such Lender to or for the credit or the
account of the Borrower against any and all of the obligations of the
Borrower to such Lender now or hereafter existing under this Agreement and
the Note or Notes held by such Lender, whether or not such Lender shall have
made any demand under this Agreement or such Note or Notes and although such
obligations may be unmatured. Each Lender agrees promptly to notify the
Borrower and the Administrative Agent after any such set-off and application
shall be made by such Lender, provided that the failure to give such notice
shall not affect the validity of such set-off and application. The rights
of each Lender under this Section 8.05 are in addition to other rights and
remedies (including, without limitation, other rights of set-off) which such
Lender may have.
SECTION 8.06. Binding Effect. This Agreement shall be binding
upon and inure to the benefit of the Borrower, the Administrative Agent and
each Lender and their respective successors and permitted assigns.
SECTION 8.07. Assignments and Participations. (a) The Borrower
shall not have the right to assign its rights hereunder or any interest
herein without the prior written consent of the Administrative Agent and
each Lender. Each Lender may and, if demanded by the Borrower pursuant to
Section 2.14, will assign to one or more banks or other entities all or a
proportionate part of all of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitments, L/C
Obligations, the Committed Advances owing to it and the Term Notes or the
Revolving Credit Notes held by it, but excluding such Lender's Competitive
Bid Advances); provided, however, that (i) each such assignment shall be of
a uniform, and not a varying, percentage of all rights and obligations under
and in respect of the Facilities, (ii) the amount of the Commitment of the
assigning Lender being assigned pursuant to each such assignment (determined
as of the date of the Assignment and Acceptance with respect to such
assignment) shall in no event be less than $5,000,000 and shall be an
integral multiple of $1,000,000 in excess thereof, or shall be an assignment
to another Lender or an assignment of all of the assigning Lender's rights
and obligations hereunder and under the Notes, (iii) each such assignment
shall be to another Lender, an Affiliate of the assigning Lender or, subject
(at all times prior to the occurrence and continuance of an Event of
Default) to the consent of the Borrower (such consent not to be unreasonably
withheld), to an Eligible Assignee, (iv) each such assignment made as a
result of a demand by the Borrower pursuant to Section 2.14 shall be
arranged by the Borrower after consultation with the Administrative Agent
and shall be either an assignment of all of the rights and obligations of
the assigning Lender under this Agreement or an assignment of a portion of
such rights and obligations made concurrently with another such assignment
or other such assignments that together cover all of the rights and
obligations of the assigning Lender under this Agreement, (v) no Lender
shall be obligated to make any such assignment as a result of a demand by
the Borrower pursuant to Section 2.14 unless and until such Lender shall
have received one or more payments from either the Borrower or one or more
Eligible Assignees in an aggregate amount at least equal to the aggregate
outstanding principal amount of the Advances owing to such Lender, together
with accrued interest thereon to the date of payment of such principal
amount and all other amounts payable to such Lender under this Agreement and
(vi) the parties to each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with any Term Notes or Revolving Credit
Notes subject to such assignment and a processing and recordation fee of
$3,500 from the assignee. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each Assignment
and Acceptance, (x) the assignee thereunder shall be a party hereto and, to
the extent that rights and obligations hereunder have been assigned to it
pursuant to such Assignment and Acceptance, have the rights and obligations
of a Lender hereunder and (y) the Lender assignor thereunder shall, to the
extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto).
(b) The Administrative Agent will maintain at its address
referred to in Section 8.02 a copy of each Assignment and Acceptance
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 Committed Advances owing under each Facility 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 shall treat each Person
whose name is recorded in the Register as a Lender hereunder for all
purposes of this 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.
(c) Upon its receipt of an Assignment and Acceptance executed by
an assigning Lender and an assignee representing that it is an Eligible
Assignee, together with any Term Notes or Revolving Credit Notes subject to
such assignment if the assigning Lender is assigning all of its rights and
obligations under this Agreement, the Administrative Agent shall, if such
Assignment and Acceptance has been completed and is in substantially the
form of Exhibit B hereto, (i) accept such Assignment and Acceptance, (ii)
record the information contained therein in the Register and (iii) give
prompt notice thereof to the Borrower. Within five Business Days after its
receipt of such notice, the Borrower, at its own expense, shall execute and
deliver to the Administrative Agent a new Term Note or Revolving Credit Note
to the order of such Eligible Assignee if it is not already a Lender. Such
new Term Note or Revolving Credit Note shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in substantially the
form of Exhibit A-1 or Exhibit A-2, as the case may be. No assignment shall
be effective unless the Assignment and Acceptance has been registered in the
Register as provided in this Section 8.07(c).
(d) Each Lender may sell participations to one or more banks or
other entities in or to all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its
Commitment, L/C Obligations, the Committed Advances and the Competitive Bid
Advances owing to it, the Term Notes or Revolving Credit Notes held by it
and its interests in the Competitive Bid Note); provided, however, that (i)
such Lender's obligations under this Agreement (including, without
limitation, its Commitment to the Borrower hereunder) shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) such Lender
shall remain the holder of any such Term Note or Revolving Credit Note, and
a beneficiary of the Competitive Bid Note, for all purposes of this
Agreement, (iv) the Borrower, the Administrative Agent and the other Lenders
shall continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement and (v) no
participant under any such participation shall have any right to approve any
amendment or waiver of any provision of any Loan Document, or any consent to
any departure by the Borrower therefrom, except to the extent that such
amendment, waiver or consent would reduce or postpone any date fixed for
payment of principal of, or interest on, the Term Notes, Revolving Credit
Notes or Competitive Bid Note or any fees or other amounts payable hereunder
or extend any L/C Expiration Date in each case to the extent subject to such
participation.
(e) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this
Section 8.07, disclose to the assignee or participant or proposed assignee
or participant, any information relating to the Borrower furnished to such
Lender by or on behalf of the Borrower; provided that, prior to any such
disclosure, the assignee or participant or proposed assignee or participant
shall agree pursuant to an agreement substantially in the form of Exhibit G
to preserve the confidentiality of any confidential information relating to
the Borrower received by it from such Lender.
(f) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or
any portion of its rights under this Agreement (including, without
limitation, the Committed Advances and Competitive Bid Advances owing to it
and the Term Notes or Revolving Credit Notes held by it, and its interests
in the Competitive Bid Note) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal
Reserve System.
SECTION 8.08. Governing Law; Submission to Jurisdiction.
(a) This Agreement and the Notes shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to the
conflicts of law principles thereof.
(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 any other Loan Document, 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 8.02, or by any other method of service provided for under the
applicable laws in effect in the State of New York.
SECTION 8.09. 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.
SECTION 8.10. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE
ADMINISTRATIVE AGENT AND THE LENDERS 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 THE LOAN
DOCUMENTS, THE ADVANCES, ANY L/C OR THE ACTIONS OF THE ADMINISTRATIVE AGENT,
THE BORROWER OR ANY LENDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE
OR ENFORCEMENT THEREOF.
SECTION 8.11. Confidentiality. Each Lender acknowledges that it
has been and will be furnished non-public information concerning the
Borrower and its Subsidiaries in connection with the Loan Documents (all
such non-public information, whether furnished before or after the date of
this Agreement, collectively the "Transaction Information"). Each Lender
agrees to keep confidential (and to cause its affiliates, officers,
directors, employees, agents and representatives to keep confidential) all
Transaction Information, except that each Lender shall be permitted to
disclose details of the Transaction Information (a) to such of its
affiliates, officers, directors, employees, agents and representatives
(which agents and representatives shall not include any non-affiliated
financial institutions) and legal or other advisors who need to know such
information in connection with its role as a Lender (or as Administrative
Agent) hereunder and who receive such information with the understanding
that it is confidential; (b) to the extent required by applicable laws and
regulations or by any subpoena or similar legal process (provided that, to
the extent permitted by applicable law, such Lender will promptly notify the
Borrower of such requirement as far in advance of its disclosure as is
practicable to enable the Borrower to seek a protective order and, to the
extent practicable, such Lender will cooperate with the Borrower in seeking
any such order), or requested by any governmental agency or authority having
jurisdiction over such Lender (provided that, to the extent permitted by
applicable law, such Lender will first inform the Borrower of any such
request) other than those from bank regulatory authorities or examiners; (c)
to the extent the Borrower shall have consented to such disclosure in
writing; and (d) to the extent that a public announcement or dissemination
of such Transaction Information shall have been made other than as a result
of a breach of this Section 8.11. Each Lender will use the Transaction
Information only in connection with its role as a Lender (or as
Administrative Agent) hereunder.
SECTION 8.12. Severability. The invalidity, illegality or
unenforceability in any jurisdiction of any provision in or obligation under
this Agreement or any other Loan Document shall not affect or impair the
validity, legality or enforceability of the remaining provisions or
obligations under this Agreement, the Notes or any other Loan Document or of
such provision or obligation in any other jurisdiction.
SECTION 8.13. AMENDMENT OF NOTES. ON AND AS OF THE AMENDMENT
EFFECTIVE DATE, THE NOTES OF EACH LENDER ARE HEREBY AMENDED BY CHANGING THE
RESPECTIVE MATURITY DATES SET FORTH BELOW, AND EACH LENDER IS HEREBY
AUTHORIZED TO STRIKE OUT THE MATURITY DATE INDICATED ON EACH OF SUCH
LENDER'S (I) TERM NOTES AND MARK THE DATE "MARCH 31, 2004" AS THE AMENDED
MATURITY DATE IN LIEU THEREOF AND (II) COMPETITIVE BID NOTES AND REVOLVING
CREDIT NOTES AND MARK THE DATE "MARCH 31, 2002" AS THE AMENDED MATURITY DATE
IN LIEU THEREOF.
SECTION 8.14. Termination of Waivers. All prior waivers of any
provision of the Existing Credit Agreement shall terminate on and as of the
Amendment Effective Date.
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.
BORROWER: LABORATORY CORPORATION OF
-------- AMERICA HOLDINGS
By:/s/ WESLEY R. ELINGBURG
---------------------------------
Name: Wesley R. Elingburg
Title: Executive Vice President
Chief Financial Officer
and Treasurer
ADMINISTRATIVE
AGENT: CREDIT SUISSE FIRST BOSTON,
-------------- as Administrative Agent
By:/s/ KARL STUDER
-------------------------------
Name: Karl Studer
Title: Director
By:/s/ HEATHER RIEKENBERG
-------------------------------
Name: Heather Riekenberg
Title: Vice President
CREDIT SUISSE FIRST BOSTON
By:/s/ KARL STUDER
-------------------------------
Name: Karl Studer
Title: Director
By:/s/ MARTIN P. LASANCE
-------------------------------
Name: Martin P. Lasance
Title: Associate
BANK OF AMERICA ILLINOIS
By:/s/ WENDY L. LORING
-------------------------------
Name: Wendy L. Loring
Title: Vice President
BANQUE NATIONALE DE PARIS
By:/s/ RICHARD L. STED
-------------------------------
Name: Richard L. Sted
Title: Senior Vice President
By:/s/ BONNIE G. EISENSTAT
-------------------------------
Name: Bonnie G. Eisenstat
Title: Vice President
Corporate Banking Director
BAYERISCHE LANDESBANK GIROZENTRALE
By:/s/ PETER OBERMANN
-------------------------------
Name: Peter Obermann
Title: Senior Vice President
Manager Lending Division
By:/s/ MARTHA ASMA
-------------------------------
Name: Martha Asma
Title: Vice President
THE CHASE MANHATTAN BANK
By:/s/ SCOTT S. WARD
-------------------------------
Name: Scott S. Ward
Title: Vice President
CREDIT LYONNAIS (NEW YORK BRANCH)
By:/s/ JOHN OBERLE
-------------------------------
Name: John Oberle
Title: Vice President
DEUTSCHE BANK AG NEW YORK BRANCH
and/or CAYMAN ISLANDS BRANCH
By:/s/ WOLF A. KLUGE
-------------------------------
Name: Wolf A. Kluge
Title: Vice President
By:/s/ SHERINE FANOUS
-------------------------------
Name: Sherine Fanous
Title: Assistant Vice President
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA
By:/s/ JOSEPH H. TOWELL
-------------------------------
Name: Joseph H. Towell
Title: Senior Vice President
THE FUJI BANK, LTD. (NEW YORK BRANCH)
By:/s/ TOSHIAKI YAKURA
-------------------------------
Name: Toshiaki Yakura
Title: Senior Vice President
NATIONSBANK, N.A.
By:/s/ MICHAEL A. CRABB, III
-------------------------------
Name: Michael A. Crabb, III
Title: Vice President
SOCIETE GENERALE
By:/s/ GEORG L. PETERS
-------------------------------
Name: Georg L. Peters
Title: Vice President
THE SUMITOMO BANK, LIMITED
(NEW YORK BRANCH)
By:/s/ JOHN C. KISSINGER
-------------------------------
Name: John C. Kissinger
Title: Joint General Manager
SWISS BANK CORPORATION
By:/s/ PAOLO SEIFERLE
-------------------------------
Name: Paolo Seiferle
Title: Associate Director
Corporate Clients
Switzerland
By:/s/ DOROTHY L. MCKINLEY
-------------------------------
Name: Dorothy L. McKinley
Title: Associate Director
Banking Finance
Support, N.A.
WACHOVIA BANK OF GEORGIA, N.A.
By:/s/ LISA M. SHAWL
-------------------------------
Name: Lisa M. Shawl
Title: Vice President
WESTDEUTSCHE LANDESBANK
By:/s/ DONALD F. WOLF
-------------------------------
Name: Donald F. Wolf
Title: Vice President
By:/s/ C. RUSHLAND
-------------------------------
Name: C. Rushland
Title: Vice President
COMMERZBANK AKTIENGESELLSCHAFT,
Atlanta Agency
By:/s/ A. BREMER
-------------------------------
Name: A. Bremer
Title: Sen. Vice President
By: /s/ D. SUTTLES
-------------------------------
Name: D. Suttles
Title: Vice President
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|---|
BANK BRUSSELS LAMBERT,
New York Branch
By:/s/ MARIA LAUDICINA BOYER
-------------------------------
Name: Maria Laudicina Boyer
Title: Assistant Vice President
By: /s/ DOMINICK H.J. VANGAEVER
-------------------------------
Name: Dominick H.J. Vangaever
Title: Senior Vice President Credit
Dates Referenced Herein and Documents Incorporated by Reference
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