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EXHIBIT 10.1
$15,000,000
REVOLVING CREDIT AND GUARANTEE AGREEMENT
among
IMPATH INC.,
as Borrower,
IMPATH PREDICTIVE ONCOLOGY, INC.,
MEDICAL REGISTRY SERVICES, INC.,
IMPATH INFORMATION SERVICES, INC.,
TAMTRON CORPORATION,
and
IMPATH PHYSICIAN SERVICES, INC.
as Guarantors,
The Several Lenders
from Time to Time Parties Hereto,
FLEET NATIONAL BANK
as Administrative Agent
Dated as of September 30, 2003
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TABLE OF CONTENTS
PAGE
Section 1. DEFINITIONS.................................................................................................2
1.1 Defined Terms...............................................................................................2
1.2 Other Definitional Provisions..............................................................................14
Section 2. REVOLVING CREDIT FACILITY: AMOUNT AND TERMS OF COMMITMENTS................................................15
2.1 Revolving Credit Commitments...............................................................................15
2.2 Procedure for Revolving Credit Borrowing...................................................................15
2.3 Repayment of Loans; Evidence of Debt.......................................................................16
2.4 Fees, etc..................................................................................................16
2.5 Termination or Reduction of Revolving Credit Commitments...................................................17
2.6 Optional Prepayments.......................................................................................17
2.7 Mandatory Prepayments and Commitment Reductions............................................................17
2.8 Interest Rates and Payment Dates...........................................................................17
2.9 Computation of Interest and Fees...........................................................................18
2.10 Pro Rata Treatment and Payments............................................................................18
2.11 Taxes......................................................................................................19
2.12 Change of Lending Office...................................................................................21
Section 3. LETTERS OF CREDIT..........................................................................................21
3.1 L/C Commitment.............................................................................................21
3.2 Procedure for Issuance of Letter of Credit.................................................................21
3.3 Fees and Other Charges.....................................................................................22
3.4 L/C Participations.........................................................................................22
3.5 Reimbursement Obligation of the Borrower...................................................................23
3.6 Obligations Absolute.......................................................................................23
3.7 Letter of Credit Payments..................................................................................24
3.8 Applications...............................................................................................24
Section 4. PRIORITY AND LIENS.........................................................................................24
4.1 Priority and Liens.........................................................................................24
4.2 Security Interest in Accounts..............................................................................25
4.3 Payment of Obligations.....................................................................................25
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TABLE OF CONTENTS
(continued)
PAGE
4.4 No Discharge; Survival of Claims...........................................................................25
Section 5. REPRESENTATIONS AND WARRANTIES.............................................................................26
5.1 Financial Condition........................................................................................26
5.2 No Change..................................................................................................26
5.3 Corporate Existence; Compliance with Law...................................................................26
5.4 Corporate Power; Authorization; Enforceable Obligations....................................................26
5.5 No Legal Bar...............................................................................................27
5.6 No Material Litigation.....................................................................................27
5.7 Ownership of Property; Liens...............................................................................27
5.8 Intellectual Property......................................................................................27
5.9 Taxes......................................................................................................27
5.10 Federal Regulations........................................................................................28
5.11 Labor Matters..............................................................................................28
5.12 ERISA......................................................................................................28
5.13 Investment Company Act; Other Regulations..................................................................28
5.14 Subsidiaries...............................................................................................29
5.15 Use of Proceeds............................................................................................29
5.16 Environmental Matters......................................................................................29
5.17 Accuracy of Information, etc...............................................................................30
5.18 Regulation H...............................................................................................30
Section 6. CONDITIONS PRECEDENT.......................................................................................30
6.1 Conditions to Initial Revolving Extension of Credit........................................................30
6.2 Conditions to Each Revolving Extension of Credit...........................................................32
Section 7. AFFIRMATIVE COVENANTS......................................................................................33
7.1 Financial Statements.......................................................................................33
7.2 Certificates; Other Information............................................................................34
7.3 Collateral Audit...........................................................................................35
7.4 Payment of Obligations.....................................................................................36
7.5 Conduct of Business and Maintenance of Existence, etc......................................................36
7.6 Maintenance of Property; Insurance.........................................................................36
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TABLE OF CONTENTS
(continued)
PAGE
7.7 Inspection of Property; Books and Records; Discussions.....................................................36
7.8 Notices....................................................................................................36
7.9 Environmental Laws.........................................................................................37
7.10 Further Assurances.........................................................................................38
7.11 Retention of Chief Restructuring Officer...................................................................38
7.12 Retention of Investment Bankers............................................................................38
7.13 Cash Management System.....................................................................................38
7.14 Consultants................................................................................................38
Section 8. NEGATIVE COVENANTS.........................................................................................39
8.1 Compliance with Budget.....................................................................................39
8.2 Limitation on Indebtedness.................................................................................39
8.3 Limitation on Liens........................................................................................39
8.4 Limitation on Fundamental Changes..........................................................................40
8.5 Limitation on Disposition of Property......................................................................40
8.6 Limitation on Restricted Payments..........................................................................41
8.7 Limitation on Capital Expenditures.........................................................................41
8.8 Limitation on Investments..................................................................................41
8.9 Limitation on Transactions with Affiliates.................................................................41
8.10 Limitation on Sales and Leasebacks.........................................................................42
8.11 Limitation on Changes in Fiscal Periods....................................................................42
8.12 Limitation on Restrictions on Subsidiary Distributions.....................................................42
8.13 Limitation on Lines of Business............................................................................42
8.14 Cash Collateral Account....................................................................................42
8.15 Health-Care-Insurance Receivables Account..................................................................42
8.16 Chapter 11 Claims; Payment of Pre-Petition Date Claims.....................................................42
8.17 Proceeds of Revolving Credit Loans.........................................................................43
8.18 Reclamation Claims; Bankruptcy Code Section 546(g) Agreements..............................................43
8.19 Reserve Account............................................................................................43
Section 9. EVENTS OF DEFAULT..........................................................................................43
Section 10. THE ADMINISTRATIVE AGENT...................................................................................47
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TABLE OF CONTENTS
(continued)
PAGE
10.1 Appointment................................................................................................47
10.2 Delegation of Duties.......................................................................................48
10.3 Exculpatory Provisions.....................................................................................48
10.4 Reliance by Agents.........................................................................................48
10.5 Notice of Default..........................................................................................49
10.6 Non-Reliance on Administrative Agent and Other Lenders.....................................................49
10.7 Indemnification............................................................................................49
10.8 Administrative Agent in Its Individual Capacity............................................................50
10.9 Successor Administrative Agent.............................................................................50
10.10 Authorization to Release Liens and Guarantees..............................................................50
Section 11. GUARANTEE..................................................................................................51
11.1 Guarantee..................................................................................................51
11.2 No Impairment of Guarantee.................................................................................52
11.3 Subrogation................................................................................................52
Section 12. REMEDIES; APPLICATION OF PROCEEDS..........................................................................52
12.1 Remedies; Obtaining the Collateral Upon Default............................................................52
12.2 Remedies; Disposition of the Collateral....................................................................53
12.3 Application of Proceeds....................................................................................54
12.4 WAIVER OF CLAIMS...........................................................................................54
12.5 Remedies Cumulative........................................................................................55
12.6 Discontinuance of Proceedings..............................................................................55
Section 13. MISCELLANEOUS..............................................................................................56
13.1 Amendments and Waivers.....................................................................................56
13.2 Notices....................................................................................................57
13.3 No Waiver; Cumulative Remedies.............................................................................58
13.4 Survival of Representations and Warranties.................................................................58
13.5 Payment of Expenses........................................................................................58
13.6 Successors and Assigns; Participations and Assignments.....................................................59
13.7 Adjustments; Set-off.......................................................................................61
13.8 Counterparts...............................................................................................62
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TABLE OF CONTENTS
(continued)
PAGE
13.9 Severability...............................................................................................62
13.10 Integration................................................................................................62
13.11 GOVERNING LAW..............................................................................................62
13.12 Submission To Jurisdiction; Waivers........................................................................62
13.13 Acknowledgments............................................................................................63
13.14 Absence of Prejudice with Respect to Matters Before the Bankruptcy Court...................................63
13.15 Confidentiality............................................................................................63
13.16 Accounting Changes.........................................................................................64
13.17 WAIVERS OF JURY TRIAL......................................................................................64
SCHEDULES:
Schedule 1 .......... Commitments
Schedule 5.3(c)...... Qualification as a Foreign Corporation
Schedule 5.3(d)...... Requirements of Law
Schedule 5.6......... Litigations
Schedule 5.9......... Taxes
Schedule 5.14........ Subsidiaries
Schedule 5.16........ Environmental Matters
Schedule 8.2(c)...... Outstanding Indebtedness
Schedule 8.8(a)...... Existing Investments
Schedule 8.14 ....... Accounts
EXHIBITS:
Exhibit A .......... Form of Compliance Certificate
Exhibit B .......... Form of Interim Order
Exhibit C .......... Form of Note
Exhibit D .......... Form of Exemption Certificate
Exhibit E .......... Form of Closing Certificate
Exhibit F .......... Form of Legal Opinion
Exhibit G .......... Form of Assignment and Acceptance
Exhibit H .......... Form of Collateral Certificate
Exhibit I .......... Form of Budget
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REVOLVING CREDIT AND GUARANTEE AGREEMENT, dated as of September 30,
2003 (the "Agreement"), by and among IMPATH INC., a Delaware corporation (the
"Borrower"), IMPATH PREDICTIVE ONCOLOGY, INC., a Delaware corporation, MEDICAL
REGISTRY SERVICES, INC. a Delaware corporation, IMPATH INFORMATION SERVICES,
INC., a Delaware corporation, TAMTRON CORPORATION, a California corporation and
IMPATH PHYSICIAN SERVICES, INC., a Delaware corporation (the "Guarantors"), the
several banks and other financial institutions or entities from time to time
parties to this Agreement (the "Lenders") and FLEET NATIONAL BANK, as
administrative agent (in such capacity, the "Administrative Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, on September 28, 2003 (the "Petition Date"), the Borrower
and the Guarantors filed voluntary petitions under Section 301 of the Bankruptcy
Code with the Bankruptcy Court initiating their Chapter 11 cases (the "Cases")
and have continued in the possession of their assets and in the management of
their business pursuant to Sections 1107 and 1108 of the Bankruptcy Code;
WHEREAS, the Borrower has requested that the Lenders make available a
revolving credit and guarantee facility in an aggregate principal amount not to
exceed $15,000,000 (the "Revolving Credit Facility"), under which all of the
Borrower's obligations are guaranteed by the Guarantors, and the proceeds of
which will be used (a) for the working capital and other corporate needs of the
Borrower and the Guarantors in accordance with the terms of the Budget and (b)
for payment of Chapter 11 expenses, including professional fees, in each case
subject to the terms of this Agreement, the Orders and the Budget;
WHEREAS, to provide security for the repayment and reimbursement of
Revolving Extensions of Credit and the payment of the other Obligations of the
Borrower and the Guarantors hereunder and under the other Loan Documents, the
Borrower and the Guarantors shall provide to the Administrative Agent (for the
ratable benefit of the Lenders), pursuant to this Agreement and the Orders, the
following (each as more fully described herein):
(a) an allowed administrative expense claim in the Cases pursuant to
Section 364(c)(1) of the Bankruptcy Code having a superpriority over all
administrative expenses of the kind specified in Sections 503(b) and 507(b)
of the Bankruptcy Code;
(b) a perfected first priority Lien, pursuant to Section 364(c)(2) of
the Bankruptcy Code, upon all unencumbered Property of the Borrower and the
Guarantors and all cash and cash equivalents in the Cash Collateral Account
and Health-Care-Insurance Receivables Account;
(c) a perfected second priority Lien, pursuant to Section 364(c)(3) of
the Bankruptcy Code, upon all Property of the Borrower and the Guarantors
(other than property of the Borrower and the Guarantors subject to Liens
securing the Prepetition Obligations) that is otherwise subject to valid
and perfected Liens in existence on the Petition Date and subject to other
Liens permitted to exist hereunder; and
(d) a perfected first priority priming Lien, pursuant to Section
364(d)(1) of the Bankruptcy Code, upon all Property of the Borrower and the
Guarantors that is subject to the Liens securing the Prepetition
Obligations and any Liens granted after the Petition Date to provide
adequate protection in respect of such obligations;
WHEREAS, all of the claims and the Liens granted hereunder and
pursuant to the Orders to the Administrative Agent and the Lenders shall be
subject to the Carve-Out; and
WHEREAS, the Lenders are willing to make such credit facility
available upon and subject to the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the agreements
hereinafter set forth, the parties hereto hereby agree as follows:
Section 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms listed in
this Section 1.1 shall have the respective meanings set forth in this Section
1.1.
"Accounts": as to any Person, any "accounts" (as such term is defined
in Section 9-102(2) of the Uniform Commercial Code as in effect on the date
hereof in the State of New York) now or hereafter owned by such Person.
"Administrative Agent": as defined in the preamble hereto.
"Affiliate": as to any Person, any other Person that, directly or
indirectly, is in control of, is controlled by, or is under common control
with, such Person. For purposes of this definition, "control" of a Person
means the power, directly or indirectly, either to (a) vote 10% or more of
the securities having ordinary voting power for the election of directors
(or persons performing similar functions) of such Person or (b) direct or
cause the direction of the management and policies of such Person, whether
by contract or otherwise.
"Agreement": this Credit Agreement, as amended, supplemented or
otherwise modified from time to time.
"Amended Budget": is defined in Section 7.2(c).
"Application": an application, in such form as the Issuing Lender may
specify from time to time, requesting the Issuing Lender to open a Letter
of Credit.
"Asset Sale": any Disposition of Property or series of related
Dispositions of Property (excluding any such Disposition permitted by
clause (a), (b), (c) or (d) of Section 8.5) of the Borrower or any of its
Subsidiaries.
"Assignee": as defined in Section 13.6(c).
2
"Assignment and Acceptance": an assignment and acceptance
substantially in the form of Exhibit G hereto.
"Assignor": as defined in Section 13.6(c).
"Available Revolving Credit Commitment": with respect to any Lender at
any time, an amount equal to the excess, if any, of (a) such Lender's
Revolving Credit Commitment then in effect over (b) such Lender's Revolving
Extensions of Credit then outstanding.
"Bankruptcy Code": The Bankruptcy Reform Act of 1978, as heretofore
and hereafter amended, and codified as 11 U.S.C.ss.ss.101 et seq.
"Bankruptcy Court": The United States Bankruptcy Court for the
Southern District of New York or any other court having jurisdiction over
the Cases from time to time.
"Benefited Lender": as defined in Section 13.7.
"Board": the Board of Governors of the Federal Reserve System of the
United States (or any successor).
"Borrower": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified by the Borrower as a date
on which the Borrower requests the Lenders to make Revolving Credit Loans
hereunder.
"Budget": the budget and other cash flow and financial projections of
the Borrower covering the period from Petition Date through December 26,
2003 and itemizing on a weekly basis all revenues projected to be received
and all expenditures proposed to be made during such periods and other cash
flow and financial projections, and all Amended Budgets, substantially in
the form of Exhibit I hereto, delivered and accepted pursuant to Section
7.2(c), which shall at all times be in form and substance satisfactory to
the Administrative Agent and the Required Lenders.
"Business": as defined in Section 5.16(b).
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law
to close.
"Capital Expenditures": for any period, with respect to any Person,
the aggregate of all expenditures by such Person for the acquisition or
leasing (pursuant to a capital lease) of fixed or capital assets or
additions to equipment (including replacements, capitalized repairs and
improvements during such period) which are required to be capitalized under
GAAP on a balance sheet of such Person.
"Capital Lease Obligations": with respect to any Person, the
obligations of such Person to pay rent or other amounts under any lease of
(or other arrangement conveying the right to use) real or personal
3
property, or a combination thereof, which obligations are required to be
classified and accounted for as capital leases on a balance sheet of such
Person under GAAP; and, for the purposes of this Agreement, the amount of
such obligations at any time shall be the capitalized amount thereof at
such time determined in accordance with GAAP.
"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants, rights or options to purchase any of
the foregoing.
"Carve-Out": as defined in Section 4.1(a).
"Cases": as defined in the recitals hereto.
"Cash Collateral": the meaning set forth in Section 363(a) of the
Bankruptcy Code.
"Cash Collateral Account": the account established by the Borrower
under the sole and exclusive control of the Administrative Agent maintained
at the office of the Administrative Agent designated as "IMPATH Inc.,
Debtor-in-Possession Cash Collateral Account" or other similar title.
"Cash Equivalents": (a) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States Government or issued by
any agency thereof and backed by the full faith and credit of the United
States, in each case maturing within one year from the date of acquisition;
(b) certificates of deposit, time deposits, eurodollar time deposits or
overnight bank deposits having maturities of six months or less from the
date of acquisition issued by any Lender or by any commercial bank
organized under the laws of the United States of America or any state
thereof having combined capital and surplus of not less than $500,000,000;
(c) commercial paper of an issuer rated at least A-2 by Standard & Poor's
Ratings Services ("S&P") or P-2 by ▇▇▇▇▇'▇ Investors Service, Inc.
("Moody's"), or carrying an equivalent rating by a nationally recognized
rating agency, if both of the two named rating agencies cease publishing
ratings of commercial paper issuers generally, and maturing within six
months from the date of acquisition; (d) repurchase obligations of any
Lender or of any commercial bank satisfying the requirements of clause (b)
of this definition, having a term of not more than 30 days with respect to
securities issued or fully guaranteed or insured by the United States
government; (e) securities with maturities of one year or less from the
date of acquisition issued or fully guaranteed by any state, commonwealth
or territory of the United States, by any political subdivision or taxing
authority of any such state, commonwealth or territory or by any foreign
government, the securities of which state, commonwealth, territory,
political subdivision, taxing authority or foreign government (as the case
may be) are rated at least A by S&P or A by Moody's; (f) securities with
maturities of six months or less from the date of acquisition backed by
standby letters of credit issued by any Lender or any commercial bank
satisfying the requirements of clause (b) of this definition; and (g)
shares of money market mutual or similar funds which invest exclusively in
assets satisfying the requirements of clauses (a) through (f) of this
definition.
4
"Closing Date": the date on which the conditions precedent set forth
in Section 6.1 shall have been satisfied, which date shall be no later than
October 3, 2003.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral": all Property of the Loan Parties, now owned or hereafter
acquired, upon which a Lien is purported to be created by this Agreement
and the Orders.
"Commonly Controlled Entity": an entity, whether or not incorporated,
that is under common control with the Borrower within the meaning of
Section 4001 of ERISA or is part of a group that includes the Borrower and
that is treated as a single employer under Section 414 of the Code.
"Compliance Certificate": a certificate duly executed by a Responsible
Officer substantially in the form of Exhibit A.
"Confirmation Order": an order of the Bankruptcy Court confirming a
Plan of Reorganization in any of the Cases.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
Property is bound.
"Core 363 Sale": one or more transactions pursuant to which one or
more purchasers acquire, in a single transaction, all or substantially all
of the assets of IMPATH Physician Services, Inc., IMPATH Predictive
Oncology, Inc. and IMPATH Physicians Network L.L.C., free and clear of all
claims, liens and encumbrances, pursuant to a sale under Sections 363 and
365 of the Bankruptcy Code or otherwise.
"Debtors": the Borrower and the Guarantors.
"Default": any of the events specified in Section 9, whether or not
any requirement for the giving of notice, the lapse of time, or both, has
been satisfied.
"Derivatives Counterparty": as defined in Section 8.6.
"Disposition": with respect to any Property, any sale, lease, sale and
leaseback, assignment, conveyance, transfer or other disposition thereof;
and the terms "Dispose" and "Disposed of" shall have correlative meanings.
"Dollars" and "$": lawful currency of the United States of America.
"Effective Date": the effective date of a Plan of Reorganization.
5
"Environmental Laws": any and all laws, rules, orders, regulations,
statutes, ordinances, guidelines, codes, decrees, or other legally
enforceable requirements (including, without limitation, common law) of any
international authority, foreign government, the United States, or any
state, local, municipal or other governmental authority, regulating,
relating to or imposing liability or standards of conduct concerning
protection of the environment or of human health, or employee health and
safety, as has been, is now, or may at any time hereafter be, in effect.
"Environmental Permits": any and all permits, licenses, approvals,
registrations, notifications, exemptions and other authorizations required
under any Environmental Law.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Event of Default": any of the events specified in Section 9, provided
that any requirement for the giving of notice, the lapse of time, or both,
has been satisfied.
"Federal Funds Effective Rate": for any day, 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 on
the next succeeding 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 the day of such transactions received by
the Reference Lender from three federal funds brokers of recognized
standing selected by it.
"Final Order": an order of the Bankruptcy Court entered in the Cases
after a final hearing under Bankruptcy Rule 4001(c)(2) granting final
approval of this Agreement and the other Loan Documents and the
transactions contemplated hereby and thereby and granting the Liens and
Super-Priority Claims in favor of the Administrative Agent for the ratable
benefit of the Lenders, substantially in the form of the Interim Order, and
otherwise in form and substance reasonably satisfactory to the
Administrative Agent.
"Financial Advisor": ▇▇▇▇ ▇▇▇▇▇ Consulting Group LLC or another
financial advisor retained by, and in the sole discretion of, the
Administrative Agent.
"Forensic Accountant": ▇▇▇ ▇▇▇▇▇▇ and Associates or another forensic
accountant retained by or on behalf of the Borrower, its Subsidiaries
and/or the Borrower's board of directors or a committee thereof.
"Funding Office": the office specified from time to time by the
Administrative Agent as its funding office by notice to the Borrower and
the Lenders.
"GAAP": generally accepted accounting principles in the United States
of America as in effect from time to time, except that for purposes of
Section 7.1, GAAP shall be determined on the basis of such principles in
effect on the date hereof and consistent with those used in the preparation
of the most recent audited financial statements referred to in Section 5.1.
6
"Governmental Authority": any nation or government, any state or other
political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantee Obligation": as to any Person (the "guaranteeing person"),
any obligation of (a) the guaranteeing person or (b) another Person
(including, without limitation, any bank under any letter of credit) to
induce the creation of which the guaranteeing person has issued a
reimbursement, counterindemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends
or other obligations (the "primary obligations") of any other third Person
(the "primary obligor") in any manner, whether directly or indirectly,
including, without limitation, any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary obligation or
any Property constituting direct or indirect security therefor, (ii) to
advance or supply funds (1) for the purchase or payment of any such primary
obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase Property, securities or services
primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such
primary obligation or (iv) otherwise to assure or hold harmless the owner
of any such primary obligation against loss in respect thereof; provided,
however, that the term Guarantee Obligation shall not include endorsements
of instruments for deposit or collection in the ordinary course of
business. The amount of any Guarantee Obligation of any guaranteeing person
shall be deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Guarantee Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the instrument
embodying such Guarantee Obligation, unless such primary obligation and the
maximum amount for which such guaranteeing person may be liable are not
stated or determinable, in which case the amount of such Guarantee
Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the Borrower in
good faith.
"Guarantors": as defined in the preamble hereto.
"Health-Care-Insurance Receivables Account": the account established
by the Borrower under the sole and exclusive control of the Borrower
maintained at JP MorganChase Bank (a non-Lender Bank) designated as "IMPATH
Inc., Health-Care-Insurance Receivables Account" which shall be used solely
for receipt of Health-Care-Insurance Receivables, in accordance with
Section 7.12.
"Health-Care-Insurance Receivable": as to any Person, any
"health-care-insurance receivable" (as such term is defined in Section
9-102(46) of the Uniform Commercial Code as in effect on the date hereof in
the State of New York) now or hereafter owned by such Person.
7
"Indebtedness": of any Person at any date, 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
Capital Lease Obligations of such Person, (f) all obligations of such
Person, contingent or otherwise, as an account party or applicant under
acceptance, letter of credit or similar facilities, (g) all obligations of
such Person, contingent or otherwise, to purchase, redeem, retire or
otherwise acquire for value any Capital Stock of such Person, (h) all
Guarantee Obligations of such Person in respect of obligations of the kind
referred to in clauses (a) through (g) above; (i) all obligations of the
kind referred to in clauses (a) through (h) above secured by (or for which
the holder of such obligation 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, whether or
not such Person has assumed or become liable for the payment of such
obligation, and (j) the liquidation value of any preferred Capital Stock of
such Person or its Subsidiaries that is held by any Person other than the
issuer thereof and its Wholly Owned Subsidiaries.
"Indemnified Liabilities": as defined in Section 13.5.
"Indemnitee": as defined in Section 13.5.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": the collective reference to all rights,
priorities and privileges relating to intellectual property, whether
arising under United States, multinational or foreign laws or otherwise,
including, without limitation, copyrights, copyright licenses, patents,
patent licenses, trademarks, trademark licenses, technology, know-how and
processes, and all rights to ▇▇▇ at law or in equity for any infringement
or other impairment thereof, including the right to receive all proceeds
and damages therefrom.
"Interest Payment Date": the last day of each month.
"Interim Order": an order of the Bankruptcy Court entered in the
Cases, after notice and a hearing conducted in accordance with Bankruptcy
Rule 4001(c), granting interim approval of this Agreement and the other
Loan Documents and the transactions contemplated hereby and thereby and
granting the Liens and Super-Priority Claims in favor of the Administrative
Agent for the benefit of the Agents and the Lenders, substantially in the
form of Exhibit B, and otherwise in form and substance reasonably
satisfactory to the Agents.
8
"Inventory": as to any Person, any "inventory" (as such term is
defined in Section 9-102(48) of the Uniform Commercial Code as in effect on
the date hereof in the State of New York) now or hereafter owned by such
Person.
"Investment": as defined in Section 8.8.
"Investment Bankers": Asante Capital Advisors, with respect to the
Non-Core 363 Sale, ▇▇▇▇▇▇ Buckfire ▇▇▇▇▇ ▇▇▇▇, with respect to the Core 363
Sale, or another investment banker retained by the Borrower and
satisfactory to the Administrative Agent.
"Issuing Lender": Fleet National Bank or any other Lender who has
agreed with the Administrative Agent and the Borrower to be bound to the
terms of this Agreement relative to being an Issuing Lender, in their
respective capacities as the issuers of Letters of Credit hereunder.
"LC Commitment": $1,000,000.
"LC Disbursement": any payment made by any Issuing Lender pursuant to
a Letter of Credit.
"LC Exposure": at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the
aggregate amount of all Reimbursement Obligations.
"LC Fee Payment Date": the last day of each month and the last day of
the Revolving Credit Commitment Period.
"LC Obligations": at any time, an amount equal to the sum of (a) the
aggregate then undrawn and unexpired amount of the then outstanding Letters
of Credit plus (b) the aggregate amount of drawings under Letters of Credit
which have not then been reimbursed pursuant to Section 3.5.
"LC Participant": the collective reference to the Lenders other than
the Issuing Lender.
"Lenders": as defined in the preamble hereto.
"Letters of Credit": as defined in Section 3.1(a).
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever (including,
without limitation, any conditional sale or other title retention agreement
and any capital lease having substantially the same economic effect as any
of the foregoing).
9
"Loan Documents": this Agreement, the Notes, and all documents
executed in connection therewith, including, without limitation, all
promissory notes, guarantees, mortgages, debentures, security agreements
and pledge agreements.
"Loan Parties": the Borrower, each Guarantor and any other Subsidiary
of the Borrower that is or becomes a party to any Loan Document.
"Material Adverse Effect": a material adverse effect on (a) the
business, assets, Property, condition (financial or otherwise) or prospects
of the Borrower and its Subsidiaries taken as a whole, (b) the ability of
the Borrower and the Guarantors, taken as a whole, to perform the
obligations under the Orders and the Loan Documents, (c) the validity or
enforceability of the Orders or any of the Loan Documents, (d) the rights
and remedies of the Lenders and the Administrative Agent under the Orders
and the Loan Documents or (e) timely payment of the principal of or
interest on the Revolving Credit Loans or other amounts payable in
connection therewith
"Material Environmental Amount": an amount payable by the Borrower
and/or its Subsidiaries in excess of an aggregate of $500,000 during the
term of this Agreement for remedial costs, compliance costs, compensatory
damages, punitive damages, fines, penalties or any combination thereof, in
any case pursuant to any Environmental Law or with respect to any Materials
of Environmental Concern.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products,
polychlorinated biphenyls, urea-formaldehyde insulation, asbestos,
pollutants, contaminants, radioactivity, and any other substances or forces
of any kind, whether or not any such substance or force is defined as
hazardous or toxic under any Environmental Law, that is regulated pursuant
to or could give rise to liability under any Environmental Law.
"Maturity Date": March 26, 2004.
"Multiemployer Plan": a Plan that is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": in connection with any Asset Sale, Recovery Event
or Tax Refund, the proceeds thereof in the form of cash and Cash
Equivalents (including any such proceeds received by way of deferred
payment of principal pursuant to a note or installment receivable or
purchase price adjustment receivable or otherwise, but only as and when
received) of such Asset Sale, Recovery Event or Tax Refund, net of
investment banking or other reasonable fees, amounts required to be applied
to the repayment of Indebtedness secured by a Lien expressly permitted
hereunder on any asset which is the subject of such Asset Sale or Recovery
Event or pursuant to the Orders and taxes paid or reasonably estimated to
be payable as a result thereof (after taking into account any available tax
credits or deductions and any tax sharing arrangements).
"Non-Core 363 Sale": one or more transactions pursuant to which one or
more purchasers acquire, in a single transaction, all or substantially all
of the assets of IMPATH Information Services, Inc. and its direct
Subsidiaries, free and clear of all claims, liens and encumbrances,
pursuant to a sale under Sections 363 and 365 of the Bankruptcy Code or
otherwise.
10
"Non-Excluded Taxes": as defined in Section 2.11(a).
"Note": any promissory note evidencing any Revolving Credit Loan.
"Obligations": the unpaid principal of and interest on (including,
without limitation, interest accruing after the maturity of the Revolving
Credit Loans) the Revolving Credit Loans and all other obligations and
liabilities of the Borrower and the Guarantors to the Administrative Agent
or to any Lender, whether direct or indirect, absolute or contingent, due
or to become due, or now existing or hereafter incurred, which may arise
under, out of, or in connection with, this Agreement, any other Loan
Document, or any other document made, delivered or given in connection
herewith or therewith, whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses (including,
without limitation, all fees, charges and disbursements of counsel to the
Administrative Agent or to any Lender that are required to be paid by the
Borrower pursuant hereto) or otherwise.
"Orders": the Interim Order and the Final Order.
"Other Taxes": any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies
arising from any payment made hereunder or from the execution, delivery or
enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document.
"Participant": as defined in Section 13.6(b).
"Payment Office": the office specified from time to time by the
Administrative Agent as its payment office by notice to the Borrower and
the Lenders.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA (or any successor).
"Person": an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of
whatever nature.
"Petition Date": as defined in the recitals hereto.
"Plan": at a particular time, any employee benefit plan that is
covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Plan of Reorganization": a Chapter 11 plan of reorganization in any
of the Cases.
11
"Prepetition Administrative Agent": Fleet National Bank, as
administrative agent under the Prepetition Credit Agreement.
"Prepetition Credit Agreement": the Credit Agreement dated as of June
4, 2001, among the Borrower, the Guarantors, the Prepetition Lenders and
the Prepetition Administrative Agent, as amended, supplemented or otherwise
modified prior to the Petition Date.
"Prepetition Collateral": all Property securing the Prepetition
Obligations.
"Prepetition Lenders": collectively, the several banks, financial
institutions and other entities from time to time parties to the
Prepetition Credit Agreement.
"Prepetition Obligations": the aggregate outstanding principal amount
of the loans and other financial accommodations made under or pursuant to
the Prepetition Credit Agreement (including, without limitation, in
connection with all guarantees thereof) and all accrued but unpaid interest
and fees, costs and other charges payable to the Prepetition Administrative
Agent or the Prepetition Lenders under or pursuant to the Prepetition
Credit Agreement and related loan documents.
"Prime Rate": the rate of interest per annum publicly announced from
time to time by the Reference Lender as its prime or base rate in effect at
its principal office in New York City (the Prime Rate not being intended to
be the lowest rate of interest charged by the Reference Lender in
connection with extensions of credit to debtors).
"Property": collectively, any and all right or interest in or to
property of any kind whatsoever, whether real, personal or mixed and
whether tangible or intangible, including, without limitation, fixtures,
health-care-insurance receivables, Capital Stock of each of the Borrower's
Subsidiaries, promissory notes (including, without limitation, all
inter-company notes), real estate, leasehold interests, causes of action,
tax refunds, cash, investments, securities and other property contained in
any account maintained by the Borrower or any Guarantor (including, without
limitation, cash and cash equivalents) with Fleet National Bank or any
other financial institution.
"Real Properties": as defined in Section 5.16(a).
"Recovery Event": any settlement of or payment in respect of any
property or casualty insurance claim, any condemnation proceeding relating
to any asset of the Borrower or any of its Subsidiaries or any Federal,
State, county or other tax refund.
"Reference Lender": Fleet National Bank, Hartford, CT office.
"Register": as defined in Section 13.6(d).
"Regulation U": Regulation U of the Board as in effect from time to
time.
"Reimbursement Obligation": the obligation of the Borrower to
reimburse the Issuing Lender pursuant to Section 3.5 for amounts drawn
under Letters of Credit.
12
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section
4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(c) of
ERISA, other than those events as to which the thirty day notice period is
waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of PBGC
Reg.ss.4043.
"Required Lenders": at any time, the holders of more than 50% of the
total Revolving Credit Commitments then in effect or, if the Revolving
Credit Commitments have been terminated, the total Revolving Extensions of
Credit then outstanding.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its Property or to
which such Person or any of its Property is subject.
"Reserve Account": as defined in Section 6.1(e).
"Responsible Officer": the chief executive officer, president, chief
restructuring officer, or the chief financial officer of the Borrower, but
in any event, with respect to financial matters, the chief restructuring
officer of the Borrower or the chief financial officer.
"Restricted Payments": as defined in Section 8.6.
"Revolving Credit Commitment": as to any Lender, for any period, the
obligation of such Lender, if any, to make Revolving Credit Loans and
acquire participation in Letters of Credit in an aggregate principal and/or
face amount not to exceed the amount set forth under the heading "Revolving
Credit Commitment" for such period, opposite such Lender's name, on
Schedule 1 hereto, or, as the case may be, in the Assignment and Acceptance
pursuant to which such Lender became a party hereto, as the same may be
changed from time to time pursuant to the terms hereof. The original
aggregate amount of the Revolving Credit Commitments of all Lenders is
$15,000,000.
"Revolving Credit Commitment Period": the period beginning on the
Closing Date and ending on the Termination Date.
"Revolving Credit Facility": The Revolving Credit Commitments and the
Revolving Credit Loans made thereunder.
"Revolving Credit Loans": as defined in Section 2.1.
"Revolving Credit Percentage": as to any Lender at any time, the
percentage which such Lender's Revolving Credit Commitment then constitutes
of the Revolving Credit Commitments of all Lenders (or, at any time after
the Revolving Credit Commitments shall have expired or terminated, the
percentage which the aggregate amount of such Lender's Revolving Extensions
of Credit then outstanding constitutes the aggregate amount of all
Revolving Extensions of Credit then outstanding).
13
"Revolving Extensions of Credit": as to any Lender at any time, an
amount equal to the sum of (i) the aggregate principal amount of all
Revolving Credit Loans made by such Lender then outstanding and (ii) such
Lender's Revolving Credit Percentage of LC Exposure.
"SEC": the Securities and Exchange Commission (or successors thereto
or an analogous Governmental Authority).
"Single Employer Plan": any Plan that is covered by Title IV of ERISA,
but which is not a Multiemployer Plan.
"Subsidiary": as to any Person, a corporation, partnership, limited
liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such
other ownership interests having such power only by reason of the happening
of a contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the time
owned, or the management of which is otherwise controlled, directly or
indirectly through one or more intermediaries, or both, by such Person.
Unless otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or
Subsidiaries of the Borrower.
"Super-Priority Claim": a claim against the Borrower or any Guarantor
which is an administrative expense claim having priority over any or all
administrative expenses of the kind specified in Sections 503(b) or 507(b)
of the Bankruptcy Code.
"Tax Refund": Any Federal, state, county or other tax refund or
overpayment owing to the Borrower or any of its Subsidiaries.
"Termination Date": the earliest to occur of (a) the Maturity Date,
(b) the termination of the Revolving Credit Commitments in accordance with
the terms hereof, (c) the Effective Date or (d) the closing date of the
Core 363 Sale.
"Transferee": as defined in Section 13.15.
"Uniform Customs": the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce Publication No.
500, as the same may be amended from time to time.
"Wholly Owned Subsidiary": as to any Person, any other Person all of
the Capital Stock of which (other than directors' qualifying shares
required by law) is owned by such Person directly and/or through other
Wholly Owned Subsidiaries.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in the other Loan Documents or any certificate or other document made
or delivered pursuant hereto or thereto.
14
(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or thereto,
accounting terms relating to the Borrower and its Subsidiaries not defined in
Section 1.1 and accounting terms partly defined in Section 1.1, to the extent
not defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, Schedule and
Exhibit references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
Section 2. REVOLVING CREDIT FACILITY: AMOUNT AND TERMS OF COMMITMENTS
2.1 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof and in accordance with the Budget and the Orders, each Lender
severally agrees to make revolving credit loans denominated in Dollars
("Revolving Credit Loans") to the Borrower from time to time during the
Revolving Credit Commitment Period in an aggregate principal amount at any one
time outstanding which, when added to such Lender's Revolving Credit Percentage
of LC Exposure then outstanding, does not exceed the amount of such Lender's
Revolving Credit Commitment; it being understood that no Lender shall make any
Revolving Credit Loan if, after giving effect thereto, the sum of such Lender's
(i) then outstanding Revolving Credit Loans and (ii) Revolving Credit Percentage
of LC Exposure would exceed such Lender's Revolving Credit Commitment. During
the Revolving Credit Commitment Period the Borrower may use the Revolving Credit
Commitments by borrowing, prepaying the Revolving Credit Loans in whole or in
part, and reborrowing, all in accordance with the terms and conditions hereof.
(b) The Borrower shall repay all outstanding Revolving Credit Loans
on the Termination Date.
2.2 Procedure for Revolving Credit Borrowing. The Borrower may borrow
under the Revolving Credit Commitments on any Business Day during the Revolving
Credit Commitment Period, provided that the Borrower shall give the
Administrative Agent irrevocable notice which notice must be received by the
Administrative Agent prior to 12:00 Noon, New York City time, one Business Day
prior to the requested Borrowing Date, specifying (i) the amount of Revolving
Credit Loans to be borrowed and (ii) the requested Borrowing Date. Each
borrowing of Revolving Credit Loans under the Revolving Credit Commitments shall
be made in an amount equal to $100,000 or a whole multiple thereof (or, if the
then aggregate Available Revolving Credit Commitments are less than $100,000,
such lesser amount). Upon receipt of any such notice from the Borrower, the
Administrative Agent shall promptly notify each Lender thereof. Each Lender will
make its Revolving Credit Percentage of the amount of each borrowing of
Revolving Credit Loans available to the Administrative Agent for the account of
the Borrower at the Funding Office prior to 12:00 Noon, New York City time, on
the Borrowing Date requested by the Borrower in funds immediately available to
the Administrative Agent. Such borrowing will then be made available to the
Borrower by the Administrative Agent in like funds as received by the
Administrative Agent.
15
2.3 Repayment of Loans; Evidence of Debt. (a) The Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of
the appropriate Lender the then unpaid principal amount of each Revolving Credit
Loan of such Lender on the Termination Date. The Borrower hereby further agrees
to pay interest on the unpaid principal amount of the Revolving Credit Loans
from time to time outstanding from the date hereof until payment in full thereof
at the rates per annum, and on the dates, set forth in Section 2.8.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing indebtedness of the Borrower to such Lender
resulting from each Revolving Credit Loan of such Lender from time to time,
including the amounts of principal and interest payable and paid to such Lender
from time to time under this Agreement.
(c) The Administrative Agent, on behalf of the Borrower, shall
maintain the Register pursuant to Section 13.6(d), and a subaccount therein for
each Lender, in which shall be recorded (i) the amount of each Revolving Credit
Loan made hereunder and any Note evidencing such Revolving Credit Loan, (ii) the
amount of any principal or interest due and payable or to become due and payable
from the Borrower to each Lender hereunder and (iii) both the amount of any sum
received by the Administrative Agent hereunder from the Borrower and each
Lender's share thereof.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to Section 2.3(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the Revolving
Credit Loans made to the Borrower by such Lender in accordance with the terms of
this Agreement.
(e) The Borrower agrees that, upon the request to the Administrative
Agent by any Lender, the Borrower will execute and deliver to such Lender a
promissory note of the Borrower evidencing any Revolving Credit Loans of such
Lender, substantially in the form of Exhibit C, with appropriate insertions as
to date and principal amount.
2.4 Fees, etc. The Borrower agrees to pay the fees set forth below.
All such fees shall be non-refundable.
(a) The Borrower hereby agrees to pay the Administrative Agent, on
behalf of the Lenders, a facility fee as follows: (i) $500,000 on the Closing
Date and (ii) $1,000,000 on the Termination Date.
(b) The Borrower hereby agrees to pay the Administrative Agent, for
its own account, an agency fee as follows: (i) $50,000 on the Closing Date and
(ii) $100,000 on the Termination Date.
16
2.5 Termination or Reduction of Revolving Credit Commitments. The
Borrower shall have the right, upon not less than three Business Days' notice to
the Administrative Agent, to terminate the Revolving Credit Commitments or, from
time to time, to reduce the aggregate amount of the Revolving Credit
Commitments; provided that no such termination or reduction of Revolving Credit
Commitments shall be permitted if, after giving effect thereto and to any
prepayments of the Revolving Credit Loans made on the effective date thereof,
the then outstanding Revolving Extensions of Credit would exceed the aggregate
Revolving Credit Commitments. Any such reduction shall be in an amount equal to
$100,000, or a whole multiple thereof, and shall reduce permanently the
Revolving Credit Commitments then in effect.
2.6 Optional Prepayments. The Borrower may at any time and from time
to time prepay the Revolving Credit Loans, in whole or in part, without premium
or penalty, upon irrevocable notice delivered to the Administrative Agent at
least one Business Day prior thereto, which notice shall specify the date and
amount of prepayment. Upon receipt of any such notice the Administrative Agent
shall promptly notify each Lender thereof. If any such notice is given, the
amount specified in such notice shall be due and payable on the date specified
therein. Partial prepayments of Revolving Credit Loans shall be in an aggregate
principal amount of $100,000 or a whole multiple thereof.
2.7 Mandatory Prepayments and Commitment Reductions. (a) If, at any
time during the Revolving Credit Commitment Period, the sum of the aggregate
outstanding Revolving Extensions of Credit exceeds the aggregate Revolving
Credit Commitments, the Borrower shall, without notice or demand, immediately
apply an amount equal to such excess first, to the prepayment in full of the
Revolving Credit Loans, second, to the payment in full of any Reimbursement
Obligations then outstanding and third, to the cash collateralization of
outstanding Letters of Credit by depositing into the Cash Collateral Account an
amount up to 105% of the amount by which the aggregate Letters of Credit then
outstanding exceeds the amount of cash held in the Cash Collateral Account.
(b) If on any date the Borrower or any of its Subsidiaries shall
receive Net Cash Proceeds from any Asset Sale, Recovery Event or Tax Refund then
on such date the Borrower shall apply an amount equal to such Net Cash Proceeds
first, to the prepayment in full of the Revolving Credit Loans, second, to the
payment in full of any Reimbursement Obligations then outstanding and third, to
the cash collateralization of outstanding Letters of Credit by depositing into
the Cash Collateral Account an amount up to 105% of the amount by which the
aggregate Letters of Credit then outstanding exceeds the amount of cash held in
the Cash Collateral Account. All amounts applied pursuant to clauses first,
second and third above, other than in respect of (i) the Non-Core 363 Sale and
(ii) Tax Refunds in an aggregate amount up to $1,500,000 shall permanently and
ratably reduce the Revolving Credit Commitment of each Lender.
2.8 Interest Rates and Payment Dates. (a) Each Revolving Credit Loan
shall bear interest at a rate per annum equal to the Prime Rate plus 3.00%. Any
changes in the Prime Rate shall be effective as of the opening of business on
the effective day of such change in the Prime Rate.
17
(b) If and so long as a Default or an Event of Default exists
hereunder, all outstanding Revolving Credit Loans, Reimbursement Obligations and
any other Obligation shall bear interest at a rate per annum that is equal to
the Prime Rate plus 5.00%, in each case from the date of such non-payment until
such overdue principal, interest, commitment fee or other amount is paid in full
(as well after as before judgment).
(c) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (b) of this Section
shall be payable from time to time on demand.
2.9 Computation of Interest and Fees. (a) Interest, fees and
commissions payable pursuant hereto shall be calculated on the basis of a 365-
(or 366-, as the case may be) day year for the actual days elapsed. Any change
in the interest rate on a Revolving Credit Loan resulting from a change in the
Prime Rate shall become effective as of the opening of business on the day on
which such change becomes effective. The Administrative Agent shall as soon as
practicable notify the Borrower and the relevant Lenders of the effective date
and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrower and the Lenders in the absence of manifest error. 2.10
Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the
Lenders hereunder, each payment by the Borrower on account of any commitment fee
and any reduction of the Revolving Credit Commitments of the Lenders, shall be
made pro rata according to the respective Revolving Credit Percentages of the
Lenders. Each payment (other than prepayments) in respect of fees payable
hereunder shall be applied to the amounts of such obligations owing to the
Lenders pro rata according to the respective amounts then due and owing to the
Lenders.
(b) Each payment (including each prepayment) by the Borrower on
account of principal of and interest on the Revolving Credit Loans shall be made
pro rata according to the respective outstanding principal amounts of the
Revolving Credit Loans then held by the Lenders.
(c) All payments (including prepayments) to be made by the Borrower
hereunder, whether on account of principal, interest, fees or otherwise, shall
be made without setoff or counterclaim and shall be made prior to 12:00 Noon,
New York City time, on the due date thereof to the Administrative Agent, for the
account of the Lenders, at the Payment Office, in Dollars and in immediately
available funds. Any payment made by the Borrower after 12:00 Noon, New York
City time, on any Business Day, shall be deemed to have been on the next
following Business Day. The Administrative Agent shall distribute such payments
to the Lenders promptly upon receipt in like funds as received. If any payment
hereunder becomes due and payable on a day other than a Business Day, such
payment shall be extended to the next succeeding Business Day. In the case of
any extension of any payment of principal pursuant to the preceding sentence,
interest thereon shall be payable at the then applicable rate during such
extension.
18
(d) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the Administrative
Agent by the required time on the Borrowing Date therefor, such Lender shall pay
to the Administrative Agent, on demand, such amount with interest thereon at a
rate equal to the daily average Federal Funds Effective Rate for the period
until such Lender makes such amount immediately available to the Administrative
Agent. A certificate of the Administrative Agent submitted to any Lender with
respect to any amounts owing under this paragraph shall be conclusive in the
absence of manifest error. If such Lender's share of such borrowing is not made
available to the Administrative Agent by such Lender within three Business Days
after such Borrowing Date, the Administrative Agent shall also be entitled to
recover such amount with interest thereon at the rate per annum applicable to
Revolving Credit Loans, on demand, from the Borrower.
(e) Unless the Administrative Agent shall have been notified in
writing by the Borrower prior to the date of any payment due to be made by the
Borrower hereunder that the Borrower will not make such payment to the
Administrative Agent, the Administrative Agent may assume that the Borrower is
making such payment, and the Administrative Agent may, but shall not be required
to, in reliance upon such assumption, make available to the Lenders their
respective pro rata shares of a corresponding amount. If such payment is not
made to the Administrative Agent by the Borrower within three Business Days
after such due date, the Administrative Agent shall be entitled to recover, on
demand, from each Lender to which any amount which was made available pursuant
to the preceding sentence, such amount with interest thereon at the rate per
annum equal to the daily average Federal Funds Effective Rate. Nothing herein
shall be deemed to limit the rights of the Administrative Agent or any Lender
against the Borrower.
2.11 Taxes. (a) All payments made by the Borrower under this
Agreement shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding net income taxes and franchise taxes (imposed in lieu of
net income taxes) imposed on the Administrative Agent or any Lender as a result
of a present or former connection between such Administrative Agent or such
Lender and the jurisdiction of the Governmental Authority imposing such tax or
any political subdivision or taxing authority thereof or therein (other than any
such connection arising solely from such Administrative Agent's or such Lender's
having executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement or any other Loan Document). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") or any Other Taxes are required to be
withheld from any amounts payable to any Administrative Agent or any Lender
hereunder, the amounts so payable to such Administrative Agent or such Lender
shall be increased to the extent necessary to yield to such Administrative Agent
or such Lender (after payment of all Non-Excluded Taxes and Other Taxes)
interest or any such other amounts payable hereunder at the rates or in the
amounts specified in this Agreement; provided, however, that the Borrower shall
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not be required to increase any such amounts payable to any Lender with respect
to any Non-Excluded Taxes (i) that are attributable to such Lender's failure to
comply with the requirements of paragraph (d) or (e) of this Section or (ii)
that are United States withholding taxes imposed on amounts payable to such
Lender at the time such Lender becomes a party to this Agreement, except to the
extent that such Lender's assignor (if any) was entitled, at the time of
assignment, to receive additional amounts from the Borrower with respect to such
Non-Excluded Taxes pursuant to Section 2.11(a).
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by the
Borrower, as promptly as possible thereafter the Borrower shall send to the
Administrative Agent for the account of the Administrative Agent or Lender, as
the case may be, a certified copy of an original official receipt received by
the Borrower showing payment thereof. If the Borrower fails to pay any
Non-Excluded Taxes or Other Taxes when due to the appropriate taxing authority
or fails to remit to the Administrative Agent the required receipts or other
required documentary evidence, the Borrower shall indemnify the Administrative
Agent and the Lenders for any incremental taxes, interest or penalties that may
become payable by the Administrative Agent or any Lender as a result of any such
failure. The agreements in this Section 2.11 shall survive the termination of
this Agreement and the payment of the Revolving Credit Loans and all other
amounts payable hereunder.
(d) Each Lender (or Transferee) that is not a citizen or resident of
the United States of America, a corporation, partnership or other entity created
or organized in or under the laws of the United States of America (or any
jurisdiction thereof), or any estate or trust that is subject to federal income
taxation regardless of the source of its income (a "Non-U.S. Lender") shall
deliver to the Borrower and the Administrative Agent (or, in the case of a
Participant, to the Lender from which the related participation shall have been
purchased) two copies of either U.S. Internal Revenue Service Form 1001 or Form
4224, or, in the case of a Non-U.S. Lender claiming exemption from U.S. federal
withholding tax under Section 871(h) or 881(c) of the Code with respect to
payments of "portfolio interest" a statement substantially in the form of
Exhibit D and a Form W-8, or any subsequent versions thereof or successors
thereto properly completed and duly executed by such Non-U.S. Lender claiming
complete exemption from, or a reduced rate of, U.S. federal withholding tax on
all payments by the Borrower under this Agreement and the other Loan Documents.
Such forms shall be delivered by each Non-U.S. Lender on or before the date it
becomes a party to this Agreement (or, in the case of any Participant, on or
before the date such Participant purchases the related participation). In
addition, each Non-U.S. Lender shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such Non-U.S.
Lender. Each Non-U.S. Lender shall promptly notify the Borrower at any time it
determines that it is no longer in a position to provide any previously
delivered certificate to the Borrower (or any other form of certification
adopted by the U.S. taxing authorities for such purpose). Notwithstanding any
other provision of this paragraph, a Non-U.S. Lender shall not be required to
deliver any form pursuant to this paragraph that such Non-U.S. Lender is not
legally able to deliver.
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(e) A Lender that is entitled to an exemption from or reduction of
non-U.S. withholding tax under the law of the jurisdiction in which the Borrower
is located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or
reasonably requested by the Borrower, such properly completed and executed
documentation prescribed by applicable law as will permit such payments to be
made without withholding or at a reduced rate, provided that such Lender is
legally entitled to complete, execute and deliver such documentation and in such
Lender's reasonable judgment such completion, execution or submission would not
materially prejudice the legal position of such Lender.
2.12 Change of Lending Office. Each Lender agrees that, upon the
occurrence of any event giving rise to the operation of Section 2.11(a) with
respect to such Lender, it will, if requested by the Borrower, use reasonable
efforts (subject to overall policy considerations of such Lender) to designate
another lending office for any Revolving Credit Loans affected by such event
with the object of avoiding the consequences of such event; provided, that such
designation is made on terms that, in the sole judgment of such Lender, cause
such Lender and its lending office(s) to suffer no economic, legal or regulatory
disadvantage, and provided, further, that nothing in this Section shall affect
or postpone any of the obligations of the Borrower or the rights of any Lender
pursuant to Section 2.11(a).
Section 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and conditions hereof,
the Issuing Lender, in reliance on the agreements of the other Lenders set forth
in Section 3.4(a), agrees to issue letters of credit ("Letters of Credit") for
the account of the Borrower on any Business Day during the Revolving Credit
Commitment Period in such form as may be approved from time to time by the
Issuing Lender; provided that the Issuing Lender shall have no obligation to
issue any Letter of Credit if, after giving effect to such issuance, (i) the L/C
Obligations would exceed the L/C Commitment or (ii) the aggregate amount of the
Available Revolving Credit Commitments would be less than zero. Each Letter of
Credit shall (i) be denominated in Dollars and (ii) expire no later than the
date which is three Business Days prior to the Maturity Date.
(b) Each Letter of Credit shall be subject to the Uniform Customs
and, to the extent not inconsistent therewith, the laws of the State of New
York.
(c) The Issuing Lender shall not at any time be obligated to issue
any Letter of Credit hereunder if such issuance would conflict with, or cause
the Issuing Lender or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law.
3.2 Procedure for Issuance of Letter of Credit. The Borrower may from
time to time request that the Issuing Lender issue a Letter of Credit by
delivering to the Issuing Lender at its address for notices specified herein an
Application therefor, completed to the satisfaction of the Issuing Lender, and
such other certificates, documents and other papers and information as the
Issuing Lender may request. Upon receipt of any Application, the Issuing Lender
will process such Application and the certificates, documents and other papers
and information delivered to it in connection therewith in accordance with its
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customary procedures and shall promptly issue the Letter of Credit requested
thereby (but in no event shall the Issuing Lender be required to issue any
Letter of Credit earlier than three Business Days but no later than five
Business Days after its receipt of the Application therefor and all such other
certificates, documents and other papers and information relating thereto) by
issuing the original of such Letter of Credit to the beneficiary thereof or as
otherwise may be agreed to by the Issuing Lender and the Borrower. The Issuing
Lender shall furnish a copy of such Letter of Credit to the Borrower promptly
following the issuance thereof. The Issuing Lender shall promptly furnish to the
Administrative Agent, which shall in turn promptly furnish to the Lenders,
notice of the issuance of each Letter of Credit (including the amount thereof).
3.3 Fees and Other Charges. (a) The Borrower shall pay to the Issuing
Lender for its own account a fronting fee of 1/8 of 1% per annum, payable in
arrears on each L/C Fee Payment Date after the issuance date.
(b) In addition to the foregoing fees, the Borrower shall pay or
reimburse the Issuing Lender for such normal and customary costs and expenses as
are incurred or charged by the Issuing Lender in issuing, negotiating, effecting
payment under, amending or otherwise administering any Letter of Credit.
3.4 L/C Participations. (a) The Issuing Lender irrevocably agrees to
grant and hereby grants to each L/C Participant, and, to induce the Issuing
Lender to issue Letters of Credit hereunder, each L/C Participant irrevocably
agrees to accept and purchase and hereby accepts and purchases from the Issuing
Lender, on the terms and conditions hereinafter stated, for such L/C
Participant's own account and risk an undivided interest equal to such L/C
Participant's Revolving Credit Percentage in the Issuing Lender's obligations
and rights under each Letter of Credit issued hereunder and the amount of each
draft paid by the Issuing Lender thereunder. Each L/C Participant
unconditionally and irrevocably agrees with the Issuing Lender that, if a draft
is paid under any Letter of Credit for which the Issuing Lender is not
reimbursed in full by the Borrower in accordance with the terms of this
Agreement, such L/C Participant shall pay to the Issuing Lender upon demand at
the Issuing Lender's address for notices specified herein an amount equal to
such L/C Participant's Revolving Credit Percentage of the amount of such draft,
or any part thereof, which is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant to the
Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed portion
of any payment made by the Issuing Lender under any Letter of Credit is paid to
the Issuing Lender within three Business Days after the date such payment is
due, such L/C Participant shall pay to the Issuing Lender on demand an amount
equal to the product of (i) such amount, times (ii) the daily average Federal
Funds Effective Rate during the period from and including the date such payment
is required to the date on which such payment is immediately available to the
Issuing Lender, times (iii) a fraction the numerator of which is the number of
days that elapse during such period and the denominator of which is 360. If any
such amount required to be paid by any L/C Participant pursuant to Section
3.4(a) is not made available to the Issuing Lender by such L/C Participant
within three Business Days after the date such payment is due, the Issuing
Lender shall be entitled to recover from such L/C Participant, on demand, such
amount with interest thereon calculated from such due date at the rate per annum
applicable to Revolving Credit Loans under the Revolving Credit Facility. A
certificate of the Issuing Lender submitted to any L/C Participant with respect
to any amounts owing under this Section 3.4 shall be conclusive in the absence
of manifest error.
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(c) Whenever, at any time after the Issuing Lender has made payment
under any Letter of Credit and has received from any L/C Participant its pro
rata share of such payment in accordance with Section 3.4(a), the Issuing Lender
receives any payment related to such Letter of Credit (whether directly from the
Borrower or otherwise, including proceeds of collateral applied thereto by the
Issuing Lender), or any payment of interest on account thereof, the Issuing
Lender will distribute to such L/C Participant its pro rata share thereof;
provided, however, that in the event that any such payment received by the
Issuing Lender shall be required to be returned by the Issuing Lender, such L/C
Participant shall return to the Issuing Lender the portion thereof previously
distributed by the Issuing Lender to it.
3.5 Reimbursement Obligation of the Borrower. The Borrower agrees to
reimburse the Issuing Lender on each date on which the Issuing Lender notifies
the Borrower of the date and amount of a draft presented under any Letter of
Credit and paid by the Issuing Lender for the amount of (a) such draft so paid
and (b) any taxes, fees, charges or other costs or expenses incurred by the
Issuing Lender in connection with such payment. Each such payment shall be made
to the Issuing Lender at its address for notices specified herein in lawful
money of the United States of America and in immediately available funds.
Interest shall be payable on any and all amounts remaining unpaid by the
Borrower under this Section 3.5 from the date such amounts become payable
(whether at stated maturity, by acceleration or otherwise) until payment in full
at the rate per annum applicable to Revolving Credit Loans under the Revolving
Credit Facility. Each drawing under any Letter of Credit shall constitute a
request by the Borrower to the Administrative Agent for borrowing pursuant to
Section 2.2 in the amount of such drawing. The Borrowing Date with respect to
such borrowing shall be the date of such drawing.
3.6 Obligations Absolute. The Borrower's obligations under this
Section 3 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment which the
Borrower may have or have had against the Issuing Lender, any beneficiary of a
Letter of Credit or any other Person. The Borrower also agrees with the Issuing
Lender that the Issuing Lender shall not be responsible for, and the Borrower's
Reimbursement Obligations under Section 3.5 shall not be affected by, among
other things, the validity or genuineness of documents or of any endorsements
thereon, even though such documents shall in fact prove to be invalid,
fraudulent or forged, or any dispute between or among the Borrower and any
beneficiary of any Letter of Credit or any other party to which such Letter of
Credit may be transferred or any claims whatsoever of the Borrower against any
beneficiary of such Letter of Credit or any such transferee. The Issuing Lender
shall not be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or
omissions found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
the Issuing Lender. The Borrower agrees that any action taken or omitted by the
Issuing Lender under or in connection with any Letter of Credit or the related
drafts or documents, if done in the absence of gross negligence or willful
misconduct and in accordance with the standards of care specified in the Uniform
Commercial Code of the State of New York, shall be binding on the Borrower and
shall not result in any liability of the Issuing Lender to the Borrower.
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3.7 Letter of Credit Payments. If any draft shall be presented for
payment under any Letter of Credit, the Issuing Lender shall promptly notify the
Borrower of the date and amount thereof. The responsibility of the Issuing
Lender to the Borrower in connection with any draft presented for payment under
any Letter of Credit shall, in addition to any payment obligation expressly
provided for in such Letter of Credit, be limited to determining that the
documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are substantially in conformity with such
Letter of Credit.
3.8 Applications. To the extent that any provision of any Application
related to any Letter of Credit is inconsistent with the provisions of this
Section 3, the provisions of this Section 3 shall apply.
Section 4. PRIORITY AND LIENS
4.1 Priority and Liens. (a) The Borrower and the Guarantors hereby
covenant, represent and warrant that, upon entry of the Interim Order and
continued upon entry of the Final Order, the Obligations of the Borrower and the
Guarantors hereunder and under the other Loan Documents, (i) pursuant to Section
364(c)(1) of the Bankruptcy Code, shall at all times constitute allowed
Super-Priority Claims, (ii) pursuant to Section 364(c)(2) of the Bankruptcy
Code, shall at all times be secured by a perfected first priority Lien on all
Collateral, including without limitation, all cash maintained in the Cash
Collateral Account and the Health-Care-Insurance Receivables Account and any
direct investments of the funds contained therein, that is otherwise not
encumbered by a valid and perfected Lien as of the Petition Date, (iii) pursuant
to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a perfected
junior Lien upon all Collateral (other than the Prepetition Collateral) that is
subject to valid and perfected Liens in existence on the Petition Date or valid
Liens perfected (but not granted) thereafter to the extent such post-Petition
Date perfection in respect of a pre-Petition Date claim is expressly permitted
under the Bankruptcy Code, provided, however, that the Liens granted in favor of
the Administrative Agent (for the ratable benefit of the Lenders) shall be
senior to any Lien which is expressly stated herein to be junior to the Liens in
favor of the Administrative Agent (for the ratable benefit of the Lenders), and
(iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a
perfected first priority, senior priming Lien on (1) the Prepetition Collateral
and (2) any Property of the Borrower and the Guarantors on which a Lien is
granted after the Petition Date, subject and subordinate in each case with
respect to subclauses (i) through (iv) above, only to a carve-out (the
"Carve-Out") for (x) following the occurrence and during the continuance of a
Default or Event of Default and notice from the Administrative Agent of the
triggering of such carve-out to the Borrower, its counsel and counsel to any
statutory committee appointed in the Cases, the payment (as the same may be due
and payable) of fees and disbursements of professionals retained pursuant to
Section 327 or 1103(a), as applicable, by the Debtors and any statutory
committees appointed in the Cases, which fees and disbursements have been
allowed by order of the Bankruptcy Court (including any compensation previously
incurred to the extent subsequently allowed), in an aggregate amount not to
exceed $1,000,000, and (y) the payment of unpaid fees pursuant to 28 U.S.C. ss.
1930 and any fees payable to the Clerk of the Bankruptcy Court, provided,
further that following the Termination Date, amounts in the Cash Collateral
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Account shall not be subject to the Carve-Out. It is hereby understood that,
subject only to the Carve-Out, no cost or expense of administration under
Sections 105, 364(c)(1), 503(b), 506(c) or 507(b) of the Bankruptcy Code, or
otherwise, and those resulting from the conversion of any of the Cases pursuant
to Section 1112 of the Bankruptcy Code, shall be senior to, or pari passu with,
the Super-Priority Claims of the Lenders. Without prejudice to any Lender's
right to object to the interim or final allowance of any compensation or
reimbursement of expenses, the Lenders agree that so long as no Default or Event
of Default shall have occurred and be continuing, the Borrower shall be
permitted to pay compensation and reimbursement of expenses allowed and payable
under Sections 330 and 331 of the Bankruptcy Code, as the same may be payable,
and the amounts so paid shall not reduce the Carve-Out.
(b) As to all Collateral, including without limitation, all real
property the title to which is held by either the Borrower or a Guarantor or the
possession of which is held by the Borrower or a Guarantor pursuant to leasehold
interests, the Borrower and each of the Guarantors hereby assigns and conveys as
security, grants a security interest in, hypothecates, mortgages, pledges and
sets over unto the Administrative Agent (for the ratable benefit of the Lenders)
all of its right, title and interest in all of such Collateral, including
without limitation, all owned real property and in all such leasehold interests,
together in each case with all of the right, title and interest of the Borrower
or Guarantor in and to all buildings, improvements, and fixtures related
thereto, any lease or sublease thereof, all general intangibles relating thereto
and all proceeds thereof. The Borrower and each Guarantor acknowledges that,
pursuant to the Orders, the Liens granted in favor of the Administrative Agent
(for the ratable benefit of the Lenders) in all of the Collateral shall be
perfected without the recordation of any Uniform Commercial Code financing
statements, notices of Lien or other instruments of mortgage or assignment. The
Borrower and each Guarantor further agrees that if requested by the
Administrative Agent, the Borrower and the Guarantors shall enter into separate
security agreements, pledge agreements and fee and leasehold mortgages with
respect to such Collateral on terms reasonably satisfactory to the
Administrative Agent.
4.2 Security Interest in Accounts. Pursuant to Section 364(c)(2) of
the Bankruptcy Code, the Borrower and the Guarantors hereby assign and pledge to
the Administrative Agent (for the ratable benefit of the Lenders), and hereby
grant to the Administrative Agent (for the ratable benefit of the Lenders) a
first priority security interest, senior to all other Liens, if any, in all of
the Borrower's right, title and interest in and to the Cash Collateral Account,
the Health-Care-Insurance Receivables Account and any other deposit accounts,
and any direct investment of the funds contained therein.
4.3 Payment of Obligations. Upon the maturity (whether by
acceleration or otherwise) of any of the Obligations under this Agreement or any
of the other Loan Documents, the Lenders shall be entitled to immediate payment
of such Obligations without further application to or order of the Bankruptcy
Court.
4.4 No Discharge; Survival of Claims. The Borrower and each Guarantor
agrees that to the extent the Obligations hereunder are not satisfied in full,
(i) the Obligations arising hereunder shall not be discharged by the entry of a
Confirmation Order (and the Borrower and the Guarantors pursuant to Section
1141(d)(4) of the Bankruptcy Code hereby waive any such discharge) and (ii) the
Super-Priority Claims granted to the Administrative Agent (for the ratable
benefit of the Lenders) pursuant to the Orders and the Liens granted to the
Administrative Agent (for the ratable benefit of the Lenders) pursuant to the
Orders shall not be affected in any manner by the entry of a Confirmation Order.
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Section 5. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into this
Agreement and to make the Revolving Credit Loans and to induce the Issuing
Lender and the Lenders to issue and participate in, respectively, Letters of
Credit, the Borrower and each Guarantor hereby jointly and severally represents
and warrants to the Administrative Agent, the Issuing Lender and each Lender
that:
5.1 Financial Condition. The Borrower and its Subsidiaries do not
have any material Guarantee Obligations, contingent liabilities and liabilities
for taxes, or any long-term leases or unusual forward or long-term commitments,
including, without limitation, any interest rate or foreign currency swap or
exchange transaction or other obligation in respect of derivatives, that are not
reflected in the audited consolidated balance sheet of the Borrower as at
December 31, 2002 and the related consolidated statements of income and of cash
flows for the fiscal year ended on such date. During the period from December
31, 2002 to and including the date hereof there has been no Disposition by the
Borrower or its Subsidiaries of any material part of its business or Property.
5.2 No Change. Since June 30, 2003 there has been no development or
event that has had or could reasonably be expected to have a Material Adverse
Effect other than as set forth in any public filings under the Securities
Exchange Act of 1934 made, or otherwise disclosed in any press releases issued,
by the Borrower and delivered to the Administrative Agent and those which
customarily occur as a result of events leading up to and following the
commencement of a proceeding under Chapter 11 of the Bankruptcy Code, including,
without limitation, the deterioration in results of operations and the
occurrence of defaults under various agreements.
5.3 Corporate Existence; Compliance with Law. The Borrower and each
of its Subsidiaries (a) is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, (b) subject to the entry
by the Bankruptcy Court of the Interim Order (or the Final Order when
applicable) has the corporate power and authority, and the legal right, to own
and operate its Property, to lease the Property it operates as lessee and to
conduct the business in which it is currently engaged, (c) is duly qualified as
a foreign corporation and in good standing under the laws of each jurisdiction
where its ownership, lease or operation of Property or the conduct of its
business requires such qualification, except as provided for in Schedule 5.3(c)
and (d) is in compliance with all Requirements of Law except as provided for in
Schedule 5.3(d) and to the extent that the failure to comply therewith could
not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
5.4 Corporate Power; Authorization; Enforceable Obligations. Upon
entry of the Interim Order, each Loan Party shall have the corporate power and
authority, and the legal right, to make, deliver and perform the Loan Documents
to which it is a party and, in the case of the Borrower, to borrow hereunder.
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Each Loan Party has taken all necessary corporate or other action to authorize
the execution, delivery and performance of the Loan Documents to which it is a
party and, in the case of the Borrower, to authorize the borrowings on the terms
and conditions of this Agreement and the Orders. No consent or authorization of,
filing with, notice to or other act by or in respect of, any Governmental
Authority (other than entry of the Orders) or any other Person is required in
connection with the transactions and the borrowings hereunder or the execution,
delivery, performance, validity or enforceability of this Agreement or any of
the other Loan Documents, except consents, authorizations, filings and notices
which have been obtained or made and are in full force and effect. Each Loan
Document has been duly executed and delivered on behalf of each Loan Party that
is a party thereto. Upon entry of the Interim Order, this Agreement will
constitute, and each other Loan Document upon execution will constitute, a
legal, valid and binding obligation of each Loan Party that is a party thereto,
enforceable against each such Loan Party in accordance with its terms and the
orders at law.
5.5 No Legal Bar. The execution, delivery and performance of this
Agreement and the other Loan Documents, the borrowings hereunder and the use of
the proceeds thereof will not violate any Requirement of Law or any Contractual
Obligation (other than any provision restricting the incurrence of indebtedness
or granting of liens) of the Borrower or any of its Subsidiaries and will not
result in, or require, the creation or imposition of any Lien on any of their
respective properties or revenues pursuant to any Requirement of Law or any such
Contractual Obligation (other than the Liens created by this Agreement and the
Orders). No Requirement of Law or Contractual Obligation applicable to the
Borrower or any of its Subsidiaries could reasonably be expected to have a
Material Adverse Effect.
5.6 No Material Litigation. Other than as set forth in Schedule 5.6,
there is no unstayed litigation, investigation or proceeding by or before any
arbitrator or Governmental Authority pending or, to the knowledge of the
Borrower, threatened by or against the Borrower or any of its Subsidiaries or
against any of their respective properties or revenues (a) with respect to any
of the Loan Documents or any of the transactions contemplated hereby or thereby
or (b) that could reasonably be expected to have a Material Adverse Effect.
5.7 Ownership of Property; Liens. The Borrower and each of its
Subsidiaries has title in fee simple to, or a valid leasehold interest in, all
its real property, and good title to, or a valid leasehold interest in, all its
other material Property, and none of such Property is subject to any Lien except
as permitted by Section 8.3.
5.8 Intellectual Property. The Borrower and each of its Subsidiaries
owns, or is licensed to use, all Intellectual Property necessary for the conduct
of its business as currently conducted. No material claim has been asserted and
is pending by any Person challenging or questioning the use of any Intellectual
Property or the validity or effectiveness of any Intellectual Property, nor does
the Borrower know of any valid basis for any such claim. The use of Intellectual
Property by the Borrower and its Subsidiaries does not infringe on the rights of
any Person in any material respect.
5.9 Taxes. Other than as set forth in Schedule 5.9, the Borrower and
each of its Subsidiaries has filed or caused to be filed all Federal, state and
other material tax returns that are required to be filed and, except as excused
by the Bankruptcy Code or by an applicable order of the Bankruptcy Court, has
paid all taxes shown to be due and payable on said returns or on any assessments
made against it or any of its Property and all other taxes, fees or other
27
charges imposed on it or any of its Property by any Governmental Authority
(other than any the amount or validity of which are currently being contested in
good faith by appropriate proceedings and with respect to which reserves in
conformity with GAAP have been provided on the books of the Borrower or its
Subsidiaries, as the case may be); and no tax Lien has been filed, and, to the
knowledge of the Borrower, no claim is being asserted, with respect to any such
tax, fee or other charge.
5.10 Federal Regulations. No part of the proceeds of any Revolving
Credit Loans will be used for "purchasing" or "carrying" any "margin stock"
within the respective meanings of each of the quoted terms under Regulation U as
now and from time to time hereafter in effect or for any purpose that violates
the provisions of the Regulations of the Board. If requested by any Lender or
the Administrative Agent, the Borrower will furnish to the Administrative Agent
and each Lender a statement to the foregoing effect in conformity with the
requirements of FR Form U-1 referred to in Regulation U.
5.11 Labor Matters. There are no strikes or other labor disputes
against the Borrower or any of its Subsidiaries pending or, to the knowledge of
the Borrower, threatened that (individually or in the aggregate) could
reasonably be expected to have a Material Adverse Effect. Hours worked by and
payment made to employees of the Borrower and its Subsidiaries have not been in
violation of the Fair Labor Standards Act or any other applicable Requirement of
Law dealing with such matters that (individually or in the aggregate) could
reasonably be expected to have a Material Adverse Effect. All payments due from
the Borrower or any of its Subsidiaries on account of employee health and
welfare insurance that (individually or in the aggregate) could reasonably be
expected to have a Material Adverse Effect if not paid have been paid or accrued
as a liability on the books of the Borrower or the relevant Subsidiary.
5.12 ERISA. Neither a Reportable Event nor an "accumulated funding
deficiency" (within the meaning of Section 412 of the Code or Section 302 of
ERISA) has occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan, and each Plan
has complied in all material respects with the applicable provisions of ERISA
and the Code. No termination of a Single Employer Plan has occurred, and no Lien
in favor of the PBGC or a Plan has arisen, during such five-year period. The
present value of all accrued benefits under each Single Employer Plan (based on
those assumptions used to fund such Plans) did not, as of the last annual
valuation date prior to the date on which this representation is made or deemed
made, exceed the value of the assets of such Plan allocable to such accrued
benefits. Neither the Borrower nor any Commonly Controlled Entity has had a
complete or partial withdrawal from any Multiemployer Plan that has resulted or
could reasonably be expected to result in a material liability under ERISA, and
neither the Borrower nor any Commonly Controlled Entity would become subject to
any material liability under ERISA if the Borrower or any such Commonly
Controlled Entity were to withdraw completely from all Multiemployer Plans as of
the valuation date most closely preceding the date on which this representation
is made or deemed made. No such Multiemployer Plan is in Reorganization or
Insolvent.
5.13 Investment Company Act; Other Regulations. No Loan Party is an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. No Loan
Party is subject to regulation under any Requirement of Law (other than
Regulation X of the Board) which limits its ability to incur Indebtedness.
28
5.14 Subsidiaries. (a) The Subsidiaries listed on Schedule 5.14 constitute all
the Subsidiaries of the Borrower at the date hereof. Schedule 5.14 sets forth as
of the Closing Date the name and jurisdiction of incorporation of each
Subsidiary and, as to each Subsidiary, the percentage of each class of Capital
Stock owned by each Loan Party.
(b) There are no outstanding subscriptions, options, warrants, calls,
rights or other agreements or commitments (other than stock options granted to
employees or directors and directors' qualifying shares) of any nature relating
to any Capital Stock of the Borrower or any Subsidiary, except as disclosed on
Schedule 5.14.
5.15 Use of Proceeds. The proceeds of the Revolving Extensions of
Credit shall be used for (a) the working capital and other corporate needs of
the Borrower and the Guarantors in the ordinary course of business and (b)
payment of Chapter 11 expenses, including professional fees, in each case
subject to the terms of this Agreement, the Orders and the Budget.
5.16 Environmental Matters. Other than as set forth on Schedule 5.16
and/or exceptions to any of the following that could not in the aggregate
reasonably be expected to result in the payment of a Material Environmental
Amount:
(a) The facilities and properties owned, leased or operated by the
Borrower or any of its Subsidiaries (the "Real Properties") do not contain,
and, to the best knowledge of the Borrower, have not previously contained,
any Materials of Environmental Concern in amounts or concentrations or
under circumstances which (i) constitute or constituted a violation of, or
(ii) could give rise to liability under, any Environmental Law.
(b) The Real Properties and all operations at the Real Properties are
in material compliance, and have, to the best knowledge of the Borrower, in
the last five years been in material compliance, with all applicable
Environmental Laws, and there is, to the best knowledge of the Borrower, no
contamination at, under or about the Real Properties or violation of any
Environmental Law with respect to the Real Properties or the business
operated by the Borrower or any of its Subsidiaries (the "Business").
Neither the Borrower nor any of its Subsidiaries has assumed or retained
any liability of any other Person under Environmental Laws.
(c) Neither the Borrower nor any of its Subsidiaries has received or
is aware of any notice of violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters or
compliance with Environmental Laws with regard to any of the Real
Properties or the Business, nor does the Borrower have knowledge or reason
to believe that any such notice will be received or is being threatened.
(d) To the best knowledge of the Borrower, Materials of Environmental
Concern have not been transported or disposed of from the Real Properties
in violation of, or in a manner or to a location which could give rise to
liability under, any Environmental Law, nor have any Materials of
Environmental Concern been generated, treated, stored or disposed of at, on
or under any of the Real Properties in violation of, or in a manner that
could give rise to liability under, any applicable Environmental Law.
29
(e) No judicial proceeding or governmental or administrative action is
pending or, to the knowledge of the Borrower, threatened, under any
Environmental Law to which the Borrower or any Subsidiary is or will be
named as a party with respect to the Real Properties or the Business, nor
are there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or judicial
requirements binding on the Borrower or any Subsidiary outstanding under
any Environmental Law with respect to the Real Properties or the Business.
(f) To the best knowledge of the Borrower, there has been no release
or threat of release of Materials of Environmental Concern at or from the
Real Properties, or arising from or related to the operations of the
Borrower or any Subsidiary in connection with the Real Properties or
otherwise in connection with the Business, in violation of or in amounts or
in a manner that could give rise to liability under Environmental Laws.
5.17 Accuracy of Information, etc. No statement or information
contained in this Agreement, any other Loan Document or any other document,
certificate or statement furnished to the Bankruptcy Court, the Administrative
Agent or the Lenders or any of them, by or on behalf of any Loan Party for use
in connection with the transactions contemplated by this Agreement or the other
Loan Documents, contained as of the date such statement, information, document
or certificate was so furnished, any untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
contained herein or therein not misleading. The projections and financial
information contained in the materials referenced above are based upon good
faith estimates and assumptions believed by management of the Borrower to be
reasonable at the time made, it being recognized by the Lenders that such
financial information as it relates to future events is not to be viewed as fact
and that actual results during the period or periods covered by such financial
information may differ from the projected results set forth therein by a
material amount. There is no fact known to any Loan Party that could reasonably
be expected to have a Material Adverse Effect that has not been expressly
disclosed herein, in the other Loan Documents or in any other documents,
certificates and statements furnished to the Bankruptcy Court or to the
Administrative Agent and the Lenders for use in connection with the transactions
contemplated hereby and by the other Loan Documents.
5.18 Regulation H. No Real Property is located in an area that has
been identified by the Secretary of Housing and Urban Development as an area
having special flood hazards and in which flood insurance has been made
available under the National Flood Insurance Act of 1968.
Section 6. CONDITIONS PRECEDENT
6.1 Conditions to Initial Revolving Extension of Credit. The
agreement of each Lender to make the initial Revolving Extension of Credit
requested to be made by it hereunder is subject to the satisfaction, prior to or
concurrently with the making of such extension of credit on the Closing Date, of
the following conditions precedent:
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(a) Loan Documents. The Administrative Agent shall have received (i)
this Agreement, executed and delivered by a duly authorized officer of the
Borrower and each Guarantor and (ii) if requested by a Lender, a Note for
the account of each relevant Lender, conforming to the requirements hereof
and executed and delivered by a duly authorized officer of the Borrower.
(b) Interim Order. The Administrative Agent shall have received, on or
before October 3, 2003, a copy of the Interim Order entered by the
Bankruptcy Court approving this Agreement and the other Loan Documents and
the transactions contemplated hereby and thereby and granting the Liens and
Super-Priority Claims described in Section 4.1 and finding that the Lenders
are extending credit to the Borrower in good faith within the meaning of
Section 364(e) of the Bankruptcy Code, which Interim Order (i) shall be in
form and substance reasonably satisfactory to the Administrative Agent,
(ii) shall have been entered upon an application of the Borrower reasonably
satisfactory in form and substance to the Administrative Agent, (iii) shall
be in full force and effect and (iv) shall not have been stayed, reversed,
vacated, rescinded, modified or amended in any respect.
(c) First Day Orders; Cash Collateral Arrangements. All orders
submitted to the Bankruptcy Court on or about the Petition Date shall be in
form and substance reasonably satisfactory to the Administrative Agent. The
Administrative Agent shall be satisfied with all post-Petition Date cash
collateral arrangements of the Borrower and the Guarantors.
(d) Approvals. All governmental and third party approvals necessary in
connection with the continuing operations of the Borrower and its
Subsidiaries and the transactions contemplated hereby shall have been
obtained and be in full force and effect.
(e) Fees. The Lenders and the Administrative Agent shall have
received, on or before the Closing Date, all fees required to be paid, and
all expenses for which invoices have been presented, including, without
limitation, any fees due and payable on the Closing Date and all reasonable
fees, disbursements and other charges of the Administrative Agent's counsel
and the Financial Advisor. Additionally, the Borrower shall have
established a professional fees retainer account (the "Reserve Account")
for the benefit of professionals retained by the Administrative Agent, in
an amount equal to $250,000. The Reserve Account shall at no time be
permitted to contain less than $100,000.
(f) Budget. The Administrative Agent and the Lenders shall have
received the initial Budget in form and substance satisfactory to the
Administrative Agent and the Required Lenders.
(g) Closing Certificate. The Administrative Agent shall have received
a certificate of each Loan Party, dated the Closing Date, substantially in
the form of Exhibit E, with appropriate insertions and attachments.
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(h) Legal Opinions. The Administrative Agent shall have received an
executed legal opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel to the
Borrower and its Subsidiaries, substantially in the form of Exhibit F, and
such other opinions as the Administrative Agent may reasonably require.
(i) Insurance. The Administrative Agent shall have received insurance
certificates satisfying the requirements of Section 7.6.
(j) Availability. The Administrative Agent shall be satisfied that,
after giving effect to the initial Revolving Credit Loan (on a pro forma
basis) the aggregate Revolving Credit Commitments of all Lenders are
adequate to ensure sufficient funding for the Borrower and its Subsidiaries
to carry on their operations and perform their obligations in the ordinary
course of business.
(k) Chief Restructuring Officer. The Borrower shall have appointed
▇▇▇▇▇ ▇▇▇▇▇ of Crossroads LLC as Chief Restructuring Officer on terms that
are acceptable to the Administrative Agent and the Required Lenders.
(l) Collateral Certificate. The Borrower and its Subsidiaries shall
have completed and provided to the Administrative Agent and the Lenders a
collateral certificate, a form of which is attached as Exhibit H hereto.
(m) Cash Management System. The Borrower and the Guarantors shall have
established a Cash Collateral Account and Health-Care-Insurance Receivables
Accounts and maintain a system of cash management acceptable to the
Administrative Agent. In connection therewith, the Borrower shall seek
entry of appropriate first day orders in the Cases establishing the Cash
Collateral Account and Health-Care-Insurance Receivables Account and
providing for the implementation of such cash management system.
6.2 Conditions to Each Revolving Extension of Credit. The agreement
of each Lender to make any Revolving Extension of Credit requested to be made by
it hereunder on any date (including, without limitation, its initial Revolving
Extension of Credit) is subject to the satisfaction of the following conditions
precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by any Loan Party in or pursuant to the Loan Documents
shall be true and correct in all material respects on and as of such date
as if made on and as of such date (unless stated to relate to a specific
earlier date, in which case, such representations and warranties shall be
true and correct in all material respects as of such earlier date).
(b) No Default. No Default or Event of Default shall have occurred and
be continuing on such date or after giving effect to the making of the
Revolving Extension of Credit requested to be made on such date.
(c) Orders. The Interim Order shall be in full force and effect and
shall not have been stayed, reversed, vacated, rescinded, modified or
amended in any respect or, if the date of such requested Revolving
Extension of Credit is more than 30 days after the Closing Date or the
amount of such Revolving Extension of Credit, when added to the Revolving
Extensions of Credit outstanding, would exceed the maximum amount
32
authorized under the Interim Order, the Final Order shall have been
entered, be in full force and effect and shall not have been stayed,
reversed, vacated, rescinded, modified or amended in any respect and shall
be in form and substance satisfactory to the Administrative Agent.
(d) Fees. The Lenders and the Administrative Agent shall have
received, on or before the date on which such fees and expenses are due and
payable, any fees and expenses for which invoices have been presented,
including, without limitation, and all reasonable fees, disbursements and
other charges of the Administrative Agent's counsel and the Financial
Advisor.
Each borrowing by the Borrower hereunder shall constitute a representation and
warranty by the Borrower as of the date of such extension of credit that the
conditions contained in this Section 6.2 have been satisfied.
Section 7. AFFIRMATIVE COVENANTS
The Borrower and the Guarantors hereby agree that, so long as the
Revolving Credit Commitments remain in effect, any Letter of Credit remains
outstanding, or any Revolving Credit Loan or other amount is owing to any Lender
or to the Administrative Agent hereunder, the Borrower and the Guarantors shall
and shall cause their Subsidiaries to:
7.1 Financial Statements. Furnish to the Administrative Agent and
each Lender:
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of the Borrower, a copy of the audited consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at the
end of such year and the related audited consolidated statements of income
and of cash flows for such year, setting forth in each case in comparative
form the figures as of the end of and for the previous year, reported on
without a "going concern" or like qualification or exception (other than
with respect to the Cases) by an independent certified public accountant of
nationally recognized standing;
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal
year of the Borrower, the unaudited consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at the end of such quarter
and the related unaudited consolidated statements of income and of cash
flows for such quarter and the portion of the fiscal year through the end
of such quarter, setting forth in each case in comparative form the figures
as of the end of and for the corresponding period in the previous year,
certified by a Responsible Officer as being fairly stated in all material
respects (subject to normal year-end audit adjustments); and
(c) as soon as available, but in any event not later than 45 days
after the end of each fiscal month occurring during each fiscal year of the
Borrower (other than the third, sixth, ninth and twelfth such month), the
unaudited consolidated balance sheets of the Borrower and its Subsidiaries
as at the end of such month and the related unaudited consolidated
33
statements of income and of cash flows for such month and the portion of
the fiscal year through the end of such month, setting forth in each case
in comparative form the figures as of the end of and for the corresponding
period in the previous year, certified by a Responsible Officer as being
fairly stated in all material respects (subject to normal year-end audit
adjustments);
all such financial statements to be complete and correct in all material
respects and to be prepared in reasonable detail and, with respect to the
financial statements required by Section 7.1(a), in accordance with GAAP applied
consistently throughout the periods reflected therein and with prior periods
(except as approved by such accountants or officer, as the case may be, and
disclosed therein).
7.2 Certificates; Other Information. Furnish to the Administrative
Agent and each Lender, or, in the case of clause (n), to the relevant Lender:
(a) concurrently with the delivery of the financial statements
referred to in Section 7.1(a), a certificate of the independent certified
public accountants reporting on such financial statements stating that in
making the examination necessary therefor no knowledge was obtained of any
Default or Event of Default, except as specified in such certificate;
(b) concurrently with the delivery of any financial statements
pursuant to Section 7.1, (i) a certificate of a Responsible Officer stating
that, to the best of such Responsible Officer's knowledge, each Loan Party
during such period has observed or performed in all material respects all
of its covenants and other agreements, and satisfied in all material
respects every condition, contained in this Agreement and the other Loan
Documents to which it is a party to be observed, performed or satisfied by
it, and that such Responsible Officer has obtained no knowledge of any
Default or Event of Default except as specified in such certificate and
(ii) a Compliance Certificate containing all information and calculations
necessary for determining compliance by the Borrower and its Subsidiaries
with the provisions of this Agreement referred to therein as of the last
day of the fiscal month, fiscal quarter or fiscal year of the Borrower, as
the case may be;
(c) as soon as available but no later than 4:00 p.m. (New York City
time) on the second Business Day of each week beginning on October 7, 2003,
(i) a copy of an amended Budget (the "Amended Budget") which shall set
forth (i) in comparative form, the actual results achieved and projections
for the prior week including the prior week's actual cash receipts and
disbursements and the percentage variance of the actual results from those
reflected in the Budget as then in effect and (ii) projections for the
following 13 weeks, including a rolling cash receipts and disbursements
forecast for such period. The Amended Budget shall be accompanied by a
certificate of a Responsible Officer stating that such Amended Budget is
based upon reasonable estimates and is accurate to the best knowledge of
such Responsible Officer and detailing the material assumptions on which
such update was based. If there is no objection to such Amended Budget from
the Administrative Agent within two Business Days, such Amended Budget
shall be deemed to be the Budget in effect after such time. If the
Administrative Agent objects to such Amended Budget within two Business
Days, the then existing Budget shall, until there is an agreement between
the Borrower and the Administrative Agent on a new Amended Budget, be
deemed to be in force and effect as the Budget;
34
(d) as soon as available but no later than the tenth Business Day of
each month, an accounts receivable and accounts payable aging, in form and
substance satisfactory to the Administrative Agent;
(e) promptly after the same is available, copies of all pleadings,
motions, applications, judicial information, financial information or other
documents filed on or on behalf of the Borrower or the Guarantors with the
Bankruptcy Court or the United States Trustee in the Cases, or distributed
to any official committee appointed in the Cases;
(f) within three days after the same are sent, copies of all financial
statements and reports that the Borrower sends to the holders of public
equity securities and, within three days after the same are filed, copies
of all financial statements and reports that the Borrower may make to, or
file with, the SEC;
(g) the results of each physical verification which the Borrower or
any of its Subsidiaries may in their discretion have made, or caused any
other Person to have made on their behalf, of all or any portion of their
Accounts (and, if a Default or an Event of Default shall have occurred and
be continuing, the Borrower shall, upon the request of the Administrative
Agent, conduct or cause its Subsidiaries to conduct, and deliver the
results of, such physical verifications as the Administrative Agent may
require);
(h) such other reports, statements and reconciliations with respect to
the Collateral as the Administrative Agent shall from time to time request
in its reasonable discretion;
(i) promptly after the same is available, all reports and materials
delivered by the Forensic Accountants to the Borrower, its Subsidiaries
and/or the Borrower's board of directors or a committee thereof;
(j) promptly after the same is available, all financial information
and other documents delivered to the Investment Bankers;
(k) weekly written report on the progress of: (i) the status of the
Core 363 Sale and the Non-Core 363 Sale, (ii) the Debtors' operating
initiatives, and (iii) such other items as the Administrative Agent may
request;
(l) a bi-weekly conference call (or more frequently as the
Administrative Agent may request) with the Debtors, including the Chief
Restructuring Officer, and such other of the Debtors' professionals that
Administrative Agent may request; and
(m) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
35
7.3 Collateral Audit. Permit employees, representatives and/or agents
of the Administrative Agent, at any time upon the Administrative Agent's
reasonable request, during normal business hours, to enter into the premises of
the Borrower and any of its Subsidiaries to conduct audits, the reasonable cost
and expense of which will be borne by the Borrower, of the assets of the
Borrower and its Subsidiaries that comprise the Collateral.
7.4 Payment of Obligations. Except as excused by the Bankruptcy Code
or by an applicable order of the Bankruptcy Court, pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all of its material obligations of whatever nature that constitute
administrative expenses under Section 503(b) of the Bankruptcy Code in the
Cases, except where the amount or validity thereof is currently being contested
in good faith by appropriate proceedings and reserves in conformity with GAAP
with respect thereto have been provided on the books of the Borrower or its
Subsidiaries, as the case may be.
7.5 Conduct of Business and Maintenance of Existence, etc. (a) (i)
Preserve, renew and keep in full force and effect its corporate existence and
(ii) take all reasonable action to maintain all rights, privileges and
franchises necessary or desirable in the normal conduct of its business, except,
in each case, as otherwise permitted by Section 8.4 and except, in the case of
clause (ii) above, to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect; and (b) except as excused by the
Bankruptcy Code or by an applicable order of the Bankruptcy Court, comply with
all Contractual Obligations and Requirements of Law, except to the extent that
failure to comply therewith could not, in the aggregate, reasonably be expected
to have a Material Adverse Effect.
7.6 Maintenance of Property; Insurance. (a) Keep all Property and
systems useful and necessary in its business in good working order and
condition, ordinary wear and tear excepted and (b) maintain with financially
sound and reputable insurance companies insurance on all its Property in at
least such amounts and against at least such risks (but including in any event
public liability, product liability and business interruption) as are usually
insured against in the same general area by companies engaged in the same or a
similar business.
7.7 Inspection of Property; Books and Records; Discussions. (a) Keep
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities and (b) permit
representatives of any Lender to visit and inspect any of its properties and
examine and make abstracts from any of its books and records at any reasonable
time and as often as may reasonably be desired and, with reasonable notice, to
discuss the business, operations, properties and financial and other condition
of the Borrower and its Subsidiaries with officers and employees of the Borrower
and its Subsidiaries and with its independent certified public accountants.
7.8 Notices. Promptly and in any event within one Business Day, give
notice to the Administrative Agent and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any post-Petition Date
Contractual Obligation of the Borrower or any of its Subsidiaries, (ii)
litigation, investigation or proceeding which may exist at any time between
the Borrower or any of its Subsidiaries and any Governmental Authority, or
(iii) litigation, investigation or proceeding which may exist at any time
between the Borrower or any of its Subsidiaries and any of its
shareholders, that in either case, if not cured or if adversely determined,
as the case may be, could reasonably be expected to have a Material Adverse
Effect;
36
(c) any post-Petition Date litigation or proceeding affecting the
Borrower or any of its Subsidiaries in which the amount involved is
$500,000 or more or in which injunctive or similar relief is sought;
(d) the following events, as soon as possible and in any event within
10 days after the Borrower knows or has reason to know thereof: (i) the
occurrence of any Reportable Event with respect to any Plan, a failure to
make any required contribution to a Plan, the creation of any Lien in favor
of the PBGC or a Plan or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan or (ii) the
institution of proceedings or the taking of any other action by the PBGC or
the Borrower or any Commonly Controlled Entity or any Multiemployer Plan
with respect to the withdrawal from, or the termination, Reorganization or
Insolvency of, any Plan;
(e) as soon as possible and in any event within five days of obtaining
knowledge thereof: (i) any development, event, or condition that,
individually or in the aggregate with other developments, events or
conditions, could reasonably be expected to result in the payment by the
Borrower and its Subsidiaries, in the aggregate, of a Material
Environmental Amount; and (ii) any notice that any governmental authority
may deny any application for an Environmental Permit sought by, or revoke
or refuse to renew any Environmental Permit held by, the Borrower;
(f) as soon as possible and in any event within five days of obtaining
knowledge thereof: (i) any development or event that individually or in the
aggregate with other developments or events with respect to any litigation
or proceeding that could reasonably be expected to result in a judgment or
decree against the Borrower and its Subsidiaries that, in the individually
or in the aggregate, may cause a Material Adverse Effect; and (ii) any
development or event that individually or in the aggregate with other
developments or events with respect to any investigation or proceeding by
any Governmental Authority (including, but not limited to the SEC) that
could reasonably be expected to result in a Material Adverse Effect;
(g) any development or event that has had or could reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Borrower or the relevant Subsidiary proposes to take
with respect thereto.
7.9 Environmental Laws. (a) Comply in all material respects with, and
ensure compliance in all material respects by all tenants and subtenants, if
any, with, all applicable Environmental Laws, and obtain and comply in all
material respects with and maintain, and ensure that all tenants and subtenants
obtain and comply in all material respects with and maintain, any and all
licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws.
37
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all
lawful orders and directives of all Governmental Authorities regarding
Environmental Laws.
7.10 Further Assurances. From time to time at the cost and expense of
the Borrower, execute and deliver, or cause to be executed and delivered, such
additional instruments, certificates or documents, and take all such actions, as
the Administrative Agent may reasonably request for the purposes of implementing
or effectuating the provisions of this Agreement, the other Loan Documents or
the Orders, or of more fully perfecting or renewing the rights of the
Administrative Agent and the Lenders with respect to the Collateral (or with
respect to any additions thereto or replacements or proceeds thereof or with
respect to any other property or assets hereafter acquired by the Borrower or
any Subsidiary which may be deemed to be part of the Collateral) pursuant hereto
or thereto. Upon the exercise by the Administrative Agent or any Lender of any
power, right, privilege or remedy pursuant to this Agreement, the other Loan
Documents or the Orders which requires any consent, approval, recording,
qualification or authorization of any Governmental Authority, the Borrower will
execute and deliver, or will cause the execution and delivery of, all
applications, certifications, instruments and other documents and papers that
the Administrative Agent or such Lender may be required to obtain from the
Borrower or any of its Subsidiaries for such governmental consent, approval,
recording, qualification or authorization.
7.11 Retention of Chief Restructuring Officer. The Borrower shall at
all times after the Closing Date, maintain the employment of a Chief
Restructuring Officer satisfactory to the Administrative Agent and the Required
Lenders. Such Chief Restructuring Officer shall assist the Borrower's senior
management in the management of the Borrower's finances and operations, shall
report directly to the Borrower's board of directors and shall otherwise be
retained on terms satisfactory to the Administrative Agent.
7.12 Retention of Investment Bankers. The Borrower shall at all times
after the Closing Date, maintain the employment of the Investment Bankers.
7.13 Cash Management System. The Borrower and the Guarantors shall
maintain the Cash Collateral Account and Health-Care-Insurance Receivables
Account at all times during the Revolving Credit Commitment Period. All
Health-Care-Insurance Receivables shall be directed to the segregated
Health-Care-Insurance Receivables Account which shall be swept daily and applied
to the prepayment of the Loans.
7.14 Consultants. Borrowers shall cooperate in all reasonable
respects with the Financial Advisor retained by the Administrative Agent and
shall pay or reimburse the Administrative Agent on demand for all fees and
out-of-pocket expenses incurred in connection therewith.
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Section 8. NEGATIVE COVENANTS
The Borrower and the Guarantors hereby agree that, so long as the
Revolving Credit Commitments remain in effect, any Letter of Credit remains
outstanding, or any Revolving Credit Loan or other amount is owing to any Lender
or the Administrative Agent hereunder, the Borrower and the Guarantors shall
not, and shall not permit any of their Subsidiaries to, directly or indirectly:
8.1 Compliance with Budget. Permit for any calendar week, commencing
with the week ended October 10, 2003, (i) actual receipts for such period to be
less than 90% of the receipts forecasted in the Budget for such period or (ii)
actual operating disbursements for such period to be more than 110% of the
operating disbursements forecasted in the Budget for such period.
8.2 Limitation on Indebtedness. Create, incur, assume or suffer to
exist any Indebtedness, except:
(a) Indebtedness of any Loan Party pursuant to any Loan Document;
(b) unsecured Indebtedness of any Loan Party (A) incurred in the
ordinary course of business of the Borrowers and their Subsidiaries
(including open accounts extended by suppliers in connection with purchases
of goods and services which are not overdue for a period of more than 90
days or, if overdue for more than 90 days, as to which a dispute exists and
adequate reserves have been established on the books of such Borrower or
such Subsidiary) and (B) in respect of performance, surety, statutory,
appeal bonds or similar obligations provided in the ordinary course of
business, but excluding (in each case), Indebtedness incurred through the
borrowing of money or Guarantee Obligations in respect thereof;
(c) Indebtedness outstanding on the date hereof and listed on Schedule
8.2(c); and
(d) Guarantee Obligations made in the ordinary course of business by
the Borrower or any of its Subsidiaries of obligations of the Borrower or
any Guarantor.
8.3 Limitation on Liens. Create, incur, assume or suffer to exist any
Lien upon any of its Property, whether now owned or hereafter acquired, except
for:
(a) Liens for taxes not yet due or which are being contested in good
faith by appropriate proceedings, provided that adequate reserves with
respect thereto are maintained on the books of the Borrower or its
Subsidiaries, as the case may be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business which are
not overdue for a period of more than 30 days or that are being contested
in good faith by appropriate proceedings;
39
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and deposits
securing liabilities to insurance carriers under insurance or
self-insurance arrangements;
(d) deposits to secure the performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in
the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business that, in the
aggregate, are not substantial in amount and which do not in any case
materially detract from the value of the Property subject thereto or
materially interfere with the ordinary conduct of the business of the
Borrower or any of its Subsidiaries;
(f) Liens in existence on the date hereof securing Indebtedness
permitted by Section 8.2(c), provided that no such Lien is spread to cover
any additional Property after the Closing Date and that the amount of
Indebtedness secured thereby is not increased;
(g) Liens created pursuant to this Agreement and the Orders;
(h) any interest or title of a lessor under any lease entered into by
the Borrower or any other Subsidiary in the ordinary course of its business
and covering only the assets so leased; and
(i) Liens in favor of customs and revenue authorities arising as a
matter of law to secure the payment of customs duties in connection with
the importation of goods by the Borrower or its Subsidiaries.
8.4 Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or Dispose of all or substantially all
of its Property or business, except that:
(a) any Subsidiary of the Borrower may be merged or consolidated with
or into the Borrower or any Guarantor; and
(b) any Subsidiary of the Borrower may Dispose of any or all of its
assets (upon voluntary liquidation or otherwise) to the Borrower or any
Guarantor.
8.5 Limitation on Disposition of Property. Dispose of any of its
Property (including, without limitation, receivables and leasehold interests),
whether now owned or hereafter acquired, or, in the case of any Subsidiary,
issue or sell any shares of such Subsidiary's Capital Stock to any Person,
except:
(a) the Disposition of obsolete or worn out property with an aggregate
book value not in excess of $1,000,000 in the ordinary course of business;
(b) the sale of Inventory in the ordinary course of business;
40
(c) Dispositions permitted by Section 8.4(b);
(d) the sale or issuance of any Subsidiary's Capital Stock to the
Borrower or any Guarantor; and
(e) any Recovery Event, provided, that the requirements of Section
2.7(b) are complied with in connection therewith.
8.6 Limitation on Restricted Payments. Declare or pay any dividend
on, or make any payment on account of, or set apart assets for a sinking or
other analogous fund for, the redemption, defeasance, retirement or other
acquisition of, any Capital Stock of the Borrower or any Subsidiary, whether now
or hereafter outstanding, or make any other distribution in respect thereof,
either directly or indirectly, whether in cash or property or in obligations of
the Borrower or any Subsidiary, or enter into any derivatives or other
transaction with any financial institution, commodities or stock exchange or
clearinghouse (a "Derivatives Counterparty") obligating the Borrower or any
Subsidiary to make payments to such Derivatives Counterparty as a result of any
change in market value of any such Capital Stock (collectively, "Restricted
Payments").
8.7 Limitation on Capital Expenditures. Make or commit to make any
Capital Expenditure at any time, except Capital Expenditures of the Borrower and
its Subsidiaries in an amount not to exceed $250,000 during the Revolving Credit
Commitment Period.
8.8 Limitation on Investments. Make any advance, loan, extension of
credit (by way of guaranty or otherwise) or capital contribution to, or purchase
any Capital Stock, bonds, notes, debentures or other debt securities of, or any
assets constituting an ongoing business from, or make any other investment in,
any other Person (all of the foregoing, "Investments"), except:
(a) Investments in existence on the date hereof listed on Schedule
8.8(a);
(b) extensions of trade credit in the ordinary course of business;
(c) Investments by a Debtor in another Debtor in the ordinary course
of business;
(d) Investments in Cash Equivalents;
(e) Investments arising in connection with the incurrence of
Indebtedness permitted by Section 8.2(b); and
(f) post-Petition Date loans and advances to employees of the Borrower
or any Subsidiaries of the Borrower in the ordinary course of business
(including, without limitation, for travel and entertainment expenses) in
an aggregate amount for the Borrower and Subsidiaries not to exceed
$100,000 at any one time outstanding.
8.9 Limitation on Transactions with Affiliates. Enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of Property, the rendering of any service or the payment of any
management, advisory or similar fees, with any Affiliate (other than the
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Borrower or any Guarantor) unless such transaction is (a) otherwise permitted
under this Agreement, (b) in the ordinary course of business of the Borrower or
such Subsidiary, as the case may be, and (c) upon fair and reasonable terms no
less favorable to the Borrower or such Subsidiary, as the case may be, than it
would obtain in a comparable arm's length transaction with a Person that is not
an Affiliate.
8.10 Limitation on Sales and Leasebacks. Enter into any arrangement
with any Person providing for the leasing by the Borrower or any Subsidiary of
real or personal property which has been or is to be sold or transferred by the
Borrower or such Subsidiary to such Person or to any other Person to whom funds
have been or are to be advanced by such Person on the security of such property
or rental obligations of the Borrower or such Subsidiary.
8.11 Limitation on Changes in Fiscal Periods. Permit the fiscal year
of the Borrower to end on the Saturday following closest to December 31 (which
Saturday may fall in the succeeding calendar year) or change the Borrower's
method of determining fiscal quarters.
8.12 Limitation on Restrictions on Subsidiary Distributions. Enter
into or suffer to exist or become effective any consensual encumbrance or
restriction on the ability of any Subsidiary to (a) make Restricted Payments in
respect of any Capital Stock of such Subsidiary held by, or pay any Indebtedness
owed to, the Borrower or any other Subsidiary, (b) make Investments in the
Borrower or any other Subsidiary or (c) transfer any of its assets to the
Borrower or any other Subsidiary, except for such encumbrances or restrictions
existing under or by reason of any restrictions existing under the Loan
Documents.
8.13 Limitation on Lines of Business. Enter into any business, either
directly or through any Subsidiary, except for those businesses in which the
Borrower and its Subsidiaries are engaged on the date of this Agreement or that
are reasonably related thereto.
8.14 Cash Collateral Account. Except to the extent required by
Section 8.15, (a) permit any cash received and used in the business of the
Borrower and the Guarantors to be held by the Borrower or any Guarantor or
deposited in any account other than the Cash Collateral Account or the accounts
listed on Schedule 8.14 or (b) permit any collections by the Borrower and the
Guarantors to be held by the Borrower or any Guarantor or deposited in any
account other than the Cash Collateral Account or the accounts listed on
Schedule 8.14.
8.15 Health-Care-Insurance Receivables Account. The Borrower and each
of its Subsidiaries shall not deposit, cause to be deposited or instruct any
Person to deposit any amount owing under any Health-Care-Insurance Receivables
directly into any account established by any of the Credit Parties with the
Administrative Agent or any of the Lenders or any of their respective Affiliates
other than the Health-Care-Insurance Receivables Account.
8.16 Chapter 11 Claims; Payment of Pre-Petition Date Claims. (a)
Except for the Carve-Out, incur, create, assume, suffer to exist or permit any
other Super-Priority Claim or Lien which is pari passu with or senior to the
claims of (i) the Administrative Agent and the Lenders granted pursuant to this
Agreement and the Orders or (ii) other than for claims referenced in clause (i),
the Prepetition Agent and the Prepetition Lenders granted pursuant to Section
4.1 and the Orders.
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(b) Make any payments of Indebtedness relating to pre-Petition Date
obligations other than (i) as permitted under the Orders, (ii) as permitted by
the Bankruptcy Court pursuant to the "First Day" Orders referred to in Section
6.1(c), including pre-petition wages and benefits and other employee-related
claims, and (iii) as otherwise permitted under this Agreement.
8.17 Proceeds of Revolving Credit Loans. (a) Make any expenditures,
including without limitation, by using the proceeds of Revolving Credit Loans or
Letters of Credit, for purposes other than those detailed in the Budget or (b)
use any portion of the proceeds of the Revolving Credit Loans, Letters of
Credit, the Carve-Out, the Collateral, or the Prepetition Lenders' Cash
Collateral to (i) fund or otherwise benefit any entity other than the Borrower
or the Guarantors or (ii) commence or prosecute any adversary proceeding or
contested matter, including, without limitation, any formal discovery
proceedings in anticipation thereof, (x) against the Administrative Agent, the
Lenders, the Prepetition Agent or the Prepetition Lenders or any of their
attorneys, agents, subagents or advisors or (y) with respect to (1) the claims
of the Prepetition Lenders against the Borrower or the Prepetition Lenders'
Liens which secure the Prepetition Obligations or (2) the Super-Priority Claims
or Liens granted to the Administrative Agent and the Lenders pursuant to this
Agreement and the Orders.
8.18 Reclamation Claims; Bankruptcy Code Section 546(g) Agreements.
(a) Make any payments or transfer any property on account of claims
asserted by any vendors of the Borrower or any Guarantor for reclamation in
accordance with Section 2-702 of the Uniform Commercial Code and Section
546(c) of the Bankruptcy Code.
(b) Enter into any agreements or file any motion seeking a Bankruptcy
Court order for the return of Property of the Borrower or any Guarantor to
any vendor pursuant to Section 546(g) of the Bankruptcy Code.
8.19 Reserve Account. The Borrower shall not at any time permit the
balance of the Reserve Account to be in an amount equal to or less than
$100,000.
Section 9. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Revolving
Credit Loan or any Reimbursement Obligation when due in accordance with the
terms hereof; or the Borrower shall fail to pay any interest on any
Revolving Credit Loan or Reimbursement Obligation, or any other amount
payable hereunder or under any other Loan Document, within three Business
Days after any such interest or other amount becomes due in accordance with
the terms hereof; or
(b) Any representation or warranty made or deemed made by any Loan
Party herein or in any other Loan Document or that is contained in any
certificate, document or financial or other statement furnished by it at
any time under or in connection with this Agreement or any such other Loan
Document shall prove to have been inaccurate in any material respect on or
as of the date made or deemed made or furnished; or
43
(c) Any Loan Party shall default in the observance or performance of
any agreement contained in Sections 7.1, 7.2(c), 7.2(d), 7.2(e), 7.3, 7.11,
7.12, 7.13, 7.14 or Section 8; or
(d) Any Loan Party shall default in the observance or performance of
any other agreement contained in this Agreement or any other Loan Document
(other than as provided in paragraphs (a) through (c) of this Section), and
such default shall continue unremedied for a period of 20 days; or
(e) (i) Any of the Cases shall be dismissed or converted to a case
under Chapter 7 of the Bankruptcy Code or (ii) an order of the Bankruptcy
Court shall be entered in any of the Cases appointing a trustee under
Chapter 11 of the Bankruptcy Code; or
(f) (i) Except for the Carve-Out, an order of the Bankruptcy Court
shall be entered granting another Super-Priority Claim or Lien pari passu
with or senior to that granted (x) to the Administrative Agent (for the
ratable benefit of the Lenders) pursuant to this Agreement and the Orders,
or (y) to the Prepetition Lenders pursuant to the Orders (other than
pursuant to clause (x) above), (ii) an order of a court of competent
jurisdiction shall be entered staying, reversing, vacating or otherwise
modifying this Agreement or either of the Orders without the consent of the
Administrative Agent and the Required Lenders, or (iii) the Prepetition
Lenders' Cash Collateral shall be used in a manner inconsistent with the
Orders; or
(g) An order of the Bankruptcy Court shall be entered in any of the
Cases appointing an examiner having enlarged powers (beyond those set forth
under Sections 1106(a)(3) and (4) of the Bankruptcy Code) under Section
1106(b) of the Bankruptcy Code; or
(h) The entry of an order granting relief from the automatic stay so
as to allow a third party to proceed against any asset or assets of the
Borrower or any Guarantor which have a value in excess of $100,000 in the
aggregate; or
(i) The filing of any pleading by the Borrower or any of its
Subsidiaries seeking, or otherwise consenting to, any of the matters set
forth in paragraphs (e) through (h); or
(j) The Borrower or any of its Subsidiaries files any pleading
seeking, or otherwise consenting to, (i) the invalidation, subordination or
other challenging of the Liens granted to secure the Obligations or (ii)
any relief under Section 506(c) of the Bankruptcy Code with respect to any
Property which secures the Prepetition Obligations; or
(k) There shall occur any event, including, without limitation, any
change in the financial condition of the Borrower and its Subsidiaries,
taken as a whole, after the Petition Date which results in, or could have,
a Material Adverse Effect; or
44
(l) The entry of the Final Order shall not have occurred within 30
days after the Petition Date; or
(m) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Plan or
any Lien in favor of the PBGC or a Plan shall arise on the assets of the
Borrower or any Commonly Controlled Entity, (iii) a Reportable Event shall
occur with respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or to terminate,
any Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is, in the reasonable opinion of
the Required Lenders, likely to result in the termination of such Plan for
purposes of Title IV of ERISA, (iv) any Single Employer Plan shall
terminate for purposes of Title IV of ERISA, (v) the Borrower or any
Commonly Controlled Entity shall, or in the reasonable opinion of the
Required Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer
Plan or (vi) any other event or condition shall occur or exist with respect
to a Plan; and in each case in clauses (i) through (vi) above, such event
or condition, together with all other such events or conditions, if any,
could, in the sole judgment of the Required Lenders, reasonably be expected
to have a Material Adverse Effect; or
(n) One or more judgments or decrees shall be entered after the
Petition Date against the Borrower or any of its Subsidiaries involving for
the Borrower and its Subsidiaries taken as a whole a liability (not paid or
fully covered by insurance as to which the relevant insurance company has
acknowledged coverage) of $100,000 or more, and all such judgments or
decrees shall not have been vacated, discharged, stayed or bonded pending
appeal within 30 days from the entry thereof; or
(o) Any Lien created by this Agreement or the Orders shall cease to be
enforceable and of the same effect and priority purported to be created
hereby or thereby or any Loan Party or any Affiliate of any Loan Party
shall so assert; or
(p) The guarantee contained in Section 11 shall cease, for any reason,
to be in full force and effect, or any Loan Party or any Affiliate of any
Loan Party shall so assert; or
(q) A proceeding or case shall be commenced, without the application
or consent of any Subsidiary (other than a Guarantor), in any court of
competent jurisdiction, seeking (i) its reorganization, liquidation,
dissolution, arrangement or winding-up, or the composition or readjustment
of its debts, (ii) the appointment of a receiver, custodian, trustee,
examiner, liquidator or the like of such Subsidiary or of all or any
substantial part of its Property, or (iii) similar relief in respect of
such Subsidiary under any law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts; or an
order for relief against any Subsidiary (other than a Guarantor) shall be
entered in an involuntary case under the Bankruptcy Code or any other
applicable bankruptcy, insolvency or similar laws; or
45
(r) Any Subsidiary (other than a Guarantor) shall (i) apply for or
consent to the appointment of, or the taking of possession by, a receiver,
custodian, trustee, examiner or liquidator of itself or of all or a
substantial part of its Property, (ii) make a general assignment for the
benefit of its creditors, (iii) commence a voluntary case under the
Bankruptcy Code or any other applicable bankruptcy, insolvency or similar
laws, (iv) file a petition seeking to take advantage of any other law
relating to bankruptcy, insolvency, reorganization, liquidation,
dissolution, arrangement or winding-up, or composition or readjustment of
debts, (v) fail to controvert in a timely and appropriate manner, or
acquiesce in writing to, any petition filed against it in an involuntary
case under the Bankruptcy Code or any other applicable bankruptcy,
insolvency or similar laws or take any corporate action for the purpose of
effecting any of the foregoing; or
(s) Failure to receive expressions of interest with respect to a
Non-Core 363 Sale in form and substance satisfactory to the Administrative
Agent and the Required Lenders, on or before October 31, 2003; or
(t) The entry of an order in form and substance satisfactory to the
Administrative Agent and the Required Lenders approving the sales procedure
with respect to a Non-Core 363 Sale shall not have occurred by December 12,
2003 or shall have been stayed, reversed, vacated or otherwise modified; or
(u) Failure to receive expressions of interest with respect to a Core
363 Sale, in form and substance satisfactory to the Administrative Agent
and the Required Lenders, on or before December 19, 2003; or
(v) The entry of a final order in form and substance satisfactory to
the Administrative Agent and the Required Lenders approving the Non-Core
363 Sale shall not have occurred by January 15, 2004 or shall have been
stayed, reversed, vacated or otherwise modified; or
(w) The entry of an order in form and substance satisfactory to the
Administrative Agent and the Required Lenders approving the sales
procedures with respect to a Core 363 Sale shall not have occurred by
February 26, 2004 or shall have been stayed, reversed, vacated or otherwise
modified; or
(x) The entry of an order in form and substance satisfactory to the
Administrative Agent and the Required Lenders approving the Core 363 Sale
shall not have occurred by March 26, 2004 or shall have been stayed,
reversed, vacated or otherwise modified;
then, in every such event, (A) if such event is an Event of Default specified in
clause (l) above, without further order of or application to the Bankruptcy
Court, the Revolving Credit Commitments shall immediately terminate and the
Revolving Credit Loans then outstanding shall be forthwith due and payable,
whereupon the principal of the Revolving Credit Loans, together with accrued
interest thereon and any unpaid accrued fees and all other Obligations of the
Borrower and the Guarantors accrued hereunder and under any other Loan Document
(including, without limitation, all L/C Obligations, whether or not the
46
beneficiaries of the then outstanding Letters of Credit shall have presented the
documents required thereunder), shall become forthwith due and payable, without
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived by the Borrower and the Guarantors, anything contained
herein or in any other Loan Document to the contrary notwithstanding; it being
understood that the Administrative Agent may, after such acceleration, exercise
the remedies afforded under Sections (B)(iii), (iv) and (v) below after
providing the appropriate notice as set forth below, and (B) if such event is
any other Event of Default, at any time thereafter during the continuance of
such event, and without further order of or application to the Bankruptcy Court,
the Administrative Agent may, and, at the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower (with a copy to counsel
for any statutory committee(s) appointed in the Cases and to the United States
Trustee), take one or more of the following actions, at the same or different
times (provided, that with respect to clause (iii), (iv) and (v) below, the
Administrative Agent shall provide the Borrower (with a copy to counsel for any
statutory committee(s) appointed in the Cases and to the United States Trustee)
with five Business Days' written notice prior to taking the action contemplated
thereby): (i) terminate forthwith the Revolving Credit Commitments; (ii) declare
the Revolving Credit Loans then outstanding to be forthwith due and payable,
whereupon the principal of the Revolving Credit Loans, together with accrued
interest thereon and any unpaid accrued fees and all other Obligations of the
Borrower and the Guarantors accrued hereunder and under any other Loan Document
(including, without limitation, all L/C Obligations, whether or not the
beneficiaries of the then outstanding Letters of Credit shall have presented the
documents required thereunder), shall become forthwith due and payable, without
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived by the Borrower and the Guarantors, anything contained
herein or in any other Loan Document to the contrary notwithstanding; (iii)
require the Borrower upon demand to forthwith deposit in the Cash Collateral
Account cash in an amount equal to 105% of the face amount of each unpaid Letter
of Credit; it being understood that amounts held in the Cash Collateral Account
shall be applied by the Administrative Agent to the payment of drafts drawn
under such Letters of Credit, and the unused portion thereof after all such
Letters of Credit shall have expired or been fully drawn upon, if any, shall be
applied to repay all other Obligations of the Borrower hereunder and under the
other Loan Documents; (iv) set-off amounts in the Cash Collateral Account or any
other accounts of the Borrower or the Guarantors and apply such amounts to the
Obligations of the Borrower hereunder and under the other Loan Documents; and
(v) exercise any and all remedies under this Agreement, the Orders, and
applicable law available to the Administrative Agent and the Lenders.
Section 10. THE ADMINISTRATIVE AGENT
10.1 Appointment. Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the Administrative Agent of such Lender
under this Agreement and the other Loan Documents, and each Lender irrevocably
authorizes the Administrative Agent, in such capacity, to take such action on
its behalf under the provisions of this Agreement and the other Loan Documents
and to exercise such powers and perform such duties as are expressly delegated
to the Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent.
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10.2 Delegation of Duties. The Administrative Agent may execute any
of its duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
10.3 Exculpatory Provisions. Neither the Administrative Agent nor any
of its officers, directors, employees, agents, attorneys-in-fact or affiliates
shall be (i) liable for any action lawfully taken or omitted to be taken by it
or such Person under or in connection with this Agreement or any other Loan
Document (except to the extent that any of the foregoing are found by a final
and nonappealable decision of a court of competent jurisdiction to have resulted
from its or such Person's own gross negligence or willful misconduct) or (ii)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by any Loan Party or any officer thereof
contained in this Agreement or any other Loan Document or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Administrative Agent under or in connection with, this Agreement or any
other Loan Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or
for any failure of any Loan Party a party thereto to perform its obligations
hereunder or thereunder. The Administrative Agent shall not be under any
obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of any Loan Party.
10.4 Reliance by Agents. The Administrative Agent shall be entitled
to rely, and shall be fully protected in relying, upon any instrument, writing,
resolution, notice, consent, certificate, affidavit, letter, telecopy, telex or
teletype message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to the Loan Parties), independent accountants and
other experts selected by the Administrative Agent. The Administrative Agent may
deem and treat the payee of any Note as the owner thereof for all purposes
unless such Note shall have been transferred in accordance with Section 13.6 and
all actions required by such Section in connection with such transfer shall have
been taken. The Administrative Agent shall be fully justified in failing or
refusing to take any action under this Agreement or any other Loan Document
unless it shall first receive such advice or concurrence of the Required Lenders
(or, if so specified by this Agreement, all Lenders) as it deems appropriate or
it shall first be indemnified to its satisfaction by the Lenders against any and
all liability and expense that may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this Agreement
and the other Loan Documents in accordance with a request of the Required
Lenders (or, if so specified by this Agreement, all Lenders or any other
instructing group of Lenders specified by this Agreement), and such request and
any action taken or failure to act pursuant thereto shall be binding upon all
the Lenders and any of the Lenders' assignees.
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10.5 Notice of Default. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent shall have received notice from a
Lender or the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that the Administrative Agent shall receive such a notice, the
Administrative Agent shall give notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders (or, if
so specified by this Agreement, all Lenders or any other instructing group of
Lenders specified by this Agreement); provided that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders.
10.6 Non-Reliance on Administrative Agent and Other Lenders. Each
Lender expressly acknowledges that neither the Administrative Agent nor any of
its respective officers, directors, employees, agents, consultants,
attorneys-in-fact or affiliates have made any representations or warranties to
it and that no act by the Administrative Agent hereafter taken, including any
review of the affairs of a Loan Party or any affiliate of a Loan Party, shall be
deemed to constitute any representation or warranty by the Administrative Agent
to any Lender. Each Lender represents to the Administrative Agent that it has,
independently and without reliance upon the Administrative Agent or any other
Lender or any of their respective officers, directors, employees, agents,
consultants attorneys-in-fact or affiliates, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Loan Parties and their affiliates and made
its own decision to make its Loans hereunder and enter into this Agreement. Each
Lender also represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender or any of their respective officers,
directors, employees, agents, attorneys-in-fact or affiliates, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking or not taking
action under this Agreement and the other Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Loan Parties and their affiliates. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of any Loan Party or any affiliate of
a Loan Party that may come into the possession of the Administrative Agent or
any of its officers, directors, employees, agents, consultants,
attorneys-in-fact or affiliates.
10.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to their respective Revolving Credit Percentages in effect on
the date on which indemnification is sought under this Section (or, if
indemnification is sought after the date upon which the Revolving Credit
Commitments shall have terminated and the Revolving Credit Loans shall have been
paid in full, ratably in accordance with such Revolving Credit Percentages
immediately prior to such date), for, and to save the Administrative Agent
49
harmless from and against, any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever that may at any time (including, without limitation, at
any time following the payment of the Revolving Credit Loans) be imposed on,
incurred by or asserted against the Administrative Agent in any way relating to
or arising out of, the Revolving Credit Commitments, this Agreement, any of the
other Loan Documents or any documents contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby or any action taken
or omitted by the Administrative Agent under or in connection with any of the
foregoing; provided that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements that are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted
from the Administrative Agent's gross negligence or willful misconduct. The
agreements in this Section shall survive the payment of the Revolving Credit
Loans and all other amounts payable hereunder.
10.8 Administrative Agent in Its Individual Capacity. The
Administrative Agent and its affiliates may make loans to, accept deposits from
and generally engage in any kind of business with any Loan Party as though the
Administrative Agent were not the Administrative Agent. With respect to its
Revolving Credit Loans made or renewed by it and with respect to Letters of
Credit provided or participated in by it, the Administrative Agent shall have
the same rights and powers under this Agreement and the other Loan Documents as
any Lender and may exercise the same as though it were not the Administrative
Agent, and the terms "Lender" and "Lenders" shall include the Administrative
Agent in its individual capacity.
10.9 Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 10 days' notice to the Lenders and the
Borrower. If the Administrative Agent shall resign as Administrative Agent under
this Agreement and the other Loan Documents, then the Required Lenders shall
appoint from among the Lenders a successor agent for the Lenders, whereupon such
successor agent shall succeed to the rights, powers and duties of the
Administrative Agent, and the term "Administrative Agent" shall mean such
successor agent effective upon such appointment and approval, and the former
Administrative Agent's rights, powers and duties as Administrative Agent shall
be terminated, without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this Agreement or any
holders of the Loans. If no successor agent has accepted appointment as
Administrative Agent by the date that is 10 days following a retiring
Administrative Agent's notice of resignation, the retiring Administrative
Agent's resignation shall nevertheless thereupon become effective, and the
Lenders shall assume and perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Required Lenders appoint a successor
agent as provided for above. After any retiring Administrative Agent's
resignation as Administrative Agent, the provisions of this Section shall inure
to its benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement and the other Loan Documents.
10.10 Authorization to Release Liens and Guarantees. The
Administrative Agent is hereby irrevocably authorized by each of the Lenders to
effect any release of Liens or guarantee obligations which has been consented to
in accordance with Section 12.1.
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Section 11. GUARANTEE
11.1 Guarantee. (a) Each of the Guarantors unconditionally and
irrevocably guarantees the due and punctual payment and performance by the
Borrower of the Obligations. Each of the Guarantors further agrees that the
Obligations may be extended or renewed, in whole or in part, without notice to
or further assent from it, and it will remain bound upon this guarantee
notwithstanding any extension or renewal of any of the Obligations. The
Obligations of the Guarantors shall be joint and several.
(b) Each of the Guarantors waives presentation to, demand for payment
from and protest to the Borrower or any other Guarantor, and also waives notice
of protest for nonpayment. The Obligations of the Guarantors hereunder shall not
be affected by (i) the failure of either the Administrative Agent or a Lender to
assert any claim or demand or to enforce any right or remedy against the
Borrower or any other Guarantor under the provisions of this Agreement or any
other Loan Document or otherwise; (ii) any extension or renewal of any provision
hereof or thereof; (iii) any rescission, waiver, compromise, acceleration,
amendment or modification of any of the terms or provisions of any of the Loan
Documents; (iv) the release, exchange, waiver or foreclosure of any security
held by the Administrative Agent for the Obligations or any of them; (v) the
failure of either of the Administrative Agent or a Lender to exercise any right
or remedy against any other Guarantor; or (vi) the release or substitution of
any Guarantor.
(c) Each of the Guarantors further agrees that this guarantee
constitutes a guarantee of performance and of payment when due and not just of
collection, and waives any right to require that any resort be had by either of
the Administrative Agent or a Lender to any security held for payment of the
Obligations or to any balance of any deposit, account or credit on the books of
either of the Administrative Agent or a Lender in favor of the Borrower or any
other Guarantor, or to any other Person.
(d) Each of the Guarantors hereby waives any defense that it might
have based on a failure to remain informed of the financial condition of the
Borrower and of any other Guarantor and any circumstances affecting the ability
of the Borrower to perform under this Agreement and the other Loan Documents.
(e) Each Guarantor's guarantee shall not be affected by the
genuineness, validity, regularity or enforceability of the Obligations, this
Agreement, the Notes or any other instrument evidencing any obligations, or by
the existence, validity, enforceability, perfection, or extent of any collateral
therefor or by any other circumstance relating to the Obligations which might
otherwise constitute a defense to this guarantee. Neither the Administrative
Agent, nor any of the Lenders makes any representation or warranty in respect to
any such circumstances or shall have any duty or responsibility whatsoever to
any Guarantor in respect of the management and maintenance of the Obligations.
(f) Subject to the grace periods provided by Section 9, upon the
Obligations becoming due and payable (by acceleration or otherwise), the Lenders
shall be entitled to immediate payment of such Obligations by the Guarantors
upon written demand by the Administrative Agent, without further application to
or order of the Bankruptcy Court.
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(g) In any action or proceeding involving any state or non-U.S.
corporate law, or any state or Federal or non-U.S. bankruptcy, insolvency,
reorganization or other law affecting the rights of creditors generally, if the
obligations of any Guarantor under Section 11.1 would otherwise be held or
determined to be void, invalid or unenforceable, or subordinated to the claims
of any other creditors, on account of the amount of its liability in Section
11.1, then, notwithstanding any other provision hereof to the contrary, the
amount of such liability shall, without any further action by such Guarantor,
any Lender, the Administrative Agent or any other Person, be automatically
limited and reduced to the highest amount that is valid and enforceable and not
subordinated to the claims of other creditors in such action or proceeding.
11.2 No Impairment of Guarantee. The obligations of the Guarantors
hereunder shall not be subject to any reduction, limitation, impairment or
termination for any reason (other than payment in full), including, without
limitation, any claim of waiver, release, surrender, alteration or compromise,
and shall not be subject to any defense or set-off, counterclaim, recoupment or
termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Obligations. Without limiting the generality of the
foregoing, the obligations of the Guarantors hereunder shall not be discharged
or impaired or otherwise affected by the failure of either the Administrative
Agent or a Lender to assert any claim or demand or to enforce any remedy under
this Agreement or any other agreement, by any waiver or modification of any
provision thereof, by any default, failure or delay, willful or otherwise, in
the performance of the Obligations, or by any other act or thing or omission or
delay to do any other act or thing which may or might in any manner or to any
extent vary the risk of the Guarantors or would otherwise operate as a discharge
of the Guarantors as a matter of law, unless and until the Obligations are paid
in full.
11.3 Subrogation. Until the Obligations guaranteed hereby have been
indefeasibly paid in full, each Guarantor hereby waives all rights of
subrogation or contribution, whether arising by contract or operation of law.
Section 12. REMEDIES; APPLICATION OF PROCEEDS
12.1 Remedies; Obtaining the Collateral Upon Default. Upon the
occurrence and during the continuance of an Event of Default, to the extent any
such action is not inconsistent with the Orders and Section 9, the
Administrative Agent, in addition to any rights now or hereafter existing under
applicable law, and without application to or order of the Bankruptcy Court,
shall have all rights as a secured creditor under the Uniform Commercial Code in
all relevant jurisdictions and may:
(a) personally, or by agents or attorneys, immediately take possession
of the Collateral or any part thereof, from the Borrower, any Guarantor or
any other Person who then has possession of any part thereof with or
without notice or process of law (but subject to any Requirements of Law),
and for that purpose may enter upon the Borrower's or any Guarantors'
premises where any of the Collateral is located and remove the same and use
in connection with such removal any and all services, supplies, aids and
other facilities of the Borrower or Guarantor;
52
(b) instruct the obligor or obligors on any agreements, instrument or
other obligation constituting the Collateral to make any payment required
by the terms of such instrument or agreement directly to the Cash
Collateral Account;
(c) withdraw all monies, securities and instruments in the Cash
Collateral Account for application to the Obligations;
(d) sell, assign or otherwise liquidate, or direct the Borrower or any
Guarantor to sell, assign or otherwise liquidate, any or all of the
Collateral or any part thereof, and take possession of the proceeds of any
such sale or liquidation;
(e) take possession of the Collateral or any part thereof, by
directing the Borrower or any Guarantor in writing to deliver the same to
the Administrative Agent at any place or places designated by the
Administrative Agent, in which event the Borrower or such Guarantor shall
at its own expense:
(i) forthwith cause the same to be moved to the place or places
so designated by the Administrative Agent and there delivered to the
Administrative Agent;
(ii) store and keep any Collateral so delivered to the
Administrative Agent at such place or places pending further action by
the Administrative Agent as provided in Section 12.2; and
(iii) while the Collateral shall be so stored and kept, provide
such guards and maintenance services as shall be necessary to protect
the same and to preserve and maintain them in good condition;
it being understood that the Borrower's or any Guarantors' obligation so to
deliver the Collateral is of the essence of this Agreement and that,
accordingly, upon application to the Bankruptcy Court, the Administrative Agent
shall be entitled to a decree requiring specific performance by the Borrower or
any Guarantor of such obligation.
12.2 Remedies; Disposition of the Collateral. Upon the occurrence and
during the continuance of an Event of Default, and to the extent not
inconsistent with the Orders and Section 9, without application to or order of
the Bankruptcy Court, any Collateral repossessed by the Administrative Agent
under or pursuant to Section 12.1 or the Orders or otherwise, and any other
Collateral whether or not so repossessed by the Administrative Agent, may be
sold, assigned, leased or otherwise disposed of under one or more contracts or
as an entirety, and without the necessity of gathering at the place of sale the
property to be sold, and in general in such manner, at such time or times, at
such place or places and on such terms as the Administrative Agent may, in
compliance with any Requirements of Law, determine to be commercially
reasonable. Any of the Collateral may be sold, leased or otherwise disposed of,
in the condition in which the same existed when taken by the Administrative
Agent or after any overhaul or repair which the Administrative Agent shall
determine to be commercially reasonable. Any such disposition which shall be a
private sale or other private proceeding permitted by applicable Requirements of
Law shall be made upon not less than 10 days' written notice to the Borrower and
the Guarantors specifying the time at which such disposition is to be made and
the intended sale price or other consideration therefor, and shall be subject,
for the 10 days after the giving of such notice, to the right of the Borrower,
the Guarantors or any nominee thereof to acquire the Collateral involved at a
price or for such other consideration at least equal to the intended sale price
or other consideration so specified. Any such disposition which shall be a
public sale permitted by applicable Requirements of Law shall be made upon not
less than 10 days' written notice to the Borrower and the Guarantors specifying
53
the time and place of such sale and, in the absence of applicable Requirement of
Law, shall be by public auction (which may, at the Administrative Agent's
option, be subject to reserve), after publication of notice of such auction not
less than 10 days prior thereto in one newspaper in general circulation in New
York City. Subject to Section 12.4, to the extent permitted by any such
Requirement of Law, the Administrative Agent on behalf of the Lenders may bid
for and become the purchaser of the Collateral or any item thereof, offered for
sale in accordance with this Section without accountability to the Borrower, the
Guarantors or the Prepetition Lenders (except to the extent of surplus money
received). If, under mandatory Requirements of Law, the Administrative Agent
shall be required to make disposition of the Collateral within a period of time
which does not permit the giving of notice to the Borrower or Guarantors as
hereinabove specified, the Administrative Agent need give the Borrower and
Guarantors only such notice of disposition as shall be reasonably practicable.
12.3 Application of Proceeds. (a) Notwithstanding anything to the
contrary contained in this Agreement or any other Loan Document, (i) if, upon
the occurrence and during the continuance of an Event of Default, there occurs
an acceleration of the amounts due hereunder under Section 9, any payment by the
Borrower or Guarantors on account of the Obligations or the Prepetition
Obligations and any proceeds arising out of any realization (including after
foreclosure) upon the Collateral or the Prepetition Collateral shall be applied,
subject to the Carve-Out, as follows: first, to the payment in full of all costs
and expenses (including without limitation, reasonable attorneys' fees and
disbursements) paid or incurred by the Administrative Agent or any of the
Lenders in connection with any such realization upon the Collateral, second, as
a permanent reduction of the Revolving Credit Commitments, pro rata to the
payment in full of the Revolving Credit Loans (including any accrued and unpaid
interest thereon, and any fees and other Obligations in respect thereof), third,
as a permanent reduction of the Revolving Credit Commitments, to the payment in
full of all Reimbursement Obligations, fourth, as a permanent reduction of the
Revolving Credit Commitments, to cash collateralize unreimbursed amounts paid
under any Letter of Credit in an amount equal to 105% of any such amount, and
fifth, to the payment in full of the Prepetition Obligations, and (ii) any
payments or distributions of any kind or character, whether in cash, property or
securities, made by the Borrower or Guarantors or otherwise in a manner
inconsistent with clause (i) of this Section 12.3(a) shall be held in trust and
paid over or delivered to the Administrative Agent so that the priorities and
requirements set forth in such clause (i) are satisfied.
(b) It is understood that the Borrower and the Guarantors shall
remain jointly and severally liable to the extent of any deficiency between the
amount of the proceeds of the Collateral and the amount of the Obligations.
12.4 WAIVER OF CLAIMS. EXCEPT AS OTHERWISE PROVIDED IN THIS
AGREEMENT, THE BORROWER AND THE SUBSIDIARY GUARANTORS HEREBY WAIVE, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, NOTICE AND JUDICIAL HEARING IN CONNECTION
54
WITH THE ADMINISTRATIVE AGENT'S TAKING POSSESSION OR THE ADMINISTRATIVE AGENT'S
DISPOSITION OF ANY OF THE COLLATERAL, INCLUDING, WITHOUT LIMITATION, ANY AND ALL
PRIOR NOTICE AND HEARING FOR ANY PREJUDGMENT REMEDY OR REMEDIES AND ANY SUCH
RIGHT WHICH THE BORROWER OR SUBSIDIARY GUARANTOR WOULD OTHERWISE HAVE UNDER ANY
REQUIREMENT OF LAW AND THE BORROWER AND THE SUBSIDIARY GUARANTORS HEREBY FURTHER
WAIVE, TO THE EXTENT PERMITTED BY LAW:
(a) all damages occasioned by such taking of possession except any
damages which are the direct result of the Administrative Agent's or any
Lender's gross negligence or willful misconduct;
(b) all other requirements to the time, place and terms of sale or
other requirements with respect to the enforcement of the Administrative
Agent's rights hereunder; and
(c) all rights of redemption, appraisement, valuation, stay, extension
or moratorium now or hereafter in force under any applicable law in order
to prevent or delay the enforcement of this Agreement or the absolute sale
of the Collateral or any portion thereof, and the Borrower and each
Guarantor, for itself and all who may claim under it, insofar as it now or
hereafter lawfully may, hereby waive the benefit of all such laws.
12.5 Remedies Cumulative. Each and every right, power and remedy
hereby specifically given to the Administrative Agent shall be in addition to
every other right, power and remedy specifically given under this Agreement, the
Orders or the other Loan Documents or now or hereafter existing at law or in
equity, or by statute and each and every right, power and remedy whether
specifically herein given or otherwise existing may be exercised from time to
time or simultaneously and as often and in such order as may be deemed expedient
by the Administrative Agent. All such rights, powers and remedies shall be
cumulative and the exercise or the beginning of exercise of one shall not be
deemed a waiver of the right to exercise of any other or others. No delay or
omission of the Administrative Agent in the exercise of any such right, power or
remedy and no renewal or extension of any of the Obligations shall impair any
such right, power or remedy or shall be construed to be a waiver of any Default
or Event of Default or an acquiescence therein. In the event that the
Administrative Agent shall bring any suit to enforce any of its rights or any of
the Lenders' rights hereunder and shall be entitled to judgment, then in such
suit the Administrative Agent may recover reasonable expenses, including
attorney's fees, and the amounts thereof shall be included in such judgment.
12.6 Discontinuance of Proceedings. In case the Administrative Agent
shall have instituted any proceeding to enforce any right, power or remedy under
this Agreement by foreclosure, sale, entry or otherwise, and such proceeding
shall have been discontinued or abandoned for any reason or shall have been
determined adversely to the Administrative Agent, then and in every such case,
the Borrower, the Guarantors, the Administrative Agent and each holder of any of
the Obligations shall be restored to their former positions and rights hereunder
with respect to the Collateral subject to the security interest created under
this Agreement and the Orders, and all rights, remedies and powers of the
Administrative Agent and the Lenders shall continue as if no such proceeding had
been instituted.
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Section 13. MISCELLANEOUS
13.1 Amendments and Waivers. Neither this Agreement or any other Loan
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section. The
Administrative Agent, the Required Lenders and each Loan Party party to the
relevant Loan Document may, from time to time, (x) enter into written
amendments, supplements or modifications hereto and to the other Loan Documents
(including amendments and restatements hereof or thereof) for the purpose of
adding any provisions to this Agreement or the other Loan Documents or changing
in any manner the rights of the Lenders or of the Loan Parties hereunder or
thereunder or (y) waive, on such terms and conditions as may be specified in the
instrument of waiver, any of the requirements of this Agreement or the other
Loan Documents or any Default or Event of Default and its consequences;
provided, however, that no such waiver and no such amendment, supplement or
modification shall:
(i) forgive the principal amount or extend the final scheduled date of
maturity of any Revolving Credit Loan, reduce the stated rate of any
interest or fee payable hereunder or extend the scheduled date of any
payment thereof, increase the amount or extend the expiration date of any
Revolving Credit Commitment of any Lender, or modify the Super-Priority
Claim status of the Lenders in respect of the Revolving Credit Facility, in
each case without the consent of each Lender directly affected thereby;
(ii) amend, modify or waive any provision of this Section or reduce
the percentage specified in the definition of Required Lenders, waive the
condition precedent set forth in Section 6.2(b) (unless the related Default
or Event of Default could be waived by less than all the Lenders), consent
to the assignment or transfer by the Borrower of any of its rights and
obligations under this Agreement and the other Loan Documents, release all
or substantially all of the Collateral, or release any Guarantor from its
obligations under Section 11, in each case without the consent of all
Lenders;
(iii) amend, modify or waive any provision of Section 3 without the
consent of the Issuing Lender; or
(iv) amend, modify or waive any provision of Section 10 without the
consent of the Administrative Agent.
Any such waiver and any such amendment, supplement or modification shall apply
equally to each of the Lenders and shall be binding upon the Loan Parties, the
Lenders, the Administrative Agent and all future holders of the Revolving Credit
Loans. In the case of any waiver, the Loan Parties, the Lenders and the
Administrative Agent shall be restored to their former position and rights
hereunder and under the other Loan Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon. Any such waiver, amendment, supplement or
modification shall be effected by a written instrument signed by the parties
required to sign pursuant to the foregoing provisions of this Section; provided,
that delivery of an executed signature page of any such instrument by facsimile
transmission shall be effective as delivery of a manually executed counterpart
thereof.
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13.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed (a) in the case of the Borrower and the Administrative
Agent, as follows, and (b) in the case of the Lenders, as set forth on Schedule
I to the Lender Addendum to which such Lender is a party or, in the case of a
Lender which becomes a party to this Agreement pursuant to an Assignment and
Acceptance, in such Assignment and Acceptance or (c) in the case of any party,
to such other address as such party may hereafter notify to the other parties
hereto:
The Borrower: IMPATH Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, CEO
Telecopy:
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Weil, Gotshal & ▇▇▇▇▇▇, LLP
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
The Administrative Agent: Fleet National Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Mayer, Brown, ▇▇▇▇ & Maw LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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provided that any notice, request or demand to or upon the Administrative Agent
or any Lender shall not be effective until received.
13.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Lender, any
right, remedy, power or privilege hereunder or under the other Loan Documents
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
13.4 Survival of Representations and Warranties. All representations
and warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
Revolving Credit Loans and other extensions of credit hereunder.
13.5 Payment of Expenses. The Borrower agrees (a) to pay or reimburse
the Administrative Agent for all its reasonable out-of-pocket costs and expenses
incurred in connection with the syndication of the Revolving Credit Facility
(other than fees payable to syndicate members) and the development, preparation
and execution of, and any amendment, supplement or modification to, this
Agreement and the other Loan Documents and any other documents prepared in
connection herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including, without limitation, the
reasonable fees and disbursements and other charges of the Administrative
Agent's counsel and financial advisors, (b) to pay or reimburse each Lender and
the Administrative Agent for all its costs and expenses incurred in connection
with the enforcement or preservation of any rights under this Agreement, the
other Loan Documents and any such other documents in connection herewith or
therewith, including, without limitation, the fees and disbursements of any
counsel (including the allocated fees and disbursements and other charges of
in-house counsel) to each Lender and of the Administrative Agent's counsel and
financial advisor, (c) to pay, indemnify, or reimburse each Lender and the
Administrative Agent for, and hold each Lender and the Administrative Agent
harmless from, any and all recording and filing fees and any and all liabilities
with respect to, or resulting from any delay in paying, stamp, excise and other
taxes, if any, which may be payable or determined to be payable in connection
with the execution and delivery of, or consummation or administration of any of
the transactions contemplated by, or any amendment, supplement or modification
of, or any waiver or consent under or in respect of, this Agreement, the other
Loan Documents and any such other documents in connection herewith or therewith,
and (d) to pay, indemnify or reimburse each Lender, the Administrative Agent,
their respective affiliates, and their respective officers, directors, trustees,
employees, advisors, agents and controlling persons (each, an "Indemnitee") for,
and hold each Indemnitee harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever with respect
to the execution, delivery, enforcement, performance and administration of this
Agreement, the other Loan Documents and any such other documents in connection
herewith or therewith, including, without limitation, any of the foregoing
relating to the use of proceeds of the Revolving Credit Loans or the violation
58
of, noncompliance with or liability under, any Environmental Law applicable to
the operations of the Borrower any of its Subsidiaries or any of the Properties
and the fees and disbursements and other charges of legal counsel in connection
with claims, actions or proceedings by any Indemnitee against the Borrower
hereunder (all the foregoing in this clause (d), collectively, the "Indemnified
Liabilities"), provided, that the Borrower shall have no obligation hereunder to
any Indemnitee with respect to Indemnified Liabilities to the extent such
Indemnified Liabilities are found by a final and nonappealable decision of a
court of competent jurisdiction to have resulted from the gross negligence or
willful misconduct of such Indemnitee. Without limiting the foregoing, and to
the extent permitted by applicable law, the Borrower agrees not to assert and to
cause its Subsidiaries not to assert, and hereby waives and agrees to cause its
Subsidiaries so to waive, all rights for contribution or any other rights of
recovery with respect to all claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature, under or
related to Environmental Laws, that any of them might have by statute or
otherwise against any Indemnitee. All amounts due under this Section shall be
payable not later than 10 days after written demand therefor. Statements payable
by the Borrower pursuant to this Section shall be submitted to the Borrower at
the address set forth in Section 13.2, or to such other Person or address as may
be hereafter designated by the Borrower in a written notice to the
Administrative Agent. The agreements in this Section shall survive repayment of
the Revolving Credit Loans and all other amounts payable hereunder.
13.6 Successors and Assigns; Participations and Assignments. (a) This
Agreement shall be binding upon and inure to the benefit of the Borrower, the
Lenders, the Administrative Agent, all future holders of the Revolving Credit
Loans and their respective successors and assigns, except that the Borrower may
not assign or transfer any of its rights or obligations under this Agreement
without the prior written consent of the Administrative Agent and each Lender.
(b) Any Lender may, without the consent of the Borrower, in
accordance with applicable law, at any time sell to one or more banks, financial
institutions or other entities (each, a "Participant") participating interests
in any Revolving Credit Loan owing to such Lender, any Revolving Credit
Commitment of such Lender or any other interest of such Lender hereunder and
under the other Loan Documents. In the event of any such sale by a Lender of a
participating interest to a Participant, such Lender's obligations under this
Agreement to the other parties to this Agreement shall remain unchanged, such
Lender shall remain solely responsible for the performance thereof, such Lender
shall remain the holder of any such Revolving Credit Loan for all purposes under
this Agreement and the other Loan Documents, and the Borrower and the
Administrative Agent shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under this Agreement and
the other Loan Documents. In no event shall any Participant under any such
participation have any right to approve any amendment or waiver of any provision
of any Loan Document, or any consent to any departure by any Loan Party
therefrom, except to the extent that such amendment, waiver or consent would
require the consent of all Lenders pursuant to Section 13.1(a). The Borrower
agrees that if amounts outstanding under this Agreement and the Revolving Credit
Loans are due or unpaid, or shall have been declared or shall have become due
and payable upon the occurrence of an Event of Default, each Participant shall,
to the maximum extent permitted by applicable law, be deemed to have the right
of setoff in respect of its participating interest in amounts owing under this
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Agreement to the same extent as if the amount of its participating interest were
owing directly to it as a Lender under this Agreement, provided that, in
purchasing such participating interest, such Participant shall be deemed to have
agreed to share with the Lenders the proceeds thereof as provided in Section
13.7(a) as fully as if such Participant were a Lender hereunder. The Borrower
also agrees that each Participant shall be entitled to the benefit of Section
2.11 with respect to its participation in the Revolving Credit Commitments and
the Revolving Credit Loans outstanding from time to time as if such Participant
were a Lender; provided that, such Participant shall have complied with the
requirements of said Section, and provided, further, that no Participant shall
be entitled to receive any greater amount pursuant to any such Section than the
transferor Lender would have been entitled to receive in respect of the amount
of the participation transferred by such transferor Lender to such Participant
had no such transfer occurred.
(c) Any Lender (an "Assignor") may, in accordance with applicable law
and upon written notice to the Administrative Agent, at any time and from time
to time assign to any Lender or any Affiliate thereof or, with the consent of
the Administrative Agent (which consent shall not be unreasonably withheld or
delayed), to an additional bank, financial institution or other entity which is
regularly engaged in the making of, purchasing or investing in, loans and having
total assets in excess of $300,000,000 (an "Assignee") all or any part of its
rights and obligations under this Agreement pursuant to an Assignment and
Acceptance, substantially in the form of Exhibit G, executed by such Assignee
and such Assignor (and, where the consent of the Administrative Agent is
required pursuant to the foregoing provisions, by the Administrative Agent) and
delivered to the Administrative Agent for its acceptance and recording in the
Register; provided that no such assignment to an Assignee (other than any Lender
or any Affiliate thereof) shall be in an aggregate principal amount of less than
$1,000,000, unless otherwise agreed by the Administrative Agent. Upon such
execution, delivery, acceptance and recording, from and after the effective date
determined pursuant to such Assignment and Acceptance, (x) the Assignee
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender hereunder
with Revolving Credit Commitments and/or Revolving Credit Loans as set forth
therein, and (y) the Assignor thereunder shall, to the extent provided in such
Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all of an Assignor's
rights and obligations under this Agreement, such Assignor shall cease to be a
party hereto, except as to Section 2.11 and 13.5 in respect of the period prior
to such effective date).
(d) The Administrative Agent shall, on behalf of the Borrower,
maintain at its address referred to in Section 13.2 a copy of each Assignment
and Acceptance delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Lenders and the Revolving Credit
Commitment of, and principal amount of the Revolving Credit Loans owing to, each
Lender from time to time. The entries in the Register shall be conclusive, in
the absence of manifest error, and the Borrower, the Administrative Agent and
the Lenders shall treat each Person whose name is recorded in the Register as
the owner of the Revolving Credit Loans and any Notes evidencing such Revolving
Credit Loans recorded therein for all purposes of this Agreement. Any assignment
of any Revolving Credit Loan, whether or not evidenced by a Note, shall be
effective only upon appropriate entries with respect thereto being made in the
Register (and each Note shall expressly so provide). Any assignment or transfer
of all or part of a Revolving Credit Loan evidenced by a Note shall be
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registered on the Register only upon surrender for registration of assignment or
transfer of the Note evidencing such Revolving Credit Loan, accompanied by a
duly executed Assignment and Acceptance; thereupon one or more new Notes in the
same aggregate principal amount shall be issued to the designated Assignee, and
the old Notes shall be returned by the Administrative Agent to the Borrower
marked "canceled". The Register shall be available for inspection by the
Borrower or any Lender (with respect to any entry relating to such Lender's
Revolving Credit Loans) at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
Assignor and an Assignee (and, in any case where the consent of any other Person
is required by Section 10.6(c), by each such other Person) together with payment
to the Administrative Agent of a registration and processing fee of $3,500
(except that no such registration and processing fee shall be payable in the
case of an Assignee which is already a Lender or is an Affiliate of a Lender or
a Person under common management with a Lender), the Administrative Agent shall
(i) promptly accept such Assignment and Acceptance and (ii) on the effective
date determined pursuant thereto record the information contained therein in the
Register and give notice of such acceptance and recordation to the Lenders and
the Borrower. On or prior to such effective date, the Borrower, at its own
expense, upon request, shall execute and deliver to the Administrative Agent (in
exchange for the Note of the assigning Lender) a new Note to the order of such
Assignee in an amount equal to the Revolving Credit Commitment assumed or
acquired by it pursuant to such Assignment and Acceptance and, if the Assignor
has retained a Revolving Credit Commitment upon request, a new Note to the order
of the Assignor in an amount equal to the Revolving Credit Commitment retained
by it hereunder. Such new Note or Notes shall be dated the Closing Date and
shall otherwise be in the form of the Note or Notes replaced thereby.
(f) For avoidance of doubt, the parties to this Agreement acknowledge
that the provisions of this Section concerning assignments of Revolving Credits
Loans and Notes relate only to absolute assignments and that such provisions do
not prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender of any Revolving Credit Loan or
Note to any Federal Reserve Bank in accordance with applicable law.
13.7 Adjustments; Set-off. (a) Except to the extent that this
Agreement provides for payments to be allocated to a particular Lender or
Lenders, if any Lender (a "Benefited Lender") shall at any time receive any
payment of all or part of the Obligations owing to it, or receive any collateral
in respect thereof (whether voluntarily or involuntarily, by set-off, or
otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of such other Lender's
Obligations, such Benefited Lender shall purchase for cash from the other
Lenders a participating interest in such portion of each such other Lender's
Obligations, or shall provide such other Lenders with the benefits of any such
collateral, as shall be necessary to cause such Benefited Lender to share the
excess payment or benefits of such collateral ratably with each of the Lenders;
provided, however, that if all or any portion of such excess payment or benefits
is thereafter recovered from such Benefited Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest.
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(b) In addition to any rights and remedies of the Lenders provided by
law, each Lender shall have the right, without prior notice to the Borrower, any
such notice being expressly waived by the Borrower to the extent permitted by
applicable law, upon any amount becoming due and payable by the Borrower
hereunder (whether at the stated maturity, by acceleration or otherwise), to set
off and appropriate and apply against such amount any and all deposits (general
or special, time or demand, provisional or final), in any currency, and any
other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Lender or any branch or agency thereof to or for the
credit or the account of the Borrower. Each Lender agrees promptly to notify the
Borrower and the Administrative Agent after any such setoff and application made
by such Lender, provided that the failure to give such notice shall not affect
the validity of such setoff and application. 13.8 Counterparts. This Agreement
may be executed by one or more of the parties to this Agreement on any number of
separate counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. Delivery of an executed
signature page of this Agreement by facsimile transmission shall be effective as
delivery of a manually executed counterpart hereof. A set of the copies of this
Agreement signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.
13.9 Severability. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
13.10 Integration. This Agreement and the other Loan Documents
represent the entire agreement of the Borrower, the Administrative Agent and the
Lenders with respect to the subject matter hereof and thereof, and there are no
promises, undertakings, representations or warranties by the Borrower, the
Administrative Agent or any Lender relative to the subject matter hereof not
expressly set forth or referred to herein or in the other Loan Documents.
13.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK AND, TO THE
EXTENT APPLICABLE, THE BANKRUPTCY CODE.
13.12 Submission To Jurisdiction; Waivers. The Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its Property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which
it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive jurisdiction of the Bankruptcy Court
and, if the Bankruptcy Court does not have (or abstains from) jurisdiction,
to the non-exclusive general jurisdiction of the courts of the State of New
York, the courts of the United States of America for the Southern District
of New York, and appellate courts from any thereof;
62
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to the
Borrower, at its address set forth in Section 13.2 or at such other address
of which the Administrative Agent shall have been notified pursuant
thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to ▇▇▇ in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to
in this Section any special, exemplary, punitive or consequential damages.
13.13 Acknowledgments. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any fiduciary
relationship with or duty to the Borrower arising out of or in connection
with this Agreement or any of the other Loan Documents, and the
relationship between the Administrative Agent and the Lenders, on one hand,
and the Borrower, on the other hand, in connection herewith or therewith is
solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby among
the Administrative Agent and the Lenders or among the Borrower and the
Lenders.
13.14 Absence of Prejudice with Respect to Matters Before the
Bankruptcy Court. The Borrower and the Guarantors acknowledge that the
Bankruptcy Code and Bankruptcy Rules require them to seek Bankruptcy Court
authorization for certain matters that may also be addressed in this Agreement.
Neither the Borrower nor the Guarantors will mention in any pleading or argument
before the Bankruptcy Court in support of, or in any way relating to, a position
that Bankruptcy Court authorization should be granted on the ground that such
authorization is permitted by this Agreement (unless a Person opposing any such
pleading or argument relies on this Agreement to assert or question the
propriety of such).
13.15 Confidentiality. The Administrative Agent and each Lender
agrees to keep confidential all non-public information provided to it by any
Loan Party pursuant to this Agreement that is designated by such Loan Party as
confidential; provided that nothing herein shall prevent the Administrative
Agent or any Lender from disclosing any such information (a) to the
Administrative Agent, any other Lender or any Affiliate of any thereof, (b) to
any Participant or Assignee (each, a "Transferee") or prospective Transferee
63
that agrees to comply with the provisions of this Section, (c) to any of its
employees, directors, agents, attorneys, accountants and other professional
advisors, (d) upon the request or demand of any Governmental Authority having
jurisdiction over it, (e) in response to any order of any court or other
Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law, (f) in connection with any litigation or similar proceeding,
(g) that has been publicly disclosed other than in breach of this Section, (h)
to the National Association of Insurance Commissioners or any similar
organization or any nationally recognized rating agency that requires access to
information about a Lender's investment portfolio in connection with ratings
issued with respect to such Lender or (i) in connection with the exercise of any
remedy hereunder or under any other Loan Document.
13.16 Accounting Changes. In the event that any "Accounting Change"
(as defined below) shall occur and such change results in a change in the method
of calculation of financial covenants, standards or terms in this Agreement,
then the Borrower and the Administrative Agent agree to enter into negotiations
in order to amend such provisions of this Agreement so as to equitably reflect
such Accounting Changes with the desired result that the criteria for evaluating
the Borrower's financial condition shall be the same after such Accounting
Changes as if such Accounting Changes had not been made. Until such time as such
an amendment shall have been executed and delivered by the Borrower, the
Administrative Agent and the Required Lenders, all financial covenants,
standards and terms in this Agreement shall continue to be calculated or
construed as if such Accounting Changes had not occurred. "Accounting Changes"
refers to changes in accounting principles required by the promulgation of any
rule, regulation, pronouncement or opinion by the Financial Accounting Standards
Board of the American Institute of Certified Public Accountants or, if
applicable, the SEC.
13.17 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT
AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN
ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
IMPATH INC., as Borrower
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Sr. Vice President and
General Counsel
SUBSIDIARY GUARANTORS
---------------------
IMPATH PREDICTIVE ONCOLOGY, INC., as Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President and General Counsel
MEDICAL REGISTRY SERVICES, INC., as Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President and General Counsel
IMPATH INFORMATION SERVICES, INC., as Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President and General Counsel
TAMTRON CORPORATION, as Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President and General Counsel
IMPATH PHYSICIAN SERVICES, INC., as Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President and General Counsel
FLEET NATIONAL BANK, as Administrative
Agent and Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
THE BANK OF NEW YORK, as Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
KEY CORPORATE CAPITAL INC., as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. Pronichi
----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Pronichi
Title: Vice President
BANK LEUMI USA, as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: First Vice President
